Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 1 of 68 PAGEID #: 504 LAW OFFICE OF MICHAEL L. FRADIN Michael L. Fradin, Esq. 8401 Crawford Ave. Ste. 104 Skokie, IL 60076 Telephone: 847-986-5889 Facsimile: 847-673-1228 Email: mike@fradinlaw.com Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION CHRISTINE ADAMS and SUSANNA HEMPSTEAD, Plaintiffs, Case No. 2:17-cv-00200 FIRST AMENDED COMPLAINT DEMAND FOR JURY TRIAL v. OHIO UNIVERSITY, JOSEPH MCLAUGHLIN and ANDREW ESCOBEDO Judge Algenon L. Marbley Magistrate Judge Kimberly A. Jolson Defendants. Now Come Plaintiffs, Christine Adams (“Plaintiff Adams”) and Susanna Hempstead (“Plaintiff Hempstead”) (collectively “Plaintiffs”), by and through their Attorney, Michael L. Fradin, Attorney at Law, and bring their First Amended Complaint against Ohio University for violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX"). Plaintiffs also bring this action under 42 U.S.C. § 1983 (“1983”) against Andrew Escobedo (“Defendant Escobedo”) and Joseph McLaughlin (“Defendant McLaughlin”) in their individual capacities for violations of Plaintiffs’ right to equal protection, as applicable to Plaintiffs, based on the grounds of sex, while acting in their individual capacities under color of law. Plaintiffs -1FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 2 of 68 PAGEID #: 505 also bring negligence claims against Defendant Escobedo and seek prospective injunctive relief under 42 U.S.C. § 1983 against Joseph McLaughlin in his official capacity. The severe, pervasive and objectively offensive discrimination, sexual harassment, and physical sexual violations to which the Plaintiffs were subjected coupled with the Defendants’ deliberate indifference and clearly unreasonable response to sexual misconduct caused the Plaintiffs to lose educational benefits and opportunities and to suffer other damages. Defendants’ actions and deliberate indifference have caused lifelong injuries and damages that Plaintiffs suffered and continue to suffer. Defendants Ohio University and Joseph McLaughlin were deliberately indifferent to Defendant Escobedo’s past misconduct, fostering a safe space for sexual misconduct and empowering Defendant Escobedo to confidently abuse his authority. If this Court does not grant appropriate relief, Defendants will not stop causing severe and permanent harm to its female graduate students, especially within the English Department. Plaintiffs bring their First Amended Complaint in their true names and allege as follows: PARTIES 1.   Plaintiff Adams is a female and a resident of the state of Virginia. At all times material hereto, Plaintiff Adams was a graduate student at Ohio University. Plaintiff Adams is currently enrolled in the graduate program at Ohio University. 2.   Plaintiff Hempstead is a female and resident of the state of New York. At all times material hereto, Plaintiff Hempstead was a graduate student at Ohio University. Plaintiff Hempstead is currently enrolled in the graduate program at Ohio University. 3.   Ohio University is a public educational institution located in Athens, Ohio. 4.   Ohio University receives federal funding and financial assistance within the meaning of 20 U.S.C. § 1681(a) and is otherwise subject to Title IX. 5.   Defendant Escobedo is a male and resident of Athens, Ohio. At all times material hereto, Defendant Escobedo was a professor at Ohio University. At the time of the filing of this Complaint, Defendant Escobedo remains a professor at Ohio University while on administrative leave. 6.   At all relevant times, Defendant Escobedo was an employee of a publicly-funded educational institution and was acting individually, exploiting his governmental authority and power, violating and depriving Plaintiffs of their constitutional rights. -2FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 3 of 68 PAGEID #: 506 7.   Defendant McLaughlin is a male and resident of Athens, Ohio. 8.   At all times material hereto, Defendant McLaughlin was a professor at Ohio University. 9.   Defendant McLaughlin was formerly the chair of the English Department at Ohio University. 10.   Defendant Escobedo and Defendant McLaughlin were, at all material times, employees of a publicly-funded educational institution. 11.   Defendant Escobedo and Defendant McLaughlin’s abuses of their power and their government-granted authority violated Plaintiffs’ constitutional rights. JURISDICTION AND VENUE 12.   This case arises under the laws of the United States, specifically United States, specifically Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et. seq. and 42 U.S.C. § 1983. This Court has jurisdiction in this matter pursuant to 28 U.S.C. §§ 1331, 1332, and 1343. 13.   This Court is an appropriate venue for this cause of action pursuant to 28 U.S.C. § 1391. The defendants are residents of the State in which this district is located and a substantial part of the events or omissions giving rise to the claim occurred in this district. GENERAL ALLEGATIONS Plaintiff Christine Adams 14.   Plaintiff Adams is a female graduate student in Ohio University’s English Department. 15.   During the fall of 2015, Plaintiff Adams was enrolled in a course taught by Defendant Andrew Escobedo. Defendant Escobedo makes unwanted sexual advances towards Plaintiff Adams 16.   On November 30, 2015, Defendant Escobedo sent an email to all students in his Introduction to English Studies (ENG 5950) class inviting them to an end-of-the-semester gathering at Jackie O’s Pub. Jackie O’s Pub is a well-known local bar and the invitation implied the presence of alcoholic beverages. -3FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 4 of 68 PAGEID #: 507 17.   The gathering took place on the evening of December 3-4. Plaintiff Adams arrived at Jackie O’s Pub approximately five or ten minutes before the planned meeting time of 7:00 p.m. 18.   Upon Plaintiff Adams’ arrival, Professor Escobedo immediately began buying rounds of alcoholic drinks for the group of students. 19.   At Jackie O’s Pub, Plaintiff Adams observed Professor Escobedo touching Plaintiff Hempstead’s knees, thighs, and back across and under the table. 20.   The group left Jackie O’s Pub at approximately 9:45 p.m. to relocate to a new bar. 21.   The group arrived at Tony’s Tavern at approximately 10:10 p.m. 22.   Throughout the night, Defendant Escobedo provided alcoholic drinks to Plaintiff Adams. 23.   Defendant Escobedo provided the alcoholic drinks to Plaintiff Adams in order to get Plaintiff Adams intoxicated so that she would be less likely to object to his sexual advances. 24.   At Tony’s Tavern, Plaintiff Adams was seated directly to Defendant Escobedo’s right and Plaintiff Hempstead was seated to his left. 25.   At Tony’s Tavern, Defendant Escobedo began touching Plaintiff Adams on various parts of her body. 26.   During the time the group spent at Tony’s Tavern, Defendant Escobedo touched Plaintiff Adams, without her consent, on her face, neck, hands, legs, thighs, knees, back, arms, buttocks, and vagina. At one point, Professor Escobedo placed his hand inside of Plaintiff Adams’ jeans to cup her bare buttocks, in addition to twice touching her buttocks over her pants. Defendant reached under Plaintiff Adams’ shirt to touch her bare back. While seated at the table, Defendant Escobedo touched Plaintiff Adams’ vagina with a rubbing motion over her clothing. 27.   Plaintiff Adams made noticeable faces signaling discomfort to other members of the group at the table. 28.   Plaintiff Adams conveyed the fact she was uncomfortable with Defendant Escobedo’s behavior and did not consent to the repeated physical contact, but Defendant Escobedo ignored these signals. 29.   Plaintiff Adams moved away from Defendant Escobedo to a new seat, placed objects between her and Defendant Escobedo, and even arranged people between herself and -4FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 5 of 68 PAGEID #: 508 Defendant Escobedo. Despite these clear indications, Defendant Escobedo continued to maneuver himself into close physical proximity of Plaintiff Adams and resumed making physical contact with Adams. 30.   Earlier that evening, Defendant Escobedo told Plaintiff Hempstead, “careful, I still haven’t submitted your grade.” 31.   Plaintiff Adams had overheard this comment and, therefore, subjectively believed that her response to Defendant Escobedo’s advances could impact her grade. 32.   Plaintiff Adams’ belief that her response could impact her grade was objectively reasonable. 33.   As her current professor, Defendant Escobedo had a position of power over Plaintiff Adams such that any sexual impositions by Defendant Escobedo involved an inherent quid pro quo. 34.   Defendant Escobedo purchased 5-6 alcoholic drinks for Plaintiff Adams over the course of the evening (between Jackie O’s Pub and Tony’s Tavern). Defendant Escobedo forces his tongue into Plaintiff Adams’ mouth 35.   Plaintiff Adams remained at Tony’s Tavern until approximately 12:45 a.m., when the group disbanded and left the bar. 36.   After leaving Tony’s Tavern, Adams and another member of the group, Jessica Cogar, began walking towards Ellis Hall together. Professor Escobedo soon caught up with the two students and joined them on their walk towards Ellis Hall. 37.   When the group reached Ellis Hall, Cogar went inside the building to use the restroom; Adams and Escobedo remained outside and waited for Cogar to return. 38.   When Cogar went inside, Professor Escobedo began confessing his sexual attraction to Plaintiff Adams. 39.   Professor Escobedo then pressed his body against Plaintiff Adams and non- consensually kissed her, inserting his tongue into her mouth. 40.   Plaintiff Adams did not reciprocate the kiss. She told Defendant Escobedo that she was not interested in a sexual relationship and did not consent to his advances. 41.   Despite Adams’s protests, Professor Escobedo continued to clutch Adams’ body against his own. Plaintiff Adams saw and felt that Professor Escobedo had an erection. -5FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 6 of 68 PAGEID #: 509 42.   Despite Plaintiff’s objections, Defendant Escobedo continued rubbing and gesturing his lower body and erection against Adams’ in a sexual manner. 43.   Professor Escobedo then told Plaintiff Adams that “she better not tell anyone either” about the events of that evening. 44.   Cogar then exited Ellis Hall and Defendant Escobedo allowed Adams to go free. Plaintiff Susanna Hempstead 45.   Plaintiff Hempstead is a female graduate student in Ohio University’s English Department. 46.   In fall 2015, Plaintiff Hempstead was also enrolled in ENG 5950, taught by Defendant Andrew Escobedo. Defendant Escobedo makes unwanted sexual advances towards Plaintiff Hempstead 47.   On November 30, 2015, Defendant Escobedo sent an email to all students, and the two co-instructors, in the course, inviting them to an end-of-the-semester gathering at Jackie O’s Pub. Jackie O’s Pub is a well-known local bar and the invitation implied the presence of alcoholic beverages. 48.   The gathering took place on the evening of December 3-4, 2015. Plaintiff Hempstead was one of the last students to arrive to Jackie O’s and ended up seated next to Defendant Escobedo. 49.   Upon arriving, Plaintiff Hempstead went to the bar to purchase a drink. Defendant Escobedo followed Plaintiff Hempstead to the bar and put his hands on Plaintiff Hempstead’s back and instructed the bartender to put her drink on his tab. 50.   Upon returning to their seats adjacent to one another, Professor Escobedo continued the unwanted sexual touching. Under the table, Defendant Escobedo began touching Plaintiff Hempstead’s hand, upper thighs, back, waist, buttocks, and other areas that were not visible to other members of the group. 51.   Defendant Escobedo had not yet submitted Plaintiff Hempstead’s final grade for the course. 52.   Because Defendant still had power over assigning her final course grade, Plaintiff Hempstead felt held hostage by Escobedo’s sexual advances. -6FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 7 of 68 PAGEID #: 510 53.   Earlier that evening. Defendant Escobedo responded to a comment by Hempstead by saying, “careful, I still haven’t submitted your grade.” 54.   Plaintiff Hempstead subjectively believed that her response to Defendant Escobedo’s advances could impact her grade. 55.   Plaintiff’s subjective belief that her response to Defendant Escobedo’s advances could impact her grade was objectively reasonable. 56.   As her current professor, Defendant Escobedo held a position of power over Plaintiff Hempstead such that there was an inherent quid pro quo to any sexual advances by Defendant Escobedo. 57.   While at Jackie O’s Pub, Plaintiff Hempstead made multiple attempts to increase the distance between herself and Defendant Escobedo. These attempts were made to prevent him from making physical contact with her and to signal that the physical advances were unwanted. Defendant Escobedo ignored these obvious indicators (as he did with Plaintiff Adams) and continued positioning himself close enough to Plaintiff Hempstead to be able to make physical contact. 58.   The group left Jackie O’s Pub at approximately 9:45 p.m. to relocate to a new bar. 59.   The group arrived at Tony’s Tavern at approximately 10:10 p.m. 60.   Throughout the night, Defendant Escobedo provided alcoholic drinks to Plaintiff Hempstead. 61.   Defendant Escobedo provided the alcoholic drinks in an attempt to get Plaintiff Hempstead intoxicated so that she would be less likely to object to his sexual advances. 62.   Defendant Escobedo continued the uninvited, inappropriate, and purposefully out- of-sight touching at Tony’s Tavern. Plaintiff Hempstead piled jackets and bags next to her seat so that Defendant Escobedo would not sit next to her, but instead he removed these items and sat next to Plaintiff Hempstead and continued to make physical contact with her. 63.   Defendant Escobedo continued the non-consensual sexual advances over the course of the evening. The touching occurred over Plaintiff Hempstead’s clothes and on her hands, arms, thighs, legs, knees, waist, lower back, buttocks, breast, and vagina—all without her consent. -7FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 8 of 68 PAGEID #: 511 64.   Defendant Escobedo’s hands came into contact with Plaintiff Hempstead’s crotch area and vagina multiple times. 65.   Plaintiff Hempstead left Tony’s Tavern at approximately 10:45 p.m. She was driven away specifically by Defendant Escobedo’s unwanted sexual advances and touching. 66.   As Plaintiff Hempstead attempted to exit Tony’s Tavern, Defendant Escobedo approached her to give her a hug. During this embrace, Professor Escobedo’s intentionally touched Plaintiff Hempstead’s breast with his hand. Ohio University’s deliberate indifference to prior reports of sexual impropriety regarding Defendant Escobedo 67.   It is common knowledge among faculty and students within Ohio University’s English Department (of which Defendant Escobedo is a faculty member) that Defendant Escobedo seeks sexual relationships with students in the Department. Defendant Escobedo’s habit of seeking sexual relationships with young graduate students has been widely known in and around the Department for over a decade. 68.   Upon information and belief, since 2003, Professor Escobedo has been reported to the ECRC for at least seven instances of sexual misconduct. 69.   Upon information and belief, Professor Escobedo was involved in a sexual relationship with a female graduate student in 2006. 70.   Professor Marsha Dutton, a professor in Ohio University’s English Department and a witness in a 2016 Ohio University internal investigation into Defendant Escobedo’s reported behavior, reported Defendant Escobedo’s sexual misconduct to Ohio University’s Office of Equity and Civil Rights Compliance (ECRC) in 2006. 71.   In 2006, instead of conducting a thorough investigation of reports that Professor Escobedo was engaging in sexual relationships and making sexual advances towards students, Ohio University’s ECRC conducted a “climate survey” of the English Department. This climate survey was intended to measure if students in the Department “felt safe.” 72.   Attached as Exhibit A is a true and accurate copy of ECRC’s climate survey of graduate students in Ohio University’s English Department conducted in 2006. -8FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 9 of 68 PAGEID #: 512 73.   Exhibit A was produced by Defendant Escobedo during initial disclosures in the pending case, although the survey was unable to be located during Ohio University’s 2016 internal investigation into Defendant Escobedo’s sexual misconduct. 74.   Results of the survey are as follows: a.   When asked their sex, 12 respondents said they were female and seven (7) said they were male. b.   When asked if Ohio University’s English Department was a “climate for all students to raise concerns without fear of retaliation,” 11 out of 20 respondents were either neutral or disagreed. Six (6) disagreed or strongly disagreed. c.   When asked if Ohio University’s English Department was a “climate for all students to raise criticisms without fear of relation,” 14 out of 20 were either neutral or disagreed. Seven (7) disagreed or strongly disagreed. d.   When asked if “Overall, the climate for women in the English Department is good,” 10 out of 19 students were neutral or disagreed. Six (6) disagreed or strongly disagreed. e.   When asked if “Overall, the climate for men in the English Department is good,” only 2 out of 20 students were neutral or disagreed. f.   When asked if, “I have observed inappropriate sexist language, humor/jokes or comments…,” 9 out of 20 students said “once” (3) or “more than once” (6). g.   When asked if, I have experienced inappropriate sexist language, humor/jokes or comments…,” 6 out of 20 said students “once” (2) or “more than once” (4). h.   When asked if, I have observed eye contact or other body language…,” 5 out of 20 said students “once” (1) or “more than once” (4). i.   When asked if, I have experienced eye contact or other body language…,” 3 out of 20 said students “once” (0) or “more than once” (3). j.   When asked if, I have observed seductive remarks, including attempting to establish a sexual relationship…,” 5 out of 20 said students “once” (2) or “more than once” (3). -9FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 10 of 68 PAGEID #: 513 k.   When asked if, I have experienced seductive remarks, including attempting to establish a sexual relationship…,” 4 out of 20 said students “once” (3) or “more than once” (1). l.   When asked if “I am familiar with the Ohio University Harassment Policy,” 6 out of 14 students (30%) said “no.” 75.   These survey results indicate a serious problem of sexual misconduct within Ohio University’s English Department at the time of the 2006 report to ECRC. These results indicate that less than half (9 out of 20) of the graduate students felt the English Department was a good climate for women. The survey results indicate that a fifth (4 of 20) of graduate students had experienced a faculty member attempting to establish a sexual relationship with them. Given the fact that Defendant Escobedo is the only faculty member alleged to have made sexual advances, and all of his advances were towards female students and faculty members, it is likely that that figure represents a third (4 out of 12) of female respondents reporting that Defendant Escobedo had made a sexual advance towards them. 76.   Despite the seriousness of the 2006 climate survey, neither the ECRC nor Ohio University’s English Department were able to locate a copy of this survey for use in the 2016 ECRC investigation of Defendant Escobedo. 77.   The ECRC’s response to Escobedo’s history of misconduct and its lack of follow up and its losing and then miraculously re-finding the climate survey is clearly unreasonable. 78.   Attached as Exhibit B is a true and accurate copy of Ohio University’s Memorandum of Findings in connection with a 2016 investigation of Andrew Escobedo. 79.   Exhibit B is an admission by Ohio University pursuant to Federal Rule of Evidence 801(d). 80.   According to Professor Linda Zionkowski, an English professor at Ohio University and a witness in the 2016 ECRC investigation, she “felt that the 2006 report was not treated with the seriousness that it deserved, and there were no restraints or sense of consequences for [Defendant Escobedo].” 81.   Defendant Escobedo’s behavior continued unobstructed and uninhibited after the 2006 report. Professor Zionkowski and her colleagues were left frustrated and dismayed at this - 10 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 11 of 68 PAGEID #: 514 situation, having exhausted all of the proper administrative channels that Ohio University had prescribed. 82.   Defendant McLaughlin was the Department Chair when the 2006 investigation took place. Despite hearing the rumors about Defendant Escobedo, and his own description of Escobedo, stating that “[he] can be somewhat of a flirtatious person,” McLaughlin supported Defendant Escobedo’s denials regarding the sexual relationship with a graduate student and took no remedial action. 83.   Numerous faculty members in the Department have been aware of Escobedo’s tendency to become sexually involved with his students. Some faculty members warn new graduate students about Professor Escobedo’s proclivity for this behavior when the students arrive to the program. 84.   It is also well known within the Department that current graduate students warn incoming graduate students about Defendant Escobedo’s proclivity to make sexual advances towards students. 85.   In 2006, Ohio University did not provide clear guidelines or any prescriptive advice to professors on how to deal with reports or allegations of sexual misconduct from professors towards students. 86.   Defendant McLaughlin, during his time as Chair of the English Department and Faculty Senate and at all other relevant times, had a personal friendship with Defendant Escobedo. 87.   Because of the friendship with Escobedo and for other personal reasons, Defendant McLaughlin has been deliberately indifferent to the allegations of sexual against Escobedo, even though the allegations were severe, widely known, and likely factual. 88.   Defendant McLaughlin’s deliberate indifference created a safe zone for sexual misconduct against females within the Department. 89.   Ohio University’s ECRC had an opportunity to conduct a serious investigation of Escobedo’s behavior, but instead opted for a climate survey of students in the Department. This did not lead to any sort of punishment or reprimand for Defendant Escobedo. Instead of being punished for instigating and pursuing sexual relationships with students, Defendant Escobedo effectively “got away” with these acts. - 11 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 12 of 68 PAGEID #: 515 90.   There is no valid reason for neither the Department nor ECRC to have had a copy of the 2006 climate survey during the 2016 ECRC investigation, especially considering the seriousness of the matter being surveyed, and the reason the survey was generated. 91.   The survey results never led to a thorough investigation and were deliberately downplayed by the ECRC and Defendant McLaughlin. 92.   Defendant University and Defendant McLaughlin’s ongoing failure to properly reprimand Defendant Escobedo as a result of the 2006 report and other reports about his behavior amounted to deliberate indifference. If Defendant Escobedo had been properly investigated by the Defendants in 2006 or in any of the other instances of sexual misconduct up and until December 3-4, 2015, Defendant Escobedo would not have been in a position to harm Plaintiffs Adams and Hempstead. 93.   The recent internal investigation into over a decade of Defendant Escobedo’s sexual misconduct revealed and substantiated instances of sexual misconduct from 2003 and 2005. A serious investigation into Escobedo’s sexual misconduct at the time of the 2006 climate survey would have revealed these incidents from 2003, 2005, and likely others. If Defendant Escobedo had been properly investigated by the Defendants in 2006 or in any of the other instances of sexual misconduct up and until December 3-4, 2015, Defendant Escobedo would not have been in a position to harm Plaintiffs Adams and Hempstead. 94.   During this same time period, approximately surrounding the time of the climate survey, Professor Mara Holt was a member of the Administrative Committee of the English Department. The committee was required to gather course evaluations and in multiple evaluations there was reference to sexual misconduct by a faculty member. Based on the results of the climate survey and the now substantiated 2003 and 2005 instances of sexual misconduct by Defendant Escobedo, it is overwhelmingly likely that those references to sexual misconduct were about Defendant Escobedo. 95.   According to a March 2, 2017 letter from Interim President David Descutner to Defendant Escobedo, Interim President David Descutner stated, “…for an extended period of years you have engaged in a pattern of sexual advances directed at students whom you have supervised, graded, or advised, as well as colleagues in your department.” Plaintiffs would not - 12 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 13 of 68 PAGEID #: 516 have been victims to the life-changing events that are the subject matter of this lawsuit if Defendant Escobedo had been reprimanded like this before the events of December 3-4, 2015. 96.   Defendant University’s years of deliberate indifference towards Defendant Escobedo’s misconduct is clearly unreasonable. 97.   It is clearly unreasonable that, as of March, 2017, Defendant Escobedo is still employed by Ohio University. 98.   It is clearly unreasonable that as of March, 2017, Ohio University has kept Defendant Escobedo’s wife in a position of power within the English Department and over the Plaintiffs. 99.   It is clearly unreasonable that Defendant McLaughlin and other professors in the English department have tried to convince the Plaintiffs to forgive Defendant Escobedo because they claim he is a troubled alcoholic with children and for various other clearly unreasonable reasons. 100.   The University’s response to over a decade of Defendant Escobedo’s sexual misconduct has been clearly unreasonable. If Defendant Escobedo is ultimately terminated from his employment, it would merely be an attempt by the University to put a “bandage” on his years of abuse. 2003 Incident Defendant makes unwanted sexual with a student 101.   The following facts were substantiated in Ohio University’s 2016 internal investigation into Defendant Escobedo’s sexual misconduct: 102.   In 2003, Defendant Escobedo made unwanted sexual contact and advances towards a student at Ohio University enrolled in one of his classes (“Complainant #3”). 103.   During the fall of 2003, Complainant #3 was enrolled in a course taught by Defendant Andrew Escobedo. 104.   Defendant Escobedo invited students in the course out for drinks. Complainant #3 attended the gathering at a local bar with Defendant Escobedo and other classmates. The event implied the presence of alcoholic beverages and many individuals present were drinking alcohol. 105.   During the gathering, Defendant Escobedo touched her inappropriately by placing his hand up Complainant #3’s shirt and/or skirt. - 13 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 14 of 68 PAGEID #: 517 106.   Witnesses, such as a temporary adjunct professor (“Complainant #5”) in the department who was also touched inappropriately by Escobedo, saw this inappropriate behavior during the gathering. Complainant #5 witnessed Defendant Escobedo place his hand up Complainant #3’s shirt and rub her bare back. 107.   As her current professor, Defendant Escobedo had a position of power over Complainant #3 such that any sexual impositions by Defendant Escobedo involved an inherent quid pro quo. There was a power disparity between the two parties, and Defendant Escobedo exploited his authority over Complainant #3 to engage in this harassing behavior. 108.   This 2003 incident is one more incident showing that Defendant Escobedo has engaged in a consistent pattern of sexual misconduct towards students and subordinate faculty. Defendant Escobedo invites vulnerable female students and faculty to events where alcohol is present and then makes unwanted sexual advances of a physical nature. 109.   A serious investigation into Defendant Escobedo’s sexual misconduct at the time of the 2006 climate survey would have revealed these incidents this 2003 incident. 110.   If Defendant Escobedo had been properly investigated by the Defendants in 2006 or in any of the other instances of sexual misconduct up and until December 3-4, 2015, Defendant Escobedo would not have been in a position to harm Plaintiffs Adams and Hempstead and other incidents that may have occurred after the 2006 climate survey. 2005 Incident Defendant Escobedo makes unwanted sexual contact with an adjunct instructor 111.   In July 2005, Defendant Escobedo made unwanted sexual contact and advances towards an adjunct instructor temporarily employed in Ohio University’s English Department (“Complainant #5”). 112.   Complainant #5 had a birthday celebration in uptown Athens around July 28, 2005. 113.   Complainant #5 and a group of friends went to a local restaurant, Casa Nueva, for dinner and then walked to the bar across the street, Tony’s Tavern, for drinks. 114.   Defendant Escobedo was not invited to the gathering, but he showed up at the bar where Complainant #5 and her friends were gathered. Complainant #5 was highly intoxicated at the time of Defendant Escobedo’s arrival. - 14 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 15 of 68 PAGEID #: 518 115.   Complainant #5 was wearing a skirt that was knee length or above. Defendant Escobedo’s hand made unwanted sexual contact with parts of her body, including her legs and upper thighs, while seated next to Complainant #5 at the bar. 116.   Friends of Complainant #5 were witnesses to this inappropriate behavior by Defendant Escobedo. 117.   As full-time faculty member, Defendant Escobedo had a position of power over Complainant #5, a new graduate and adjunct instructor at the time of these events, such that any sexual impositions by Defendant Escobedo involved an inherent quid pro quo. There was a power disparity between the two parties, and Defendant Escobedo exploited his authority over Complainant #5 to engage in this harassing behavior. 118.   Complainant #5 states that she called and made a report of Defendant Escobedo’s sexually inappropriate behavior to ECRC in approximately 2006, after Complainant #5 had moved from Ohio and was no longer felt Defendant Escobedo could negatively affect her career. ECRC does not have any documentation of Complainant #5’s report to ECRC in the 2006 timeframe. 119.   This 2005 incident is one more incident showing that Defendant Escobedo has engaged in a consistent pattern of sexual misconduct towards students and subordinate faculty. Defendant Escobedo seeks gatherings where alcohol is present and then makes unwanted sexual advances of a physical nature. 120.   A serious investigation into Escobedo’s sexual misconduct at the time of the 2006 climate survey would have revealed this 2005 incident. 121.   Title IX liability is triggered when a school or school official fails to appropriately respond to prior reports and incidences of sexual misconduct or harassment in their program, and thus allows current sexual misconduct or harassment to take place in the program. Escue v. Northern OK College, 450 F.3d 1146 (10th Cir. 2006). Defendants’ response to course evaluations referencing sexual misconduct and harassment within the English Department 122.   Professor Mara Holt, a professor in Ohio University’s English Department and a witness in a 2016 Ohio University internal investigation into Defendant Escobedo’s reported - 15 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 16 of 68 PAGEID #: 519 behavior, was a member of the Administrative Committee of the English Department approximately a decade ago. 123.   A responsibility of that committee was to gather and review course evaluations submitted by students regarding their professors and courses from the preceding semester. 124.   Multiple evaluations that the committee received made reference to sexual harassment and sexual misconduct being carried out by a faculty member. Professor Holt does not know if the faculty member was named. Professor Dutton believed the evaluations were in reference to Defendant Escobedo. 125.   According to Professor Holt, there was conflict among the Administrative Committee about how seriously to take the evaluations that referenced sexual misconduct by a faculty member. 126.   Defendant Escobedo was Graduate Chair at the time of these evaluations, and was in a significant position of power over not only students, but also other faculty in the English Department. 127.   According to Professor Holt, these course evaluations were reviewed by the Administrative Committee prior to the decision to conduct the climate survey. 128.   Despite having course evaluations and survey results indicating there was a faculty member engaged in a serious pattern of sexual harassment and sexual misconduct within the English Department, Defendant University, instead of engaging in a thorough and serious investigation, only recommended vague and general training for faculty about sexual misconduct. 129.   Upon information and belief, between 2006 and the December 3-4 occurrence Defendant Escobedo made inappropriate sexual contact with one of the junior faculty members in the English department, Ayesha Hardison Upon information and belief, Hardison. reported the sexual misconduct to then-graduate student, Kelly Kathleen Ferguson, who did not report the misconduct to the ECRC but did tell current student, Kelly Sundberg. This allegation is based upon information and belief and based upon statements Kelly Kathleen Ferguson made to current graduate student Kelly Sundberg. Defendant University has not complied with the May 17, 2017 order (document #20) and therefore Plaintiffs do not have copies of the ECRC files and, upon production, may seek to file a Second Amended Complaint accordingly. - 16 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 17 of 68 PAGEID #: 520 130.   Upon information and belief, in or around 2005, Professor Marsha Dutton told Defendant McLaughlin that Defendant Escobedo was responsible for sexual misconduct. Upon information and belief, Defendant McLaughlin, because of his personal friendship to Defendant Escobedo, never took any action and, instead, ignored and disregarded Professor Dutton. This allegation is based on information and communications made by Professor Dutton and Professor Linda Zionkowski to Plaintiff Christine Adams. 131.   According to Professor Jill Ingram, a current faculty member in the Ohio University English Department, in 2011 Defendant Escobedo made inappropriate sexual contact with her when she became his faculty mentee and over whom Defendant Escobedo had a position of power and control. Ingram, who had been in the department for some time without a faculty mentor, stated that Escobedo attempted to kiss her without her consent soon after gaining a position of authority over her. Professor Ingram reported this inappropriate sexual contact to Defendant Joseph McLaughlin who responded to Professor Ingram’s suggestion that an intervention into Escobedo’s misconduct was necessary by asserting that it “would not happen,” and that Escobedo’s personality was just “like that.” Defendant Joseph McLaughlin not only dismissed Professor Ingram’s complaint but also, because of his friendship to Defendant Escobedo, failed to report or take any corrective action in connection with the misconduct. Professor Ingram stated that, because she was not yet tenured in 2011, and because she depended on Escobedo for recommendation for tenure, she felt she could not make an official complaint at the time, and instead “lost friends in the department” over the incident. Professor Ingram has at this time reported Defendant Escobedo and Defendant McLaughlin’s misconduct to the Ohio University ECRC. Upon information and belief, Professor has reported this misconduct to the ECRC. The University has not disclosed any ECRC files to Plaintiffs yet, although it has indicated it would do so pursuant to Federal Rule 26(A). Plaintiffs may seek to amend their complaint upon receipt of the ECRC files in connection with the 2011 incident between Defendant Escobedo, Defendant McLaughlin and Professor Jill Ingram. 132.   Upon information and belief, between 2006 and the December 3-4 occurrence, Defendant Escobedo had a sexual relationship with one of his students, Leah Graysmith, while he was her doctoral thesis advisor. Defendant McLaughlin and/or other employees with - 17 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 18 of 68 PAGEID #: 521 authoritarian positions at Ohio University had notice of this sexual misconduct by Defendant Escobedo and took no action. 133.   If Defendant Escobedo had been properly investigated by the Defendants in 2006 in response to the course evaluations or climate survey, or in any of the other instances of sexual misconduct up and until December 3-4, 2015 or if Defendant McLaughlin had taken any corrective measures to the numerous reports of sexual misconduct, Defendant Escobedo would not have been in a position to harm Plaintiffs Adams and Hempstead and other incidents that may have occurred after the 2006 climate survey. 134.   Despite the overwhelming evidence of Defendant Escobedo’s sexual misconduct, as recently as the Spring Semester, 2016, Defendant McLaughlin held a meeting in which he told a number of his undergraduate students that the allegations against him and his friend, Defendant Escobedo, are a “conspiracy.” 135.   Defendant McLaughlin has for over a decade not only ignored all indications that Defendant Escobedo was repeatedly sexually victimizing students and coworkers but also willfully, wantonly, and recklessly told victims and their supporters that any and all allegations against Escobedo were false and part of a conspiracy; he also interfered and attempted to stop any attempts to report the misconduct to the ECRC. 136.   Defendant McLaughlin wantonly, willfully, and recklessly withheld the climate survey from the ECRC. Defendant McLaughlin’s deliberate indifference and failure to respond to report of Defendant Escobedo’s consensual relationship with a student, in violation of Ohio University’s Faculty Handbook and Ohio University’s official policy document 03.004 137.   In 2006, Ohio University English Professor Marsha Dutton (now retired) reported to Defendant Joseph McLaughlin, then Chair of the English Department, that Defendant Escobedo was engaged in a sexual relationship with a student in the English Department. 138.   Instead of properly investigating the report of a relationship that clearly violated Ohio University’s own policy regarding faculty-student relationships, Defendant McLaughlin told Professor Dutton he would ask Escobedo about it. - 18 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 19 of 68 PAGEID #: 522 139.   Instead of properly investigating the report, Defendant McLaughlin simply asked his personal friend, Defendant Escobedo, if he was having a relationship with the student and Defendant Escobedo “adamantly denied” having this relationship. 140.   According to Ohio University’s own policy regarding sexual misconduct, this report required a serious investigation: 141.   Attached as Exhibit C is a true and accurate copy of Ohio University’s official Faculty Handbook, specifically section II-Q, “Policy on Sexual Misconduct, Relationship Violence and Stalking.” 142.   Exhibit C, in section “Q. Policy on Sexual Misconduct, Relationship Violence and Stalking” states: a.   All Ohio University faculty and staff are responsible for compliance with 03.004 in the Policy and Procedures Manual and have an affirmative duty to report conduct inconsistent with this policy. Immediately upon learning of potential campus sexual misconduct, a faculty member who receives a complaint of sexual misconduct or who observes or learns of conduct that is reasonably believed to be in violation of this policy, is required to report the alleged conduct to the Office for Institutional Equity, following the reporting guidelines as outlined in 03.004, section VII.A Duty to Report. 143.   Exhibit C, in section “R. Policy on consensual and familial relationships in the instructional setting” states: a.   A faculty member (or other person serving in an instructional role) shall not supervise, provide academic advising to, or grade the academic work of a student with whom s/he has or begins a consensual romantic or sexual relationship. Retaining such a supervisory role is a violation of Policy 03.004 (“Sexual Misconduct, Relationship Violence and Stalking”). Because such relationships may carry the potential for coercion, their consensual nature is inherently suspect. Furthermore, such a relationship may give other students in the same academic setting cause to believe that an unfair educational advantage accrues to the student in the relationship. - 19 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 20 of 68 PAGEID #: 523 b.   Specific concerns or complaints regarding consensual or familial relationships may be brought to the attention of the department chair, Office for Institutional Equity, or the Office of the Ombudsperson. These three offices will assist the complainant in a timely fashion in an informal resolution of the complaint or direct the complainant to the appropriate grievance procedure. The investigating office will respect the rights of all parties involved in the complaint. 144.   Attached as Exhibit D is a true and accurate copy of Ohio University’s official policy regarding sexual misconduct, “University Policy 03.004: Sexual Misconduct, Relationship Violence, and Stalking.” 145.   Exhibit D states: a.   “Consensual romantic or sexual relationships in which one party retains a direct supervisory or evaluative role over the other party are unethical, create a risk for real or perceived coercion, and are expressly a violation of this policy.” b.   “Therefore, persons with direct supervisory evaluative, grading, or academic advising responsibilities who are involved in such relationships must bring those relationships to the attention of their supervisor. This will likely result in the necessity to remove the employee from the supervisory, evaluative, grading, or academic advising responsibilities.” 146.   Professor Dutton fulfilled her duty by informing Defendant McLaughlin, the acting Chair of the English Department, of the relationship that was potentially in violation of Ohio University’s own policy. 147.   Defendant McLaughlin failed to fulfill his duty and was deliberately indifferent in his inadequate response to Professor Dutton report of a sexual relationship in violation of Ohio University’s Policy 03.004: Sexual Misconduct, Relationship Violence, and Stalking (Exhibit D). 148.   Defendant McLaughlin’s deliberate indifference to Professor Dutton’s report is another instance in which Defendants McLaughlin and Ohio University had an opportunity to intervene and reprimand Defendant Escobedo for his repeated sexual misconduct, potentially breaking the cycle of sexual misconduct that led to the sexual harassment of Plaintiff Adams and Plaintiff Hempstead. - 20 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 21 of 68 PAGEID #: 524 149.   Defendant McLaughlin wantonly, willfully, and recklessly ignored the report of Defendant Escobedo’s relationship which violated Ohio University’s internal policy. - 21 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 22 of 68 PAGEID #: 525 LEGAL CLAIMS FIRST CLAIM FOR RELIEF AGAINST OHIO UNIVERSITY Deliberate Indifference resulting in Sexual Harassment (Strict Liability, Quid Pro Quo) in Violation of Title IX as to Christine Adams 150.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 151.   At all relevant times, Defendant Ohio University received federal funding and assistance. 152.   Plaintiff Adams was subjected to sexual harassment and unwanted sexual contact that was so severe, pervasive, and/or objectively offensive that it deprived her of access to educational opportunities and benefits. 153.   The U.S. Department of Education Office for Civil Rights has established criteria to determine if a school or university that receives public funds is strictly liable for allowing quid pro quo sexual harassment. Their guidelines state: a.   “Schools are responsible for taking prompt and effective action to stop the harassment and prevent its recurrence.” b.   “If an employee who is acting (or who reasonably appears to be acting) in the context of carrying out these responsibilities over students engages in sexual harassment – generally this means harassment that is carried out during an employee’s performance of his or her responsibilities in relation to students, including teaching, counseling, supervising, advising, and transporting students – and the harassment denies or limits a student’s ability to participate in or benefit from a school program on the basis of sex, the recipient is responsible for the discriminatory conduct.” c.   “If an employee conditions the provision of an aid, benefit, or service that the employee is responsible for providing on a student’s submission to sexual conduct, i.e., conduct traditionally referred to as quid pro quo harassment, the harassment is clearly taking place in the context of the employee’s responsibilities to provide aid, benefits, or services. - 22 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 23 of 68 PAGEID #: 526 d.   Sometimes harassment of a student by an employee in the school’s program does not take place in the context of the employee’s provision of aid, benefits, or services, but nevertheless is sufficiently serious to create a hostile educational environment. An example of this conduct might occur if a faculty member in the history department at a university, over the course of several weeks, repeatedly touches and makes sexually suggestive remarks to a graduate engineering student while waiting at a stop for the university shuttle bus, riding on the bus, and upon exiting the bus. As a result, the student stops using the campus shuttle and walks the very long distances between her classes. In this case, the school is not directly responsible for the harassing conduct because it did not occur in the context of the employee’s responsibilities for the provision of aid, benefits, or services to students. However, the conduct is sufficiently serious to deny or limit the student in her ability to participate in or benefit from the recipient’s program. Thus, the school has a duty, upon notice of the harassment, to take prompt and effective action to stop the harassment and prevent its recurrence. e.   If the school takes these steps, it has avoided violating Title IX. If the school fails to take the necessary steps, however, its failure to act has allowed the student to continue to be subjected to a hostile environment that denies or limits the student’s ability to participate in or benefit from the school’s program. The school, therefore, has engaged in its own discrimination. It then becomes responsible, not just for stopping the conduct and preventing it from happening again, but for remedying the effects of the harassment on the student that could reasonably have been prevented if the school had responded promptly and effectively. 154.   Before December 3, 2015 Defendant University had actual knowledge of sexual harassment and misconduct committed by Professor Escobedo. 155.   Before December 3, 2015 Defendant University had actual knowledge of the quid pro quo risks inherent in sexual relationships between faculty and students. - 23 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 24 of 68 PAGEID #: 527 156.   Before December 3, 2015, Defendant University knew or should have known that Defendant Escobedo had previous sexual relationships with students. 157.   The sexual harassment committed by Defendant Escobedo against Plaintiff Adams was committed while he was acting as an employee of Defendant University and after Defendant University had actual knowledge of sexual harassment complaints against Defendant Escobedo. 158.   Defendant University’s response to previous reports regarding Professor Escobedo (particularly 2006) was deliberately indifferent, insofar as the response or lack thereof was clearly unreasonable in light of the known circumstances. 159.   Professor Escobedo engaged in quid pro quo sexual harassment of Plaintiff Adams. 160.   Defendant University has itself determined that the harassment that Escobedo engaged in against Plaintiff Adams was quid pro quo in nature. 161.   Defendant University’s deliberate indifference to Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 162.   As a result of the foregoing, Plaintiff Adams suffered extensive damages. SECOND CLAIM FOR RELIEF AGAINST OHIO UNIVERSITY Deliberate Indifference resulting in Sexual Harassment (Unwanted Sexual Contact) in Violation of Title IX, As to Christine Adams 163.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 164.   At all relevant times, Defendant Ohio University received federal funding and assistance. 165.   Plaintiff Adams was subjected to sexual contact that was so severe, pervasive, and/or objectively offensive that it deprived her of access to educational opportunities and benefits. 166.   The physical contact committed by Defendant Escobedo was committed while he was Plaintiff Adams’ professor and an employee of Ohio University. - 24 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 25 of 68 PAGEID #: 528 167.   Defendant Escobedo has engaged in a pattern of exploiting females who are subordinate to Defendant Escobedo by virtue of their student status or their junior employment status. 168.   Defendant Ohio University’s own internal investigation revealed and substantiated at least two other instances, in 2003 and 2005, where Defendant Escobedo engaged in an almost identical style of sexual misconduct towards a student and a subordinate faculty member. 169.   The physical contact that Defendant Escobedo made with Plaintiff was intentional contact and included rubbing or groping Plaintiff Adams on her leg, thighs, back, buttocks, and “crotch area” with his hands in addition to rubbing his erect penis against Plaintiff Adams and kissing her with his tongue. Given the extent of this physical touching, the locations on Plaintiff Adams’ body touched by Defendant Escobedo and the manner of the touching by Defendant Escobedo, it was sexual in nature. 170.   Plaintiff Adams did not consent to Defendant Escobedo’s touching her in a sexual manner. 171.   Defendant Escobedo was in a direct supervisory and evaluative role over Plaintiff Adams. 172.   Defendant Escobedo was the instructor of record for the overall course and submitted final grades for all students. 173.   Defendant Escobedo engaged in multiple instances of non-consensual sexual contact with Plaintiff Adams. 174.   Defendant Escobedo’s behavior at Tony’s Bar was non-consensual contact with Plaintiff Adams. 175.   Defendant Escobedo’s behavior outside Ellis Hall was non-consensual contact with Plaintiff Adams. 176.   The non-consensual physical contact violated Ohio University Policy 03.0004. 177.   The Defendant University’s response to previous reports regarding Professor Escobedo (particularly 2006) was deliberately indifferent, insofar as the response or lack thereof was clearly unreasonable in light of the known circumstances. - 25 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 26 of 68 PAGEID #: 529 178.   Prior to December 3, 2015, Defendant University had notice of sexual misconduct within the English Department. 179.   Prior to December 3, 2015, Defendant University had notice of allegations of prior sexual relationships between Defendant Escobedo and students. 180.   Prior to December 3, 2015, Defendant University had possession of course evaluations that indicated a particular faculty member was engaged in sexual harassment and sexual misconduct aimed at female students in the English Department. 181.   Prior to December 3, 2015, Defendant University had notice of the 2006 climate survey that indicated a high level of discomfort among women in the English Department. 182.   Defendant Ohio University has substantiated at least two other instances of sexual misconduct by Defendant Escobedo within the English Department (2003 and 2005). 183.   The standard for deliberate indifference has been recognized as: a.   An institution’s failure to properly investigate a claim. Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007); Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000); b.   An institution’s failure to meaningfully and appropriately discipline the assailant. Vance, 231 F.3d at 262; c.   An institution’s minimization of the discriminatory import of sexual assault. Jennings, 482 F.3d at 700; d.   If the assailant, and student body at large, are left to believe that the institution tacitly approved the harassing behavior. Siewert v. Spencer-Owen, 497 F. Supp. 2d at 954 (S.D. Ind. 2007); e.   Conducting an investigation, but nothing more. Vance, 231 F.3d at 260; and f.   An institution’s continued use of “ineffective methods to no acknowledged avail.” Vance, 231 F.3d at 261. 184.   Prior to December 3, 2015, Defendant University was deliberately indifferent to sexual misconduct within the English Department. 185.   Defendant University’s deliberate indifference was clearly unreasonable. 186.   Defendant University’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. - 26 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 27 of 68 PAGEID #: 530 187.   As a result of the foregoing, Plaintiff has suffered extensive damages. THIRD CLAIM FOR RELIEF AGAINST OHIO UNIVERSITY Deliberate Indifference resulting in Sexual Harassment (Quid Pro Quo) in Violation of Title IX as to Christine Adams 188.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 189.   At all relevant times, Defendant Ohio University received federal funding and assistance. 190.   Plaintiff Adams was subjected to sexual harassment and unwanted sexual contact that was so severe, pervasive, and/or objectively offensive that it deprived her of access to educational opportunities and benefits. 191.   Before December 3, 2015 Defendant University had actual knowledge of sexual harassment and misconduct committed by Professor Escobedo. 192.   Before December 3, 2015 Defendant University had actual knowledge of the quid pro quo risks inherent in sexual relationships between faculty and students. 193.   Before December 3, 2015, Defendant University knew or should have known that Defendant Escobedo had previous sexual relationships with students. 194.   The sexual harassment committed by Defendant Escobedo against Plaintiff Adams was committed while he was acting as an employee of Defendant University and after Defendant University had actual knowledge of sexual harassment complaints against Defendant Escobedo. 195.   Defendant University’s response to previous reports regarding Professor Escobedo (particularly 2006) was deliberately indifferent, insofar as the response or lack thereof was clearly unreasonable in light of the known circumstances. 196.   Professor Escobedo engaged in quid pro quo sexual harassment of Plaintiff Adams. 197.   Professor Escobedo’s harassment of Plaintiff Adams included physical or verbal conduct of a sexual nature that was unwelcome and sufficiently severe or pervasive such that, from both a subjective and an objective viewpoint, it would appear that: - 27 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 28 of 68 PAGEID #: 531 a.   Submission to the conduct was either explicitly or implicitly a term or condition of her employment or academic status; b.   Submission to or rejection of such conduct could be used as the basis for employment or academic decisions affecting her; or c.   Such conduct had the purpose or effect of unreasonably interfering with the with her work, performance, or education experience; or of creating an intimidating, hostile, or offensive environment for work or learning. 198.   Prior to engaging in non-consensual sexual contact with Plaintiff Adams, Plaintiff Adams overheard Defendant Escobedo tell another student to “be careful” because grades had not been submitted. This warning, coupled with Defendant Escobedo’s actions in repeatedly touching Plaintiff Adams 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. This also demonstrates that Defendant Escobedo was not afraid to exploit the power differential to pursue sexual contact with Plaintiff Adams. 199.   On the evening of December 3-4, 2015, Defendant Escobedo had not yet assigned grades for the course. 200.   It was reasonable for Plaintiff Adams to believe that her grade, academic status, and other academic benefits were conditioned on submitting to Defendant Escobedo’s touching her in a sexual nature. 201.   A reasonable person under these same circumstances could similarly believe that their grade and academic status were conditioned on submitting to Respondent’s touching in a sexual nature. 202.   Defendant Escobedo’s conduct meets both the subjective and objective standards of severity required to establish quid pro quo sexual harassment. 203.   Defendant Escobedo’s conduct violated Ohio University Policy 03.004(E)(1). 204.   This power differential would be inherent in any professor/student relationship within the English Department. 205.   Defendant Escobedo has for more than a decade knowingly exploited his power differential over female students and junior faculty in order to make sexual advances towards - 28 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 29 of 68 PAGEID #: 532 them. Defendant Escobedo engaged in almost identical behavior in 2003, 2005, and possibly other occasions. 206.   Defendant University’s deliberate indifference to Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 207.   As a result of the foregoing, Plaintiff Adams suffered extensive damages. FOURTH CLAIM FOR RELIEF AGAINST OHIO UNIVERSITY Deliberate Indifference resulting in Hostile Environment in Violation of Title IX, As to Christine Adams 208.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 209.   The physical and verbal conduct by Defendant Escobedo was of a sexual nature and was unwelcome and sufficiently severe or pervasive from both a subjective and objective viewpoint such that the conduct had the purpose or effect of unreasonably interfering with Plaintiff Adams’ work or academic performance or creating an intimidating, hostile, or offensive environment for working, learning, or living on campus. 210.   The environment created from the conduct of Defendant Escobedo was hostile based on the circumstances, including but not limited to the frequency of the conduct, the nature and severity of the conduct, the relationship between the parties, the location and context in which the conduct occurred, and the physically threatening and humiliating nature of the conduct. 211.   The conduct by Defendant Escobedo violated Ohio University Policy 03.004(E)(2). 212.   The Defendant University, by and through its employees, including but not limited to Defendant McLaughlin the ECRC, had notice of the history of sexual misconduct and harassment within the department and was, prior to December 3, 2015, on December 3, 2015 and after December 3, 2015 deliberately indifferent to Plaintiff Adams’ well-being. 213.   Ohio University’s response to previous reports regarding Professor Escobedo (particularly 2006) was deliberately indifferent. - 29 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 30 of 68 PAGEID #: 533 214.   Ohio University’s response to the course evaluations that indicated a particular faculty member was engaged in sexual harassment and sexual misconduct towards female students in the English Department was deliberately indifferent. 215.   An appropriate response to the 2006 report and climate survey would have likely revealed the now substantiated 2003 and 2005 incidents of sexual misconduct by Defendant Escobedo. 216.   Defendant University’s response to known risks prior to the evening of December 3-4, 2015, was clearly unreasonable in light of the known circumstances. 217.   Defendant University’s response to the events of the evening of December 3-4, 2015, also created a hostile environment: a.   After the occurrence, Plaintiff was subjected to verbal and physical sexual harassment within the English Department that was so severe, pervasive and objectively offensive that she was denied access to educational opportunities and benefits. b.   For Plaintiff Adams, Ohio University became a sexually hostile environment where her harasser was still on campus and teaching within the English Department. c.   Plaintiff Adams considered not returning to Ohio University after the incident of December 3-4, 2015. d.   Plaintiff Adams encountered complications in the English Department stemming from Professor Escobedo’s conduct and her report of his conduct to ECRC. e.   Plaintiff Adams’ office was in close proximity to Professor Escobedo’s office. Adams was forced to hold her office hours at a local business to avoid coming in contact with Professor Escobedo. f.   The investigation has weighed on Plaintiff Adams heavily. Professor Escobedo’s conduct has interfered with Plaintiff Adams’ academic performance. g.   Ohio University was deliberately indifferent to previous reports regarding Professor Escobedo’s known behavior. - 30 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 31 of 68 PAGEID #: 534 h.   As a result of Ohio University’s deliberate indifference, Plaintiff Adams was forced to conduct her work off campus to avoid Defendant Escobedo and has lost educational opportunities and benefits at the university. i.   This conduct constitutes multiple instances of a hostile environment in violation of Title IX. 218.   Defendant University’s deliberate indifference to Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 219.   As a result of the foregoing, Plaintiff Adams suffered extensive damages. FIFTH CLAIM FOR RELIEF AGAINST OHIO UNIVERSITY Deliberate Indifference resulting in Sexual Harassment in Violation of Title IX, As to Christine Adams 220.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 221.   The sex-based harassment described in the Plaintiffs’ General Allegations was so severe, pervasive, and objectively offensive that it deprives Plaintiff of access to educational opportunities or benefits provided by Defendant University. 222.   Defendant University created and/or subjected Plaintiff Adams to a hostile educational environment in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (“Title IX”), because: a.   Plaintiff Adams was a member of a protected class; b.   Plaintiff was subjected to sexual harassment in the form of unwanted sexual contact by a Professor; c.   Plaintiff Adams was subjected to harassment based on her sex; and d.   Plaintiff Adams was subjected to a hostile educational environment created by Defendant University’s lack of policies and procedures and failure to properly investigate and/or address the unwanted sexual contact and subsequent harassment. 223.   Defendant University and its officials had received actual notice of Defendant Escobedo’s sexual misconduct in 2006 and on other occasions since 2006 and before the evening - 31 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 32 of 68 PAGEID #: 535 of December 3-4 yet failed to investigate and discipline Escobedo in a timely and consistent manner with its own policy and federal and state law. 224.   Defendant University’s failure to promptly and appropriately respond to the actual notice of sexual misconduct by Defendant Escobedo in 2006 and in other instances between 2006 and before the evening of December 3-4 resulted in Plaintiff Adams, on the basis of her sex, being denied her educational opportunities and benefits in violation of Title IX. 225.   Defendant University failed to take immediate, effective remedial steps to investigate and respond to the notice it received of Defendant Escobedo’s sexual misconduct in 2006, and instead acted with deliberate indifference towards the 2006 complaint and toward Plaintiff Adams. 226.   Defendant University failed to respond seriously and appropriately to the course evaluations that referenced a particular faculty member engaging in sexual harassment sexual misconduct towards female students in the English Department. 227.   Defendant University engaged in a pattern and practice of behavior designed to avoid taking responsibility for, and responding to Defendant Escobedo’s known sexual misconduct. 228.   Defendant University’s internal investigation in 2016 substantiated at least two other instances of sexual misconduct by Defendant Escobedo in 2003 and 2005. 229.   If Defendant University had responded seriously to the course evaluations, 2006 report, and climate survey, it is likely that an investigation would have revealed the 2003 and 2005 incidents much earlier. 230.   If Defendant University had responded seriously to the course evaluations, 2006 report, and climate survey, and to other known instances of Defendant Escobedo’s sexual misconduct, Defendant Escobedo would have been seriously reprimanded and would not have been in a position to engage in the same exact sexual misconduct towards Plaintiffs Adams and Hempstead on the evening of December 3-4, 2015. 231.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 232.   Ohio University knew that Professor Escobedo was unfit to teach at Ohio University because he consistently sexually harassed members of the faculty and student body. - 32 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 33 of 68 PAGEID #: 536 233.   Defendant McLaughlin had actual notice that Professor Escobedo was unfit to teach young female graduate students. Professor Zionkowski and others informed Defendant McLaughlin that Professor Escobedo not only was engaged in a sexual relationship with a student but also that he was known to seek these relationships and regularly make sexual advances towards female students and faculty. 234.   Plaintiff Adams was subjected to sexual harassment and advances by Professor Escobedo after Defendant McLaughlin had actual knowledge of Defendant Escobedo’s habit of seeking sexual relationships with female students and faculty. 235.   It was widely known among English Department students and faculty that Professor Escobedo sought sexual relationships with students, a reasonable Department chair would have investigated Escobedo’s behavior. 236.   In approximately 2006, Defendant University received multiple course evaluations, filled out by students, indicating that a particular faculty member was engaged in sexual harassment and sexual misconduct towards female graduate students. 237.   In 2006, Defendant McLaughlin and Defendant University had possession of the Department climate survey and shared it with the Administrative Committee of the Department. 238.   In the 2016 ECRC investigation, Defendant University indicated that they did not have a copy of the 2006 climate survey. 239.   Defendant University, by and through its officials, including but not limited to Defendant McLaughlin and the ECRC, violated Title IX. 240.   Defendant University, by and through its agents, including but not limited to Joseph McLaughlin, took no action out of fear that other personal interactions with students would be exposed. 241.   Defendant University took no action so that an environment in which Defendant Escobedo could have access to young female graduate students would remain intact. 242.   Defendant University mishandled the 2006 climate survey. 243.   Defendant University’s losing and then re-finding the 2006 climate survey after this lawsuit was initiated is suspicious at best. 244.   Defendant University took no or insufficient action in response to the 2006 climate survey. - 33 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 34 of 68 PAGEID #: 537 245.   Defendant University took no or insufficient action to inhibit the sexually inappropriate culture within the Department. 246.   Defendant University, by and through its agents and employees, including but not limited to Joseph McLaughlin, encouraged Defendant Escobedo’s interactions with young female students. 247.   Defendant University, by and through its agents and employees, including but not limited to Joseph McLaughlin, acted or failed to act upon knowledge of it had of Defendant Escobedo’s misconduct in such a way that the response was clearly unreasonable. 248.   One or more of the above acts or omissions was a substantial factor in causing Plaintiff Adams’ harm. 249.   Defendant University’s conduct as described herein was wanton and willful and in reckless disregard for Plaintiff’s well-being. 250.   Defendant University failed to exercise any care toward the Plaintiff Adams under circumstances where there was great probability that harm would result. 251.   Defendant University consciously disregarded and was indifferent to the known and obvious risks that Defendant Escobedo imposed. 252.   Defendant University’s deliberate indifference was clearly unreasonable. 253.   Defendant University’s deliberate indifference to a known risk and spoliation of evidence as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 254.   As a result of the foregoing, Plaintiff Adams suffered extensive damages. 255.   This policy and/or practice constituted disparate treatment of females and had a disparate impact on female students. 256.   Defendant University’s deliberate indifference to Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 257.   Plaintiff Adams has suffered emotional distress and psychological damage and other damages, and her character and standing in her community and education have suffered from the harassment fostered as a direct and proximate result of Defendant University’s deliberate indifference to her rights under Title IX. - 34 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 35 of 68 PAGEID #: 538 SIXTH CLAIM FOR RELIEF AGAINST ANDREW ESCOBEDO IN HIS INDIVIDUAL CAPACITY Sexual Harassment in Violation of Fourteenth Amendment of the Constitution of the United States of America (Pursuant to 42 U.S.C. § 1983) As to Christine Adams 258.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 259.   Under the Fourteenth Amendment, Plaintiff had the right as a public university student to personal security and bodily integrity and Equal Protection of Laws. 260.   Defendant Escobedo sexually harassed Plaintiff Adams while he was a state actor acting in his individual capacity under the color of state law. 261.   Defendant Escobedo subjected Plaintiff Adams to violations of her right to personal security and bodily integrity and Equal Protection of Laws by subjecting her to egregious sexual harassment on the evening of December 3-4, 2015. 262.   Defendant Escobedo subjected Plaintiff Adams to sexual harassment and unwanted sexual contact that was so severe and objectively offensive that it violated Plaintiff Adams’ constitutional rights. 263.   The physical contact that Defendant Escobedo made with Plaintiff was intentional contact and included rubbing or groping Plaintiff Adams on her leg, thighs, back, buttocks, and “crotch area” with his hands in addition to rubbing his erect penis against Plaintiff Adams and kissing her with his tongue. Given the extent of this physical touching, the locations on Plaintiff Adams’ body touched by Defendant Escobedo and the manner of the touching by Defendant Escobedo, it was sexual in nature. 264.   Plaintiff Adams did not consent to Defendant Escobedo’s touching her in a sexual manner. 265.   Defendant Escobedo was in a direct supervisory and evaluative role over Plaintiff Adams. 266.   Defendant Escobedo was the instructor of record for the overall course and submitted final grades for all students. - 35 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 36 of 68 PAGEID #: 539 267.   Defendant Escobedo engaged in multiple instances of non-consensual sexual contact with Plaintiff Adams. 268.   Defendant Escobedo’s behavior at Tony’s Bar was non-consensual contact with Plaintiff Adams. 269.   Defendant Escobedo’s behavior outside Ellis Hall was non-consensual contact with Plaintiff Adams. 270.   Defendant Escobedo’s conduct constituted disparate treatment of females and had a disparate impact on female students and faculty members. Defendant is known to have engaged in almost identical behavior with at least two other female students and faculty members in 2003 and 2005. 271.   Plaintiff Adams has had her academic life and standing disrupted, and has personally suffered emotional and psychological distress, all as a direct and proximate result of Defendant Escobedo’s sexual harassment. 272.   Defendant Escobedo’s conduct as described herein violated Plaintiff Adams’ clearly established constitutional rights of which a reasonable person would have known. 273.   Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 274.   As a result of the foregoing, Plaintiff Adams suffered extensive damages. SEVENTH CLAIM FOR RELIEF AGAINST ANDREW ESCOBEDO IN HIS INDIVIDUAL CAPACITY Sexual Harassment (Quid Pro Quo) in Violation of the Fourteenth Amendment to the Constitution of the United States of America (Pursuant to 42 U.S.C. § 1983) As to Christine Adams 275.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 276.   Under the Fourteenth Amendment, Plaintiff had the right as a public university student to personal security and bodily integrity and Equal Protection of Laws. 277.   Defendant Escobedo sexually harassed Plaintiff Adams while he was a state actor acting in his individual capacity under the color of state law. - 36 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 37 of 68 PAGEID #: 540 278.   Defendant Escobedo subjected Plaintiff Adams to sexual harassment and unwanted sexual contact that was so severe and objectively offensive that it violated Plaintiff Adams’ constitutional rights. 279.   Professor Escobedo engaged in quid pro quo sexual harassment of Plaintiff Adams. 280.   Professor Escobedo’s harassment of Plaintiff Adams included physical or verbal conduct of a sexual nature that was unwelcome and sufficiently severe or pervasive such that, from both a subjective and an objective viewpoint, it would appear that: a.   Submission to the conduct was either explicitly or implicitly a term or condition of her employment or academic status; b.   Submission to or rejection of such conduct could be used as the basis for employment or academic decisions affecting her; or c.   Such conduct had the purpose or effect of unreasonably interfering with the with her work, performance, or education experience; or of creating an intimidating, hostile, or offensive environment for work or learning. 281.   Prior to engaging in non-consensual sexual contact with Plaintiff Adams, Plaintiff Adams overheard Defendant Escobedo tell another student to “be careful” because grades had not been submitted. This warning, coupled with Defendant Escobedo’s actions in repeatedly touching Plaintiff Adams 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. This also demonstrates that Defendant Escobedo was not afraid to exploit the power differential to pursue sexual contact with Plaintiff Adams. 282.   On the evening of December 3-4, 2015, Defendant Escobedo had not yet assigned grades for the course. 283.   It was reasonable for Plaintiff Adams to believe that her grade and academic status was conditioned on submitting to Defendant Escobedo’s touching her in a sexual nature. 284.   A reasonable person under these same circumstances could similarly believe that their grade and academic status were conditioned on submitting to Respondent’s touching in a sexual nature. - 37 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 38 of 68 PAGEID #: 541 285.   Defendant Escobedo’s conduct meets both the subjective and objective standards of severity required to establish quid pro quo sexual harassment. 286.   Defendant Escobedo’s conduct as described herein violated Plaintiff Adams’ clearly established constitutional rights of which a reasonable person would have known. 287.   Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 288.   As a result of the foregoing, Plaintiff Adams suffered extensive damages. EIGHTH CLAIM FOR RELIEF AGAINST ANDREW ESCOBEDO IN HIS INDIVIDUAL CAPACITY Hostile Environment in Violation of the Fourteenth Amendment to the Constitution of the United States of America (Pursuant to 42 U.S.C. § 1983) As to Christine Adams 289.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 290.   Under the Fourteenth Amendment, Plaintiff had the right as a public university student to personal security and bodily integrity and Equal Protection of Laws. 291.   Defendant Escobedo sexually harassed Plaintiff Adams while he was a state actor acting in his individual capacity under the color of state law. 292.   Defendant Escobedo subjected Plaintiff Adams to sexual harassment and unwanted sexual contact that was so severe and objectively offensive that it violated Plaintiff Adams’ constitutional rights. 293.   The physical and verbal conduct by Defendant Escobedo was of a sexual nature and was unwelcome and sufficiently severe or pervasive from both a subjective and objective viewpoint such that the conduct had the purpose or effect of unreasonably interfering with Plaintiff Adams’ work or academic performance or creating an intimidating, hostile, or offensive environment for working, learning, or living on campus. 294.   The physical and verbal conduct by Defendant Escobedo was of a sexual nature and was unwelcome and sufficiently severe or pervasive from both a subjective and objective viewpoint such that the conduct had the purpose or effect of unreasonably interfering with Plaintiff Adams’ work or academic performance or creating an intimidating, hostile, or offensive environment for working, learning, or living on campus. - 38 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 39 of 68 PAGEID #: 542 295.   The environment created from the conduct of Defendant Escobedo was hostile based on the circumstances, including but not limited to the frequency of the conduct, the nature and severity of the conduct, the relationship between the parties, the location and context in which the conduct occurred, and the physically threatening and humiliating nature of the conduct. 296.   The environment resulting from Defendant Escobedo’s conduct also constitutes a hostile environment: a.   After the occurrence, Plaintiff was subjected to verbal and physical sexual harassment within the English Department that was so severe, pervasive and objectively offensive that she was denied access to educational opportunities and benefits. b.   For Plaintiff Adams, Ohio University became a sexually hostile environment where her harasser was still on campus and teaching within the English Department. c.   Plaintiff Adams considered not returning to Ohio University after the incident of December 3-4, 2015. d.   Plaintiff Adams encountered complications in the English Department stemming from Professor Escobedo’s conduct and her report of his conduct to ECRC. e.   Plaintiff Adams’ office was in close proximity to Professor Escobedo’s office. Adams was forced to hold her office hours at a local business to avoid coming in contact with Professor Escobedo. f.   The investigation has weighed on Plaintiff Adams heavily. Professor Escobedo’s conduct has interfered with Plaintiff Adams’ academic performance. 297.   Defendant Escobedo’s conduct as described herein violated Plaintiff Adams’ clearly established constitutional rights of which a reasonable person would have known. 298.   Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 299.   As a result of the foregoing, Plaintiff Adams suffered extensive damages. NINTH CLAIM FOR RELIEF AGAINST ANDREW ESCOBEDO IN HIS INDIVIDUAL CAPACITY NEGLIGENCE - 39 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 40 of 68 PAGEID #: 543 As to Christine Adams 300.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 301.   Attached as Exhibit E is a true and accurate copy of a letter dated February 5, 2017 from Defendant Escobedo to his English Department Colleagues. 302.   In the February 5, 2017 letter, Defendant Escobedo makes the following admission: “I am not trying to deny that I do bear culpability for my actions on the evening of 3 December 2015.” 303.   In the February 5, 2017 letter, Defendant Escobedo also makes the following admission: “I bear serious responsibility for what happened on December 3, and I certainly deserve disciplinary action.” 304.   In the February 5, 2017 letter, Defendant Escobedo attributes his behavior on December 3-4, 2015 to his intoxication. 305.   In the February 5, 2017 letter, Defendant Escobedo also makes the following admission: “the degree of my intoxication prevents me from being able to give a clear account of everything I did on December 3, and the blame for that is on me. Whatever my mental state at the time, I bear serious responsibility.” 306.   On or about the evening of December 3-4, 2015, Defendant Andrew Escobedo had a duty to exercise due are and caution for the safety of Plaintiff Adams. 307.   Notwithstanding the aforesaid duty, Defendant Escobedo was guilty of one or more of the following negligent and/or reckless acts or omissions: a.   Failed to exercise caution towards Plaintiff Adams; b.   Failed to exercise due care in his physical interactions with Plaintiff; c.   Because of his intoxication, engaged in sexual misconduct that included but was not limited to touching of Plaintiff Adam’s legs, arms, buttocks, and breasts without consent, and kissing without consent; d.   Because of his intoxication, failed to cease making sexual advances towards Plaintiff Adams despite her indications that she did not consent to these advances; e.   While under the influence of alcohol and without any form of consent made repeated sexual advances towards Plaintiff Adams. - 40 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 41 of 68 PAGEID #: 544 308.   As a result of one or more of the foregoing negligent acts or omissions, Plaintiff Adams repeatedly suffered bodily harm by Defendant Escobedo. 309.   As a direct and proximate result of one or more of the aforesaid negligent acts and/or omissions of Defendant Escobedo, Plaintiff Adams has had her life negatively altered, her academic life and standing disrupted, and has personally suffered emotional and psychological distress, all as a direct and proximate result of Defendant Escobedo’s negligence. 310.   Plaintiff Adams has lost great gains that would have otherwise been made and acquired, will in the future lose gains she would have made and acquired, and has and continues to be impaired from going about her daily affairs, all to Defendant Escobedo’s damage. 311.   Plaintiff Adams reserves the right to seek punitive damages. TENTH CLAIM FOR INJUNCTIVE RELIEF AGAINST JOSEPH MCLAUGHLIN IN HIS OFFICIAL CAPACITY Violation of the Fourteenth Amendment of the Constitution of the United States of America (Pursuant to 42 U.S.C. § 1983) As to Christine Adams 312.   Count Nine is brought for prospective injunctive relief only, to enjoin the ongoing civil rights violation as described herein. 313.   Defendant McLaughlin is the former chair of the English Department and currently the president of Ohio University’s Faculty Senate. 314.   Although Defendant McLaughlin is no longer the chair of the English Department, he is one of the most highly influential professors within the English Department. 315.   Defendant McLaughlin is and for many years has been a very close friend of Defendant Escobedo. 316.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full 317.   At all relevant times, Plaintiff Adams was a student at a public university and, therefore, had the fourteenth amendment right to personal security, bodily integrity, and Equal Protection of Laws. 318.   Defendant McLaughlin continues to use his friendship with Defendant Escobedo to violate Plaintiff Adams’ constitutional right to equal protection as guaranteed by the Fourteenth Amendment by deliberately ignoring reports about Defendant Escobedo’s sexual - 41 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 42 of 68 PAGEID #: 545 misconduct. He continues to violate Plaintiff Adams’ constitutional right to equal protection by using his influence within the English Department to deprive Plaintiffs and other female graduate students in the English Department such that they fear retaliation safe if they attempt to pursue their civil rights. 319.   Defendant Joseph McLaughlin is violating Plaintiff’s right to equal protection by promoting a climate in Ohio University’s English Department that has persisted for over a decade in which it is known that Defendant Escobedo aggressively sought out sexual relationships with female students and that students who report this misconduct will have to go up against not only Escobedo, but also his good friend. 320.   Because Defendant McLaughlin continues to act with deliberate indifferent towards formal reports by other English Department faculty members, a climate survey that substantiated those reports, course evaluations that indicated a particular faculty member was engaged in sexual harassment and sexual misconduct, and widely circulated conversations within the English Department regarding Defendant Escobedo’s propensity to pursue sexual relationships with students, Defendant McLaughlin is violating Plaintiff Adams’ Fourteenth Amendment rights. 321.   Defendant McLaughlin is also close friends with Defendant Escobedo’s wife, another English Professor in the English Department, Beth Quitsland, and has recommended her for chair of the English Department. 322.   It is difficult enough for Plaintiff to have to continue to succeed in an environment where her abuser’s wife is a professor. It is clearly unreasonable for Defendant McLaughlin to attempt to promote Plaintiff’s abuser’s wife to Department chair. 323.   Defendant McLaughlin’s conduct and his use of his power and authority within the English Department constitutes disparate treatment of females and has a disparate impact on female students. 324.   As a direct and proximate result of Defendant McLaughlin’s continued deliberate indifference to Plaintiff’s Fourteenth Amendment rights, Plaintiff Adams continues to suffer serious harm, emotional distress and other damages. - 42 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 43 of 68 PAGEID #: 546 325.   If this Court does not enjoin the violations as described herein, Defendant McLaughlin will continue to use his authority to violate the Fourteenth Amendment of the Constitution of the United States of America. ELEVENTH CLAIM FOR RELIEF AGAINST JOSEPH MCLAUGHLIN IN HIS INDIVIDUAL CAPACITY Violation of the Fourteenth Amendment of the Constitution of the United States of America (Pursuant to 42 U.S.C. § 1983) As to Christine Adams 326.   Plaintiff Adams re-alleges all prior paragraphs of the Complaint as if set out here in full. 327.   At all relevant times, Plaintiff Adams was a student at a public university and, therefore, had the Fourteenth Amendment right to personal security, bodily integrity, and Equal Protection of Laws. 328.   At all relevant times, Defendant, Professor Joseph McLaughlin, was a state actor acting in his individual capacity and abusing his authority under color of state law. 329.   Defendant McLaughlin failed to preserve Plaintiff Adams’ constitutional right to equal protection as guaranteed by the Fourteenth Amendment when he deliberately ignored reports about Defendant Escobedo’s sexual misconduct. He further violated Plaintiff Adams’ constitutional right to equal protection when he deliberately failed to respond appropriately to the results of a climate survey which indicated that female graduate students in the English Department did not feel safe within the program. 330.   Defendant Joseph McLaughlin violated Plaintiff’s right to equal protection by one or more of the following acts of deliberate indifference: a.   failing to take immediate and appropriate action to investigate or otherwise determine what the nature of Defendant Escobedo’s conduct was when informed that he was maintaining a sexual relationship with a female student in 2006 by a faculty member; b.   failing to take immediate and appropriate action when a climate survey revealed that numerous female students in the English Department felt unsafe within the program; and - 43 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 44 of 68 PAGEID #: 547 c.   failing to address the general climate in Ohio University’s English Department that has persisted for over a decade in which it is known that Defendant Escobedo aggressively sought out sexual relationships with female students, and instead characterizing these serious allegations as a conspiracy against Defendant Escobedo. 331.   Because Defendant McLaughlin was deliberately indifferent to formal reports by other English Department faculty members, a climate survey that substantiated those reports, course evaluations from students that indicated a particular faculty member was engaged in a pattern of sexual harassment and sexual misconduct towards students, and widely circulated informal conversation within the English Department regarding Defendant Escobedo’s propensity to pursue sexual relationships with students, Defendant McLaughlin violated Plaintiff Adams’ Fourteenth Amendment rights. 332.   Defendant McLaughlin’s conduct constituted disparate treatment of females and had a disparate impact on female students. 333.   Defendant McLaughlin’s conduct as described herein violated Plaintiff Adams’ clearly established constitutional rights of which a reasonable person would have known. 334.   Defendant McLaughlin’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 335.   As a direct and proximate result of Defendant McLaughlin’s deliberate indifference, Plaintiff Adams has suffered serious harm, emotional distress and other damages. TWELTH CLAIM FOR RELIEF AGAINST OHIO UNIVERSITY Deliberate Indifference resulting in Sexual Harassment (Strict Liability, Quid Pro Quo) in Violation of Title IX as to Susanna Hempstead 336.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 337.   At all relevant times, Defendant Ohio University received federal funding and assistance. 338.   Plaintiff Hempstead was subjected to sexual harassment and unwanted sexual contact that was so severe, pervasive, and/or objectively offensive that it deprived her of access to educational opportunities and benefits. - 44 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 45 of 68 PAGEID #: 548 339.   The U.S. Department of Education Office for Civil Rights has established criteria to determine if a school or university that receives public funds is strictly liable for allowing quid pro quo sexual harassment. Their guidelines state: a.   “Schools are responsible for taking prompt and effective action to stop the harassment and prevent its recurrence.” b.   “If an employee who is acting (or who reasonably appears to be acting) in the context of carrying out these responsibilities over students engages in sexual harassment – generally this means harassment that is carried out during an employee’s performance of his or her responsibilities in relation to students, including teaching, counseling, supervising, advising, and transporting students – and the harassment denies or limits a student’s ability to participate in or benefit from a school program on the basis of sex, the recipient is responsible for the discriminatory conduct.” c.   “If an employee conditions the provision of an aid, benefit, or service that the employee is responsible for providing on a student’s submission to sexual conduct, i.e., conduct traditionally referred to as quid pro quo harassment, the harassment is clearly taking place in the context of the employee’s responsibilities to provide aid, benefits, or services. d.   Sometimes harassment of a student by an employee in the school’s program does not take place in the context of the employee’s provision of aid, benefits, or services, but nevertheless is sufficiently serious to create a hostile educational environment. An example of this conduct might occur if a faculty member in the history department at a university, over the course of several weeks, repeatedly touches and makes sexually suggestive remarks to a graduate engineering student while waiting at a stop for the university shuttle bus, riding on the bus, and upon exiting the bus. As a result, the student stops using the campus shuttle and walks the very long distances between her classes. In this case, the school is not directly responsible for the harassing conduct because it did not occur in the context of the employee’s responsibilities for the provision of aid, benefits, or services to students. However, the conduct is - 45 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 46 of 68 PAGEID #: 549 sufficiently serious to deny or limit the student in her ability to participate in or benefit from the recipient’s program. Thus, the school has a duty, upon notice of the harassment, to take prompt and effective action to stop the harassment and prevent its recurrence. e.   If the school takes these steps, it has avoided violating Title IX. If the school fails to take the necessary steps, however, its failure to act has allowed the student to continue to be subjected to a hostile environment that denies or limits the student’s ability to participate in or benefit from the school’s program. The school, therefore, has engaged in its own discrimination. It then becomes responsible, not just for stopping the conduct and preventing it from happening again, but for remedying the effects of the harassment on the student that could reasonably have been prevented if the school had responded promptly and effectively. 340.   Before December 3, 2015 Defendant University had actual knowledge of sexual harassment and misconduct committed by Professor Escobedo. 341.   Before December 3, 2015 Defendant University had actual knowledge of the quid pro quo risks inherent in sexual relationships between faculty and students. 342.   Before December 3, 2015, Defendant University knew or should have known that Defendant Escobedo had previous sexual relationships with students. 343.   The sexual harassment committed by Defendant Escobedo against Plaintiff Hempstead was committed while he was acting as an employee of Defendant University and after Defendant University had actual knowledge of sexual harassment complaints against Defendant Escobedo. 344.   Defendant University’s response to previous reports regarding Professor Escobedo (particularly in 2006 and 2011) was deliberately indifferent, insofar as the response or lack thereof was clearly unreasonable in light of the known circumstances. 345.   Professor Escobedo engaged in quid pro quo sexual harassment of Plaintiff Hempstead. 346.   Defendant University has itself determined that the harassment that Escobedo engaged in against Plaintiff Hempstead was quid pro quo in nature. - 46 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 47 of 68 PAGEID #: 550 347.   Defendant University’s deliberate indifference to Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 348.   As a result of the foregoing, Plaintiff Hempstead suffered extensive damages. THIRTEENTH CLAIM FOR RELIEF AGAINST OHIO UNIVERSITY Deliberate Indifference resulting in Sexual Harassment (Unwanted Sexual Contact) in Violation of Title IX, As to Susanna Hempstead 349.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 350.   At all relevant times, Defendant Ohio University received federal funding and assistance. 351.   Plaintiff Hempstead was subjected to sexual contact that was so severe, pervasive, and/or objectively offensive that it deprived her of access to educational opportunities and benefits. 352.   The physical contact committed by Defendant Escobedo was committed while he was Plaintiff Hempstead’s Professor and an employee of Ohio University. 353.   Defendant Escobedo has engaged in a pattern of exploiting females who are subordinate to Defendant Escobedo by virtue of their student status or their junior employment status. 354.   Defendant Ohio University’s own internal investigation revealed and substantiated at least two other instances, in 2003 and 2005, where Defendant Escobedo engaged in an almost identical style of sexual misconduct towards a student and a subordinate faculty member. 355.   The physical contact that Defendant Escobedo made with Plaintiff on December 3-4, 2015, was intentional contact and included rubbing or groping Plaintiff Hempstead on her leg, thighs, back, buttocks, and “crotch area”. Given the extent of this physical touching, the locations on Plaintiff Hempstead’s body touched by Defendant Escobedo and the manner of the touching by Defendant Escobedo, it was sexual in nature. - 47 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 48 of 68 PAGEID #: 551 356.   Plaintiff Hempstead did not consent to Defendant Escobedo’s touching her in a sexual manner. 357.   Defendant Escobedo was in a direct supervisory and evaluative role over Plaintiff Hempstead. 358.   Defendant Escobedo was the instructor of record for the overall course and submitted final grades for all students. 359.   Defendant Escobedo engaged in multiple instances of non-consensual sexual contact with Plaintiff Hempstead. 360.   Defendant Escobedo’s behavior at Tony’s Bar was non-consensual contact with Plaintiff Hempstead. 361.   The non-consensual physical contact violated Ohio University Policy 03.0004. 362.   Defendant University’s response to previous reports regarding Professor Escobedo (particularly 2006) was deliberately indifferent, insofar as the response or lack thereof was clearly unreasonable in light of the known circumstances. 363.   Prior to December 3, 2015, Defendant University had notice of sexual misconduct within the English Department. 364.   Prior to December 3, 2015, Defendant University had notice of allegations of prior sexual relationships between Defendant Escobedo and students. 365.   Prior to December 3, 2015, Defendant University had possession of course evaluations that indicated a particular faculty member was engaged in sexual harassment and sexual misconduct aimed at female students in the English Department. 366.   Prior to December 3, 2015, Defendant University had notice of the 2006 climate survey that indicated a high level of discomfort among women in the English Department. 367.   Defendant Ohio University has substantiated at least two other instances of sexual misconduct by Defendant Escobedo within the English Department (2003 and 2005). 368.   The standard for deliberate indifference has been recognized as: a.   An institution’s failure to properly investigate a claim. Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007); Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000); - 48 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 49 of 68 PAGEID #: 552 b.   An institution’s failure to meaningfully and appropriately discipline the studentassailant. Vance, 231 F.3d at 262; c.   An institution’s minimization of the discriminatory import of sexual assault. Jennings, 482 F.3d at 700; d.   If the assailant, and student body at large, are left to believe that the institution tacitly approved the harassing behavior. Siewert v. Spencer-Owen, 497 F. Supp. 2d at 954 (S.D. Ind. 2007); e.   Conducting an investigation, but nothing more. Vance, 231 F.3d at 260; f.   And an institution’s continued use of “ineffective methods to no acknowledged avail.” Vance, 231 F.3d at 261. 369.   Defendant University’s deliberate indifference to Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 370.   As a result of the foregoing, Plaintiff Hempstead suffered extensive damages. FOURTEENTH CLAIM FOR RELIEF AGAINST OHIO UNIVERSITY Deliberate Indifference resulting in Sexual Harassment (Quid Pro Quo) in Violation of Title IX As to Susanna Hempstead 371.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 372.   At all relevant times, Defendant Ohio University received federal funding and assistance. 373.   Plaintiff Hempstead was subjected to sexual harassment and unwanted sexual contact that was so severe, pervasive, and/or objectively offensive that it deprived her of access to educational opportunities and benefits. 374.   The sexual harassment committed by Defendant Escobedo against Plaintiff Hempstead was committed while he was acting as an employee of Defendant University and after Defendant University had actual knowledge of sexual harassment complaints against Defendant Escobedo. - 49 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 50 of 68 PAGEID #: 553 375.   Professor Escobedo engaged in quid pro quo sexual harassment of Plaintiff Hempstead. 376.   Professor Escobedo’s harassment of Plaintiff Hempstead included physical or verbal conduct of a sexual nature that was unwelcome and sufficiently severe or pervasive such that, from both a subjective and an objective viewpoint, it would appear that: a.   Submission to the conduct was either explicitly or implicitly a term or condition of her employment or academic status; b.   Submission to or rejection of such conduct could be used as the basis for employment or academic decisions affecting her; or c.   Such conduct had the purpose or effect of unreasonably interfering with the with her work, performance, or education experience; or of creating an intimidating, hostile, or offensive environment for work or learning. 377.   While engaging in non-consensual sexual contact with Plaintiff Hempstead, Defendant Escobedo told Plaintiff Hempstead to “be careful” because grades had not been submitted. This warning, coupled with Defendant Escobedo’s actions in repeatedly touching Plaintiff Hempstead 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. This also demonstrates that Defendant Escobedo was not afraid to exploit the power differential to pursue sexual contact with Plaintiff Hempstead. 378.   On the evening of December 3-4, 2015, Defendant Escobedo had not yet assigned grades for the course. 379.   It was reasonable for Plaintiff Hempstead to believe that her grade, academic status, and other academic benefits were conditioned on submitting to Defendant Escobedo’s touching her in a sexual nature. 380.   A reasonable person under these same circumstances could similarly believe that their grade and academic status were conditioned on submitting to Respondent’s touching in a sexual nature. 381.   Defendant Escobedo’s conduct meets both the subjective and objective standards of severity required to establish quid pro quo sexual harassment. 382.   Defendant Escobedo’s conduct violated Ohio University Policy 03.004(E)(1). - 50 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 51 of 68 PAGEID #: 554 383.   This power differential would be inherent in any professor/student relationship in the English Department. 384.   Defendant Escobedo has for more than a decade knowingly exploited his power differential over female students and junior faculty in order to make sexual advances towards them. Defendant Escobedo engaged in almost identical behavior in 2003, 2005, and possibly other occasions. 385.   Defendant University’s deliberate indifference to Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 386.   As a result of the foregoing, Plaintiff Hempstead suffered extensive damages. FIFTEENTH CLAIM FOR RELIEF AGAINST OHIO UNIVERSITY Deliberate Indifference Resulting in Hostile Environment in Violation of Title IX, As to Susanna Hempstead 387.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 388.   The physical and verbal conduct by Defendant Escobedo was of a sexual nature and was unwelcome and sufficiently severe or pervasive from both a subjective and objective viewpoint such that the conduct had the purpose or effect of unreasonably interfering with Plaintiff Hempstead’s work or academic performance or creating an intimidating, hostile, or offensive environment for working, learning, or living on campus. 389.   