NY Court Won't Revive NBA Official's Discrimination Claims

By Allissa Wickham

Law360, New York (April 09, 2014, 5:45 PM ET) -- The security director for the National Basketball Association cannot bring New York state law claims against a coach who allegedly requested her removal from a top security post at the 2012 Olympics after she rebuffed his sexual advances, a New York state appeals court ruled Tuesday.

Affirming a lower court's order, the appeals panel found that NBA security director Kelly Hardwick was barred from bringing employment discrimination claims against basketball coach Luigi "Geno" Auriemma, his employer U.S.A. Basketball and its executive director, James Tooley, because New York state and city human rights law does not apply to activity outside New York's borders.

"Since plaintiff failed to set forth any factual allegations supporting her claim that the acts had an impact within the boundaries of this state, there is no subject matter jurisdiction over plaintiff's human rights claims," the five-judge appellate panel ruled.

Hardwick had alleged that Auriemma, the coach of the U.S. women's basketball team at the 2012 Olympics, had requested she be removed from providing security for the team during the games because she had repelled his advances during a 2009 trip to Russia.

According to Hardwick, who was providing security for the national team during the trip to Russia, Auriemma had allegedly followed her to her hotel room and tried to kiss her. After she rejected him, Hardwick said that Auriemma began to harass her and eventually told Tooley that she should be removed from her Olympics job.

Hardwick was taken off the assignment and complained to NBA officials, who investigated but decided that her removal was unrelated to the alleged 2009 incident. She subsequently filed suit against Auriemma, U.S.A. Basketball and the NBA for employment discrimination and assault in June 2012, after which the NBA reinstated her in the Olympics post, but with allegedly fewer responsibilities.

In April 2013, a lower state court ruled that New York was the wrong venue to hear Hardwick's allegations, as New York human rights law does not apply to discriminatory acts committed outside the city and state.

Since the purported retaliation against Hardwick occurred in London and neither Auriemma, Tooley nor U.S.A. Basketball were New York residents, the laws did not apply, the lower court said.

Hardwick, who is a New York state resident, had argued that the venue was proper because her employer, the NBA, was headquartered in New York City. But the lower court ruled that the actual workplace where she was subjected to the retaliation was overseas, regardless of where her employer was based.

On Tuesday, the appeals court upheld the lower court's decision, finding that Hardwick failed to provide sufficient facts to support a claim for discrimination under New York's human rights laws.

"Even if the decision to modify her assignment was made within the city's boundaries, the discriminatory acts alleged did not occur within the city or state of New York, but in London where she claims she was relegated to inferior tasks not commensurate with her usual assignments," the appeals panel wrote.

The court further stated that Hardwick had not shown that the alleged retaliatory conduct in London had impacted her employment with the NBA in New York. The appeals panel also held that Hardwick's tort claims against Auriemma and Tooley were properly dismissed, as they "blurred" with the human rights claims.

Finally, the court held that since Hardwick did not address the assault claim in her appeal, that allegation was appropriately dismissed as well.

Claims against the NBA and Hardwick's supervisor at the association, James Cawley, remain in the suit because only Auriemma, Tooley and U.S.A. Basketball moved to dismiss the claims.

Randolph McLaughlin of Newman Ferrara LLP, who represents Hardwick in the case, said that the plaintiffs planned to appeal the ruling to the New York Court of Appeals.

"This case is so important, not just to Ms. Hardwick, but to other victims of discrimination who work in New York City and travel outside of New York for their jobs," McLaughlin told Law360 on Wednesday. "Under this decision, women and minority members can be discriminated against as long as they're not in New York City, and we think that's flat out wrong."

McLaughlin also noted that the claims against the NBA and Cawley are "fully alive," and that they would be vigorously pursued.

Steve Smith of Bryan Cave LLP, who served as outside counsel to U.S.A. Basketball, told Law360 in an email that the company is pleased with the ruling.

"This is now the second court that has held that Ms. Hardwick has no case against USA Basketball or any of the individual defendants in the matter," Smith said in the email.

Attorneys for Auriemma did not return comment requests.

Hardwick is represented by Randolph McLaughlin of Newman Ferrara LLP.

Auriemma is represented by Cheryl F. Korman of Rivkin Radler LLP.

U.S.A. Basketball and Tooley are represented by Vincent Alfieri and Steve Smith of Bryan Cave LLP.

The case is Kelley Hardwick v. Geno Auriemma et al., case number 11414, in the Supreme Court of the State of New York, Appellate Division, First Department.