Allegations swirling...

[cwdickens]

The Times-Union will publish an article on Wednesday stating that an amended complaint deleting Mark Benson as a defendant from the civil lawsuit however Dwayne Killings and the University at Albany remain defendants. A copy of the article is available online site.

[jimbo]

https://www.news10.com/sports/athletic-director-mark-benson-dropped-from-lawsuit-against-killings-ualbany/
 

or you can pay $ to get behind the Times Useless paywall. 

[cwdickens]

UALBANY MEN’S BASKETBALL

 

Athletic director no longer named in ex-player’s suit

 

By Abigail Rubel

An amended complaint now lists only UAlbany and coach Dwayne Killings as defendants in the Nov. 2021 case in which Killings is accused of throwing former player Luke Fizulich against a locker and striking him in the face. Jenn March / Special to the Times Union

UAlbany vs. UMBC

■› When: 7 p.m. Wednesday

■› Where: McDonough Sports Complex, Hudson Valley Community College, Troy

■› Stream/Radio: ESPN+; WTMM 104.5 FM

ALBANY — University at Albany athletic director Mark Benson is no longer a defendant in the suit brought by former men’s basketball player Luke Fizulich over a pregame incident from November 2021.

An amended complaint filed last week names only coach Dwayne Killings and UAlbany. Killings, who is Black, is accused of throwing Fizulich, who is white, up against a locker and hitting him in the face, as well as “tortious interference” for allegedly impeding Fizulich’s ability to continue studying at UAlbany and participate in the men’s basketball program, and for allegedly interfering with his ability to transfer to another team.

The complaint, filed by Stuart Bernstein on behalf of Nesenoff & Miltenberg, LLP, accuses UAlbany of violating Title VI of the Civil Rights Act for showing “preference to the assaulter because of his race” rather than “protecting Fizulich as a victim of the assault.”

UAlbany is also accused of breach of contract for failing to uphold its Violence Prevention Policy. That charge originally named Benson.

A UAlbany spokesman declined to comment on the pending litigation.

Previously, the New York state attorney general’s office had filed a motion to dismiss the charges against UAlbany and Benson. In light of the amended complaint, Judge David N. Hurd dismissed the motion as moot, setting a new deadline for the defendants to respond to the new suit.

The motion argued that the Title VI count should be dismissed because “plaintiff offers no facts supporting a plausible inference that the university’s non-termination of defendant Killings as a head coach was ‘motivated by discriminatory animus’ against plaintiff for being white,” beyond that “business and civil rights leaders … rallied behind defendant Killings” and “demanded more transparency of the investigation.”

The amended complaint seeks to establish that UAlbany had decided to fire Killings, citing a Times Union article quoting WNYT sports director and UAlbany employee Rodger Wyland, who said in a broadcast that sources were telling him Killings would be fired.

The amended complaint also notes that two weeks after UAlbany decided to punish Killings with a five-game suspension and $25,000 fine, the University at Albany Foundation “named a member of the civil rights group who advocated for Defendant Killings as 2022 Citizen Laureates.”

Dr. Alice Green, executive director of The Center for Law and Justice, is the only 2022 Citizen Laureate who spoke at the news conference in Killings’ support.

“Upon information and belief, Defendant SUNY Albany succumbed to the pressure and on April 1, 2022, reversed the decision to terminate because of racial tensions, and the likely loss of support from the business and civil rights leaders,” the amended complaint states.

The state’s filing also sought to dismiss the claim based on lack of notice, saying that Fizulich did not complain about racial discrimination to the school. In response, the amended suit states that “Fizulich tried to contact SUNY Albany multiple times from April 1-3, 2022, and left voicemail messages to discuss the discriminatory decision, but was informed on April 4, 2022, that SUNY Albany was unwilling to discuss the specific actions taken against the Respondent by the University, outside what is in the public domain.”

Regarding the charges against Benson, the state’s motion to dismiss argued that the 11th Amendment, which limits federal courts from taking cases brought by a private party against a state agency or state officials, therefore prevents Fizulich from suing Benson in federal court.

The charges against Benson were removed as a result of the motion to dismiss, Bernstein, Fizulich’s lawyer, said.

