UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

BROOKE ELIZABETH HEIKE,

Plaintiff,

Case Number 09-10427-BC 

vs. Honorable Thomas L. Ludington

SUE GUEVARA, DAVE HEEKE,

PATRICIA PICKLER, CENTRAL

MICHIGAN UNIVERSITY BOARD OF

TRUSTEES,

Defendants.

______________________________________ /

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SANCTIONS, DIRECTING SUPPLEMENTAL

BRIEFING, AND SUSTAINING PLAINTIFF’S OBJECTION TO COSTS TAXED

On February 3, 2009, Plaintiff Brooke Elizabeth Heike filed a nine-count complaint [Dkt.

# 1], alleging numerous federal claims pursuant to 42 U.S.C. § 1983, and state-law claims against

Defendants Central Michigan University Board of Trustees (“CMU”), Sue Guevara, Dave Heeke,

and Patricia Pickler, on November 12, 2008. Plaintiff’s claims generally arose from her removal

from the CMU women’s basketball program and the loss of her athletic scholarship. Defendant Sue

Guevara (“Coach Guevara”) is employed by CMU as Head Coach of the women’s basketball

program. Defendant Dave Heeke (“AD Heeke”) is employed by CMU as its Athletics Director.

Defendant Patricia Pickler (“Pickler”) is employed by CMU as an Assistant Director in the Office

of Scholarships and Financial Aid.

A final judgment entered in this case on May 3, 2010. The judgment recorded that Plaintiff’s

claims against CMU were dismissed on the basis of sovereign immunity; that Plaintiff’s claims
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against the individual Defendants in their official capacities were dismissed on the basis of sovereign

immunity, except to the extent that they sought prospective injunctive relief; that the remainder of

Plaintiff’s federal claims were dismissed against the individual Defendants in their individual

capacities and their official capacities to the extent that Plaintiff sought prospective injunctive relief

on the merits; that Plaintiff’s defamation claims against the individual Defendants were dismissed

on the merits; that Plaintiff’s negligent hiring and negligent supervision claims against AD Heeke

were dismissed on the merits; and that jurisdiction was declined over Plaintiff’s remaining state law

claims.

Now before the Court is Defendants’ motion for sanctions pursuant to Federal Rule of Civil

Procedure 11 [Dkt. # 83], filed on May 28, 2010. Defendants seek a judgment against Plaintiff and

her attorney, Cindy Rhodes Victor, and the Victor Firm, PLLC, jointly and severally, in the amount

of $182,199 for violations of Rule 11(b)(1) and (3), and against Ms. Victor and her firm in the

amount of $10,388 for violations of Rule 11(b)(2). Plaintiff filed a response [Dkt. # 92] on July 12,

2010; and Defendants filed a reply [Dkt. # 93] on July 21, 2010. As explained below, Defendants’

motion for sanctions will be denied.

I

To refresh, Plaintiff’s claims were addressed in the following counts: (1) violations of

procedural and substantive due process pursuant to the Fourteenth Amendment to the U.S.

Constitution, based on alleged flaws in the process used to determine that Plaintiff’s athletic

scholarship would not be renewed for the following year; (2) violations of the Equal Protection

Clause to the U.S. Constitution based on allegations that the decision was made to not renew

Plaintiff’s athletic scholarship because of her race and status or identity as a heterosexual; (3) breach
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of contract or implied contract against CMU because Plaintiff’s athletic scholarship was not renewed

for the two additional years that it would take her to complete her college education; (4) defamation

based on allegedly false statements that were made by individuals during the process of deciding

not to renew Plaintiff’s athletic scholarship that allegedly prevented Plaintiff from having her

scholarship reinstated or receiving a scholarship from another school; (5) tortious interference with

a contract or advantageous business relationship or expectancy against the individual Defendants

for allegedly interfering with Plaintiff’s relationship with CMU; (6) intentional infliction of

emotional distress; (7) violations of certain provisions of the Michigan Elliot-Larsen Civil Rights

Act (“ELCRA”), Mich. Comp. Laws §§ 37.2101, et seq., based on allegations of discrimination

because of Plaintiff’s “race and color,” and “heterosexual preference”; (8) negligent hiring of Coach

Guevara against CMU and AD Heeke based on the alleged lack of research into Coach Guevara’s

background; and (9) negligent supervision of Coach Guevara against CMU and AD Heeke based

on Coach Guevara’s conduct towards Plaintiff.

On September 2, 2009, the Court granted in part a motion to dismiss filed by all Defendants.

See [Dkt. # 30]. The Court dismissed all of Plaintiff’s claims against CMU, a public university that

is an arm of the State of Michigan, on the basis of sovereign immunity. Plaintiff’s claims against

CMU had included equal protection violations, due process violations, breach of contract, ELCRA

violations, negligent hiring, and negligent supervision. The Court also dismissed all of Plaintiff’s

claims against Coach Guevara, AD Heeke, and Pickler in their official capacities, except Plaintiff’s

federal claims to the extent that they seek prospective injunctive relief.

After the parties filed supplemental briefing, on November 6, 2009, the Court granted in part

and denied in part the remainder of Defendants’ motion to dismiss. See [Dkt. # 34]. The Court
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dismissed Plaintiff’s claims of negligent hiring and negligent supervision against AD Heeke and

Plaintiff’s defamation claims against AD Heeke and Pickler. The Court rejected Coach Guevara’s

arguments that the alleged defamatory statements of Coach Guevara are absolutely privileged or

non-actionable statements of opinion. Nonetheless, the Court concluded that Plaintiff had not

sufficiently plead special damages to support her defamation claim against Coach Guevara, and

granted Plaintiff leave to amend the complaint.

On November 13, 2009, Plaintiff filed an amended complaint [Dkt. # 35]. Then, on February

9, 2010, the Court granted Coach Guevara’s motion to dismiss Plaintiff’s defamation claim,

primarily because Plaintiff consented to Coach Guevara’s expression of her evaluation when

Plaintiff requested an Appeals committee hearing. See [Dkt. # 59]. Finally, on May 3, 2010, the

Court granted Defendants’ motion for summary judgment as to Plaintiffs’ remaining federal claims

based on violations of procedural and substantive due process and equal protection pursuant to §

1983 against Defendants in their individual capacities and in their official capacities for injunctive

relief. The Court declined to exercise jurisdiction over Plaintiff’s remaining state law claims for

tortious interference with a contract or advantageous business relationship or expectancy, intentional

infliction of emotional distress, and violations of certain provisions of the Michigan ELCRA.

II

When an attorney submits a pleading to a federal court, and later advocates it, the attorney

certifies that to the best of his or her “knowledge, information, and belief, formed after an inquiry

reasonable under the circumstances”:

(1) it is not being presented for any improper purpose, such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation; 

(2) the claims, defenses, and other legal contentions are warranted by existing law
1

 “Absent exceptional circumstances, a law firm must be held jointly responsible for a violation

committed by its partner, associate, or employee.” Id.

2

 “If warranted, the court may award to the prevailing party the reasonable expenses, including

attorney’s fees, incurred for the motion.” Id.

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or by a nonfrivolous argument for extending, modifying, or reversing existing law

or for establishing new law; 

(3) the factual contentions have evidentiary support or, if specifically so identified,

will likely have evidentiary support after a reasonable opportunity for further

investigation or discovery.

Fed. R. Civ. P. 11(b)(1)–(3).

An attorney may be sanctioned for violations of Rule 11(b), after the attorney is provided

“notice and a reasonable opportunity to respond.” Fed. R. Civ. P. 11(c)(1).1

 A party seeking to file

a motion for sanctions must serve it on the opposing party pursuant to Rule 5 of the Federal Rules

of Civil Procedure, but the motion “must not be filed or be presented to the court if the challenged

paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days

after service or within another time the court sets.” Fed. R. Civ. P. 11(c)(2).2

 Defendants emphasize

that a motion for sanctions may be filed after entry of a final judgment, so long as the moving party

afforded the allegedly offending party at least twenty-one days to correct a pleading, citing Divane

v. Krull Elec. Co., 200 F.3d 1020, 1025 (7th Cir. 1999).

Sanctions imposed pursuant to Rule 11 “must be limited to what suffices to deter repetition

of the conduct or comparable conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(4). When

a motion for sanctions has been filed, sanctions may include “an order directing payment to the

movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the

violation,” if “warranted for effective deterrence.” Id. Other possible sanctions include

“nonmonetary directives” or “an order to pay a penalty into court.” Id. Monetary sanctions cannot
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be imposed “against a represented party for violating Rule 11(b)(2).” Fed. R. Civ. P. 11(c)(5).

