UNIVERSITY OF CALIFORNIA BERKELEY - DAVIS - IRVINE - LOSANGELES MERCED - RIVERSIDE - SANDIEGO - SANFRANCISCO CAMPUS COMPLIANCE Title IX EEO. AA UNIVERSITY OF CALIFORNIA. MERCED 5200 Lake Rd MERCED. CALIFORNIA 95344?0039 (209) 228-4620 Investigation Report CONFIDENTIAL Prepared by: Jim O?Connell Lead Investigator Office of Campus Compliance jocomlell@ucmerced.edu J1me 16, 2016 INTRODUCTION: The University of California is to creating and maintaining a cOImnunity where all individuals who participate in University programs and activities can work and learn together in an atmosphere free of sexual Violence, sexual harassment and all founs of harassment. SUMMARY OF ALLEGATIONS: md to as Complainant, is a full time UC Merced- and is employed in Din?ing a subsequent meeting, Complainant alleged that Respondent would frequently make derogatory cormnents to many of the female student employees, including calling them ?Mama?. Girlfriend?, and ?Ms. Thang?, and would comment inappropriately about the appearance of the female student employees. UNIVERSITY OF CALIFORNIA BERKELEY • DAVIS • IRVINE • LOS ANGELES • MERCED • RIVERSIDE • SAN DIEGO • SAN FRANCISCO SANTA BARBARA • SANTA CRUZ CAMPUS COMPLIANCE Title IX, EEO, AA UNIVERSITY OF CALIFORNIA, MERCED 5200 N Lake Rd MERCED, CALIFORNIA 95344-0039 (209) 228-4620 NOTICE OF PARTIES: On February 16, 2016, Director of Compliance Salvador sent Complainant an “Acknowledgement of Complaint” letter, including attached documents related to University policies and procedures. On March 30, 2016, Complainant agreed to meet with me to discuss the complaint. That meeting took place on March 31, 2016. On April 12, 2016, Director Salvador sent a “Charge Notice” to Respondent, including documents related to University policies and procedures. On April 12, 2016, I sent Respondent an email, asking to meet with him regarding the allegations. I did not receive a response, and subsequently sent him another email on April 20, 2016. He responded on April 22, 2016 and our meeting took place on April 25, 2016.1 POLICY AND SCOPE: Based upon the information provided in the initial complaint, and subsequent information developed throughout the investigation, the following policies were examined: University of California Sexual Violence and Sexual Harassment Policy: In pertinent part, this policy states: The University of California is committed to creating and maintaining a community dedicated to the advancement, application and transmission of knowledge and creative endeavors through academic excellence, where all individuals who participate in University programs and activities can work and learn together in an atmosphere free of harassment, exploitation, or intimidation. Every member of the community should be aware that the University prohibits sexual violence and sexual harassment, retaliation, and other prohibited behavior (“Prohibited Conduct”) that violates law and/or University policy. 1 Management personnel advised me that Respondent had been on leave during my second request to meet, and no inference should be drawn from the delay. P a g e 2 UNIVERSITY OF CALIFORNIA BERKELEY - DAVIS - IRVINE - LOSANGELES MERCED - RIVERSIDE - SANDEGO - SANFRANCISCO SANTABARBARA - SANTACRUZ CAMPUS COMPLIANCE Title DC EEO. AA UNIVERSITY OF CALIFORNIA. MERCED 5200 Lake Rd MERCED. CALIFORNIA 95344?0039 (209) 228-4620 Sexual Harassment: Sexual harassment is unwelcome sexual advance, unwelcome requests for sexual favors, and other unwelcome verbal, nonverbal or physical conduct of a sexual nature. Hostile Environment: Such conduct is su?icientlv severe or pervasive that it unreasonably denies, adversely limits, or interferes with a person ?s participation in or bene?t from the education, employment or other programs and services of the University and creates an environment that a reasonable person would ?nd to be intimidating or o?ensive. Consideration is given to the totality of the circumstances in which the conduct occurred. Sexual harassment may include incidents between any members of the University community, including faculty and other academic appointees, sta? student employees, students, coaches, residents, interns, and non-student or non- employeeparticipants in University programs vendors, contractors, visitors, and patients); in hierarchical relationships and between peers; and between individuals of any gender or gender identity-I. Sexual