The state also argued that Fizulich failed “to identify a contractual promise or obligation that was breached by defendant Benson.” Specifically, “there is nothing in the policy that promises plaintiff a specific outcome to a complaint about workplace violence.”

Apart from naming UAlbany instead of Benson, the breach of contract charge is unchanged in the amended complaint.

The Violence Prevention Policy does not lay out any consequences for violation beyond “an investigation and resolution” when complaints are made. In cases of retaliatory action, however, “Those responsible for retaliatory action will be subject to discipline up to and including termination.”

The Great Danes (6-21, 1-11 America East) have lost nine games in a row after falling in overtime to Binghamton on Saturday. Their hopes of making the eight-seed in the conference tournament are still alive, but they are three games behind Maine, currently in eighth, and three and a half games behind NJIT in seventh with four games remaining. UAlbany hosts UMBC (17-10, 7-5) at 7 p.m. Wednesday at Hudson Valley Community College.

▶› Abigail.Rubel@timesunion.com

A @abigail_rubel

[Dane96]

19 hours ago, cwdickens said:

The Times-Union will publish an article on Wednesday stating that an amended complaint deleting Mark Benson as a defendant from the civil lawsuit however Dwayne Killings and the University at Albany remain defendants. A copy of the article is available online site.

The amended complaint seeks to establish that UAlbany had decided to fire Killings, citing a Times Union article quoting WNYT sports director and UAlbany employee Rodger Wyland, who said in a broadcast that sources were telling him Killings would be fired.

 

And this is the shoe I was waiting to drop.  Everyone here saying "no facts" about DK being terminated and then reversed need to think about this exact comment/fact. 

Fact: Rodger did tweet that statement.

Argument: Rodger was not doing so in his role as "reporter" for Channel 13 but was doing so in his PAID position as a UA contractor/employee.

Why this potential distinction is important: in the former role (Channel 13) he may be able to hide his "source" in a deposition.  In his latter role, it is unlikely that a cross-examination question on his source would be subject to the generally understood "reporters exception" to divulge the source as he was acting under the direction and control of UA.  If he is compelled by a court to identify his source and his source was an employee in the UA Athletic Department, then it is potentially a BIG problem for UA if in fact a decision was made to terminate DK.

I've kept quiet on this for a bit because like many, I don't know the facts just what I am being told.  However, what I type above isn't me saying that the worst for UA (Rodger is compelled to reveal the source and the source is a UA employee) will come to pass.  What I am saying is that ANY competent litigation attorney would go down this path of distinction...and UA better hope that Rodger is deemed (by the Court) as a NON-UA employee or contractor speaking on behalf of the school.  

Edited February 15, 2023 by Dane96

[Dane96]

I also want to make one thing abundantly clear: I am not of the mindset to have people fired for making mistakes or necessarily not being at the top of their profession, performance wise.

I am sure DK is a very nice man overall, and we are all guilty of mistakes.

MY issue is the performance, overall, as HC of UA has been not average...but VERY, VERY much below par, taking into consideration that he didn't necessarily have to gut/rebuild UA and doing so is actually much easier in the transfer era if you know how to evaluate the system.  Tons of examples out there...

[Clickclack]

2 hours ago, Dane96 said:

The amended complaint seeks to establish that UAlbany had decided to fire Killings, citing a Times Union article quoting WNYT sports director and UAlbany employee Rodger Wyland, who said in a broadcast that sources were telling him Killings would be fired.

 

And this is the shoe I was waiting to drop.  Everyone here saying "no facts" about DK being terminated and then reversed need to think about this exact comment/fact. 

Fact: Rodger did tweet that statement.

Argument: Rodger was not doing so in his role as "reporter" for Channel 13 but was doing so in his PAID position as a UA contractor/employee.

Why this potential distinction is important: in the former role (Channel 13) he may be able to hide his "source" in a deposition.  In his latter role, it is unlikely that a cross-examination question on his source would be subject to the generally understood "reporters exception" to divulge the source as he was acting under the direction and control of UA.  If he is compelled by a court to identify his source and his source was an employee in the UA Athletic Department, then it is potentially a BIG problem for UA if in fact a decision was made to terminate DK.

I've kept quiet on this for a bit because like many, I don't know the facts just what I am being told.  However, what I type above isn't me saying that the worst for UA (Rodger is compelled to reveal the source and the source is a UA employee) will come to pass.  What I am saying is that ANY competent litigation attorney would go down this path of distinction...and UA better hope that Rodger is deemed (by the Court) as a NON-UA employee or contractor speaking on behalf of the school.  

This angle is very interesting. On Twitter and in the news (I follow Roger) I think it will be difficult to prove he was acting in the capacity of a paid contractor/employee. He tweets all kind of stuff about local sports, reginal etc. In fact, I think it would be easier to argue that he was acting in his capacity as a reporter and divulging the presence of an anonymous sources which is common parlance to how reporters typically report unconfirmed news. 

[Dane96]

11 minutes ago, Clickclack said:

This angle is very interesting. On Twitter and in the news (I follow Roger) I think it will be difficult to prove he was acting in the capacity of a paid contractor/employee. He tweets all kind of stuff about local sports, reginal etc. In fact, I think it would be easier to argue that he was acting in his capacity as a reporter and divulging the presence of an anonymous sources which is common parlance to how reporters typically report unconfirmed news. 

Completely agree...but this will come down to case law (and I honestly don't know where it lands with respect to direction / control in this type of situation) and testifying under oath...if it comes down to that...

[bob87]

13 hours ago, jimbo said:

https://www.news10.com/sports/athletic-director-mark-benson-dropped-from-lawsuit-against-killings-ualbany/
 

or you can pay $ to get behind the Times Useless paywall. 

😂Tough to pay any money for the useless 

[jimbo]

TU story behind paywall about UA professor and Killings….by Chris Churchill…anyone see it? I can’t. 

[MRSGDG]

20 minutes ago, jimbo said:

TU story behind paywall about UA professor and Killings….by Chris Churchill…anyone see it? I can’t. 

Churchill: David Carpenter, Dwayne Killings and a confused UAlbany

The University at Albany's harshly treated a PCB researcher who did nothing wrong yet only lightly sanctioned a basketball coach accused of physically assaulting a student.

 

ALBANY — I'm struggling to make sense of how the University at Albany handled serious allegations against basketball coach Dwayne Killings and how it treated apparently baseless questions raised about David Carpenter, a prominent researcher at the school. 

Killings has been criminally charged with assault in the fourth degree for allegedly slapping one of his players, Luke Fizulich, who in a civil lawsuit filed against the university says the coach “violently and viciously grabbed" the former student, "threw him up against a locker and struck him in the face, drawing blood.

If that allegation is accurate, Killings shouldn't have a job at the school. Parents don't write hefty tuition checks so their children can be assaulted by authority figures, particularly at a university claiming to have zero tolerance toward violence. The basketball coach shouldn't be allowed to get away with behavior that would doom a professor.

Yes, an allegation is only an allegation, and the accused deserve the presumption of innocence. Yet any inclination to just let the assertions play out in courts is undermined by the university's acknowledgment that its own investigation, conducted well before the criminal charge, determined that Killings was, in fact, guilty of "inappropriate physical contact."

For that, he was fined $25,000 and suspended for five games — albeit with the "punishment" tailored to include exhibition games but not UAlbany's game against rival Siena College. To have Killings absent for so prominent an occasion would have been too embarrassing, I suppose, and that outweighed sending a stern message about that "inappropriate physical contact."

And what was the contact, exactly? Was it a slap? Did it draw blood

The university won't say. It should, especially since Killings, paid $365,000 annually, is one of the most prominent public faces of the school. Parents and taxpayers have the right to know what he did or didn't do.

And if the university has evidence that the assault allegation isn't justified, it should say so publicly in fairness to Killings. The school should do what it can to clear his name.

But let's now turn our attention to Carpenter, the longtime director of the school's Institute for Health and the Environment, who last Tuesday received the happy news that after a nine-month absence he could return to campus and resume his teaching and research duties. 

What did Carpenter do wrong to deserve his lengthy time on "alternative assignment"? Nothing, as far as anyone can tell.

 

Carpenter is, however, a man willing to voice strong opinions, including his belief that certain chemicals produced by Monsanto Co. have been harmful to public health. Carpenter has frequently testified to that conclusion, yielding multi-million dollar verdicts against the Missouri conglomerate best known for making the Roundup herbicide.

