You are on page 1of 30

Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 1 of 28

DALE H. BOAM, Bar No. 10384


Attorney for Plaintiffs
4776 South Wander Lane
Salt Lake City Utah 84117
Telephone: (801) 815-2547
Fax No.: (801) 278-3368
e-mail: dboam@comcast.net
Attorneys for the Plaintiffs

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
KENNEDY FLAVIN, an individual
COMPLAINT
Petitioner,

vs. Civil No.

WESTMINISTER COLLEGE, a
Judge
Utah Corporation and Institution of
Higher Education
Jury Trial Requested
Respondent.

COME NOW, Plaintiffs KENNEDY FLAVIN (hereinafter “Ms. Flavin”)

a natural person, by and through her attorney, THE LAW OFFICE OF

DALE H BOAM, P.C., and for her claims for relief against Defendant

WESTMINISTER COLLEGE (hereinafter “Westminster”), a Utah

Corporation; and allege as follows:

PRELIMINARY STATEMENT
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 2 of 28

1. Plaintiff, Kennedy Flavin is woman who is Deaf and who uses

American Sign Language as her principal means of

communication.

2. Defendant Westminster College is Utah Institution of higher

education that receives federal funding including but not limited to

federally subsidized student loans.

3. This is an action involving claims under Title IX of the Education

Amendments of 1972, 20 U.S.C. §§ 1681–1688 (hereinafter, “Title

IX”), arising out of sex discrimination, hostile education

environment, unreasonable response and retaliation, as well as

violations of section 504 of the Rehabilitation Act of 1972 29

U.S.C. § 794a, for failure to make campus security accessible to

student Plaintiff Kennedy Flavin who is Deaf, and forcing her to

withdraw from the Defendant Westminster College.

4. Plaintiff Ms. Flavin reported Title IX violations of sex discrimination,

unreasonable response and harassment, including intimidation

steaming from Defendant Westminster College imbedding

violations of her rights under Title IX by failing to establish

protections between her and the perpetrator of a sexual assault

upon her when Defendant Westminster College knew such

2
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 3 of 28

protections were needed and while a protective order was in

place.

5. Such imbedded violations include but are not limited to failing to

inform personnel and staff of the need to keep the perpetrator at

least 100 feet from the Plaintiff (under the reasoning that the

perpetrator’s privacy should be protected), placing the perpetrator

of a sexual assault against the Plaintiff, Ms. Flavin, in a housing

unit that is physically closer that is allowed by the protective order

(the Defendant Westminster College unreasonably choose to

measure the distance by the length of a sidewalk with a 90 degree

turn instead of the actual distance between the housing units.

This allows the perpetrator to literally look in the Plaintiffs window),

and other failures or omissions to take steps to protect the Plaintiff

as required by Title IX.

6. Finally Defendant Westminster failed or refused to accommodate

Plaintiff Ms. Flavin’s disability resulting in a legitimate safety

concern.

7. The Title IX office of Defendant Westminster College and other

administration under the Defendant Westminster College instead

of properly handling the matter, engaged in deliberate indifference

3
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 4 of 28

to Plaintiff’s rights, including subjecting Plaintiff to an unreasonable

and hostile environment by reason of her gender amounting to

discrimination based on sex as well as discrimination based on her

disability.

JURISDICTION AND VENUE

8. Plaintiff Kennedy Flavin (Ms. Flavin) is a citizen of the State of

Utah, and at all relevant times resided therein.

9. Defendant, WESTMINSTER COLLEGE ("Westminster") is an

institution of higher education located in Salt Lake City, Utah. On

information and belief, Defendant Westminster is subject to the

implementing regulations, 28 C.F.R. § 35.104 because Defendant

Westminster receives federal funding and financial assistance

within the meaning of 20 U.S.C. § 1681(a) and is otherwise

subject to Title IX and Section 504

10. This Court has subject matter jurisdiction of this matter pursuant to

28 U.S.C. §§ 1331 and 1343.

11. Venue of this action lies in this Court pursuant to 28 U.S.C. §1391,

as the Defendant is a citizen of Utah and the events and

omissions giving rise to this action occurred within the jurisdiction

of this Court.

