McKenzie v. United States Tennis Association Incorporated

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

KYLIE MCKENZIE,

Plaintiff,

v. Case No: 6:22-cv-615-PGB-LHP

UNITED STATES TENNIS

ASSOCIATION

INCORPORATED and USTA

PLAYER DEVELOPMENT

INCORPORATED,

Defendants.

/

ORDER

This cause is before the Court on Defendants’ Motion for Summary

Judgment (Doc. 96 (“Defendants’ Motion”)) and Plaintiff’s Motion for Partial

Summary Judgment (Doc. 98 (“Plaintiff’s Motion”)). Both parties have

responded in opposition (Docs. 108, 112) and filed sur-replies (Docs. 125, 126).

Upon consideration, Defendants’ Motion (Doc. 96) will be denied, and Plaintiff’s

Motion (Doc. 98) will be granted.

I. BACKGROUND

This lawsuit concerns liability for a sexual assault perpetrated against

Plaintiff Kylie McKenzie (“McKenzie”) on November 9, 2018 by a coach whom

Defendants United States Tennis Association Incorporated (“USTA”) and USTA

Player Development Incorporated (“USTA PD”) (collectively, the “Defendants”)

employed and assigned to train her at their National Campus in Lake Nona,

Florida. (Doc. 34). Practice was coming to an end when the coach, Anibal Aranda

(“Coach Aranda”), sat next to McKenzie on a courtside bench, placed his hand

on her thigh, then slid his hand onto her groin and started rubbing her vagina over

her clothes—having earlier reserved a secluded court that he knew lacked working

cameras and a time when no one else would be around. (Doc. 95-1, 40:22–41:16;

Doc. 104-4, pp. 5–13, 80). McKenzie believes Defendants failed to adequately

protect her from the assault, while Defendants believe they had no obligation to

take greater steps than they did to prevent it. (Docs. 34, 96).

USTA is the National Governing Body (“NGB”) for the sport of tennis, and

USTA PD is its affiliate charged with training young players in the game and

managing the training facilities. (Doc. 95-1, ¶¶ 1–3; Doc. 95-7, 12:23–13:2).

Membership in USTA is a prerequisite for any player to be eligible to compete in

any USTA-sanctioned tournament in the United States or abroad, which requires

adherence to the USTA Membership Terms and Conditions. (Doc. 98-3; Doc. 95, ¶

4). Each member agrees to be governed by “USTA’s athlete abuse prevention

policies and program, known as Safe Play.” (Doc. 95-2). First launched in 2013,

USTA’s Safe Play program eventually included an acknowledgment that sexual

misconduct can occur “where there is a Power Imbalance, regardless of purported

Consent,” and presumed such a power imbalance exists “[o]nce a coach-Athlete

relationship is established.” (Doc. 95, ¶ 5; Doc. 95-3, 20:19–24; Doc. 95-5, p. 69).

USTA initially resisted a restriction on sexual relationships between players

and coaches, which came at the United States Olympic Committee’s (“USOC”)

behest. (Doc. 98-7). As far back as 2012, the USOC sought to impose on NGBs

minimum standards for preventing abuse and place a national body in charge of

developing training and investigating claims of sexual misconduct, which USTA

opposed. (Doc. 98-5; Doc. 98-6, pp. 6–7). In marking up the USOC’s draft

minimum standards, USTA said the restriction on romantic relationships “is not

realistic in tennis” because “MANY female players date their own or other

coaches[.]” (Doc. 98-7, p. 1). But by 2017, USTA had adopted a policy banning

those relationships. (Doc. 95-5, p. 69).

That same year, Congress established the United States Center for SafeSport

(the “Center”) by federal statute, which it tasked with jurisdiction over the USOC

and each NGB with regard to safeguarding amateur athletes from emotional,

physical, and sexual abuse. 36 U.S.C. § 220541(1)(B); (Doc. 95, ¶¶ 7–8). The Center

created the SafeSport Code for the U.S. Olympic and Paralympic Movement (the

“SafeSport Code”). (Doc. 95, ¶¶ 10–11). The 2018 version of the Code requires

adults with authority over or frequent contact with athletes to report any sexual

misconduct of which they become aware. (Doc. 95, ¶¶ 12–14; Doc. 95-6, p. 2). All

USTA employees receive annual training on the SafeSport Code, including policies

related to mandatory reporting. (Doc. 95, ¶ 15).

McKenzie trained full-time with the USTA, with a few interruptions, from

the ages of twelve to nineteen. (Doc. 98-1, ¶ 13). When she was 12, she accepted a

USTA national coach’s invitation to train full-time at the organization’s facility in

California, where she spent several years away from her family, receiving financial

grants from the USTA, before moving back to her home in Arizona. (Doc. 95-11,

196:16–197:10, 207:6–22; Doc. 98-1, ¶¶ 1–2, 4–5; Doc. 98-3, 41:17–44:6, 45:7–

46:15). When she was 15, she won first place in the U.S. National Hard Court

competition. (Doc. 98-1, ¶ 10). Executives with the USTA saw her play at the

competition and approached her about joining the player development program at

the USTA training facility in Boca Raton, Florida. (Doc. 95-11, 213:20–214:12).

Understanding that the USTA invests in few junior players this way, McKenzie left

Arizona to train full-time in Florida—working and traveling with USTA national

coaches and at times living in USTA dorms. (Doc. 95-11, 116:2–10, 215:16–20; Doc.

98-1, ¶¶ 11–12). She continued to train there until sustaining a shoulder injury,

which she rehabbed at home in Arizona, before picking up training again in August

2018 when the USTA National Campus opened. (Doc. 98-1, ¶ 14).

Coach Aranda came to take over McKenzie’s training in October 2018 when

the usual coach she trained with, originally assigned to her in 2016, left for about

one or two weeks with another player he was coaching. (Doc. 104-4, p. 10). USTA

PD first hired Coach Aranda to train players part-time in 2012 before promoting

him to full-time coach in 2014—conducting background checks, which were clear.

(Doc. 95, ¶¶ 16–18; Doc. 95-8; Doc. 95-9). He was also SafeSport certified. (Doc.

95, ¶¶ 18–19; Doc. 97-7, ¶¶ 6, 12). McKenzie’s original coach had started to become

increasingly unavailable, leading her to train occasionally with Coach Aranda, who

expressed interest in becoming her full-time coach. (Doc. 104-4, p. 10). McKenzie

was excited by the prospect of having a coach to work with consistently and knew

Coach Aranda had successfully trained her friend, Cici Bellis, to be a top 50 tennis

player in the world. (Id.). Coach Aranda discussed making the switch with

McKenzie’s original coach, which their bosses approved. (Id.).

