By Nathan Hale, Law360 | March 31st, 2020
Law360 (March 31, 2020, 7:23 PM EDT) — A Florida federal judge on Monday threw out an ex-graduate student’s claims that the University of Miami negligently handled her allegations of sexual harassment by a former professor, but left a path for her to pursue allegations that the school violated federal several workplace regulations.
Although U.S. District Judge Kathleen M. Williams permanently dismissed plaintiff Ana Kono’s claims that the institution was negligent in its supervision and retention of the professor in the face of Kono’s concerns, the Miami-based judge said Kono can keep pursuing a retaliation claim and replead two other dismissed counts alleging the school violated Title IX of the Education Amendments Act of 1972 by failing to provide a safe work environment.
But the judge said that based on Kono’s assertions, she did not find that amendment of those two claims would be futile.
“The ruling allowed our Title IX claims to continue, which is great,” Kono’s counsel, Donald J. Hayden of Mark Migdal & Hayden LLC, told Law360. He said they will address the issues raised by the judge by naming senior faculty members to whom Kono reported her concerns.
Hayden explained Tuesday that they had been reluctant to name those individuals in Kono’s original and amended complaints because the university had precluded them from speaking with faculty and current students, but he pointed out that the information is going to come out in discovery anyway.
“There were concerns that there is pressure being put on the faculty members to fall in line with UM’s position in this case,” he said.
At the very least, Kono can proceed on her claim that the university breached its duty protect her from retaliation by Dr. Laran “due to her trying to distance herself from [him] and his sexual harassment.”
Last week, the university moved for sanctions against Kono and her counsel for filing and maintaining “frivolous” claims, raising similar arguments that were successful in obtaining dismissal of her negligence claims in Monday’s order.
But Hayden said they remain confident they will fend off the sanctions bid, noting that it carries a much higher burden of proving that they filed frivolous claims without doing due diligence.
“We believe that we’ve done all of that,” he said. “We still feel that we will be successful in that regard.”
Kono is represented by Donald J. Hayden and Darci Cohen of Mark Migdal & Hayden LLC.
The university and its trustees are represented by Eric D. Isicoff and Teresa Ragatz of Isicoff Ragatz.
The case is Kono v. University of Miami et al., case number 1:19-cv-22076, in the U.S. District Court for the Southern District of Florida.
–Editing by Abbie Sarfo.