The environment created from the conduct of Defendant Escobedo was hostile based on the circumstances, including but not limited to the frequency of the conduct, the nature and severity of the conduct, the relationship between the parties, the location and context in which the conduct occurred, and the physically threatening and humiliating nature of the conduct. 390.   The conduct by Defendant Escobedo violated Ohio University Policy 03.004(E)(2). 391.   The Defendant University, by and through its employees, including but not limited to Defendant McLaughlin the ECRC, had notice of the history of sexual misconduct and - 51 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 52 of 68 PAGEID #: 555 harassment within the department and was, prior to December 3, 2015, on December 3, 2015 and after December 3, 2015 deliberately indifferent to Plaintiff Hempstead’s well-being. 392.   Ohio University’s response to previous reports regarding Professor Escobedo (particularly 2006) was deliberately indifferent. 393.   Ohio University’s response to the course evaluations that indicated a particular faculty member was engaged in sexual harassment and sexual misconduct towards female students in the English Department was deliberately indifferent. 394.   An appropriate response to the 2006 report and climate survey would have likely revealed the now substantiated 2003 and 2005 incidents of sexual misconduct by Defendant Escobedo. 395.   Defendant University’s response to known risks prior to the evening of December 3-4, 2015, was clearly unreasonable in light of the known circumstances. 396.   Defendant University’s response to the events of the evening of December 3-4, 2015, also created a hostile environment: a.   After the occurrence, Plaintiff was subjected to verbal and physical sexual harassment within the English Department that was so severe, pervasive and objectively offensive that she was denied access to educational opportunities and benefits. b.   For Plaintiff Hempstead, Ohio University became a sexually hostile environment where her harasser was still on campus and teaching within the English Department. c.   Plaintiff Hempstead considered not returning to Ohio University after the incident of December 3-4, 2015. d.   Plaintiff Hempstead encountered complications in the English Department stemming from Professor Escobedo’s conduct and her report of his conduct to the ECRC. e.   Plaintiff Hempstead went through great lengths to avoid coming into close proximity with Defendant Escobedo after the unwanted physical contact. - 52 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 53 of 68 PAGEID #: 556 f.   The investigation has weighed on Plaintiff Hempstead heavily. Professor Escobedo’s conduct has interfered with Plaintiff Hempstead’s academic performance. g.   Ohio University was deliberately indifferent to previous reports regarding Professor Escobedo’s known behavior. h.   As a result of Ohio University’s deliberate indifference, Plaintiff Hempstead was forced to alter her daily operations in the English Department, and lost educational opportunities and benefits at the university. i.   This conduct constitutes multiple instances of a hostile environment in violation of Title IX. 397.   Defendant University’s deliberate indifference to Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 398.   As a result of the foregoing, Plaintiff Hempstead suffered extensive damages. SIXTEENTH CLAIM FOR RELIEF AGAINST OHIO UNIVERSITY Deliberate Indifference resulting in Sexual Harassment in Violation of Title IX, As to Susanna Hempstead 399.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 400.   The sex-based harassment described in the Plaintiffs’ General Allegations was so severe, pervasive, and objectively offensive that it deprives Plaintiff of access to educational opportunities or benefits provided by Defendant University. 401.   Defendant University created and/or subjected Plaintiff Hempstead to a hostile educational environment in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (“Title IX”), because: a.   Plaintiff Hempstead was a member of a protected class; b.   Plaintiff was subjected to sexual harassment in the form of unwanted sexual contact by a Professor; c.   Plaintiff Hempstead was subjected to harassment based on her sex; and - 53 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 54 of 68 PAGEID #: 557 d.   Plaintiff Hempstead was subjected to a hostile educational environment created by Defendant University’s lack of policies and procedures and failure to properly investigate and/or address the unwanted sexual contact and subsequent harassment. 402.   Defendant University and its officials had received actual notice of Defendant Escobedo’s sexual misconduct in 2006 and on other occasions since 2006 and before the evening of December 3-4 yet failed to investigate and discipline Escobedo in a timely and consistent manner with its own policy and federal and state law. 403.   Defendant University’s failure to promptly and appropriately respond to the actual notice of sexual misconduct by Defendant Escobedo in 2006 and in other instances between 2006 and before the evening of December 3-4 resulted in Plaintiff Hempstead, on the basis of her sex, being denied her educational opportunities and benefits in violation of Title IX. 404.   Defendant University failed to take immediate, effective remedial steps to investigate and respond to the notice it received of Defendant Escobedo’s sexual misconduct in 2006, and instead acted with deliberate indifference towards the 2006 complaint and toward Plaintiff Hempstead. 405.   Defendant University failed to respond seriously and appropriately to the course evaluations that referenced a particular faculty member engaging in sexual harassment sexual misconduct towards female students in the English Department. 406.   Defendant University engaged in a pattern and practice of behavior designed to avoid taking responsibility for, and responding to Defendant Escobedo’s known sexual misconduct. 407.   Defendant University’s internal investigation in 2016 substantiated at least two other instances of sexual misconduct by Defendant Escobedo in 2003 and 2005. 408.   If Defendant University had responded seriously to the course evaluations, 2006 report, and climate survey, it is likely that an investigation would have revealed the 2003 and 2005 incidents much earlier. 409.   If Defendant University had responded seriously to the course evaluations, 2006 report, and climate survey, and to other known instances of Defendant Escobedo’s sexual misconduct, Defendant Escobedo would have been seriously reprimanded and would not have - 54 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 55 of 68 PAGEID #: 558 been in a position to engage in the same exact sexual misconduct towards Plaintiffs Adams and Hempstead on the evening of December 3-4, 2015. 410.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 411.   Ohio University knew that Professor Escobedo was unfit to teach at Ohio University because he consistently sexually harassed members of the faculty and student body. 412.   Defendant McLaughlin had actual notice that Professor Escobedo was unfit to teach young female graduate students. Professor Holm and others informed Defendant McLaughlin that Professor Escobedo not only was engaged in a sexual relationship with a student but also that he was known to seek these relationships and regularly make sexual advances towards female students and faculty. 413.   Plaintiff Hempstead was subjected to sexual harassment and advances by Professor Escobedo after Defendant McLaughlin had actual knowledge of Defendant Escobedo’s habit of seeking sexual relationships with female students and faculty. 414.   It was widely known among English Department students and faculty that Professor Escobedo sought sexual relationships with students, a reasonable Department chair would have investigated Escobedo’s behavior. 415.   In approximately 2006, Defendant University received multiple course evaluations, filled out by students, indicating that a particular faculty member was engaged in sexual harassment and sexual misconduct towards female graduate students. 416.   In 2006, Defendant McLaughlin and Defendant University had possession of the Department climate survey and shared it with the Administrative Committee of the Department. 417.   In the 2016 ECRC investigation, Defendant University indicated that they did not have a copy of the 2006 climate survey. 418.   Defendant University, by and through its officials, including but not limited to Defendant McLaughlin and the ECRC, violated Title IX. 419.   Defendant University, by and through its agents, including but not limited to Joseph McLaughlin, took no action out of fear that other personal interactions with students would be exposed. - 55 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 56 of 68 PAGEID #: 559 420.   Defendant University took no action so that an environment in which Defendant Escobedo could have access to young female graduate students would remain intact. 421.   Defendant University mishandled the 2006 climate survey. 422.   Defendant University’s losing and then re-finding the 2006 climate survey after this lawsuit was initiated is suspicious at best. 423.   Defendant University took no or insufficient action in response to the 2006 climate survey. 424.   Defendant University took no or insufficient action to inhibit the sexually inappropriate culture within the Department. 425.   Defendant University, by and through its agents and employees, including but not limited to Joseph McLaughlin, encouraged Defendant Escobedo’s interactions with young female students. 426.   Defendant University, by and through its agents and employees, including but not limited to Joseph McLaughlin, acted or failed to act upon knowledge of it had of Defendant Escobedo’s misconduct in such a way that the response was clearly unreasonable. 427.   One or more of the above acts or omissions was a substantial factor in causing Plaintiff Hempstead’s harm. 428.   Defendant University’s conduct as described herein was wanton and willful and in reckless disregard for Plaintiff’s well-being. 429.   Defendant University failed to exercise any care toward the Plaintiff Hempstead under circumstances where there was great probability that harm would result. 430.   Defendant University consciously disregarded and was indifferent to the known and obvious risks that Defendant Escobedo imposed. 431.   Defendant University’s deliberate indifference was clearly unreasonable. 432.   Defendant University’s deliberate indifference to a known risk and spoliation of evidence as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 433.   As a result of the foregoing, Plaintiff Hempstead suffered extensive damages. 434.   This policy and/or practice constituted disparate treatment of females and had a disparate impact on female students. - 56 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 57 of 68 PAGEID #: 560 435.   Defendant University’s deliberate indifference to Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 436.   Plaintiff Hempstead has suffered emotional distress and psychological damage and other damages, and her character and standing in her community and education have suffered from the harassment fostered as a direct and proximate result of Defendant University’s deliberate indifference to her rights under Title IX. SEVENTEENTH CLAIM FOR RELIEF AGAINST ANDREW ESCOBEDO IN HIS INDIVIDUAL CAPACITY Sexual Harassment in Violation of the Fourteenth Amendment to the Constitution of the United States of America (Pursuant to 42 U.S.C. § 1983) As to Susanna Hempstead 437.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 438.   Under the Fourteenth Amendment, Plaintiff had the right as a public university student to personal security and bodily integrity and Equal Protection of Laws. 439.   Defendant Escobedo sexually harassed Plaintiff Hempstead while he was a state actor acting in his individual capacity under the color of state law. 440.   Defendant Escobedo subjected Plaintiff Hempstead to violations of her right to personal security and bodily integrity and Equal Protection of Laws by subjecting her to egregious sexual harassment on the evening of December 3-4, 2015. 441.   Defendant Escobedo subjected Plaintiff Hempstead to sexual harassment and unwanted sexual contact that was so severe and objectively offensive that it violated Plaintiff Hempstead’s constitutional rights. 442.   The physical contact committed by Defendant Escobedo was committed while he was acting as an employee of Ohio University. 443.   Defendant Escobedo has engaged in a pattern of exploiting females who are subordinate to Defendant Escobedo by virtue of their student status or their junior employment status. 444.   The physical contact that Defendant Escobedo made with Plaintiff on December 3-4, 2015, was intentional contact and included rubbing or groping Plaintiff Hempstead on her - 57 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 58 of 68 PAGEID #: 561 leg, thighs, back, buttocks, and “crotch area”. Given the extent of this physical touching, the locations on Plaintiff Hempstead’s body touched by Defendant Escobedo and the manner of the touching by Defendant Escobedo, it was sexual in nature. 445.   Plaintiff Hempstead did not consent to Defendant Escobedo’s touching her in a sexual manner. 446.   Defendant Escobedo was in a direct supervisory and evaluative role over Plaintiff Hempstead. 447.   Defendant Escobedo was the instructor of record for the overall course and submitted final grades for all students. 448.   Defendant Escobedo engaged in multiple instances of non-consensual sexual contact with Plaintiff Hempstead. 449.   Defendant Escobedo’s behavior at Tony’s Bar was non-consensual contact with Plaintiff Hempstead. 450.   Defendant Escobedo’s conduct constituted disparate treatment of females and had a disparate impact on female students and faculty members. Defendant is known to have engaged in almost identical behavior with at least two other female students and faculty members in 2003 and 2005. 451.   Plaintiff Hempstead has had her academic life and standing disrupted, and has personally suffered emotional and psychological distress, all as a direct and proximate result of Defendant Escobedo’s sexual harassment. 452.   Defendant Escobedo’s conduct as described herein violated Plaintiff Hempstead’s clearly established constitutional rights of which a reasonable person would have known. 453.   Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that punitive damages are appropriate. 454.   As a result of the foregoing, Plaintiff Hempstead suffered extensive damages. EIGHTEENTH CLAIM FOR RELIEF AGAINST ANDREW ESCOBEDO IN HIS INDIVIDUAL CAPACITY Sexual Harassment (Quid Pro Quo) in Violation of the Fourteenth Amendment to the Constitution of the United States of America (Pursuant to 42 U.S.C. § 1983) As to Susanna Hempstead - 58 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 59 of 68 PAGEID #: 562 455.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 456.   Under the Fourteenth Amendment, Plaintiff had the right as a public university student to personal security and bodily integrity and Equal Protection of Laws. 457.   Defendant Escobedo sexually harassed Plaintiff Hempstead while he was a state actor acting in his individual capacity under the color of state law. 458.   Defendant Escobedo subjected Plaintiff Hempstead to sexual harassment and unwanted sexual contact that was so severe and objectively offensive that it violated Plaintiff Hempstead’s constitutional rights. 459.   Professor Escobedo engaged in quid pro quo sexual harassment of Plaintiff Hempstead. 460.   Professor Escobedo’s harassment of Plaintiff Hempstead included physical or verbal conduct of a sexual nature that was unwelcome and sufficiently severe or pervasive such that, from both a subjective and an objective viewpoint, it would appear that: a.   Submission to the conduct was either explicitly or implicitly a term or condition of her employment or academic status; b.   Submission to or rejection of such conduct could be used as the basis for employment or academic decisions affecting her; or c.   Such conduct had the purpose or effect of unreasonably interfering with the with her work, performance, or education experience; or of creating an intimidating, hostile, or offensive environment for work or learning. 461.   While engaging in non-consensual sexual contact with Plaintiff Hempstead, Defendant Escobedo told Plaintiff Hempstead to “be careful” because grades had not been submitted. This warning, coupled with Defendant Escobedo’s actions in repeatedly touching Plaintiff Hempstead 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. This also demonstrates that Defendant Escobedo was not afraid to exploit the power differential to pursue sexual contact with Plaintiff Hempstead. 462.   On the evening of December 3-4, 2015, Defendant Escobedo had not yet assigned grades for the course. - 59 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 60 of 68 PAGEID #: 563 463.   It was reasonable for Plaintiff Hempstead to believe that her grade and academic status was conditioned on submitting to Defendant Escobedo’s touching her in a sexual nature. 464.   A reasonable person under these same circumstances could similarly believe that their grade and academic status were conditioned on submitting to Respondent’s touching in a sexual nature. 