During their first weeks training together, Coach Aranda began making

inappropriate comments about McKenzie’s body, which escalated to inappropriate

contact. (Doc. 104-4, p. 13). He would steadily lean in closer to her while the two

reviewed cellphone videos of her performance on a courtside bench until he was

pressed up against her, and then pat her thigh. (Doc. 95-11, 137:1–138:13; Doc. 104-

4, p. 13). One time, he lifted her shirt and patted her stomach. (Doc. 95-11, 141:11–

12). When McKenzie would practice serving, he would place his hand just above

her buttocks and then press himself against her back, placing his hands on her

hips. (Doc. 95-11, 148:1–5, 156:21–157:3). Coach Aranda also began to schedule

practices with McKenzie from 11 a.m. to 1 p.m., after most players had finished

their sessions, on the red clay courts in the back of the facility, which received little

foot traffic. (Doc. 104-4, p. 11). He would reserve a court where he knew video

cameras were not working. (Id. at p. 80).

On November 9, 2018, Coach Aranda again sat next to McKenzie on a

courtside bench as practice was winding down. (Id. at p. 18). McKenzie had a towel

over her lap and leggings on underneath. (Id.). Coach Aranda started to

aggressively question her, asking if she thought she was beautiful and what tennis

star she wanted to look like. (Id.). He placed his hand on her thigh and eventually

slid it to her groin area, rubbing up and down on her vagina. (Id.; Doc. 95-11,

169:10–22). McKenzie pushed him away, but he knelt down in front of her and

started rubbing her calves and knees, trying to massage them. (Doc. 104-4, p. 19).

He then asked McKenzie “what she wanted him to be,” to which she replied, only

“to be her tennis coach,” which seemed to anger him. (Doc. 95-11, 164:2–7). The

two walked to the indoor courts inside the facility to put their tennis balls away,

and Coach Aranda started talking about how he could help manage her

professional return and get her sponsors. (Id. 167:10–25). She then left the facility.

(Id. 170:1–21).

McKenzie drove to her friend Cici Bellis’s house, where she would stay from

time to time, and told her what happened. (Id.). The two then called Defendants’

Manager of Player Development, Events, and Programming, and she relayed the

information to her superiors. (Id. 174:5–21; Doc. 97-5, 62:20–25). Defendants

immediately suspended Coach Aranda’s employment and reported his misconduct

to the Center. (Doc. 95-14). The Center undertook an investigation, which

confirmed Coach Aranda engaged in sexual misconduct with McKenzie. (Doc. 104-

4). The investigation also revealed an incident involving Coach Aranda four years

prior. (Id. at p. 29). During a night out with colleagues in New York before a U.S.

Open event, he similarly groped a USTA employee (“Jane Doe”)—“grinding up”

on her on a dance floor and then “rubbing her vagina, on the outside of her clothes.”

(Id. at pp. 13, 29; Doc. 95-16, 10:2–5, 21:9–23:18). Jane Doe pushed him away and

left the nightclub, but Coach Aranda followed her outside and attempted to get into

a cab with her. (Doc. 104-4, p. 29). She did not report it, even after receiving a

promotion to Manager of Player Development, Events, and Programming. (Id.).

Ultimately, the investigation resulted in Coach Aranda’s termination. (Doc. 95-3,

28:16–22).

In 2022, McKenzie filed this lawsuit alleging Negligent Supervision and

Retention (Count I), Battery (Count II), Intentional Infliction of Emotional

Distress (Count III), Negligence (Count IV), and Punitive Damages (Count V).

(Doc. 34). Defendants now move for summary judgment on all counts arguing they

were unaware of any propensity on the part of Coach Aranda for sexual

misconduct, which they do not condone, and that they exercised ordinary care.

(Doc. 96). McKenzie moves for partial summary judgment on Count IV asking the

Court to find as a matter of law that a special relationship imposed on Defendants

an affirmative duty of care. (Doc. 98). The parties opposed each other’s motions

(Docs. 108, 112) and filed sur-replies (Docs. 125, 126). With briefing complete, the

matter is ripe.

II. STANDARD OF REVIEW

“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(a). The party moving for summary judgment

must “cit[e] to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations . . . , admissions, interrogatory answers, or other materials” to support

its position that it is entitled to summary judgment. FED. R. CIV. P. 56(c)(1)(A).

“The court need consider only the cited materials” but may also consider any other

material in the record. FED. R. CIV. P. 56(c)(3).

An issue of fact is “genuine” only if “a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if the fact could affect the outcome of the lawsuit under

the governing law. Id. The moving party bears the initial burden of identifying

those portions of the record demonstrating a lack of genuine dispute of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hickson Corp. v. N.

Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). If the movant shows “an

absence of evidence to support the nonmoving party’s case,” the burden then shifts

to the non-moving party to demonstrate that there are, in fact, genuine disputes of

material facts. Celotex, 477 U.S. at 325; see also Porter v. Ray, 461 F.3d 1315, 1320

(11th Cir. 2006).

Summary judgment should only be granted “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party.”

Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A

court may not grant summary judgment if doing so would be based on witness

credibility determination; the Court must accept the non-movant’s competent

testimony as true for purposes of ruling on summary judgment. Johnson v. Lang,

No. 19-14278, 2022 WL 2734421, at *4 (11th Cir. July 14, 2022) (quoting Mize v.

Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)) (“It is not the court’s

role to weigh conflicting evidence or to make credibility determinations; the non-

movant’s evidence is to be accepted for purposes of summary judgment.”); Allen-

Sherrod v. Henry Cnty. Sch. Dist., 248 F. App’x 145, 147 (11th Cir. 2007)1 (“The

district court was correct in observing that it could not consider Edinger’s

credibility as a witness in ruling upon summary judgment.”); Gary v. Modena, No.

05-16973, 2006 WL 3741364, at *16 (11th Cir. Dec. 21, 2006) (holding that Rule

56(c) precludes summary judgment when the only way to reconcile conflicting

testimony is to “assess the credibility of witnesses”).

III. DISCUSSION

A. Count I - Negligent Retention and Supervision

Florida law recognizes a cause of action for negligent retention and

supervision. Mallory v. O’Neil, 69 So. 2d 313, 315 (Fla. 1954). Negligent retention

or supervision “occurs when during the course of employment, the employer

becomes aware or should have become aware of problems with an employee that

indicated his unfitness, and the employer fails to take further actions such as

investigation, discharge, or reassignment.” Dep’t of Env’t Prot. v. Hardy, 907 So.

2d 655, 660 (Fla. 5th DCA 2005). A plaintiff must show that “once an employer

received active or constructive notice of problems with an employee’s fitness, it was

unreasonable for the employer not to investigate or take corrective action.” Garcia

1 “Unpublished opinions are not controlling authority and are persuasive only insofar as their

legal analysis warrants.” Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 (11th Cir.

2007).

v. Duffy, 492 So. 2d 435, 441 (Fla. 2d DCA 1986). Liability attaches only if the

plaintiff is “within the zone of foreseeable risks created by the employment” and

the failure to take reasonable action is the proximate cause of the plaintiff’s harm.

Watson v. City of Hialeah, 552 So. 2d 1146, 1149 (Fla. 3d DCA 1989).

For purposes of negligent retention and supervision, an employer is not

considered separately from its managers—since a corporation cannot act on its

own and only management can receive notice of employee’s unfitness or take

corrective action. See Tallahassee Furniture Co., Inc. v. Harrison, 583 So. 2d 744,

754 (Fla. 1st DCA 1991) (declining summary judgment based on facts “known to

management” and subsequent inaction); McArthur Jersey Farm Dairy, Inc. v.

Burke, 240 So. 2d 198, 201 (Fla. 4th DCA 1970) (finding dairy farm had notice of

employee’s reckless driving because dairy superintendent was aware of it and

previously told the employee to stop). “The factors constituting notice, employee

fitness, and the type of action reasonably required of the employer” are questions

of fact that will vary based on the circumstances. Garcia, 492 So. 2d at 441. The

inquiry for those factors centers, in part, on what exactly managers knew and when

they knew it, the role and duties of any managers with knowledge, and the expected

actions that knowledge should impel for someone in that role. See McArthur

Jersey Farm Dairy, 240 So. 2d at 201; Iglesia Cristiana La Casa Del Senor, Inc.

v. L.M., 783 So. 2d 353, 359 (Fla. 3d DCA 2001).2

2 Florida law generally imputes to a corporation the knowledge of an agent acting on its behalf

where a deal or transaction with a third party is concerned. Mut. Life Ins. Co. of New York v.

Hilton-Green, 241 U.S. 613, 622 (1916). An exception exists for circumstances in which the

In this case, both parties agree that McKenzie’s negligent retention claim

hinges on whether Jane Doe’s experience with Coach Aranda in 2014 could provide

actual or constructive notice to Defendants that he was unfit to coach young

women unmonitored. (Doc. 96, p. 13; Doc. 108, p. 3). Defendants argue Jane Doe’s

personal decision not to report her own assault precludes liability as a matter of

law. (Doc. 96, pp. 13–18). McKenzie responds that the record is replete with

information from which a reasonable jury may conclude Jane Doe’s knowledge

qualified as notice and her failure to take any action regarding Coach Aranda was

unreasonable. (Doc. 108, pp. 12–16). The Court agrees with McKenzie.

First, there is a genuine issue of material fact regarding the extent of Jane

Doe’s managerial role and duties. When an agent is on notice—or has reason to

know—of a fact material to the agent’s duties to the principal, knowledge of that

fact is imputed to the principal. Dye v. Tamko Bldg. Prods., Inc., 908 F.3d 675,

685 (11th Cir. 2018) (citing Restatement (Third) of Agency § 5.03 cmt. e (2006));

see also United States v. Planes, 8:18-CV-2726-T-23-TGW, 2019 WL 3024895, at

third party knows or should know the agent “has a motive or interest in concealing the facts

from [her] principal.” Lambert v. Heaton, 134 So. 2d 536, 538–39 (Fla. 1st DCA 1961). While

instructive and sometimes persuasive, the agency law principles regarding imputed

knowledge do not neatly dovetail with the concept of notice for purposes of negligent

retention. For one, the general rule regarding imputed knowledge developed to govern liability

for representations made by an agent to a third party, usually while negotiating a deal or

transaction for the principal. E.g., Mut. Life Ins. Co. of New York, 241 U.S. at 622 (“The

underlying reason for it is that an innocent third party may properly presume the agent will

perform his duty and report all facts which affect the principal’s interest.”). This case does not

concern representations made by an agent to a third party, and the relevant inquiry is not

whether Jane Doe was acting for her employer’s benefit, but rather whether she acted

reasonably given her position, job duties, and the extent of her knowledge. Compare Lambert,

134 So. 2d at 538–39, with McArthur Jersey Farm Dairy, 240 So. 2d at 201.

*9 (M.D. Fla. July 11, 2019) (noting knowledge is imputed even if the agent

acquired the knowledge “casually or through experiences” separate from the

performance of a duty for the principal). While Jane Doe was only a coordinator

when she was assaulted in 2014, USTA PD promoted her to a management position

in 2017 when she became Manager of Player Development Events & Programming.

(Doc. 95-18; Doc. 104-1, 10:2–5). This new role made her a mandatory reporter of

sexual misconduct under the SafeSport Code and she received training regarding

this responsibility starting in 2017 after her promotion. (Doc. 95, ¶ 55; Doc. 95-1,

109:10–12; Doc. 95-3, 20:25–23:15; Doc. 95-16, 26:14–18; Doc. 108-5, 86:22–

87:3). Lauren Tracey, the corporate representative for Defendants, averred that

Jane Doe did not manage players or coaches. (Doc. 97-7, ¶ 29). Jane Doe said

herself she does not “work in the coaching space” and though she was aware that

Coach Aranda worked with female athletes, whether he was training female

athletes in remote parts of the USTA National Campus was “not relevant to [her]

role.” (Doc. 104-1, 59:9–11, 60:8–16).

Still, McKenzie and fellow player CiCi Bellis felt Jane Doe was an

appropriate person at USTA to whom to report Coach Aranda’s assault. (Doc. 95-

11, 173:18–22). USTA immediately suspended Coach Aranda and restricted his

access to its facilities in response to Jane Doe relaying to USTA executives what

McKenzie said—which was her duty as a mandatory reporter. (Doc. 95, ¶ 26; Doc.

104-1, 57:19–23, 62:22–25; Doc. 104-4, p. 103). Other USTA employees reported

to Jane Doe as their direct supervisor. (Doc. 108-4). She was a “leading force” in

creating a fellowship program for players, which included pairing participants with

a USTA coach to serve as a mentor. (Doc. 108-1, p. 1). She has also been in charge

of creating and managing events involving high-performance coaching and

education programs, which were held at major USTA-sponsored tournaments.

(Doc. 108-2). Defendants hold Jane Doe out as an expert on mentorship of

athletes, providing her as a keynote speaker on the topic. (Doc. 108-3, pp. 1, 22–

30). A reasonable jury could find from these facts that Jane Doe served in a

position where her knowledge of her own assault could constitute notice or reason

to know for Defendants.

Second, Jane Doe’s knowledge of her assault does not, as a matter of law,

provide insufficient notice of Coach Aranda’s propensity for sexual misconduct.

Prior incidents of misconduct known to an employer must have a sufficient nexus

to the wrongdoing at issue such that it is a harbinger of the risk an employee would

foreseeably engage in it. See Garcia, 492 So. 2d at 441 (noting “an employer who

learns of an employee’s conviction for petit theft cannot be deemed liable, on the

basis of negligent retention upon constructive or actual notice of that crime, for the

employee’s subsequent rape of a customer”); Dickinson v. Gonzalez, 839 So. 2d

709, 714 (Fla. 3d DCA 2003). Here, USTA executives said that they would want to

know of incidents like the one between Jane Doe and Coach Aranda so they could

take corrective action, which could include termination. (Doc. 95-3, 22:6–23:15

(“If I knew of an incident like that, I would report it . . . .”); Doc. 95-7, 31:22–32:16,

37:10 (explaining that any information of “egregious behavior” from employees

could be “cause of termination”); Doc. 95-12, 22:22–25, 25:10–26:20 (“[I]f they

think it’s disrespectful, then I would expect them to report it to me.”)). With Jane

Doe, Coach Aranda was “grinding up on her” on a dance floor and “rubbing her

vagina, on the outside of her clothes.” (Doc. 104-4, pp. 13, 29). With McKenzie, he

pressed himself against her back while practicing serves and then, while sitting on

a courtside bench, rubbed his hand on her vagina outside her clothes. (Doc. 95-1,

40:22–41:16; Doc. 98-9, pp. 5, 80). Viewing the facts in the light most favorable to

the plaintiff, it is not unreasonable to conclude that Coach Aranda’s willingness to

engage in sexual misconduct with one woman, a USTA employee, would make the

same misconduct a foreseeable risk to another, a player.

In arguing the contrary, Defendants point to a South Carolina case holding

a coworker’s informal report to her supervisor, relaying that a bus driver once

“grabbed [her] arms . . . like he was forcing [her] to kiss him,” did not constitute

sufficient notice to the employer that the driver would abuse a disabled bus

passenger over several months by “repeatedly touch[ing] her legs inappropriately,

kiss[ing] her and ma[king] persistent comments to her of a sexual nature[.]” Doe

v. ATC, Inc., 624 S.E.2d 447, 448–49 (S.C. Ct. App. 2005) (“While it is true that

both incidents may generally be described as sexual in nature, the totality of the

prior incident is a far cry from the reprehensible, persistent pattern of abuse

against [the plaintiff].”). That case, which does not bind this Court, is

distinguishable from the circumstances here. Unlike the bus company, which

chose not to fire the bus driver sooner based largely on the informal nature of the

coworker’s report, Defendants would have probably fired Coach Aranda (or at least

supervised him more closely) if Jane Doe had chosen to raise any concerns about

him engaging in sexual misconduct. (Doc. 95-7, 31:22–32:16, 37:10; Doc 95-12,

20:2–23). Coach Aranda’s behavior toward Jane Doe in a nightclub is not “a far

cry” from the behavior he exhibited toward McKenzie on a secluded tennis court.

The difference in setting and the fact Jane Doe was not an athlete do not make

Coach Aranda’s prior assault insufficient as a matter of law to serve as notice of a

foreseeable risk. See Tallahassee Furniture, 583 So. 2d at 754 (holding

deliveryman’s prior criminal record for theft, plus management’s knowledge of his

substantial on-the-clock drug use and of his prior commitment to a psychiatric

hospital, created a fact issue regarding notice that he would assault a customer).

The question of foreseeability and proximate cause “is concerned with the specific,

narrow factual details of the case” and normally should be answered by the jury.

McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992).

Third, a reasonable jury could conclude Jane Doe’s decision not to take any

action in light of her encounter with Coach Aranda crossed the line into being

unreasonable. Defendants stress that victims of sexual assault are usually not

required to report their own abuse and Jane Doe’s decision not to report her abuse

was personal and not for the benefit of USTA. (Doc. 96, pp. 13, 15–16). “A principal

may not rebut the imputation of an agent’s notice of a fact by establishing that the

agent kept silent.” Restatement 3d Agency § 5.03 cmt. b. In 2018, the SafeSport

Code commanded “Covered Adults must report to the [Center] conduct of which

they become aware that could constitute (a) sexual misconduct[.]” (Doc. 95-6, p.

16). The parties’ experts describe Coach Aranda’s behavior with Jane Doe as

coming within the definition of “sexual misconduct.” (Doc. 97-3, 63:15; Doc. 117-1,

65:7–15). However, the Center believes no victim is required to report her own

abuse, codifying this belief in more recent versions of the SafeSport Code.3 (Doc.

97-8, ¶ 7). It is undisputed that Jane Doe kept her prior assault to herself until after

McKenzie fell victim to Coach Aranda’s misconduct. (Doc. 104-1, 17:14–16, 53:14–

20). She did so because she was “ashamed and embarrassed.” (Id.). Defendants’

executives had received no other reports of misconduct by Coach Aranda prior to

McKenzie’s assault. (Doc. 97-7, ¶ 16). These facts could support a conclusion that

Jane Doe, and by extension Defendants, acted reasonably. On the other hand, Jane

Doe also could have taken steps short of fully disclosing Coach Aranda assaulted

her—like anonymously reporting his misconduct to the USTA reporting hotline or

expressing concern to an executive about him working with female athletes alone.

(Doc. 95-5, pp. 60–61; Doc. 108-6). It is for a jury to decide whether Jane Doe acted

reasonably in choosing not to do so. See Garcia, 492 So. 2d at 441.

Last, Defendants claim the record clearly shows they adequately supervised

Coach Aranda’s training with female athletes. (Doc. 96, pp. 9–11). Coach Aranda

was SafeSport certified and had been subject to two background checks, which

3 That said, Jane Doe chose to accept a promotion which made her a mandatory reporter of

sexual misconduct under the SafeSport Code and for which she received training regarding

this responsibility starting in 2017. Jane Doe lost the option of keeping silent when she

accepted the promotion.

were clear. (Doc. 95, ¶¶ 18–19; Doc. 97-7, ¶¶ 6, 12). The National Campus has an

open plan with cameras on every court, so it is easy for supervisors and bystanders

to observe the training going on. (Doc. 97-7, ¶ 16). Plaintiff’s expert described the

open environment as “laudable” and said USTA PD “had ample mechanisms to

supervise electronically through the videotapes.” (Doc. 117-1, 49:1–6, 49:25–50:3).

While serving as head of women’s tennis and Coach Aranda’s direct supervisor, Ola

Malmqvist would routinely walk the courts to observe practices. (Doc. 95-12,

13:19–14:12, 17:13–25). When he was not traveling, Malmqvist said he would

“watch practice every single day, morning and afternoon,” that he would give input

to the coaches and players, and that he would observe practices “randomly so they

[did not] know when [he was] coming.” (Id. 17:16–25). Even while traveling, he

said he would stream practices from the cameras remotely, often without telling

the coaches when he planned to do so. (Id. 31:19–32:13).

While USTA may have had “laudable” mechanisms in place, McKenzie is

quick to point out they either did not work and or were easy for Coach Aranda to

evade. Notwithstanding the cameras and open plan, Coach Aranda was able to get

McKenzie alone on a court where he was sure he would not be monitored. The

cameras were known for “ongoing problems” and malfunctions. (Doc. 95-3, 15:22–

16:2). Coach Aranda scheduled practice with McKenzie between 11 a.m. and 1 p.m.,

when there was “literally no one else” around, on a secluded court where he knew

the camera was not working. (Doc. 95-1, 40:22–41:16; Doc. 104-4, pp. 5, 80). He

had reserved that specific court with a broken camera for the same time period the

two days preceding the assault, as well. (Doc. 104-4, p. 12). Defendants did not

ensure McKenzie’s practices were recorded until after her assault and they later

confirmed the court’s camera was not turned on that day. (Id. at pp. 5, 81).

McKenzie’s assault also occurred during a period of transition following

Malmqvist’s promotion out of the supervisory role in October 2018. (Doc. 95-12,

16:3–19; Doc. 104-4, p. 39). Kathi Rinaldi, his replacement, said she could not

recall whether she was given any training or instruction on how to supervise the

coaches, whether her supervisory duties differed from Malmqvist’s duties, what

days she was responsible for supervising Coach Aranda, or how many hours she

dedicated to that task. (Doc. 108-7, 16:7–22, 22:5–9, 23:9–14, 24:2–6). She was

also out of the country in the weeks before McKenzie’s assault. (Id. 18:18–21:8,

25:2–25, 26:2–10, 27:3–14). Rinaldi could not recall whether she delegated her

supervisory responsibilities over Coach Aranda to someone else while she was

away. (Id. 32:2–7). In light of these facts, the Court cannot say as a matter of law

that Defendants adequately supervised Coach Aranda.

In sum, the record on the issue of negligent retention and supervision does

not lean so far in one direction as to be the only conclusion a reasonable jury could

reach. Accordingly, Defendants Motion for Summary Judgment (Doc. 96) is

denied as to Count I.

B. Counts II & III - Battery and Intentional Infliction of

Emotional Distress

Generally, employers are not liable for criminal or tortious acts committed

by their employees, “unless the acts were committed during the course of the

employment and to further a purpose or interest, however excessive or misguided,

of the employer.” Iglesia, 783 So. 2d at 356. In that case, employers can be held

vicariously liable if the employee was acting within the course and scope of his

employment, and for the benefit of the employer. Id. at 357. Tortious conduct is in

the scope of employment when “(1) the conduct is of the kind [the individual] was

employed to perform, (2) the conduct occurs substantially within the time and

space limits authorized or required by the work to be performed, and (3) the

conduct is activated at least in part by a purpose to serve the master.” Sussman v.

Fla. E. Coast Props., Inc., 557 So. 2d 74, 75–76 (Fla. 3d DCA 1990). Florida courts

generally hold sexual assaults and batteries by employees “to be outside the scope

of an employee’s employment and, therefore, insufficient to impose vicarious

liability on the employer.” Special Olympics Fla., Inc. v. Showalter, 6 So. 3d 662,

665 (Fla. 5th DCA 2009) (citing Nazareth v. Herndon Ambulance Serv., Inc., 467

So. 2d 1076, 1078 (Fla. 5th DCA 1985)). An exception exists where “the tortfeasor

was assisted in accomplishing the tort by virtue of the employer/employee

relationship.” Iglesia, 783 So. 2d at 357; Nazareth, 467 So. 2d at 1078 (citing

Restatement (Second) of Agency § 219(2)(d) (1958)).

Here, McKenzie asserts that the issues regarding the scope of employment

and the exception pose jury questions. (Doc. 108, pp. 22–24). Normally, the jury

should resolve whether an employee was acting within the scope of his

employment. M.V. by & through W.W. v. Gulf Ridge Council Boy Scouts of Am.,

Inc., 529 So. 2d 1248, 1249 (Fla. 2d DCA 1988). As told by McKenzie, Coach Aranda

“engaged in an escalation of inappropriate conduct towards” her, all during

training sessions on USTA-controlled property to provide the coaching USTA hired

him to perform. (Doc. 98-8; Doc. 104-4, p. 117; Doc. 104-5, p. 4). Under the guise

of working on McKenzie’s serving technique, he started “holding her hips from

behind,” “pressing his body up against the back of her body hard and harder,”

placing his hands on “her hips, until they were in her groin area [] at the edge of

her underwear,” and sliding his hands “down to her underwear line right next to

her vagina.” (Doc. 98-1, ¶¶ 20–24; Doc. 95-11, 154:2–164:25; Doc. 104-5, p. 3).

Immediately following the assault, Coach Aranda told McKenzie he could elevate

her career—like by attracting sponsors—if she continued training with him as her

coach. (Doc. 95-11, 167:10–25). McKenzie presses that she would not have been on

the courts with Coach Aranda practicing serves but for his USTA employment and

his assignment to train her.

That all notwithstanding, Coach Aranda’s conduct must bear some relation

to “the real or apparent scope of his employment or to the interest of his employer”

for Defendants to be vicariously liable. City of Green Cove Springs v. Donaldson,

348 F.2d 197, 202 (5th Cir. 1965) (interpreting Florida law). 4 An

employer/employee relationship assists with the tortious conduct when the

employee uses his authority to enable that very conduct during the time it

occurred—not just because the tortfeasor was there and had access to the plaintiff

due to his employment. Compare United States Equal Employment Opportunity

Comm’n v. Favorite Farms, Inc., 8:17-CV-1292-T-30-AAS, 2018 WL 4698457, at

*3 (M.D. Fla. Oct. 1, 2018) (denying summary judgment on vicarious liability

where jury could find assailant “used his authority as [the victim’s] supervisor” and

his purview to inspect housing units “to gain access to her apartment in order to

sexually assault her”), and Hennagan v. Dep’t of High. Saf. & Motor Veh., 467 So.

2d 748, 750 (Fla. 1st DCA 1985) (reversing dismissal where a trooper pretextually

arrested a minor as a shoplifting suspect and then molested her), with Iglesia, 783

So. 2d at 358 (reversing denial of directed verdict for church because, “[w]hile

[assailant] may have had access to [plaintiff] because of his position as the Church

pastor, . . . he was not engaging in authorized acts or serving the interests of the

Church during the time he tried to seduce her or on the day he raped her”), and

Showalter, 6 So. 3d at 665 (reversing denial of directed verdict for defendant since

Special Olympics volunteer acted outside his apparent authority in luring children

to his van in a bowling alley parking lot and molesting them). Even when the

employment envisions physical contact, the tortious conduct must still be

4 The Eleventh Circuit holds cases handed down by the Fifth Circuit prior to October 1, 1981

shall constitute binding precedent unless overruled en banc. Bonner v. City of Prichard, 661

F.2d 1206, 1207 (11th Cir. 1981) (en banc).

connected to the job-related purpose authorizing physical contact in order for the

employer to be vicarious liable. See Goss v. Hum. Servs. Assocs., Inc., 79 So. 3d

127, 132 (Fla. 5th DCA 2012) (finding a counselor tasked with rehabilitating

troubled youths at a group home, in part through “physical encouragement in the

form of hugging and hand-holding,” was not aided by her employment in having

sex with one of the youths outside of any counseling). In other words, the employee

must be able to cause the harm because of his position with the employer for the

exception to apply. See Restatement (Second) of Agency § 219 cmt. e.

Considering these principles, a reasonable jury could find Coach Aranda was

aided in accomplishing the torts by virtue of his position. Admittedly, this case is a

close call. Defendants employed Coach Aranda to train players, not to sexually

assault them. (Doc. 104-4, p. 117). In her testimony, McKenzie said Coach Aranda’s

tortious conduct was not normal. (Doc. 95-11). On the day of the incident, she and

Coach Aranda had a “normal practice until the serving at the end,” she said. (Id.

160:10–11). In describing her reaction to Coach Aranda’s conduct in the weeks

before the assault, McKenzie made remarks such as, “I would never think that a

coach would do that.” (Id. 137:11–20). Like when Coach Aranda would sit on the

bench next to her and rest his hand on her thigh, she said she “wouldn’t expect for

something like that to happen.” (Id. 140:22–141:25, 142:6–8).

Still, a jury could find Coach Aranda used the authority of his position to

dictate practice—with the pretext of practicing serving technique—so as to escalate

his inappropriate touching over a period of weeks culminating in the assault. See

Hennagan, 467 So. 2d at 750. Because of his position, he decided the time and

court on which McKenzie would train with him. (Doc. 104-4, pp. 9–13). Other

coaches were not readily available to provide consistent training. (Id.). McKenzie’s

ability to continue participating in the player development program, already

somewhat precarious at the time, hinged on the coaches’ view of her work ethic

and performance. (Doc. 104-4, pp. 9, 34–35). Since Coach Aranda could only hold

practice with McKenzie and train her on serving technique by virtue of his

employment, there is a genuine dispute of material fact regarding whether the

exception applies. See Favorite Farms, 2018 WL 4698457, at *3. Defendants’

Motion for Summary Judgment (Doc. 96) is denied as to Counts II and III.

C. Count IV – Negligence

To succeed on a negligence claim under Florida law, a plaintiff must

establish: “(1) the defendant owed a duty of care to the plaintiff; (2) the defendant

breached said duty; (3) the breach was the proximate cause of the plaintiff’s injury;

and (4) the breach caused the plaintiff to suffer damages.” See Clay Elec. Coop,

Inc. v. Johnson, 875 So. 2d 1182, 1185 (Fla. 2003). McKenzie seeks summary

judgment on the first element, asking the Court to find Defendants owe players in

their training program an affirmative duty of care to protect them from sexual

assaults committed by coaches, which Defendants oppose. (Doc. 98, pp. 12–14;

Doc. 112). Whether a particular defendant owes a duty of care is a question of law

resolvable on summary judgment. McCain, 593 So. 2d at 502.

A duty is established when the acts of a defendant in a particular case “create

a foreseeable zone of risk.” Pate v. Threlkel, 661 So. 2d 278, 280 (Fla. 1995).

Additionally, “one who undertakes to act, even when under no obligation to do so,

thereby becomes obligated to act with reasonable care.” Union Park Mem’l Chapel

v. Hutt, 670 So. 2d 64, 66–67 (Fla. 1996). Under the common law, a person or

other entity generally has no duty to take precautions to protect another against

criminal acts of third parties. Boynton v. Burglass, 590 So. 2d 446, 448 (Fla. 3d

DCA 1991). An exception exists when there is a “special relationship” between the

defendant and the person whose behavior needs to be controlled or the person who

is a foreseeable victim of that conduct. Id. “A special relationship typically arises in

narrow circumstances where the relationship places the defendant in a superior

position to control the risk, such as where the defendant has substantial control

over the plaintiff so as to deprive the plaintiff of his or her normal opportunities

for protection.” Saunders v. Baseball Factory, Inc., 361 So. 3d 365, 370 (Fla. 4th

DCA 2023) (citing Restatement (Second) of Torts § 314A (1965)).

Athletic programs can have a special relationship with players in their

custody which imposes a duty to exercise reasonable care to prevent third parties

from intentionally harming those players or conducting themselves so as to create

an unreasonable risk of harm. See Showalter, 6 So. 3d at 666–67 (citing

Restatement (Second) of Torts § 320 (1965)). This special relationship arises when

these programs voluntarily take custody of players under circumstances that

deprive the players of normal opportunities for protection or that subject them to

association with persons likely to harm them. Id. Florida law recognizes this sort

of special relationship exists between a school and its students. Rupp v. Bryant,

417 So. 2d 658, 666 (Fla. 1982) (holding public schools owe a general duty of

supervision to the minor students placed within their care). Applying similar

principles, the Florida Supreme Court extends to universities a duty to use

ordinary care to protect its adult students over whom it is exercising some degree

of control from foreseeable harm in providing educational services and programs,

like when assigning them to mandatory internship programs. Nova Se. Univ., Inc.

v. Gross, 758 So. 2d 86, 88 (Fla. 2000). McKenzie argues the relationship between

Defendants and young players like her, who USTA officials recruit to leave home

and train with USTA coaches at USTA facilities, mirrors the special relationship

from which a university’s duty to its adult students arises—engendering an

affirmative duty to protect players in its training program from sexual assault.

(Doc. 98, p. 18). The Court agrees.

To start with, Defendants are fully aware that sexual abuse of athletes is a

pervasive problem in amateur sports. (Doc. 108-9). USTA specifically documented

31 reports of sexual abuse within tennis between 2013 and 2018. (Docs. 108-10,

108-11). The issue has spawned federal legislation like the Safe Sport Authorization

Act of 2017 with the goal of creating oversight for the USOC and NGBs while also

implementing policies and procedures to prevent sexual abuse. 36 U.S.C. §

220541(1)(B). Defendants have acknowledged that sexual relationships between

coaches and players were historically prevalent in tennis, and USTA acceded to a

prohibition on those relationships by 2017 because the power imbalance in the

athlete-coach dynamic creates substantial risk for abuse. (Doc. 95-5, p. 69; Doc.

98-7). To prevent this sort of abuse, USTA’s Safe Play program provides that adults

should not be completely alone with players who are minors. (Doc. 95-5, p. 59).5

With the risk of sexual misconduct by coaches sharply defined, Defendants

undertake the USTA Player Development Program, recruiting top-performing

American athletes to train at USTA facilities under coaches employed and assigned

to them by USTA. (Doc 95-3, 11:24–12:6; Doc. 98-1, ¶¶ 2–13; Doc. 126-1, ¶¶ 1–2).

A USTA coach recruited McKenzie into the program when she was 12 years old.

(Doc. 126-1, p. 4). She received significant financial support and grants while in the

program. (Id. at pp. 6–10). When McKenzie returned to the training program in

2018 after an extended time away to rehab a shoulder injury, she understood that

her continued participation in it, including access to USTA’s support and

resources, hinged on her ability to return to competition and perform. (Id. ¶ 5; Doc.

104-4, pp. 9, 34–35). Her coaches—including Coach Aranda—would have at least

some say in her ability to continue training with the USTA and receiving support.

(Doc. 104-4, pp. 9, 34–35). Though McKenzie was free to compete in non-USTA

tournaments and could choose to pay for her own private coach, Defendants

maintained ultimate control over her participation in USTA competitions and their

training program, including what resources would be available to her in the future

5 This is not to say that that Defendants owe the same duty to minor players as they do to adults,

but rather to show Defendants are aware that abuse by coaches at any age requires seclusion.

(See Doc. 108-8).

and who would be selected to coach and train her. (Id.; Doc. 98-1, ¶ 13; Doc. 95-3,

14:18–22). She continued her participation in the program until the pandemic

shutdowns in 2020, after which she received a phone call from Kathi Rinaldi telling

her she would not be invited back. (Doc. 126-1, ¶¶ 6–8).

Pairing players with coaches to train in this environment creates a zone of

foreseeable risk of sexual abuse. (E.g., Doc. 95-5, p. 59; Doc. 97-3, p. 74; Doc. 117-

1, p. 74). After all, Defendants implement their Safe Play program and endeavor to

have “all practices conducted by USTA coaches [] videotaped” in an open facility

for a reason. (Doc. 95-3, 15:13–14). Since USTA controls both the facility and its

coaches for those athletes in its training program, players like McKenzie rely on

Defendants to take reasonable steps to prevent opportunities for abuse from

presenting themselves during training sessions and events, like limiting instances

in which a coach and player can be alone and wholly unmonitored, which is the

hallmark of special relationship. See Showalter, 6 So. 3d at 666–67. In this case

specifically, the special relationship imposes on Defendants only a duty of

reasonable care to protect players in their training program from sexual abuse by

their coaches—a foreseeable harm. See id.; Gross, 758 So. 2d at 88; T.W. v. Regal

Trace, Ltd., 908 So. 2d 499, 506 (Fla. 4th DCA 2005) (citing Gross in finding

landlords have a duty to protect their tenants from sexual assault). The

relationship does not impose a heightened duty to make every effort so that abuse

is impossible. See Saunders, 361 So. 3d at 370. Accordingly, Plaintiff’s Motion for

Partial Summary Judgment (Doc. 98) is granted insofar as it is consistent with this

opinion.

In seeking summary judgment rejecting this claim, Defendants again

contend they exercised ordinary care by implementing the Safe Play program and

the other supervisory mechanisms in place at the National Campus. (Doc. 96, pp.

26–27). A jury could reasonably think so. But issues of breach and causation are

for the jury to decide. McCain, 593 So. 2d at 504. At this stage, Defendants do not

present sufficient undisputed evidence—not even the statements of McKenzie’s

expert lauding USTA’s supervisory measures—that could keep a reasonable jury

from concluding Defendants breached their duty by leaving unfettered Coach

Aranda’s ability to schedule practice on a secluded court he knew lacked a working

camera at a time when no one else would be around three days in a row, and that

he would not have been able to assault McKenzie but for those lapses. (Doc. 104-

4, pp. 5, 12, 80). As such, Defendants’ Motion for Summary Judgment (Doc. 96) is

denied as to Count IV.

D. Count V - Punitive Damages

“A defendant may be held liable for punitive damages only if the trier of fact,

based on clear and convincing evidence, finds that the defendant was personally

guilty of intentional misconduct or gross negligence.” FLA. STAT. § 768.72(2). To be

“clear and convincing,” evidence “must be of such weight that it produces in the

mind of the trier of fact a firm belief or conviction, without hesitancy, as to the

truth of the allegations sought to be established.” Acevedo v. State, 787 So. 2d 127,

130 (Fla. 3d DCA 2001). Punitive damages may be imposed on a corporation for

conduct of an employee only if an employee was personally guilty of intentional

misconduct or gross negligence and (1) “the employer, principal, corporation, or

other legal entity actively and knowingly participated in such conduct,” (2) “the

officers, directors, or managers of the corporation knowingly condoned, ratified,

or consented to the conduct,” or (3) “the employer, principal, corporation, or other

legal entity engaged in conduct that constituted gross negligence and that

contributed to the loss, damages, or injury suffered by the claimant.” §

768.72(3)(a)–(c). “To avoid summary judgment, Plaintiff must point to evidence

that would allow a reasonable jury, applying the clear and convincing standard, to

find that punitive damages are appropriate.” Thelen v. Somatics, LLC, 8:20-CV-

1724-TPB-JSS, 2023 WL 3338221, at *7 (M.D. Fla. May 5, 2023).

Here, there is no dispute that Coach Aranda engaged in intentional

misconduct. According to McKenzie, Defendants’ officers, directors, and managers

knowingly condoned, ratified, or consented to the conduct through fostering a

culture of sexual misconduct between coaches and players—resisting policies that

restrict relationships between them for years and seeking to silence victims of

sexual misconduct. (Doc. 108, pp. 23–25). The USTA knew about sexual

misconduct occurring within the sport prior to McKenzie’s assault. (Doc. 108-10).6

6 One of those incidents seems to have involved Douglas Booth, former USTA Florida Executive

Director, who resigned in late 2017. (Doc. 108-11, p. 1). It is unclear from the record how many

of those incidents involved USTA coaches because incidents involving known USTA

employees (i.e., Booth and Coach Aranda) have their club affiliation denoted as “unknown”

In 2012, the USTA’s managing director wrote a letter to the USOC opposing

mandatory minimum Safe Sport standards for all NGBs, expressing concerns

about “unfunded mandates” and increased liability exposure. (Doc. 98-4). In 2014,

the USTA’s executive director and chief operating officer spoke before the USOC

to oppose a single mandatory national body overseeing abuse prevention and

suggested an NGB be allowed to opt out if the NGB meets the Safe Sport standards

on its own. (Doc. 98-5, p. 3). Marking up the USOC’s draft minimum standards,

the USTA’s Director of Ethics and Safe Sport said a restriction on romantic

relationships between players and coaches “is not realistic in tennis” because

“MANY female players date their own or other coaches[.]” (Doc. 98-7, p. 1). Pam

Shriver, a high-profile Olympic gold medalist for tennis and former president of

the USTA’s charitable foundation (the “Foundation”), has spoken out publicly

against these relationships as abusive and harmful, having entered one herself

when she was 17 years old. (Doc. 108-5, 17:5–9, 25:1–25, 29:6–25). As an expert

on tennis, Shriver testified the problem has been wide-spread and she encountered

abusive coaching relationships “each and every year on the [Women’s Tennis

Association] Tour” since she began in 1978, saying she witnessed “too many to

count.” (Id. 32:24–25, 33:17–22, 37:25). At a Foundation charity event, USTA’s

senior executive and corporate counsel, Staciellen Mischel, approached Shriver to

caution her against speaking out about her personal experience with abuse by

on Defendants’ disclosed list of incidents. (Id.). The list also does not indicate whether the

victims were players.

coaches within tennis, including a “warning” against speaking with McKenzie’s

counsel in this case. (Id. 52:15–24, 64:13–16). Shriver took this to mean, “Don’t

say too much.” (Id. 64:16).

According to McKenzie, Defendants did not ban sexual relationships

between players and coaches until 2019—a claim based solely on an email to USTA

staff that year from Martin Blackman, then-USTA PD general manager,

prohibiting relationships between athletes and all staff members “effective

immediately.” (Doc. 108-8). But there is no dispute that USTA had adopted a policy

by 2017 prohibiting coaches and players from engaging in sexual relationships,

more than a year before McKenzie’s assault. (Doc. 95-1, pp. 322–23, 334; Doc. 95-

5, p. 69). That policy unambiguously applies to USTA coaches. (Doc. 95-1, pp. 322–

23; Doc. 95-5, pp. 50–51) (“Covered Individual”). McKenzie cites the 2019 email

as proof Defendants “failed to implement protections for athletes” and “fought to

protect the ability of coaches to abuse their positions of power to manipulate young

and impressionable athletes.” (Doc. 108, p. 25).

In the end, McKenzie presents evidence sufficient to create a triable issue of

fact on punitive damages. For example, McKenzie establishes that Jane Doe had

personal knowledge of Coach Aranda’s propensity to engage in sexually abusive

conduct, and she failed to report these tendencies after assuming a managerial role

that provided for mandatory reporting of sexual misconduct. A reasonable jury

could conclude that Jane Does’ failure to report Coach Aranda’s misconduct and

the flaws in security at the USTA facility would have led Coach Aranda (or any

other USTA coach) to believe he could make the sexual advances he did during a

training session without severe consequences. And USTA did not ban relationships

between athletes and all its staff members until 2019, even after the NGB had

adopted a policy by 2017 prohibiting coaches and players from engaging in sexual

relationships. (Doc. 95-5, p. 69; Doc. 108-8). McKenzie thus presents enough

evidence for a jury to conclude that a culture of sexual misconduct between coaches

and players existed in the training program for Defendants to foster. See

Speedway SuperAmerica, LLC v. Dupont, 933 So. 2d 75, 91 (Fla. 5th DCA 2006).

And USTA counsel’s approach and message to Shriver certainly looks like an

untoward attempt to intimidate her and may be construed by the jury as being

aimed at silencing victims of abuse by coaches. See Termilus v. Marksman Sec.

Corp., 15-61758-CIV, 2016 WL 6212990, at *11 (S.D. Fla. June 27, 2016), report

and recommendation adopted as modified, 2016 WL 6237264 (S.D. Fla. Sept. 1,

2016). Punitive damages are only tenable for “truly culpable behavior to express

society’s collective outrage.” Bistline v. Rogers, 215 So. 3d 607, 609 (Fla. 4th DCA

2017) (cleaned up). McKenzie presents sufficient evidence from which a jury may

conclude an award of punitive damages is warranted. That being the case,

Defendants’ Motion for Summary Judgment (Doc. 96) is denied as to Count V.

IV. CONCLUSION

Accordingly, it is ORDERED that:

1. Defendants’ Motion for Summary Judgment (Doc. 96) is DENIED.

2. Plaintiffs Motion for Partial Summary Judgment (Doc. 98) is

GRANTED consistent with this opinion.

DONE AND ORDERED in Orlando, Florida on February 16, 2024.

<.

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties