Today, March 7, 2023, a former University of Tampa ("UT") Assistant Men's Lacrosse Coach Kevin Derr ("Mr. Derr") filed a complaint against UT which has rippling effects throughout UT's athletic department.
Factual Allegations:
Before Mr. Whipple's Resignation:
Mr. Derr worked as an Assistant Men's Lacrosse Coach from September 15, 2018, until his termination on September 23, 2021. Per his complaint, Mr. Derr had learned of and objected to Mr. Whipple's "violent, inappropriate, and unlawful behavior" with the lacrosse players. This includes the allegation that Mr. Whipple had pushed and physically confronted a UT student-athlete, violently pushed another student-athlete, showed a student-athlete nude pictures of his wife, and stored and watched pornographic material on his work computer. Additionally, Derr alleges that eight (8) student-athletes objected to Mr. Whipple's behavior with no action taken from UT following these objections.
After Mr. Whipple's resignation [1], Mr. Derr allegedly heard him tell UT Athletic Director, Larry Marfise ("Mr. Marfise") that "if I'm gone, [Mr. Derr] better be gone as well" and Mr. Marfise agreed. Thereafter, Mr. Derr alleges that Mr. Marfise repeatedly asked him about his intentions to work
After Mr. Whipple's Resignation:
J.B. Clarke (hereinafter "Mr. Clarke") was hired as the new Head Coach of Tampa Lacrosse and both he and Mr. Marfise allegedly engaged in retaliation and harassment of Mr. Derr and any student-athletes voicing objections. This includes Mr. Clarke allegedly stating that a black student-athlete "will never play for [UT]" and "the reason Black players are so prevalent in the NFL, it's because we (white people) cross-bred them to be farmers."
Per the complaint, the toxic environment at UT had become so severe that Mr. Derr emailed UT upper management detailing the situation and the effects it has had on his diabetes and anxiety disorder disabilities. Mr. Derr says he experienced blood sugar spikes, migraines, and heightened blood pressure so severe he was instructed to go home and recover.
After his return, Mr. Marfise confronted Mr. Derr about his objection and attempted to drag him to his office which resulted in Mr. Marfise revealing he had already covered up unlawful and unethical activity at UT. Mr. Derr subsequently went to Human Resources to describe what had happened and request a leave of absence to treat his disabilities. The following day, Mr. Derr’s email access was shut down and he was fired a day later.
Mr. Derr’s Causes of Action:
Counts 1 & 2: Discrimination Under the ADA and Florida Civil Rights Act (hereinafter "FCRA") Based on Disability
ADA Title I: Employment: "Prohibits covered employers from discriminating against people with disabilities in all employment-related activities, including hiring, pay, benefits, firing, and promotions. Covered employers include private businesses, educational institutions, employment agencies, labor organizations, and state and local government entities with 15 or more employees."
FRCA §760.01(2): "The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, pregnancy, national origin, age, handicap..."
Mr. Derr alleges that the discrimination he was subjected to was based on disabilities or "perceived disabilities" and that the conduct of UT and its agents caused lost wages, future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and more.
Counts 3 & 4: Retaliation Based on Disability Under the ADA and FRCA
42 U.S.C. §12203(a): "No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter."
FRCA §760.10(1)(a): "It is an unlawful employment practice for an employer to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap..."
Mr. Derr's pleads that his objections to the athletic department and HR are protected activities under the Florida Civil Rights Act and such objections and his termination are causally related. Additionally, Mr. Derr states he was terminated as a direct result of disability discrimination.
Count 5 & 6: Interference and Retaliation Under The Family and Medical Leave Act (hereinafter "FMLA")
FMLA §105 and §825.220: "An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right."
Mr. Derr pleads that he was protected by the FMLA and UT retaliated against Mr. Derr for using or attempting to use his FMLA-protected leave. Additionally, he says UT interfered by failing to advise him of his rights under the FMLA.
Count 7: Unlawful Retaliation Under Florida's Private Whistleblower Act
Florida Private Whistleblower Act §448.102(3): "An employer may not take any retaliatory personnel action against an employee because the employee has objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation."
Mr. Derr alleges that because he objected to the violation of a law, rule, or regulation during his time at UT, he was terminated.
Demand:
Mr. Derr demands a trial by jury.
Final Thoughts:
This information is based on Mr. Derr's complaint. If the pled facts are true, it will be tough for UT to defend the actions of their former and current head lacrosse coach as well as the actions of the athletic director. This would cause a significant shockwave throughout the university's athletic program and may call for a thorough investigation and overhaul of staff. For now, we have to wait to see if this case survives any motion for summary judgment and dismissal to reach discovery.
Footnotes:
[1] Mr. Whipple's resignation is not confirmed to have been as a result of these allegations. It was last reported on January 22, 2022, that Mr. Whipple accepted a job to become the Boys Lacrosse Head Coach at Tampa Catholic High School.
