University of Evansville hasn't been able to make lawsuit over Walter McCarty go away

EVANSVILLE — More than 18 months after the University of Evansville opened an investigation into then-coach Walter McCarty's behavior toward women, a court date that could shed new light on the private university's handling of the situation is fast approaching. 

Behind the scenes this summer, UE has asked multiple times for the dismissal of a lawsuit filed in April by a former student, identified as Jane Doe, claiming she was sexually assaulted by McCarty at his home, according to court documents obtained by the Courier & Press. She is suing UE for not providing a safe environment for her under Title IX because she was an athletics trainer who regularly interacted with McCarty.

More:Student sues University of Evansville, accuses ex-coach Walter McCarty of rape

The former University of Kentucky and NBA star was fired in January 2020 over allegations of sexual impropriety. Until the lawsuit was filed, details of the investigation remained scarce because UE, a private college, is not subject to public records requests.

These almost-2-year-old matters, intruding into another academic year as another basketball season approaches, have presented a back-and-forth legal battle.

If the lawsuit proceeds, a settlement conference will be held Jan. 19, according to court documents. That will be the final step before the lawsuit can be taken to trial. Doe seeks an unspecified amount of money from UE. 

Preliminary witness lists include four dozen current or former UE employees, students and faculty, among others, from the university president and athletics director to men’s basketball assistant coaches and other sports' head coaches.

That list, which Doe's attorneys are requesting, remains preliminary. Still, it's a who's-who at UE, all of whom could be asked to testify in a trial.

The lawsuit was filed by noted victim's rights attorney Michelle Simpson Tuegel, who represented sexual abuse survivors against Michigan State University and the U.S. Olympic Committee over convicted rapist and former doctor Larry Nassar. She’s based in Dallas.

UE hired a team of attorneys from the Husch Blackwell law firm, which has offices in Chicago and Kansas City. They recently filed a motion to dismiss the lawsuit's claims in the U.S. District Court Southern District of Indiana, according to court records.

The university first filed a three-page motion in mid-June. Doe’s attorneys responded with a 32-page opposition to the dismissal on Aug. 6 and UE again replied on Aug. 27 with 20 more pages of arguments.

The court has not made a ruling. Neither UE nor Tuegel was willing to comment to the Courier & Press beyond referring to their initial statements in April.

Doe said she visited McCarty's residence on Dec. 9, 2019. She alleges that McCarty began grabbing her and sexually assaulted her by touching her breasts and buttocks, and digitally penetrating her, according to the lawsuit.

More:Did UE fail to learn its lesson in prior lawsuit over harassment accusations?

Her attorneys say she reported the incident to a campus counselor three days later. She claims to have experienced severe stress, academic setbacks and threats of retaliation from McCarty.

UE believes it responded appropriately to her report.

“Despite the university’s robust response, (Doe) now seeks to impute the wrongdoing of the employee to the university,” attorneys wrote in UE’s initial motion. “Neither Title IX nor state law negligence principles permit such a legal theory, and this court should dismiss (these) claims for multiple independent reasons.”

The motion calls for Doe’s claims to be dismissed with prejudice, pursuant to Rule 12(b)(6) – which tests the sufficiency of a complaint rather than the merits of the claim.

UE doesn’t believe Doe has presented evidence necessary to prove deliberate indifference, according to court records. The school's attorneys also argue that UE didn’t take any retaliatory action against her, nor should it be held liable for a victim’s abuse merely because it employs a perpetrator.

Tuegel, unsurprisingly, wants the motion to be denied.

“UE mischaracterizes the law, claiming that any incidents of harassment that happened off-campus are outside UE’s control,” her response states.

“UE is subject to liability for its own negligence, not just under a vicarious liability theory. UE knew that McCarty had a pattern of sending sexually harassing messages, making sexual advances, and making unwanted physical contact with female UE students and employees — misconduct remarkably similar to his sexually harassing communications with Doe, sexual advances, and physical contact committed against Doe without her consent.”

Attorneys on both sides have had plenty to say.

UE’s attorneys countered that Tuegel’s response, “lengthy as it may be, is short on legal substance” because it is “offering legal conclusions instead of well-pleaded facts.” While the lawsuit only involves Doe’s specific Title IX claim, it also alleges university officials received a number of reports after McCarty's March 2018 hire, including:

• A July 2018 report to the school's administration that McCarty had been sending persistent and unwanted messages to a university employee, inviting her to bars, restaurants and his home.
• Multiple reports from fall 2018 through summer 2019 that McCarty routinely sent a female employee in the athletic department inappropriate messages inviting her to attend events with him and asking to see a photo of her wearing a swimsuit.
• A June 2019 report made to the UE vice president of student affairs and the dean of students that McCarty sent a former student private Instagram messages that made her uncomfortable.
• A Nov. 5, 2019, report made to the campus Title IX Coordinator that McCarty had for weeks been giving uncomfortable attention and initiating unwanted physical contact with a female student who worked in the University Center Café court.

McCarty told the Courier & Press in April the allegations against him are untrue.

"I can’t wait for the evidence to present itself that it’s a totally fabricated story," he said then. "I’ve never assaulted anyone in my 47 years on this earth. It’s disheartening that someone would make up a lie to gain financial rewards."

UE argued in its latest filing that if its responses to these reports were negligent, it still couldn't have foreseen that sexual assault, specifically, was the “natural and probable consequence” of any allegedly negligent response.

McCarty is an Evansville native who won a national championship as a player at Kentucky in 1996 and went on to have a decade-long NBA career, most notably with the Boston Celtics. He spent five years as a Celtics assistant coach before accepting the UE job.

In December, he filed for bankruptcy in a court in Massachusetts, where he lives. He claims to have roughly $2.5 million in assets and under $2 million in liabilities.

The results of that case are still pending, as is a legal case between him and Old National Bank. McCarty filed a complaint last year against the bank, claiming he “suffered irreparable loss and harm at the hands of Old National,” according to court documents. He was sued by Old National Bank and First Federal Savings Bank in 2020 after defaulting on more than $125,000 worth of loans, leading to a warrant for his arrest.

Title IX was passed in 1972. At first, the main emphasis was on gender equity, but it has evolved to focus more attention on sexual violence, which is considered an extreme form of discrimination. Some examples of violations: Derogatory or sexist remarks, sexually suggestive jokes, inappropriate touching, physical sexual advances and more.

Contact Chad Lindskog of the Courier & Press by email, clindskog@gannett.com, or on Twitter: @chadlindskog.