To some of us, Carpenter's willingness to speak out borders on heroic. Yet Monsanto, as you can imagine, is not so appreciative of Carpenter's efforts, which explains why its law firm demanded that UAlbany provide records on his research and the payments he's received for providing testimony.

For decades, Carpenter has put that money (minus travel expenses) back into the university to fund the work of graduate students and staff, and there's no indication he did anything wrong. Yet as my colleague Brendan Lyons first reported, UAlbany somehow allowed Monsanto's fishing expedition to become an excuse for its own "disciplinary investigation."

While the university says it's committed to unfettered academic freedom, the investigation raised legitimate questions about the ability of the school's professors to speak freely. Even worse, Monsanto began using the UAlbany inquiry to undermine a pollution case brought by the Saint Regis Mohawk Tribe.

 

Environmental advocates, justifiably outraged, demanded the clearing of Carpenter's name and his return to campus. Success came last week, when the university announced the end of its investigation, with no discipline imposed. 

Technically, then, Killings was punished (however lightly) after an investigation while Carpenter was not punished after one. Except that being ordered to stay away from campus for close to a year is actually a severe sanction — especially for an 86-year-old professor whose love for the work and his students explains why he's still at it.

"It was a major punishment," Carpenter told me from an office to which he'd happily returned. "It's just outrageous."

Carpenter initially expected that the investigation might take a day or two. Instead, it dragged on and on, a saga that Carpenter believes damaged his reputation — which, of course, is another form of punishmen

"If you're being investigated for nine months, the assumption is that you did something wrong," said Carpenter who believes the university was cowed by Monsanto's power and influence. Whether or not that's true, it's easy to assume Carpenter's time away from campus would have continued indefinitely if media attention to his plight hadn't generated so much anger.

Carpenter's case is obviously dissimilar to the Killings situation, and maybe it's silly to juxtapose them. At the end of the day, though, we can see that the University at Albany treated a professor harshly for doing nothing worthy of discipline, while its basketball coach was slapped on the wrist for "inappropriate physical contact," which is certainly something.

If that makes sense to you, please fill me in.

cchurchill@timesunion.com ■ 518-454-5442 ■ @chris_churchill

[jimbo]

1 hour ago, MRSGDG said:

Churchill: David Carpenter, Dwayne Killings and a confused UAlbany

The University at Albany's harshly treated a PCB researcher who did nothing wrong yet only lightly sanctioned a basketball coach accused of physically assaulting a student.

 

ALBANY — I'm struggling to make sense of how the University at Albany handled serious allegations against basketball coach Dwayne Killings and how it treated apparently baseless questions raised about David Carpenter, a prominent researcher at the school. 

Killings has been criminally charged with assault in the fourth degree for allegedly slapping one of his players, Luke Fizulich, who in a civil lawsuit filed against the university says the coach “violently and viciously grabbed" the former student, "threw him up against a locker and struck him in the face, drawing blood.

If that allegation is accurate, Killings shouldn't have a job at the school. Parents don't write hefty tuition checks so their children can be assaulted by authority figures, particularly at a university claiming to have zero tolerance toward violence. The basketball coach shouldn't be allowed to get away with behavior that would doom a professor.

Yes, an allegation is only an allegation, and the accused deserve the presumption of innocence. Yet any inclination to just let the assertions play out in courts is undermined by the university's acknowledgment that its own investigation, conducted well before the criminal charge, determined that Killings was, in fact, guilty of "inappropriate physical contact."

For that, he was fined $25,000 and suspended for five games — albeit with the "punishment" tailored to include exhibition games but not UAlbany's game against rival Siena College. To have Killings absent for so prominent an occasion would have been too embarrassing, I suppose, and that outweighed sending a stern message about that "inappropriate physical contact."

And what was the contact, exactly? Was it a slap? Did it draw blood

The university won't say. It should, especially since Killings, paid $365,000 annually, is one of the most prominent public faces of the school. Parents and taxpayers have the right to know what he did or didn't do.

And if the university has evidence that the assault allegation isn't justified, it should say so publicly in fairness to Killings. The school should do what it can to clear his name.

But let's now turn our attention to Carpenter, the longtime director of the school's Institute for Health and the Environment, who last Tuesday received the happy news that after a nine-month absence he could return to campus and resume his teaching and research duties. 