465.   Defendant Escobedo’s conduct meets both the subjective and objective standards of severity required to establish quid pro quo sexual harassment. 466.   Defendant Escobedo’s conduct as described herein violated Plaintiff Hempstead’s clearly established constitutional rights of which a reasonable person would have known. 467.   Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights and punitive damages are appropriate. 468.   As a result of the foregoing, Plaintiff Hempstead suffered extensive damages. NINETEENTH CLAIM FOR RELIEF AGAINST ANDREW ESCOBEDO IN HIS INDIVIDUAL CAPACITY Hostile Environment in Violation of the Fourteenth Amendment to the Constitution of the United States of America (Pursuant to 42 U.S.C. § 1983) As to Susanna Hempstead 469.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 470.   Under the Fourteenth Amendment, Plaintiff had the right as a public university student to personal security and bodily integrity and Equal Protection of Laws. 471.   Defendant Escobedo sexually harassed Plaintiff Hempstead while he was a state actor acting in his individual capacity under the color of state law. 472.   Defendant Escobedo subjected Plaintiff Hempstead to sexual harassment and unwanted sexual contact that was so severe and objectively offensive that it violated Plaintiff Hempstead’s constitutional rights. 473.   The physical and verbal conduct by Defendant Escobedo was of a sexual nature and was unwelcome and sufficiently severe or pervasive from both a subjective and objective viewpoint such that the conduct had the purpose or effect of unreasonably interfering with Plaintiff Hempstead’s work or academic performance or creating an intimidating, hostile, or offensive environment for working, learning, or living on campus. - 60 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 61 of 68 PAGEID #: 564 474.   The environment created from the conduct of Defendant Escobedo was hostile based on the circumstances, including but not limited to the frequency of the conduct, the nature and severity of the conduct, the relationship between the parties, the location and context in which the conduct occurred, and the physically threatening and humiliating nature of the conduct. 475.   The environment Defendant Escobedo created as a result of his conduct was a hostile environment: a.   After the occurrence, Plaintiff was subjected to verbal and physical sexual harassment within the English Department that was so severe, pervasive and objectively offensive that she was denied access to educational opportunities and benefits. b.   For Plaintiff Hempstead, Ohio University became a sexually hostile environment where her harasser was still on campus and teaching within the English Department. c.   Plaintiff Hempstead considered not returning to Ohio University after the incident of December 3-4, 2015. d.   Plaintiff Hempstead encountered complications in the English Department stemming from Professor Escobedo’s conduct and her report of his conduct to ECRC. e.   Plaintiff Hempstead went through great lengths to avoid coming into close proximity with Defendant Escobedo after the unwanted physical contact. f.   The investigation has weighed on Plaintiff Hempstead heavily. Professor Escobedo’s conduct has interfered with Plaintiff Hempstead’s academic performance. 476.   Defendant Escobedo’s conduct as described herein violated Plaintiff Hempstead’s clearly established constitutional rights of which a reasonable person would have known. 477.   Defendant Escobedo’s conduct as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights and punitive damages are appropriate. 478.   As a result of the foregoing, Plaintiff Hempstead suffered extensive damages. TWENTIETH CLAIM FOR RELIEF AGAINST ANDREW ESCOBEDO IN HIS INDIVIDUAL CAPACITY - 61 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 62 of 68 PAGEID #: 565 NEGLIGENCE As to Susanna Hempstead 479.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 480.   Attached as Exhibit E is a true and accurate copy of a letter dated February 5, 2017 from Defendant Escobedo to his English Department Colleagues. 481.   In the February 5, 2017 letter, Defendant Escobedo makes the following admission: “I am not trying to deny that I do bear culpability for my actions on the evening of 3 December 2015.” 482.   In the February 5, 2017 letter, Defendant Escobedo also makes the following admission: “I bear serious responsibility for what happened on December 3, and I certainly deserve disciplinary action.” 483.   In the February 5, 2017 letter, Defendant Escobedo attributes his behavior on December 3-4, 2015 to his intoxication. 484.   In the February 5, 2017 letter, Defendant Escobedo also makes the following admission: “the degree of my intoxication prevents me from being able to give a clear account of everything I did on December 3, and the blame for that is on me. Whatever my mental state at the time, I bear serious responsibility.” 485.   On or about the evening of December 3-4, 2015, Defendant Andrew Escobedo had a duty to exercise due care and caution for the safety of Plaintiff Hempstead. 486.   Notwithstanding the aforesaid duty, Defendant Escobedo was guilty of one or more of the following negligent and/or reckless acts or omissions: a.   Failed to exercise caution towards Plaintiff Hempstead; b.   Failed to exercise due care in his physical interactions with Plaintiff; c.   Because of his intoxication, engaged in sexual misconduct that included but was not limited to touching of Plaintiff Hempstead’s legs, arms, buttocks, and breasts without consent; d.   Because of his intoxication, failed to cease making sexual advances towards Plaintiff Hempstead despite her indications that she did not consent to these advances; - 62 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 63 of 68 PAGEID #: 566 e.   While under the influence of alcohol and without any form of consent made repeated sexual advances towards Plaintiff Hempstead. 487.   As a result of one or more of the foregoing negligent acts or omissions, Plaintiff Hempstead repeatedly suffered physical sexual advances by Defendant Escobedo. 488.   As a direct and proximate result of one or more of the aforesaid negligent acts and/or omissions of Defendant Escobedo, Plaintiff Hempstead has had her life negatively altered, her academic life and standing disrupted, and has personally suffered emotional and psychological distress, all as a direct and proximate result of Defendant Escobedo’s negligent behavior due to his intoxication. 489.   Plaintiff Hempstead has lost great gains that would have otherwise been made and acquired, will in the future lose gains she would have made and acquired, and has and continues to be impaired from going about her daily affairs, all to Defendant Escobedo’s damage. 490.   Plaintiff Hempstead reserves the right to seek punitive damages. TWENTY-FIRST CLAIM FOR INJUNCTIVE RELIEF AGAINST JOSEPH MCLAUGHLIN IN HIS OFFICIAL CAPACITY Violation of the Fourteenth Amendment of the Constitution of the United States of America (Pursuant to 42 U.S.C. § 1983) As to Susanna Hempstead 491.   Count Nineteen is brought for prospective injunctive relief only, to enjoin the ongoing civil rights violation as described herein. 492.   Defendant McLaughlin is the former chair of the English Department and currently the president of Ohio University’s Faculty Senate. 493.   Although Defendant McLaughlin is no longer the chair of the English Department, he is one of the most highly influential professors within the English Department. 494.   Defendant McLaughlin is and for many years has been a very close friend of Defendant Escobedo. 495.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 496.   At all relevant times, Plaintiff Hempstead was a student at a public university and, therefore, had the fourteenth amendment right to personal security, bodily integrity, and Equal Protection of Laws. - 63 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 64 of 68 PAGEID #: 567 497.   Defendant McLaughlin continues to use his friendship with Defendant Escobedo to violate Plaintiff Hempstead’s constitutional right to equal protection as guaranteed by the Fourteenth Amendment by deliberately ignoring reports about Defendant Escobedo’s sexual misconduct. He continues to violate Plaintiff Hempstead’s constitutional right to equal protection by using his influence within the English Department to deprive Plaintiffs and other female graduate students in the English Department such that they fear retaliation safe if they attempt to pursue their civil rights. 498.   Defendant Joseph McLaughlin is violating Plaintiff’s right to equal protection by promoting a climate in Ohio University’s English Department that has persisted for over a decade in which it is known that Defendant Escobedo aggressively sought out sexual relationships with female students and that students who report this misconduct will have to go up against not only Escobedo, but also his good friend. 499.   Because Defendant McLaughlin continues to act with deliberate indifferent towards formal reports by other English Department faculty members, a climate survey that substantiated those reports, course evaluations that indicated a particular faculty member was engaged in sexual harassment and sexual misconduct, and widely circulated conversations within the English Department regarding Defendant Escobedo’s propensity to pursue sexual relationships with students, Defendant McLaughlin is violating Plaintiff Hempstead’s Fourteenth Amendment rights. 500.   Defendant McLaughlin is also close friends with Defendant Escobedo’s wife, another English Professor in the English Department, Beth Quitsland, and has recommended her for chair of the English Department. 501.   It is difficult enough for Plaintiff to have to continue to succeed in an environment where her abuser’s wife is a professor. It is clearly unreasonable for Defendant McLaughlin to attempt to promote Plaintiff’s abuser’s wife to Department chair. 502.   Defendant McLaughlin’s conduct and his use of his power and authority within the English Department constitutes disparate treatment of females and has a disparate impact on female students. - 64 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 65 of 68 PAGEID #: 568 503.   As a direct and proximate result of Defendant McLaughlin’s continued deliberate indifference to Plaintiff’s Fourteenth Amendment rights, Plaintiff Hempstead continues to suffer serious harm, emotional distress and other damages. 504.   If this Court does not enjoin the violations as described herein, Defendant McLaughlin will continue to use his authority to violate the Fourteenth Amendment of the Constitution of the United States of America. TWENTY-SECOND CLAIM FOR RELIEF AGAINST JOSEPH MCLAUGHLIN IN HIS INDIVIDUAL CAPACITY Violation of the Fourteenth Amendment to the Constitution of the United States of America (Pursuant to 42 U.S.C. § 1983) As to Susanna Hempstead 505.   Plaintiff Hempstead re-alleges all prior paragraphs of the Complaint as if set out here in full. 506.   At all relevant times, Plaintiff Hempstead was a student at a public university and had a Fourteenth Amendment right to personal security, bodily integrity, and Equal Protection of Laws. 507.   At all relevant times, Defendant Professor Joseph McLaughlin was a state actor acting in his individual capacity and under the color, authority, and power of state law. 508.   Defendant McLaughlin failed to preserve Plaintiff Hempstead’s constitutional right to equal protection as guaranteed by the Fourteenth Amendment when, based on his friendship with Defendant Escobedo and other personal reasons, continuously and deliberately ignored reports about Defendant Escobedo’s sexual misconduct. Defendant McLaughlin further failed to protect Plaintiff Hempstead’s constitutional right to equal protection when he failed to respond appropriately to the results of a climate survey which indicated that female graduate students in the English Department did not feel safe within the program. 509.   Defendant Joseph McLaughlin violated Plaintiff’s right to equal protection by one or more of the following acts of deliberate indifference: a.   failing to take immediate and appropriate action to investigate or otherwise determine what the nature of Defendant Escobedo’s conduct was when informed that he was maintaining a sexual relationship with a female student in 2006 by a faculty member; - 65 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 66 of 68 PAGEID #: 569 b.   failing to take immediate and appropriate action when a climate survey revealed that numerous female students in the English Department felt unsafe within the program; and c.   failing to address the general climate in Ohio University’s English Department that has persisted for over a decade in which it is known that Defendant Escobedo aggressively sought out sexual relationships with female students, and instead characterizing these serious allegations as a conspiracy against Defendant Escobedo. 510.   Because Defendant McLaughlin failed to respond appropriately to formal reports by other English Department faculty members, a climate survey that substantiated those reports, course evaluations from students that indicated a particular faculty member was engaged in a pattern of sexual harassment and sexual misconduct towards students, and widely circulated informal conversation within the English Department regarding Defendant Escobedo’s propensity to pursue sexual relationships with students, Defendant McLaughlin violated Plaintiff Hempstead’s Fourteenth Amendment rights. 511.   Defendant McLaughlin’s conduct constituted disparate treatment of females and had a disparate impact on female students. 512.   Defendant McLaughlin’s conduct as described herein violated Plaintiff Hempstead’s clearly established constitutional rights of which a reasonable person would have known. 513.   Defendant McLaughlin’s deliberate indifference as described herein was malicious, oppressive, or in reckless disregard of Plaintiff’s rights such that and punitive damages are appropriate. 514.   As a direct and proximate result of Defendant McLaughlin’s deliberate indifference, Plaintiff Hempstead has suffered serious harm and emotional distress and other damages. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully demand judgment against Defendants and ask the Court for the following relief: - 66 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 67 of 68 PAGEID #: 570 (a)   Damages in amounts to be established at trial, including, without limitation, reimbursement and prepayment for all of Plaintiffs’ tuition and related expenses; payment of Plaintiffs’ expenses incurred as a consequence of the sexual harassment; damages for deprivation of equal access to the educational benefits and opportunities provided by Ohio University; and damages for past, present and future emotional pain and suffering, ongoing and severe mental anguish, loss of past, present and future enjoyment of life, past, present, and future medical expenses, and lost earnings and earning capacity; (b)  Other Compensatory Damages; (c)   Injunctive relief as this Court deems necessary and proper; (d)  A declaratory judgment that Defendants violated Plaintiffs’ Constitutional rights; (e)   That this Court Order Defendant University to provide mandatory training for all mandatory reporters using trauma informed principles; (f)   That this Court Order Defendant University to dismiss Defendant Escobedo from his employment with Ohio University and not permit him on or near Campus; (g)  That Defendant McLaughlin be ordered to comply with the Fourteenth Amendment with respect to Plaintiffs and other female graduate students. (h)  That Defendant University be ordered to provide a public statement that it has failed to maintain a safe environment for victims of sexual misconduct; (i)   That Defendant University be ordered to create a system of reporting sexual misconduct that is less intimidating for the most vulnerable members of the community: students, untenured faculty, and junior faculty. (j)   That Defendant University be ordered to provide a statement from the President of the University and the deans of the University inviting students, faculty, and staff to report incidents of sexual misconduct to their college’s dean if they fear retaliation within their departments. (k)  That Defendant University be ordered to provide a public statement that it will not tolerate any retaliation against victims and reporters of sexual misconduct; - 67 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Case: 2:17-cv-00200-ALM-KAJ Doc #: 23 Filed: 06/19/17 Page: 68 of 68 PAGEID #: 571 (l)   Other injunctive relief to be determined at trial requiring Ohio University to comply with federal law under Title IX; (m)  Pre- and post-judgment interest; (n)  Costs; (o)  Punitive Damages; (p)  Attorney’s fees pursuant to all relevant statutes and law including, but not limited to, 42 U.S.C. § 1988(b); and (q)  Such other and further relief as the Court may deem just and proper. DATED: June 14, 2017 Respectfully submitted, s/ Michael L. Fradin Attorney for Plaintiffs LAW OFFICE OF MICHAEL L. FRADIN Michael L. Fradin, Esq. 8401 Crawford Ave. Ste. 104 Skokie, IL 60076 Telephone: 847-986-5889 Facsimile: 847-673-1228 Email: mike@fradinlaw.com - 68 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL