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Memorandum of Findings
In the Matter ofA.E.

 

Ohio University
University Equity and Civil Rights Compliance
Investigator Jessica L. Cook, M.A., .D. 3:6

December 15, 2016

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TABLE OF CONTENTS
i.

Table of Contents ............................................................................... 2

ii.

Introduction ....................................................................................... 4

iii.

Findings of Fact, Analysis, and Conclusions ..................................... 6

I.

Complainant #1 .................................................................................. 6
a. Findings of Fact – Complainant #1................................................ 7
i. December 3-4, 2015, Events at Local Establishments......... 8
ii. December 4, 2015, After Leaving Tony’s Tavern ............... 19
iii. Events Leading up to the Report to ECRC ........................ 25
b. Analysis and Conclusions – Complainant #1 .............................. 28
i. Non-Consensual Sexual Contact....................................... 28
ii. Quid Pro Quo Sexual Harassment .................................... 32
iii. Sexual Harassment by Hostile Environment .................. 34

II.

Complainant #2 ............................................................................... 36
a. Findings of Fact – Complainant #2 ............................................. 37
b. Analysis and Conclusions – Complainant #2 .............................. 45
i. Non-Consensual Sexual Contact....................................... 45
ii. Quid Pro Quo Sexual Harassment ................................... 50
iii. Sexual Harassment by Hostile Environment ...................51

III.

Complainant #3 ............................................................................... 53
a. Findings of Fact – Complainant #3 ............................................. 53
b. Analysis and Conclusions – Complainant #3 .............................. 58
i. Sexual Harassment ........................................................... 58

IV.

Complainant #4 ............................................................................... 61
a. Findings of Fact – Complainant #4 ............................................. 62
b. Analysis and Conclusions – Complainant #4 .............................. 63

V.

Complainant #5................................................................................ 64
a. Findings of Fact – Complainant #5 ............................................. 64
b. Analysis and Conclusions – Complainant #5 .............................. 66
i. Sexual Harassment ........................................................... 67

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VI.

Complainant #6 ................................................................................ 71
a. Findings of Fact – Complainant #6 .............................................. 71
b. Analysis and Conclusions – Complainant #6 .............................. 73

VII.

Analysis Given the Totality of the Circumstances ........................... 74

VIII. Recommendation Given the Totality of the Circumstances ............ 78

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INTRODUCTION
This investigation was initiated as the result of two reports of possible sexual
misconduct filed with University Equity and Civil Rights Compliance (hereinafter
“ECRC”) on March 24, 2016. In those complaints, Complainant #1 and Complainant #2
(graduate students at Ohio University) allege that Respondent (a faculty member at Ohio
University) engaged in non-consensual sexual contact and sexual harassment at an endof-the-semester celebration on December 3-4, 2015.

During the course of the

investigation, ECRC obtained information about possible violations of Ohio University
Sexual Misconduct Policy 03.004 involving additional complainants. These additional
complainants’ allegations stem from as far back as 2003. In total, six (6) potential
complainants were identified. 1 This memorandum addresses each of these allegations in
turn.
In addition to interviewing the Complainants, the Respondent, and the witnesses,
the investigation included review of the following information: 1) review of ECRC files to
determine whether there had been any previous allegations of sexual misconduct against
Respondent; 2) review of information reported to the Athens Police Department, and;
and 3) review of documents submitted by the Complainants, the Respondent, and the
witnesses.
As a final step in the investigation, the Respondent and each complainant were
provided an evidence packet relating to the specific complainant’s allegations to review.
The Respondent and each complainant were given the opportunity to provide any

Complainant #4 has asserted no allegations of wrongdoing against Respondent, as will be explained in
more detail below.

1

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response that they wished the Investigator to consider before the Investigator concluded
the investigation and issued her Memorandum of Findings.

The Investigator has

considered all responses received from the Respondent and any complainant.
In evaluating alleged violations of Ohio University Policy 03.004, Ohio University
Equity and Civil Rights Compliance uses a preponderance of the evidence standard. The
preponderance of the evidence standard means that the evidence is sufficient to make a
finding that it is “more likely than not” that a particular fact is true, and with respect to
alleged violations of policy, the preponderance of evidence standard means the evidence
is sufficient to make a finding that it is “more likely than not” the alleged policy violation
occurred.
As explained more fully below, having considered the evidence obtained in the
course of this investigation, the Investigator concludes that the preponderance of
evidence supports a finding that Respondent violated University Policy 03.004 as to
multiple complainants. Specifically, the evidence supports a finding that Respondent
engaged in non-consensual sexual contact, sexual harassment by quid pro quo, and sexual
harassment by hostile environment as to Complainant #1; non-consensual sexual contact,
sexual harassment by quid pro quo, and sexual harassment by hostile environment as to
Complainant #2; sexual harassment as to Complainant #3; and sexual harassment as to
Complainant #5. However, the Investigator also concludes that the preponderance of the
evidence does not support a finding that Respondent violated Policy 03.004 with respect
to Complainant #4 or Complainant #6.

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FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS
This memorandum will now address the specific allegations stemming from the
reports of Complainant #1, Complainant #2, Complainant #3, Witness R (as it relates to
Complainant #4 2), Complainant #5, and Complainant #6.
I.

Complainant #1

On March 24, 2016, ECRC received a complaint in which a graduate student
(Complainant #1) alleged that a faculty member (Respondent) violated Ohio University
Policy 03.004 by engaging in inappropriate conduct of a sexual nature. The allegations
pertained to events that allegedly transpired during an end-of-the-semester class
gathering at two local bars in Athens on December 3-4, 2015. Complainant #1 alleged
that (1) Respondent touched areas of Complainant #1’s body in a sexual manner, without
consent; (2) that Respondent kissed Complainant #1 without her consent; and (3) that
Respondent made verbal statements of a sexual nature to Complainant #1 about her
attractiveness and sexuality. Complainant #1 was enrolled in one of Respondent’s courses
at the time. Complainant #1, because she was a graduate student in Respondent’s class,
perceived that refusing Respondent’s advances would impact not only her grade but also
her educational opportunities at Ohio University.

ECRC began referring to “Complainant #4” as “Complainant #4” when the identity of this student was not
yet known to ECRC. “Complainant #4” did not file a complaint against Respondent and she did not allege
wrongdoing on the part of the Respondent. However, because ECRC had previously referred to this
individual as an unknown “Complainant #4”, the Investigator continues to identify this person as
“Complainant #4” to avoid confusion in this memorandum.
2

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a. Findings of Fact – Complainant #1
Having fully considered all of the information and evidence obtained in the course
of the Investigation, 3 the Investigator finds that the evidence supports a conclusion that
the following facts are more likely true than not:
1.

Complainant #1 is a graduate student at Ohio University.

2.

Respondent is a faculty member at Ohio University.

3.

Complainant #1 was enrolled in a course taught by Respondent in Fall Semester
2015. 4

4.

Respondent was the sole instructor for the first seven weeks of the course. For the
remainder of the course, the students were divided into three subsections. There
were three co-instructors (Respondent, Witness B, and Witness C) for this latter
portion of the course.

However, as Respondent noted, “… [the subsections]

technically remain[ed] a single class...”
5.

Respondent was the instructor of record for the overall course.

6.

Respondent ultimately submitted the grades for all students with input from his
co-instructors about the last seven weeks of the class.

7.

Complainant #1 attended the first seven weeks of the course that were taught by
Respondent, and she then attended Witness C’s subsection in the last seven weeks
of the course.

3

E.g., the statements of Complainant #1, Respondent’s statements, the witnesses’ statements, the evidence
relevant to Complainant #1’s allegations, and the Complainant’s and the Respondent’s respective responses
to the evidence packet provided to them for review.
According to the Ohio University Academic Calendar, Fall Semester 2015 began on August 24, 2015, and
ended on December 12, 2015.

4

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8.

On Monday, November 30, 2015, Respondent sent an email to all students enrolled
in the course and the two co-instructors regarding an end-of-the-semester
gathering. In this email, Respondent invited the students and co-instructors to
meet at Jackie O’s Pub to celebrate the end of classes. The email said that the group
would enjoy “soda water or other [beverages]…” and the co-instructors “…should
seriously consider joining [them].”

9.

Complainant #1 felt compelled to attend the gathering at Jackie O’s Pub because
(1) Complainant #1 perceived that Respondent seemed to favor students that he
interacted with outside of the classroom, and (2) some of the course content talked
about establishing professional relationships with faculty and the importance of
building a strong “network” of lasting relationships with colleagues.

10.

Complainant #1 was a new graduate student. Complainant #1 felt pressure to
socialize with faculty outside the classroom as she sensed that there was a link
between these social outings and a graduate student’s support and success in the
academic program.
i. December 3-4, 2015, Events at Local Establishments

11.

On December 3, 2015, Complainant #1 arrived at Jackie O’s approximately five or
ten minutes before 7:00 p.m.

12.

When Respondent arrived, he ordered food and a round of drinks for everyone.

13.

The following individuals were present at Jackie O’s:

Complainant #1,

Complainant #2, Witness B, Witness C, Witness D, Witness E, Witness G, Witness
H, Witness I, Witness J, Witness K, Witness L, Witness NN, and Respondent. 5
Witness F was also present at Jackie O’s, but he was not seated with the group. Furthermore, Witness H
left Jackie O’s for a brief period of time to go pick up Witness I. When Witness H and Witness I returned
to Jackie O’s, the group was preparing to move to Casa Nueva.

5

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14.

Respondent purchased approximately $45 in food and $45 in drinks at Jackie O’s.
This included two rounds of drinks for the group. Respondent’s bank records
indicate that Respondent was charged $111.34 for food and drinks at Jackie O’s
(this total included approximately a 20% tip).

15.

Most of the group were drinking alcoholic beverages.

16.

Complainant #1 was primarily drinking gin and tonics.

17.

Complainant #1 recalled that Witness D said something about wanting a beer
rather than a liquor drink. Respondent told Witness D, “I have to teach you
something about taste.” Then, Complainant #2 told Respondent, “Okay, wow,
you’re an asshole.” At that point, Respondent said, “Careful. Grades are not
submitted.”

18.

Complainant #1 observed Respondent touching Complainant #2 under the table
on the knee, thighs, and back at Jackie O’s. Complainant #1 could also feel the
movement of Respondent’s arm as he was touching Complainant #2’s legs under
the table. Complainant #1 said that she did not know how to respond.

19.

The students and instructors socialized for approximately an hour to an hour and
a half at Jackie O’s. Then, sometimes between 8:00 p.m. and 8:30 p.m., Witness
B (a co-instructor for the course) left the gathering. Witness C (another coinstructor) and several students left shortly thereafter.

20. Complainant #1, Complainant #2, Witness D, Witness E, Witness G, and
Respondent remained at Jackie O’s until approximately 9:45 p.m. At that time,
the group of graduate students decided that they wanted to leave Jackie O’s and go

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to Casa Nueva. 6 Witness H and Witness I rejoined the remaining members of the
group just as the group was preparing to leave Jackie O’s. Complainant #1 invited
Witness F (who was not enrolled in the class with Respondent) to join the group as
they were leaving Jackie O’s.
21.

Complainant #1 also had a conversation with Respondent in which Respondent
said that he needed to go retrieve his car.

Complainant #1 suggested that

Respondent walk down to Casa Nueva with the students instead of going back
towards campus and retrieving his car.
22.

Upon entering Casa Nueva, it became apparent that the venue was very crowded
because of a music event. The group decided to go across the street to Tony’s
Tavern.

23.

The group arrived at Tony’s Tavern at approximately 10:10 p.m.

24.

Complainant #1, Complainant #2, Witness D, Witness E, Witness F, Witness G,
Witness H, Witness I, and Respondent were present at Tony’s Tavern. 7

25.

Tony’s Tavern had round, high-top tables near the front of the bar.

26.

The majority of the group was either standing or sitting around one round, hightop table.

27.

Respondent was seated in the corner, near the window, and with his back to the
front entrance of the bar. Complainant #1 was seated to Respondent’s right, then
Witness D, Witness H, Witness I, Witness E, and Complainant #2 in a
counterclockwise direction around the table.

Some of the students, including Complainant #2, presumed that Respondent would take that opportunity
to leave like the other co-instructors, but Respondent stayed with the group as they headed to Casa Nueva.

6

Respondent did not recall Witness E being present, but other witnesses, Complainant #1, Complainant
#2, and Witness E confirmed Witness E’s presence at Jackie O’s and Tony’s Tavern.

7

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28. Complainant #2 was seated to Respondent’s immediate left.
29.

Witness F and Witness G were moving around the venue near the bar area.
Witness G was also seated at a nearby high-top table for a portion of the evening.

30. Respondent continued to purchase alcohol for the group. Respondent estimated
that he purchased three rounds of drinks for those in attendance at Tony’s Tavern.
31.

Respondent’s bank records confirm that he was charged $71.00 at Tony’s Tavern.
Respondent estimated that approximately $60.00 was charged for drinks and the
remainder was left as a tip.

32.

In total, Respondent purchased between 5-6 alcoholic drinks for Complainant #1
over the course of the evening (including drinks at Jackie O’s and drinks at Tony’s
Tavern). Most of these drinks were gin and tonic, but Complainant #1 also drank
at least one beer.

Complainant #1 ingested this alcohol over the course of

approximately six (6) hours.
33.

By the end of the night, Complainant #1 was intoxicated. 8

34.

Respondent had two drinks at Jackie O’s and three drinks at Tony’s Tavern.

35.

By the end of the night, Respondent was intoxicated. In Respondent’s own words,
Respondent said that he “was not so intoxicated that [he] could not notice signs of
intoxication in others.”

36.

Respondent started using his hands to casually touch Complainant #1 on various
parts of her body at Tony’s Bar. 9

Complainant #1 told the Investigator that she also felt that she lacked capacity to consent to sexual contact
because she was impaired by consuming 5-6 alcoholic drinks in approximately a six hour timeframe. The
Investigator notes that Respondent has never asserted that the alleged sexual contact between Complainant
#1 and Respondent was “consensual”. Instead, Respondent denies that the sexual contact occurred.

8

Respondent denies touching Complainant #1 on any part of her body unless there was an accidental
“brush” of the shoulder while the parties were seated next to one another. The Investigator, however,

9

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37.

Most of the touching occurred under the table and out of sight.

38. In her complaint and statements to ECRC, Complainant #1 alleged that:
a. Respondent touched her, without consent, on the face, neck, hands, legs,
inner thighs, outer thighs, knees, back, lower back, arms, buttocks, and
vagina while the group was at Tony’s Tavern.
b. Respondent placed his hand between Complainant #l's jeans and
Complainant's lower back to cup her bare buttocks.
c. Respondent touched Complainant #l's buttocks over her pants on two
occasions.
d. Respondent "went up through her shirt" and touched Complainant #1's
bare back.
e. Respondent touched Complainant #1’s vagina with a "rubbing motion",
over her clothing, while she was sitting at the table with her knees slightly
apart.
39.

Complainant #1 said that she observed Respondent touching Complainant #2 on
the thighs as Respondent was also touching Complainant #1.

40. Complainant #1 told the Investigator that she was not sure how to respond to the
Respondent’s touching her when it occurred, and she explained that she was
worried that her grades or reputation might be affected if she “made a scene” in
that environment.
41.

Complainant #1 told the Investigator that she tried to communicate to Respondent
that she was not consenting to Respondent’s touch by doing the following:

concludes that Respondent’s denial is not credible based on the contemporaneous and nearly
contemporaneous reports made by Complainant to others and the fact that other witnesses observed
Respondent touching Complainant #1 in a sexual manner. This evidence is discussed in more detail below.
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a. Complainant #1 immediately changed positions when Respondent began
touching her vagina over her clothing.
b. Complainant #1 made noticeable, “uncomfortable” faces to Complainant
#2, Witness D, and Witness I when Respondent was touching her without
her consent. Complainant #1 felt that these expressions indicated her
degree of discomfort to both Respondent and others present.
c. Complainant #1 "used [Witness G] as a shield against [Respondent]" by
maneuvering so that Witness G was in between Complainant #1 and
Respondent at the bar area.
d. Complainant #1 and Complainant #2 moved book bags, purses, and coats
into Respondent’s seat when Respondent went up to the bar to place a drink
order. Complainant #1 said that she had hoped that Respondent would just
find another seat, but instead, he moved the items and sat back down in the
same seat when he returned to the table.
42.

Respondent denied touching any part of Complainant #1's body, except for
possibly “brushing” Complainant #1's shoulder when they were seated next to each
other. In his responses to the Investigator, Respondent specifically denied the
following acts:
a. Touching Complainant #1's legs, inner thighs, outer thighs, knees, hands,
upper back, lower back, arms, face, neck, buttocks, or vagina.
b. Touching Complainant #1's vaginal area on the outside of her pants.
c. Placing his hand in Complainant #1's pants to touch her bare buttocks.
d. Touching Complainant #1's buttocks at all.
e. Touching Complainant #1's bare skin at any point in the night.
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43.

During the investigation, the following individuals told ECRC that they observed
physical contact between Respondent and Complainant #1 on the night of
December 3-4, 2015: Complainant #2, Witness D, Witness E, Witness F, and
Witness I. These witnesses, whom the Investigator found credible given the level
of detail provided and the similar observations, told the Investigator the following:
a. Complainant #2 observed Respondent’s hand touching Complainant #1 on
the thighs at Tony’s Tavern.
b. Witness D saw Respondent’s hand touching Complainant #1’s leg and
buttocks at Tony's Tavern. Witness D looked under the table and saw
Respondent's hand on Complainant #1's leg. Respondent's hand was
moving. Complainant #1 made a face at Witness D that Witness D
interpreted as Complainant saying, "Oh my god ... ". Later on, as Witness D
got up from her seat, Witness D saw Respondent's hand down the back of
Complainant #1's pants. Witness D said that she could see Respondent's
wrist, but Respondent's hand "was pretty much all the way down
[Complainant #1's] pants."
c. Witness E saw Respondent’s hand touching Complainant #1's upper thigh
and leg, "near the crotch", when Witness E was getting ready to leave the
bar. Witness E described the touching as Respondent "rubbing" his hand on
those areas of Complainant #1’s body. Witness E also saw Respondent take
Complainant #1's hand and hold it.
d. Witness F saw Respondent’s hand touching Complainant #1's leg and thigh
under the table at Tony’s Tavern. Witness F said that Respondent's actions
were "in plain view".

Witness F said that Respondent was "feeling
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[Complainant #1's] thigh, up and down." Respondent had a "firm grip" on
Complainant #1's thigh, and this behavior occurred for "many minutes."
Additionally, Witness F said that Respondent took Complainant #1's hand
and held her hand for a period of time.

Witness F told ECRC that

Complainant #1 “seemed petrified” by Respondent’s contact but was sitting
silently as if she did not know how to respond.
Later in the evening, when Witness F moved from the table to the
bar, Complainant #1 went to the bar to speak with Witness F. Witness F told
Complainant #1 that he had seen what Respondent was doing under the
table and Witness F asked Complainant #1 if she was all right. Witness F
and Complainant #1 talked about Respondent "groping" 10 Complainant #1.
Complainant #1 told Witness F that Respondent had actually "put his hand
down the back of her pants." Witness F told the Investigator that
Complainant #1 was "visibly upset" when speaking about Respondent
putting his hand down the back of her pants. Witness F told the Investigator
that he then called Witness K and told Witness K that he had observed
Respondent touching Complainant #1.
e. Witness I saw Respondent’s hand touching Complainant #1's thigh, lower
back, and buttocks at Tony’s Tavern. Witness I made eye contact with
Complainant #1, and Witness I told the Investigator that when they made
eye contact, Complainant #1 had a very "uncomfortable" look on her face.
Witness I said that Respondent's hand would "kind of come and go" on

“Groping” is Witness F’s word used to describe how he and Complainant #1 characterizes Respondent’s
touching of Complainant #1 that night.
10

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Complainant #1's body. Witness I saw Respondent's hand on Complainant
#1's thigh twice and Complainant #1's lower back once. Witness I said that
it was not an "appropriate" place for Respondent's hand to be. Witness I
told the Investigator that he later observed Respondent's hand on
Complainant #1's pants with Respondent's thumb tucked in to the top of
Complainant #1's pants and the remainder of Respondent's hand "over
[her] clothes, on [Complainant #1's] butt."
44.

In addition to the direct observations of the aforementioned witnesses, Witness F
also made a contemporaneous phone call to Witness K while Witness F was
observing Respondent’s behavior at Tony’s Tavern. In this contemporaneous call,
Witness F told Witness K that Respondent was “all over [Complainant #1]” and
had "just put his hands down [Complainant #1's] pants." Witness F said that
Complainant #1 had "jumped away from [Respondent]" in response to the contact.
When Witness K received the phone call from Witness F, she was with Witness J
and Witness L.

45.

Witness N and Witness O were also present at Tony’s Tavern on the night of
December 3, 2015, although Witness O did not recall seeing Respondent at the bar.
They were participating in a dart tournament.

46.

At Tony’s Tavern, the dart area is near the back of the bar. The table at which
Respondent and the others were sitting, however, was at the very front of the bar.

47.

Witness N and Respondent spoke to each other briefly while they were waiting on
drinks at the bar, and Witness N told the Investigator that he would also
occasionally look over to Respondent’s table as he was taking a break from the dart
tournament in the back of the bar.
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48. Witness N told the Investigator that he did not observe Respondent touching any
of the individuals at Respondent’s table while Witness N was present at Tony’s
Tavern.
49.

The Investigator finds the fact that Witness N said he did not observe Respondent
touching any of the students at Tony’s Tavern while he was there is not
determinative of the allegation that Respondent touched Complainant #1, based
on the following:
a. First, Witness N left Tony’s Tavern at approximately 10:45 p.m., which was
two hours before the approximate 12:45 a.m. time when Respondent,
Complainant #1, and the group decided to leave.
b. Second, the Investigator visited Tony’s Tavern to observe the bar’s layout
which had been described to her by the parties and witnesses. Based on
having actually seen the bar’s layout, the distance between the dart area at
the back of the bar and the high-top tables at the front of the bar, and the
congested line of sight between the dart area and the high-top tables at the
front of the bar, the Investigator concludes that it would have been quite
difficult for Witness N to observe physical contact occurring underneath
Respondent’s table. As Respondent himself described to the Investigator,
there would have been multiple people (including Witness D and Witness
H) sitting or standing in Witness N’s line of sight and blocking his ability to
view physical contact underneath the tables at the front of the bar. The
Investigator further notes that Witness N’s ability to observe would have
been even less likely when the bar was occupied by additional patrons as it
was described to have been on the night of December 3-4, 2015.
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50. Witness G told the Investigator that he did not observe Respondent touching
Complainant #1 on the evening of December 3-4, 2015. Witness G stated that he
simply did not have a good vantage point to observe the alleged behavior by
Respondent. However, Witness G stated that, in the days following the December
3-4, 2015, incident, Complainant #1 told him that Respondent had “indicat[ed]
sexual interest” to Complainant that evening.
51.

Witness H told the investigator that he did not observe Respondent touching
Complainant #1 on the evening of December 3-4, 2015. Witness H explained to
the Investigator that the table was high and he could not see over the edges.
Witness H also noted that he was “not really paying attention.”

52.

In light of their statements to the Investigator, the fact that Witness G and Witness
H themselves did not observe the alleged physical contact between Complainant
#1 and Respondent does not contradict the statements of the witnesses who did
observe Respondent touching Complainant #1.

Furthermore,

Witness G’s

testimony that Complainant #1 made a semi-contemporaneous statement
regarding Respondent’s email to Complainant #1 and Respondent’s expression of
“sexual interest” in Complainant #1 on December 3-4, 2015, is further evidence of
Complainant #1’s consistent statement that Respondent expressed sexual interest
in Complainant #1 on the night of December 3-4, 2015.
53.

Accordingly, the Investigator finds that Respondent touched Complainant #1 on
the hands, legs, inner thighs, outer thighs, knees, back, lower back, arms, buttocks,
and vagina at Tony’s Tavern. The Investigator finds by a preponderance of the
evidence that Respondent touched Complainant #1. Further, the Investigator finds

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Complainant #1 was credible based on the evidence. Complainant #1’s allegations
that she was touched by Respondent were corroborated by the following evidence:
a. Respondent touched Complainant #1’s leg. This was observed by Witness
D, Witness E, and Witness F.
b. Respondent touched Complainant #1’s thighs.

This was observed by

Complainant #2, Witness E, Witness F, and Witness I.
c. Respondent touched Complainant #1’s back. This was observed by Witness
D and Witness I.
d. Respondent touched Complainant #1’s hands and held Complainant #1’s
hand for a period of time. This was observed by Witness E and Witness F.
e. Respondent touched Complainant #1’s buttocks over her pants. This was
observed by Witness I.
f. Respondent placed his hand between Complainant #1’s jeans and
Complainant’s lower back to cup her bare buttocks. This was observed by
Witness D.
g. Respondent touched Complainant #1’s “crotch area” (including the upper
thigh, near the vagina). This was observed by Witness E.
ii. December 4, 2015, Events after Leaving Tony’s Tavern
54.

Complainant #1 remained at Tony’s Tavern until approximately 12:45 a.m. on
December 4, 2015, when the group decided to leave the bar.

55.

Complainant #1 and Witness D exited the bar together and began walking down
Court Street towards Ellis Hall.

56.

Witness D and Complainant #1 were holding each other up as they walked because
they were both very intoxicated.
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57.

Respondent caught up with Complainant #1 and Witness D on the way back
towards campus.

58.

Respondent, Complainant #1, and Witness D walked towards Ellis Hall together.

59.

As Respondent, Complainant #1, and Witness D approached Ellis Hall, Witness D
told Complainant #1 that she needed to use the restroom. Witness D then went
into Ellis Hall to use the restroom.

60. Complainant #1 and Respondent did not enter Ellis Hall. Instead, they stayed
outside Ellis while waiting on Witness D.
61.

While Witness D was in the restroom, Respondent told Complainant #1 that he
had been “distracted” the entire semester because Complainant #1’s office was
across from his office.

62.

Respondent then pressed his body against Complainant #1 and kissed
Complainant #1 with tongue.

63.

Complainant #1 did not reciprocate the kiss, and she responded stating, “I don’t
want this...” Respondent then said to Complainant #1, “How do I get you alone?” 11
Respondent asked if Complainant #1 lived near campus and Complainant #1 said
“I don’t. I live far away.” Complainant #1 said that she told Respondent, “[Witness
D] is going to be back any second. Nothing is going to happen.”

64. Despite Complainant #1’s statements to Respondent that she “[didn’t] want this”,
Respondent pulled Complainant #1 close to him, and the front of Respondent’s
body was touching the front of Complainant #1’s body. Complainant #1 tried to

Respondent denied making this statement, but the Investigator finds that Complainant #1’s statement is
more credible than Respondent’s statement in regard to the events of December 3-4, 2015, for reasons
discussed in more detail below.
11

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pull away the top half of her body, but Respondent’s hands were in her hair and at
her neck.
65.

Respondent had an erection and was “rubbing his lower body, including the
erection” on Complainant #1.

Complainant #1 said that she remembered feeling

Respondent’s erection on her leg and “trying to squirm out of the embrace.”
Complainant #1 also saw the erection in Respondent’s pants when Respondent
moved away from her.
66. Complainant #1 made Respondent promise not to tell anyone about the events of
that evening.

She was worried about her reputation in the Department.

Respondent said, “You better not tell anyone either.”
67.

Complainant #1 told Respondent that she did not want to receive any emails about
the events of that evening. 12

68. At that point, Witness D exited Ellis Hall.
69. As she was exiting the building, Witness D observed Respondent and Complainant
#1 pulling apart from one another after an apparent embrace or kiss.
70.

Respondent then said his goodbyes to Complainant #1 and Witness D and went to
retrieve his car.

71.

Complainant #1 and Witness D walked in a different direction to retrieve their cars.

72.

Complainant #1 and Witness D then went their separate ways.

73.