In the Sixth Circuit, “the test for the imposition of Rule 11 sanctions [is] ‘whether the

individual’s conduct was reasonable under the circumstances.’ ” Union Planters Bank v. L & J Dev.

Co., 115 F.3d 378, 384 (6th Cir. 1997) (quoting Lemaster v. United States, 891 F.2d 115, 118 (6th

Cir. 1989)) (further citations omitted). The standard of “reasonable under the circumstances” is

“objective,” and thus, a demonstration of “good faith” does not defeat a motion for sanctions. Mann

v. G & G Mfg., Inc., 900 F.2d 953, 959 (6th Cir. 1990) (citing INVST Fin. Group, Inc. v. Chem.

Nuclear Sys., 815 F.2d 391, 401 (6th Cir. 1987)). Allegations of sanctionable conduct should not

be viewed with “the wisdom of hindsight,” but “by inquiring what was reasonable to believe at the

time the pleading, motion, or other paper was submitted.” Id. (quoting INVST, 815 F.2d at 401). 

Defendants represent that on July 9, 2009, they served a draft motion for sanctions on

Plaintiff, requesting that she withdraw or correct her complaint within twenty-one days. While

Defendants served the draft motion for sanctions on Plaintiff only six days before they filed their

initial motion to dismiss, the Court did not decide the motion to dismiss before Plaintiff was afforded

the full twenty-one days of the safe-harbor provision of Rule 11. See generally Ridder v. City of

Springfield, 109 F.3d 288, 297 (6th Cir. 1997) (explaining that “a motion for sanctions under Rule

11 must be served on the offending party for a period of ‘safe harbor’ at least twenty-one days prior

to the entry of final judgment or judicial rejection of the offending contention”).

In the draft motion, Defendants asserted that the identified claims were not “warranted by

existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or

for establishing new law,” quoting Fed. R. Civ. P. 11(b)(2), and that certain claims were not

supported by known facts, see Fed. R. Civ. P. 11(b)(3). More specifically, Defendants explained:
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1. The United States Supreme Court has held that the Eleventh Amendment prevents

suit in federal court by a citizen against a state. Hans v. Louisiana, 134 U.S. 1

(1890). Because CMU is a state university and an “arm of the state,” Plaintiff’s suit

against CMU is barred by the Eleventh Amendment. Long v. Richardson, 525 F.2d

74, 79 (6th Cir. 1975). Accordingly, the CMU Board of Trustees should be

dismissed as a party for lack of subject matter jurisdiction.

2. Neither the State nor its officials acting in their official capacities are “persons”

under 42 U.S.C. § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989). Accordingly, the § 1983 claims against CMU and its employees in their

official capacity should also be dismissed for failure to state a claim upon which

relief can be granted.

3. All official-capacity claims against CMU’s employees (the three individual

Defendants) that are either based on state law or that are brought under 42 U.S.C. §

1983, to the extent Plaintiff seeks monetary or retrospective relief, are claims against

CMU, which are barred by the Eleventh Amendment.

4. Moreover, because the CMU Board of Trustees cannot be sued in this Court,

Plaintiff’s Breach of Contract claim, which is asserted only against CMU and not

against any individual defendant, cannot stand. An agent may work on behalf of a

principal within the scope of the agency agreement as if the agent had stepped into

the shoes of the principal without incurring any personal liability. Uniprop, Inc. v.

Morganroth, 260 Mich. App. 442, 447; 678 N.W.2d 638 (2004).

5. Plaintiff’s claim for breach of contract is barred by the Michigan’s Statute of

Frauds, MCL § 566.132, which provides in relevant part: “In the following cases an

agreement, contract, or promise is void unless that agreement, contract, or promise,

or a note or memorandum of the agreement, contract, or promise is in writing and

signed with an authorized signature by the party to be charged with the agreement,

contract, or promise: (a) An agreement that, by its terms, is not to be performed

within 1 year from the making of the agreement.”

6. Plaintiff’s claims under 42 U.S.C. § 1983 against Sue Guevara for Denial of Due

Process (Count I) are not supported by the known facts and are not supported by

existing law, or a good-faith argument to expand the existing law. Regardless of

whether or not Plaintiff had a sufficient property or liberty interest in having her

scholarship renewed as to warrant protection under U.S. Const. Amend. XIV,

Plaintiff’s admissions during her deposition establish that she was afforded all

process due her by Coach Guevara when she was given notice that her scholarship

would not be renewed before the end of the academic year.