Harassment: The University of California is committed to creating and maintaining a community in which all persons who participate in University programs and activities can work together in an atmosphere free of all forms of harassment, exploitation, or intimidation, including sexual. Speci?cally, every member of the University community should be aware that the University is strongly opposed to sexual harassment and that such behavior is prohibited both by law and by University policy. It is the intention of the University to take whatever action may be needed to prevent, correct, and, if necessaiy, discipline behavior which violates this policy. 3 UNIVERSITY OF CALIFORNIA BERKELEY - DAVIS - IRVINE - LOSANGELES MERCED - RIVERSIDE - SANDIEGO - SANFRANCISCO CAMPUS COMPLIANCE Title EEO. AA OF CALIFORNIA MERCED 5200 Lake Rd MERCED. CALIFORNIA 95344?0039 (209) 228-4620 All ?ndings in this matter were determined by a preponderance of the evidence standard.2 STATEMENTS OF PARTIES AND WITNESSES: On March 31. 2016. I met with Complainant in KL321. told me that-was a student at UC Merced and had worked for In addition to the concems Complainant said that Respondent used inappropriate language in the workplace related to women. said that Respondent used to call a former student employee ?Mama?. Complainant went 011 to say that Respondent had also calle ?Mama? in the past. I asked Complainant how this made .feel. to which-said that it left feeling ?uncomeItable?. .went 011 to say that Respondent had called another student employee. ?Ms. Thang?. Complainant told me that. ?just today .was wearing a tank top. He made a conmient about a string in .cleavage area?. asking .?Did someone mark highlighter?. 7 A standard of proof that requires that a fact be found when its occurrence. based upon the evidence. is more likely than not. 4 UNIVERSITY OF CALIFORNIA BERKELEY - DAVIS - IRVINE - LOSANGELES MERCED - RIVERSIDE - SANDIEGO - SANFRANCISCO CAMPUS COMPLIANCE Title IX. EEO. AA UNIVERSITY OF CALIFORNIA. MERCED 5200 Lake Rd MERCED. CALIFORNIA 95344?0039 (209) 228-4620 .said that Respondent was discrinmlatOIy toward women and would make conmients based upon sex. Complainant told me that had told .that Respondent. while at a work event with had pointed out a woman to and told ?If I were young again?. Complainant said that-told that the cormnent made feel ?uncomfortable?. I asked Complainant what-considered a good resolution to .complaint. .told me. ?He should not be responsible for us (students). He doesn?t have the quality of a leader?. On April 4. 2016. I had been employed spoke with- the phone. .told me that-was a I .UC student and I asked to tell me how Respondent spoke to the female employees. Etold me that had heard Respon ent call female co-workers. ?Mama? in the of?ce and fluther to me that it had lappened twice. One of those incidents had occ1ured in the break room. said that the other comment had been made to and that Respondent had called-?Mama?. I asked if .recalled Respondent making a cormnent while outside with about if he were younger while Viewing a yomig woman. I said that .did not specifically recall. ut that it was possible that Respondent had made that cormnent. I asked how .felt Respondent treated male student employees compared to female student employees. told me. have noticed men get the outside work. while women get the of?ce work?. I added that men nonnally perfonned the manual labor. and that, ?Office work for men is rare?. UNIVERSITY OF CALIFORNIA BERKELEY - DAVIS - IRVINE - LOSANGELES MERCED - RIVERSIDE - - SANFRANCISCO CAMPUS COMPLIANCE Title IX. EEO. AA OF CALIFORNIA. MERCED 5200 Lake Rd MERCED. CALIFORNIA 95344?0039 (209) 228-4620 .told me that-felt as if Respondent favored some students. specifically? On April 5. 