4
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 5 of 28

FACTS

12. Ms. Flavin is an elite level lacrosse player. She was All Region

her junior year, 2nd team all-State her senior year and a member

of the U17 Utah lacrosse team (only 23 players from Utah were

selected). Moreover, she was only Deaf player in the state of Utah.

13. Ms. Flavin excels academically maintaining high marks and honors

through her high-school years.

14. Ms. Flavin was highly sought after by colleges and universities for

not only her athletics but also academics.

15. In the Summer of 2014, Plaintiff Ms. Flavin began a relationship

with the Perpetrator of the eventual sexual assault.

16. Ms. Flavin is Deaf and unable to speak verbally. Ms. Flavin

communicates using American Sign Language.

17. Despite promising to do so, the Perpetrator never learned ASL

and the two only communicated through text message.

18. On August 4, 2014, the Perpetrator having turned 16 years old

came to Ms. Flavin’s home. He ordered her to do “something

special” for him for his birthday. Ms. Flavin assumed he meant

kissing. Soon the Perpetrator took Ms. Flavin to her bedroom and

forced himself upon her. Ms. Flavin pushed him away and through

5
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 6 of 28

both hand gestures and body language and noises of protest

made it very clear that she I did not want to have sex with him. The

Perpetrator continued to force himself upon her and had

intercourse with her by force completing all legal elements of rape.

19. After this event the Plaintiff broke off all relationship with the

Perpetrator.

20. The Plaintiff felt guilt and shame over the sexual assault

perpetrated against her and kept the events hidden from her family

and friends.

21. Moreover, the Plaintiff knew that reporting the incident and the

subsequent investigation would be difficult physically, because of

the communication barrier resulting from her Deafness, which

added to her increasing emotional distress.

22. Later in the same year the Plaintiff was attending an event at a

local high school, as she was walking down the hall someone

grabbed her arm and as she turned to look she saw it was the

Perpetrator. The Plaintiff had an emotional breakdown and panic

attack. Seeing that the Plaintiff was in distress a friend forced the

Perpetrator to let go of the Plaintiff’s arm and the Plaintiff ran and

hid.

6
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 7 of 28

23. At the insistence of her friend the Plaintiff Ms. Flavin finally told

someone the events of August 4, 2014. With the support of her

friend Ms. Flavin was able to tell her father.

24. Ms. Flavin’s father, Michael Flavin, supported her in reporting the

events to the police and Ms. Flavin began to receive therapy and

counselling.

25. As a result of a plea barging the Perpetrator eventually “pled

guilty” (or the equivalent thereof in juvenile court) to sexual battery

and unlawful sexual misconduct with a minor. As a condition of

probation, the court entered a no-contact against the Perpetrator.

26. Upon graduating from high school, the Plaintiff, a gifted student

and athlete, was awarded both academic and athletic scholarships

by Westminster College. In April 2017, the Plaintiff committed to

play Lacrosse for Westminster College with scholarships totaling

over $19,000.00 per year.

27. Westminster College’s smaller class sizes are conducive to her

needs as a Deaf student. Westminster had a mature and well-

trained group of interpreters in place. Furthermore, Westminster

has the only Division 2 Women’s Lacrosse team in the state of

Utah.

7
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 8 of 28

28. In addition to the benefits stated, Ms. Flavin’s head coach from

three of her teams over 3 years (Brighton High School, Under 17

State of Utah select team and Mamanci Black-the premier girls

travel team for the State of Utah), Maggie Herrneckar is now an

assistant coach at Westminster. Ms. Herrneckar has experience

implementing accommodations for on field communication with

Ms. Flavin and provided extra time and mentorship so Ms. Flavin

could live her dream of being a Women’s Lacrosse player and take

full advantage of the scholarship offered her by Defendant

Westminster.

29. However, in August 2017, the Plaintiff learned that shortly after

she had announced her commitment to play Lacrosse for

Westminster, the Perpetrator abandoned his plans to enlist in the

Marines would now also be attending Westminster College.

30. Upon learning that the Perpetrator would follow her to Westminster

all of the shame, guilt, and fear the Plaintiff felt in 2014 came

rushing back.

31. The Plaintiff then learned that the no-contact order issued as a

condition of the Perpetrator’s probation had expired.

8
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 9 of 28

32. The Plaintiff immediately filed a request for Civil Stalking

Injunction, requesting that the Perpetrator be restrained from going

near her home, school, car, etc. On August 10, 2017, the court

granted a Temporary Stalking Injunction.