What did Carpenter do wrong to deserve his lengthy time on "alternative assignment"? Nothing, as far as anyone can tell.

 

Carpenter is, however, a man willing to voice strong opinions, including his belief that certain chemicals produced by Monsanto Co. have been harmful to public health. Carpenter has frequently testified to that conclusion, yielding multi-million dollar verdicts against the Missouri conglomerate best known for making the Roundup herbicide.

To some of us, Carpenter's willingness to speak out borders on heroic. Yet Monsanto, as you can imagine, is not so appreciative of Carpenter's efforts, which explains why its law firm demanded that UAlbany provide records on his research and the payments he's received for providing testimony.

For decades, Carpenter has put that money (minus travel expenses) back into the university to fund the work of graduate students and staff, and there's no indication he did anything wrong. Yet as my colleague Brendan Lyons first reported, UAlbany somehow allowed Monsanto's fishing expedition to become an excuse for its own "disciplinary investigation."

While the university says it's committed to unfettered academic freedom, the investigation raised legitimate questions about the ability of the school's professors to speak freely. Even worse, Monsanto began using the UAlbany inquiry to undermine a pollution case brought by the Saint Regis Mohawk Tribe.

 

Environmental advocates, justifiably outraged, demanded the clearing of Carpenter's name and his return to campus. Success came last week, when the university announced the end of its investigation, with no discipline imposed. 

Technically, then, Killings was punished (however lightly) after an investigation while Carpenter was not punished after one. Except that being ordered to stay away from campus for close to a year is actually a severe sanction — especially for an 86-year-old professor whose love for the work and his students explains why he's still at it.

"It was a major punishment," Carpenter told me from an office to which he'd happily returned. "It's just outrageous."

Carpenter initially expected that the investigation might take a day or two. Instead, it dragged on and on, a saga that Carpenter believes damaged his reputation — which, of course, is another form of punishmen

"If you're being investigated for nine months, the assumption is that you did something wrong," said Carpenter who believes the university was cowed by Monsanto's power and influence. Whether or not that's true, it's easy to assume Carpenter's time away from campus would have continued indefinitely if media attention to his plight hadn't generated so much anger.

Carpenter's case is obviously dissimilar to the Killings situation, and maybe it's silly to juxtapose them. At the end of the day, though, we can see that the University at Albany treated a professor harshly for doing nothing worthy of discipline, while its basketball coach was slapped on the wrist for "inappropriate physical contact," which is certainly something.

If that makes sense to you, please fill me in.

cchurchill@timesunion.com ■ 518-454-5442 ■ @chris_churchill

Thank you MRSG! It raises more than a few questions and the answers may not be pretty. So why enter into a “conflict management plan” if nothing was amiss in the first place? Academic freedom is a myth. 

Edited February 28, 2023 by jimbo

[cwdickens]

One aspect of the lawsuit was deemed credible by the federal judge handling the case:

UALBANY MEN’S BASKETBALL

 

Judge clears the way for suit

Danes’ ex-player can continue legal case as ‘protected class’

 

By Robert Gavin

Hans Pennink/Times Union

UAlbany men’s basketball coach Dwayne Killings talks with Luke Fizulich at halftime during a game in February 2022. Fizulich alleged the coach assaulted him three months earlier. Fizulich’s suit against UAlbany can proceed after a ruling Friday.

ALBANY — A federal judge will permit former men’s basketball player Luke Fizulich to continue his lawsuit against the state University at Albany for allegations that school officials planned to fire basketball coach Dwayne Killings for attacking Fizulich, then reversed course because the coach is Black.

Fizulich contends Killings “viciously grabbed him, threw him up against a locker and struck him in the face, drawing blood” Nov. 24, 2021, in a locker room at Eastern Kentucky University. His attorney initially filed the lawsuit in U.S. District Court in Albany in November. Three months later, they filed an amended complaint against UAlbany alleging breach of contract and discrimination under the Civil Rights Act of 1964. The school, in turn, asked the judge to dismiss the claims.

 

On Thursday, U.S. District Judge David N. Hurd, who is based in Utica, issued a 13-page decision that dismissed the breach of contract claim. But Hurd’s ruling allows Fizulich’s lawsuit to move forward against the university for alleged civil rights violations.