2016. I met with in KL321. told me that-was a ._at UC and that-had worked I asked .to talk about how Respondent managed the employees. .told me. ?He has issues with not being professional. He makes conmlents that are not professional?. explained that Respondent frequently called .?Mama?. ?Ms. Thang? and ?Girlfriend?. - said that he also called female student employees ?Mamas?. I asked- tell me 110w this made .feel. to which .responded. ?It?s awkward. It catches you off guard?. said that ?recently?!was showing a pictlu?e of the parking lot to Respondent and others. Ftold me that Respondent. stan mg very near asked if someone had highlighted-shirt int area of cleavage. I asked 110w this cormnent made feel, to whichHresponded, ?Awkward?. - to me. ?Because of I ave to think about what I wear?. .said Iat 1e often cormnents on the women?s clothing. and that he stares at-and cormnent about what-is wearing. -said. ?the tone makes it creepy?. I asked to share with Ine?Fobseivations about how men were treated in the TAPS workplace compare to women. .to me that the treatment was different. noting that the student citation of?cers said that the Student Leads were all men. naming were all men. believed that told me that adding that had been treated with favoritism by Respondent. is in the of?ce all the time?. HIM UNIVERSITY OF CALIFORNIA BERKELEY - DAVIS - IRVINE - LOSANGELES - MERCED - RIVERSIDE - SANDIEGO - CAMPUS COMPLIANCE Title IX. EEO. AA UNIVERSITY OF CALIFORNIA. MERCED 5200 Lake Rd MERCED. CALIFORNIA 95344?0039 (209) 228-4620 I asked! to tell me the biggest issue .had with Respondent, to which told me that it was Respon ent. ?Making. feel uncomfortable as a woman?. I told me that the Inc1dent Involving Respondent?s cormnents about. cleavage occmred 011 the same day that-received Sexual Harassment training. I asked! what would make things better with Respondent and the student staff in TAPS. - told me. ?He ouldn?t be involved with students at all?. On April 18. 2016. I met with-in KL321. I told me that?and had worked at I asked-to tell me about the environment at work. difference?. When asked to elaborate. guys do car inspections and ?eet?. - told me. ?Between guys and girls there is a I said that women do ?easier tasks like clearing trash pickups. 3? top guys? were When asked how this made feel. .shared that this perceived treatment made! ?Feel held back?. and that has not been ab to do events. .said that. believed that Respon ent I asked about any cormnents that-may have heard Respondent make in the workplace. .told me that has heard him call the female student employees in the of?ce. ?Mama?. She told me that Respondent had never made an ina propriate comment to .but had heard such comments directed at Complainant and I asked how these made .feel. to which-told me. ?I?m not ok with it. I think it?s casual?. said that the comments had not been offensive to .but that Complainant and others had said that the comments were ?Offensive. weird and awkward?. said that of?ce staff members. mostly women. were allowed to wear non-lunfonn clothing. while those who work outdoors wear a 1mifonn. said that there were only male student leads. adding. ?there is always an Imfaimess. I feel there should be a girl lead?. I told me that the only female lead had been UNIVERSITY OF CALIFORNIA BERKELEY - DAVIS - IRVINE - LOSANGELES MERCED - RIVERSIDE - SANDIEGO - SANFRANCISCU CAMPUS COMPLIANCE Title EEO. AA UNIVERSITY OF CALIFORNIA MERCED 5200 Lake Rd MERCED. CALIFORNIA 95344?0039 (209) 228-4620 011 April 25. 2016. I met with Respondent in KL321. He told me that he has been employed by UC Merced for UNIVERSITY OF CALIFORNIA BERKELEY - DAVIS - IRVINE - LOSANGELES MERCED - RIVERSIDE - - SANFRANCISCO CAMPUS COMPLIANCE Title IX. EEO. AA OF CALIFORNIA. MERCED 5200 Lake Rd MERCED. CALIFORNIA 95344?0039 (209) 228-4620 I advised him that student employees had told me that he regularly called female students ?Mama?. to which he responded. ?That?s true?. He told me that he considered this to be a term of endeannent and that was what he called people at home. I asked Respondent about the frequency of this comment to student employees. to which he told me. may have said it more than once or twice?. He could not recall which students he had called ?Mama? but that he only called female student employees that name. He then told me that he called male student employees, ?Papachulio? I asked him if he ever called a female student ?Ms. Thang?. I advised him that the student I was referencing! He then told me. ?Honestly. I can?t remember. But-is straightforward. so if. said it. I may ave?. He then added. probably did say it?. I asked him about whether or not he had cormnented about something he had observe Respondent told me, don?t look at my students that way?. then suggested, ?Maybe it was a miscommlmication?. I asked him if he thought. would lie about it, to which he told me. ?Honestly I don?t remember. If it did, it happened on a whim?. cleavage. I asked Respondent how he thought the female student employees feel when he calls them ?Mama? and Ms. Thang?, to which he answered. ?Not good?. He told me that these comments were not intended to be sexist. He said that ?Ms. Thang? means sassy. and that he has tried to not say it. I asked him if he recalled making a statement to a-student employee similar to ?If I were younger?, while looking at a younger female. He told me that he recalled making that comment. UNIVERSITY OF CALIFORNIA BERKELEY - DAVIS - IRVINE - LOSANGELES MERCED - RIVERSIDE - SANDIEGO - SANFRANCISCU CAMPUS COMPLIANCE Title EEO. AA UNIVERSITY OF CALIFORNIA MERCED 5200 Lake Rd MERCED. CALIFORNIA 95344?0039 (209) 228-4620 10 UNIVERSITY OF CALIFORNIA BERKELEY • DAVIS • IRVINE • LOS ANGELES • MERCED • RIVERSIDE • SAN DIEGO • SAN FRANCISCO SANTA BARBARA • SANTA CRUZ CAMPUS COMPLIANCE Title IX, EEO, AA UNIVERSITY OF CALIFORNIA, MERCED 5200 N Lake Rd MERCED, CALIFORNIA 95344-0039 (209) 228-4620 ANALYSIS: Did Respondent’s Comments and Actions Amount to Sexual Harassment? With respect to the allegations that Respondent called female student-employees names such as “Mama”, “Girlfriend” and “Ms. Thang”, there appears to be no dispute that this occurred. With that established, an examination of the impact of these statements must follow. When asked how these comments made them feel, Complainant and witnesses stated the following: “Uncomfortable” “The tone makes it creepy” (Respondent’s frequent comments about the clothing worn by one of the witnesses). “Because of I have to think about what I wear”. “It’s awkward. It catches you off guard”. “Making me feel uncomfortable as a woman”. “I’m not ok with it, I think it’s casual”. “Offensive, weird and awkward”. According to Complainant and witnesses, Respondent’s comments have made them feel uncomfortable in the workplace and have had a negative impact on their employment. Although not necessarily the intent of Respondent, the impact is clear and irrefutable. Comments with respect to the bra and cleavage area of a female employee, as described by witnesses and attributed to Respondent, contribute to an environment in which women felt that they were looked at, and spoken to, in a significantly different manner than the male employees. P a g e 11 UNIVERSITY OF CALIFORNIA BERKELEY - DAVIS - IRVINE - LOSANGELES MERCED - RIVERSIDE - SANDIEGO - SANFRANCISCU CAMPUS CDMIUANCE Title IX. EEO, AA UNIVERSITY or CALIFORNIA MERCED 5200 Lake Rd MERCED. CALIFORNIA 95344?0039 (209) 228-4620 FINDINGS: The ?ndings throughout this report do not reach questions of law. but instead address the University?s policies, contracts and/or standards. However. based upon a totality of the evidence in this case. a preponderance of the evidence supports a ?nding that the actions of Respondent with respect to his conmientaly to some female student employees was severe or pervasive. and as such. violated the University policies related to sexual 12 UNIVERSITY OF CALIFORNIA BERKELEY • DAVIS • IRVINE • LOS ANGELES • MERCED • RIVERSIDE • SAN DIEGO • SAN FRANCISCO SANTA BARBARA • SANTA CRUZ CAMPUS COMPLIANCE Title IX, EEO, AA UNIVERSITY OF CALIFORNIA, MERCED 5200 N Lake Rd MERCED, CALIFORNIA 95344-0039 (209) 228-4620 harassment. This finding is based upon a review of the evidence, which makes it more likely than not that the behavior and treatment of women by Respondent was of a continuing and pervasive nature. These comments made by Respondent and directed toward women, created a workplace where many female student-employees were made to experience language and looks from Respondent exponentially different from the male student-employees. Comments from Respondent related to the bra and cleavage of a female student-employee, compounded with the hierarchical imbalance, have had a profoundly negative impact on the work environment for many women in The policy is noted below: University of California Sexual Violence and Sexual Harassment Policy: In pertinent part, this policy states: The University of California is committed to creating and maintaining a community dedicated to the advancement, application and transmission of knowledge and creative endeavors through academic excellence, where all individuals who participate in University programs and activities can work and learn together in an atmosphere free of harassment, exploitation, or intimidation. Every member of the community should be aware that the University prohibits sexual violence and sexual harassment, retaliation, and other prohibited behavior (“Prohibited Conduct”) that violates law and/or University policy. Sexual Harassment: Sexual harassment is unwelcome sexual advance, unwelcome requests for sexual favors, and other unwelcome verbal, nonverbal or physical conduct of a sexual nature. Hostile Environment: Such conduct is sufficiently severe or pervasive that it unreasonably denies, adversely limits, or interferes with a person’s participation in or benefit from the education, employment or other programs and services of the University and creates an environment that a reasonable person would find to be intimidating or offensive. Consideration is given to the totality of the circumstances in which the conduct occurred. Sexual harassment may include incidents between any members of the University community, including faculty and other academic appointees, staff, student employees, students, coaches, residents, interns, and non-student or non- employee participants in University programs (e.g., vendors, P a g e 13 UNIVERSITY OF CALIFORNIA -q SANTABARBARA - SANTACRUZ BERKELEY - DAVIS - IRVINE - LOSANGELES MERCED - RIVERSIDE - SANDIEGO - SANFRANCISCO COMPLIANCE Title EEO. AA UNIVERSITY OF ALIFORNIA. MERC ED 5200 Lake Rd MERCED. CALIFORNIA 95344-0039 (209) 228?4620 contractors, visitors, and patients); in hierarchical relationships and between peers; and between individuals of any gender or gender identity. Sexual Harassment: The Universitv of California is to creating and maintaining a community in which all persons who participate in Universitv programs and activities can work together in an atmosphere free of all forms of harassment, exploitation, or intimidation, including sexual. Speci?callv, every member of the University communitv should be aware that the University is stronglv opposed to sexual harassment and that such behavior is prohibited both by law and by Universitv policv. It is the intention of the University to take whatever action may be needed to prevent, correct, and, If necessary, discipline behavior which violates this policy. 14 UNIVERSITY OF CALIFORNIA. MERCED BARBARA SANFA ("Kl BFRKELEY DAVIS - IRVINE LOX F5 - - RTVERSIDF. - - SAN FP UNIVERSITY CALIFORNIA, 5200 NORTH LAKE RD MERCED. CALIFORNIA 95343 Date: December 2, 2016 To: From: RE: Letter of Intent for 2 Day Suspension Per PPSM 62: Corrective Action policy, you are being issued this Letter of Intent for a 2 day suspension for unsatisfactory performance. The proposed suspension dates are for the following normally scheduled work days: December 20th and 2016. On 8/17/2016, the Office of Campus Compliance notified of their findings that you were in violation of the Sexual Violence and Sexual Harassment policy, section 2., a, ii: Sexual Harassment Hostile Work Environment: 2. Sexual Harassment: a. Sexual Harassment is unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal, nonverbal or physical conduct of a sexual nature when: i. ii. Hostile Environment: such conduct is sufficiently severe or pervasive that it unreasonably denies, adversely limits, or interferes with a person?s participation in or benefit from the education, employment or other programs and services of the University and creates an environment that a reasonable person would find to be intimidating or offensive. During our review of the incident, that included yourself and your supervisors, it was determined that your interaction with your employees was not professional and did not meet the requirements of a supervisor. The specific requirements, per yourjob description, that were found in violation include: Lead by example and demonstrate a professional and respectful approach to dealing with employees and customers at all times Assure that appropriate customer service standards and behaviors are maintained and performance excellence is fostered and maintained 0 Requires full knowledge of own area of functional responsibility Participates in the continued development of student staff Page 1 of 2 You have the right to respond orally or in writing within 10 calendar days from the issuance date of the notice to request a review of this action, in accordance with university provisions, for example, PPSM 62: Corrective Action, PPSM 70: Complaint Resolution and the Sexual Violence and Sexual Harassment policy. Contact the Director of Compliance, Michael Salvador at 209-285-9510 or msalvadorZ@ucmerced.edu, for a copy of the findings by the Office of Compliance. Per PPSM 62: Corrective Action policy: 8. Notice of Intent to Take Corrective Action The notice of intent will also include a copy ofthe documents on which the corrective action is based (if any), and it will state that the employee has the right to reSpond orally or in writing within 10 calendar days from the issuance date of the notice. After consideration of the employee?s response, if any, corrective action may or may not be taken. if any action is taken, the employee will be notified in writing of the corrective action to be taken, the effective date(s) of the action and the employee?s right to file a complaint under Personnel Policiesfor Staff Members 70 (Complaint Resolution). It is imperative that you understand that failure to show immediate and sustained improvement in your performance may result in further disciplinary action, up to and including your dismissal from employment with the University. If you have any questions regarding this matter, feel free to discuss them with me. While such action is not a condition of employment, if you are having personal difficulties that affect your ability to meet University and departmental work expectations, I encourage you to reach out to the Employee Assistance Program (EAP), Attachments (3): PPSM 62, PPSM 70, Sexual Violence and Sexual Harassment policy cc: Personnel File .. 12.7% 0.4 WW Mum ?b (VTELX 7x Dov] (gt-?Q?f?v?wu Wm ?quvthi ??35 777 ?Y/evzclo WtflA' Pr T?Wpf AM) He WANDA) the. 17m Camera Ar w? was Tin?: Cmm?ve Awning Lz/i?iex/z, Ti? I (- UNIVERSITY OF CALIFORNIA, MERCED 1%00 SANTA - DAVIS - IRVINE - LOSANOELES - - RIVERSIDE - SAN DIEGO - SAN UNIVERSITY OI: CALIFORNIA. MERCED 5200 NORTH RD MIjRCl-il), CALIFORNIA 95343 Date: December 3, 2016 To: Hem: RE Corrective Action Per PPSM 62: Corrective Action policy, you are being issued a 2 day suspension for unsatisfactory performance. You will be on leave without pay for the following normally scheduled work days: December 20?h and 2151,2016. On 8/17/2016, the Office of Campus Compliance notified of their findings that you were in violation of the Sexual Violence and Sexual Harassment policy, section 2., 3, ii: Sexual Harassment Hostile Work Environment: 2. Sexual Harassment: a. Sexual Harassment is unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal, nonverbal or physical conduct of a sexual nature when: i. ii. Hostile Environment: such conduct is sufficiently severe or pervasive that it unreasonably denies, adversely limits, or interferes with a person?s participation in or benefit from the education, employment or other programs and services of the University and creates an environment that a reasonable person would find to be intimidating or offensive. During our review of the findings, that included yourself and your supervisors, it was determined that your interaction with your employees was not professional and did not meet the requirements of a supervisor. The specific requirements, per your job description, that were found in violation include: Lead by example and demonstrate a professional and respectful approach to dealing with employees and customers at all times Assure that appropriate customer service standards and behaviors are maintained and performance excellence is fostered and maintained 0 Requires full knowledge of own area of functional responsibility Participates in the continued development of student staff It is imperative that you understand that failure to show immediate and sustained improvement in your performance may result in further disciplinary action, up to and including your dismissal from employment with the University. if you have any questions regarding this matter, feel free to discuss them with me. While such action is not a condition of employment, If you are having personal difficulties that affect your ability to meet University and departmental work expectations, I encourage you to reach out to the Employee Assistance Program (EAP), benefits/insightyeap. You have the right to request a review of this action, including accordance with university provisions, for example, PPSM 62: Corrective Action, PPSM 70: Complaint Resolution and the Sexual Violence and Sexual Harassment policy. Contact the Director of Compliance, Mi ael SalvadA?rr informatio?vvm the findings. cc Personnel File