7. Plaintiff’s claims under 42 U.S.C. § 1983 against Sue Guevara for Denial of

Equal Protect (Count II) based on allegations of reverse racial discrimination are not

supported by the known facts and are not supported by existing law, or a good-faith

argument to expand the existing law. Plaintiff’s admissions during her deposition

establish that she cannot establish a prima facie case for reverse racial
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discrimination. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

8. Plaintiff’s claims under 42 U.S.C. § 1983 against Sue Guevara for Denial of

Equal Protect (Count II) based on allegations of sexual orientation discrimination are

not supported by the known facts and are not supported by existing law, or a

good-faith argument to expand the existing law. Plaintiff’s admissions during her

deposition establish that she cannot establish a “class of one” Equal Protection claim.

Enguist v. Oregon Dep’t of Ag., 128 U.S. 2146; 128 S. Ct. 2146 (2008).

9. Plaintiff’s claims under 42 U.S.C. § 1983 against Dave Heeke and Patricia Pickler

for Denial of Due Process (Count I) and Denial of Equal Protect (Count II), and all

of her state law claims against those two Defendants, are not supported by the known

facts and are not supported by existing law, or a good-faith argument to expand the

existing law. Plaintiff’s admissions during her deposition establish that she has

absolutely no basis to believe that either Mr. Heeke or Ms. Pickler took any action

that could in any way constitute a violation of her Constitutional Rights, or in any

way constitute a basis for her state law claims.

10. Plaintiff’s claims against Dave Heeke for Negligent Hiring and Negligent

Supervision of Sue Guevara are entirely without merit. The claims are not properly

asserted against Mr. Heeke, who was undisputedly never Sue Guevara’s employer,

and who is entitled to limited governmental immunity. Harrison v. Director of Dep’t

of Corrections, 194 Mich. App. 446; 487 N.W.2d 799 (1992); Paquin v. Northern

Michigan University, 79 Mich. App. 605; 262 N.W.2d 672 (1977).

Defs. Br. Ex. 1; [Dkt. # 83-2].

Defendants also represent that on December 9, 2009, after Plaintiff filed an amended

complaint, and twenty-one days before Defendants filed their motion for summary judgment, they

served another draft motion for sanctions on Plaintiff. The second motion reiterated the arguments

presented in paragraphs six through nine of their initial motion, quoted above, as to the amended

complaint. Defs. Br. Ex. 2; [Dkt. # 83-3]. At this juncture, Defendants contend that sanctions are

warranted in relation to two main sets of claims: (1) Plaintiff’s claims against CMU and the

individual Defendants in their official capacities; and (2) Plaintiff’s equal protection and due process

claims against the individual Defendants in their individual capacities pursuant to § 1983.

A

Plaintiff’s claims against CMU were dismissed on the basis of sovereign immunity, as were
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Plaintiff’s claims against the individual Defendants in their official capacities, except to the extent

that they sought prospective injunctive relief. As to these claims, Defendants seek sanctions

pursuant to Rule 11(b)(2) against Plaintiff’s attorney and her law firm because Plaintiff’s claims

were not “warranted by existing law or by a nonfrivolous argument for extending, modifying, or

reversing existing law or for establishing new law.” Defendants seek sanctions in the amount of

$11,726.00 based on attorney fees and costs necessary to prepare the answer and affirmative

defenses to the identified claims, along with drafting and filing the motion to dismiss and reply in

support of the motion to dismiss.

In their motion for sanctions, Defendants emphasize that Plaintiff did not dispute that CMU

was an arm of the State. Rather, Plaintiff argued that Congress abrogated CMU’s immunity as to

the claims raised by Plaintiff and that CMU has waived its immunity through participation in this

action. More specifically, Plaintiff contended that Congress abrogated Eleventh Amendment

immunity to her Fourteenth Amendment claims through enactment of 42 U.S.C. § 2000d-7(a)(1),

which abrogates Eleventh Amendment immunity as to claims brought under Title VI, the

Rehabilitation Act, Title IX, the ADA, or “any other Federal statute prohibiting discrimination.”