33. A requirement of the Stalking Injunction states that if the

Perpetrator attends Westminster College, he is mandated to keep

at least 100 feet away from the Plaintiff at all times and must to

withdraw himself from any class or activity both are attending.

34. All history and documentation of the court case and orders were

provided and properly filed with Westminster College and have at

all relevant times been in the possession of the Defendant’s Title

IX office and relevant administration.

35. The Plaintiff began to feel a measure of relative safety after being

assured these protections would be in place.

36. However, the Perpetrator joined the Men’s Lacrosse team at

Westminster virtually assuring that he would be in the same

buildings, meetings, and practice spaces as the Plaintiff.

37. Almost from the moment the Perpetrator signed on to play

Lacrosse Defendant Westminster was resistant to aid in enforcing

the temporary order stating privacy concerns for the Perpetrator.

9
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 10 of 28

38. The Perpetrator was placed in on-campus housing next door to

the dorm Ms. Flavin was assigned. Ms. Flavin’s dorm assignment

was based on her dorm being the only on-campus housing having

installed features to accommodate her Deafness (visual alarms

and other visual features). She must be in that dorm to be

accommodated.

39. There is no reason to house the Perpetrator in the dorm he was

assigned other than convenience to Westminster. The

Perpetrator’s is assigned to housing where he can, quite literally,

look in his victim’s window which is hostile and menacing on its

face.

40. When Plaintiff and her father brought these issues to the

administration at Westminster College, including the office

responsible to implement Title IX, again Westminster took the

position that they could not disrupt the Perpetrator’s privacy. They

seemed focused on the value of the Perpetrator as member of the

Men’s Lacrosse team and stymied by their obligations because

incident occurred when he was a minor.

41. Furthermore, it was and remains Westminster’s position that

although the dorm buildings are little more that arms-length from

10
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 11 of 28

each other, and have windows that look into each other, the

distance of the sidewalk from the front door of the Plaintiff’s

housing unit, which proceeds outward and then makes a ninety

degree turn before continuing to the front of the Perpetrators

housing unit is over 100 feet. The sidewalk, not the physical dorm

rooms.

42. There have been incidents where Westminster’s failure to protect

Ms. Flavin has placed her in proximity of less than one hundred

feet from the Perpetrator. Each incident has been played off as

“innocent,” but are actually violations to the temporary stalking

order imbedded by Defendant Westminster due to its failure or

refusal to adhere to a policy of protecting the Plaintiff or even

focus on the safety of the Plaintiff over the privacy of the

Perpetrator.

43. Each incident is compounded by Westminster protecting the

Perpetrator’s privacy at the expense of a woman who has

communication barriers leaving her vulnerable at all times because

she will have difficulty explaining her danger to the uninformed

staff and teachers.

11
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 12 of 28

44. For example, Westminster scheduled both the Plaintiff and the

Perpetrator to attend the same Freshman orientation meeting.

When the meeting was over the Plaintiff realized the Perpetrator

had been almost directly behind her.

45. Both the Plaintiff and the Perpetrator were scheduled by

Westminster to have athletic physicals at the same time when Ms.

Flavin complained her physical was rescheduled to the time set for

the women’s basketball team, but the Perpetrator was allowed to

stay with his teammates.

46. The Plaintiff has felt trapped by the Perpetrators presence at other

campus activities, including those required by reason of her

position as a college athlete and some scheduled by the

Defendant Westminster, wherein she was unable to go into the

activity or unable to leave without confronting the Perpetrator, and

unable to explain her dilemma to staff by reason of her Deafness.

47. Remembering that she is Deaf and communicates though

American Sign Language in such situations she has no option to

seek the assistance of a campus employee to intercede and ask

the Perpetrator to leave when such incidents occur.

12
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 13 of 28

48. When the Plaintiff and her father brought these and similar

incidents or imbedded violations to the attention of Westminster

College they were told to contact campus security to intervene.

49. Unfortunately, campus security at Westminster has no mechanism

in place for a student who is Deaf, and cannot call using the

telephone, to contact them. Despite having made a request for an

accommodation Defendant Westminster College has failed or

refused the accommodate Deaf students by establishing a means

to contact campus security through text or other means of

accessible communication.

