Evans v. USA Bobsled & Skeleton Fed'n

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AJA EVANS, Plaintiff, v. USA BOBSLED AND SKELETON FEDERATION, UNITED STATES OLYMPIC & PARALYMPIC COMMITTEE, JONATHAN WILHELM, and PRO CHIROPRACTIC, Defendants.

No. 8:23-CV-1429 (MAD/CFH)

United States District Court, N.D. New York

September 9, 2024

APPEARANCES:

CARLISLE LAW FIRM, P.C.

Attorney for Plaintiff

SIMPSON TUEGEL LAW FIRM

Attorneys for Plaintiff

WILSON, ELSER LAW FIRM

Attorneys for Defendant USA Bobsled and Skeleton Foundation

COVINGTON & BURLING LLP

Attorneys for Defendant United States Olympic & Paralympic Committee

DAVID A. BYTHEWOOD, ESQ.

Attorney for Defendants Jonathan Wilhelm and Pro Chiropractic

OF COUNSEL:

EDWARD A. BETZ, ESQ.

MICHELLE TUEGEL, ESQ.

MARYSSA J. SIMPSON, ESQ.

ERIC J. SAUTER, ESQ.

STEPHEN M. MARCELLINO, ESQ.

MARY SWEARS, ESQ.

SARA J. DENNIS, ESQ.

LINDSEY CATHERINE BARNHART, ESQ.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, U.S. DISTRICT JUDGE.

I. INTRODUCTION

Plaintiff Aja Evans initiated this action by filing a complaint in Essex County Supreme Court on September 20, 2023. See Dkt. No. 2. Defendant United States Olympic & Paralympic Committee ("USOPC") removed the action to this Court on November 15, 2023. See Dkt. No. 1. Plaintiff alleges that as an Olympic bobsled athlete, she was sexually harassed and assaulted by Defendant Jonathan Wilhelm during treatment sessions wherein he was working in his capacity as an osteopathic medical provider for the USA Women's Bobsled team. See generally Dkt. No. 2. Plaintiff avers that Defendants USOPC, Pro Chiropractic, and USA Bobsled and Skeleton Federation ("USABS") are liable for Wilhelm's conduct as his employers. See id. Presently before the Court are Wilhelm's motion for summary judgment, USOPC and USABS' motions to dismiss, and Plaintiff's responses in opposition thereto. See Dkt. Nos. 36, 37, 38, 45, 46, 48.

For the following reasons, Wilhelm's motion for summary judgment is denied, and the motions to dismiss are granted in part and denied in part.

II. BACKGROUND^[1]

Plaintiff is an Olympic athlete in track and field and a member of the USA Women's Bobsled team. See Dkt. No. 47-2 at ¶ 1. USOPC is a national nonprofit organization that owns and operates the U.S. Olympic & Paralympic Training Center in Lake Placid, New York. See id. at ¶ 3. USABS is a nonprofit organization headquartered in Lake Placid, New York. See id. at ¶ 2. Plaintiff alleges that "USOPC and USABS are profoundly connected." Id. at ¶ 34. USABS is the National Governing Body ("NGB") for Bobsled in the United States. See id. at ¶ 2. USABS is overseen by USOPC. See id. Plaintiff contends that "USOPC [] benefits from money collected (as sponsorships, grants, or other), publicity garnered, and medals achieved by USABS athletes at competitions." Id. at ¶ 34. On the other hand, USABS relies on USOPC "for its very existence" because USOPC controls NGBs like USABS. Id. at ¶ 35. The USOPC Board "has the power to review all matters relating to the continued recognition of an NGB like USABS and may take such action as it considers appropriate, including, but not limited to, placing conditions upon USABS's continued recognition, placing it on probation, or suspending or terminating its recognition." Id. Plaintiff demonstrates this relationship by explaining a "recent investigation of the USABS for 'management concerns' (including practices relating to the treatment of athletes, their concerns, and mental health resources, among other things)." Id. "USOPC made recommendations for how USABS hires and evaluates its CEO." Id. "USOPC also said that USABS has been working with the USOPC Sport Performance team to develop an athlete pathway that clarifies progression through the sports of bobsled and skeleton." Id. Plaintiff notes that "[t]he investigation further found that USABS was not complying with some of its obligations and that, in order to maintain its certification as an NGB, it had to adopt, implement, and execute certain USOPC requirements in a timely manner, before its renewal process in 2024." Id. "Indeed, [] USOPC even recommended that one of the three individuals step down from the Selection Committees and suggest[ed] the CEO consider doing so." Id. Finally, Plaintiff alleges that USABS and USOPC share some employees and agents, such as Defendant Wilhelm. See Id. at ¶ 37.