Plaintiff further relied on Gratz v. Bollinger, 122 F. Supp. 2d 811, 834-36 (E.D. Mich. 2000),

reversed on other grounds, 539 U.S. 244 (2003).

In granting Defendants’ motion to dismiss the pertinent claims, the Court noted that Gratz

involved Title VI claims, which are covered by § 2000d-7(a)(1), and that Plaintiff did not allege any

claims under Title VI, the Rehabilitation Act, Title IX, the ADA, or “any other Federal statute

prohibiting discrimination.” Rather, Plaintiff alleged “discriminatory treatment” in violation of the

Fourteenth Amendment. Thus, Plaintiff’s argument that Congress abrogated Eleventh Amendment
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immunity as to Plaintiff’s federal constitutional claims through § 2000d-7(a)(1) was “unpersuasive.”

The Court also found unpersuasive Plaintiff’s argument that CMU waived its sovereign

immunity through participation in this litigation. While Plaintiff emphasized that CMU participated

in discovery prior to filing its motion to dismiss, CMU had asserted sovereign immunity as an

affirmative defense, and the individual Defendants were entitled to proceed with discovery, pending

resolution of the question of sovereign immunity. See Raygor v. Regents of Univ. of Minn., 534 U.S.

533, 547 (2002) (affirming the requirement that consent be “unequivocally expressed”).

In their motion for sanctions, Defendants also emphasize that the fact that CMU and the

individual Defendants in their official capacities were not “persons” within the meaning of § 1983

provided another ground for dismissal of Plaintiff’s claims against CMU and the individual

Defendants in their official capacities, except to the extent that Plaintiff sought prospective

injunctive relief. In Will v. Mich. Dep’t of State Police, the Court held that “a State is not a person

within the meaning of § 1983.” 491 U.S. 58, 64 (1989). In response to Defendants’ motion to

dismiss, Plaintiff did not specifically address this argument, but reiterated her arguments regarding

abrogation of sovereign immunity.

In response to Defendants’ motion for sanctions, Plaintiff emphasizes that “ the imposition

of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the

determination of a collateral issue: whether the attorney has abused the judicial process, and, if so,

what sanction would be appropriate.” Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 395-96

(1990). While Plaintiff seems to quote this passage to suggest that this Court should not focus on

the merits of her claims, that proposition was not addressed by the case law cited. Rather, Cooter

and Willy v. Coastal Corp., 503 U.S. 131, 138 (1992), sought to explain that a ruling on a motion
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for sanctions was not a ruling “on the merits” with res judicata or jurisdictional implications when

ruled on after the dismissal of a lawsuit.

More significantly, Plaintiff highlights that “[t]he focus of Rule 11 . . . is narrow; it relates

to a specific act – the signing, and to a specific time – the time of signing . . . [and] does not create

a continuing obligation.” Jackson v. Law Firm of O’Hara, Ruberg, Osborne & Taylor, 875 F.2d

1224, 1229 (6th Cir. 1989). Plaintiff contends that, at the time of the filing of the complaint, and

after the filing of defendants’ motion to dismiss, the conduct of counsel for Plaintiff was “reasonable

under the circumstances.” Plaintiff asserts that counsel conducted research into the validity of

pursuing federal claims against state actors, and reasonably believed that Congress had abrogated

the state’s Eleventh Amendment immunity by enacting 42 U.S.C. §2000d, that CMU’s receipt of

federal funding served as a waiver of the assertion of Eleventh Amendment immunity, and that the

state had waived its immunity when it enacted Mich. Comp. Laws § 390.555. Plaintiff also asserts

that counsel had reason to believe that the state actors had waived any assertion of sovereign

immunity by participating in the litigation through answering the complaint and vigorously pursuing

discovery.

Defendants are entitled to limited sanctions pursuant to Rule 11(b)(2) in relation to Plaintiff’s

claims against CMU and the individual Defendants in their official capacities. Notably, had Plaintiff

filed this suit in state court, immunity would not have been an issue, because the Eleventh

Amendment only provides immunity to states when they are sued in federal court. Nonetheless, it

is significant that a state can consent to suit in federal court through its conduct after the filing of

a complaint against it. Thus, Plaintiff’s counsel’s decision to file these claims in federal court was

reasonable at the time, despite the risk that the state would not consent.
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In contrast, at the time of responding to Defendants’ motion to dismiss, Plaintiff’s counsel

no longer had a colorable argument that Defendants waived their immunity through participation

in the lawsuit, or that their right to immunity had been abrogated. While Plaintiff highlights that her

claims against the individual Defendants in their official capacities under §1983 were not dismissed

to the extent that Plaintiff sought prospective injunctive relief, Plaintiff did not stipulate to the

dismissal of the claims to the extent that she sought additional relief. Even after review of

Defendant’s draft motion for sanctions and motion to dismiss, Plaintiff did not make a nonfrivolous

argument to support the proposition that the state’s immunity had been abrogated as to the claims

alleged.