50. When the Plaintiff and her father explained this to Westminster

their solution was for the Plaintiff to contact the Salt Lake City

police to intervene, an option which denies her equal access to

programs and services afforded her non-disabled peers and

requiring a public police intervention and the accompanying public

shaming and feeling of scandal attached thereto each time one of

these “incidents” occurs.

51. Furthermore, the option of only calling the police leaves her

unprotected on-campus until the police arrive (when campus

security is moments away) and places her in a more vulnerable

13
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 14 of 28

condition and subject to higher risks to her safety than her non-

disabled peers by reason of her disability. Not just in regard to this

situation, the failure or refusal to accommodate the Plaintiff’s

communication need places her at higher risk than her non-

disabled peers at all times.

52. Due to the presence of her Perpetrator, and Westminster College’s

indifference to her safety as well as the Defendant College’s

tendency to actively downplay her complaints, the Plaintiff rarely

slept in her dorm, attended few school activities, and had a harder

and harder time being on campus let alone attend class. She was

ever more anxious each time an “incident” occurred and

Defendant Westminster College showed little interest addressing

even the imbedded violation it created. Defendant College and its

agents began to exhibit annoyance at her continuing to bring it up.

53. On more than one occasion Defendant Westminster College

stated how valuable the Perpetrator was to it Lacrosse program,

which could only be interpreted to mean that the Plaintiff’s her

value as a female athlete was less than that of her Perpetrator.

54. On September 6, 2017 the court determined to leave the

temporary stalking injunction in place with the understanding that

14
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 15 of 28

the Plaintiff’s lawyer and the Perpetrator’s lawyer would craft an

agreement in lieu of a civil order that the court would sign.

55. As of the date of this Complaint the Perpetrator has not agreed to

the language of the substitute agreement wanting basically a gag

order on Ms. Flavin and any actual restrictions (including distance

restrictions) removed. The language now proposed by the

Perpetrator is more protective of him than of Ms. Flavin.

56. Despite the Plaintiff virtually begging for simple safety procedures

to be implemented by Westminster College they have continued to

downplay her concerns and ignore her rights under both Title IX

and Section 504.

57. The Plaintiff has come to understand that Westminster College’s

lack of interest in enforcing and subversion of the clear wording of

the temporary stalking injunction as well as its failure or refusal to

make contacting campus security accessible to students who are

Deaf makes it generally unsafe for her to continue attending

Westminster College, and so she had to withdraw.

58. When she withdrew she lost the benefit of her scholarships and

has had to transfer to another college with all the costs involved.

Mr. Flavin recently sold his house and moved to a small condo in

15
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 16 of 28

order to pay the costs of her university studies without the

scholarships.

59. Moreover, Ms. Flavin’s goals to play for Westminster have been

derailed and she has had to start over with a new team and has to

build a new system of accommodations for communication.

60. Ms. Flavin would return to school and the sport she loves but for

Defendant Westminster College’s failure or refusal to comply with

Title IX and Section 504.

61. The acts and omissions of Westminster College amount to

constructive expulsion of Ms. Flavin because of her status as a

victim of sexual assault, her being a female athlete asking for

protection from a Perpetrator who plays men’s sports in violation of

Title IX and by reason of her Deafness for its failure or refusal to

make access to campus security accessible to persons who are

Deaf

COUNT I

Title IX-20 U.S.C. § 1681 et seq.
Clearly Unreasonable Response, Sex Discrimination

62. Plaintiff incorporates by reference herein and realleges the

allegations in Paragraphs 1 through 61 above as though set forth

fully herein.

16
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 17 of 28

63. At all relevant times Defendant Westminster College had actual

knowledge of: the facts of the Perpetrator’s sexual assault on the

Plaintiff; that a temporary civil stalking order against the

Perpetrator was in place at all relevant times and the requirements

thereof; the fact that the Perpetrator was actually on-campus and

likely to be within the proximity to the Plaintiff prohibited by the

temporary stalking order almost any time they were both present in

their respective on-campus housing or present within the athletics

department; that the actual physical distance between the

Perpetrators housing and the Plaintiffs fell within the zone

prohibited by the temporary stalking order; that students are not

prohibited from leaving the sidewalks nor are there any penalties

or barriers from them doing so thus sidewalks are merely

suggestions of walking paths not definitive measurements of

distance for the purposes of a temporary stalking order; that

communication with campus security was inaccessible to the

Plaintiff if the Perpetrator violated the temporary stalking order;

