If its latest legal maneuver is any indication, UNM would rather endure potential costly court proceedings than enter into settlement discussions with former wide receivers coach J.B. Gerald.
Citing qualified immunity, University Counsel motioned Aug. 25 to dismiss Gerald’s three-count complaint. Gerald claims he was punched and choked during a September 2009 physical altercation with head football coach Mike Locksley, but the University says in its dismissal motion that Gerald’s legal team has failed to “nudge their claims across the line from conceivable to plausible.”
A hearing on the motion is schedule for Nov. 28 at 9 a.m. at the U.S. District Court in New Mexico.
The complaint, filed July 30 and amended Sept. 16 to include Athletics Director Paul Krebs as a defendant, contends that Gerald was assaulted and discriminated and retaliated against, all charges the University denies. The original complaint named UNM, the Board of Regents and Locksley as defendents.
University spokeswoman Susan McKinsey said Monday that the case is in litigation, and the motion “speaks for itself.”
McKinsey couldn’t say whether the University would settle with Gerald if the motion is struck down in court.
Dennis Montoya, Gerald’s attorney, said in a phone interview Monday that parts of the complaint could be thrown at the motion hearing.
“I think if the University’s defense attorneys are doing what defense attorneys always do in civil cases — that is to try everything they can think of to get the case thrown out,” he said. “That’s kind of the standard thing to do for the defense.”
In court documents obtained by the Daily Lobo, the University said that New Mexico tort laws protect public employees from liability against assault and battery claims and that Gerald relies on “threadbare recitals and conclusory evidence” to support his discrimination claim. In a response filed Sept. 8, Montoya said the Tort Claim Act only protects public employees who are acting within the “scope of his duties,” and in allegedly assaulting Gerald, Locksley acted outside of the scope of his duties and therefore isn’t afforded governmental immunity.
Montoya said previously that UNM downplayed Gerald’s allegations because of racial factors.
“When an African-American is in a career that he or she likes in athletics, (there’s the attitude) that ‘Boys will be boys,’ and they should not rock the boat if they are treated in a completely unacceptable manner,” he said.
The dismissal notice says, “The notion that the situation at issue involved any racial component at all is highly implausible given the person complaining and the subject of the complaint are both African-American.”
Because of the motion, Montoya said, no depositions have been taken in preparation for a future trial.
“It freezes all discovery,” Montoya said.
This legal episode reflects just the latest back-and-forth between Gerald and the University.
Over the course, Gerald has been steadfast that Locksley punched and choked him during a coaches meeting, but a Human Resources investigation turned up no evidence to support the former wide receivers coach’s claims. The University maintains that Gerald was grabbed by the collar, and for his involvement, Locksley was assigned a 10-day, unpaid suspension.
In July, the University said that the Equal Employment Opportunity Commission’s investigation failed to find evidence that it violated that law and that it would “vigorously defend itself and its employees against these claims.”
In November 2009, Gerald’s Maryland-based attorney Julian Haffner sent a demand letter asking for $500,000 to settle the case out of court, but UNM declined the offer.
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Neither side said whether an out-of-court settlement is an option, and in light of the dismissal motion Montoya said it looks to be increasingly unlikely.
“We think that it’s inevitable that there will be a trial,” he said.