After retrieving her car, Complainant #1 went back to Casa Nueva to talk to her
friend, Witness M. At approximately 1:00 a.m., December 4, 2015, Complainant
#1 told Witness M that Respondent had made unsolicited verbal and physical

12

Respondent did not have Complainant #1’s personal cell phone number.
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advances on Complainant #1, and Respondent had sexually propositioned
Complainant #1. Complainant #1 told Witness M that Respondent had tried to
kiss her, and Respondent had been “inappropriate[ly] touch[ing]” Complainant #1
by putting his hand down Complainant #1’s pants.
74.

When recounting this December 4, 2015, conversation with Complainant #1 for
the Investigator, Witness M said that Complainant #1 was “really distressed” and
“kind of in shock” as she was telling Witness M about Respondent’s behavior.

75.

After speaking with Witness M, Complainant #1 left Casa Nueva and returned to
her apartment.

76.

Several hours later on December 4, 2015, Complainant #1 told Witness D that
when Witness D was in the bathroom in Ellis Hall, Respondent tried to get
Complainant #1 to "go home with [Respondent]." 13 Complainant #1 also told
Witness D that Respondent "reached around [Complainant #1's] shoulder and
grabbed the back of her neck, then kissed [Complainant #1]."

77.

On Friday, December 4, 2015, at 2:47 p.m., Respondent sent Complainant #1 an
email stating, “This is me officially not writing you an email, per your request.”

78.

Approximately a week later, Complainant #1 was invited to a dinner party at
Witness H and Witness I’s residence. The following individuals were present at
this dinner party: Complainant #1, Complainant #2, Witness D, Witness E,
Witness H, Witness I, and another individual who was not present on the night of
December 3-4, 2015.

At this dinner, Complainant #1 told the group that

Respondent had touched her inappropriately when they were at Tony’s Tavern,

The Investigator understood Witness D to be using this phrase as a euphemism for sex rather than a literal
invitation to go home with Respondent.

13

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and that Respondent had kissed Complainant #1 outside of Ellis Hall. Witness E
specifically recalls Complainant #1 telling the group that Respondent asked
Complainant #1, “How can I get you alone?” Complainant #1 also told the dinner
party that Respondent had put his hand down Complainant #1’s pants and cupped
her buttocks. 14
79.

The Investigator finds that Respondent kissed Complainant without consent while
Respondent and Complainant #1 were alone outside Ellis Hall. This finding is
based on the Investigator’s determination that Complainant #1 was more credible
than Respondent because Complainant #1’s account of the events outside Ellis Hall
was corroborated by witnesses to whom Complainant reported the events
contemporaneously or witnesses to whom she reported the events soon after
December 4, 2015.

Specifically, Complainant #1’s disclosure to Witness M

occurred mere minutes after the alleged conduct; Complainant #1’s conversations
with Witness D occurred within hours of the alleged conduct; and Complainant
#1’s statements at the dinner party occurred the following week. In addition,
Witness D told the Investigator that as she was exiting Ellis Hall after using the
bathroom, she observed Respondent and Complainant #1 pulling apart following
an apparent embrace or kiss, which corroborates Complainant #1’s statements to
the Investigator.
80. The Investigator finds that Respondent tried to convince Complainant #1 to have
a sexual interaction with him. The Investigator finds Complainant #1’s statement

14

Complainant #2 also disclosed at this dinner party that Respondent had touched her inappropriately on
the night of December 3, 2015.
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to be more credible than Respondent’s statement about the events of December 34, 2015 because Complainant #1’s statement has consistently been corroborated
by the observations of witnesses or Complainant #1’s near contemporaneous
disclosures of her experiences.
81.

The Investigator further finds that Respondent pressed his erection against
Complainant #1’s leg. Witness D observed Respondent and Complainant #1
pulling apart following an apparent embrace or kiss, and this eyewitness statement
corroborates Complainant #1’s statements to the Investigator.

82. The Investigator finds Respondent’s repeated denial of any contact with
Complainant #1 (except for perhaps a “brush” of the shoulder) not credible, and in
fact contradicted by the multiple eyewitnesses who observed Respondent touching
Complainant #1 at various points during the night of December 3-4, 2015.
83. Complainant #1 went home for winter closure.

Complainant #1 told the

Investigator that she started having panic attacks and contemplated not coming
back to Ohio University to complete her Ph.D. However, she returned to Athens
prior to the start of classes in January 2016. The Investigator finds these facts
significant because the physical panic attacks and contemplation of withdrawal
from school are consistent with someone having experienced trauma.
84. In early January 2016, Complainant #1 saw Respondent when she was at Casa
Nueva with Witness M. When Witness M was absent from the table, Respondent
approached Complainant #1 and said, “I feel like I need to acknowledge that things
got out of control at the end of the semester.” Complainant #1 told Respondent,

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“It’s fine. It’s fine…”, to which Respondent said, “I hope that we can have a
continued productive professional relationship.” 15
85.

Witness M told the Investigator that Complainant #1 told him about this Casa
Nueva conversation between Complainant #1 and Respondent, and that
Complainant #1 was incredibly upset following the interaction with Respondent.
The Investigator finds Complainant #1 more credible than Respondent, and in
light of her report of the Casa Nueva conversation to Witness M, the Investigator
finds the conversation did take place as described by Complainant #1. Further, the
Investigator finds the Respondent’s Casa Nueva statements to Complainant #1 to
be acknowledgement that Respondent’s conduct on December 3-4, 2015, was
improper.

86. In February 2016, Complainant #1 and Complainant #2 went to the Athens Police
Department to report Respondent’s conduct to the police. They met with the APD’s
victim’s advocate. Complainant #1 decided not to pursue a criminal complaint.
87.

Complainant #1’s office was in close proximity to Respondent’s office.
Complainant #1 avoided working in her office because she feared having to interact
with Respondent. As a result, Complainant #1 began holding her office hours at a
local business in order to avoid any contact with Respondent.
iii. Events leading up to the Report to ECRC

88. On March 10, 2016, ECRC received a report from the Chair of the Department
(Witness HH) about concerns raised by the graduate student representative to a
committee of the Department.

15

According to HH,

the graduate student

Respondent denies having had this conversation with Complainant #1.
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representative (Witness A) told the committee that an “alarming number of
students” had requested that the faculty address issues of sexual misconduct in the
Department. No specific information about the potential complainants or the
purported sexual misconduct was shared with the committee.
89. On March 10, 2016, ECRC received a report from Witness HH about graffiti in the
first floor bathroom in Ellis Hall. The graffiti said, “[Respondent] is a predator.
You are not alone.” Additional comments included, “[Respondent] preys on young
women. The Department knows”; “Email makeousafe@gmail.com for help / with
stories. He must be stopped”; and “Together they can’t ignore us.” [sic]
90. On March 18, 2016, Respondent filed a report with ECRC stating that an unknown
party placed a New York Times article titled, “Chicago Professor Resigns Amid
Sexual Misconduct Investigation” in his faculty mailbox. Respondent stated that
he felt the article was a form of intimidation.
91.

On March 24, 2016, ECRC received a report from Witness HH about additional
graffiti in the first floor women’s bathroom in Ellis Hall. The graffiti said, “If you
have been sexually harassed, touched, etc. by a certain male [Department] prof.
GO TO OUPD and file an anonymous report. The Dept. can’t catch him without
your help!” [sic] Witness HH stated she believed the graffiti appeared at some
point during the night of March 23, 2016, or the early afternoon of March 24, 2016.

92.

On March 24, 2016, Complainant #1 and Complainant #2 requested to meet with
ECRC Investigator Jessica Cook. Complainant #1 had an individual meeting with
Jessica Cook during which Investigator Cook took Complainant’s statement
alleging sexual misconduct by Respondent. Complainant #2 had an individual

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meeting with Jessica Cook during which Investigator Cook took Complainant #2’s
statement alleging sexual misconduct by Respondent.
93.

On March 28, 2016, Respondent filed a report with ECRC in which he disclosed
that he had received another article in his faculty mailbox. This article from the
Chicago Tribune was titled, “"U. of C. professor quits after university sexual
misconduct investigation." Respondent said that he believed this action was “a
form of intimidation and defamation” that was linked to the two earlier cases of
graffiti in the women's restroom.

94.

On March 31, 2016, Respondent was provided a notice of the allegations made by
Complainant #1 and Complainant #2. He was placed on administrative leave
pending the ECRC Investigation.

95.

In his response to the charges, Respondent alleged that Complainant #1’s
complaint and the statements of the aforementioned witnesses are the result of a
long-standing conspiracy against Respondent.

96. When asked about the graffiti in the Ellis Hall restroom, Complainant #1 was
adamant that she did not have anything to do with it.

However, she told the

Investigator that she felt more comfortable coming forward to report Respondent’s
conduct because the graffiti showed “someone else was experiencing something
similar.”
97.

Complainant #1 said that she knows of people who will not come forward at this
time that have had similar experiences with the Respondent.

However,

Complainant #1 told ECRC that she has no knowledge of the source of the graffiti.

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b. Analysis and Conclusions – Complainant #1
i. Non-Consensual Sexual Contact – Complainant #1
98. As stated in the above findings of fact, the Investigator finds a preponderance of
the evidence supports Complainant #1’s assertion that the alleged physical contact
between Complainant #1 and Respondent occurred. Although Respondent denied
that he had any physical contact other than perhaps an accidental “brush of the
shoulder” with Complainant #1 on the night of December 3-4, 2015, the
Investigator finds the Respondent’s denial not credible because the preponderance
of the evidence corroborates Complainant #1’s statements concerning the events
of that night. Specifically, Complainant #2, Witness D, Witness E, Witness F, and
Witness I, each observed Respondent touching Complainant #1. In addition,
Witness M confirmed that in the early morning hours of December 4, 2015,
Complainant #1 told Witness M that Respondent had made unsolicited verbal and
physical advances on her and had asked how he could get her alone. Moreover,
Complainant #1’s report to multiple witnesses about Respondent touching her
inappropriately in the week following the alleged behavior is a nearcontemporaneous report that also corroborates her account of the events.
99. In denying the allegations, Respondent argued that Complainant #1 was “never
pressured to come to Tony’s Tavern and, once there, was free to leave if she had
wanted.” Respondent said that there were plenty of occasions throughout the night
when Complainant #1 and/or Respondent were physically away from the table,
and Complainant #1 would have been free to leave the bar. Respondent asserted
that because Complainant #1 did not leave the bar, this fact supports Respondent’s
assertion that nothing inappropriate happened at the bar.
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100. When asked why she did not leave the bar, Complainant #1 stated that there were
multiple reasons that she did not leave the bar, including the fact that she was
worried about losing the esteem of a well-respected faculty member in her
department. Complainant #1 felt that her reaction to Respondent’s behavior could
impact her grades, her education, and/or her future professional opportunities.
Complainant #1 also explained to the Investigator that she was looking for a
“graceful” way to exit a difficult situation without causing a scene, and her bag was
under Respondent’s chair. The Investigator does not find Respondent’s argument
that “Complainant #1 did not leave so therefore nothing happened” to be a
persuasive argument based upon the Investigator’s experience and training in
trauma-informed principles. Research on sexual victimization suggests that each
individual responds differently to their victimization based on a multitude of
factors unique to them and the circumstance. 16 Therefore, given the complexities
of this situation, including the power disparity between Respondent and
Complainant #1 and the level of alcohol ingested by Complainant #1 and her level
of intoxication, the Investigator concludes that the preponderance of the evidence
does not support Respondent’s argument.
101. Having found that the physical contact occurred, the next question is whether the
alleged physical contact violated Ohio University Policy 03.004. Section (E)(3) of
Policy 03.004 defines “Non-consensual sexual contact” as “intentional contact
with the breasts, buttock, groin, or genitals; touching another with any of these
16

See Littleton & Radecki Breitkopf, 2006; Wyatt, et al., 1990). According to researchers, factors such as
past life experiences, developmental level, spiritual beliefs, social support systems, content and intensity of
the event, and even genetic predisposition, may influence a survivor’s reaction to sexual victimization. See
James & Gilliland, 2001; Regehr, Cadell, & Jansen, 1999 as cited in White Kress et al., 2003.
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body parts, or making another touch you or themselves with or on any of these
body parts; any intentional bodily contact in a sexual manner; by a person upon a
person; without consent.”
102. First, the physical contact between Complainant #1 and Respondent was
intentional contact, with Respondent, at times, rubbing or groping Complainant
#1 on the leg, thighs, back, buttocks, and “crotch area” with his hands in addition
to rubbing his erect penis against Complainant #1 and kissing her with tongue.
Given the extent of this physical touching, the locations on Complainant #1’s body
touched by Respondent, and the manner of the touching by Respondent, the
Investigator finds that the preponderance of the evidence supports a conclusion
that Respondent’s touching of Complainant #1 was intentional.
103. The physical contact was sexual in nature given the areas of Complainant’s body
touched and the manner in which Respondent touched those areas (e.g., touching
the inner thigh; touching the vagina; “rubbing” and “groping” the legs, thighs and
back; cupping the bare buttocks). Moreover, kissing an individual with tongue is
an act that is sexual in nature. Further, Respondent’s statements to Complainant
#1 on December 3-4, 2015, (e.g., that he was “distracted” all semester by her
presence and Respondent asking Complainant #1, “How do I get you alone?”)
prove Respondent’s touching of Complainant #1 was motivated by a desire to
engage in sexual activity with her, and thus was sexual in nature.
104. Next, the Investigator turns to the question of consent. 17 Ohio University Policy
03.004(D)(3) states that consent must be “informed, knowing and voluntary”.
17 In his response to the evidence packet, Respondent states, “…I am not saying that [Complainant #1]
implicitly or explicitly consented to intimate touching, or that it would be her fault if anyone touched her
without her consent….” Neither Complainant #1 nor Respondent have asserted that any of the alleged

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“Consent must be clear and unambiguous for each participant throughout any
sexual encounter.” “Consent cannot be obtained from someone who is … mentally
or physically incapacitated, whether due to alcohol, drugs, or some other
condition. Consent cannot be obtained by threat, coercion, or force.”
105. The Investigator concludes that the preponderance of the evidence shows that
Complainant #1 did not consent to Respondent’s touching her in a sexual manner.
This conclusion is based on (1) the evidence of Complainant #1’s actions on the
night of December 3-4, 2015, which were corroborated by witnesses; and (2)
Complainant #1’s reports of the sexual contact to others contemporaneous with
the contact or in the week following the contact..
106. However, Respondent asserts that Complainant #2, Witness D, and Witness E all
made statements to ECRC that suggest that they were unclear about whether
Complainant #1 was consenting to the alleged sexual contact by Respondent.
Respondent noted that Complainant #1 said, “I did flirt with him” in a text message
to one of her friends. The Investigator notes that not knowing how to handle a
difficult situation wherein your professor is touching your leg, thighs, back,
buttocks, and vagina is different from consenting to such touching.

The

Investigator finds that both Complainant #1 and Respondent had ingested a
substantial amount of alcohol. Further, Respondent was in a direct supervisory
physical contact was consensual. Respondent flatly denies that any contact occurred. However, the
Investigator notes that, even if Respondent had asserted that the sexual contact with Complainant #1 was
consensual, Policy 03.004(E)(10), Consensual Relationships, would prohibit the sexual contact between
Complainant #1 and Respondent in this instance. Policy 03.004(E)(10) states: “Consensual romantic or
sexual relationships in which one party retains a direct . . . evaluative role over the other party are unethical,
create a risk for real or perceived coercion, and are expressly a violation of this policy.” Here, Respondent
retained a direct evaluative role over Complainant #1, who was in his class and for whom he had not as yet
submitted grades for the semester when the events of December 3-4, 2015, occurred. Therefore, given the
direct evaluative role, Complainant #1 could not consent to sexual contact with Respondent without that
behavior also violating Policy 03.004.
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and evaluative role over Complainant #1. Respondent had not yet assigned grades
for the course, and even though Respondent asserts that he had no control over
Complainant #1’s grade for the last seven weeks of the semester, Complainant #1
could have reasonably assumed that Respondent may have some “say” in her final
grade. Indeed, Respondent was the instructor of record for the overall course and
submitted final grades for all students. Given the power differential between the
parties, the alcohol ingested by Complainant #1, and Complainant #1’s assertion
that she did not consent to the contact, the Investigator finds that that the physical
contact was non-consensual sexual contact.
107. The Investigator further finds that Respondent engaged in multiple instances of
non-consensual sexual contact as to Complainant #1. Respondent’s behavior at
Tony’s Bar was non-consensual sexual contact with Complainant #1, and
Respondent’s actions outside Ellis Hall were non-consensual sexual contact with
Complainant #1.
108. Accordingly, the Investigator concludes that Complainant #1’s allegation of nonconsensual sexual contact by Respondent is SUBSTANTIATED.
ii. Quid Pro Quo Sexual Harassment– Complainant #1
109. The analysis will now examine the question of whether Respondent also engaged
in quid pro quo sexual harassment of Complainant #1.

Pursuant to Ohio

University Policy 03.004(E)(1), “sexual harassment by quid pro quo” is “physical
or verbal conduct of a sexual nature that is unwelcome and sufficiently severe or
pervasive from both a subjective (the complainant's) and an objective (reasonable
person's) viewpoint, where: (a) submission to such conduct is made either
explicitly or implicitly a term or condition of a person's employment or academic
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status; or (b) submission to or rejection of such conduct by a person is used as the
basis for employment or academic decisions affecting such person.”
110. Here, prior to Respondent engaging in non-consensual sexual contact with
Complainant #1, Complainant #1 had overheard Respondent tell Complainant #2
to “be careful” because grades had not been submitted when Complainant #2
called him an “asshole” in response to Respondent’s treatment of another student
at the bar. This warning, coupled with Respondent’s actions in repeatedly touching
Complainant #1 on her leg, her thighs, her buttocks, and her crotch area in the
presence of multiple graduate students, accentuated the power differential
between the parties.

The Investigator finds that Respondent’s actions

demonstrated that he was not afraid to exploit this power differential to pursue
sexual contact with Complainant #1.
111. Respondent had not yet assigned grades for the course. Respondent asserted that
he had no control over Complainant #1’s grade for the last seven weeks of the
semester. However, Respondent remained the instructor of record for the entirety
of the course. Moreover, although he asked the co-instructors of the last 7-week
portion of the class for their input, it was Respondent who assigned grades for the
course and submitted final grades for all students. Therefore, under these facts,
the Investigator finds Complainant #1’s belief that Respondent had some “say” in
her final grade reasonable and credible.

The Investigator also finds that these

same facts also made it reasonable for Complainant #1 to believe that her grade
and academic status were conditioned on submitting to Respondent’s touching her
in a sexual nature.

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112. The Investigator finds that a reasonable person under these same facts could
similarly believe their grade and academic status were conditioned on submitting
to Respondent’s touching in a sexual nature. Therefore, the Investigator concludes
Respondent’s conduct meets both the subjective and objective standard of severity
required to establish quid pro quo sexual harassment under Policy 03.004(E)(1).
113. Accordingly, the Investigator finds that the allegation that Respondent engaged in
quid pro quo sexual harassment of Complainant #1 is SUBSTANTIATED.
iii. Sexual

Harassment

by

Hostile

Environment

–

Complainant #1
114. The analysis will now examine whether Respondent engaged in sexual harassment
by hostile environment as to Complainant #1.

In Ohio University Policy

03.004(E)(2), sexual harassment by hostile environment is defined as, “Physical
or verbal conduct of a sexual nature that is unwelcome and sufficiently severe or
pervasive from both a subjective (the complainant's) and an objective (reasonable
person's) viewpoint, where: such conduct has the purpose or effect of unreasonably
interfering with a person's work or academic performance or creating an
intimidating, hostile, or offensive environment for working, learning, or living on
campus.” The determination of whether an environment is "hostile" is often
contextual and must be based on the circumstances. These circumstances could
include: the frequency of the conduct; the nature and severity of the conduct;
relationship between the complainant and the respondent; location and context in
which the alleged conduct occurs; whether the conduct was physically threatening;
whether the conduct was humiliating; or whether the conduct arose in the context
of other discriminatory conduct.
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115. Here, the Investigator concludes that Respondent engaged in physical conduct of
a sexual nature that was unwelcome and severe from both Complainant #1’s
perspective and a reasonable person’s viewpoint.
116. Moreover, the Respondent created an intimidating, hostile, and offensive
environment for Complainant #1 because, in addition to violating the integrity of
Complainant #1’s physical person by touching her in an unwanted sexual manner,
(1) Respondent’s conduct occurred in a group setting where other graduate
students observed Respondent’s conduct towards Complainant #1, which
humiliated her; (2) Respondent’s conduct occurred during an end-of-the-semester
gathering for a graduate course; (3) Respondent had a direct supervisory and
evaluative relationship with Complainant #1 as instructor of record for her class;
(4) Respondent had not yet submitted grades for Complainant #1; and (5)
Respondent’s unwanted sexual touching occurred over the course of several hours
despite Complainant #1’s repeated attempts to thwart Respondent’s advances.
117. The Investigator finds the preponderance of the evidence supports a conclusion
that Respondent’s unwanted sexual conduct adversely impacted Complainant #1’s
educational opportunity because Complainant #1 contemplated not returning to
Ohio University following this incident. Although she did ultimately return to the
institution, Complainant #1 told the Investigator that she has encountered
complications in her Department stemming from Respondent’s conduct and her
subsequent report of his conduct to ECRC. Complainant #1 explained to the
Investigator that, in the early Spring semester 2016, Complainant #1 went to great
lengths to avoid Respondent on campus (prior to Respondent being placed on
administrative leave).

For example, Complainant #1 held her office hours at a
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local business so that she could avoid using an office in close proximity to
Respondent’s office.

Complainant #1 also stated that the investigation has

weighed heavily on her mental state in both the Spring 2016 and Fall 2016
semesters. Given these facts, the Investigator finds that Respondent’s conduct
interfered with Complainant #1’s academic performance and created an
intimidating and hostile educational environment for Complainant #1.
118. For the aforementioned reasons, the Investigator concludes the preponderance of
the evidence supports a finding that Respondent engaged in sexual harassment by
hostile environment. Accordingly, Complainant #1’s allegation of sexual
harassment by hostile environment by Respondent is SUBSTANTIATED.
119. In summary, the findings regarding Complainant #1’s allegations regarding
Respondent’s conduct are as follows: (1) a SUBSTANTIATED finding of nonconsensual sexual contact; (2) a SUBSTANTIATED finding of sexual harassment
by quid pro quo; and (3) a SUBSTANTIATED finding of sexual harassment by
hostile environment.
II.

Complainant #2

On March 24, 2016, ECRC received a complaint from Complainant #2, a graduate
student, who alleged that Respondent violated Ohio University Policy 03.004 by engaging
in inappropriate behavior of a sexual nature towards her. The allegations pertained to
events that allegedly transpired during an end-of-the-semester class gathering at two
local bars in Athens on December 3-4, 2015. Complainant #2 alleged that Respondent
touched intimate areas of her body in a sexual manner, without her consent. Complainant
#2 was enrolled in one of Respondent’s courses at the time. The student perceived that

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refusing Respondent’s advances would impact her grade and/or educational
opportunities in the Department at Ohio University.
a. Findings of Fact – Complainant #2
1.

Complainant #2 is a graduate student at Ohio University.

2.

Respondent is a faculty member at Ohio University.

3.

Complainant #2 was enrolled in a course taught by Respondent in Fall Semester
2015.

4.

This course was a required course for graduate students in Complainant #2’s
program of study.

5.

Respondent was the sole instructor for the first seven weeks of the course. For the
remainder of the course, the students were divided into three subsections. There
were three co-instructors (Respondent, Witness B, and Witness C) for the latter
portion of the course.

6.

Respondent was the instructor of record for the overall course. Respondent
ultimately submitted the grades for all students with input from his co-instructors
about the last seven weeks of the class.

7.

Complainant #2 attended the first seven weeks of the course that were taught by
Respondent, and then she attended Respondent’s subsection in the last seven
weeks of the course.

8.

On Monday, November 30, 2015, Respondent sent an email to all students enrolled
in the course and the two co-instructors in regard to an end-of-the-semester
gathering. In this email, Respondent invited the students and co-instructors to
meet at Jackie O’s Pub to celebrate the end of classes. The email said that the group

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would enjoy “soda water or other [beverages]…” and the co-instructors “…should
seriously consider joining [them].”
9.

Complainant #2 felt compelled to attend the gathering because graduate students
“….have to professionalize”.

10.

On December 3, 2015, Complainant #2 arrived late to Jackie O’s. The majority of
the class was already present and seated at a table with Respondent and the coinstructors. The group moved another table over to their table to accommodate
Complainant #2.

11.

Complainant #2 was seated next to Respondent.

12.

Respondent had already ordered food and drinks for the group, so Complainant
#2 went to the bar to try to get a drink. When she was at the bar, Respondent came
up behind Complainant #2, put his hand on Complainant #2’s back, and told the
bartender, “Put it on my tab.”

13.

Almost immediately after retaking her seat beside Respondent, Respondent
started touching Complainant #2 under the table. 18

14.

Respondent touched Complainant #2 on her hand, her upper thighs, her back, her
waist, and her buttocks while the group was at Jackie O’s.

15.

Complainant #2 told ECRC that she contemplated pushing Respondent’s hand
away, but she was worried that grades had not yet been submitted. At one point,
Respondent made a snide remark to Witness D, and Complainant #2 called
Respondent an “asshole” in response. Respondent looked at Complainant #2 and
said, “Careful. I still haven’t submitted your grade.”

18

Respondent denied any physical contact with Complainant #2.
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16.

Complainant #2 was drinking gin and tonics.

These drinks had a high

concentration of alcohol. Respondent purchased two or three drinks for
Complainant #2 at Jackie O’s.
17.

Respondent kept ordering the drinks for Complainant #2 without asking
Complainant #2 whether she would like another drink.

18.

Complainant #2 tried to scoot her chair away from Respondent. She thought that
by moving away, she was signaling to Respondent that she was not interested in
the physical contact. However, Complainant #2 told the Investigator that she
could not create enough space because Respondent kept moving towards
Complainant #2 as she attempted to move away.

19.

Complainant #1 observed Respondent touching Complainant #2 on her arm, her
upper back, her lower back, and her thigh while they were at Jackie O’s.
Complainant #1 said that she could feel movement under the table and leaned back
to see under the table and observed Respondent’s hand on Complainant’s thigh.

20. At approximately 9:45 p.m., the group of graduate students decided they wanted
to leave Jackie O’s and go to Casa Nueva. 19 When they arrived at Casa Nueva, there
was a music act playing and it was very crowded so the group decided to go across
the street to Tony’s Tavern.

19 Some of the students, including Complainant #2, assumed that Respondent would take that opportunity
to leave like the other co-instructors had done, but Respondent stayed with the group when they headed
to Casa Nueva.

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21.

Respondent, Complainant #1, Complainant #2, Witness D, Witness E, Witness F,
Witness G, Witness H, and Witness I arrived at Tony’s Tavern at approximately
10:10 p.m. 20

22.

Tony Tavern’s had round, high-top tables near the front of the bar. The majority
of the group was either standing or sitting around one round, high-top table.

23.

Respondent was seated in the corner, near the window, and with his back to the
front entrance of the bar.

24.

Complainant #1 was seated to Respondent’s right, then proceeding in a
counterclockwise direction around the table were Witness D, Witness H, Witness
I, Witness E, and Complainant #2.

25.

Witness F and Witness G were moving around the venue near the bar area.
Witness G was also seated at a nearby high-top table for a portion of the evening.

26.

Complainant #2 was seated to Respondent’s immediate left at the group table.
Complainant #2’s back was facing the window and Respondent’s back was facing
the window.

27.

Respondent was within an arm’s length of Complainant #2 when both parties were
seated at the table.

28. Respondent continued to purchase alcohol for the group. Respondent estimated
that he purchased three rounds of drinks for those in attendance at Tony’s Tavern.

Respondent did not recall Witness E being present, but other witnesses, Complainant #1, Complainant
#2, and Witness E confirmed Witness E’s presence at Jackie O’s and Tony’s Tavern. Therefore, the
Investigator finds the preponderance of the evidence supports a conclusion that Witness E was present at
Jackie O’s and Tony’s Tavern.
20

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29.