that statements by staff and employees of Westminster placing the

value of the Perpetrator as an athlete or his privacy as a male

student above the value of her safety were gender discrimination

17
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 18 of 28

in violation of Title IX; that the Plaintiff reported to them actual

instances of the Perpetrator coming within the zone forbidden by

the temporary stalking order; and, that the Plaintiff left school by

reason of Westminster College’s acts or omissions in violation of

Title IX.

64. Defendant Westminster College’s responses to the Plaintiff’s

complaints of discriminatory treatment and other listed violations

were clearly unreasonable in light of the known circumstances.

65. The risks to Plaintiff’s safety, the loss of her ability to continue

attending Defendant Westminster College, and the actions and

inactions of Defendant Westminster College were so severe,

pervasive, and objectively offensive that it barred Plaintiff’s access

to educational opportunities and benefits as well as economic

losses in the amount of the scholarship and other definable

present and future educational, financial and actual benefits.

66. Plaintiff was subjected to gender discrimination because of

Defendant Westminster College’s deliberate indifference to known

acts of gender discrimination against Plaintiff, including the

decision to not address Plaintiff’s complaints regarding the

proximity of the Perpetrators housing; lack of access to campus

18
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 19 of 28

security and other acts and omissions amounting to Defendant

Westminster College’s deliberate decision not to provide Plaintiff

with safety measures and accommodations so that she could

safely pursue her studies; Defendant College’s deliberate decision

not to take seriously Plaintiff’s complaints about default violations

of the temporary stalking order in which Defendant Westminster

College became an active participant by scheduling both the

Perpetrator and the Plaintiff to attend at the same time; Defendant

College’s deliberate decisions not to comply with its own policies

regarding Title IX, as well as the legal requirements of Title IX; and

Defendant College’s deliberate decisions to do nothing to

eliminate the risk of harm posed by the Perpetrator nor prevent

reoccurring violations or address its effects.

67. If Defendant College had not been deliberately indifferent to

Plaintiff’s allegations of that she was unsafe by reason of the

violations of temporary stalking injunction imbedded by its own

failure or refusal to address the proximity of the Perpetrators

housing and other safety protocols and comments amounting

gender discrimination and retaliation, and instead complied with its

own policies and federal law by promptly and properly

19
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 20 of 28

investigating Plaintiff’s claims while protecting Plaintiff’s safety,

Plaintiff would have been able to remain at the school, progressing

toward her degree and having the benefit of her scholarship.

Instead, Plaintiff was forced to leave the school by Defendant

College’s actions and omissions.

68. As a result of Defendant College’s deliberate indifference and

wrongful acts, Plaintiff has suffered, and continues to suffer, loss

of educational opportunities and benefits, injuries, damages and

losses, including, but not limited to, emotional distress, fear,

anxiety and trauma; lost future earnings and earning capacity; the

actual loss of the monetary benefit of the scholarship she had

been awarded and damage to and delays in her pursuit of

undergraduate education.

COUNT TWO
Title IX-20 U.S.C. § 1681 et seq.

Hostile Education Environment, Sex Discrimination

69. Plaintiff incorporates by reference herein and realleges the

allegations in Paragraphs 1 through 68 above as though set forth

fully herein.

70. Title IX provides, in relevant part, that “[n]o person in the United

States shall, on the basis of sex, be excluded from participation in,

20
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 21 of 28

be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial

assistance.”

71. Plaintiff’s gender is protected by Title IX.

72. Plaintiff was subjected to sexual harassment, sex discrimination

and retaliation that were so severe, pervasive and objectively

offensive that she was denied access to educational opportunities

and benefits at Defendant College.