Thus, Defendants’ motion will be granted in part as to these claims. To the extent that CMU

incurred fees to defend Plaintiff’s claims against it subsequent to the filing of Plaintiff’s response

to Defendants’ motion to dismiss, sanctions are appropriate. CMU will be directed to provide a

supplemental brief, identifying and explaining the specific fees that it believes it is entitled to given

this determination. Plaintiff will be provided an opportunity to respond, and, if necessary, the Court

will schedule an evidentiary hearing.

B

Defendants seek sanctions in the amount of $182,199 against Plaintiff, her attorney, and her

attorney’s law firm, jointly and severally, for violations of Rule 11(b)(1) and (3) in relation to

Plaintiff’s equal protection and due process claims against the individual Defendants in their

individual capacities pursuant to § 1983. Defendants contend that Plaintiff’s factual contentions in

support of these claims never had any evidentiary support and that Plaintiff never had a basis to

believe that evidentiary support would exist after discovery. Defendants insist that Plaintiff
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intentionally made “wildly salacious and completely unfounded accusations against the Defendants

solely as a means to generate negative publicity against CMU.” Defendants emphasize that Plaintiff

and her attorney contacted a public relations firm, Shazaaam! LLC, and that Plaintiff’s attorney

appeared on a talk show to discuss the lawsuit. Defendants also emphasize that Plaintiff and her

attorney filed another lawsuit against CMU on April 7, 2010, in the Southern Division of the Eastern

District of Michigan, No. 10-11373, which has been assigned to the Honorable Denise Page Hood.

Defendants represent that the new case adds Bethany Brown as a plaintiff, and Title VI and IX

claims, but asserts “the same basic meritless claims as the present suit.”

First, with respect to her Equal Protection claims based on race discrimination, Defendants

emphasize that Plaintiff did not provide any direct evidence of race discrimination. Rather,

Defendants insist that Plaintiff “deliberately misconstrued Coach Guevara’s alleged preference for

tough players as racial animus, and characterized her own African-American teammates as ‘thugs.’ ”

Plaintiff did not advance any evidence allowing the inference that Coach Guevara’s alleged

preference for tough players was somehow a reference for African-Americans. With further respect

to circumstantial evidence, Defendants emphasize that Plaintiff did not demonstrate “background

circumstances to support the suspicion that the defendant is that unusual [person] who discriminates

against the majority,” as is necessary in “reverse” discrimination cases. Arendale v. City of

Memphis, 519 F.3d 587, 603 (6th Cir. 2006). Nor did Plaintiff identify any African-American

players that were similarly situated to her, but received more favorable treatment.

Second, with respect to her Equal Protection claims of sexual orientation or sexual

preference discrimination, Plaintiff acknowledged that other heterosexual teammates had their

scholarships renewed and remained on the team. Defendants assert that Plaintiff’s statement that
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one player was less feminine and more “tomboyish” because she wore sweatpants to class highlights

“the ridiculous and insincere nature of her claim.” Defendants assert that no reasonable person, or

trained attorney, could possibly believe that a cause of action could be established based on such a

distinction.

Third, with respect to Plaintiff’s Due Process claims, Defendants contend that Plaintiff

simply did not like the decision that the Appeals Committee reached in affirming Coach Guevara’s

decision to not renew Plaintiff’s scholarship. Defendants assert that Plaintiff never had any

evidentiary support for her irrational belief that the Appeals Committee hearing was unfair or biased.

In response, Plaintiff asserts that she did not do anything to publicize this lawsuit - she gave

no interviews, there were no press conferences, and there was not even a press release. Plaintiff

acknowledges that a reporter for the Detroit News published an article a week after Plaintiff filed

the complaint, but emphasizes that there were no quotations from Plaintiff or her attorney in the

article. The story was then picked up by the Associated Press and circulated more widely. Plaintiff

represents that she and her family sought assistance from a public relations firm in order to deal

with, and avoid further media attention related to the lawsuit. Apparently, however, Plaintiff’s

counsel did appear on the Mitch Albom radio show.