Hurd found plausible arguments in the civil complaint that UAlbany discriminated against Fizulich, who is white, following pressure from business and civil rights leaders, including Alice Green, executive director of The Center for Law and Justice, to not fire Killings. The judge said at this stage in the case, a plaintiff such as Fizulich need only show “minimal inference of discriminatory motivation” to continue the litigation. Hurd found the amended lawsuit met that burden.

And Hurd determined Fizulich, as a white male, is a member of a protected class. Hurd said UAlbany’s promotion of Killings’ interest over Fizulich’s interests could constitute an adverse action for Fizulich. By Killings retaining his position, the judge stated, Fizulich had little choice but to “resign from his beloved sport” while studying at UAlbany. The judge said Fizulich offered no explanations for his treatment as opposed to other white players, but said such a question could be answered after both parties share evidence.

Fizulich’s amended lawsuit, which dropped UAlbany’s athletic director as a defendant, detailed how UAlbany investigated Killings and, under the school’s violence policy, decided to fire the coach. But allegedly following pressure from business and civil rights leaders who protested the firing of a black male, UAlbany chose to retain Killings, who was suspended five games and fined $25,000 fine, according to the lawsuit.

In a news release, Killings said at the time: “I realize that the physical contact I had with the student-athlete during the pre-game hype circle was inappropriate, and not communicating it to the UAlbany administration was a mistake. Neither action will be repeated, and the pursuit of success within my program is of paramount importance.”

Killings pleaded not guilty in January to a related assault charge filed in Monroe County, Kentucky, that accused him of pushing Fizulich against a locker and slapping him across the face with an open hand before the 2021 game at Eastern Kentucky University. In March, a judge approved a deal reached with prosecutors calling for the charge to be conditionally dismissed in one year pending the coach’s completion of a “corrective thinking” program.

The Great Danes won the game over Eastern Illinois, 64-62, Killings’ first win as a head coach.

Hurd said the UAlbany retention of Killings had a detrimental effect on Fizulich, who told the school that he could not play for Killings following the assault. Hurd said the college disregarded Fizulich’s concerns and its own policy, showing preference to the coach. The judge said that construing such statements liberally, the amended suit stated a claim under Title VI of the Civil Right Law, which safeguards that no person in the U.S. should be excluded participation, denied benefits or subjected to discrimination in any activity receiving federal financial aid on the grounds of race, color, or national origin.

“As alleged, the university’s choice to retain Killings, despite his assault of plaintiff, one of its students, represents highly questionable decision-making,” Hurd stated. “So questionable, in fact, that it plausibly supports a minimal inference that the decision was colored by discriminatory motivation. Accordingly, Fizulich’s Title VI claim against the university survives dismissal.”

Fizulich is being represented in the case by Manhattan attorneys Stuart Bernstein and Janine L. Peress and UAlbany by assistant state Attorney General Mark Mitchell. Killings’ attorneys are William Dreyer and Lauren Owens of Albany.

[dslyank]

½ the suit dismissed; cleared in Kentucky; "allowed" to continue1/2.

I hope Fiz's lawyers got their money up-front. Looks to me case falling apart around them😀.

[BestDaneSinceHamlet]

6 hours ago, dslyank said:

½ the suit dismissed; cleared in Kentucky; "allowed" to continue1/2.

I hope Fiz's lawyers got their money up-front. Looks to me case falling apart around them😀.

Sounds like he's been watching too much Fox News.

[McFan]

9 hours ago, BestDaneSinceHamlet said:

Sounds like he's been watching too much Fox News.

Yup.  Watching Fox News is why a Coach assaulted him (plea deal).  And Fox News is clearly why this coach still has a job.  And Fox News helped the school try to hide the entire incident.   My long way of asking WTH does Fox News have to do with any of this?

Maybe someone should point blank ask the coach “what happened”?  And see if he continues to dodge the question.  “Was it in a hype circle or was that a lie”?  “Coach at what age is it okay for a coach to assault one of your kids in the manner that you assaulted a player”?  Rodgers got some time now that the AB situation has played out.  
 

Why anyone supports this coach is beyond me.  This issue combined w what can only be described as terrible results.