73. Defendant College was deliberately indifferent to Plaintiff’s known

sexually hostile education environment in which she suffered as a

result of its failure to institute any accommodations for Plaintiff’s

safety, including, but not limited to: (i) excluding her assailant from

housing within 100 feet of the Plaintiff’s; (ii) not providing an

accessible means to contact campus security; (iii) not maintaining

strict protocols requiring that the not come within a certain distance

of Plaintiff when scheduling events; (iv) failing or refusing to

counsel staff that the value of a male athlete does not trump the

safety of female or even inform them of the risk the perpetrator

presented for the Plaintiff; (v) failing or refusing to properly

investigate or act upon Plaintiff’s complaints of Title IX violations;

21
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 22 of 28

and (vi) failing or refusing to provide viable alternatives for Plaintiff

to continue to attend classes at the Defendant school and maintain

her scholarship there-at.

74. As a result of Defendant College’s acts of deliberate indifference,

Plaintiff was forced to leave the school and lost her educational

opportunities at the Defendant College as well as suffering

economic losses in the amount of the scholarship and other

definable present and future educational, financial and actual

benefits.

75. As a result of Defendant College’s acts of deliberate indifference,

Plaintiff was rendered incapable of pursuing her educational

opportunities.

76. As a result of Defendant College’s failure to maintain an

environment for students free from unlawful sex discrimination in

all aspects of the educational experience, Plaintiff has suffered,

and continues to suffer, loss of educational opportunities and

benefits, injuries, damages and losses, including, but not limited

to, emotional distress, fear, anxiety and trauma; lost future

earnings and earning capacity; actual lost of the monetary benefit

22
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 23 of 28

of the scholarship she had been awarded and damage to and

delays in her pursuit of her undergraduate education.

COUNT THREE

Title IX-20 U.S.C. § 1681 et seq.
Retaliation

77. Plaintiff incorporates by reference herein and realleges the

allegations in Paragraphs 1 through 62 above as though set forth

fully herein.

78. Plaintiff engaged in actions protected by Title IX when she

complained about and/or objected to Defendant College regarding

the imbedded violations of the temporary stalking order.

79. Plaintiff further engaged in actions protected by Title IX when she

complained and/or objected to Defendant College’s failure or

refusal to address the safety risk posed by her lack of an

accessible means of contacting campus security, specifically in

light of the Perpetrators proximity to the Plaintiff’s housing and

within the athletics department.

80. Because of Plaintiff's protected actions, Defendant College

retaliated against Plaintiff by, among other things, treating her in a

hostile manner, unfairly applying Defendant’s policies to her as

compared to her Perpetrator including placing the value of his

23
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 24 of 28

privacy over her safety, thereby constructively expelling her from

the Defendant College.

81. As a result of Defendant College’s unlawful retaliation against

Plaintiff in violation of Title IX, Plaintiff has suffered, and continues

to suffer, loss of educational opportunities and benefits, injuries,

damages and losses, including, but not limited to, emotional

distress, fear, anxiety and trauma; lost future earnings and earning

capacity; lost of actual monetary benefit in the form of the

scholarship and damage to and delays in her pursuit of

undergraduate education.

82. The Plaintiff has been forced to engage the services of an attorney

Therefore, she is entitled to an award of attorney’s fees and costs

and any other damages that the court sees fit and equitable.

COUNT FOUR

Section 504 - 29 U.S.C. § 794a et seq.
Discrimination Based on Disability

83. Plaintiff incorporates by reference herein and realleges the

allegations in Paragraphs 1 through 82 above as though set forth

fully herein.

84. Defendants have violated and continue to violate the mandates of

Section 504 and its regulations by: (1) denying the Plaintiff the

24
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 25 of 28

benefits of the Defendant’s programs or services and activities

because she is Deaf, (2) denying the Plaintiff equal access to

educational opportunities solely by reason of their disabilities, (3)

denying Plaintiff reasonable and effective communication

(specifically but not limited to campus security) through the use of

appropriate auxiliary aids and services, (4) failing or refusing to

provide accommodations in a timely manner, engaging in a

dialogue, or securing comparable accommodations; (5) utilizing

criteria and methods of administration that discriminate against the

Plaintiff, or subject the Plaintiff to a separate or different benefit by

reason of her Deafness and defeat or substantially impair the

accomplishment of the objectives of higher education, (6) Utilizing

policies, practices and procedures are facially discriminatory and

tend to screen the Plaintiff out by reason of her Deafness, and (7)

failing or refusing to provide services in the most integrated

setting.

85. Defendants have not educated their agents or employees

regarding Section 504, nor have they corrected discriminatory

policies and practices in order to comply with Section 504 and its

regulations.

25
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 26 of 28

86. The acts or omissions of the Defendant (or its agents) caused and

continues to cause the Plaintiff to suffer irreparable harm in the

nature of humiliation, limitation of freedom, risks to her safety and

other forms of intangible injuries to their dignity interests. Each of

the discriminatory conditions identified above presents a palpable

and substantial deprivation of a degree of the Plaintiffs' much-

cherished independence. The injuries sustained by Plaintiff

relating to the Defendant’s discrimination are ongoing until the

discriminatory conditions are corrected.

87. Plaintiff has incurred actual costs and real financial losses

because she is Deaf by reason of the Defendant’s acts or

omissions including the loss of the scholarship, lost employment

opportunities, the cost incident to transferring to another college or

College, the cost of treatment and therapy for the severe

emotional distress incident to these events (much more than

typical persons could be expected to endure) and other actual and

definable costs for which she should be compensated in the form

of compensatory damages.

26
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 27 of 28

88. The Plaintiff has been forced to engage the services of an attorney

Therefore, she is entitled to an award of attorney’s fees and costs

and any other damages that the court sees fit and equitable

PRAYER FOR RELIEF


WHEREFORE, Plaintiff Kennedy Flavin respectfully requests that this


Honorable Court grant the following relief:

(a) Enter judgment on behalf of Plaintiff and against Defendant


Westminster College on all Counts herein; 


(b) Award Plaintiff injunctive relief to be determined at trial requiring


Defendant Westminster College to comply with Title IX;

(c) Injunctive relief including an order requiring Westminster College


to enact guidelines under Title IX wherein Protective Orders must be
followed in a manner that effectuates the protective purpose
regardless of the method used to measure implementation;

(d) Award Plaintiff Injunctive relief to be determined at trial requiring


Defendant Westminster College to comply with Section 504

(e) Injunctive relief including the implementation of a communication


system whereby students who are Deaf or possess communicative
disabilities can contact campus security in equity with their non-
disabled peers, including, but not limited to text messaging or
emergency stations on campus;

(f) Award Plaintiff compensatory damages against Defendant


Westminster College in an amount to be determined in a jury trial but
in an amount no less than the scholarship Plaintiff was awarded plus
any costs associated with seeking her education at a similar
institution;

27
Case 2:18-cv-00186-DB Document 2 Filed 02/28/18 Page 28 of 28

(g) Award the Plaintiff any and all other monetary damages that may
be available under law or equity including punitive damages in an
amount to be determined if allowed by law;

(h) For Plaintiffs’ attorney’s fees, including litigation expenses, and


costs of suit; and

(i) For such other and further relief (both under law and under the
Court’s broad equitable jurisdiction) deemed appropriate by the
Court.

JURY TRIAL DEMANDED 


A jury trial is demanded by Plaintiff as to all matters triable to a jury. 


DATED this __27____ day of ______February_______________________, 2018.

___/s/ Dale H Boam_______________________


DALE H. BOAM, Bar No. 10384
Attorney for Plaintiffs
4776 South Wander Lane
Salt Lake City, Utah 84117
Telephone: (801) 815-2547
Fax No.: (801) 278-3368
e-mail: dboam@comcast.net

28
Case 2:18-cv-00186-DB Document 2-1 Filed 02/28/18 Page 1 of 2
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS


Kennedy Flavin Westminster College

(b) County of Residence of First Listed Plaintiff Salt Lake County County of Residence of First Listed Defendant Salt Lake County
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Law Offices of Dale H Boam P.C.
4776 South Wander Lane, Salt Lake City Utah 84117

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6


Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions
’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts
’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters
Medical Malpractice Leave Act ’ 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS Act
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 899 Administrative Procedure
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision
’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
20 U.S.C. §§ 1681-1688 and 29 U.S.C. § 794a
VI. CAUSE OF ACTION Brief description of cause:
discrimination based on gender and disability discrimination when it failed or refused to protect her from a known perpat
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. injunc$175,000.00 JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
02/27/2018 /s/ Dale H Boam
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE


JS 44 Reverse (Rev. 06/17) Case 2:18-cv-00186-DB Document 2-1 Filed 02/28/18 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.

V. Origin. Place an "X" in one of the seven boxes.


Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.