Wilhelm owns and operates Defendant Pro Chiropractic, a Montana corporation. See id. at ¶¶ 4-5. "Wilhelm was appointed as the Traveling and Event Team Sports Chiropractor for" USABS. Id. at ¶ 31. Prior to his appointment Wilhelm worked at the USOPC training facility in Lake Placid. See id. Wilhelm first worked with the USA Bobsled Team in 2012. See id. at ¶ 33.

His duties were as follows:

coordinating the care for USA Bobsled at every national and international competition, providing individual care and providing for the physical needs and well-being of participants and members of USA Bobsled (and in accordance with Defendant USOPC policies, procedures, and mandates), and care including but not limited to osteopathic adjustments and kinesiology treatment to participants and members of USA Bobsled, which included Plaintiff.

Id. Wilhelm first began treating Plaintiff in 2012. See id. at ¶ 40. Plaintiff alleges that between 2012 and 2018 and in 2022, during "treatment" sessions with Wilhelm, he would "expose and touch her inner genital area and inner groin," "would grope, fondle, and/or touch Plaintiff's entire inner groin area, pubis, along her pelvic bone, and buttocks," "would [] pull Plaintiff's shorts up and away from her inner groin area, starting from the leg of her shorts, exposing her genitals, and would then touch her uncovered groin and would do so without gloves or proper medical warnings," "photographed Plaintiff and her teammates without consent," and "record[ed] them as they undressed." Id. at ¶¶ 47-50, 53-54, 57.

As a result of this conduct, "Plaintiff and her teammates went so far as to promote other chiropractic care providers directly to USA Bobsled, and even hired a separate team chiropractor, at their own expense, to avoid treatments and unwanted touching by Defendant Wilhelm." Id. at ¶ 58. Plaintiff alleges that after Wilhelm photographed Plaintiff and her teammates without their consent, they documented the instance in a "complaint letter" to USABS. Id. at ¶ 53.

Additionally, in 2018, Wilhelm recorded Plaintiff and her teammates, which "team members noticed" and "happened in plain view of USABS and USOPC staff. All of the U.S. Women's Bobsled athletes knew about it and many gave Wilhelm negative survey[] reviews via an online USOPC portal." Id. at ¶ 54. In 2021, a USABS women's athlete, Lauren Gibbs, emailed Andrew Ernst, USABS High Performance Director, and Dr. Eugene Byrne, an orthopedist for Team USA at USOPC's Lake Placid Center, complaining about Wilhelm's selection as their provider. See id. at ¶ 60. Ms. Gibbs indicated that "a few of the women have expressed in the past no [sic] wanting to work with him and in the most in others of the quad [sic] he will be the only option for the most crucial part of the selection process. I really wish our safety would have been taken more seriously." Id. Mr. "Ernst responded, stating 'We use cumulative results from our provider surveys to select our volunteers along with provider availability. I hope this adds some context as to why Jon was selected for this rotation[.]'" Id. Ms. Gibbs replied, "'It really does not.' She emphasized: 'Multiple women have told you that they feel uncomfortable around Jon and cumulative data should not outweigh that....I'm disappointed that I am being forced to work with someone I have told you multiple times makes me uncomfortable.'" Id.

Plaintiff alleges that "USOPC is fully aware of the growing societal awareness of the pervasiveness of sexual abuse in athletic organizations." Id. at ¶ 66. As a result of publicized sexual harassment and abuse scandals, USOPC created the Director of Ethics and SafeSport, in April 2011. See id. at ¶ 68. USOPC also "adopted a Safe Sport standard for the protection [of] amateur athlete[s] on an enterprise level regardless of USOPC or NGB affiliation." Id. "In June 2014, the USOPC board approved the plan to create an independent SafeSport entity. The Center for SafeSport ("USCSS") eventually opened in March 2017, almost seven years after the USOPC had formed its initial SafeSport working group." Id. at ¶ 69. Plaintiff alleges that prior to the USCSS being launched in 2017, "USOPC failed to update its own processes for handling complaints" and "continued its practice of declining to intervene at the level of individual complaints." Id. at ¶ 72. Plaintiff contends that "[t]he UCSS, since its inception, has averaged 85 complaints of sexual abuse per month." Id. at ¶ 70. Plaintiff states, "[a]thletes who did report to their NGB, like Plaintiff, were often dismissed out of hand and proper procedures were not followed." Id. at ¶ 72. Plaintiff contends that she "and her teammates' complaints were wholly ignored and Defendant Wilhelm was still selected by the USOPC and USA Bobsled to treat the U.S. Women's Bobsled Team (sometimes as the only treatment provider), even after clear complaints of concerning behavior and discomfort by athletes were reported in writing to officials and leadership." Id. at ¶ 73. Plaintiff alleges that "despite [her] efforts to report the abuse and treatment by Wilhelm, Plaintiff has been dismissed, disregarded, and otherwise not taken seriously by Defendants, leading to her re-traumatization, self-doubt, and mental and emotional trauma." Id. at ¶ 77.

III. DISCUSSION

A. Legal Standards

1. Motion to Dismiss

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules...