Underage Beach Sex Case Heads to State Court

     ORLANDO (CN) – State court is a better venue for claims that Volusia County and its beach officials fostered an environment where underage lifeguards felt coerced into having sex with their supervisors, a federal judge ruled.
     While working as a lifeguard for the Volusia County Beach Patrol in 2008, 17-year-old Ashley Drury allegedly felt coerced into having sex with her three supervisors because it was “part of the culture” and “a condition for employment.” Two of the supervisors, Jecoa Duane Simmons and Robert Paul Tameris, were 30 and 43 years old at the time; “senior lifeguard” Christian Duarte was also 30.
     In August 2010, she filed an 11-count complaint against those men, as well as the county and four local officials for battery, negligent hiring, constitutional violations, conspiracy, intentional infliction of emotional distress and negligent retention.
     By the following spring, Drury’s claims remained only against the three men with whom she had alleged sexual activity and one county official, Beach Patrol director Kevin Sweat.
     Drury filed an amended nine-count complaint against the remaining defendants, alleging three claims under the U.S. Constitution and six state-law claims.
     Faced with the defendants’ latest motion for summary judgment, U.S. District Judge John Antoon said Drury could not sustain the federal claims. And without those counts, the state-law claims cannot be pursued in federal court.
     “In sum, construing the summary judgment evidence in the light most favorable to plaintiff, as a matter of law, Tameris, Simmons, and Duarte were not acting ‘under color of law’ at the time of their alleged sexual encounters with plaintiff,” Antoon wrote.
     Sweat and the County received the same determination.
     “Here, Sweat is not alleged to have personally participated in the alleged constitutional violations, so the only potential basis for supervisory liability is a causal connection between Sweat’s actions and the alleged constitutional violation,” Antoon wrote.
     “Plaintiff contends that the remedial action the county and Sweat should have undertaken was ‘a training regime for minor lifeguards regarding sexual harassment and means of reporting violations,'” he added. “However, plaintiff has not established a basis for municipal or supervisory liability.”
     Ultimately, Antoon decided that none of the “inappropriate behavior by adult Beach Patrol employees … identified here … rises to the level of establishing deliberate indifference by the county or Sweat to a need for better training to prevent sexual activity between adult employees and minor lifeguards.”
     “Although plaintiff has not prevailed on her constitutional claims, the allegations regarding the actions of these public employees are certainly troubling,” the 37-page decision states. “As another court has phrased it, the described conduct, ‘while reprehensible and to be condemned in the strongest possible terms, was [perhaps] a private tort committed by a person acting in a purely private capacity.’ Moreover, the conduct may amount to violations of Florida’s criminal statutory rape provision, which at least one of the three defendants has been charged with transgressing. However, ‘the contours of [Fourteenth Amendment substantive rights] do not turn on the intricacies of state law,’ and absent evidence, at a minimum, that Tameris, Duarte, or Simmons used state-conferred authority in connection with these events Plaintiff’s remedy, if any, lies beyond the United States Constitution.” (35)
     Antoon dismissed Drury’s six state-law claims without prejudice so she can pursue them in state court.
     Pending motions were denied as moot.

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