According to Respondent’s bank records, Respondent was charged $71.00 at
Tony’s Tavern. Respondent estimated that approximately $60.00 was charged for
drinks and the remainder was left as a tip.

30. Respondent continued touching Complainant #2 at Tony’s Tavern. Respondent
touched Complainant #2 on her hands, her arms, her thighs, her legs, her knees,
her waist, her lower back, her buttocks, and her vagina while they were seated at
Tony’s Tavern. 21
31.

All of the touching occurred through Complainant #2’s clothes.

32.

Respondent was rubbing his hand in an “up and down motion” on various parts of
Complainant #2’s body.

33.

Respondent also placed his hand on Complainant #2’s waist and then moved his
hand to Complainant #2’s upper back area near the outline of her bra.

34.

On two occasions, Respondent placed his hand in Complainant #2’s “crotch [area]
and touched [her] vagina.” Respondent put his fingers up against Complainant
#2’s vagina and Complainant #2 could feel Respondent’s fingers through her
leggings. The second time that Respondent touched Complainant #2’s vagina, he
leaned in and told Complainant #2, “You’re one of the smartest people we’ve had
in this department yet.”

35.

Complainant #2 crossed her legs to try to get Respondent to move his hand. When
she did so, Respondent moved in closer to Complainant #2 and he moved his
hands to her thighs.

Respondent also touched Complainant #2’s breast as she was standing and getting ready to leave. (see
Paragraph 44).
21

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36.

Respondent never spoke directly to Complainant #2 about Respondent touching
Complainant #2’s body.

He continued to touch Complainant #2 even as

Respondent was keeping up conversation with other people at the table.
37.

Complainant #2 told ECRC that she felt “sexually violated” by Respondent’s
actions.

38. Complainant #2 observed that Respondent was “doing the same thing to
[Complainant #1],” which she later clarified by saying that she observed
Respondent touching Complainant #1’s thigh.
39.

Complainant #1 told ECRC that she observed Respondent touching Complainant
#2 on her arm, her upper back, her shoulder area, her knee, and her thigh while at
Tony’s Tavern.

40. At one point, Respondent got up from his seat, and Complainant #2 looked at
Complainant #1 and asked, “What is happening?” In response, Complainant #1
mouthed the words, “What the fuck?”
41.

Complainant #2 and Complainant #1 piled jackets, backpacks, and purses into the
chair where Respondent had been sitting hoping that would cause Respondent to
move to another seat away from Complainant #1 and Complainant #2. However,
when Respondent came back from the bar, he moved the items from the chair and
again sat down between Complainant #1 and Complainant #2.

42.

Respondent kept bringing Complainant #2 drinks. Complainant #2 felt that
Respondent was trying to get her drunk.

43.

At approximately 10:45 p.m., Complainant #2 told Witness H that she needed to
leave.

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44.

As Complainant #2 was leaving Tony’s Tavern, Respondent got up to give
Complainant #2 a “full hug” goodbye. During that hug, Respondent’s hands went
down Complainant #2’s body, and Respondent’s hands touched Complainant #2’s
breast.

45.

Complainant #2 then left the bar.

46.

Complainant #2 text messaged her then-boyfriend on the night of December 3,
2015, and at approximately 8:16 a.m. on December 4, 2015.

In these text-

messages, Complainant #2 told her then-boyfriend the following:
a. “…Update: I have been touched…3-4 times. Will be leaving v soon…”
[sic]
b. “…‘I’m SO GLAD you’re writing about the wife of bath. It’s SUCH a
good paper’ – my professor, 8 whiskeys into the night”
c. “… Yes It’s cool to be told ‘you’re one of the smartest we’ve seen in
years’ except when the professors hand is on your thigh…”
d. “…I had so many millions of drinks made with expensive gin and feel
absolutely fine…”
e. “…Too bad I can only have it when my professor buys it/thinks he is
buying me!”
f. “…I am going to make so many jokes about last night in order to
repress the fact that the man who still has yet to grade my 25 page
paper on Chaucer touched my crotch.

Life is a bleak

wilderness….That’s why I left!! Wait didn’t I tell you this? Last night
or no? …”

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g. “…Thigh: whole night. Crotch: twice. I left the second time cause
like, I’m an idiot for staying the first time…”
h. “…Yes, I know it’s bad; [Witness H] leaned over me and was like ‘I
can see was happening, and you need to leave this situation” 22
i. “I inwardly raged all night long about what a fucking wilderness it is
to be a woman in academia”
47.

About a week after the alleged events, Complainant #2 told a small group of
graduate students that Respondent had touched her inappropriately on the night
of December 3, 2015. The individuals in attendance at this gathering included
Complainant #1, Complainant #2, Witness D, Witness E, Witness H, Witness I,
and another graduate student who was not present on the night of December 3-4,
2015. Complainant #2 told the group that Respondent had touched her “crotch
area” over her clothes. 23

48. Complainant #2 told Witness K about Respondent’s conduct about a week after
the alleged events. Complainant #2 told Witness K that Respondent had touched
Complainant #2 on the night of December 3, 2015. Specifically, Complainant #2
told Witness K that Respondent had put his hands on Complainant #2's "crotch".
Complainant #2 told Witness K that she had tried to put some space between
herself and the Respondent by putting coats in the chair next to her, but
Respondent moved the coats and sat back down next to Complainant #1 and
Complainant #2.

22 Witness H said that he remembers having a conversation with Complainant #2 about Complainant #2
wanting to leave the environment, but he did not observe Respondent touching Complainant #2.
23

Complainant #1 also told the group about her experiences on December 3-4, 2015.
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49.

In February 2016, Complainant #2 went to the Athens Police Department to report
Respondent’s conduct to police and she met with the Athens Police Department’s
victim’s advocate. Complainant #2 decided not to pursue a criminal complaint.
b. Analysis and Conclusions – Complainant #2
i. Non-Consensual Sexual Contact - Complainant #2

50. As stated in the above findings of fact, the Investigator finds a preponderance of
the evidence supports Complainant #2’s assertion that the alleged physical contact
between Complainant #2 and Respondent occurred. Although Respondent denied
that he had any physical contact with Complainant #2 on the night of December 3,
2015, the Investigator finds that the preponderance of the evidence corroborates
Complainant #2’s description of the events of December 3, 2015. In addition, the
Investigator finds Complainant #2 more credible than Respondent. Specifically,
the preponderance of the evidence shows that (1) Complainant #1 observed
Respondent

touching

Complainant

#2,

(2)

Complainant

#2

made

a

contemporaneous disclosure of Respondent’s conduct to her then-boyfriend, and
(3) Complainant #2 told multiple witnesses about Respondent touching her
inappropriately in the week following the alleged behavior.

Moreover, the

Investigator finds that Complainant #2’s statement about the events of December
3-4, 2015, is more credible than Respondent’s statement of events in light of
Complainant #2’s statement being corroborated by an eyewitness (Complainant
#1), Complainant #2 electing to suddenly leave Tony’s Tavern, and Complainant
#2 making a near contemporaneous disclosure to her then-boyfriend about
Respondent’s conduct.

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51.

In denying Complainant #2’s allegations, Respondent asserted that Complainant
#2 fabricated the allegations against him because Complainant #2 is a close friend
and tenant of Witness P, an emeritus professor in the same department as
Respondent who had previously reported concerns to Institutional Equity about
Respondent. This “crusade” 24 hinges upon Complainant #2 feeling so strongly that
Respondent is a “predator” that she, out of a desire for social justice, (1) fabricates
a story about Respondent, (2) coordinates with Complainant #1 about the story,
(3) sends near contemporaneous text messages on the night of December 3, 2015,
to create evidence in support of her fabricated story, (4) makes statements to
multiple parties in the week following December 3 2015, to create evidence in
support of her fabricated story, (5) consults with the police about the fabricated
story, and then (6) makes a disclosure to Ohio University that triggers an extensive
administrative investigation in hopes that Respondent might be held accountable
for the fabricated story. The investigator concludes that the facts demonstrate that
Respondent’s assertion is neither reasonable nor plausible. First, Complainant #2
was still enrolled as a graduate student in the Department. Thus, she had much to
lose from making a disclosure of this nature to ECRC. Second, while Complainant
#2 may have at one time been a “tenant” in rental property owned by Witness P,
there has been no evidence presented to the Investigator that would support a
conclusion that this landlord-tenant relationship biased Complainant #2 in any
way against Respondent, much less somehow influenced her to fabricate a sexual
misconduct complaint against him. Similarly, regardless of whether Complainant

24

Respondent’s word.
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#2 is a “friend” of Witness P, the Investigator has been presented with no evidence
that would support a conclusion that any such friendship biased Complainant #2
in any way against Respondent, much less somehow influenced her to fabricate a
sexual misconduct complaint against him. . Finally, the Investigator concludes that
other than Respondent’s unsubstantiated speculation, there is no evidence that
Complainant #2 has fabricated her story out of a sense of social justice. Frankly,
the Investigator finds that the evidence confirms that Complainant #2 is credible
and her allegations are more likely than not true.
52.

In denying Complainant #2’s allegations, Respondent also argued that it was
physically impossible for Respondent to touch Complainant #2 under the table at
Tony’s Tavern given the placement of the table and chairs near the window.
Respondent told ECRC that he would have had to slump down in his chair to reach
Complainant #2’s leg, and it would have been very noticeable to other individuals
at the table. The Investigator went to Tony’s Tavern and observed the high-top
tables. The tables are small. All parties and witnesses interviewed told the
Investigator that there were a lot of individuals crowded around the table on
December 3, 2015. They consistently described that the parties and witnesses were
scrunched in together to make room for everyone at the table. Given the
Investigator’s physical observation of the space, the statement of Complainant #2,
and the statement of Respondent, the Investigator concludes that, contrary to
Respondent’s denial, it was possible for Respondent, who is quite tall and has long
arms, to have made physical contact with Complainant #2’s leg, thighs, and vagina
under the table on the evening of December 3, 2015.

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53.

Having found that the physical contact occurred, the next question is whether the
alleged physical contact violated Ohio University Policy 03.004(E)(3), which
defines “Non-consensual sexual contact” as “intentional contact with the breasts,
buttock, groin, or genitals; touching another with any of these body parts, or
making another touch you or themselves with or on any of these body parts; any
intentional bodily contact in a sexual manner; by a person upon a person; without
consent.”

54.

First, the nature of the physical contact itself between Complainant #2 and
Respondent evidences that it was intentional contact and not accidental or
inadvertent. Specifically, Respondent’s physical contact with Complainant #2 was
described as rubbing or groping Complainant #2. Even after Complainant #2
attempted to create space between the parties and move away from Respondent,
Respondent positioned himself so that he could continue to touch Complainant
#2. Respondent’s unwanted touching of Complainant #2 occurred for a prolonged
period of time while Respondent and Complainant #2 were at two different
establishments. Therefore, the preponderance of the evidence demonstrates the
physical contact was intentional.

55.

Next, the physical contact included contact with Complainant #2’s breast,
buttocks, groin, and genitals as well as other parts of Complainant #2’s body.

56.

The physical contact was sexual in nature. Respondent placed his hand next to
Complainant #2’s vagina and was rubbing against Complainant #2’s vagina
through her leggings. Respondent also made contact with Complainant #2’s
breast, buttocks, groin, and thighs, which are areas of the body a reasonable person
would understand are intimate and not touched without consent. Therefore, the
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Investigator concludes Respondent’s repeated physical contact with Complainant
#2 was sexual in nature.
57.

The physical contact was non-consensual. Ohio University Policy 03.004(D)(3)
states that consent must be “informed, knowing and voluntary”. Consent must be
clear and unambiguous for each participant throughout any sexual encounter.
Consent cannot be obtained from someone who is … mentally or physically
incapacitated, whether due to alcohol, drugs, or some other condition. Consent
cannot be obtained by threat, coercion, or force.

58.

In this case, based upon the facts, it appears that Respondent presumed that he
could touch Complainant #2 in a sexual manner and that Complainant #2 would
consent to the physical contact. Complainant #2 did not consent to the contact.
The Investigator notes that both Complainant #2 and Respondent each stated that
each had ingested a large amount of alcohol. Further, Respondent was in a direct
supervisory and evaluative role over Complainant #2. Respondent had not yet
graded a critical paper that was due at the end of the semester. Respondent had
not yet assigned grades for the course. Complainant #2 felt that Respondent could
decide to give her something other than an “A” in the course if she refused his
touching her body. Given the power disparity between the parties, the alcohol
ingested by Complainant #2, and Complainant #2’s assertion that she did not
consent to the contact, the Investigator finds the preponderance of the evidence
supports a conclusion that that the physical contact was non-consensual sexual
contact.

59.

Accordingly, the allegation of non-consensual sexual contact as to Complainant #2
is SUBSTANTIATED.
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ii. Quid Pro Quo Sexual Harassment – Complainant #2
60. Respondent also engaged in sexual harassment by quid pro quo as to Complainant
#2. Pursuant to Ohio University Policy 03.004(E)(1), “sexual harassment by quid
pro quo” is “physical or verbal conduct of a sexual nature that is unwelcome and
sufficiently severe or pervasive from both a subjective (the complainant's) and an
objective (reasonable person's) viewpoint, where: (a) submission to such conduct
is made either explicitly or implicitly a term or condition of a person's employment
or academic status; or (b) submission to or rejection of such conduct by a person
is used as the basis for employment or academic decisions affecting such person.”
61.

Here, Respondent told Complainant #2 to “be careful” because grades had not
been submitted when Complainant #2 challenged Respondent and called him an
“asshole”. Even if Respondent had “jokingly” made this statement, this warning,
coupled with Respondent’s actions in touching Complainant #2 under the table
highlighted the fact that Respondent was in a position of power over Complainant
#2. Respondent’s actions demonstrated that he was not afraid to exploit his power
over Complainant #2 for his own interest. The Investigator finds that, by putting
Complainant #2 in this difficult position at the end of the term, prior to grading
one of her papers and prior to the submission of final grades, Respondent’s
conduct clearly implied to Complainant #2 that her submission to Respondent’s
unwanted sexual contact could impact Complainant #2’s grade in the course. The
Investigator further concludes that a reasonable person in the same circumstances
would also feel that their grade or academic status was conditioned on accepting
Respondent’s unwanted sexual touching. Therefore, the Investigator concludes

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that the evidence meets both the subjective and objective standard of severity
required to establish quid pro quo sexual harassment.
62.

Accordingly, the Investigator finds that Complainant #2’s allegation of quid pro
quo sexual harassment is SUBSTANTIATED.
iii. Sexual

Harassment

by

Hostile

Environment

–

Complainant #2
63.

Respondent also engaged in sexual harassment by hostile environment as to
Complainant #2. In Ohio University Policy 03.004(E)(2), sexual harassment by
hostile environment is defined as, “Physical or verbal conduct of a sexual nature
that is unwelcome and sufficiently severe or pervasive from both a subjective (the
complainant's) and an objective (reasonable person's) viewpoint, where: such
conduct has the purpose or effect of unreasonably interfering with a person's work
or academic performance or creating an intimidating, hostile, or offensive
environment for working, learning, or living on campus.” The determination of
whether an environment is "hostile" is often contextual and must be based on the
circumstances. These circumstances could include: the frequency of the conduct;
the nature and severity of the conduct; relationship between the complainant and
the respondent; location and context in which the alleged conduct occurs; whether
the conduct was physically threatening; whether the conduct was humiliating; or
whether the conduct arose in the context of other discriminatory conduct.

64.

Here, the Investigator concludes that Respondent engaged in physical conduct of
a sexual nature that was unwelcome and severe from both Complainant’s
perspective and a reasonable person’s viewpoint. The Respondent created an
intimidating, hostile, and offensive environment for Complainant #2 because (1)
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the behavior occurred in a group setting where another graduate student observed
Respondent’s conduct towards Complainant #2 thus humiliating Complainant #2;
(2) the unwanted touching of a sexual nature occurred during an end-of-thesemester gathering for a graduate course; (3) Respondent had a direct supervisory
and evaluative relationship with Complainant #2; (4) Respondent had not yet
submitted grades for Complainant #2; and (5) Respondent’s unwanted touching
of a sexual nature occurred over the course of several hours while Respondent and
Complainant #2 were at two different establishments.
65.

The Investigator finds that the preponderance of the evidence supports a finding
that Respondent’s unwanted sexual touching of Complainant #2 adversely
impacted her educational opportunity at Ohio University. Following this incident,
Complainant #2 felt that her professional standing in the Department had been
compromised, and she contemplated not returning to Ohio University.

In

addition, Complainant #2 told the Investigator that she has encountered
complications in the Department stemming from Respondent’s unwanted sexual
touching of her and her subsequent report of that conduct to ECRC. In the early
Spring semester 2016, Complainant #2 went to great lengths to avoid Respondent
on campus. Complainant #2 also stated that the investigation has weighed heavily
on her mental state in both the Spring 2016 and Fall 2016 semesters, and she even
had to remove a faculty member from her dissertation committee because that
faculty member had such a close personal relationship with Respondent. Given
these circumstances, the Investigator finds that Respondent’s conduct has
interfered with Complainant #2’s academic opportunity at Ohio University.

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Respondent’s conduct also created an intimidating and hostile environment for
Complainant #2’s working and learning on campus.
66. The Investigator concludes the preponderance of the evidence supports a finding
that Respondent engaged in sexual harassment by hostile environment.
Accordingly, Complainant #2’s allegation of sexual harassment by hostile
environment by Respondent is SUBSTANTIATED.
67.

In summary, the findings regarding Complainant #2’s allegations against
Respondent are as follows: (1) a SUBSTANTIATED finding of non-consensual
sexual contact; (2) a SUBSTANTIATED finding of sexual harassment by quid
pro quo; and (3) a SUBSTANTIATED finding of sexual harassment by hostile
environment.
III.

Complainant #3

On July 12, 2016, Complainant #3 reported that in approximately 2003, she was
“inappropriately touched” by Respondent at a local bar. At the time of the incident,
Complainant #3 was a student at Ohio University and enrolled in one of Respondent’s
classes.

However, Complainant #3 stated that she had never even had a private

conversation with Respondent when the incident occurred. Complainant #3 said that she
was intoxicated and recalled an “inappropriate [physical] interaction” that made her feel
“uncomfortable.” Complainant #3 could not recall whether Respondent put his hand up
her skirt or put his hand up her shirt, but Complainant #3 stated that there was
inappropriate contact of a sexual nature.
a. Findings of Fact – Complainant #3
1.

Complainant #3 was enrolled as a student at Ohio University in from 2003-2005.

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2.

In Fall Quarter 2003, Complainant #3 was enrolled in a class Respondent was
teaching. 25

3.

Near the end of the semester, Complainant #3 attended a gathering at a local bar
with Respondent and other classmates.

4.

Many of the individuals present were drinking alcohol.

5.

Complainant #3 was drinking alcohol. Complainant #3 estimated that she drank
three or four drinks in a couple of hours.

6.

Complainant #3 cannot remember whether Respondent placed his hand up
Complainant #3’s shirt or up Complainant #3’s skirt, but she asserted that
Respondent touched her inappropriately during the gathering.

7.

Complainant #3 stated that she did not “black out” from drinking or anything like
that, but her memory of these events is “just not the best” given that it was
approximately 13 years ago.

8.

Complainant #3 told ECRC that she was unsure who was present at the bar at the
time in question, but she thought that it was possible that Complainant #5 might
have been present.

9.

Complainant #5 told ECRC that she observed Respondent touching Complainant
#3’s back, with Respondent’s hand on the inside of Complainant #3’s shirt.
Complainant #5 said that Respondent took the class out for drinks in Fall 2003.
They went to a bar in uptown Athens. Complainant #5 believes that the bar might
have been Tony's Bar. Complainant #5 was seated next to Complainant #3 and

25 In the initial notice of allegations pertaining to Complainant #3, the Investigator erroneously noted that
Complainant #3 was not enrolled in a class with the Respondent at the time of the alleged conduct. After
Respondent asked the Investigator about this statement, the Investigator clarified this issue with
Complainant #3. Complainant #3 confirmed that she was, in fact, enrolled in a course with Respondent at
the time of the alleged conduct.

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Respondent was seated on the other side of Complainant #3. Complainant #5
remembered that Respondent got "a little handsy" at the bar and had his hand up
Complainant #3's shirt. Complainant #5 said that she observed Respondent place
his hand inside Complainant #3's shirt and mid-way "up the back" of Complainant
#3. Complainant #3 was Complainant #5's roommate at the time. Complainant
#5 said that she recalled the behavior being "clearly inappropriate" for a faculty
member to be touching a student in that manner.
10.

Complainant #3 told the Investigator that she called her then-fiancé (now her
husband) that night after leaving the bar. Complainant #3 recalled that her
husband was “furious and worried” about Respondent’s behavior towards
Complainant #3 when she told him about the incident. Complainant #3’s husband
declined the opportunity to give a statement to ECRC.

11.

Complainant #3 did not report the incident to the university at the time.

12.

In response to Complainant #3’s allegations, Respondent asserted that Witness II
was present with Respondent during this gathering in November 20003, and that
Witness II would attest that Respondent did not touch Complainant #3 in the
manner alleged. Witness II is Respondent’s sister-in-law. Witness II told the
Investigator that she was present for an end-of-the-term celebration with
Respondent in the 2003 timeframe, and she can specifically recall this visit with
Respondent and Witness GG because Witness II was transitioning to a new job and
had some time off. Witness II said that she was “bored” and Respondent invited
her to accompany him to this gathering at a local bar. Witness II asserted that she
was seated close to Respondent for the entire evening, and Witness II said she

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never saw Respondent touch any of the students who were present at that
gathering.
13.

Neither Complainant #3 nor Complainant #5 recall Witness II being present for
this specific end-of-the-term celebration. However, Complainant #3 said that it
was possible that Witness II was present. Additionally, while Complainant #5 said
that she vaguely remembers something about Respondent’s sister-in-law,
Complainant #5 does not specifically recall Witness II being present at the bar in
2003.

14.

The Investigator notes that Complainant #3 experienced some confusion about
what she experienced at the end-of-the-semester gathering in approximately 2003.
A lot of time has elapsed since the alleged events.

15.

Respondent denied that he touched Complainant #3 either up her shirt or up her
skirt during an end-of-the-semester gathering.

16.

However, Complainant #5 directly observed Respondent placing his hand inside
Complainant #3’s shirt and touching Complainant #3’s back. Complainant #5 was
Complainant #3’s roommate at the time, and it makes sense that Complainant #5
would recall this interaction between Respondent and her roommate.

17.

Although it is challenging to make a determination about alleged events that
transpired more than a decade prior, the Investigator finds that a preponderance
of the evidence supports a finding that Respondent placed his hand inside
Complainant #3’s shirt and touched Complainant #3’s mid-back at the Fall 2003
end-of-the-semester gathering. The Investigator finds Complainant #5 to be a
credible witness who recalled many details about her observations. Although
Complainant #3 was unsure about the exact nature of the physical contact,
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Complainant #3’s recollection that she had felt “uncomfortable” and that the
physical contact was “inappropriate” led the Investigator to conclude that
Respondent engaged in some type of unwelcome physical contact of a sexual
nature with Complainant #3. The fact that Complainant #3 contemporaneously
called her then-fiancée to tell him about Respondent’s conduct corroborates
Complainant #3’s allegations and recollection that Respondent touched her
inappropriately even if she cannot now remember where he touched her on her
body. Although it would have been helpful to secure the statement of Complainant
#3’s then-fiancée 26, the Investigator finds that the evidence shows that
Complainant #3 had no apparent motivation to fabricate information about
Respondent more than a decade after graduating from Ohio University. She is not
currently affiliated with the University. She did not contact ECRC to report this
information in 2016. Rather, the Investigator contacted Complainant #3 in followup to information received from another individual. Complainant #3 was initially
somewhat reluctant to provide information to ECRC because she admittedly did
not have a full memory of the events of that evening. The Investigator finds
Complainant #3 to be truthful in her statement to ECRC about the alleged events
in approximately 2003, and the Investigator finds that the evidence supports a
conclusion that some type of unwelcome physical contact occurred. Given the
statement of Complainant #5, the Investigator finds that the physical contact was
Respondent placing his hand up Complainant #3’s shirt and touching
Complainant #3’s back.

26

Complainant #3’s then-fiancée (now-husband) was not willing to provide a statement to ECRC.
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b. Analysis and Conclusions – Complainant #3
i. Sexual Harassment - Complainant #3
18.

ECRC must apply the Ohio University policy that was in place at the time of the
alleged conduct. 27 Accordingly, Ohio University Policy 03.004: Harassment
(October 28, 2002 – March 27, 2006) is the appropriate policy as to the allegations
of Complainant #3.

19.

Ohio University Policy 03.004: Harassment (October 28, 2002 – March 27, 2006)
states:
Harassment of students, staff, or faculty is not acceptable behavior
at Ohio University. No male or female member of the Ohio University
community including faculty, contract staff, classified staff, and
students may harass any other member of the community. Many
forms of harassment are discrimination under Title VII of the Civil
Rights Act of 1964 and thereby illegal under law as well as a violation
of Ohio University Policy. Ohio University is committed to
maintaining an environment in which every individual can work,
study, and live without being harassed. Harassment may lead to
sanctions up to and including termination of employment or student
status.
Harassment is any conduct that has the intent or effect of
unreasonably interfering with an individual's or group's educational,
living, or work environment. Harassment includes conduct relating
to race, color, gender, disability, religion, sexual orientation, age,
national origin, or veteran status.
In addition, sexual harassment includes unwanted advances,
requests for sexual favors, or other verbal or physical conduct of a
sexual nature when:
1. Submission to such conduct is made either explicitly or
implicitly a term or condition of employment or of a student's
status in a course, program, or activity;
2. Submission to or rejection of such conduct is used as the
basis for decisions affecting the individual; or

27 Respondent and his legal counsel were provided with a copy of Ohio University Policy 03.004:
Harassment (October 28, 2002 – March 27, 2006) on August 19, 2016, shortly after the notice of
additional allegations.

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3. Such conduct has the purpose or effect of unreasonably
interfering with the individual's work, performance, or
educational experience; or of creating an intimidating, hostile,
or offensive environment for work or learning.
Nonsexual verbal or physical conduct that denigrates or shows
hostility toward another because of the person's gender can be the
basis for a hostile, offensive, or intimidating environment claim.
Gender based conduct can take the form of abusive written or
graphic material; epithets; sexist slurs; negative stereotyping; jokes;
or threatening, intimidating, or hostile acts.
20. In this case, Respondent engaged in sexual harassment as to Complainant #3.
Complainant #3 told ECRC that she remembers feeling “uncomfortable” that a
faculty member made physical contact with her body under her shirt during an
end-of-the-semester gathering at a local bar. Respondent placed his hand inside
Complainant #3’s clothing to touch Complainant #3’s back. This unwelcome
physical contact was an inappropriate blurring of proper professional boundaries
between professor and student. Given that Respondent placed his hand inside
Complainant #3’s clothing, which would have required intentional effort on
Respondent’s part, the Investigator concludes that the physical contact was either
intended to be sexual in nature or was done because of Complainant #3’s female
gender.
21.

The Investigator concludes Respondent’s unwanted touching of Complainant #3
under her clothing, at an end-of-the-term gathering, when Complainant #3 was
enrolled in Respondent’s class occurred in a context that implied to Complainant
#3 that her grade or academic status was contingent on her acquiescence to
Respondent’s unwanted touching. Moreover, the Investigator concludes that an
objective third party under the same circumstances would similarly believe it was

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implied their grade or academic status was conditioned on their submission to
Respondent’s unwanted touching. The Investigator concludes that such unwanted
touching of a sexual nature or because of a student’s gender inherently interferes
with the student’s educational opportunity. The fact that it did so here for
Complainant #3 is confirmed by the evidence of her contemporaneous call to her
then-fiancé and the fact that it was of such consequence for her that both she and
Complainant #5 still remember it 13 years later as clearly inappropriate conduct
by Respondent.
22.

Respondent argues that Complainant #3’s allegations are fabricated because
Complainant #3 sought his assistance with an essay in September 2004 and also
voluntarily enrolled in a class with Respondent before she graduated from the
program. Respondent asserts that these behaviors do not support Complainant
#3’s allegations because she would not have continued to have contact with him if
Respondent had done what she alleges. However, Complainant #3 said that the
culture in the Department at that time tolerated such conduct by Respondent and
the department culture expected a student to “be flattered” and “move on” if
Respondent made advances to them. Complainant #3 said that there was an
“understanding” amongst the graduate students that this type of behavior by
Respondent was accepted in the department as normal. The Investigator finds that
Complainant #3’s subsequent enrollment in Respondent’s course and/or her
request for Respondent’s assistance in drafting an essay do not substantially
undermine Complainant #3’s statements to ECRC about Respondent’s conduct in
2003.

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23.

For the foregoing reasons, the Investigator concludes there is sufficient evidence
to support a finding that Respondent violated Ohio University Policy 03.004 as to
Complainant #3. Accordingly, the Investigator finds that the allegation of
“harassment” as alleged by Complainant #3 is SUBSTANTIATED.
IV.

Complainant #4 28

Allegations: On May 16, 2016, ECRC received information from Witness R that
suggested that Respondent violated Ohio University Policy 03.004 by engaging in
inappropriate conduct that was sexual nature as to an unknown student (hereinafter
referred to as “Complainant #4”).

The allegations pertained to events that allegedly

transpired during an Honor Fraternity gathering on June 2, 2004, at a local eatery in
Athens. Witness R told ECRC that she observed Respondent place his hand on top of
Complainant #4’s trousers. Witness R told ECRC that the student felt uncomfortable and
was making faces at Witness R. Witness R said that Complainant #4 “leapt up” from her
seat and left the event. Witness R followed Complainant #4 and asked her if she was okay.
Witness R said that Complainant #4 told Witness R that she was “upset” and that she just
wanted to go home. Witness R said that Complainant #4 came to her office on June 9,
2004, and Witness R told the student that she could file a complaint against Respondent.
Witness R said that Complainant #4 was not interested in filing a complaint because she
was worried about retaliation.

Witness R said that she reported this incident to

ECRC began referring to this individual as “Complainant #4” when the identity of this student was not
yet known to ECRC. At that point, ECRC simply had a statement from Witness R that Witness R had
observed Respondent touching a student. Witness R would not disclose the identity of the unknown student
at that time. Eventually, Witness R disclosed the name of the student. When ECRC spoke with Complainant
#4, Complainant #4 denied that Respondent engaged in any inappropriate conduct as to her. “Complainant
#4” did not file a complaint against Respondent and she did not allege wrongdoing on the part of the
Respondent. However, because ECRC had previously referred to this individual as unknown Complainant
#4, the Investigator continues to identify this person as “Complainant #4”.
28

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Institutional Equity when Witness R was asked to give a statement in 2006. However,
Witness R did not disclose the name of the student at that time. In her statement to ECRC
on May 16, 2016, Witness R also declined to give ECRC the name of the student. On
August 9, 2016, Witness R disclosed the name of the former student. ECRC then
contacted the former student to obtain a statement.
a. Findings of Fact – Complainant #4
1. Complainant #4 is a former undergraduate student at Ohio University.
2. Complainant #4 said that she "kinda expected" ECRC's phone call after having a
conversation with Witness R. Complainant #4 said that Witness R was conflicted
about whether she should give Complainant #4's name to the University.
3. Witness R told Complainant #4 that she saw something at a Sigma Tau Delta
function when Complainant #4 was a student. Specifically, Witness R told
Complainant #4 that Witness R had observed Respondent put his hand on
Complainant #4's trousers and lower back.
4. Complainant #4 told the Investigator that all of her interactions with Respondent
were "pleasant".
5. Complainant #4 told the Investigator that she does not recall Respondent putting
his hand on her lower back at a Sigma Tau Delta function.
6. Complainant #4 told the Investigator that she was at the Sigma Tau Delta function
in approximately April or May 2004, and she believes that she sat next to
Respondent. However, Complainant #4 told the Investigator that she does not
remember anything "inappropriate, shocking, or alarming" occurring at this event.
7. The Investigator asked Complainant #4 about Witness R's statement that
Complainant #4 "leapt up" from the table and left the function because she was
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upset. Complainant #4 does not recall getting up from the table and leaving the event
as described by Witness R. Complainant #4 said that she has a pretty good memory
and she would have remembered that.
8. Complainant #4 does not recall being upset following the Sigma Tau Delta function.
9. The Investigator asked Complainant #4 if she had a conversation with Witness R
after the Sigma Tau Delta event in which Complainant #4 and Witness R discussed
the possibility of filing a complaint. Complainant #4 said that she did not remember
going to Witness R's office to have a follow-up conversation about the Sigma Tau
Delta event and/or filing a complaint. Complainant #4 further stated that she does
not remember ever discussing "filing a complaint" with Witness R.
10. Complainant #4 said that she "didn't think anything of the Sigma Tau Delta" event.
Complainant #4 said that she was "somewhat surprised" by Witness R and ECRC
contacting her because she does not have any memory of anything "inappropriate"
happening with Respondent.
11. In his response to the allegations of Witness R, Respondent denied placing his hand
on the lower back of Complainant #4 at a Sigma Tau Delta function.
12. Moreover, Respondent denied “groping” or “harassing” any Sigma Tau Delta
undergraduate student.
b. Analysis and Conclusions – Complainant #4
Given the statement of Complainant #4 and the statement of Respondent, the
Investigator concludes the preponderance of the evidence is insufficient to support a
finding that Respondent violated Ohio University Policy 03.004 as to Complainant #4.
Accordingly, the Investigator finds that the allegation of non-consensual sexual contact

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by

Respondent

toward

Complainant

#4

as

alleged

by

Witness

R

is

UNSUBSTANTIATED.
V.

Complainant #5

Allegations: In July 2005, Complainant #5 was a new graduate of the Ohio
University and had accepted a temporary position as an adjunct instructor within the
Department. Complainant #5 had a birthday celebration in uptown Athens around July
28, 2005. A group of Complainant #5’s friends went to a local restaurant for dinner and
then walked to the bar across the street for drinks. Complainant #5 said that Respondent
was not invited to the gathering, but he showed up at the bar. Complainant #5 said that
Respondent put his hand in “inappropriate places” such as “up [her] skirt” while seated
next to Complainant #5 at the bar. Complainant #5 said that her skirt was knee length or
above, and Respondent’s hand made contact with parts of her body, including her legs
and upper thighs. Complainant #5 said that there were witnesses to this behavior.
Complainant #5 said that she did not “make a big deal” about the contact because she was
applying to graduate school and needed letters of recommendation from Respondent.
Complainant #5 said that she felt like she could not tell Respondent “no” at that time.
However, because Respondent is no longer a threat to her professional career,
Complainant #5 is reporting the behavior now (the report was received on July 1, 2016).
a. Findings of Fact – Complainant #5
1.

Complainant #5 is a former graduate student and is a former adjunct instructor in
the same department as Respondent.

2.

As discussed above, in Fall 2003, Complainant #5 observed Respondent place his
hand on the inside of Complainant #3’s shirt and up Complainant #3’s back at a
local bar. Complainant #5 was Complainant #3’s roommate at the time.
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3.

Thereafter, Complainant #5 graduated from Ohio University and accepted
employment as an adjunct instructor in the department beginning in June 2005. 29

4.

On or about July 28, 2005, Complainant #5 went out with some friends to
celebrate her birthday. 30

5.

The group went to Casa Nueva to have dinner and then they went to the bar across
the street from Casa Nueva. 31

6.

Respondent joined the group at the bar across the street from Casa Nueva. The
Investigator finds that the bar was “Tony’s Tavern”.

7.

The Investigator finds that the following individuals were present: Respondent,
Complainant #5, Witness U, Witness V, and an unknown individual. 32

8.

Complainant #5 was drinking alcohol. Witness U told ECRC that Complainant #5
was “the most intoxicated person at the table, by far.”

9.

Complainant #5 alleges that Respondent put his hand "up her skirt" while
Complainant #5 was seated next to Respondent during this birthday gathering.
Complainant #5 said that Respondent’s hands also made contact with her legs and
upper thigh.

10.

Witness U told ECRC that she observed Respondent place his hands in the lap of
Complainant #5. Witness U also observed Respondent touch Complainant #5 on

29

Complainant #5 has since ended her employment with Ohio University and moved out of state.

30 This celebration occurred

either on Complainant #5’s actual birthday or within a few days of her birthday.

Complainant #5 said that she does not remember the name of the bar, but it is the bar that is directly
across the street from Casa Nueva. The Investigator notes that Tony’s Tavern is directly across the street
from Casa Nueva.
31

32 The Investigator notes that Respondent submitted a calendar entry from Thursday, July 28, 2005, in
which Respondent had noted “drinks with Witness EE – 9 p.m.”. However, Witness EE stated that he does
not have any specific recollection of going out to a bar with both Respondent and Witness U.

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the leg and knee. Witness U said that it was “hard to tell what was happening” but
the others who were present knew what was going on.
11.

Witness V remembers being present at the bar for this occasion. However, Witness
V does not recall seeing Respondent inappropriately touching Complainant #5.

12.

Complainant #5 did not report Respondent’s behavior to Institutional Equity at
the time of the alleged events in July or August 2005.

13.

Respondent denies placing his hand in Complainant #5’s lap or touching
Complainant #5’s legs or upper thigh on this occasion in July or August 2005.

14.

Respondent actually wrote two letters of recommendation for Complainant #5 in
November of 2006.

15.

Complainant #5 told the Investigator that she called and made a report of
Respondent’s behavior to Institutional Equity in approximately 2006, after
Complainant #5 had moved from Ohio. ECRC does not have any documentation
of Complainant #5’s report to Institutional Equity in the 2006 timeframe. 33
b.

16.

Analysis and Conclusions – Complainant #5

Complainant #5 reviewed the summary of evidence, including the summary of her
statement, prior to this final memorandum being issued. Likewise, Respondent
reviewed the summary of evidence, including the summary of his statement, prior
to this final memorandum being issued.

33

Although ECRC no longer has a record of the 2006 contact with Institutional Equity, multiple witnesses
told the Investigator that there was an inquiry by Institutional Equity into allegations against Respondent
in 2006. Therefore, the Investigator does not draw any conclusion from the absence of documentation of
Complainant #5’s communication with Institutional Equity in 2006.
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i.
17.

Sexual Harassment - Complainant #5

ECRC must apply the Ohio University policy that was in place at the time of the
alleged conduct.

Accordingly, Ohio University Policy 03.004:

Harassment

(October 28, 2002 – March 27, 2006) is the appropriate policy as to the allegations
of Complainant #5.
18.

Ohio University Policy 03.004: Harassment (October 28, 2002 – March 27, 2006)
states:
Harassment of students, staff, or faculty is not acceptable
behavior at Ohio University. No male or female member of the
Ohio University community including faculty, contract staff,
classified staff, and students may harass any other member of
the community. Many forms of harassment are
discrimination under Title VII of the Civil Rights Act of 1964
and thereby illegal under law as well as a violation of Ohio
University Policy. Ohio University is committed to
maintaining an environment in which every individual can
work, study, and live without being harassed. Harassment
may lead to sanctions up to an including termination of
employment or student status.
Harassment is any conduct that has the intent or effect of
unreasonably interfering with an individual's or group's
educational, living, or work environment. Harassment
includes conduct relating to race, color, gender, disability,
religion, sexual orientation, age, national origin, or veteran
status.
In addition, sexual harassment includes unwanted advances,
requests for sexual favors, or other verbal or physical conduct
of a sexual nature when:
1. Submission to such conduct is made either explicitly or
implicitly a term or condition of employment or of a student's
status in a course, program, or activity;
2. Submission to or rejection of such conduct is used as the
basis for decisions affecting the individual; or
3. Such conduct has the purpose or effect of unreasonably
interfering with the individual's work, performance, or
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educational experience; or of creating an intimidating, hostile,
or offensive environment for work or learning.
Nonsexual verbal or physical conduct that denigrates or
shows hostility toward another because of the person's gender
can be the basis for a hostile, offensive, or intimidating
environment claim. Gender based conduct can take the form
of abusive written or graphic material; epithets; sexist slurs;
negative stereotyping; jokes; or threatening, intimidating, or
hostile acts.
19.

In denying Complainant #5’s allegation, Respondent asserted that it does not make
sense for Complainant #5 to have asked the person who assaulted her to then write
a letter of recommendation on her behalf.

20.

Respondent also asserted that Complainant #5 sent Respondent a friendly email
when she started her doctoral work in 2006, and it does not make sense for
Complainant #5 to send Respondent a friendly email if Respondent had sexually
assaulted Complainant #5.

21.

Complainant #5 does not recall sending Respondent an email after she left Ohio
University.

22.

Respondent consulted with Ohio University Institutional Technology and could
not retrieve an email from that timeframe.

23.

The Investigator finds that, even if such an email was sent by Complainant #5 in
Fall 2006, this act is not dispositive of whether Respondent engaged in appropriate
conduct towards Complainant #5 in July or August 2005. Respondent’s assertion
that Complainant #5 sent him a “friendly correspondence” does not explain
Witness U’s statement that she directly observed Respondent touching
Complainant #5.

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24.

Respondent also argues that Complainant #5 is motivated to make false
accusations against Respondent by her close friendship with Witness P. Witness
P is an emeritus professor in same Department as Respondent and had previously
raised concerns with Institutional Equity about Respondent. Respondent also
asserts that Complainant #5 is biased because she once rented an apartment from
Witness P. Respondent asserts that Complainant #5 is a close friend of Witness
P.

25.

Even if Complainant #5 rented an apartment from Witness P and is a close friend
of Witness P, the Investigator concludes there is no evidence showing that this
relationship between Complainant #5 and Witness P was the catalyst for
Complainant #5’s report to ECRC. The Investigator notes that Complainant #5 did
not proactively contact ECRC about her allegations against Respondent. Instead,
the Investigator contacted Complainant #5 in 2016 after the Investigator obtained
information from Witness U about possible sexual misconduct involving
Respondent and Complainant #5.

26.

Complainant #5 is no longer affiliated with Ohio University and has little (if
anything) to gain from making false accusations against Respondent.

The

Investigator, therefore, concludes that Respondent’s assertion that Complainant
#5 is intentionally fabricating the story as part of a “social justice” crusade against
Respondent is unreasonable and not supported by any evidence.
27.

The Investigator therefore finds that Respondent placed his hand up Complainant
#5’s skirt and in Complainant #5’s lap at a local bar in July or August 2005.

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28.

The Investigator finds that Respondent touched Complainant #5 on her legs and
her thighs while seated next to Complainant #5 at a local bar in July or August
2005.

29.

The Investigator further finds that this conduct was sexual harassment. In Policy
03.004: Harassment (October 28, 2002 – March 27, 2006), “sexual harassment”
is defined as unwanted advances, requests for sexual favors, or other verbal or
physical conduct of a sexual nature when: (1) submission to such conduct is either
explicitly or implicitly a term or condition of employment or of a student's status
in a course, program, or activity; (2) submission to or rejection of such conduct is
used as the basis for decisions affecting the individual; or (3) such conduct has the
purpose or effect of unreasonably interfering with the individual's work,
performance, or educational experience; or of creating an intimidating, hostile, or
offensive environment for work or learning.

30.

In this case, the Investigator finds that Respondent’s conduct had the purpose or
effect of creating an intimidating, hostile, and offensive environment for work.
Complainant #5 said that she “pretended like it didn’t happen” because she hoped
to secure letters of recommendation from Respondent. Moreover, Complainant
#5 was a new graduate, adjunct instructor at the time of the alleged events, and
Respondent was a well-respected full-time faculty member. There was a power
disparity between the two parties, and Respondent exploited his authority over
Complainant #5 to engage in this harassing behavior.

31.

For the foregoing reasons, the Investigator concludes the preponderance of the
evidence is sufficient to support a finding that Respondent violated Ohio
University Policy 03.004 (October 28, 2002 – March 27, 2006) as to Complainant
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#5. Accordingly, the Investigator finds that the allegation of “sexual harassment”
as alleged by Complainant #5 is SUBSTANTIATED.
VI.

Complainant #6

Allegations: On April 23, 2016, “Jane Smith” [pseudonym] emailed University
Equity and Civil Rights Compliance to report that Respondent made “physical sexual
advances” following a Department function at a local restaurant “several years ago”.
“Jane Smith” (“Complainant #6” in this memorandum) said that she was new to the
program and did not know Respondent when the unwanted physical sexual advances
occurred. Complainant #6 said that Respondent bought her several cocktails and kept
“encouraging [her] to relax, have fun, and to drink up.” She reported that, as she was
leaving the function later in the night, Respondent made “physical sexual advances”
[Complainant #6 did not provide any detail as to what she meant by “physical sexual
advances”] on her. Complainant #6 said that she was sufficiently intoxicated and that she
could not give consent to the sexual advances. She reported that she was “shocked at
first”, but she “stopped [Respondent’s] advances and left.” Complainant #6 said that she
has taken great care to avoid Respondent since the incident, and she refuses to attend any
departmental functions that she believes would involve Respondent.
a. Findings of Fact – Complainant #6
1.

Complainant #6 identified herself only as “Jane Smith” (a pseudonym).

2.

This individual communicated with ECRC via an anonymous Gmail email account.

3.

In the initial email, Complainant #6 said that a friend had given Complainant #6
the ECRC Investigator’s card and encouraged her to come forward.

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4.

Complainant #6 refused to come forward as “anything but an anonymous
complainant” because she was “terrified” of retaliation. 34

5.

Complainant #6 alleged that Respondent bought her several cocktails during a
Department function at a local restaurant “several years ago” and then proceeded
to make “physical sexual advances” towards her. 35

6.

In follow-up email correspondence with the ECRC Investigator, Complainant #6
said that the current climate in the Department is one of “fear, hostility, and
suspicion” and Complainant #6 does not feel comfortable coming forward as a
named complainant.

7.

Complainant #6 said that she and others have already been contacted by faculty
who have "warned" them that whatever they think may have happened was
probably just a "misunderstanding."

8.

Complainant #6 said that Respondent “targets a vulnerable population of female
students and uses his power and position to take advantage of them.”

9.

ECRC has limited ability to investigate anonymous complaints when the
Investigator cannot determine the specifics of the alleged conduct, the location
where the alleged conduct occurred, the timeframe, the specific parties involved,
or if there are any potential witnesses to the alleged conduct.

10.

Furthermore, given the anonymous Gmail account used by Complainant #6, ECRC
cannot verify that Complainant #6 is a student, faculty member, staff member, or

The Investigator provided Complainant #6 information about Ohio University’s non-retaliation policy,
but Complainant #6 still did not feel comfortable sharing her name.

34

35 The use of the phrase “physical sexual advances” was never clarified by Complainant #6. The Investigator
recognizes that this terminology could mean different things to different individuals. At a minimum, a
follow-up conversation with Complainant #6 would be necessary to clarify what she means by “physical
sexual advances.”

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alumnus of Ohio University, and therefore has no way to reasonably assess the
credibility of Complainant #6.
11.

The Investigator attempted to contact Complainant #6 again on Monday, August
15, 2016, and the email was “undeliverable”, presumably because the email account
had been deleted.

12.

Because ECRC had no other way to contact Complainant #6, Complainant #6 did
not review the summary of evidence packet in this case.

13.

Respondent reviewed the summary of evidence, including the summary of his
statement as to Complainant #6. Respondent told the Investigator that he never
did the things specified in Complainant #6’s email to anyone. Respondent said
that he never touched a student in a sexual manner during or following any of the
beginning-of-the-year Department functions.

Respondent said that he never

kissed a student during or following these functions. Respondent further stated
that he has no idea who might have submitted the email to ECRC under the
pseudonym “Jane Smith”.
b. Analysis and Conclusions – Complainant #6
14.

First and foremost, because Complainant #6 did not disclose the date of the alleged
behavior, the Investigator cannot determine which version of Ohio University
Policy 03.004 should be applied. Moreover, because Complainant #6 did not
disclose the specifics of the alleged conduct, the Investigator would not be able to
evaluate the conduct against the policy. Finally, because Complainant #6 has
chosen to remain anonymous, it prevents the Investigator from being able to test
the veracity of the allegations or assess Complainant #6’s credibility.

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15.

Without knowing the identity of Complainant #6, ECRC’s ability to investigate is
severely limited. Furthermore, Respondent’s ability to respond to the allegations
is severely limited when he does not know the accuser and does not know the date
or location of the alleged event.

16.

Respondent told ECRC that he does not know the identity of Complainant #6.

17.

Respondent denied that he engaged in the behaviors described by Complainant #6.

18.

Without more information, there is insufficient evidence to show a violation of
Ohio University Policy 03.004.

19.

Accordingly, the Investigator finds that the allegation of non-consensual sexual
contact as alleged by Complainant #6 (an anonymous complainant) is
UNSUBSTANTIATED.
VII.

Analysis Given the Totality of the Circumstances

In summary, the Investigator concluded that Respondent violated Ohio University
Policy 03.004 and engaged in non-consensual sexual contact with Complainant #1 at both
Tony’s Bar and outside Ellis Hall. The Investigator concluded that Respondent violated
Ohio University Policy 03.004 and engaged in quid pro quo sexual harassment as to
Complainant #1. The Investigator concluded that Respondent violated Ohio University
Policy 03.004 and engaged in sexual harassment by hostile environment as to
Complainant #1. The Investigator concluded that Respondent violated Ohio University
Policy 03.004 and engaged in non-consensual sexual contact with Complainant #2 at
both Jackie O’s Pub and Tony’s Tavern. The Investigator concluded that Respondent
violated Ohio University Policy 03.004 and engaged in quid pro quo sexual harassment
as to Complainant #2. The Investigator concluded that Respondent engaged in sexual
harassment by hostile environment as to Complainant #2. The Investigator concluded
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that Respondent engaged in sexual harassment as to Complainant #3. The Investigator
concluded that Respondent engaged in sexual harassment as to Complainant #5. 36
In light of the severity of the acts and multitude of acts, the Investigator finds that
this conduct is not an isolated incident of bad judgement on the part of the Respondent.
Rather, the Investigator finds that the preponderance of the evidence supports a
conclusion that Respondent has engaged in a pattern of exploiting females who are
subordinate to Respondent by virtue of their student status or their junior employment
status. In this case, Respondent’s misconduct, as documented through this investigation,
represents a very serious Title IX violation. Consequently, effective remediation requires
serious consequences for the Respondent to hold him accountable for his actions.
Respondent alleges that the complaints filed against him are the result of a
conspiracy against him and his spouse that has evolved over many years. Respondent
noted that there was a prior report to Ohio University Institutional Equity in 2006 by
other faculty in the Department. According to Respondent, he was never contacted by
Institutional Equity, but he was informed of the report by the then-Department Chair
(Witness AA). 37

Respondent argues that Witness P, Witness Q, and Witness R have

collectively decided that Respondent is a “sexual predator”, and those faculty members
have perpetuated rumors and conjecture about Respondent.

Respondent said that

36 As explained in more detail above, the Investigator also found the allegation of Witness R (as to
Complainant #4) to be unsubstantiated, and the allegation of Complainant #6 to be unsubstantiated.

Based upon the statements of multiple witnesses who met with Institutional Equity (IE) regarding the
2006 report, it appears that there was insufficient information for IE to proceed in 2006. The Department
Chair in 2006 was Witness AA. Witness AA recalled meeting with Witness X (the former Director of
Institutional Equity) to discuss the report of possible sexual misconduct. Witness AA said that there was
no specific charge or allegation against Respondent, and his recollection was that the report to IE was based
upon rumors. IE conducted a climate survey of graduate students in response to the report, and Witness
AA said he shared the climate survey with the Administrative Committee of the Department. The
Investigator notes that neither ECRC nor the Department has a copy of the 2006 climate survey.
37

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Complainant #2 and Complainant #5 were renters and close friends of Witness P.
Respondent noted that Witness Q used to warn incoming graduate students that
Respondent was a “sexual predator”. Witness R informed ECRC that she observed
inappropriate behavior by Respondent that Complainant #4 asserted did not occur.
Respondent said that these types of comments created a harassing environment for
Respondent within the Department. Respondent asserts that the allegations against
Respondent are the result of a “social justice” crusade to get Respondent fired from his
job, due in part to the long history of rumors about Respondent.
The Investigator notes that the following incidents occurred from February 2016
through November 2016: 38


Multiple incidents of graffiti in the first floor women’s
bathroom of Ellis Hall. One statement named the Respondent
and said that he was a “sexual predator.”



An unknown party posted a copy of an email about how to
report sexual misconduct in the first floor women’s bathroom
of Ellis Hall



Two “sexual misconduct” news articles were placed in
Respondent’s faculty mailbox



A necklace and charm with the word “Bitch” was placed on the
door handle of Respondent’s office while Respondent was on
administrative leave

38 Respondent reported each of these events to ECRC, but without any information pertaining to the
responsible parties, ECRC was limited in its ability to follow-up and investigate these occurrences. The
Ohio University Police Department was contacted about the graffiti and filed a police report related to at
least one incident.

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In further support of his claim that he is the victim of a conspiracy, Respondent
asserted that there have been members of the campus community who have been
outspoken in their opinions of the Respondent. However, the Investigator finds it highly
unlikely that the complainants in this case are participating in a conspiracy against
Respondent. Complainant #1 and Complainant #2 reported sexual misconduct stemming
from an event on December 3-4, 2015. These events were witnessed by multiple parties
and corroborated by the disclosures of independent witnesses. Complainant #3 reported
sexual misconduct stemming from the 2003 timeframe – more than twelve (12) years
earlier.

Respondent’s behavior as to Complainant #3 was observed by a witness

(Complainant #5). Complainant #5 reported sexual misconduct stemming from 2006.
Respondent’s behavior as to Complainant #5 was observed by Witness U.

The

Investigator notes that Complainant #3, Complainant #5, and Witness U are no longer
affiliated with Ohio University and are not entangled in Department politics. ECRC
contacted Complainant #3 in follow-up to information supplied by another witness, and
Complainant #3 was somewhat reluctant to disclose information to ECRC at first. ECRC
contacted Complainant #5 in follow-up to information received by Witness U, and it was
at that time that Complainant #5 disclosed her experiences with Respondent. To assert
that these complainants, who have very little-to-nothing to gain from making an
accusation of sexual misconduct against Respondent, were acting in collusion with one
another is simply not a reasonable assertion. To claim, without evidence, that Witness P
is the mastermind of this grand scheme against Respondent and that all of the
complainants are willfully participating in a conspiracy to get Respondent “fired” is
simply not a reasonable assertion.

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This Respondent repeatedly engaged in conduct that was highly inappropriate,
egregious, an abuse of his authority, and sexual misconduct.

There is no other

explanation for his actions. The Investigator finds that a preponderance of the evidence
shows that Respondent engaged in remarkably similar conduct that constitutes sexual
misconduct as to FOUR (4) different members of the campus community. Given the
severity and pervasiveness of these violations of policy, the Investigator recommends that
the Department, the College, and the Institution take appropriate action to remediate the
effects of Respondent’s misconduct and to prevent the possibility of re-occurrence.
VIII. Recommendations Given the Totality of the Circumstances
1.

This matter is submitted to the Department Chair and the Dean for consideration
of possible disciplinary action in accordance with Ohio University policies and
procedures applicable to faculty discipline.

2.

Because this behavior involved repeated instances of sexual misconduct directed
towards students and an employee of Ohio University, ECRC recommends that
Respondent remain on administrative leave until a final determination of
appropriate disciplinary action (if any) has been made.

3.

ECRC recommends that Respondent be directed to have no contact with any of the
complainants pending final determination of possible disciplinary action.

4.

ECRC recommends that Respondent be banned from campus pending final
determination of possible disciplinary action.

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