Penny Toler wants court to reconsider after judge sends former Sparks GM’s lawsuit to arbitration – Press Enterprise

The civil lawsuit Penny Toler filed against the L.A. Sparks in March is proceeding, scheduled to be heard in arbitration at a date to be determined. Her attorney, however, hasn’t given up hope that parts of it may yet go before a jury.

Toler alleges that she was wrongfully fired by the Sparks, for whom she scored the WNBA’s first points and played for three seasons before retiring in 1999 to become their general manager.

She held that position until she was fired on Oct. 4, 2019, the day after ESPN reported on Toler’s use of the n-word during a locker room address to the team a couple of weeks earlier, following a loss in a semifinal playoff game.

Toler, who is Black, claims the Sparks dismissed her not because of her use of the epithet, which she said did not offend players.

She claims her firing instead was retaliation for reporting workplace issues stemming from an alleged extramarital affair between Sparks managing partner and governor Eric Holoman and Christine Simmons, the Sparks’ former president. Also, Toler’s lawsuit claims she was rebuffed when she pressed for an investigation after hearing allegations of sexually inappropriate conduct by the team’s former head coach Brian Agler, who resigned from the position in November 2018 before becoming the head coach of the WNBA’s Dallas Wings a month later.

The team and the coach deny Toler’s allegations.

In a statement, the Sparks – who have yet to fill the vacant GM position – insisted her claims will be rejected in court.

“Penny Toler has chosen to abuse the legal system to file smears against the Sparks, Ms. Simmons, and Mr. Holoman,” the team said. “Not only are her claims inflammatory, they are filled with vicious falsehoods. She has a long-standing agreement to arbitrate any matter, and she refused so that she could spread these lies as far as possible. We are confident that once the matter is in arbitration and the facts are presented, all of her claims will be seen for what they are and rejected.”

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Likewise, Agler – who is described in the lawsuit as “the male head coach of the Sparks” between 2015 and 2018 – denied Toler’s assertions, issuing his “categorical denial of the false allegations referenced in the lawsuit” in a text message on Thursday.

“The terminated employee makes a number of baseless and fabricated allegations against my actions as a coach, colleague and employee,” Agler said. “Some of the allegations are salacious and defamatory in manner. I deny each of these untrue accusations.

“I left the organization, on my own accord, in good standing and was thanked by ownership, front office staff and by players alike for my efforts in helping the team achieve the utmost success and instilling a culture that develops champions.”

But Toler believes her dismissal represents unequal treatment.

“The only course of action was to fire Penny Toler,” said Dawn Collins, Toler’s attorney, this week by phone. “And the men in the workplace who were creating an uncomfortable workplace, they were not fired. It seems clear that there was some type of different treatment.”

In August, the Sparks successfully argued that all of Toler’s allegations are covered by the arbitration clause of her contract. But Collins disputes the notion, and on Oct. 30 filed a petition asking Los Angeles Superior Court for permission to appeal the decision to send the case to arbitration.

Collins contends the contractual agreement to arbitrate covered only some of Toler’s claims, but not those related to allegations of gender discrimination, retaliation and unpaid wages.

“Those are fundamental statute claims that, frankly, should be heard by a jury and should not be adjudicated in a private conference room,” Collins said.

The court isn’t likely to change its mind about whether the case belongs in arbitration, said Kelsey Trainor, an attorney and sports writer who has been following the case.

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“Arbitration provisions are generally upheld, it’s really hard to get out of them because you contractually agree to them,” Trainor said by phone, noting that the public won’t be privy to evidence brought forward in arbitration as it would be if the case was argued in open court.

Collins acknowledged the entirety of the case is likely to end up in arbitration, and if it does, promised “we’ll litigate just as zealously if we were in front of a jury” in an effort to seek compensatory damages and lost earnings.

Toler alleges that when she was fired with six months left on her contract, Holomon also asked her to quit, suggesting that if she did, she’d receive all of her compensation instead of only the four days of pay and unused vacation allotment she said she received, and that he allegedly told her to “think about your legacy.”

“I said, ‘I am thinking about my legacy,’” said Toler, who worked with four team owners during her 20-year tenure as the Sparks’ GM, during which time they made the playoffs 18 times and reached the WNBA Finals five times, winning three championships.

“No. 1, I don’t know how to quit, and No. 2, I didn’t do anything wrong, and No. 3, I’m not gonna let you bully me.’ ”

Toler also said that during the meeting, Holomon told her the ESPN story was not the reason for her dismissal: “He said, ‘We were thinking about it.’ And I said, ‘Thinking about it?’”

Toler alleges her firing was a result of a conversation she’d had with Holoman complaining about an alleged extramarital affair between him and Simmons, which she contends made her job harder and exposed the Sparks to liability.

Trainor says Toler will have to prove the link she’s alleging between her reporting undesirable workplace conditions and her firing. If she’s able to do that, the Sparks would respond by identifying a legal, non-retaliatory reason for her firing – in this case, her use of the n-word.

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“In general, when somebody uses that word at work, that’s totally a fireable offense,” Trainor said, noting that Toler’s contract stated that she could be fired for “conduct which is materially injurious to the Sparks monetarily or otherwise.”

“Using that word,” Trainor said, “certainly would have a negative impact on the Sparks’ monetary reputation.”

Toler insists there’s context missing from that argument, saying she believes that in Black culture there’s a difference between using the word ending in an “a” and the version ending in an “er.”

“It could mean something different depending on the context you use it,” Toler said.

Collins said that distinction is another reason the case should go before a jury.

“A central issue in this case is the use of the n-word and if anyone was offended,” Collins said. “… I believe there’s some inherent unfairness in having this case go to arbitration when the vast majority of private judges are older white men and one of the central issues in this case is the use of the n-word, how it’s used and how it’s heard, how it’s used in popular culture and how it’s used among African Americans.

“That’s an issue for 12 people from the community to hear.”