In separate motions to dismiss filed in a Nevada federal court Wednesday, the Las Vegas Aces and WNBA argue that Los Angeles Sparks forward Dearica Hamby’s employment retaliation lawsuit is deficient and should be tossed.
As Sportico detailed last month, Hamby accuses the Aces and WNBA of unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 and a Nevada employment statute on the basis of her pregnancy.
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Hamby claims the Aces traded her on Jan. 21, 2023, because she was pregnant. That same day on Instagram, Hamby posted critical comments about the team’s “discriminatory trade.” In response, the Aces allegedly (among other accused acts) told their players and staff to stop communicating with Hamby, tried to obtain Hamby’s medical records and refused to invite her to attend an Aug. 25, 2023, White House ceremony with Vice President Kamala Harris where the team celebrated the Aces winning the WNBA championship.
As to the WNBA’s alleged misdeeds, Hamby claims the league retaliated by failing to adequately investigate her workplace allegations and by declining to extend her WNBA marketing agreement.
The Aces point to what they say are flaws in Hamby’s complaint.
For starters, the team insists Hamby fails to allege the unnamed Aces retaliators had prior knowledge of her Instagram post. Thus, the Aces maintain, Hamby neglects to explain how there could be causation between the post and any retaliatory acts.
The Aces further maintain that too much time passed between Hamby’s post and allegedly vindictive acts for there to be a causal link. For example, the White House visit took place about seven months after the post.
The Aces also challenge Hamby on specifics. The team notes Hamby “does not identify the person(s) with the Aces who issued this supposed directive” to cease communications, “nor does Hamby identify the players who received the directive and/or stopped communicating with her as a result of the directive.”
Along those lines, the Aces assert that even if there was some sort of directive, it more likely reflected an ordinary business practice where players and staff no longer communicate with a player who had become an employee of another, rival team. Other possible reasons mentioned were players and staff “did not wish to communicate with [Hamby] in general,” or they stopped communicating “because of her affiliation with her boyfriend who is rumored to have been verbally and physically abusive to Hamby.”
The Aces also rebuke the possibility that Hamby losing the chance to meet Harris constituted retaliation. Hamby, the team argues, doesn’t offer facts “establishing but-for causation” tying the post to the White House invitation. Also, the team contends the visit was likely scheduled to efficiently coincide with the Aces already being in D.C. that day to play the Washington Mystics while Hamby and Iliana Rupert—another former Aces championship player who didn’t meet with Harris—”had a game against each other in Atlanta that same day.”
The team also rejects the idea that Hamby being traded from one WNBA team to another constituted an illegal act. Player trades, the Aces allude, are part of the business of pro sports. This trade allegedly made basketball sense, the Aces maintain, since Hamby was their “highest paid non-core player,” and by trading her and releasing another player, the Aces acquired three new players (Candace Parker, Cayla George and Alysha Clark) and re-signed Kiah Stokes.
Further, the Aces maintain that Title VII case law doesn’t support the use of trade as evidence of employment discrimination. The act of trading Hamby’s contract from one team to another was allowed by a collective bargaining agreement negotiated by Hamby’s union, the WNBPA. Her pay wasn’t cut, she wasn’t demoted, and she wasn’t relegated to a new kind of job. Hamby went from playing basketball for the Aces to playing basketball for the Sparks.
The Aces also reject Hamby’s argument that being traded from a two-time WNBA champion franchise to a struggling franchise and possibly losing out on personal marketing opportunities, which the Sparks stress “are handled through their agents, not the team,” count as legal harms. In a similar vein, the Aces maintain that even if Hamby must pay higher taxes and endure a higher cost of living as a Sparks player—California has among the highest state income taxes and cost of living figures whereas Nevada has no state income tax and Vegas is a comparatively cheaper place to live than LA—those aren’t the kinds of harms protected by anti-discrimination laws.
To that point, the Aces insist if Hamby prevails on a taxes and cost-of-living argument, the ruling will cause headaches for employers with employees in offices in different states.
“It would eviscerate the requirement for adverse employment actions in any transfer case,” the Aces insist, “as any transfer could involve different state or local taxes (income, property, sales, etc.) and associated laws that are more or less favorable.”
The WNBA raises analogous arguments against Hamby. The league points out that Hamby’s marketing agreement “was for a fixed term with a set expiration date.” The WNBA was under no contractual obligation to sign Hamby to another agreement.
The WNBA also maintains that Hamby wasn’t a league employee. She was an employee of the Aces and, like other players who signed marketing deals with the league, a WNBA independent contractor. Her claims under Title VII and accompanying state law require her to be an employee.
The league also asserts that an allegation of a failure to investigate and properly remedy an alleged harm aren’t adverse employment acts. In addition, Hamby allegedly failed to meet a procedural requirement that, before suing the WNBA over the marketing contract, she file a charge of discrimination with the Equal Employment Opportunity Commission or the Nevada Equal Rights Commission. “Her time to do so,” the WNBA writes, “has expired.”
Hamby’s attorneys will have the chance to challenge the Aces’ and WNBA arguments. The case is before U.S. District Judge Andrew P. Gordon. The parties could reach an out-of-court settlement at any time.
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