Counselor Will Get to Rebut Sex Assault Case

     (CN) — A guidance counselor was deprived of the chance to defend himself against sex abuse charges after his employer settled claims arising from the same case, a California appeals court ruled.
     As recounted in court documents, the case stems from an incident Jazmyne Goodwin, a student at Los Angeles Southwest College, says occurred between she and her guidance counselor, Igor Daza, on May 3, 2011.
     Goodwin claims she went to Daza’s office to talk about classes and possible visits to colleges to get her bachelor’s degree, but after she arrived, he closed the door, took her cellphone from her, and flipped through her photos without her consent.
     “You take a lot of pictures,” Daza is alleged to have said. “I like the one with your nipple ring. I am going to send the picture to myself.”
     Upset, Goodwin told Daza not to send the photo and got up to leave, she says.
     Goodwin claims Daza then grabbed her wrist and pulled her toward him.
     “Are you a freak?” Daza is alleged to have said. “I heard Aries are freaks.”
     As Goodwin pushed Daza away, he said, “If you don’t want me to touch you, maybe you would like me to lick you,” according to the complaint.
     Though Goodwin said “No, I want to leave,” and that she had a boyfriend, he blocked her path; touched, caressed, and kissed her neck; placed his hand in her dress on the upper part of her breast; and asked if he could see her nipple ring, the complaint states.
     Goodwin again pushed Daza away as he gripped her hair, she claims.
     As she left the office, Daza followed her and said he did not notice her butt was that big, and that she should really think about going on a date with him, according to the complaint.
     While Goodwin walked to her car, Daza continued to follow her, and she was shocked to see he had sent the photo of her nipple ring to his own cellphone, the complaint states.
     Daza resigned from his job about a year after Goodwin’s complaint to authorities led to a criminal investigation.
     Goodwin sued Daza and the Los Angeles Community College District for sexual harassment and other claims, but the district ultimately settled without admitting liability.
     Yet because the district refused to defend Daza, he filed a cross-complaint against it, though Goodwin had dismissed all her claims against him and the district with prejudice.
     But the trial court refused to look beyond the allegations in the main lawsuit to find that the alleged sexual assault fell outside the scope of Daza’s employment. But the California Second District Appeals Court reversed the lower court’s ruling Friday.
     “There is no dispute the district employed Daza as a guidance counselor or that Goodwin sought his services in that capacity,” Judge Madeleine Flier wrote for the three-judge panel. “The issue is whether Daza sexually assaulted her when she visited him in his office. If he did, as Goodwin alleged, he was acting outside the scope of his employment. If he did not, as Daza claims, he was acting within the scope of his employment.”
     The judge later added: “any other conclusion would have unsettling consequences in this case. First, it would deprive Daza of a factual determination of whether Goodwin’s claims are true. Because the district settled with Goodwin without admitting liability, Daza was unable to rebut Goodwin’s allegations in the main lawsuit. Limiting him at this stage to Goodwin’s serious — and as yet unproven — allegations would once again deprive him of that opportunity. Second, it would place the fate of Daza’s reimbursement claim solely in Goodwin’s hands — the very person accusing him of sexual assault. And finally, it would encourage employers to settle with third parties without admitting liability in order to insulate themselves from later claims.
     Daza’s lead counsel, Marilyn Smith in Pasadena, Calif.; said the case has “wide-reaching implications for all public employees, so I appreciate that it is receiving press coverage.”
     “It was also a tough battle for Mr. Daza, who has been vindicated in his quest for the chance to prove his case and not be shut out by the maneuverings of the district and the trial court’s improper decision,” Smith added.
     The district’s attorneys, Daniel Berman, Shannon Benbow, and Brandon Murphy with Wood, Smith, Henning & Berman in Los Angeles, did not respond to requests for comment Monday.

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