Bernstein, Peress, Miltenberg: “Judge: White Ex-Hoop Player Can Sue UAlbany As ‘Protected Class’,” Times Union


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 citing 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.” … 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.

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