This Report follows an extensive three-and-a-half month independent investigation (the "Independent Investigation") into allegations that a tenured professor in the Brain and Cognitive Sciences Department ("BCS") at the University of Rochester ("UR" or the "University") engaged in an historical pattern of behavior since he arrived at the University in 2007 that violated UR policies on intimate relationships with students ("UR Intimate Relationships Policy"),1University of Rochester, Faculty Handbook (revised May 2017) (attached as Exhibit 1). conflicting employment relationships ("UR Policy 121")2University of Rochester, Policy 121 (revised Sept. 2015) (attached as Exhibit 2). and gender-based discrimination and sexual harassment ("UR Policy 106"),3University of Rochester, Policy 106 (revised June 2014) (attached as Exhibit 3). thereby also creating a hostile work and academic environment for female graduate students in BCS, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. ("Title IX") and the New York State Human Rights Law, N.Y. Executive Law § 290, et seq. ("NYSHRL"). At the most relevant times of the allegations, UR policies strongly discouraged, but did not then prohibit: (1) consensual intimate relationships between faculty and students, including with undergraduate and graduate students over whom the faculty member had academic authority; or (2) sexual or romantic relationships between supervisors and their employees who are not married or cohabitating. All forms of sexual harassment, as defined in UR Policy 106, were, however, prohibited throughout the relevant period.4Exhibit 3
The professor in question is Florian Jaeger, who, before coming to UR, had been an acclaimed graduate student at Stanford University, where in 2006 he received his Ph.D. in linguistics, with a cognitive science designation, and a post-doctoral fellow at the University of California at San Diego ("UCSD"). He began as an assistant professor in BCS in 2007 at the age of 31, received tenure in July 2013 and was recommended for promotion to full professor in April 2016, which went into effect in July 2017. Since coming to UR, Jaeger has been a very successful researcher and achieved considerable stature as a scientist and academic authority in his field. Jaeger also had a reputation at Stanford and thereafter for being outgoing and sexually promiscuous.
The gist of the allegations against Jaeger is that, after coming to UR in 2007, he blurred the lines between professional and personal spheres, continued to lead a promiscuous lifestyle involving students in BCS and others in the cognitive sciences field, attended student social events uninvited, talked and joked about sex and sexual topics openly, harshly criticized students' work in demeaning ways and unfairly took credit for their work, commented occasionally on the attractiveness of female graduate students, held off-site lab retreats at which there were hot tubs and illegal drugs and created an exclusionary "cult" around his lab, all of which allegedly combined to create a hostile and intimidating work environment, especially for female students in BCS. Despite being labeled as a "sexual predator" by his accusers, there have never been allegations of sexual assault, unwanted groping, any use of force, or exhibitionism outside of consensual relationships, and we have found no evidence of such behavior ever occurring.5We are sensitive to the possibility that the topics discussed in this Report may trigger past experiences for which readers may want to get support. With the help of the Susan B. Anthony Center Director, we have compiled a list of resources and attach it here as Appendix A.
While the specific allegations of misconduct against Jaeger focus primarily on the period 2007-2013 (with emphasis on 2007-2011), they also assert continuing and present-day violations and problems. The allegations against Jaeger, which were reported to the University on March 10, 2016, are serious and disturbing. They were brought forward, not by a student, but by Professor Richard Aslin, a highly respected, then senior member of the BCS faculty and former Dean of the College of Arts & Sciences. His complaint, in the first instance, was prompted by predominantly second- and third-hand information he received in a phone call on March 5, 2016, from Professor Jessica Cantlon, another BCS faculty member; Cantlon filed a similar claim with the University in April 2016. Aslin was outraged and offended by what he heard from Cantlon about Jaeger's sexual relationships with students and told her, within days of reporting the matter to the University and as the investigation was just starting, "I will not let this rest until he is out of the department."6Mar. 11, 2016 Email from R. Aslin to J. Cantlon.
Aslin and Cantlon, both before and after filing their complaints, actively sought out or endeavored to generate information supportive of their claims against Jaeger from potential witnesses at UR and elsewhere. They also discussed the allegations and the University's investigative findings with others at UR and elsewhere, before and after the University had completed its investigation and rendered its decision - at times, contrary to the instructions and expectations of the UR Office of Counsel ("OOC") to maintain confidentiality. There is no evidence that Jaeger sought out witnesses during the University investigation, though he responded to inquiries from former students and colleagues and confirmed that there was an investigation, without providing details.
In response to the Aslin and Cantlon reports of possible sexual misconduct by Jaeger and another claim made in July 2016 alleging retaliation against Celeste Kidd, a former BCS graduate student and now an assistant professor in BCS, the University followed its standard procedures and process for investigating claims of sexual harassment against faculty members. (Aslin, Cantlon and Kidd are sometimes referred to as the "claimants.") UR's investigations ultimately concluded, on June 2, 2016, that Jaeger's conduct did not violate any UR policy applicable at the time of the conduct and, on October 4, 2016, that no retaliation against Kidd had occurred, but that Jaeger had exhibited gross lapses in judgment and that there had been aspects of his behavior in the past that "warrant[ed] review and discussion" with Jaeger by BCS Chair Gregory DeAngelis.7June 2, 2016 Letter from R. Clark to R. Aslin and J. Cantlon (attached as part of Exhibit 4). The claimants appealed both decisions, which were upheld by senior University officials.8On August 15, 2016, Dean of the Medical School Mark Taubman upheld the decision of now Provost Robert Clark on the underlying claims against Jaeger. On November 17, 2016, Clark upheld, on appeal, the decision of Gloria Culver, Dean of the School of Arts Sciences, on the Kidd retaliation claim. The initial written decisions and the decisions on appeal, which were provided to Aslin and Cantlon (as the claimants), as well as Jaeger, are, in redacted form, collected in Exhibit 4 attached to this Report. Unbeknownst to University officials, the claimants, while their appeals were pending, had decided "to go public" if their appeals were denied.9Aug. 15, 2016 Email from R. Aslin to J. Cantlon, S. Piantadosi, C. Kidd, B. Mahon, B. Hayden and E. Newport. From the outset, claimants discussed the plan to file the claim against Jaeger, the ongoing investigation, the appeal and its aftermath with others, including Steven Piantadosi (BCS assistant professor), Bradford Mahon (BCS associate professor), Ben Hayden (formerly BCS assistant professor) and Elissa Newport (formerly Chair of BCS), who left UR in 2012 to go to Georgetown University.
The review and follow-up discussions between DeAngelis and Jaeger focused on areas related to the inherent risks and conflicts of engaging in consensual, intimate relationships with students, excessively socializing with students and Jaeger's very blunt, unfiltered way of conversing, including, at times, talking and joking about sex and using language carrying sexual innuendo. On August 29, 2016, DeAngelis sent a formal letter admonishing Jaeger to be mindful of the requirements of the stricter, current UR policy on faculty relationships with students; the need to maintain appropriate boundaries in interactions with students; and how every member of the faculty, because of their position and disproportionate influence on the academic and work environment for students, has a special responsibility to demonstrate appropriate behavior and choice of words at all times.10See Aug. 29, 2016 Letter from G. DeAngelis to F. Jaeger (attached as Exhibit 5). This letter was placed in Jaeger's personnel file.
While noting that Jaeger had not engaged in intimate relationships with students in recent years and that the University's investigator had also not found evidence that he had made offending comments of a sexual nature in recent years, DeAngelis expressed his personal view that all intimate relationships between faculty and all students should be prohibited and emphasized that "comments which are sexual in nature or otherwise sexually inappropriate are not acceptable in the academic environment or workplace."11Id. He also warned Jaeger that any recurrence of such behavior could be grounds for further discipline.12Id. Since 2014, intimate relationships with undergraduate students and exercising any academic authority over a graduate student with whom faculty has or has had such a relationship have been prohibited.13University of Rochester, Faculty Handbook (revised May 2014). There is no allegation and we have found no evidence suggesting that Jaeger has engaged in any sexual relationship with any BCS student or former student after these policy changes were made, or at any time after 2011.
DeAngelis further directed Jaeger to complete, by December 1, 2016, one-on-one training on respectful workplace behaviors (sexual and other), including training on "the dangers and risks inherent in entering even consensual relationships."14Exhibit 5. DeAngelis' August 29, 2016 letter to Jaeger was reviewed and approved by the OOC, which had previously advised that, since no policy violation had been found, DeAngelis should not impose any financial or other disciplinary sanctions and that any written statement DeAngelis provided to the BCS Faculty on the matter needed to be consented to by Jaeger because of privacy and potential defamation concerns. DeAngelis drafted such a statement. Jaeger reviewed and disagreed with its characterization of his conduct. (Sept. 6, 2016 Email from F. Jaeger to G. DeAngelis and S. Wormer.) DeAngelis never sent his statement to the BCS faculty. Separately, for reasons purportedly unrelated to the investigation, Dean Culver in spring 2017 asked Jaeger to step down early from his position as the Director of the Center for Language Sciences ("CLS"). That training was successfully completed on November 9, 2016. Jaeger sent a letter of apology to the BCS faculty on December 7, 2016,15Dec. 7, 2016 Email from F. Jaeger to BCS Faculty (attached as Exhibit 6). but declined DeAngelis' request to send it to BCS students. He also drafted a longer explanation of his perspective,16F. Jaeger's Written Statement. which accompanied a summary of the allegations and investigative findings prepared by the OOC to provide greater transparency to the BCS faculty about the matter. In addition, he apologized to three students with whom he had had relationships, expressing regret for having been the cause of their being drawn into the allegations against him. Many of the follow-up steps and remedial measures just discussed have not been previously made public because of the confidentiality ordinarily accorded to personnel matters, leading the claimants and others to conclude incorrectly that no action had been taken in response to the findings of the University's investigation of the allegations against Jaeger.
DeAngelis also continued more broadly to seek to tighten the relevant policies for at least BCS (to prohibit all intimate relationships with graduate students); formed the Workplace Behavior Committee, a committee of BCS faculty and students, to discuss how to raise awareness about UR's sexual harassment policies and procedures and to develop guidelines for workplace behavior; and explored bringing in a facilitator to help restore a collegial and constructive environment among BCS faculty. Some of those efforts are still ongoing.
The claimants strongly disagreed with the University's decision on Jaeger and, within days of the initial June 2, 2016 decision finding that there had been no policy violation, were planning their appeal and talking about an alternative route to getting Jaeger out of BCS by making his professional life miserable in various ways.17June 6, 2016 Email from R. Aslin to J. Cantlon, E. Newport, B. Hayden, C. Kidd, S. Piantadosi and B. Mahon; June 23, 2016 Email from B. Hayden to B. Mahon, J. Cantlon, S. Piantadosi, C. Kidd and S. Heilbronner; Jan. 5, 2017 Emails between Faculty 19, Faculty 13, Faculty 20, G. DeAngelis and Faculty 7. The claimants also pressed for sanctions against Jaeger, notwithstanding that he had not been found to have violated any UR policy.18While their appeal was pending, Cantlon prepared a list of possible "demands to Florian in order for us to back off." Their demands included publicly admitting to the facts, as laid out in UR's investigative report and as alleged in claimants' appeal papers, publicly apologizing, stepping down as the administrative director of CLS, not taking on new graduate students for two years, and training at the Susan B. Anthony Center. (July 21, 2016 Email from J. Cantlon to R. Aslin.) These terms, plus close monitoring of Jaeger's relationships with students, were reiterated in November by Aslin in a "call for action" letter to Joel Seligman, University President, and Peter Lennie, Dean of the Faculty. (Nov. 30, 2016 Letter from R. Aslin to J. Seligman and P. Lennie.) Citing inherent conflicts of interest, lack of sufficient support for claimants, confusion about the reporting and investigative process and lack of transparency in reporting investigative results and remedial actions, the claimants also urged changes and enhancements to the relevant policies, procedures and process used by the University to address claims of sexual misconduct by faculty members.
In July 2016, partially in response to their belief that Jaeger was telling people that he had been "cleared" and the lack of information being provided by the University, the claimants decided that other members of the BCS faculty should be informed of the allegations and investigative findings and took it upon themselves to do so, joined by Newport and others at BCS (Mahon and Hayden). These efforts raised significant concerns on the part of the OOC, the deans, and DeAngelis about confidentiality and the potential for undermining official processes, and it offended a number of other BCS faculty, two of whom referred to the claimants' conduct as vigilantism.19Jan. 5, 2017 Emails between Faculty 19, Faculty 13, Faculty 20, G. DeAngelis and Faculty 7; Oct. 20, 2017 Interview with Faculty 7.
On July 26, 2016, Deans Lennie and Culver sent a letter to BCS faculty telling them that the investigation was concluded, its findings were "a confidential employment matter" and that the matter was on appeal.20July 26, 2016 Letter from P. Lennie and G. Culver to BCS Faculty ("July 2016 Letter") (attached as Exhibit 7). They criticized the "gossip" about the claims as "most regrettable and unprofessional," but they emphasized that they "fully endorse the rights of individuals to make good faith complaints and they will ensure that no one will be retaliated against for their participation in the investigation."21Id. Kidd, who filed a retaliation claim on July 21, 2016, as a result of some of the ongoing conversations which questioned her credibility,22C. Curtin's Notes from Aug, 16, 2016 Interview with C. Kidd. welcomed this belated admonition from the University. Other claimants resented this "gag order" and believed, in any event, that they had a first amendment right to discuss the matter.23Nov. 30, 2016 Letter from R. Aslin to J. Seligman and P. Lennie.
During the period from July 2016 to March 2017, there were numerous discussions between the claimants, the BCS Chair, Deans Culver and Lennie, Provost Clark and other senior UR officials, including, eventually, President Seligman, about possible process changes and how best to move forward. DeAngelis also continued to press for a stricter code of conduct for BCS and other changes. These latter efforts were stymied, in his view, by the OOC, which did not think it was appropriate to have different standards for different departments, and the Executive Committee of the Faculty Senate, which, at the behest of DeAngelis and Lennie, considered a prohibition on any intimate relationships between faculty and students in the same department, but ultimately took a different approach to strengthening the policy. On November 30, 2016, Aslin sent his "call for action" letter to Seligman and Lennie, informing them that he would retire early from UR if the process for handling sexual harassment claims against faculty members was not improved and that he would leave UR, in any event, if Jaeger was not gone by June 30, 2017.24Id.
Aslin also sent a letter directly to Jaeger in early November 2016, which specified alternative paths forward for Jaeger, which Jaeger found inappropriate and threatening.25Nov. 2, 2016 Letter from R. Aslin to F. Jaeger. On November 29, 2016, largely in response to Aslin's letter to Jaeger and in an effort to move past the discord in BCS, Provost Clark sent a memorandum to BCS faculty telling them that the University considered the Jaeger matter closed and that the University valued and supported him as it does all faculty members.26Nov. 29, 2016 Memorandum from R. Clark to BCS Faculty ("November 2016 Memo") (attached as Exhibit 8). In that memorandum, there was no mention or criticism of any of Jaeger's conduct that had been found problematic in the investigation, but Clark informed faculty that they could view a summary of the facts in the Intercessor's office. This unbalanced communication angered the claimants, their supporters and other, more neutral members of the BCS faculty.
Eventually, and reluctantly, in order to deal with the continuing tensions in BCS and to provide more transparency about the allegations and the investigation, as claimants and others in BCS were seeking, the OOC prepared a summary of facts in late November 2016, and provided it to interested BCS faculty who would agree to keep the information confidential.27Of the BCS faculty who supported the claimants, only Hayden reviewed the summary; Piantadosi refused to commit to confidentiality and so did not review the summary. Cantlon, Aslin and Kidd had reviewed the entire investigative report. Jaeger's written statement and Aslin's November 2, 2016 letter to him were also, at Jaeger's request, made available.
As with other steps the University took to try to move past the ongoing controversy and tensions in BCS, these efforts were not successful. Matters were further exacerbated when, in January 2017, the OOC provided DeAngelis with certain of the claimants' emails that had been preserved when UR was notified in July 2016 that Aslin and Cantlon had retained a lawyer. The emails had been reviewed by the OOC in connection with the complaints about violations of confidentiality and in anticipation of providing them to the outside lawyer working on Kidd's retaliation claim. In a January 2017 BCS faculty meeting, without naming names, DeAngelis told the group that he believed that he had been deceived and manipulated after he had reviewed emails from those who had complained about Jaeger to the University. Cantlon took his remarks to be referring to her, as well as Aslin, and was outraged. Later, it was asserted that DeAngelis' remarks constituted retaliation for their having complained about Jaeger and participated in the investigation. The revelation and discussion of the emails caused the BCS faculty to become further divided. All subsequent efforts to repair the faculty relationships in BCS have also been unsuccessful.
A number of BCS faculty and members of the University Administration have found the claimants' unrelenting pursuit of this matter, which the University believed it had thoroughly, fairly and in good faith investigated and resolved under its established procedures, both frustrating and inexplicable.28Seligman personally read the University's investigative report "multiple times" and found it to be thorough and persuasive. (Jan. 8, 2018 Interview with J. Seligman.) He also read the appeal papers and other subsequently-filed complaints. (Id.) For their part, the claimants and their supporters felt insulted and very troubled by the University's perceived lack of responsiveness to them and their concerns about the sexual harassment of students and UR's system for dealing with sexual harassment claims against faculty members.
Ultimately exasperated by their lack of success internally to reverse the University's investigative findings, to sanction Jaeger or to change UR's policies and procedures, the claimants (together with others) filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on August 30, 2017 (the "EEOC Complaint"), which repeated many of the allegations reported to UR in 2016. The complainants in the EEOC Complaint were four current BCS faculty members (Cantlon, Kidd, Mahon and Piantadosi), three former BCS faculty members (Aslin, Hayden and Newport), and Keturah Bixby, a female BCS graduate student who completed her Ph.D. in 2017 (collectively, the "EEOC Complainants"). The named defendants were UR, Jaeger, Catherine Nearpass (the University's primary investigator), DeAngelis and Clark, who was the University's decision-maker on the claims made about Jaeger by Aslin and Cantlon and the senior University official who affirmed, on appeal, Culver's decision that there was no retaliation against Kidd. The EEOC Complaint was made public through the media on September 7, 2017.
The University, on September 29, 2017, responded to the EEOC Complaint in a Position Statement, denying many of the allegations and defending the fairness and robustness of their investigations.29Sept. 29, 2017 University of Rochester Position Statement ("UR Position Statement") (attached as Exhibit 9). The UR Position Statement has not previously been made public. In September 2017, Jaeger agreed to go on administrative leave, pending the outcome of the Independent Investigation of the allegations raised in the EEOC Complaint.30The terms of Jaeger's administrative leave prohibit him from teaching classes, but, for the sake of his students, permitted him to continue to work with them if they chose to do so. (Nov. 14, 2017 Interview with G. Norris.) Jaeger is also scheduled, as previously approved, to be on sabbatical for the spring semester of 2018. There is no evidence that, at any time prior to the publication of the EEOC Complaint, the Board of Trustees was informed about this matter, by either the University Administration or the claimants.
In late November 2017, the EEOC dismissed the EEOC Complaint and issued "right to sue" letters to all of the claimants, as well as to Sarah Heilbronner, a former post-doctoral fellow at the University and Hayden's spouse, who filed a subsequent complaint with the EEOC, alleging that she did not receive an offer for a particular tenure-track position in BCS as a result of UR's retaliation for actions taken by her husband, Hayden, and the other EEOC Complainants - a claim also raised in the original EEOC Complaint.31The issuance of "right to sue" letters did not reflect a decision by the EEOC on the merits of the complaints. Of the original EEOC Complainants, all but one received a "right to sue" letter at their request. An EEOC claimant may ask for a "right to sue" notice if he or she does not want to "wait for EEOC to complete the investigation and make a determination on the charge"; such a letter does not reflect a decision on the merits by the EEOC in either direction. See Donald R. Livingston, EEOC Litigation and Charge Resolution 431 (2018). Newport received a "Dismissal and Notice of Rights" letter, indicating that her case had been dismissed by the EEOC and that she had the right to bring suit in federal court.
On December 8, 2017, the EEOC Complainants and Heilbronner (collectively, the "Complainants") filed a federal complaint in the United States District Court for the Western District of New York (the "federal complaint"),32See https://www.documentcloud.org/documents/4325254-UR-Lawsuit.html. largely, though not entirely, based on the allegations in the EEOC Complaint.33Any new allegations added to the federal complaint have been reviewed by the Independent Investigation and we note in the Report where allegations in the EEOC Complaint have been dropped or materially changed. In some cases, insufficient information was provided in the federal complaint to identify the people and events being alleged. The federal complaint was brought against UR, Seligman, and Clark; Jaeger, DeAngelis and Nearpass are no longer named as defendants. The University is currently scheduled to file its initial response to the federal complaint on February 5, 2018.
Today, the University Administration, Faculty Senate, BCS Chair, the Commission on Women and Gender Equity and the Students' Association Task Force to Review University of Rochester Sexual Misconduct and Title IX Policies and Procedures, among others, continue to review and work on the policy and procedural concerns and related issues that this matter has brought forward and into the open for broader discussion and scrutiny by the University community of sexual harassment and other gender-related issues. While consideration of these issues is ongoing with the full support of President Seligman and the Administration, the Administration has also made clear that it believes that the current policies, process and procedures for addressing sexual harassment are fully compliant with Title VII, Title IX and best practices.34See Exhibit 9. The University issued a statement that "The policies and practices in place at the University of Rochester are regularly benchmarked against those of peer institutions, and we believe they currently provide appropriate protections and support for both complainants and respondents." Brian Sharp, Faculty Leaders: Inaction by Administration Has Damaged UR, DEMOCRAT CHRONICLE (Dec. 14, 2017). Recently, the Executive Committee of the Faculty Senate has made certain recommendations for changes in procedures and criticized the Administration for not making at least interim changes pending the outcome of the Independent Investigation and this Report.35Op-Ed, After Administration's Inaction, Harassment and Sexual Misconduct Policies Need Oversight, CAMPUS TIMES (Dec. 14, 2017).
It would be a significant understatement to say that these allegations, Jaeger's underlying actions and the University's and the claimants' responses to them have torn at the fabric of BCS and the broader UR community. They have, for example, led to: the filing of the EEOC Complaint; a subsequent, recently-filed federal lawsuit which is ongoing; protests; demands that Jaeger be fired; a letter dated March 13, 2017 from 18 former graduate students who worked with Jaeger to Dean Culver in strong support of him;36Mar. 13, 2017 Letter from 18 former students in F. Jaeger's lab to G. Culver. calls for President Seligman's resignation; an alumni petition making five demands, including a public written apology from Seligman; acceleration by Aslin of his previously planned retirement from UR; fractured personal relationships among the BCS faculty; a letter, co-authored by a former BCS graduate student and advisee of Aslin's and signed by over 400 faculty members at other schools, saying that they will not recommend that any student of theirs go to UR to study or work under present circumstances and encouraging UR's Trustees to think about changes they will make; and the formation of a Special Committee of the UR Board of Trustees to commission and oversee a comprehensive, independent investigation, which is now the subject of this Report.
There have also been some attacks on the Special Committee and on our independence and competence since being retained to conduct the Independent Investigation. That comes with the territory when the matters being investigated are so critical and deeply felt by so many who are not in agreement about what happened, what the appropriate remedies should be or what should happen more generally going forward, leading to a general climate of mistrust. All of this is also occurring in an unprecedented environment of highly publicized instances and allegations of sexual assault, abuse and harassment in a wide variety of workplaces, including Hollywood, media, the federal bench, Congress and at other educational institutions.
All of these instances, like the one before the UR community, raise very troubling allegations and, in some cases, acknowledgements of sexual misconduct by men in powerful positions of various kinds where female subordinates have been victimized. We share the hope of many others that the public dialogue about these high-profile situations and the actions taken in response will heighten sensitivity, significantly raise the bar for acceptable behavior, lead generally to much more rigorous efforts by employers and others in authority to prevent sexual misconduct in the workplace, and enhance policies and stronger enforcement of policies and laws designed to ensure a work and educational environment free from any form of discrimination against anyone based on their sex, gender-preference, race, religion or on any other basis that does not respect the objective talents and performance of each individual.
As many we spoke with have said, a very positive and constructive outcome here would be for UR to emerge as the thought leader and role model for the academic community of how to prevent and optimally address sexual harassment in the workplace and, more broadly, to ensure that UR remains - and is perceived to be - an esteemed place of higher learning where all students, staff and faculty flourish and feel protected to pursue their education, research, jobs and dreams in an environment supportive of all. In the meantime, what must not be lost in the current environment, turmoil and extensive public discourse is that each situation has its own unique facts and circumstances and that other fact patterns are not the subject of this investigation or the allegations that prompted it. It is critical that we be very clear-eyed about that and thoroughly and impartially examine and evaluate the evidence, findings and recommendations that are at issue here.
As one law professor commented recently, in the wake of quick public judgments about alleged sexual harassers, "[z]ero tolerance should go hand in hand with two other things: due process and proportionality."37Zephyr Teachout, I'm Not Convinced Franken Should Quit, N.Y. TIMES (Dec. 11, 2017). The distinguished jurist, Learned Hand, had a similar concern and worried, in a different context, about what he called "a spirit of general suspicion and distrust [of a community], which accepts rumor and gossip in place of undismayed and unintimidated inquiry."38Speech to the Board of Regents, State University of New York (Oct. 24, 1952).
Some have urged us to simply accept as fact the allegations in the EEOC Complaint and the federal complaint (the "complaints"). We cannot do that. Claims and allegations are not proven facts and are not always true. To be sure, the complaints here contain a number of important allegations that the Independent Investigation has completely substantiated, including that, in his early years at UR, Jaeger, as then permitted by UR policy, had intimate consensual relationships with a number of BCS students, made inappropriate sexual remarks, blurred personal and professional boundaries and created a negative academic environment for some BCS students. At the same time, the complaints also make assertions that the Independent Investigation has disproven, and still others where fuller context is necessary to accurately understand the import and impact of certain behaviors.
The EEOC Complaint, for example, suggests in two separate places that Jaeger engaged in sexual activity with a prospective student who stayed with Jaeger and his partner during a visit to UR in 2015.39EEOC Compl. ¶¶ 153, 164. To the EEOC Complainants' credit, their subsequent federal lawsuit, where Rule 11 pleading requirements apply,40"By presenting to the court a pleading, written motion, or other paper . . . an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery . . . ." Fed. R. Civ. P. 11(b)(3). withdraws that assertion, noting that the student has now confirmed that she did not experience any sexual advances or other misconduct by Jaeger during her visit.41Fed. Compl. ¶ 212 n.43.
It is also important to recognize that the complaints contain numerous allegations having nothing to do with sexual harassment, which are important to distinguish for legal and fairness reasons. A number of these allegations have also been found not to be true. For example, Jaeger is criticized for selfishly taking unwarranted "credit" for the academic work of his students. Although the federal complaint omits many of the credit-related allegations that were in the EEOC Complaint, it continues to incorrectly allege that:
On one occasion, Jaeger found out that he and one of his former collaborators, then a graduate student at Stanford, had jointly won an award for a project they did together. Jaeger was incensed that he had to share recognition with this student. He called members of the awarding body and told them that the ideas and most of the work were not the student's but his.42See EEOC Compl. ¶ 60; Fed. Compl. ¶ 100.
The opposite is actually true. Contemporaneous emails from that time among the awards committee, Jaeger and the student make clear that Jaeger was initially given the award alone, but then informed the awards committee that the student was responsible for 50% of the work and urged that the student also be given the award. A committee member, in a break from prior precedent, agreed that Jaeger and the student could split the award money and be named as joint recipients. In an email to Jaeger and the student, the committee member reported that the two would be joint recipients of the award and split the award money, "given that Florian has let me know about 50/50 contribution to this piece of research." Jaeger responded, "I think this would be awesome! Thank you for making this possible (and so fast). . . Congratulations, [Post-doctoral Fellow 8] =)."43Mar. 3, 2008 Emails between F. Jaeger and Post-doctoral Fellow 8 (attached as Exhibit 10).
More broadly, as numerous witnesses with first-hand knowledge told us, there are many specific incidents alleged in the complaints that occurred in some form, but have been embellished and "distorted" into something they were not in order to sensationalize Jaeger's objectionable conduct and to support the assertion of a pervasively hostile environment for women students in BCS. One current BCS faculty member described the EEOC Complaint as "very engaging," "like a novel," "but it called into question how much was fiction versus non-fiction for me."44Oct. 20, 2017 Interview with Faculty 11. The complaints are also frequently vague about when relevant alleged events occurred. This is particularly important here, not because past acts and problems are irrelevant or unimportant, but because the current environment is obviously of greatest concern to the University, its students and potential students.45Legal liability for claims of this kind are also ordinarily governed by statutes of limitations of three years under Title IX and the NYSHRL and 300 days under Title VII.
We cite examples of inaccurate or misleading allegations in the complaints, not to minimize the allegations that have been brought forward or to undermine the overall credibility of the Complainants, but to underscore the importance of proof and basing ultimate judgments on full facts, not on unproven allegations, incorrect conclusions drawn from the facts or allegations that are demonstrably false. The stakes are high for everyone involved and it would be a disservice and unfair to everyone not to require clarity and rigor in assessing these very serious allegations of misconduct.
We urge everyone to read the full report and the exhibits before making judgments and to remember, as we found over and over during the investigation, BCS is an extraordinarily impressive department, and UR is a University where the Administration, faculty, students, alumni and the Board of Trustees are deeply engaged and committed to its welfare and that of its students. No one we talked with disputed that the safety and education of UR's students are paramount. This includes the former and current BCS graduate students who, despite the questions, disruptions and pain surrounding these events, generally praise the high quality of their education, while at the same time worrying about the negative impact on their research, reputations and careers that may flow from this matter and how it has proceeded.46The release of the complaints has profoundly impacted Jaeger's current students. One student, who spoke very favorably about Jaeger as her adviser, said that the complaints had "derailed her entire year." (Dec. 8, 2017 Interview with Graduate Student 6.) She explained that others in the field were "boycott[ing]" her papers, because with Jaeger as a co-author, they were refusing to read her work. She noted that Jaeger had offered to remove his name from papers, but she declined, saying "that is not fair." The experience of being boycotted, she told us, has led her to tentatively decide that she is "not going to stay in academia." As she put it, it is "already hard [enough] to find a job."
We have done our best to conduct a thorough, impartial inquiry to consider the allegations in light of all the known facts. We hope that our efforts will be helpful in providing more complete information and some perspective to these serious allegations that have deeply engaged, divided and negatively impacted BCS students and faculty and the University community as a whole. It is always possible that new evidence or allegations emerge, from the Complainants or others, that could alter or refine our conclusions. However, given the unusually extensive written record here and the extraordinary cooperation that we have received from so many witnesses with first-hand knowledge of relevant events, we are able to have a high level of confidence in our findings. We also hope that the recommendations we make, which are significantly informed by a number of the well-founded concerns and thoughtful suggestions expressed by the Complainants and others, will provide a partial roadmap for a constructive path forward.
B. Scope and Independence of the Investigation
On September 19, 2017, a Special Committee of the Board of Trustees of the University of Rochester retained Debevoise & Plimpton LLP to conduct an independent, comprehensive investigation of all matters raised in the 111-page EEOC Complaint; review the University's policies, procedures and processes for addressing claims of sexual misconduct and harassment by faculty members; and make any appropriate recommendations for changes in those policies, procedures and processes.47The Board of Trustee's resolution announcing the formation of the Special Committee and the Special Committee's statement on retaining Debevoise are at Exhibit 11. Debevoise does not represent the University or any of the parties before the EEOC or in federal court.
The matters raised in the EEOC Complaint, now mostly carried forward in the federal complaint, include: (a) allegations about Jaeger's conduct over a period of years beginning in 2007; (b) the University's actions in responding to these allegations, including the adequacy and impartiality of its investigations of the claims about Jaeger's conduct, the resulting academic environment in BCS for female graduate students, and Kidd's claims of retaliation;48UR conducted two separate investigations: (1) beginning in March 2016 and concluding in May 2016, Nearpass investigated the claims made by Aslin and Cantlon about Jaeger; and (2) beginning in August 2016 and concluding in September 2016, Cynthia Maxwell Curtin, an outside lawyer at Curtin & DeJoseph, investigated Kidd's retaliation claim, the crux of which was that Nearpass had improperly revealed Kidd's name and questioned her reliability in the investigative report made available, per UR practice, to Aslin and Cantlon (the claimants) and Jaeger (the accused), which, in turn, allegedly led to criticisms of Kidd and her credibility being discussed by Jaeger with others inside and outside of BCS. and (c) the allegations raised in the complaints of broader retaliation against some of the Complainants who made or discussed the claims or who provided information about Jaeger's conduct or discussed the allegations and the University's investigation.
When the Special Committee was established, reflecting the extreme importance of this matter, it was made clear that its work would proceed to conclusion, irrespective of any decision by the EEOC or any other person to pursue claims. The Special Committee is chaired by Trustee Richard B. Handler; the other Trustee members are Nomi M. Bergman, Carol (John) Davidson, Launcelot F. Drummond and Lizette M. Pérez-Deisboeck. On October 11, 2017, Professor Jean Bidlack, Professor and Associate Chair of the Department of Pharmacology and Physiology and a member of the Executive Committee of the Faculty Senate, and Kolja Keller, a fifth-year Ph.D. student in the Philosophy Department, joined the Special Committee as full members and as representatives of, respectively, the faculty and graduate students.
The Debevoise Investigative Team is headed by Mary Jo White, Senior Chair of the firm and the former Chair of the Securities and Exchange Commission and the former United States Attorney for the Southern District of New York, and her partner, Mary Beth Hogan, the co-chair of Debevoise's litigation department, who also serves on the Board of Directors of Catalyst, a worldwide nonprofit organization dedicated to the advancement of women at all levels in the workplace, including into leadership and board positions. They are assisted by Debevoise Counsel Winston Paes, a former Assistant United States Attorney and Section Chief in the Eastern District of New York, and several other Debevoise lawyers, as well as two outside professional investigators retained by Debevoise.49The investigators are Anthony P. Valenti, a former Special Agent of the IRS and Senior Criminal Investigator of the United States Department of Justice, Office of the United States Attorney for the Eastern District of New York, and Stephen Korinko, a former federal law enforcement agent and supervisor with the United States Postal Inspection Service. Both are with the investigative firm of Stroz Friedberg. Both Debevoise and the outside investigators have extensive experience in conducting investigations of sexual misconduct.
On September 28, 2017, the Special Committee announced that it had structured its role primarily to help secure full cooperation from the University community for the Debevoise Investigative Team, making clear that the Special Committee would not be directing or influencing the investigation in any way, nor receiving factual briefings on witness interviews or document reviews prior to the completion of Debevoise's final written report.50Message from the Special Committee of the University of Rochester Board of Trustees, September 28, 2017 (attached as Exhibit 12). Debevoise spoke with the Special Committee, typically once a week, to report, at a high level, on the progress of the investigation, the cooperation being received and other relevant, non-factual developments. As the Special Committee further determined, Debevoise's written report would be simultaneously presented to the Special Committee and the Board of Trustees upon completion of the Independent Investigation and thereafter made available to the public on the same day, without change or edit.51Exhibit 12
As directed by the Special Committee, the Debevoise Investigative Team has functioned entirely independently in conducting the investigation and preparing this Report. No changes or edits were made to the Report by anyone outside of the Debevoise Investigative Team at any time. No draft of the Report was shown to anyone outside of Debevoise or the Debevoise Investigative Team and no advance copy of the Report, or any part of it, was shown or read to anyone else. The findings and recommendations in the Report are exclusively those of the Debevoise Investigative Team.
In conducting the Independent Investigation, we received full cooperation from the University Administration, including the OOC, academic deans, and Title IX office. We also spoke with many members of the UR faculty (past and present), including Jaeger, 64 past and present UR students and post-doctoral fellows, students and faculty from other institutions and others with relevant information. Notably, we were able to interview 14 of the 17 graduate students (including all female graduate students), and seven out of the 10 post-doctoral fellows (including three female post-doctoral fellows), who worked in Jaeger's lab from 2007 through the present.52Two of the three male graduate students declined to be interviewed, and one did not respond to our interview requests. One of the female post-doctoral fellows declined to be interviewed, and two male post-doctoral fellows did not respond to our interview requests. In connection with our examination of the University's policies and procedures and our policy recommendations, we interviewed 12 University officials regarding UR's policies and investigative procedures, reviewed UR policies and procedures addressing sexual harassment, sexual misconduct, faculty-student relationships, conflicting employment relationships and information technology and benchmarked UR's policies against those of 19 other schools, as described in further detail in Appendix B.
In all, during the course of the investigation, we interviewed over 140 witnesses, some multiple times, and reviewed over 6,000 relevant documents, including University policies, interview notes and reports from the University's investigations, emails, Facebook messages and other correspondences. We also received very helpful input from the Executive Committee of the Faculty Senate, chaired by Mary Jane Curry and Kevin McFarland; Dr. Catherine Cerulli, the Director of the Susan B. Anthony Center, and Jordan Smith, the faculty and student co-chairs of the Students' Association Task Force to Review University of Rochester Sexual Misconduct and Title IX Policies and Procedures; and Antoinette Esce and Amy Lerner, the student and faculty co-chairs of UR's Commission on Women and Gender Equity in Academia.53Seligman called for the formation of this Commission on September 14, 2017; the Commission announced its formal establishment on October 25, 2017 and that it would function independently of the President's Office and the University Administration and report to the University community as a whole. Its members include faculty, students and trainees from across the University, and its mission is a broad review of the policies, procedures and culture that affect women and LGBTQI individuals in the academic settings of UR. See Press Release from Amy L. Lerner, Antoinette Esce, et. al., Comm'n on Women and Gender Equity in Acad. (Oct. 25, 2017), https://www.rochester.edu/commission-women-gender-academia/. Debevoise's total bill for its work is $4.5 million.
The majority of witnesses who agreed to be interviewed requested anonymity and we have honored that request in conducting the Independent Investigation and in preparing the Report; to the extent we discuss what these witnesses said in interviews, emails or documents, we have assigned them an appellation that consists of their current academic status and a random witness number, e.g., Former Graduate Student 3. We have also given an anonymous appellation to individuals with whom we did not speak. At times, we do not reveal the identity of an interviewee in our citations to interviews where doing so would make the person identifiable. We do not adopt the pseudonyms used in the complaints - and instead use the appellations noted above - due to concerns raised by a number of the women we spoke to that people have been able to identify them despite the measures taken by the Complainants to conceal their identity.54Two key witnesses told us that they had not been contacted before sensitive information purportedly coming from them or about them under an alias was included in the complaints. These witnesses complained that they were not contacted in advance, that their identities were not protected and were apparent despite the use of aliases and, in some respects, that the information included in the complaints about them was not accurate. At least one other central witness given an alias in the complaints told one of the Complainants, as well as the Complainants' lawyers, that part of the information alleged about her was not accurate before the filing of the federal complaint. In reporting our findings, we have also been sensitive to the fact that several of the Complainants, Jaeger, as well as many other witnesses remain part of BCS, UR and/or the broader academic community and therefore we have not reported on certain facts of a personal and private nature if they were not necessary to our findings and their disclosure might unnecessarily damage reputations or current and future personal or working relationships. We have not, however, omitted any such information that is relevant and might reflect unfavorably on Jaeger.
On the advice of counsel, the Complainants, and some of the witnesses referred to in the complaints by name or under an alias, did not agree to be interviewed by the Debevoise Investigative Team. For all eight of the EEOC Complainants, however, we were able to review detailed notes of interviews and information they gave in the University's prior investigations of this matter, including those from the interviews of the two EEOC Complainants - Kidd and Bixby - who had the most meaningful first-hand information based on direct, relevant interactions with Jaeger.55Kidd and Bixby were interviewed by and exchanged information with University investigators several times in 2016. Bixby (and later Kidd, as well as another woman, Post-doctoral Fellow 13) also met in 2013 with BCS Chair DeAngelis. The information provided by Aslin and Cantlon, who in March and April 2016, respectively, filed the claims against Jaeger with the University, as well as the information provided by the other four EEOC Complainants, was largely based on information received from others (many of whom we were able to interview). Although Cantlon has been on the BCS faculty since 2009 and has asserted that she witnessed sexually harassing behavior by Jaeger toward students for years, she provided very limited information based on first-hand experiences or observations. (Apr. 7, 2016 Email from J. Cantlon to C. Nearpass.)
Significantly, the detailed notes of interviews prepared by the University investigators were also reviewed by the interviewed EEOC Complainants for accuracy and completeness prior to being finalized. That was also true of at least seven of the witnesses referred to in the EEOC Complaint by their names or aliases. In addition, five of those witnesses agreed to be interviewed directly by the Debevoise Investigative Team (one additional witness sent us a written statement), including all of the former UR students referred to in the complaints with whom Jaeger had a romantic or sexual relationship. The Independent Investigation discovered an additional intimate consensual relationship in 2008 with an undergraduate student, whom we also interviewed. We were also able to examine certain Facebook messages and email communications between and among all of the Complainants, the witnesses referenced in the EEOC Complaint and others, as well as speaking to other witnesses with whom they had spoken or otherwise communicated. A number of the EEOC Complainants, primarily Kidd and Cantlon, have also spoken extensively to the media, including on television and radio, and those sources were available to us. We were also able to listen to a three-hour recording of Kidd's interview by Curtin. Finally, the collective views of the Complainants are detailed in the allegations in the complaints.
We, of course, would have preferred to interview each of the Complainants and all witnesses referred to in the complaints ourselves, and we made a number of efforts to secure their cooperation, but also respected that counsel advised them not to be interviewed in the Independent Investigation.56In an effort to obtain cooperation from the Complainants, we made clear that we would agree to any reasonable terms and conditions for interviews, including the participation by their counsel and on the understanding that they could decline to answer any question and stop the interview at any time. The Complainants, through counsel, nevertheless declined both to be interviewed and/or to provide their previous "statements" and "testimony" cited, but not included, in the EEOC Complaint released in early September to the media. These "statements" and "testimony" are represented in the EEOC Complaint as pre-existing documents, which will presumably be provided in discovery in the federal litigation and thus could have been provided without creating any new litigation risk of inconsistent statements and without the necessity of giving a new interview. While we were required to expand the scope of our work to some degree as a result of the Complainants' decision not to cooperate in the Independent Investigation (by interviewing more witnesses with whom they had spoken and reviewing more extensive written communications among them and with others), we believe that the investigative record we compiled fully and fairly reflects the Complainants' collective and, in most cases, their individual views and information. Ultimately, the decision of the Complainants and certain of the witnesses referred to in the complaints not to be interviewed did not affect our ability to make findings and recommendations on all core issues. One of the attorneys for the Complainants has suggested that our investigation is somehow "fraudulent" because her clients were not made available for interviews.57See Fed. Compl. ¶ 49. That, of course, is not the case, as we have been quite clear in this Report that we were not given the opportunity to interview the Complainants and certain other potential witnesses, we discuss the impact of not being able to do so, and we specify in detail the evidence on which we have based our findings and recommendations, including in part, that provided by the Complainants to the University, in emails and Facebook messages, to the media and in conversations with other witnesses we have interviewed.
We have provided citations throughout the Report in order to make clear the source of the information included, whether an email, another type of document or an interview. We do not, however, always attach the emails or other documents as exhibits. We have made judgments about what is necessary to include in full, as opposed to describing the document or providing quoted language in the Report and noting its source. We have endeavored to be thorough and transparent, while also not attaching documents that are sensitive and/or not crucial to our findings and/or were not, when they were written, intended for the public.
C. Summary of Key Findings and Recommendations
As more fully discussed below, on the basis of all of the interviews conducted and documents reviewed, applicable UR policies and the law, we arrived at a number of key findings and recommendations which are summarized here.
1. Jaeger's Conduct: 2014 to the Present. There is no evidence of which we are aware suggesting that there is currently, or has been since at least 2014, a hostile work or academic environment for any female graduate students in BCS. Indeed, all of the current BCS graduate students and post-doctoral fellows we interviewed from Jaeger's lab (female and male) were positive about Jaeger as a scientist and mentor and said that they had not experienced or witnessed sexual harassment or other inappropriate conduct by him. We are also not aware of evidence suggesting that any BCS female graduate student who started at BCS since 2014 has avoided Jaeger and the educational opportunities he provides on account of any sexually-related behavior or verbiage.
We also did not find any evidence that, during this period, Jaeger violated UR Policy 106, the UR Intimate Relationships Policy, UR Policy 121 or any other UR policy. There is no evidence that Jaeger engaged in any sexual relationships in this period with anyone other than his current partner, who moved to Rochester in the fall of 2013. The allegation in the EEOC Complaint suggesting a 2015 sexual encounter with a prospective graduate student is inaccurate and has not been included in the federal complaint. Although the complaints do not make this clear, nearly all of the allegations against Jaeger are either undated or from a time period at least three years, and often up to nine years, prior to the filing of the Aslin/Cantlon complaints in 2016.
2. Jaeger's Conduct: 2007-2013. We credit, as the complaints allege, that during the earlier period of 2007-2013 (and especially during the earlier years in that period), Jaeger engaged in behavior that was inappropriate, unprofessional and offensive. Among other things, he engaged in four consensual sexual relationships with current, former or prospective UR students between 2007 and 2011, he was flirtatious with other students, he blurred appropriate faculty-student boundaries in other ways, including by renting a room in his home to a female graduate student, and he sometimes made comments in social and academic settings that included inappropriate sexual content or innuendo. As the Complainants also allege, we agree that these behaviors were harmful in a variety of ways; for example, a number of female graduate students from that time period told us that, as a result of Jaeger's reputation or behavior, they made a conscious decision to avoid him and the educational opportunities he offered, which we found to be very troubling. We further note, however, that the narrative presented in the complaints is also exaggerated and misleading in many respects, including, for example, the allegations concerning Jaeger's living arrangement with and treatment of Kidd.
Despite our conclusions that Jaeger's conduct in this earlier period was inappropriate and harmful to some in the UR community, we nevertheless also believe that UR was correct in concluding that his conduct did not violate UR policy. UR's Intimate Relationships Policy in effect at the time (which has since been substantially revised) did not prohibit, though it strongly discouraged, consensual sexual relationships between students and faculty. We also do not believe that any potential claimant or plaintiff would be able to sustain a legal claim for sexual harassment in violation of Title VII, Title IX, NYSHRL (or UR Policy 106, which substantially mirrors the standards under those laws) based on Jaeger's conduct. There is no evidence that Jaeger ever engaged in so-called quid pro quo sexual harassment, or ever had any non-consensual sexual contact with any person. Although we find Jaeger's behavior inappropriate, unprofessional and offensive, the governing "severe or pervasive" legal standard for hostile environment harassment is a demanding one, and we do not believe any claimant or plaintiff would be able to show that it was met as to her.
We emphasize that this is a legal conclusion (not a moral or social judgment), based on applying the governing legal standards to the facts as we understand them. We also note that many employers, educational institutions and jurisdictions have made a reasonable judgment to impose standards for defining prohibited sexual harassment that are more exacting than the standards which governed Jaeger's conduct in the period before 2014; indeed, UR's own relevant policies have become more exacting since then. Our legal conclusion here, however, is based on the standards that governed his conduct at the relevant time. By providing our legal conclusion, we do not imply that Jaeger's conduct was acceptable or presume to opine on questions of moral culpability.
3. Intimate Relationships with Students. During the 2007-2011 period, Jaeger had consensual intimate relationships with two students (one graduate and one undergraduate) and one prospective student. We interviewed each of these women. While ill-advised and contributing to Jaeger's reputation as a "womanizer," none of these relationships, as the University found, violated UR's faculty-student intimate relationships policy or any other UR policy applicable at the time. We also credit that Jaeger disclosed the relationship with the prospective BCS student with a senior BCS faculty at the time. There is also no evidence that Jaeger ever engaged in any intimate relationships with students after 2011.
4. Relationship with Recently Graduated Student. From 2010-2011, Jaeger had a consensual intimate relationship with an employee of a different lab who had graduated from UR six months before the relationship began. We interviewed this woman as well. Their relationship did not violate UR Policy 121 or any other applicable UR policy. There is also no evidence that Jaeger has ever had any other sexual relationship with any other UR employee who was or who had ever been a BCS student.
5. Complaints to the University about Jaeger's Behavior. Despite the negative views of some students about Jaeger, especially during his early years, we are unaware of any complaint about his behavior, including any claim of sexual harassment, being brought to the attention of the Administration, BCS leadership or other faculty prior to 2013 and no explicit claims of sexual harassment before March 2016.
Sometime in the spring of 2013, Keturah Bixby, then 28 years old and a third-year BCS graduate student, spoke first to Aslin, then another faculty member,58The professor suggested that she raise the concern with DeAngelis, which she did in November 2013. and then DeAngelis about her discomfort with Jaeger. DeAngelis did not understand the conduct about which she complained to be sexual, and to the best of his recollection, confirmed that with her. We note, however, that the contemporaneous documents are ambiguous. Bixby's written complaint mentions "harassing" conduct, but in an email to a friend at the time, said that it "was not at the level of sexual harassment." In editing the notes from her March 24, 2016 interview with Nearpass, Bixby confirmed in writing that she "didn't intend" her 2013 complaint to be one of sexual harassment. In August 2016, however, Bixby and four other former BCS female graduate students, including the two DeAngelis interviewed in 2013 or early 2014, sent a letter to DeAngelis and several deans stating that they had "experienced and/or witnessed harassment and inappropriate sexual comments," which was forwarded to the OOC.59Aug. 23, 2016 Letter from K. Bixby, Graduate Student 14, Graduate Student 17, Graduate Student 4 and Post-doctoral Fellow 13 to University of Rochester Administration (attached as Exhibit 13). Bixby also conveyed in a cover email her belief that UR's 2016 investigation had been "inadequate" and the process "flawed," and offered to meet to share her views on how to improve UR's process for handling sexual harassment claims to better protect students.60Aug. 23, 2016 Email from K. Bixby to P. Lennie, G. Culver, W. Heinzelman and G. DeAngelis.
We certainly do not rule out, as the complaints assert, that it is possible that issues about Jaeger's alleged sexual harassment were not brought forward because potential claimants may have been afraid of not being taken seriously or other negative consequences or because they did not recognize the behavior as harassment at the time it occurred. We note, though, that during much of the most problematic period of time (2007-2011), the Chair of BCS was Newport, one of the female Complainants, who is described in the complaints as strong and proactive in addressing sexual harassment.61Newport chaired BCS from 1997 2010. It is asserted in the complaints that she was quite vocal that sexually harassing behavior "would not be tolerated" and that she "would protect" students when it did occur. EEOC Compl. ¶ 15. An example of Newport causing a male BCS professor to be terminated for sexual misconduct, against the advice of the OOC, is also cited in the complaints. EEOC Compl. ¶ 245; Fed. Compl. ¶ 348. We also want to clearly acknowledge that whether or not Bixby earlier recognized or articulated her discomfort with Jaeger as sexual harassment, she is to be commended for her courage in coming forward in 2013 and for her considerable efforts in 2016 to improve UR's process for responding to and addressing claims of sexual harassment in academia. As we also note below in Finding 11, we consider it a missed opportunity in 2013 not to have recognized Bixby's complaint, however labeled, as one involving potential sexual harassment.
Once complaints and concerns were raised about Jaeger's behavior, both in November 2013 and in March 2016, they were dealt with seriously and professionally by the BCS Chair and the University. In both cases, DeAngelis counseled Jaeger and took other remedial steps, which appear to have been at least somewhat successful in helping sensitize Jaeger to the impact of certain of his border-pushing behaviors and inappropriate manner of speaking to and about students.
6. The Adequacy and Impartiality of the University's Investigations of Jaeger's Conduct in 2016. The University's investigations relating to Jaeger in 2016 were conducted in good faith, impartially, professionally and in accordance with UR Policy 106. And we agree with its ultimate conclusion of no policy violations. At least in hindsight, however, there are aspects of the initial University investigation that could have been done differently, and better, which might have avoided some of the troublesome communications about the investigation that occurred in BCS and certain of the Complainants' criticisms. We also acknowledge the inherent difficulty for the OOC, even with its investigator "walled off" and functioning in a purely human resources role, to conduct an entirely independent investigation in both fact and appearance. Our recommendations address that difficulty. As for how the investigation might have been improved:
First, the instructions given to interviewees with respect to confidentiality were neither uniform nor always clear, leaving claimants, Jaeger, witnesses and other BCS faculty uncertain about what they could discuss with others with respect to both the investigations themselves and their outcomes. We note that Nearpass, in September 2016, prepared and began using a standard form of instruction to claimants, witnesses and the accused about confidentiality.62University of Rochester, Policy 106 Investigation, Information for Witnesses (attached as Exhibit 14).
Second, while it would not have affected the finding of no policy violation in this case, and we appreciate the privacy concerns that motivated its exclusion, the University should have included in its report the fact, anonymized, that Jaeger had also had a sexual relationship with a recent undergraduate. Although this relationship also did not violate University policy, it might have been relevant to the decision-maker or to others at the University who had discretion over what remedial steps to take.63We note that Nearpass did not include this relationship in the written report, which would be seen by claimants, Jaeger, DeAngelis and various administrators, in order to better safeguard the identity and privacy of the former student.
Finally, as Nearpass now acknowledges, she should have reviewed Jaeger's Facebook messages to Kidd that Kidd offered to provide. Once again, however, doing so would not likely have altered Nearpass' findings and, ironically, if Nearpass had also obtained Kidd's Facebook messages responding to Jaeger's messages, as we were able to do, the messages viewed in full context would likely have cast further doubts on Kidd's claims of unwanted, partially sexual banter with Jaeger and that he "forced" her to live in his home in 2007.
7. Retaliation Claims. The University did not retaliate against the Complainants for the claimants filing the complaint against Jaeger or for participating in the University's investigations and their aftermath. Retaliation, as that term is defined under applicable law, requires a materially adverse employment action (such as a termination or other conduct that would dissuade a reasonable person from complaining) in response to protected activity (such as complaining about or opposing harassment). While the Complainants felt that they were disrespected and unfairly criticized for the actions they took in this matter, such purported harms do not constitute material adverse employment actions for purposes of a legal claim of retaliation. In addition, many of the statements made and actions taken by UR to which the Complainants object were, in our view, not taken to retaliate against them for any protected activity, but rather as a good faith, albeit not successful, effort to lessen the divisiveness within BCS.
8. The University's Policies, Procedures and Process for Addressing Claims of Sexual Harassment Against Faculty Members. While they can and should be enhanced in a number of ways, as the claimants and Bixby have advocated, UR's policies on sexual harassment and its existing procedures and process for addressing claims of gender-based discrimination and sexual harassment by faculty members are consistent with both applicable law and in line with the policies and procedures of comparable schools. UR Policy 106 and the Student Sexual Misconduct Policy (dealing with sexual harassment or assault claims against students), for example, track closely federal and state laws and are the product of detailed benchmarking against 18 other similarly-situated schools. That said, the claimants and Bixby have very constructively pointed out a number of areas where the University should change or enhance its policies, procedures and process. We agree and make a number of recommendations for change, including considering a more prohibitive UR Intimate Relationships Policy, having sexual harassment claims handled by an office and investigator independent of OOC, providing at the outset of every investigation a clear "statement of rights and process" to every complainant, witness and accused and providing access to a separate adviser for claimants and the accused, to assist them in understanding the process and the other support resources that are available to them.
9. Reviewing Faculty Emails. Although emails of faculty and students are rarely reviewed by the UR Administration,64According to Gail Norris, University General Counsel, email searches are rarely done, and when they are, they are performed pursuant to the UR's IT Policy. Email searches are done most frequently when they are viewed as relevant to an employment dispute, but even then, they are uncommon. (Dec. 27, 2017 Email from G. Norris to Debevoise & Plimpton LLP.) Mark Fischer, the Director of the Department of Safety, confirmed for us that his office has never searched or collected a student's email in connection with a sexual assault investigation or any other type of investigation. (Dec. 27, 2017 Email from M. Fischer to Debevoise & Plimpton LLP.) the OOC's preservation and review of BCS faculty emails relating to the claimants' complaints about Jaeger fully complied with UR's Information Technology Policy ("UR's IT Policy").65University of Rochester, Information Technology Policy (revised July 2014) (attached as Exhibit 15). The policy provides that all emails relating to "the University's activities and functions, including, but not limited to, administrative functions in the areas of teaching, student life, patient care and research, as well as supportive administrative services" are "University Communications" that can be accessed by the University "as needed for the purpose of carrying out University Business without seeking prior approval." (Id.) Sharing a sample of those emails with DeAngelis in January 2017, while not prohibited and done in an effort to help DeAngelis effectively lead BCS, reflected questionable judgment under the circumstances and exacerbated the tensions in BCS. For security, investigative and other legitimate reasons, the University needs to retain the ability to search and review emails on its servers, just as other employers and educational institutions do. Reviewing the emails of faculty, students or staff, however, should not be done lightly and should be governed by new, more specific criteria, as we recommend below.
10. The University's Response to the Controversies in BCS and on Campus in the Aftermath of its Decision on the Sexual Harassment Complaint against Jaeger. It is clear from the documents and from our interviews with all of the key University personnel that extensive efforts were made to try to deal with the aftermath of the University's investigations, though it is equally clear that those efforts were not effective. The challenge was immense, starting with an unusual complaint, breaches of confidentiality during the investigation that threatened the integrity of the investigation, claimants who saw the facts very differently and rejected the University's investigation and process and then later took matters into their own hands, all while a preeminent department was in turmoil. We think that the University acted in good faith and appropriately under its then-current policies and that the steps it took in an effort to navigate an unusually difficult situation were reasonable. That said, there were some steps taken and missed opportunities that, in hindsight, seem to have exacerbated the situation. Missteps included promoting Jaeger before the appeals process was finished, a move that understandably angered the claimants, sharing emails with DeAngelis and perhaps Seligman's decision not to personally intervene during key moments of departmental tension (even though it appears that nothing less than Jaeger's termination or forced exit would have satisfied Aslin66Nov. 2, 2016 Letter from R. Aslin to F. Jaeger; March 11, 2016 Email from R. Aslin to J. Cantlon. or likely some of the other Complainants). Below, we address the missed opportunities.
11. Missed Opportunities. In addition to acting on the recommendations set forth in this Report, the University community should reflect on the missed opportunities that it had to act on and respond to these issues sooner. These missed opportunities included:
(a) Newport, while she was Chair of BCS, was informed in 2007-2008 by BCS administrative personnel that Jaeger, then 31 years old and a first-year BCS faculty member, and Kidd, a 24-year old first-year BCS graduate student, were living in Jaeger's home. While Newport did once speak to Jaeger, after a faculty meeting, about the inadvisability of the living arrangement, when Jaeger asked whether he should throw Kidd out, Newport evidently did not engage further. When Kidd was asked about the arrangement by BCS administrative personnel in 2007-2008, she said that she and Jaeger were adults and comfortable with the arrangement. While it does not appear that there was ever a sexual relationship between Kidd and Jaeger (both deny it), Kidd does now allege that, during this period, Jaeger engaged in various conduct that she now considers to have been unwanted and, in part, sexually harassing, causing her emotional stress and to avoid Jaeger and certain educational opportunities he offered. Newport should have interceded and directed Jaeger to end that arrangement and taken the opportunity to counsel him, a very junior faculty member at the time, more generally on how to appropriately observe and handle boundaries between faculty and students.
(b) When Bixby reported her discomfort with Jaeger to Aslin and DeAngelis in 2013, whether or not she characterized Jaeger's conduct as sexual harassment, she did report that the conduct was causing discomfort to her and other students, all of whom were women.67Letter from K. Bixby to G. DeAngelis. With better training and enhanced sensitivity, those to whom she reported her concerns might have viewed the situation as potentially involving sexual harassment or a hostile educational environment for women, and, as a result, broadened their investigation and taken different remedial action. It bears noting, however, that DeAngelis did in early 2014 counsel Jaeger on Bixby's concerns, as those concerns were then understood by DeAngelis, and Jaeger appears to have modified his behavior positively.
(c) After UR's investigations were completed and the appeals exhausted, without finding any violations of policy, but with pointed observations about inappropriate conduct, DeAngelis worked tirelessly and with commendable commitment to the welfare of BCS, its students and faculty, to require that Jaeger take responsibility and express accountability for his conduct, to include additional training on sexual harassment and workplace behavior, to hold discussions with BCS faculty and students on the issues and to make changes in BCS and University-wide policy on student-faculty relationships to enhance the protection of students. At several junctures, including when DeAngelis wanted to make a statement to faculty on the investigation and implement a stricter code of conduct, DeAngelis felt thwarted in these efforts by the OOC. While we do not find fault with the sincerity or substance of the concerns expressed to him by the OOC, it was not made sufficiently clear to DeAngelis that he could have proceeded with at least some of the measures he was considering even in light of the concerns expressed by the OOC. As a result, the situation continued to deteriorate, some remedial steps were delayed or not taken and the resulting effects of this entire matter on students and faculty of BCS were likely exacerbated.
(d) An enhancement to the UR Intimate Relationships Policy was on the Faculty Senate's agenda as early as 2010, but was not acted upon until 2014. The changes might well have resulted in Jaeger's not participating on the examination and thesis review committees of the graduate student with whom he had had a romantic relationship, five years before she came to UR. It would have been better if he had not, as Jaeger now acknowledges. There was also a delay in amending UR Policy 121 to cover relationships between supervisors and employees who are in romantic or sexual relationships. While hindsight is always a wonderful thing and an often unfair way of analyzing past actions, we do credit, as Jaeger told us, that he paid attention to what the University's policies permitted and prohibited. While that does not excuse Jaeger's inappropriate and harmful behaviors, whether or not prohibited by policy, there is nevertheless a message to be heard and remembered. Stronger policies can be helpful in combatting these issues, but they need to be promptly put into place to have any effect.
(e) We also consider it a lost opportunity that neither President Seligman nor any of the Complainants evidently notified the University's Board of Trustees of this matter, and the turmoil and dissension it was causing in BCS, prior to the Complainants going to the news media. Doing so would have given the Trustees the opportunity to intercede to try to help address the situation, which might have resulted in a quicker and more effective response by the University, with less damage to the University and its students.
This matter has fractured BCS and the University community generally. The concerns brought forward by the Complainants are serious ones going to the heart of the protection of students and the integrity and fairness of the academic environment. The University now needs to promptly take a number of bold steps, including but not limited to acting on the Recommendations in this Report, to repair the resulting wounds and distrust that have occurred.
The University must be proactive in responding, in some cases beyond what its peer institutions have done and beyond what would be necessary if this matter had never arisen and so significantly undermined trust in the UR community. Strengthening the relevant policies and procedures for addressing claims of sexual harassment by faculty members is not all that will be required. Heightened understanding of and sensitivity to the varieties of sexual harassment that may occur and the asymmetry in power between all faculty and students might have prevented or at least accelerated the detection and remediation of the problematic conduct that occurred here. In addition, some former female graduate students in BCS had to endure behaviors and inappropriate remarks that they should never have had to, at UR or at any educational institution. The University should consider, along with the other actions we are recommending and it is considering, what actions it might take to demonstrate its support for those students who had these painful experiences.
For the President and General Counsel
1. No later than three months from today, prepare and begin using, a plain English "Advice of Rights and Procedures" brochure for claimants or potential claimants, witnesses and the accused, to be provided at the outset of any investigation of a sexual harassment claim against a faculty member, or any inquiry about making such a claim, or upon first contact with a claimant, witness or any accused. This written tool should include clear information on, among other topics: how and where claims may be made; how any investigation will proceed; sources of support; the obligations of confidentiality, both during and after the investigation is concluded and a decision is rendered; and how, whether and when claimants, witnesses and the accused will be informed about the progress, conclusion and any action taken in response to a claim. In addition, a protocol and template should be developed for communicating appropriate information about the conclusion of an investigation to the complainants, the accused and all witnesses.
2. Immediately develop a list of University personnel who can serve as advisers to claimants, potential claimants or an accused in matters involving claims of sexual harassment by a faculty member. The list should reflect a diverse pool of trained advisers, including academic deans, faculty members and other officers, similar to the pool of advisers made available to those participating in investigations pursuant to the Student Sexual Misconduct Policy, which is coordinated by the University's Judicial Officer. Notify all claimants, potential claimants, staff and the faculty of the availability of such advisers, specifying the range and purpose of such service and the confidentiality accorded to the consultations. Notify the Board of Trustees when this has been done and communicated to the relevant constituencies.
3. No later than three months from today, hire two new counsel to be initially assigned to the OOC, one of whom will serve as an adviser to claimants or potential claimants on a claim of sexual harassment or sexual misconduct involving a faculty member and the other to serve as an adviser to the accused. These advisers will not serve as the lawyers for claimants or the accused, but will be able to knowledgeably advise on matters of policy, procedure, process, appellate rights and other sources of support. Neither of the new advisers will advise or represent the University on claims or litigation involving claims of sexual harassment, sexual discrimination or other kinds of employment discrimination, although they may be assigned other legal duties, including duties involving sexual harassment training. If a separate office is established to investigate claims of sexual harassment or sexual misconduct by faculty members, these advisers should be transferred to that office.
4. Within three months from today, undertake and complete a review of the current mandatory training the University provides on sexual harassment to faculty, students, staff and trainees with the objective of providing state-of-the-art mandatory training to the entire University community on at least an annual basis and when anyone first enters the University community. Provide additional resources for training to achieve this objective.
5. Within three months from today, amend UR Policy 106 to specify: (a) examples of acts that may constitute sexual harassment; (b) the range of discipline and other remedial action that may be taken when there is a violation of the policy; and (c) the range of discipline and other remedial actions that may be taken by deans and chairs of departments for problematic conduct that does not rise to the level of a violation of the policy, but nevertheless counsels some remedial steps. In addition to these amendments, the University should consider adding to UR Policy 106 a statement encouraging members of the University community who believe that anyone subject to UR Policy 106 has engaged in sexual harassment to report such conduct, similar to the language in the University's Student Sexual Misconduct Policy that encourages reporting.
6. Retain expert outside counsel to advise the President and General Counsel on developing new procedures regarding confidentiality of investigations of claims of sexual harassment or sexual misconduct by faculty members, with the objective of adopting formal procedures that more carefully and flexibly balance the requirements and needs of confidentiality and the need for and benefits of transparency. Such new procedures should be finalized and implemented within six months of today. The General Counsel should consult with the Commission on Women and Gender Equity in Academia, the Executive Committee of the Faculty Senate, the leadership of the Graduate Students' Association ("GSA") and relevant deans and department chairs before finalizing these procedures. Following the adoption of the new procedures, the General Counsel should publish them on the UR website.
7. The University should publish an annual report of the number of complaints made alleging gender-based discrimination and sexual harassment, whether made by the faculty, students or other staff, and information on how the complaints were resolved. Both Yale and Cornell may be useful resources in developing the template for this report.
8. The President and General Counsel should consult with the Executive Committee of the Faculty Senate to discuss the implementation of procedures for reviewing faculty emails on the University's servers in appropriate circumstances. The President and General Counsel shall report to the Board of Trustees by April 10, 2018 on the procedures that have been implemented. We recommend that UR's IT Policy should be amended to specify: (a) that the University respects the privacy of individuals and keeps user files and emails as private as possible; and (b) procedures for the distribution of emails by administrators authorized to access and review user emails.
9. The University should continue to provide easy online access to relevant policies, procedures and resources, including UR Policy 106, UR Policy 121 and the UR Intimate Relationships Policy. In addition to ensuring that all policies and training materials are readily available online, the University should provide online information regarding the Title IX Coordinator, any newly created office in this area, and the Intercessor. Such information should include actual names and contact information, not merely descriptions of their roles.
For the Board of Trustees, President, Provost, Executive Committee of the Faculty Senate, Leadership of GSA and the Commission on Women and Gender Equity in Academia
1. The Board of Trustees should direct the President and Provost to initiate consideration by the Faculty Senate of proposed amendments to the UR Intimate Relationships Policy so that, in addition to prohibiting faculty members from accepting academic authority over students and post-doctoral fellows with whom they have, or have had, an intimate relationship, regardless of department, to require flatly prohibiting all intimate relationships between faculty and students in the same department. The President, Provost and Faculty Senate should seek the recommendation of the Commission on Women and Gender in Academia and the GSA on such a policy and then recommend appropriate action to the Board of Trustees by April 10, 2018. As part of the process, input should be solicited from outside experts and other universities that have adopted such a policy.
2. The Board of Trustees should direct the President to consider establishing a dedicated office separate from the OOC to handle claims of sexual harassment or sexual misconduct against faculty members and instituting some or all of the procedures provided for investigating and adjudicating claims of sexual harassment or sexual misconduct by students as overseen by the Title IX Coordinator. As part of this consideration, the President and the Executive Committee of the Faculty Senate should consider establishing an appropriately comprised committee to recommend corrective action following the conclusion of every UR Policy 106 investigation of a faculty member for sexual harassment or sexual misconduct. The decision-making structures used by the University of Chicago and UR's College of Arts, Sciences & Engineering ("AS&E") for claims involving academic dishonesty may be useful resources to review. The President shall report to the Board of Trustees on the results of his consideration of this recommendation by April 10, 2018.
For the President and Board of Trustees
1. For the President, appoint a senior, cabinet-level official to oversee the implementation of these recommendations, including compliance with any deadlines, as well as other initiatives the President may develop to combat sexual harassment, misconduct, discrimination and retaliation throughout the University.
2. For the Board of Trustees, appoint a Trustee or Special Committee of the Board of Trustees to oversee the implementation of these recommendations, including compliance with any deadlines, as well as other initiatives as may be pursued by the University to combat sexual harassment, misconduct, discrimination and retaliation throughout the University.
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We recognize that the University, Board of Trustees, the Faculty Senate, students, staff, alumni and others are deeply impacted by the events we were asked to investigate. The focus now will shift to pursuing the most constructive and optimal path forward, so that the University community can heal and progress. We make no recommendations with regard to the University's response to the pending federal complaint, or as to specific personnel actions, because decisions about those matters are beyond the scope of what we were asked to examine.