Plaintiff also emphasizes that there is “no real body of case law which governs the

relationship between a student-athlete and a coach.” With respect to her race discrimination claims,

Plaintiff emphasizes that she advanced evidence of other women basketball players who played

under Coach Guevara and had similarly poor statistical performances, yet retained their athletic

scholarships for four years, with the only apparent difference being that Plaintiff was white and the

other players were African-American. The Court explained in its order granting Defendants
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summary judgment on Plaintiff’s claims, however, that Plaintiff freely admitted that her teammates

perceived that she did not have a positive attitude as compared to the rest of the team members, and

therefore was not “similarly situated.” In addition, the Court questioned whether Plaintiff could

possibly be considered similarly situated to players on other teams that Coach Guevara coached at

another institution that may have had different policies and procedures in effect or a different

institutional emphasis on athletics, academics, and other factors.

With respect to her sexual orientation claims, Plaintiff emphasizes that she testified that

Coach Guevara made comments about her appearance, and that such comments were made to other

players while defendant Guevara was a coach at the University of Michigan. Plaintiff also provided

evidence that Coach Guevara dismissed her from the team and took away her scholarship because

Plaintiff was not Coach Guevara’s “type,” which Plaintiff believed implied either that she was not

African-American or was not homosexual. Explaining that Plaintiff’s claim was a “class of one”

claim, the Court concluded that Plaintiff did not demonstrate that the government action “lacks a

rational basis . . . either by negativing every conceivable basis which might support the government

action or by demonstrating that the challenged government action was motivated by animus or

ill-will.” Notably, the burden of proving a “class of one” claim is a heavy one for any plaintiff.

Finally, with respect to her procedural due process claims, Plaintiff emphasizes that she

advanced evidence that the appeals committee informed her of its decision within twenty minutes

following the conclusion of the hearing, the fact that the MAC and National Letters of Intent state

that renewal of an athletic scholarship is conditioned upon the terms stated therein, and Plaintiff’s

personal observations at the appeals hearing. In granting Defendants’ motion for summary

judgment, the Court explained that specific procedural requirements are flexible, Mathews v.
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Eldridge, 424 U.S. 319, 334 (1976) (quotation omitted), but that “[a]t its core, due process entails,

notice, a meaningful opportunity to be heard, and a fair and impartial process. LaChance v.

Erickson, 522 U.S. 262, 266 (1998). The Court concluded that Plaintiff could not demonstrate that

she did not have access to “a meaningful opportunity to be heard, and a fair and impartial process.”

Defendants are not entitled to sanctions pursuant to Rule 11(b)(1) and (3) in relation to

Plaintiff’s equal protection and due process claims against the individual Defendants in their

individual capacities pursuant to § 1983. While Plaintiff could not continue to maintain her claims

when faced with a motion for summary judgment, the claims had facial merit. Significantly, the

factual context giving rise to Plaintiff’s claims was fairly unique. For example, neither Plaintiff nor

Defendants were able to advance a significant body of case law governing the renewal and

termination of collegiate athletic scholarships, the way in which anti-discrimination statutes and

constitutional provisions apply to college athletics, or the due process rights of college athletes with

scholarships.

In addition, based on the entire factual record presented to the Court, Defendants’ argument

that Plaintiff’s claims did not have any evidentiary support and were made simply to disparage

Defendants is not convincing. Plaintiff’s claims were plausible on the facts she alleged, even if

Plaintiff could not advance legal authority precisely applicable to them in this unique area of the

law. Significantly, Plaintiff’s perception that she was being discriminated against based on her race

or sexual orientation may largely have arisen from a lack of clear communication with respect to the

non-renewal of her athletic scholarship, when such scholarships are routinely renewed.

Although Plaintiff testified that Coach Guevara told her at some point that she should “take

her scholarship and leave,” it does not appear that Coach Guevara, in contrast, had any documented
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conversations with Plaintiff when, in Coach Guevara’s judgment, Plaintiff’s scholarship was

progressively more in jeopardy. While Coach Guevara’s criticism of Plaintiff’s athletic performance

was clear, it was less than clear what Plaintiff needed to do to avoid losing her scholarship. It also

does not appear that Coach Guevara ever enlisted, or was offered, the assistance of anyone else in

the CMU athletic department, to assist in communicating with Plaintiff when Coach Guevara, acting

on behalf of CMU, began to consider not renewing Plaintiff’s scholarship.

These management deficiencies may have unnecessarily contributed to the tension between

the parties in this case, which has been palpable throughout litigation. However, as previously

explained, the management decisions did not give rise to any procedural due process violations

identified by Plaintiff. Nonetheless, based on the factual record advanced, the fact that Plaintiff

could not garner enough evidentiary support throughout discovery for her claims to survive

summary judgment is not enough to entitle Defendants to sanctions. Thus, Defendants’ motion will

be denied.

III

Also before the Court is Plaintiff’s objection [Dkt. # 81] to certain costs taxed in relation to

the deposition of Adrienne Wise Lenhoff, of the PR firm Shazaaam!. Defendant submitted a bill of

costs [Dkt. # 79] on May 14, 2010, and the Clerk of the Court taxed $1,621.17 in costs against

Plaintiff the same day. Plaintiff objects to the costs taxed for the transcript of Ms. Lenhoff’s

deposition ($369.40), along with Ms. Lenhoff’s witness fee ($54.52), and service fees ($111.00).

Plaintiff acknowledges that Defendants attached Ms. Lenhoff’s testimony to their motion for

summary judgment, but contends that Defendants did not use the testimony to support any of their

defenses to Plaintiff’s claims. Plaintiff emphasizes that the Court’s opinion and order did not
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mention the deposition, and asserts that whether Plaintiff talked to a public relations firm was not

relevant to the factual or legal issues in the case.

In a response [Dkt. # 82] filed May 27, 2010, Defendants contend that Ms. Lenhoff’s

testimony was relevant to Plaintiff’s defamation claim. Defendants highlight that they argued in

their motion for summary judgment as follows:

Finally, while the irony is apparently lost on Plaintiff, the record clearly shows that

Plaintiff alone is responsible for any publicity arising out of Coach Guevara’s

criticism of her playing ability. Coach Guevara made a confidential and honest

assessment of Plaintiff’s basketball skills that was revealed only to a very small and

select group of individuals in the context of the Appeals Committee Hearing. Coach

Guevara’s comments began and ended there. Plaintiff, on the other hand, has filed

the present lawsuit and attached to her Complaint not only Coach Guevara’s April

24, 2008 written statement, but also the transcript of the June 11, 2008 hearing.

Before Plaintiff filed her Complaint, these documents were protected from disclosure

by federal law and were unknown to virtually everyone. Now these documents may

be reviewed by any member of the public. Moreover, Plaintiff and her attorney went

to great lengths to generate publicity for her lawsuit (and Coach Guevara’s criticism

of her) by, among other things, engaging a public relations firm, making statements

to the media, and even appearing on radio talk shows.

* * *

The Plaintiff and her lawyer filed the court Complaint on February 3, 2009 and

included within it salacious allegations that had no merit but were calculated to

receive nationwide, if not worldwide media coverage. The Plaintiff’s attorney

followed up with radio appearances and enlisted the assistance of the PR firm

Shazaaam!”

Significantly, the passage quoted by Defendants does not demonstrate that Ms. Lenhoff’s

testimony was in any way relevant to the defense of Plaintiff’s defamation claim. Defendant did not

argue in its motion for summary judgment, nor does it demonstrate now, how the fact that Plaintiff

consulted a PR firm in response to media inquiries is relevant to the defense of a defamation claim.

Thus, Plaintiff’s objection will be sustained.

IV

Accordingly, it is ORDERED that Defendants’ motion for sanctions [Dkt. # 83] is
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GRANTED IN PART and DENIED IN PART. Defendant shall file a supplemental brief, on or

before October 15, 2010, identifying and explaining the specific fees that it believes that it is

entitled to, given the determination that sanctions are appropriate to the extent that CMU incurred

fees to defend Plaintiff’s claims against it subsequent to the filing of Plaintiff’s response to

Defendants’ motion to dismiss on August 10, 2009. Plaintiff shall file a responsive supplemental

brief on or before November 5, 2010.

It is further ORDERED that Plaintiff’s objection to certain costs taxed [Dkt. # 83] is

SUSTAINED.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: September 30, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on September 30, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS