II. THE FACTS
A. Jaeger's Pre-2014 Conduct
The complaints contain serious allegations about Jaeger's conduct prior to 2014. To evaluate their veracity, we spoke with 90 individuals with knowledge of Jaeger's conduct prior to 2014 and reviewed contemporaneous writings, including emails and social media posts from this period.68We interviewed Jaeger on three separate occasions, two of which occurred in person, for a total of nine hours, and through his attorney, he has responded to multiple follow-up requests. Jaeger has also provided extensive documentation to the investigation.
In addition to Jaeger, we interviewed 26 graduate students, 9 post-doctoral fellows, 10 undergraduates, 2 visiting scholars, 15 UR faculty members, 3 visiting speakers, 4 BCS employees, 4 UR administrators, 13 other colleagues and 3 other witnesses who had knowledge of Jaeger's conduct during this time period. We found that some of the complaints' allegations were true, and Jaeger's behavior and statements, at times, were viewed by many (both male and female) as insensitive, unprofessional, cruel and occasionally containing sexual innuendo, and this perception, combined with Jaeger's reputation as a womanizer, genuinely caused some female students to avoid him socially and academically. At the same time, the complaints' narrative-framed through the language of sexual predation and retaliatory animus towards women-is largely without factual basis.
Jaeger unquestionably generated strong reactions from those who knew him and worked with him before 2014. His conduct during this early period reflected poor judgment, immaturity and a naïve and stubborn belief that continuing his graduate student lifestyle, including extensive socializing with students, was permissible and posed no risks. At the same time, this earlier period was also marked by close and productive relationships with many graduate students (both male and female), academic success and recognition, as well as the end of his promiscuous habits.
1. Jaeger's Characteristics and Behavior
(a) Jaeger's Background
Jaeger started his position as a faculty member of BCS at UR in January 2007 when he was 31 years old, although already a "rock star" in his field.69Oct. 31, 2017 Interview with Colleague 5. Prior to joining UR, Jaeger was a graduate student at Stanford University and a post-doctoral fellow at UCSD. Although he had been hired to a faculty position in BCS, the first half of 2007 was intended to be an extension of Jaeger's post-doctoral year, and he did not begin teaching until fall 2007.
A number of Jaeger's characteristics distinguished him from his faculty colleagues at the start of his career. Raised in Germany by parents active in labor unions, Jaeger eschewed hierarchy, maintaining the view that he was on equal footing with both students and faculty, respect was earned (not simply conferred by holding a position of authority) and "anything could be discussed by anybody."70C. Nearpass Notes of Apr. 19, 2016 Interview with F. Jaeger; Oct. 12 Dec. 8, 2017 Interviews with F. Jaeger; Oct. 19 23, 2017 Interviews with Graduate Student 9. With a cutting and sarcastic sense of humor, Jaeger enjoyed "push[ing] people's buttons," in particular by identifying and digging into their unique vulnerabilities and by taking arguments to the extreme to get a rise out of his audience.71Oct. 16 18, 2017 Interviews with Graduate Student 19; Oct. 23, 2017 Interview with Graduate Student 21; Oct. 24, 2017 Interview with Graduate Student 10; Nov. 7, 2017 Interview with Colleague 2; Nov. 9, 2017 Interview with Colleague 3; Nov. 21, 2017 Interview with Graduate Student 21; Dec. 8, 2017 Interview with F. Jaeger. These traits are consistent with Jaeger's expectation, albeit misguided, that he need not filter himself, as others were "in charge of their own emotions" and would push back if he went too far or crossed any lines.72Oct. 27, 2017 Interview with Visiting Speaker 3; Nov. 9, 2017 Interview with Colleague 3; Nov. 21, 2017 Interview with Graduate Student 21. As a graduate student and post-doctoral fellow, Jaeger also had a reputation for being promiscuous, having open relationships with women (many of whom were other academics in his field) and acting flirtatiously, occasionally with sexual innuendo.73Oct. 31, 2017 Interview with Colleague 5; Nov. 7, 2017 Interview with Colleague 2; Nov. 17, 2017 Interview with Colleague 8; Nov. 20, 2017 Interview with Colleague 10; Nov. 21, 2017 Interview with Colleague 1. This reputation followed him from Stanford to UCSD and, ultimately, UR.
Jaeger had difficulty adjusting to his new role as a professor. In his first few years at UR, Jaeger's "work hard, play hard" approach mirrored his graduate student behavior. Although he had been warned by a Stanford colleague before coming to UR that he would need to alter his behavior when he was a faculty member,74Nov. 21, 2017 Interview with Colleague 1. he did not give up the highly social lifestyle he was used to living, which included pursuing sexual encounters with fellow academics and students. In particular, between 2007 and 2011, Jaeger had four sexual relationships with either prospective, current or former UR students.75Interviews of Witnesses. The fourth brief relationship took place in spring 2008 with an undergraduate student and has never been mentioned in any of the complaints. (Oct. 26, 2017 Interview with Undergraduate 16.) The woman, who has requested anonymity, confirmed to us that the relationship with Jaeger was brief, consensual, and did not involve any supervisory interactions. At the time, Jaeger's four relationships with students, although we believe inadvisable, did not explicitly violate any University policy, as discussed further, infra, at Section II.A.2.b.
We are also aware of two other sexual encounters between Jaeger and UR faculty, as well as other sexual encounters between Jaeger and visiting speakers (some of which occurred years prior to visits to UR for colloquia, including while Jaeger was still a graduate student or post-doctoral fellow). Although none of these sexual encounters implicates any relevant University policy, it is likely that all those that were known contributed to and perpetuated Jaeger's reputation. As a professor, Jaeger likewise did not cut back on the extremely demanding and critical character that he had always brought to both his academic pursuits and social interactions. He bristled when he was treated differently in his new role as faculty, since this clashed with his belief that hierarchy was irrelevant. A Facebook message from Jaeger to Kidd in March 2007, before Kidd had come to UR, illustrates his difficulty with adapting to his new professional role: "[Y]ou wouldn't believe how differently [I]'m suddenly being treated by most people" because of "this whole stupid professor thing."76Facebook Messages from F. Jaeger to C. Kidd, at Mar. 7, 2007 10:54 AM (attached as Exhibit 16). Exhibit 16 includes both the screenshot of the entire conversation as provided by Jaeger, as well as a transcription of the content of the messages prepared by Debevoise Plimpton for ease of reading.
(b) Academic Settings
Jaeger was unquestionably a demanding teacher and adviser, whose direct and unfiltered style of questioning permeated all of his interactions in the field, including with his students in groups, one-on-one with his colleagues or with speakers at conferences. Although some witnesses we spoke with did not mind this style, commenting that Jaeger's demanding, direct and critical way was in search of scientific excellence,77Oct. 20, 2017 Interview with Graduate Student 26; Nov. 3, 2017 Interview with Graduate Student 13; Nov. 14, 2017 Interview with Post-doctoral Fellow 5; Nov. 15, 2017 Interview with Post-doctoral Fellow 7. many others described it as insensitive, cruel, and at times, humiliating and bullying.78Oct. 16, 2017 Interview with Graduate Student 12; Oct. 17, 2017 Interview with Graduate Student 11; Oct. 20, 2017 Interview with Post-doctoral Fellow 2; Oct. 25, 2017 Interview with Graduate Student 20; Nov. 7, 2017 Interview with Graduate Student 28. To Jaeger, his style was intended to challenge students and colleagues to push them to improve.79Dec. 8, 2017 Interview with F. Jaeger. He had high expectations for his students, and when a student failed to meet these expectations, he could be, depending on one's perspective, "direct" or "harsh" in his criticism.
Several male and female graduate students and post-doctoral fellows80Oct. 12, 2017 Interview with Graduate Student 25; Oct. 13, 2017 Interview with Graduate Student 14; Oct. 16, 2017 Interview with Graduate Student 12; Oct. 17, 2017 Interview with Graduate Student 11; Oct. 19 23, 2017 Interviews with Graduate Student 9; Oct. 20, 2017 Interview with Post-doctoral Fellow 2; Oct. 25, 2017 Interview with Graduate Student 20; Oct. 26, 2017 Interview with Graduate Student 24; Nov. 1, 2017 Interview with Graduate Student 1; Nov. 3, 2017 Interview with Graduate Student 13; Nov. 7, 2017 Interview with Colleague 2; Nov. 14, 2017 Statement from Graduate Student 8; Nov. 16, 2017 Interview with Post-doctoral Fellow 3; Nov. 7, 2017 Interview with Graduate Student 28; Dec. 20, 2017 Interview with Post-doctoral Fellow 12. described Jaeger as "mean,"81Oct. 20, 2017 Interview with Post-doctoral Fellow 2. "overly critical,"82Id. "pretty scathing,"83Oct. 25, 2017 Interview with Graduate Student 20. "cruel,"84Oct. 16, 2017 Interview with Graduate Student 12. and a "bully,"85Dec. 20, 2017 Interview with Post-doctoral Fellow 12. and reported that his particular style of criticism tended to recast their understandable mistakes as personal failings.86Oct. 20, 2017 Interview with Graduate Student 7. Some of Jaeger's harsh comments were made in front of other students, causing the targeted student to feel additionally "humiliated."87Oct. 17, 2017 Interview with Graduate Student 11 Even those students who did not personally feel attacked by Jaeger acknowledged that some of their classmates "suffered" under Jaeger's style of supervision.88Oct. 19 23, 2017 Interviews with Graduate Student 9. His "demeaning" language and harsh criticism led some students of both genders to stop attending Jaeger's lab meetings, switch advisers, or choose not to pursue language as a field of research altogether.89Oct. 13, 2017 Interview with Graduate Student 14; Oct. 25, 2017 Interview with Graduate Student 4; Nov. 1, 2017 Interview with Graduate Student 1; Nov. 7, 2017 Interview with Graduate Student 28; Nov. 2, 2017 Interview with Graduate Student 2.
That said, other students thrived in this challenging and competitive environment.90Since its inception in 2007, Jaeger's lab, as reported on his website, has included a total of 17 male graduate and post-doctoral fellows and 10 female graduate and post-doctoral fellows. We interviewed 12 of the 17 male graduate students and post-doctoral fellows and 9 of the 10 female graduate students and post-doctoral fellows. Three former students (two male graduate students and one female post-doctoral fellow) refused our interview requests, and three former students (one male graduate student and two male post-doctoral fellows) did not respond to our interview requests. These students generally viewed Jaeger as a supportive mentor who was generous with his time and advice, which helped them to succeed in the field. When the talk and criticism about Jaeger persisted after the investigation and appeals were conducted, 18 former students from Jaeger's lab sent a supportive, but balanced, letter to Dean Culver on March 13, 2017, describing their experiences with Jaeger.91Mar. 13, 2017 Letter from 18 former students in F. Jaeger's lab to G. Culver. As the students recounted, Jaeger tended to value "honesty over diplomacy," and some of his criticism was incorrect or aimed at undermining students personally.92Id. Nevertheless, on balance, the letter concludes strongly that Jaeger "made a lasting impression on all of us through his generosity as a mentor," noting that everyone could recall numerous occasions when Jaeger "met with us for hours (causing all parties involved to miss other meetings or dinner appointments), returned 40-page manuscripts with incredibly detailed edits, questions and suggestions in under 24 hours or promoted our work in conference presentations when professional etiquette did not require him to do so."93Id.
The EEOC Complaint includes other allegations against Jaeger that are non-sexual, including that Jaeger took credit for students' work.94EEOC Compl. ¶ 63. Four witnesses echoed this concern about credit,95Oct. 31, 2017 Interview with Colleague 5; Nov. 3, 2017 Interview with Graduate Student 13; Nov. 14, 2017 Interview with Post-doctoral Fellow 5; Nov. 21, 2017 Interview with Colleague 1. although Jaeger's students with this view ultimately successfully resolved their concerns by talking to Jaeger directly to achieve their desired credit.96Nov. 3, 2017 Interview with Graduate Student 13; Nov. 14, 2017 Interview with Post-doctoral Fellow 5.
Although not cited in the complaints, we learned during the course of our investigation that both Kidd and Piantadosi apparently experienced issues with Jaeger's credit allocation. Three students told us that Kidd had warned them (one in 2008, and the other two around 2012 or 2013) against working with Jaeger because he was "too grabby about credit." (Oct. 19 23, 2017 Interviews with Graduate Student 9; Oct. 20, 2017 Interview with Post-doctoral Fellow 2; Nov. 14, 2017 Interview with Post-doctoral Fellow 5.) Of Kidd and Jaeger's three joint presentations in 2008, Jaeger is listed ahead of Kidd in one of the three and last on the other two presentations. (F. Jaeger C.V. (updated June 2017).)
For Piantadosi, Jaeger reviewed a paper written by Piantadosi and his adviser at MIT (who had previously advised Jaeger) that Jaeger believed failed to properly acknowledge similar previous work (including his own). Based on documents we have reviewed, Piantadosi and Jaeger disagreed on the significance of Jaeger's contribution and the extent to which he deserved to be cited and credited. (Nov. 2012 Emails between F. Jaeger and S. Piantadosi.) Jaeger told us that, while he may have been more concerned about credit allocation at the beginning of his career, he appropriately credits students whenever possible for their contributions in papers or presentations. (Dec. 8, 2017 Interview with F. Jaeger.)
We reviewed slide decks from presentations confirming that students' work is acknowledged upfront and clearly labeled throughout the deck. Per Jaeger's CV, he is listed as the first author in only two of the first ten journal papers or chapters with his advisees from before 2014. (F. Jaeger C.V. (Updated June 2017).) While Jaeger's requests for credit were apparently problematic for two colleagues, we understand that credit allocation is a common topic in academic circles. Although much of the "credit hogging" allegations have not been included in the federal complaint, the specific instance that appears in both complaints is false.97Whereas the complaints allege that Jaeger demanded sole credit for research that had been granted a joint award, (EEOC Compl. ¶ 60; Fed. Compl. ¶ 100), the opposite is true. When Jaeger initially received the award alone (not with his student collaborator), Jaeger called the awarding committee to request that his student share the award, including the associated prize money. (Exhibit 10; Dec. 8, 2017 Email from Post-doctoral Fellow 8 to Debevoise Plimpton LLP.)
(c) Social Settings
During these early years, Jaeger's behavior remained largely unchanged from when he was in graduate school. He was not, in other words, someone who suddenly had power and started to use it in order to gain sexual access.98While it certainly does not excuse Jaeger's conduct during this time period, Jaeger seemingly rejected, as a matter of principle, the notion of an asymmetry of power existing between faculty and students. With the benefit of hindsight, Jaeger realized that others see this hierarchy "even if [he] [doesn't] want [it] to be there," characterized some of his conduct in this period as "definitely not appropriate" and acknowledged that his position as faculty may have affected whether students felt comfortable addressing concerns with him directly. (C. Nearpass Notes of Apr. 19, 2016 Interview with F. Jaeger; Oct. 12, 2017 Interview with F. Jaeger.) Rather, Jaeger largely continued the same lifestyle from his graduate student and post-doctoral fellow years. He frequently hosted gatherings at his home and attended social events with students, who, like Jaeger, were largely single and close in age to Jaeger.99For example, when Kidd started at UR in fall 2007, she was 24 and Jaeger was 31. The next youngest faculty member was over 40 and married. Social events included graduate student parties and local bar nights-all of which was well known to at least some BCS faculty.100Nov. 1, 2017 Interview with Faculty 2. In fact, a faculty member told us that that when Cantlon started at UR in July 2009, she would also frequently socialize with students. Id. These events tended to involve social drinking (not binge drinking)101Oct. 20, 2017 Interview with Post-doctoral Fellow 2; Oct. 20, 2017 Interview with Graduate Student 26. and occasionally marijuana, which Jaeger sometimes provided.102Oct. 20, 2017 Interview with Post-doctoral Fellow 2; Oct. 20, 2017 Interview with Graduate Student 26; Oct. 24, 2017 Interview with Graduate Student 10; Nov. 8, 2017 Interview with Undergraduate 5; Nov. 13 & Dec. 6, 2017 Interviews with Post-doctoral Fellow 1.
We have also heard from multiple witnesses that Jaeger is not unique among faculty in using marijuana with his students. (Oct. 9, 2017 G. DeAngelis Notes on EEOC Complaint; Nov. 28, 2017 Interview with Graduate Student 30.) While some of the other BCS professors certainly attended some graduate student parties, including the Friday happy hours at a "dive" bar called Lux,103Oct. 17, 2017 Interview with Faculty 19; Oct. 20, 2017 Interview with Graduate Student 26; Nov. 15, 2017 Interview with Post-doctoral Fellow 7. or hosted events with students in their homes,104Oct. 26, 2017 Interview with Colleague 14; Nov. 2, 2017 Interview with Graduate Student 2. the frequency with which Jaeger socialized with students unquestionably blurred the lines between his professional and social spheres.105The federal complaint contains a new allegation that a BCS professor (who was later fired for sexual harassment) tried to kiss an undergraduate during a party at Jaeger's home, and Jaeger-despite witnessing this attempt-did nothing. The undergraduate did not report the incident because Jaeger's students convinced her that Jaeger would get in trouble if she did so for having an undergraduate at a party at his home. (Fed. Compl. ¶ 125.)
This undergraduate's and Jaeger's memories differ slightly, although both recall Jaeger walking into the room at the very end of the incident, and Jaeger remembers that another faculty member intervened to take the offending BCS professor out of the party as Jaeger was entering the room. (Oct. 25, 2017 Interview with Undergraduate 8; Dec. 8, 2017 Interview with F. Jaeger.) Both agree that Jaeger did not tell the undergraduate not to report the incident. (Oct. 25, 2017 Interview with Undergraduate 8; Dec. 8, 2017 Interview with F. Jaeger.) Rather, the undergraduate told us that she agreed with a graduate student friend's view that the incident might reflect badly on Jaeger, who was not yet tenured, which caused her to refrain from reporting the incident to the University. (Oct. 25, 2017 Interview with Undergraduate 8.)
The complaints' allegations about Jaeger's lab's offsite retreats, held at the end of most academic years from 2009 to 2015, sensationalize these blurred lines and the behavior that transpired at them.106EEOC Compl. ¶ 51; Fed. Compl. ¶ 91. The retreats, which were typically organized by Jaeger's graduate students, involved renting a house outside of Rochester at the end of the school year for a few days. By contrast to the complaints' allegations, attendance was not mandatory for anyone, and no one from Jaeger's lab was excluded from these retreats.107Oct. 17, 2017 Interview with Graduate Student 11; Oct. 20, 2017 Interview with Graduate Student 26; Oct. 24, 2017 Interview with Graduate Student 10; Nov. 1, 2017 Interview with Faculty 8; Nov. 1, 2017 Interview with Graduate Student 1; Nov. 7, 2017 Interview with Graduate Student 28; Nov. 13, 2017 Interview with Visiting Scholar 2.
We note that none of the Complainants ever attended Jaeger's lab retreats. Characterized by some students as akin to "work camps,"108Oct. 20, 2017 Interview with Graduate Student 26; Oct. 24, 2017 Interview with Graduate Student 10. attendees generally spent the days working on research or partaking in outdoor activities and socialized together at night over big group dinners, usually involving drinking, and occasionally, the use of drugs and soaking in hot tubs.109Oct. 8, 2017 Interview with Visiting Speaker 1; Oct. 19 & 23, 2017 Interviews with Graduate Student 9; Oct. 24, 2017 Interview with Graduate Student 10; Nov. 14, 2017 Interview with Post-doctoral Fellow 5. The EEOC Complaint alleges that, at one retreat, an attendee "took an overdose,"110EEOC Compl. ¶ 51. which substantially embellishes what occurred that evening. This attendee reported to us that she had not felt well that entire day, had stayed inside while others went on an outing, and she had fainted after eating a few pieces of brownie containing marijuana provided by another student.111Interview with Witness. This "overdose" allegation was changed in the federal complaint to allege that this attendee was taken to the hospital after ingesting brownies made with marijuana, which is true in the most literal sense. (Compare EEOC Compl. ¶ 51, with Fed. Compl. ¶ 91.) We obtained the medical records for this attendee's hospital visit. She was not admitted overnight, her diagnosis was vasovagal syncope, and she left the hospital after approximately three hours.
(d) Sexual Remarks
Jaeger not only blurred lines by regularly socializing with students, but his sense of humor included flippant remarks that sometimes contained sexual innuendo. As an example, one student recalled that when she was stressed, Jaeger would joke that he should talk to her husband about how to relax her.112Oct. 16, 2017 Interview with Graduate Student 12. Some of Jaeger's comments were made to or solicited by people who regularly engaged in sexual banter with him. Five former students from Jaeger's lab, two of whom are women, told us about specific sexual banter they participated in or overheard both in and outside of the lab.113May 2009 Emails Regarding Graduate Student 11's Anatomy; Oct. 19 & 23, 2017 Interviews with Graduate Student 9; Oct. 24, 2017 Interview with Graduate Student 10; Nov. 7, 2017 Interview with Graduate Student 28; Nov. 21, 2017 Interview with Graduate Student 21. The women actively participated while never feeling "demeaned" by or "uncomfortable" with Jaeger's sexual comments and felt that while others might perceive these exchanges with Jaeger as inappropriate when taken out of context, in the context in which they were made, these particular women were not offended.114Oct. 19 & 23, 2017 Interviews with Graduate Student 9; Oct. 24, 2017 Interview with Graduate Student 10. By contrast, one of Jaeger's former male students (who was dating a past sexual partner of Jaeger's) was offended when he jokingly asked how to-in an academic context-please Jaeger, to which Jaeger replied, "Why don't you ask your girlfriend?"115Oct. 17, 2017 Interview with Graduate Student 11. This particular example is noteworthy, not only because the remark was made to a man, who was not amused, but also because it demonstrates how Jaeger, although not starting the exchange, enjoyed pushing dialogue in ways that could and would cross lines for others.
Some who were the subject of and/or heard these comments were uncomfortable, and Jaeger's off-color comments, mostly but not exclusively in social settings, played a part in some female students' decisions to avoid him.116See infra, at Section II.A.1.e. With respect to the allegations that Jaeger sent unwanted photographs of his penis (EEOC Compl. ¶¶ 17, 83, 158; Fed Compl. ¶¶ 121, 217, 220) or a pornographic image (Fed. Compl. ¶ 126), to protect the privacy of the women involved, we will not share unnecessary, extraneous details. Jaeger told us that he recalled sending these types of photos on one or two occasions, but he did not recall sending either of the photos alleged in the complaints. (Oct. 12 & Dec. 8, 2017 Interviews with F. Jaeger.) We credit that Jaeger sent two racy pictures to women he was dating, one of which included his penis, at times when these relationships were tumultuous. These two photos were the only sexually explicit pictures that these women received from Jaeger, and both women said that they did not typically exchange explicit photographs with Jaeger. One of the women characterized the photo she received as an attempt by Jaeger to get her attention, which initially angered her, while the other was uncomfortable with the picture and believed it was meant "to taunt her," although she did consensually resume her sexual relationship with Jaeger for a period after the picture was sent. (Interviews of Witnesses.) For example, a former female BCS graduate student who was not in Jaeger's lab cited an instance when she thought Jaeger made "a pass" at her while they were with a group of students and faculty at Lux in 2007.117Oct. 13, 2017 Interview with Graduate Student 14. She said she could not recall what he said, but confirmed that he did not touch her.118Id. She also observed Jaeger flirting with other women and received a party invitation from him stating, "bring your loved ones, people you wanna make love to (I am not making any assumptions here), etc."119Id.; Dec. 10, 2009 Email from F. Jaeger to HLP Lab (attached as Exhibit 17.) Another student who was not in Jaeger's lab told us that Jaeger would often stand close to her, and in 2007 or 2008, Jaeger touched her arm outside of Meliora Hall and said that "all people are ultimately selfish and people who aren't are kidding themselves . . . everybody should be a hedonist."120Nov. 6, 2017 Interview with Graduate Student 17. Referring to a visiting speaker, another student not in Jaeger's lab heard him predict that the visitor would be a "great lay."121Nov. 10, 2017 Interview with Graduate Student 29. At a 2008 holiday party, Jaeger told a group of students and faculty that a male professor found a female graduate student attractive, and the female student, who was present for this comment, described this incident as "super mortifying" and deeply upsetting that she had been talked about in such sexual terms in front of professional colleagues.122Oct. 17, 2017 Interview with Graduate Student 11; Oct. 25, 2017 Interview with Graduate Student 4. Graduate Student 4 also told us about additional sexual or off-color remarks that Jaeger directed at her, including (1) on January 28, 2009, Graduate Student 4 asked to be added to the attendance list for a workshop, which Jaeger had said was full, Jaeger responded "are you putting on that man-melting face again?!? [I]t's a weapon. [I] have to run . . . . escape from her grasp ;)," (Jan. 28, 2009 Email from F. Jaeger to Graduate Student 4); (2) on February 20, 2009, Jaeger sent Graduate Student 4 an instant message in the middle of the night stating, "you're a different kind of box yourself[.] [W]ait, that sounded different than I meant it," (Feb. 20, 2009 Chat from F. Jaeger to Graduate Student 4); (3) during the 2009 Linguistic Society of America Institute, Jaeger leered at Graduate Student 4 and remarked "nice shorts," (Nov. 20, 2017 Email from Graduate Student 4 to Debevoise & Plimpton LLP); (4) at the same conference, Graduate Student 4 shared a house with Jaeger and heard him having "loud sex," (Oct. 25, 2017 Interview with Graduate Student 4); (5) Jaeger leered at Graduate Student 4 and mocked her clothing in a BCS classroom in front of several people, (Nov. 20, 2017 Email from Graduate Student 4 to Debevoise & Plimpton LLP); and (6) Jaeger teased her in front of at least one professor, mimicking her in an exaggerated way, (id.). We credit that such remarks were made by Jaeger and agree that they were inappropriate and affected the students involved.123Not to minimize or excuse these comments, but to put them in context and be fair, two witnesses who attended gatherings with Jaeger where graduate students were not present told us that other people in attendance, including one of the claimants, would also comment on the appearance of students. (Oct. 31, 2017 Interview with Faculty 15; Nov. 13 & Dec. 6, 2017 Interviews with Post-doctoral Fellow 1.)
We also note that some inappropriate remarks alleged in the complaints were made only in the presence of faculty. (See, e.g., EEOC Compl. ¶ 76; Fed. Compl. ¶ 114.) Indeed, when Nearpass interviewed Cantlon in 2016 about her complaint, Cantlon confirmed that Jaeger's only sexual comments of which she had first-hand knowledge were made at faculty functions where no students were present; sources for the other comments she cited in her complaint were either "what Celeste Kidd said to [Cantlon]" or "grumblings/innuendo from other graduate students over the years." (Apr. 7, 2016 Email from J. Cantlon to C. Nearpass.)
(e) Effect of Jaeger's Conduct
During this early time period, the complaints allege that sixteen women avoided Jaeger either socially or academically or both.124Primarily employing pseudonyms, the EEOC Complaint lists eleven current or former students, two of whom were undergraduates, who avoided Jaeger. (EEOC Compl. ¶ 94.) The federal complaint adds an additional five former students to this list. (Fed. Compl. ¶¶ 133-52.)
We confirmed the identities of ten of these former graduate students-nine from the EEOC Complaint and one from the federal complaint. We spoke to six of the ten former graduate students whose identities we substantiated, (Oct. 13, 2017 Interview with Graduate Student 14; Oct. 16, 2017 Interview with Graduate Student 12; Oct. 25, 2017 Interview with Graduate Student 4; Nov. 3, 2017 Interview with Graduate Student 15; Nov. 10, 2017 Interview with Graduate Student 29; Nov. 6, 2017 Interview with Graduate Student 17), and we reviewed Nearpass' interview notes, which in most cases had been reviewed and adopted by the interviewee, for the four remaining women whom we could not interview, (C. Nearpass Notes of Mar. 18, 2016 Interview with C. Kidd; C. Nearpass Notes of Mar. 24, 2016 Interview with K. Bixby; C. Nearpass Notes of Apr. 12, 2016 Interview with Post-doctoral Fellow 14; C. Nearpass Notes of April 25, 2016 Interview with Post-doctoral Fellow 13). We were not able to interview either of the undergraduates, and note that one undergraduate's identity remains unknown to us.
Four other women whom we had contact with (either through an interview or written statement) told us that they avoided Jaeger. As we were unable to identify four of the five women added in the federal complaint, there may be overlap between the additional four women we spoke with and those listed in the federal complaint under pseudonyms. (Nov. 1, 2017 Interview with Graduate Student 1; Nov. 2, 2017 Interview with Graduate Student 2; Nov. 14, 2017 Statement from Graduate Student 8; Nov. 16, 2017 Interview with Post-doctoral Fellow 3.) Avoiding Jaeger took a variety of forms-at one extreme, being one of two students (one female/one male) to leave Jaeger's lab125Although Jaeger was not her formal adviser, a female student came to UR to work with Jaeger and another professor, and decided to stop working with Jaeger and rely only on her other adviser because she was uncomfortable with Jaeger's unprofessional behavior. The other, who was male, was advised only by Jaeger and switched advisers for academic reasons when he had a change in his research interests (although we note that this student considered Jaeger to be an adviser who was "demanding"-and not in a "good way.") (Interviews of Witnesses.) (that we know of) to, at the other end, deliberately skipping or leaving social events where Jaeger would be in attendance.126Oct. 13, 2017 Interview with Graduate Student 14; Nov. 1, 2017 Interview with Graduate Student 1; Nov. 2, 2017 Interview with Graduate Student 2; Nov. 3, 2017 Interview with Graduate Student 15; Nov. 6, 2017 Interview with Graduate Student 17; Nov. 14, 2017 Statement from Graduate Student 8. While we credit that the ten women whom we had contact with all reported avoiding Jaeger, we also saw evidence suggesting at least one of these women occasionally sought him out during this time, which renders it difficult to evaluate the extent to which these women consistently avoided Jaeger. A former student, who was already at UR when Jaeger started in 2007, told us that she avoided Jaeger more and more over time and became increasingly intolerant of his behavior, which is at odds with an email she sent to Jaeger in March 2009 (over two years after he started at UR) asking if she could visit his home to do her laundry, offering to cook dinner for him while at his home and suggesting a bowling outing for later that night.127Mar. 3, 2009 Emails between Graduate Student 17 and F. Jaeger. Overall, we credit that each woman had a highly personal reaction to Jaeger's behavior and conduct, which included avoiding him to some extent.
Although we cannot quantify the precise effect, avoiding Jaeger in an academic context caused some of these female students to miss out on certain educational opportunities-namely, learning the computational methods that were Jaeger's expertise through forgoing certain classes, lectures or research opportunities.128Oct. 13, 2017 Interview with Graduate Student 14; Oct. 25, 2017 Interview with Graduate Student 4; Nov. 1, 2017 Interview with Graduate Student 1; Nov. 3, 2017 Interview with Graduate Student 15; Nov. 6, 2017 Interview with Graduate Student 17; Nov. 10, 2017 Interview with Graduate Student 29. The magnitude of the impact varied from student to student. For example, Graduate Student 14 thought that Jaeger's students who had gained expertise in data analytics earned twice as much money as she does, though she acknowledges that she made other career choices that also had an impact;129Oct. 13, 2017 Interview with Graduate Student 14. Graduate Student 15 avoided working with Jaeger on one analysis for her dissertation but was able to get the help, though not "as thorough," elsewhere;130Nov. 3, 2017 Interview with Graduate Student 15. We note that Graduate Student 15's case is somewhat different than the others in that she began to avoid Jaeger only after their break-up as a result of a difficult end to their relationship. and Graduate Student 4 considered it "hard to know" the practical impact of missing academic opportunities, guessing that her research could have been altered or she might have pursued a different type of post-doctoral fellowship had she continued to work with Jaeger.131Oct. 25, 2017 Interview with Graduate Student 4.
Jaeger had a sense that some students (both male and female) avoided him, which he attributed to natural personality clashes between professors and students in close working relationships.132Dec, 8, 2017 Interview with F. Jaeger. From the perspective of these female students, however, it is difficult to disentangle which elements of Jaeger's personality and conduct caused them to feel uncomfortable around Jaeger and, as a result, to avoid him. A combination of Jaeger's harsh and demeaning language, flirtatious behavior, use of sexual innuendo, promiscuous reputation, open relationships with students and blurring of social and professional lines all contributed to some extent, but we cannot unravel the degree to which women avoided Jaeger because of the sexual elements in his conduct, as opposed to other simply offensive or unappealing aspects of his personality. The ten women we heard from consistently cited both sexual and non-sexual behavior as reasons they avoided Jaeger, as did the four women Nearpass interviewed.133C. Nearpass Notes of Mar. 18, 2016 Interview with C. Kidd; C. Nearpass Notes of Mar. 24, 2016 Interview with K. Bixby; C. Nearpass Notes of Apr. 12, 2016 Interview with Post-doctoral Fellow 14; C. Nearpass Notes of Apr. 25, 2016 Interview with Post-doctoral Fellow 13; Oct. 13, 2017 Interview with Graduate Student 14; Oct. 16, 2017 Interview with Graduate Student 12; Oct. 25, 2017 Interview with Graduate Student 4; Nov. 1, 2017 Interview with Graduate Student 1; Nov. 2, 2017 Interview with Graduate Student 2; Nov. 3, 2017 Interview with Graduate Student 15; Nov. 6, 2017 Interview with Graduate Student 17; Nov. 10, 2017 Interview with Graduate Student 29; Nov. 14, 2017 Statement from Graduate Student 8; Nov. 16, 2017 Interview with Post-doctoral Fellow 3. As just one example, Graduate Student 12 told us that Jaeger constantly bothered her and other students in their office and stole snacks, but she also described his banter with her and other students as "flirtatious" and recounted off-color comments she heard Jaeger make about women, such as, "She has a nice pair of assets."134Oct. 16, 2017 Interview with Graduate Student 12. Ten women also cited mere knowledge of Jaeger's promiscuous reputation or sexual relationships as at least one source of their discomfort.135C. Nearpass Notes of Mar. 18, 2016 with C. Kidd; C. Nearpass Notes of Mar. 24, 2016 Interview with K. Bixby; C. Nearpass Notes of Apr. 12, 2016 Interview with Post-doctoral Fellow 14; Oct. 16, 2017 Interview with Graduate Student 12; Oct. 25, 2017 Interview with Graduate Student 4; Nov. 1, 2017 Interview with Graduate Student 1; Nov. 6, 2017 Interview with Graduate Student 17; Nov. 10, 2017 Interview with Graduate Student 29; Nov. 16, 2017 Interview with Post-Doctoral Fellow 3; Statement from Graduate Student 8. Indeed, his reputation alone appears to have colored even relatively benign interactions with several women in a negative way. One former student reported, for example, that Jaeger's compliment on her haircut felt different and "dirty" coming from him because of his reputation, as opposed to similar compliments she received from other male faculty members.136Nov. 10, 2017 Interview with Graduate Student 29.
(f) Bixby's 2013 Complaint
That some of Jaeger's conduct was seen by female students as offensive and peculiar-but not sexual in nature-carried through to the written complaint Bixby submitted to DeAngelis in November 2013 (the "2013 Complaint"), which was the first formal complaint to an administrator regarding Jaeger's behavior.137Letter from K. Bixby to G. DeAngelis (attached as Exhibit 18.) The 2013 Complaint cites two specific incidents between Bixby and Jaeger that caused Bixby to feel "uncomfortable" and not "safe" around Jaeger: (1) Jaeger took a photo of Bixby without her permission in 2013; and (2) a few years earlier, Jaeger walked into Bixby's office without asking, picked up some post-its and a pen, and stood behind her without saying anything for an extended period of time, during which Bixby "assumed he was writing a note for his door."138Id. A male BCS student told us that Jaeger once loomed behind him and that it was "awkward" but not "threatening" or "anything about gender." (Nov. 30, 2017 Interview with Post-doctoral Fellow 6.) Bixby called Jaeger's actions not "anything huge" or "ridiculously unacceptable," but rather "just unprofessional."139Exhibit 18. In her written complaint to DeAngelis, however, she referenced "harassing" behavior and noted that there were nine other women who had such experiences. In a contemporaneous email to another female graduate student, Bixby wrote that Jaeger's "unprofessional" behavior made her "uncomfortable" but "was not at the level of sexual harassment"-a sentiment the other female student corroborated.140Nov. 20, 2013 Email from K. Bixby to Graduate Student 14 (attached as Exhibit 19.) Graduate Student 14, who is among the ten women we interviewed who avoided Jaeger, responded that she also had not "had an experience that would qualify as sexual harassment," but agreed that Jaeger's behavior was "definitely over the line and unprofessional." (Id.) And in a contemporaneous email to a BCS faculty member, Bixby explained how "microaggressions" might be a "useful concept" to describe Jaeger's behavior, but then notes that "for me it seems to feel different. Like micro aggressions would be 'this person is hurtful' versus someone pushing boundaries is 'this person is viscerally unsafe.'"141Nov. 21, 2013 Email from K. Bixby to Faculty 17 (attached as Exhibit 20.) The faculty member responded that it is "the 'micro' that is relevant. I wonder if people have studied this [with regard to] sexual harassment."142Id. Bixby did not respond to this email.
Other female students similarly confirmed to DeAngelis at the time that Jaeger's conduct was unprofessional and inappropriate, but not sexual. When Bixby suggested that DeAngelis speak to other female students about Jaeger's "harassment," she noted that one student whom she suggested "didn't feel harassed, and ended up having a productive working relationship with [Jaeger]" and another was willing to talk about her "bad-but-not-sexual-harassment experiences" with Jaeger.143Nov. 20-21, 2013 Emails from K. Bixby to G. DeAngelis (attached as Exhibit 21.) DeAngelis spoke to the two female students recommended by Bixby who were still at UR, including Post-doctoral Fellow 13, who reported being uncomfortable when Jaeger insisted she meet him at his house, despite her suggestion to meet at a coffee shop instead (although nothing inappropriate occurred),144DeAngelis Notes from meeting with Post-doctoral Fellow 13. Post-doctoral Fellow 13 confirmed to DeAngelis that nothing inappropriate or sexual occurred during her meeting at Jaeger's home, although she was uncomfortable for the entire time, a statement that she repeated to Nearpass in 2016. (Nearpass Interview Notes of Apr. 25, 2016 Interview with Post-doctoral Fellow 13; DeAngelis Notes from meeting with Post-doctoral Fellow 13.) and relayed that Jaeger had berated her and made insulting comments, after which she told him she would not work with him anymore.145DeAngelis Notes from meeting with Post-doctoral Fellow 13. Kidd, according to DeAngelis' notes, told him that Jaeger frequently crossed personal/professional boundaries, including by asking personal questions via Facebook, attending graduate school events and unexpectedly dropping by the house shared by his teaching assistants.146G. DeAngelis Notes from meeting with C. Kidd. We are aware that Jaeger spent time at the house shared by his two teaching assistants (and others). One student who lived in this house told us that Jaeger would come to their house at night to smoke cigarettes and discuss research with her roommates. (Oct. 25, 2017 Interview with Graduate Student 4.) Kidd also told DeAngelis at this meeting that Jaeger had had relationships with two graduate students.147G. DeAngelis Notes from meeting with C. Kidd. See infra, at Section II.A.3, for additional discussion about Kidd's statements to DeAngelis in 2013 and to Nearpass in 2016.
According to DeAngelis, he did not raise the 2013 Complaint with the OOC or Title IX Coordinator because he did not understand the conduct to be sexual. He said that it is his best recollection that he asked Bixby expressly whether the conduct was sexual, and she said that it was not.148Oct. 12, 2017 & Jan. 10, 2018 Interviews with G. DeAngelis. He determined, based on his conversation with Bixby, as well as with Kidd and Post-doctoral Fellow 13, that no operative University policies were violated.149Oct. 12, 2017 Interview with G. DeAngelis. DeAngelis did, however, counsel Jaeger about the substance of the allegations (as he understood them at the time).150Mar. 7, 2014 Emails between G. DeAngelis and F. Jaeger (attached as Exhibit 22); Mar. 11, 2014 Email from G. DeAngelis to K. Bixby (attached as Exhibit 23); Oct. 12, 2017 Interview with G. DeAngelis.
In March 2014, DeAngelis sent an email to Bixby to inform her that "[t]here were consistent patterns of behavior in the stories" he heard from Bixby, Kidd and Post-doctoral Fellow 13, and he concluded that Jaeger had shown "undesirable behavior," but "none of the stories that [he] was told were in violation of the university's policy on harassment."151Exhibit 23. DeAngelis further told Bixby that he had spoken to Jaeger about "personal/professional boundaries, how an adviser has to be careful about power relationships when trying to be social with students, etc."152Id. He believed Jaeger would "go forward with a heightened sensitivity to such things," and DeAngelis "would give [Jaeger] more feedback in the future if [he] heard anything more about these issues."153Id. He encouraged Bixby to "let [DeAngelis] know if problems persist."154Id. Bixby responded thanking DeAngelis for looking into her complaint and for working to maintain confidentiality.155Id. Bixby did not make any additional complaints to DeAngelis about Jaeger, and Bixby told Nearpass in her March 24, 2016 interview that DeAngelis "took her complaint seriously."156C. Nearpass Notes of Mar. 24, 2016 Interview with K. Bixby. As documented in Nearpass' interview notes that Bixby reviewed and edited, Bixby said that DeAngelis "didn't take" her 2013 Complaint as a sexual harassment complaint and that she "didn't intend hers as one."157Id.
Jaeger was bothered by the complaint, particularly as it clashed with his expectation- which we see as naïve-that people, including his students, would approach him directly to discuss any concerns. In an email to DeAngelis, Jaeger expressed frustration that DeAngelis could not give him more details on which of his behaviors made students uncomfortable, asking whether there was "any claim of anything more severe."158Exhibit 22. DeAngelis told him there was not.159Id. Jaeger then asked whether he should not hold meetings off campus and cease any social activity, including lab dinners and retreats, with students.160Id. DeAngelis said no, but advised Jaeger to "be sensitive to these sorts of issues regarding personal/professional boundaries going forward."161Id. In DeAngelis' view, events like lab dinners and retreats could be very valuable to students, and Jaeger's proposed behavioral changes would not have addressed the conduct at issue in the 2013 Complaint, the gravamen of which related to Jaeger's inattention to customary professional boundaries.162Dec. 29, 2017 Email from G. DeAngelis to Debevoise & Plimpton LLP.
DeAngelis' resolution of the 2013 Complaint was in substantial compliance with UR Policy 106. The policy authorized department chairs to use their discretion and pursue an informal resolution of the complaint without resort to the submission of a formal complaint with OOC or the Human Resources Department ("HR").163University of Rochester, Policy 106 (revised Jan. 2013). DeAngelis reviewed this January 2013 version of Policy 106 when Bixby came to him in November 2013 with her complaint. At that time, the policy provided for informal resolution of complaints, with no reporting requirement. That changed in December 2013, after which even informal complaints needed to be reported to the Equal Opportunity Compliance Director. The complaint pre-dated the change in policy, but DeAngelis was not aware of the change when he completed the informal resolution-by reporting back to Bixby-in March 2014. DeAngelis contacted two of the potential witnesses recommended by Bixby and, concluding that Jaeger's behavior did not implicate UR Policy 106, determined that an informal resolution was the appropriate way to handle the complaint, a judgment to which Bixby did not object.164Exhibit 23; G. DeAngelis Notes from Meetings with C. Kidd and Post-doctoral Fellow 13. With the benefit of hindsight, DeAngelis acknowledges that it would have been a better exercise of his discretion had he notified the Title IX Coordinator or someone else,165Oct. 12, 2017 Interview with G. DeAngelis. which he did not do after concluding that the 2013 Complaint did not involve sexual harassment.166Id.
Regardless of Bixby's characterization of her complaint, we note that Bixby's discomfort with Jaeger was a missed opportunity for the University to intervene more aggressively earlier in a situation that potentially involved sexual harassment or a hostile work environment directed at women.167It is noteworthy that when DeAngelis attended a training for department chairs sometime later in 2014, the training led him to question whether he had handled the Bixby complaint appropriately. (Oct. 12, 2017 Interview with G. DeAngelis.) In her written complaint to DeAngelis, Bixby also named other faculty members to whom she had previously expressed her discomfort about Jaeger-including to Aslin six months prior. According to DeAngelis, Aslin never raised Bixby's concerns about Jaeger with him,168Id. nor did Aslin (as far as we are aware) raise Bixby's concerns with anyone else or confront Jaeger.
2. Misstatements and Exaggerations about Jaeger's Characteristics and Behavior
The complaints focus on power dynamics, painting Jaeger as a "sexual predator"169EEOC Compl. ¶¶ 17, 32; Fed. Compl. ¶ 41. who preyed on female students and colleagues-all the while "gaslight[ing]"170EEOC Compl. ¶ 62; Fed. Compl. ¶ 102. and "control[ing]"171EEOC Compl. ¶ 61; Fed. Compl. ¶ 101. his students in academic and social settings-causing all to "fear"172EEOC Compl. ¶ 54; Fed. Compl. ¶ 94. his reactions. This framing device significantly misrepresents the collegial social and academic environment Jaeger fostered in his lab,173We note that the website for Jaeger's lab lists many students who were not primarily advised by Jaeger. Jaeger explained that anyone who was interested could be a part of his "lab" by attending lab meetings (even if a student was not advised by him). (Dec. 8, 2017 Interview with F. Jaeger; see HLP Lab website, available at https://www.hlp.rochester.edu/people/.) and in an effort to demonize Jaeger, paints the women with whom he had relationships as victims, a characterization that, based on the time we spent with them, is inaccurate to say the least.
(a) Academic Settings
The perceptions of students who worked most closely with Jaeger do not support the allegations that Jaeger's lab was "cult-like,"174EEOC Compl. ¶ 53; Fed. Compl. ¶ 93. or that many students were isolated and ostracized by the culture of his lab,175EEOC Compl. ¶ 53; Fed. Compl. ¶ 93. or felt they "had to participate in Jaeger's social life" to have a successful research relationship with him.176EEOC Compl. ¶ 50; Fed. Compl. ¶ 90. Fresh from graduate school and largely rejecting hierarchical norms that separated professors and students, Jaeger created a lab that combined academic pursuits with social and recreational activities. Most of Jaeger's students appreciated that their lab included a social aspect and thrived in this environment, building close connections with their fellow students and with Jaeger.177Oct. 12, 2017 Interview with Graduate Student 25; Oct. 19 & Oct. 23, 2017 Interview with Graduate Student 9; Oct. 20, 2017 Interview with Post-doctoral Fellow 2; Oct. 23, 2017 Interview with Graduate Student 21; Oct. 24, 2017 Interview with Graduate Student 10; Nov. 3, 2017 Interview with Graduate Student 13; Nov. 11, 2017 Interview with Visiting Scholar 1; Nov. 14, 2017 Interview with Post-doctoral Fellow 5. Invitations to social events were generally extended to everyone who was associated with Jaeger's lab (including those who also worked for other labs), although not the entire department. (Oct. 24, 2017 Interview with Graduate Student 10.) Several students who neither worked with Jaeger nor were members of his lab, including some women who reported avoiding Jaeger, also recounted being invited to retreats, dissertation defense parties and gatherings for visiting speakers hosted by Jaeger. (Oct. 13, 2017 Interview with Graduate Student 16; Nov. 1, 2017 Interview with Graduate Student 1; Nov. 2, 2017 Interview with Graduate Student 2.) Insiders and outsiders described the lab as a "close knit" community,178Oct. 25, 2017 Interview with Graduate Student 23. a "cohesive environment,"179Oct. 20, 2017 Interview with Post-doctoral Fellow 2. and attested to the "ethical, professional, and welcoming working environment" fostered by Jaeger.180Mar. 13, 2017 Letter from 18 former students in F. Jaeger's lab to G. Culver. Students in the lab maintained that they socialized with Jaeger because they enjoyed it, not because they felt pressured to do so, and we know of at least one student who maintained a research relationship with Jaeger despite rarely attending social events.181Oct. 12, 2017 Interview with F. Jaeger; Oct. 23, 2017 Interview with Graduate Student 21; Oct. 24, 2017 Interview with Graduate Student 10; Nov. 3, 2017 Interview with Graduate Student 13; Nov. 11, 2017 Interview with Graduate Student 28. This student later transferred labs because of a change in research interests, as well as academic disagreements with Jaeger; the social aspect of Jaeger's lab was not the impetus for the switch. (Interview with Witness.)
That many students thrived in Jaeger's lab culture is not to dismiss that he certainly blurred social and professional lines and discussed research and other academic issues during predominantly social events. With one exception, though, only the students who were never members of Jaeger's lab (as it was broadly defined) reported feeling excluded professionally because they were not in his social group, or were uncomfortable with the lab's atmosphere, describing it as "cutthroat."182Oct. 16, 2017 Interview with Graduate Student 12; Oct. 25, 2017 Interview with Graduate Student 4; Nov. 10, 2017 Interview with Graduate Student 29. The one student who viewed Jaeger as a co-adviser and who felt similarly eventually worked more closely with her principal adviser-in part because she was uncomfortable that maintaining a professional relationship with Jaeger "needed to be integrated into a larger social component."183Oct. 25, 2017 Interview with Graduate Student 4.
It is common for labs to have different "personalities," and students may choose one lab over another for a variety of reasons, including comfort level with the social dynamics of such a lab.184Oct. 27, 2017 Interview with Visiting Speaker 3. Indeed, Jaeger, in recent years, has interviewed prospective students on this topic to be sure that they would be comfortable with his style of mentoring and the social environment of his lab.185Dec. 8, 2017 Interview with F. Jaeger. Thus, to some extent, Jaeger's lab's cohesive culture and his students' appreciation of it may be the result of self-selection. Nevertheless, the overwhelming weight of the evidence indicates that Jaeger's lab was not intentionally exclusionary, nor was Jaeger unwilling to work with those students who did not socialize with him. While some students regularly socialized with Jaeger, and others did not, this appears to result from individual students' comfort levels with engaging in a social relationship with a professor generally, or with Jaeger in particular-not intentional exclusion by Jaeger. Similarly, no student wanted to work with Jaeger, but could not, merely because the student did not participate in the social aspect of the lab. The students who avoided socializing with Jaeger also avoided working with him-again for various reasons that are difficult to disentangle, including discomfort with Jaeger's academic behavior, sexual comments or romantic relationships. We emphasize this not to diminish the legitimacy of all of the various reasons students had for avoiding Jaeger, but to more clearly distinguish between the behaviors and characteristics that Jaeger exhibited and those he did not. Jaeger's lab was both an academic and a social environment, at which Jaeger was often at the center. While not all students were comfortable with this constraint, we found no evidence that students were shut out of research opportunities with Jaeger merely as a result of an unwillingness to socialize with him, nor did we find that students were intentionally or systematically excluded from social or academic lab events.186Jaeger reported that he regularly offers methodological and statistical advice through a data analysis blog, a statistics forum, and in-person tutorials to students and colleagues inside and outside of BCS, including routinely answering complex statistical questions. (Dec. 13, 2017 Letter from S. Modica to Debevoise & Plimpton LLP.)
(b) Jaeger's Sexual Relationships with Students
In a related claim, the complaints proffer a misleading allegation that female students had to either sleep with Jaeger or "tolerat[e] sexually explicit behavior and power plays that made them feel vulnerable" to enjoy a successful academic relationship with him.187EEOC Compl. ¶ 92; Fed. Compl. ¶ 131. We discuss Jaeger's sexually explicit behavior above,188See supra, at Section II.A.1.d. and we reiterate here that we view his sexual banter and innuendo with students as, at a minimum, inappropriate in a professional setting. That said, no female student was forced or otherwise pressured to engage in a sexual relationship with Jaeger to have an academic relationship with him. We interviewed 41 female BCS graduate and undergraduate students and post-doctoral fellows who were at BCS at some point between 2007 and 2014, none of whom reported that Jaeger had ever pressured them to have sex or felt that working with him was contingent on submitting to a sexual relationship. Two female students who avoided Jaeger implied that they felt, based on Jaeger's reputation, that he might theoretically pressure them for sex at a later date, but acknowledged that no such coercion ever occurred.189C. Nearpass Notes of Apr. 12, 2016 Interview with Graduate Student 17; Nov. 6, 2017 Interview with Graduate Student 17. Likewise, no female student reported that Jaeger retaliated against them or treated them differently in any way as a result of their not having a sexual relationship with him.190In Kidd's case, for example, after she had a falling out with Jaeger in her first year, see infra, at Section II.A.3, we nonetheless saw continued communications between the two until at least summer 2010 regarding routine academic questions, such as Jaeger asking if Kidd would be interested in reviewing a colleague's paper or Kidd sharing an article from The New York Times. (Jan. 9, 2009 Email from C. Kidd to F. Jaeger; June 18, 2009 Email from C. Kidd to F. Jaeger (both attached as part of Exhibit 24).)
This, of course, does not alter the fact that Jaeger had consensual sexual relationships with four prospective, current or former students between 2007 and 2011.191See supra, at Section II.A.2.b. Two of the women told us that they continued to communicate and interact socially with Jaeger after their sexual relationship ended. (Oct. 16 & Oct. 18, 2017 Interviews with Graduate Student 19; Oct. 25, 2017 Interview with Undergraduate 8.) Although, given the inherent asymmetry of power, we agree with DeAngelis that any intimate relationship with a student is problematic and a reflection of poor judgment, none of these relationships violated then-existing University policy.192See infra, at Section II.A.2.b. At the time, the UR Intimate Relationships Policy between faculty and students did not prohibit, but rather "strongly discouraged," such relationships. (University of Rochester, Faculty Handbook (revised Feb. 2007); Faculty Handbook (revised July 2008).) Each of these women reported that her sexual relationship with Jaeger was entirely consensual, not unwanted and resulted from her independent decision to engage in an adult, sexual relationship-a choice wholly unrelated to any perceived benefit to her academic or professional status. Indeed, Jaeger had no supervisory role of any kind with respect to two of these women during or after they had a sexual relationship and was not the adviser or primary supervisor of any of them.193Because it occurred prior to the 2014 policy change, Jaeger's relationship with Graduate Student 15 did not violate any University policy, and Jaeger and Graduate Student 15 considered it "ok" because he was not her adviser and did not otherwise supervise her work. (Nov. 3, 2017 Interview with Graduate Student 15.)
Jaeger's brief relationship with an undergraduate similarly did not involve a supervisory relationship, see supra, at n. 75. (Oct. 26, 2017 Interview with Undergraduate 16; Dec. 8, 2017 Interview with F. Jaeger.)
Whether, as the complaints allege, sexual relationships with Jaeger created a conflict of interest insofar as Jaeger supervised or had a role in the education of his partners, is a more complicated question with respect to Graduate Student 19 and Undergraduate 8, although we note again that neither circumstance violated then-existing University policy.194See infra, at Section II.A.2.b. For Graduate Student 19, at the relevant time, it was not prohibited for a professor who previously had a long-removed romantic relationship with a student to serve on committees related to that student's degree. This it is now prohibited under the UR Intimate Relationships Policy. At the time of Jaeger's relationship with Undergraduate 8, she was a University employee, and UR Policy 121, which deals with relationships among University employees, was not violated because it did not at that time address sexual relationships.
It is important to note that under current University policies, absent disclosure and a work plan approved by the University's Associate Vice President for HR, Jaeger would not have been permitted to serve on committees for Graduate Student 19 or collaborate with Undergraduate 8. While Jaeger did not advise or otherwise formally supervise Graduate Student 19, Graduate Student 19 asked Jaeger to serve as an additional reader on her qualifying committee, as well as participate in her thesis committee, several years after their brief "fling" (in Graduate Student 19's words) ended.195Oct. 12, 2017 Interview with F. Jaeger; Oct. 16 & 18, 2017 Interviews with Graduate Student 19. In October 2009, Jaeger was one of two additional readers chosen by Graduate Student 19 for her qualifying exams, after her primary adviser had reviewed her work and assessed that she had "clearly passed." (Dec. 29, 2017 Email from S. Modica to Debevoise & Plimpton LLP.) In 2012, Graduate Student 19 again asked Jaeger to be a part of her dissertation committee-a request the other members of her dissertation committee supported, according to another BCS faculty member, due to the amount of statistical analysis in Graduate Student 19's research. (Oct. 27 & Nov. 1, 2017 Interviews with Faculty 17.) This faculty member also said that Graduate Student 19's dissertation was "great work," and Jaeger's presence on the committee did not make a difference in deciding whether to approve her degree. (Oct. 27 & Nov. 1, 2017 Interviews with Faculty 17.) Undergraduate 8, although directly employed by another BCS professor's lab at the time of her sexual relationship with Jaeger, voluntarily continued research for Jaeger's lab that had started prior to their relationship because, as she told us, she enjoyed the work and had already put in significant effort.196Oct. 25, 2017 Interview with Undergraduate 8. Jaeger also wrote Undergraduate 8 a letter of recommendation for graduate school, which was submitted after they had kissed, although Jaeger told us that he had already written the letter prior to the beginning of their relationship. Jaeger expanded on this letter for a grant application that was due after their relationship ended. (Oct. 25, 2017 Interview with Undergraduate 8; Dec. 8, 2017 Interview with F. Jaeger.) Again, while, as a method of avoiding potential conflicts of interest, we much prefer the now stricter UR policy that prohibits exercising any supervisory role over a current or former sexual partner, neither woman in these relationships with Jaeger reported feeling any pressure from Jaeger to have sex with him to obtain an academic benefit.
Jaeger's sexual relationships-with the students described above, as well as with CLS visiting speakers197The complaints allege that Jaeger invited several of the women he had sexual relationships with to be visiting speakers at UR. That is true, although conveys an incomplete picture, as visiting speakers receive invitations through a selection process comprised of several BCS faculty, not Jaeger or anyone alone. We spoke with three of the four visiting speakers with whom Jaeger had sexual contact, each of whom told us that their sexual relationship with Jaeger was brief and consensual. (Oct. 8, 2017 Interview with Visiting Speaker 1; Oct. 24, 2017 Interview with Visiting Speaker 2; Oct. 27, 2017 Interview with Visiting Speaker 3.) Additionally, two of these women were invited to speak years after their sexual relationships with Jaeger had ended. (Oct. 8, 2017 Interview with Visiting Speaker 1; Oct. 27, 2017 Interview with Visiting Speaker 3.) Students and senior BCS faculty members described these women as smart, highly qualified and well regarded. (C. Nearpass Notes of Apr. 14, 2016 Interview with Undergraduate Student 1; Oct. 17, 2017 Interview with Graduate Student 11; Oct. 27 & Nov. 1, 2017 Interviews with Faculty 17.) The CLS website also indicates that there were at least 107 speakers between 2007-2017 (60 men and 47 women). (See Center for Language Sciences Colloquia Series, http://www.sas.rochester.edu/cls/news-events/index.html.) and his current partner198An overwhelming number of interviewees took serious issue with how Kurumada, Jaeger's current partner, was identified and portrayed in the complaints, noting that using Kurumada's real name was a gratuitous and unfair personal attack that only detracted from, rather than furthered, the complaints' narrative. (Oct. 9, 2017 G. DeAngelis Notes on EEOC Complaint; Oct. 20, 2017 Interview with Faculty 11; Oct. 13, 2017 Interview with Faculty 13; Oct. 17, 2017 Interview with Graduate Student 11; Oct. 25, 2017 Interview with Witness 5; Oct. 30, 2017 Interview with Undergraduate 7; Nov. 11, 2017 Interview with Colleague 1; Nov. 28, 2017 Interview with Graduate Student 30.) -are a significant focus of the complaints, which allege that knowledge of these relationships by other graduate students created an environment that was hostile toward female students.199EEOC Compl. ¶ 24; Fed. Compl. ¶ 97 The complaints characterize Jaeger as a "manipulative sexual predator" who "relentlessly pursued and engaged in numerous sexual relationships" with these women.200EEOC Compl. ¶¶ 17, 87-88; Fed. Compl. ¶¶ 41, 126-27. We note that at no point during our investigation did any interviewee report that Jaeger touched anyone sexually without consent. The only physical contact we learned of was a student who reported that Jaeger sometimes touched women on the back or shoulder and one instance where Jaeger touched a student's arm. (Nov. 6, 2017 Interview with Graduate Student 17; Nov. 10, 2017 Interview with Graduate Student 29.) In a similar vein, some interviewees-mostly women but also some men-reported that Jaeger would occasionally stand very physically close to them without touching. (C. Nearpass Notes of Mar. 24, 2016 Interview with K. Bixby; C. Nearpass Notes of Apr. 18, 2016 Interview with Graduate Student 8; Nov. 2, 2017 Interview with Graduate Student 2; Nov. 10, 2017 Interview with Graduate Student 29.) Jaeger acknowledged that his German background makes him less cognizant of the physical space around a person that Americans typically maintain. (Dec. 8, 2017 Interview with F. Jaeger.) While there is no doubt that Jaeger, at one time, had a reputation as promiscuous-another aspect of his character that did not change from his years as a graduate student-Jaeger's characterization as a "sexual predator" in the complaints is baseless.201Likewise, the complaints contain numerous examples of allegations that have a kernel of truth that is highly exaggerated. For example, the complaints allege that a former student whom Jaeger had a sexual relationship with often came to the office of a colleague "to cry," (EEOC Compl. ¶ 87)-implying by placing this sentence in the middle of a paragraph of allegations about her relationship with Jaeger that the woman was upset about aspects of this relationship. To the contrary, we spoke with the woman in question, who reported to us that she recalled crying in her colleague's office once after her sister was in a car accident. (Interview with Witness.) This allegation was changed only slightly in the federal complaint, stating instead that the woman came to her colleague's office "upset." (Fed. Compl. ¶ 126.) Even Graduate Student 15, who undoubtedly had an emotionally difficult relationship, and parting, with Jaeger, did not believe that Jaeger was a "sexual predator" or that their sexual relationship was anything other than consensual.202Nov. 3, 2017 Interview with Graduate Student 15.
Two of the women, in particular, took exception to the allegations that Jaeger was a "sexual predator" who coerced them or whom they feared in any way, noting that they were fully able to make decisions for themselves and consent to adult sexual relationships.203Oct. 16 & 18, 2017 Interviews with Graduate Student 19; Dec. 21, 2017 Interview with Undergraduate 8. Graduate Student 19 bristled at what another witness called the "damsel in distress" narrative of the EEOC Complaint's description of her brief relationship with Jaeger, which she described as inaccurate and included without her permission.204Oct. 16 & 18, 2017 Interviews with Graduate Student 19. She also described the EEOC Complaint's allegation that she "did not want Jaeger to be on her qualifying exams or dissertation committees, but was too afraid to request that he be excluded" as "entirely false."205Id. Undergraduate 8 similarly disagreed with how the complaints portrayed her relationship with Jaeger, emphasizing that she specifically told one of the claimants, both before and after the EEOC Complaint was released publicly, that its statement that she feared "retaliation and retribution" from Jaeger was false. Likewise, while the allegation that Jaeger did not pay for the medical treatment of an injured sexual partner supports the complaints' "predator" narrative and claim that Jaeger is "indifferent" to the welfare of the women with whom he sleeps, we found its factual component largely false, and its broader implication entirely false.206EEOC Compl. ¶ 82; Fed. Compl. ¶ 120. We will not disclose any additional details to protect the privacy of the woman involved.
Jaeger's past sexual relationships with students, which we see as significant errors in judgment, should nonetheless be considered in context. One of Jaeger's colleagues confirmed that many graduate students, post-doctoral fellows and faculty in their field have had sexual relationships with one another.207Oct. 24, 2017 Interview with Visiting Speaker 3. This observation is borne out by the Complainants, most of whom are in relationships with each other (e.g., Cantlon and Mahon; Kidd and Piantadosi; and Hayden and Heilbronner). We note that Newport is also married to one of her former graduate students. (See Exhibit 9.) Statistics bear out this observation. Academic couples comprise 26% of American professors, and 83% of female scientists in academic couples are partnered with another scientist.208Londa Schiebinger, Andrea Davies Henderson & Shannon K. Gilmartin, Dual-Career Academic Couples: What Universities Need to Know, Michelle R. Clayman Institute for Gender Research, Stanford University, 2008. At UR, spousal hires are common, and as noted, one of the Complainants met her spouse while she was a professor and he was a graduate student, and among the Complainants are three faculty couples.
3. Jaeger's Relationship with Celeste Kidd
A significant portion of the allegations made in the EEOC Complaint and federal complaint stem from interactions in 2007 and 2008 between Jaeger and Kidd. The complaints allege that Jaeger sexually harassed Kidd during her UR recruitment process in spring 2007,209EEOC Compl. ¶ 38; Fed. Compl. ¶ 78. "pressed" Kidd to rent a room in his home in summer 2007,210EEOC Compl. ¶ 42; Fed. Compl. ¶ 82. and made a series of unwelcome, harassing sexual comments over this period.211EEOC Compl. ¶¶ 34, 36, 38; Fed. Compl. ¶¶ 74, 76, 78.
While Kidd declined our interview requests, we reviewed notes from her interview with DeAngelis in 2013 stemming from Bixby's complaint, notes from her interview with Nearpass in 2016 that Kidd reviewed and supplemented at the time, notes and an audio recording of her interview with Curtin, as well as Facebook messages and emails that we obtained.212We reviewed a series of Facebook messages and emails between Jaeger and Kidd, although we cannot be certain that we have every communication between the two. Due to the time that has passed, we are likewise unsure that Facebook or email providers archived all communications or that users did not delete any communications. Whenever possible, we have also spoken with witnesses who were present for specific events alleged in the complaints involving Kidd and Jaeger and who socialized and worked with them regularly during their cohabitation. We understand the sensitive nature of these facts, and we have done our best to provide all relevant context that we discovered during our investigation that was otherwise missing from the complaints.
We cannot conclude, in any definite terms, whether the statements Kidd alleges that Jaeger made only to her were indeed unwelcome or if Jaeger crossed any lines or boundaries that Kidd verbally established with him. Jaeger concedes that he made sex-related comments generally during this time, including to Kidd, but did not think he made the specific comments alleged in the complaints.213Dec. 8, 2017 Interview with F. Jaeger. While we credit that Jaeger spoke about everything-including sex -in an unfiltered manner, our review of the full record with respect to at least some of the complaints' allegations leads us to suspect that many of the allegations related to Jaeger's interactions with Kidd are presented absent the context in which they were made. Some of the allegations describe conduct or statements that are consistent with reports of Jaeger's behavior that we learned about from witnesses during this time period-such as, for example, allegations that Jaeger ignored Kidd's personal boundaries,214See, e.g., EEOC Compl. ¶ 45; Fed. Compl. ¶ 85 (allegations that Jaeger would push Kidd's boundaries by entering her room without knocking, using her computer, and stating that he had stuck his hand in the beans she was preparing and saying, "Your beans feel really weird, Celeste."). made comments about students' physical appearance to Kidd,215See, e.g., EEOC Compl. ¶ 72; Fed. Compl. ¶ 110 (allegations that Jaeger evaluated the sexual appeal of other women and warned Kidd against gaining weight). or spoke with her frankly about sex, including about her sex life and sexual acts that he performed, or wanted to perform, on other women.216See, e.g., EEOC Compl. ¶ 66; Fed. Compl. ¶ 104 (allegation that Jaeger made a comment about one of his partner's oral herpes and that Kidd was a "germophobe"); EEOC Compl. ¶ 70; Fed. Compl. ¶ 108 (allegations that Jaeger used sexual language and told Kidd that the medication that one of his partners used made her vagina taste bad); EEOC Compl. ¶ 71; Fed. Compl. ¶ 109 (allegations that Jaeger questioned Kidd about her past relationships and sex life, including joking about her ex-partner's ethnicity, and to identify how many sexual partners she had); EEOC Compl. ¶ 73; Fed. Compl. ¶ 111 (allegation that Jaeger told Kidd he wanted to pull on a student's hair and another student had nice lips that he wanted to "suck and bite"); EEOC Compl. ¶ 78; Fed. Compl. ¶ 116 (allegation that Jaeger showed up uninvited to Kidd's date). Although Jaeger does not specifically recall these incidents, we credit that it is more likely than not that they occurred. We question, though, whether at least some of Jaeger's statements were actually offensive to Kidd at the time, in part because interviewees told us that Kidd openly talked about sex with colleagues, including specific, graphic comments about her sexual partners,217Oct. 16 & 18, 2017 Interviews with Graduate Student 19; Oct. 25, 2017 Interview with Witness 5. and that Kidd maintained a list of prominent academics in her field with whom she wanted to have sex.218Oct. 17, 2017 Interview with Graduate Student 11; Oct. 19 & 23, 2017 Interviews with Graduate Student 9. Kidd herself acknowledged the "list" to Nearpass in 2016, noting that it was something she joked about-but did not create-because those men would understand her workload.219C. Nearpass Notes of May 2, 2016 Interview with C. Kidd. The weight of the evidence we reviewed suggests two conclusions: first, the complaints present only one editorialized and edited side of a complicated story, and second, Kidd's account of Jaeger's conduct from 2007-2008 escalated between her 2013 interview with DeAngelis and the 2017 complaints.
With respect to the first point, the complaints' portrayal of Jaeger and Kidd's initial communications provides only Jaeger's comments, while excluding Kidd's seemingly willing and playful responses. As alleged in the complaints, for example, Jaeger did tell Kidd that he hoped she would read a manuscript to him while he would "lie lazily on the couch" and she "paced around occasionally in front of the fire."220EEOC Compl. ¶ 38; Fed. Compl. ¶ 78. This allegation, however, omits the context of Kidd's earlier statement about a manuscript of a novel that she was writing, and likewise omits her response to Jaeger's statement, which said, "I'll only read if I get to take a turn on the couch while you read and pace. ;) sweet dreams!"221Exhibit 16, at Mar. 29, 2007 5:41 AM. Similarly, the allegation that Jaeger told Kidd "sex" is his favorite reading topic is taken entirely out of context.222EEOC Compl. ¶ 38; Fed. Compl. ¶ 78. Jaeger's comment was made following Kidd's request for book recommendations and was not limited to "sex" but rather contained a laundry list of authors and topics: "I like books about chance, apparent arbitrariness of life (paul auster), sex (the sexual life of catherine m., venus trap, p's complaint, the human stain), politics, and then my dad often sends me good stuff he found somewhere."223Exhibit 16, at Mar. 30, 2007 2:58 AM.
In contrast to the complaints' allegation that Jaeger "continued to sexually harass Kidd during the remainder of her recruitment process,"224EEOC Compl. ¶ 38; Fed. Compl. ¶ 78. Jaeger was the first faculty member at UR whom Kidd told about accepting her offer to attend, in an email thread where she later added, "I'm ridiculously excited. It's going to be fun. I want to just gun it for five years. A lot of work interspersed with maybe some bouts of good play. ;) We should go down to NYC one weekend. I have cousins and friends there."225Apr. 13, 2007 Email from C. Kidd to F. Jaeger (attached as part of Exhibit 24.) Later in the summer, before she officially moved in with Jaeger-a time when the complaints allege that Jaeger "pressed" Kidd to rent the room and "threat[ened]" that "his professional opinion of her would inevitably be tied to his personal opinion of her"226EEOC Compl. ¶ 42; Fed. Compl. ¶ 82. -Kidd wrote him an email stating, "You know so many interesting, beautiful people. I'm really glad we met, Flo. And I'm delighted to be moving to Rochester."227Aug. 2, 2007 Email from C. Kidd to F. Jaeger (attached as part of Exhibit 24.)
The unedited Facebook messages between Jaeger and Kidd, as well as their email communications, suggest that in summer 2007, when Kidd moved into Jaeger's house, their relationship was friendly and harmonious, and we found no evidence indicating that Jaeger coerced Kidd into living with him. Interviewees overwhelmingly indicated that while they found Kidd's and Jaeger's living arrangement strange,228Oct. 12, 2017 Interview with Administrator 3; Oct. 19, 2017 Interview with Faculty 25; Oct. 25, 2017 Interview with Graduate Student 4; Oct. 26, 2017 Interview with Graduate Student 24; Nov. 7, 2017 Interview with Graduate Student 28; Nov. 10, 2017 Interview with Graduate Student 29; Nov. 30, 2017 Interview with Post-doctoral Fellow 6.
Three BCS faculty and staff told us that Jaeger and Kidd's living arrangement was brought to the attention of then-BCS Chair, and current complainant, Newport, but that she did not have any significant reaction to the news. (Nov. 1, 2017 Interview with Administrator 8; Oct. 12, 2017 Interview with Administrator 3; Nov. 8, 2017 Interview with Faculty 20.) Jaeger recalled that at the end of a faculty meeting in fall 2007, Newport told him that his living situation was unusual but never mentioned it again. (Dec. 8, 2017 Interview with F. Jaeger.) Many years later, in a 2016 email to Aslin, Newport reflected on the "inappropriateness of having Celeste stay at [Jaeger's] house then become his roommate." (Mar. 9, 2016 Email from E. Newport to R. Aslin.) they all thought Kidd and Jaeger were friends from summer 2007 to spring 2008.229Oct. 17, 2017 Interview with Graduate Student 11; Oct. 25, 2017 Interview with Witness 5; Nov. 8, 2017 Interview with Colleague 11; Nov. 13 & Dec. 6, 2017 Interview with Post-doctoral Fellow 1. Emails between Jaeger and Kidd at the beginning of their living arrangement echo this perception.230On September 11, 2007, after Jaeger apologized for his "grumpy exhilaration" following a car ride from Kidd, Kidd responded, "i never take you seriously serious. :) Have a great trip!" (Sept. 11, 2007 Email from C. Kidd to F. Jaeger.) (attached as part of Exhibit 24.) At other times, they discussed what movies to add to their Netflix account, (Oct. 1, 2007 Emails between F. Jaeger and C. Kidd) (attached as part of Exhibit 24); made plans to go on trips together to Boston, New York and Ithaca, (Apr. 13, 2007 Email from C. Kidd to F. Jaeger; Oct. 3, 2007 Emails between F. Jaeger and C. Kidd; Oct. 4, 2007 Emails between C. Kidd and F. Jaeger) (all attached as part of Exhibit 24); and planned crawfish boils at their house and a trip to the Adirondacks with mutual friends from the Linguistic Society of America Institute, (Dec. 4, 2007 Email from C. Kidd to F. Jaeger (attached as part of Exhibit 24); Oct. 17, 2017 Interview with Faculty 20; Oct. 26, 2017 Interview with Colleague 14; Nov. 8, 2017 Interview with Colleague 11; Nov. 15, 2017 Interview with Post-doctoral Fellow 9.) Kidd also sent Jaeger photos of her baby sister through February 2008. (Nov. 30, 2007 Email from C. Kidd to F. Jaeger and others; Feb. 13, 2008 Email from C. Kidd to F. Jaeger.)
By all accounts, Jaeger's and Kidd's living arrangement appears to have been initially friendly and mutually acceptable, although we note that we view it as a serious lapse in Jaeger's judgment to live with a graduate student. Based on the available evidence, we believe their relationship began to break down sometime in spring 2008,231While the language of the complaints' allegations about sleeping in Aslin's lab are exaggerated (e.g., that C. Kidd needed to "escape Jaeger," EEOC Compl. ¶ 94), we credit that Kidd slept in the lab occasionally during this time period, although most of her colleagues assumed she did so at the time because she was working late nights. (C. Nearpass Notes of Mar. 18, 2016 Interview with C. Kidd; Nov. 30, 2017 Interview with BCS Employee 4; Oct. 13, 2017 Interview with Graduate Student 14; Oct. 16, 2017 Interview with Graduate Student 12; Oct. 16 & 18, 2017 Interviews with Graduate Student 19.) and Kidd made clear to Jaeger at least by summer 2008 that she wanted space from him.232At the end of July 2008 after Kidd moved out, Jaeger sent her an email saying, "[I]t's really a pity how the vibe between [us] has been developing." He said that she had once asked him to "leave [her] alone" regarding things that bothered her, and he had done that for "over half a year" but "it hasn't changed anything." He said "it would be nice if [they] could get on better terms again" and offered to listen to "things on [her] mind that [she needed] to get rid of." Kidd responded that she was "not sure how best to respond" and that she was not "ready for a conversation just yet," and wasn't sure when she would be. She concluded that she would like for them to "be friends again" and thought the best route there was to establish a good working relationship first, but she needed time and space for "personal things" before she would do that. (July 10, 2008 Emails between F. Jaeger and C. Kidd; July 27, 2008 Emails between F. Jaeger and C. Kidd) (both attached as part of Exhibit 24.) Although Kidd may have, as she claims, expressed orally to Jaeger that she did not want to engage in any sexually-related discussions with him, Jaeger denies this, while acknowledging that the two had roommate incompatibility problems ranging from the mundane to those involving values and communication styles.233Dec. 8, 2017 Interview with F. Jaeger. We have found no written evidence from Kidd of any disapproval of Jaeger on sexual-harassment grounds. And while it is well-documented that many women do not complain of sexual harassment at the time it occurs, it is worth noting that Kidd's adviser was Aslin and the BCS Chair was Newport, with the latter being described in the EEOC Complaint as having a "reputation for protecting and advancing her students," including "interven[ing] by making it clear that [sexual harassment] would not be tolerated."234EEOC Compl. ¶ 15. This language was omitted from the federal complaint. Kidd also told Nearpass in 2016 that she knew she could go to Aslin for help during this time.235C. Nearpass Notes of May 2, 2016 Interview with C. Kidd. We were not, in the end, able to substantiate the allegation that sexual harassment was the predominant reason that the personal relationship between Kidd and Jaeger eroded and then ended by the spring 2008.
Similarly, the evidence we reviewed also suggests that Kidd's narrative in the complaints about what she found irksome and harassing about Jaeger's conduct is not entirely consistent with the views she expressed at earlier times to faculty and students. Kidd may have been reluctant to report sexual harassment at the time, although we remain skeptical that Aslin and Newport would not have acted immediately, particularly given their reactions to the instant allegations. By contrast to Kidd's recent statements that Jaeger made demeaning sexual comments that made her life unbearable,236See Maria Danilova, Universities Face #MeToo Movement Over Sexual Harassment, ASSOCIATED PRESS, Dec. 28, 2007. Kidd did not call attention to Jaeger's alleged unwelcome sexual comments or innuendo before 2016-rather only his problematic and unprofessional social and academic behavior.237See supra, at n. 96, where three students reported that Kidd specifically warned them about working with Jaeger (in 2008 and around 2012-2013), not because of any alleged sexual harassment, but because Jaeger took credit for students' academic ideas. Another student reported that when she joined in 2009, Kidd openly talked about "hat[ing] Jaeger's guts." However, the student believed the problem was that Jaeger was an annoying roommate. (Oct. 24, 2017 Interview with Graduate Student 10.) Moreover, when DeAngelis met with Kidd following Bixby's 2013 Complaint,238See supra, at Section II.A.1.f. DeAngelis' handwritten notes from this meeting recount that Kidd told him that Jaeger had relationships with graduate students, that he unexpectedly dropped by his teaching assistants' house and sometimes showed up to graduate student events, crossed professional lines and asked Kidd personal questions over Facebook.239G. DeAngelis Notes of 2013 Meeting with C. Kidd. In contrast to the complaints' allegations of sexual harassment, however, DeAngelis recalled that Kidd told him "very little" in 2013, including failing to relay any of Jaeger's alleged sexual comments that she later provided to Nearpass in 2016 (that are also alleged in the complaints).240Oct. 9, 2017 G. DeAngelis Notes on EEOC Complaint.
While we cannot be certain that DeAngelis' handwritten notes document the entirety of his conversation with Kidd, DeAngelis' recollection of what occurred when he spoke to Kidd is bolstered by his conclusion at the time that sexual harassment was not at issue, only drawing appropriate personal/professional boundaries. Had Kidd told DeAngelis the same allegations relating to Jaeger's conduct that are set forth in the complaints, we are doubtful that DeAngelis would have reached this same conclusion. Likewise, DeAngelis does not recall, as the complaints claim, that Kidd gave him names of ten additional students to contact, and his contemporaneous notes do not contain that information.241G. DeAngelis Notes of 2013 Meeting with C. Kidd; Oct. 9, 2017 G. DeAngelis Notes on EEOC Complaint.
It is also worth noting that later, after the Nearpass investigation and before the EEOC Complaint was filed, Kidd sent an email to DeAngelis on January 4, 2017, complaining that Nearpass had declined to review Facebook messages that Kidd believed supported her sexual harassment allegations against Jaeger.242Jan. 4, 2017 Email from C. Kidd to G. DeAngelis and J. Cantlon (attached as part of Exhibit 25.) Instead of sending the full dialogue between herself and Jaeger, it is telling that Kidd provided a "cut and pasted" Word document that contained only excerpts of Jaeger's statements with many of Kidd's remarks or responses removed.243Facebook Messages from F. Jaeger to C. Kidd that C. Kidd provided to G. DeAngelis (attached as part of Exhibit 25.) Kidd's email suggests that these were the same messages she had offered to Nearpass in 2016 for her review.244Exhibit 25. Nearpass opted not to review the Facebook messages that Kidd offered to her. See infra, at Section II.C.3. As described earlier, these heavily edited Facebook messages have been manipulated in such a manner as to make them essentially devoid of all critical context, including not only reciprocal flirting, but also the lengthy passages where Jaeger is providing graduate school and career advice.
By contrast to the complaints, the evidence we reviewed suggests that Kidd and Jaeger's relationship was amicable and harmonious when they initially met and lived together, but eventually deteriorated by the end of spring 2008. While we cannot draw any definitive conclusions from the information we were provided, the evidence suggests that the Complainants' lack of transparency related to Jaeger and Kidd's exchanges make us question what other context is missing from the Complainants' accounts of their relationship. We have not been able to determine why the relationship fell apart, except that no evidence that we have seen concretely indicates that Jaeger's alleged sexual harassment was the sole, or even predominant, culprit. Kidd's own words to Curtin in 2016 accurately capture our conclusion on her relationship with Jaeger: "[S]exual harassment was a small part of all of the problems I had in [Jaeger's] lab. There was a huge number of problems, many of which were professional."245C. Curtin Recording of Aug. 16, 2016 Interview with C. Kidd.
B. Jaeger's Post-2014 Conduct
Jaeger's personal and professional behavior has shifted substantially from the time he joined UR to the present, and we found 2014 to be an important demarcation line for this behavioral shift. A former graduate student who enrolled in 2010 remarked upon the change in Jaeger's behavior that occurred during these years, describing it as Jaeger "realiz[ing] that he was in a position of power [and] couldn't just be a cool guy who happens to be a professor."246Oct. 23, 2017 Interview with Graduate Student 21. Whether it was because Jaeger matured, was now in a committed long-term relationship with another BCS professor,247We note that Kurumada and Jaeger have been in a relationship since July 2009, and they have lived together in Rochester since 2013. We have found no evidence that after Kurumada moved to Rochester, Jaeger engaged in any other sexual relationships, whether with UR graduate or undergraduate students or with anyone else. was spoken to by his Department Chair following a complaint about his "pushing boundaries" and "unprofessional" behavior involving a graduate student outside his lab248See supra, at Section II.A.1.f. or some combination of all of these things, the available evidence supports the finding that during the 2014-2017 period, Jaeger significantly reduced or eliminated the types of problematic behavior in which he previously had engaged. Specifically, the University has received no complaints of inappropriate conduct or sexual commentary from students in Jaeger's lab from 2014 through the present, and all the students (male and female) whom we interviewed shared positive experiences with respect to being part of the lab community and expressed appreciation for Jaeger's rigor and dedication as an adviser.
1. Academic Settings
We interviewed 23 people affiliated with Jaeger's lab during the 2014-2017 period, including 13 women, all of whom refuted the claim that Jaeger's lab was "cult-like" or a "boys' club."249EEOC Compl. ¶ 53; Fed. Compl. ¶ 93. To the contrary, the environment in Jaeger's lab during this time was "very welcoming,"250Nov. 1, 2017 Interview with Undergraduate 10. "close-knit,"251Oct. 25, 2017 Interview with Graduate Student 23. and provided a sense of "community" for the individuals who were part of the lab.252Crystal Lee, Shaelyn Rhinehard, Lauren Oey, Leslie Li & Becky Chu, Regardless of Controversy, Jaeger was a Good Mentor, CAMPUS TIMES, Oct. 2, 2017; Oct. 30, 2017 Interview with Undergraduate 14. In particular, various female undergraduates described feeling comfortable in the lab, one of whom even described working in Jaeger's lab as "one of the best parts of [her] undergraduate career."253Nov. 1, 2017 Interview with Undergraduate 10.
In contrast to the earlier period, none of the students who began working with Jaeger in the 2014-2017 period described him as a harsh critic or a bully, but rather as a supportive mentor whose demanding advising style was beneficial to their academic work, growth and development.254The only criticism we heard with respect to Jaeger's advising and mentoring during this time period involved his communication style, which was described as "informal" (citing as an example the use of smiley faces) and occasionally tone deaf, although "nothing creepy." (Oct. 30, 2017 Interview with Undergraduate 7.) Many of them stated that his criticism, while "direct,"255Oct. 12, 2017 Interview with Graduate Student 25; Oct. 20, 2017 Interview with Post-doctoral Fellow 2. was not "over the top" and generally constructive.256Oct. 13, 2017 Interview with Graduate Student 6; Oct. 25, 2017 Interview with Graduate Student 23. A female graduate student told us that Jaeger was a driving factor in her decision to choose UR over better-known schools, describing him as having high standards, which was "worth it" as her work greatly improved as a result of his advising.257Oct. 25, 2017 Interview with Graduate Student 23. Similarly, students in Jaeger's lab since 2014 told us that Jaeger gave them ample credit for their work, including one student who noted that Jaeger "would give credit where credit was due, and even sometimes where it wasn't yet due," recalling a conference where Jaeger cited her work even though it had not yet been completed.258Nov. 28, 2017 Interview with Graduate Student 30. Additionally, a visiting student told us that Jaeger gave her so much input that she asked him if he would like to be listed as a co-author, but he refused.259Nov. 16, 2017 Interview with Visiting Scholar 4.
As with the earlier period, the allegations that students felt they had to participate in Jaeger's social life in order to obtain teaching benefits,260EEOC Compl. ¶ 50; Fed. Compl. ¶ 90. or that those not in Jaeger's social circle were excluded from lab events,261EEOC Compl. ¶ 52; Fed. Compl. ¶ 92. are unfounded. Students who began working with Jaeger in the 2014-2017 period told us that Jaeger's lab still includes a social component outside of academic settings.262Oct. 12, 2017 Interview with Graduate Student 5; Oct. 12, 2017 Interview with Graduate Student 25; Oct. 13, 2017 Interview with Graduate Student 6; Oct. 25, 2017 Interview with Graduate Student 23; Oct. 27, 2017 Interview with Post-doctoral Fellow 4; Oct. 30, 2017 Interview with Post-doctoral Fellow 11; Nov. 1, 2017 Interview with Undergraduate 1; Nov. 1, 2017 Interview with Undergraduate 10; Nov. 16, 2017 Interview with Visiting Scholar 4; Nov. 28, 2017 Interview with Graduate Student 30. While this is less common in other labs, the students overwhelmingly felt this was a positive, and voluntary, aspect of their lab.263Oct. 12, 2017 Interview with Graduate Student 5; Oct. 12, 2017 Interview with Graduate Student 25; Oct. 25, 2017 Interview with Graduate Student 23; Oct. 30, 2017 Interview with Post-doctoral Fellow 11; Nov. 1, 2017 Interview with Undergraduate 1; Nov. 28, 2017 Interview with Graduate Student 30. None of the students we spoke to reported feeling excluded from, or compelled to attend, social events. Lab retreats also continued during this period (one in 2014 and one in 2015), and still involved social drinking and hot tubs, but the students who attended these lab retreats described them as "nice, relaxing experiences" where no drugs were present.264Oct. 12, 2017 Interview with Graduate Student 25; Oct. 25, 2017 Interview with Graduate Student 23. One student, who attended retreats both before and during this period, described these retreats as "tamer" than even the prior retreats, which we found were unduly sensationalized in the complaints.265Oct. 23, 2017 Interview with Graduate Student 21.
2. Social Settings
While we found that Jaeger consistently blurred professional and personal boundaries in the earlier period, including through extensive (and potentially unwelcome) socializing with graduate students, students consistently told us in this time period that Jaeger's presence was welcome and encouraged at such events.266Oct. 25, 2017 Interview with Graduate Student 23; Nov. 1, 2017 Interview with Undergraduate 10; Nov. 28, 2017 Interview with Graduate Student 30; Nov. 29, 2017 Interview with BCS Employee 1; Dec. 12, 2017 Interview with Graduate Student 6. While Jaeger tended to attend only the more important social events (like birthday parties or dissertation defense celebrations), one female student remarked that "students really enjoy [Jaeger's] company and actually want him to be present at social events."267Oct. 30, 2017 Interview with Undergraduate 14. Another female student emphasized that, on the more infrequent occasions when students see Jaeger at Lux, they invite him to join them because they enjoy socializing with him.268Oct. 25, 2017 Interview with Graduate Student 23. As with the earlier period, Jaeger also occasionally hosted social events at his home where students were invited, and with the exception of one post-doctoral fellow who recalled marijuana at some of the parties he attended with Jaeger since 2014269Nov. 6, 2017 Interview with Post-doctoral Fellow 10., no other student observed binge drinking or the use of drugs at parties involving Jaeger.270Oct. 20, 2017 Interview with Post-doctoral Fellow 2; Oct. 27, 2017 Interview with Post-doctoral Fellow 4; Oct. 30, 2017 Interview with Post-doctoral Fellow 11; Oct. 30, 2017 Interview with Undergraduate 7; Nov. 1, 2017 Interview with Undergraduate 1; Nov. 1, 2017 Interview with Undergraduate 10; Nov. 16, 2017 Interview with Visiting Scholar 4.
3. Sexual Remarks
Similarly, our investigation found no evidence to support the allegation that Jaeger made female students feel uncomfortable, or treated female students differently, during the 2014-2017 period. All of the students whom we interviewed who have worked with Jaeger since 2014 told us that they did not feel uncomfortable with any sexual comments or innuendo that Jaeger may have made in their presence, with many of them reporting that they did not remember hearing Jaeger make such comments.271Oct. 12, 2017 Interview with Graduate Student 5; Oct. 25, 2017 Interview with Graduate Student 23; Oct. 30, 2017 Interview with Undergraduate 14; Nov. 1, 2017 Interview with Undergraduate 1; Nov. 14, 2017 Interview with Visiting Scholar 5; Nov. 28, 2017 Interview with Graduate Student 30. Some students recognized that Jaeger occasionally made sexual jokes,272Oct. 25, 2017 Interview with Graduate Student 23; Nov. 28, 2017 Interview with Graduate Student 30. although one female graduate student clarified that they were made "only in social contexts" and with students who were comfortable with such conversations.273Nov. 28, 2017 Interview with Graduate Student 30. Graduate Student 30 told us that although she was never uncomfortable with Jaeger's comments, she knew that Bixby felt differently. She described a recruitment weekend in early 2015 when Bixby told her that she was uncomfortable with Jaeger, and added, "It was pretty well known that Keturah didn't like Florian." This student did not know of anyone else who was uncomfortable around Jaeger. As noted supra, at Section II.A.1.f, the incidents that caused Bixby to be uncomfortable with Jaeger occurred prior to 2014. For example, when presented a student with an email from Jaeger to his lab, which included the line, "I want to encourage you--old or young, fresh or...ripe?--to take advantage of opportunities to meet with visiting professors,"274Nov. 22, 2015 Email from F. Jaeger to students (attached as Exhibit 26.) the student told us that she was not offended.275Oct. 25, 2017 Interview with Graduate Student 23. Although Jaeger could be informal outside of an academic setting, students generally agreed that Jaeger had "always been really professional" with them in the classroom or lab.276Oct. 20, 2017 Interview with Post-doctoral Fellow 2; Nov. 1, 2017 Interview with Undergraduate 10; Nov. 14, 2017 Interview with Visiting Scholar 5; Nov. 28, 2017 Interview with Graduate Student 30.
Jaeger's reputation as promiscuous also seems to have faded in this time period. One of Jaeger's female graduate students stated that, prior to the disclosures in the EEOC Complaint, she was not aware of Jaeger's previous sexual relationships with women or that he had a reputation as a "womanizer."277Oct. 25, 2017 Interview with Graduate Student 23. This student explained that she was "surprised by the [EEOC] complaint" because she had met with two of the EEOC Complainants during her interviews at UR, which occurred after Bixby raised concerns about Jaeger's behavior in 2013, and neither of them had expressed any concern to her.278Oct. 25, 2017 Interview with Graduate Student 23.
Although much of the complaints are written in a way that makes the timing difficult to discern, there are two allegations in the complaints dating from this latter period. One allegation that was in the EEOC Complaint, but has been omitted from the federal complaint, was that some type of sexual misconduct might have taken place when a student, "Jane Doe,"279"Jane Doe" in the EEOC Complaint is referred to as "Cathy Crawford" in the federal complaint. visited UR in 2015.280EEOC Compl. ¶ 153; Fed. Compl. ¶ 212. The federal complaint now states that Doe "did not experience any sexual misconduct by Jaeger during the recruitment weekend."281The Complainants maintain, however, that it was wrong for Nearpass to fail to interview Doe after they suggested to her, again, without further basis, that they suspected something inappropriate had happened. See infra, at n. 300.
The federal complaint also notes that "[Doe] herself considers it strange that DeAngelis approved her staying at Jaeger's house . . . given the complaints he had already received." We spoke with two BCS faculty members who told us that it was "not atypical" for prospective students to stay with faculty during a recruitment weekend. (Oct. 12, 2017 Interview with Administrator 3; Oct. 27 & Nov. 1, 2017 Interviews with Faculty 17.) Additionally, Doe stayed in a hotel with other prospective students for the weekend, and only moved to Jaeger's house because she decided to spend a few extra days in Rochester, telling Kurumada and Jaeger that she "was interested in learning more about the city, the lab, and the people in the department." (Nov. 1, 2017 Interview with C. Kurumada.) A BCS administrator confirmed that UR does not pay for a hotel for students who stay for additional days, and thus it was "common" for visiting students to stay with faculty members. (Oct. 12, 2017 Interview with Administrator 3.) Furthermore, Aslin, who also knew of Bixby's 2013 Complaint, stated in an email to Nearpass that Doe staying with Jaeger "seemed innocent enough to [him]" when he first learned of it. (Mar. 16, 2016 Email from R. Aslin to C. Nearpass.) The other allegation pertains to a complaint Piantadosi received from a graduate student attending courses at the summer 2017 Kavli Institute (where Jaeger was faculty) that Jaeger was the only faculty member attending parties in the students' dorms until early in the morning.282EEOC Compl. ¶ 292; Fed. Compl. ¶ 373. We have not been able to identify or to speak with this student, but Jaeger told us that, following a day "hanging out" with multiple students, several of them invited him to a party of about 60-80 students held in the male dorms. Jaeger-the only faculty member present that evening (although faculty had socialized with students on other nights)-recalled playing Frisbee, drinking beer, being asked to dance and leaving late that night without anything untoward happening.283Dec. 18, 2017 Interview with F. Jaeger. According to Jaeger, the organizers of the Kavli Institute did not want faculty to socialize only with each other.284Jan. 5, 2018 Email from S. Modica to Debevoise & Plimpton LLP. For this reason, Jaeger made an effort to socialize in informal settings with students, as well as during the Institute's official parties, which all involved alcohol.285Id. Jaeger also noted that many of the "students" at the Institute were post-doctoral fellows.286Id. We spoke with the Title IX Officer at the University of California at Davis ("UC Davis"), who reported that the co-director of the Kavli Institute (who is a faculty member at UC Davis) received no complaints from students regarding Jaeger's behavior.287Jan. 2, 2018 Interview with W. Delmendo.
C. The University's Investigations and Their Aftermath
1. The Nearpass Investigation (March - May 2016)
The Aslin and Cantlon complaints against Jaeger in March and April 2016, respectively, arose at a time of heated discussions among BCS faculty over a hiring decision that included a potential spousal hire, with Aslin and Cantlon disagreeing with Jaeger and others.288Feb. 28, 2016 Emails between G. DeAngelis, R. Aslin and J. Cantlon; Feb. 29, 2016 Emails between G. DeAngelis, R. Aslin and J. Cantlon; Mar. 17, 2016 Email from R. Aslin to C. Nearpass; Oct. 12, 2017 Interview with G. DeAngelis; Oct. 13, 2017 Interview with Faculty 12; Oct. 17, 2017 Interview with Faculty 19; Oct. 20, 2017 Interview with Faculty 11; Oct. 30, 2017 Interview with G. Culver; Nov. 1, 2017 Interview with Faculty 8; Dec. 29, 2017 Letter from S. Modica to Debevoise & Plimpton LLP. Two days after a March 1, 2016 faculty meeting, at which the issue of faculty-student relationships was raised, Cantlon sent an email to Kidd, Piantadosi, Hayden, Heilbronner and Mahon (together with Aslin, the "BCS Faculty Complainants") inviting the group to dinner, saying "Between this gender thing, the BME search, and the Ralf/Florian bro connection I feel like I'm going crazy."289Mar. 3, 2016 Email from J. Cantlon to B. Hayden, S. Heilbronner, S. Piantadosi, C. Kidd and B. Mahon. Although she mentions Jaeger, there was no mention of concerns about sexual harassment.290Id. The dinner was scheduled for March 5, 2016 and it was that same evening, apparently after the dinner with this group, that Cantlon first told Aslin that Jaeger had had sexual relationships with students. Aslin immediately sent an email to DeAngelis, at 9:33 p.m., saying "I just talked to Jessica for an hour . . . It is not about you and me. Let's talk by phone soon. It's pretty ugly and involves other BCS faculty."291Mar. 5, 2016 Email from R. Aslin to G. DeAngelis Aslin was clearly upset by what Cantlon had told him. In a March 11, 2016 email, Aslin told Cantlon, "I am disgusted and angry. I will not let this rest until he is out of the dept."292Mar. 11, 2016 Email from R. Aslin to J. Cantlon.
Aslin relayed this report on behalf of Cantlon and those Cantlon claimed were victims of Jaeger's conduct to DeAngelis, Newport and the OOC.293Mar. 5, 2016 Email from R. Aslin to G. DeAngelis; Mar. 9, 2016 Email from R. Aslin to E. Newport; Mar. 28, 2016 Aslin Notes leading up to the complaint. On March 11, 2016, the OOC assigned Nearpass to investigate whether Jaeger had engaged in conduct in violation of the University's policies concerning (1) consensual relationships between faculty and students and (2) sexual harassment, as set forth in both the UR Intimate Relationships Policy and UR Policy 106.294Mar. 28, 2016 Aslin Notes leading up to the complaint. At that time, Nearpass had worked at UR for approximately 6 years and had conducted over 40 UR Policy 106 investigations.
The Nearpass investigation lasted two months and included interviews of over 30 witnesses (some more than once).295C. Nearpass Interview List. The witnesses included 15 of the 25 individuals Aslin identified in an email of March 13, 2016; three of the eight individuals Aslin identified in an email the following day; and 11 of the 19 witnesses Cantlon identified in a written complaint submitted to Nearpass in early April 2016.296Mar. 13, 2016 Email from R. Aslin to C. Nearpass; Mar. 14, 2016 Email from R. Aslin to C. Nearpass; Apr. 6, 2016 Email from J. Cantlon to M. Levy and C. Nearpass; Formal Complaint sent by J. Cantlon to M. Levy and C. Nearpass. Nearpass explained that her decisions regarding whom to interview were informed by the complaints themselves, leads received from witnesses and by information that Aslin and Cantlon provided regarding the potential interviewees.297Oct. 30, 2017 Interview with C. Nearpass. Cantlon herself had no personal complaints of sexual harassment against Jaeger and the two had been friends as recently as 2014, when Cantlon invited Jaeger to her child's birthday party. (Nov. 30, 2014 Email from J. Cantlon to F. Jaeger, et al.) Her complaint and the notes from her interview by Nearpass, which she reviewed and had the opportunity to supplement, reflect that Cantlon's only direct knowledge of Jaeger's alleged inappropriate conduct was that Graduate Student 15 had once been in a relationship with Jaeger and that Jaeger once made an inappropriate comment about Graduate Student 4 at a faculty-only dinner party. (C. Nearpass Notes of Mar. 11, 2016 Interview with J. Cantlon; Mar. 23, 2016 Email from J. Cantlon to C. Nearpass.) For example, Nearpass did not interview two students, who were described in Aslin's list only as former post-doctoral fellows supervised by faculty members other than Jaeger.298Mar. 13, 2016 Email from R. Aslin to C. Nearpass. When Nearpass followed up with Aslin, asking whether these two former students had any negative interactions with Jaeger or had information about the allegations, Aslin responded that one other student might have such information,299Apr. 8, 2016 Emails between R. Aslin and C. Nearpass. We interviewed Graduate Student 2, the other student identified by Aslin, who told us that she had been interested in working on a project with Jaeger, but changed her mind "partly because he creeped her out." This student said Jaeger would ask personal questions outside of the lab that were flirty and would stand very close to her. She continued to attend Jaeger's lab meetings because she did not think the "weird behavior would happen there"-which, she confirmed, it did not. (Nov. 2, 2017 Interview with Graduate Student 2.) but did not reply that either of the two suggested former students, both now gone from UR, did.300Apr. 8, 2016 Email from R. Aslin to C. Nearpass. The complaints also allege that Nearpass should have interviewed a prospective student, but did not, another sign, according to the Complainants, that Nearpass' investigation was not thorough. (EEOC Compl. ¶ 153; Fed. Compl. ¶ 212.) Nearpass stated that she did not interview Doe because "there was no evidence" to support the theory that Jaeger had sexually assaulted or harassed her during her visit to UR. (Oct. 30, 2017 Interview with C. Nearpass.) The Complainants have now conceded that nothing untoward took place. (Fed. Compl. ¶ 212 n.42.)
Emails from that time indicate that Cantlon and Kidd contacted potential witnesses, told them "current" students had raised concerns and told them to make sure to mention certain incidents when they spoke to Nearpass. On March 8, for example, Cantlon wrote to Graduate Student 15, "Can I call you to ask about Florian or no-go?"301Mar. 8, 2016 Email from J. Cantlon to Graduate Student 15. Cantlon also asked to meet with Graduate Student 6, telling her that she heard from Aslin that the student was thinking of leaving Jaeger's lab. When the student expressed surprise and disagreed, Cantlon told her that she was asking because female graduate students have a history of leaving Jaeger's lab. She explained that "Dick Aslin and I have heard some things from current students."302Mar. 9, 2016 Email from J. Cantlon to Graduate Student 15. Cantlon told Graduate Student 15 in a later email that, "Florian used to tell students what faculty thought of them" as a "power play" and that Graduate Student 15 "should share . . . with the intercessor" any "similar experiences."303Mar. 11, 2016 Email from J. Cantlon to Graduate Student 15. Graduate Student 4 was similarly encouraged to make specific allegations about Jaeger to Nearpass. In a March 19, 2016 email to Kidd, Cantlon asked, "Was [Graduate Student 4] aware that Florian was making comments about her body, wanting to sleep with her? If so can she write about that and send it?"304Mar. 19, 2016 Email from J. Cantlon to C. Kidd. Kidd responded that Jaeger had told Graduate Student 4 that another BCS faculty member found her attractive and, after Cantlon claimed that that is "sexual harassment," Kidd said that she would "make sure she knows to mention that."305Mar. 19, 2016 Email from C. Kidd to J. Cantlon. Cantlon added, "Anything like that, sex talk and sex jokes from professor to student is sexual harassment."306Mar. 19, 2016 Email from J. Cantlon to C. Kidd. On March 20, 2016, Aslin informed Cantlon that while Nearpass "said don't talk to people," a senior faculty member was "not on our master list for interviews and it's strange not to loop her in. We need troops on our side."307Mar. 20, 2016 Email from R. Aslin to J. Cantlon.
2. The Nearpass Report & Clark Determination (May - June 2016)
Nearpass' report was finalized on May 23, 2016. She made the following findings: (1) Jaeger's relationships were consensual and did not violate the UR Intimate Relationships Policy or UR Policy 106; (2) Jaeger's had only one relationship with a graduate student during his time at UR; (3) knowledge on the part of others of Jaeger's sexual relationships did not create a sexually hostile environment; (4) there was insufficient evidence to conclude that Jaeger had sexually harassed Kidd or other female students in his lab; and (5) Jaeger's "boundary pushing" did not amount to sexual harassment.308May 23, 2016 C. Nearpass Report.
Nearpass considered whether Jaeger's reputation for having relationships with students created an environment that was hostile to other students.309Id. at 7. Her report found the evidence to be mixed: while some women did report that they avoided Jaeger because he made them feel uncomfortable, "the vast majority" of the current and former students and post-doctoral fellows interviewed did not support the claim that Jaeger's prior relationships with students created a sexually hostile environment for women.310Id. The report also noted that much of the alleged behavior occurred many years ago and that Jaeger had "settled down in recent years."311Id. at 11 n.11. Nearpass' ultimate findings were predicated in part on the marked change in Jaeger's behavior since 2012 and the fact that witnesses raised "no current concerns" about his behavior.312Id. at 19.
Nearpass' report did not "clear" Jaeger of all wrongdoing. Although concluding that Jaeger had not violated UR Policy 106, Nearpass found that Jaeger had a "widely perceived reputation as someone who has not always maintained clear personal/professional boundaries," which had "caused discomfort among some female students in the past."313Id. Nearpass also found that Jaeger's decision to share his apartment with Kidd was a "gross lapse in (or lack of) judgment."314Id. at 14.
Nearpass' report went to Dean Clark for a final determination. He affirmed its findings in full in letters to Aslin, Cantlon and Jaeger on June 2, 2016.315Exhibit 4; June 2, 2016 Letter from R. Clark to F. Jaeger (attached as Exhibit 27.) The federal complaint alleges that Clark's intimate relationship with one of his direct reports "may have dulled [his] sensitivity to the perils Jaeger's behavior posed to students and UR's reputation." Fed. Compl. ¶¶ 45-46. Clark's romantic relationship with this individual began in September 2017-after his direct involvement in the Jaeger investigation. (Dec. 26, 2017 Interview with R. Clark; Dec. 27, 2017 Interview with Administrator 20; Dec. 27, 2017 Interview with Witness 8; Dec. 27, 2017 Interview with Witness 9.) Clark disclosed the relationship as required at that time and pursuant to a management plan put in place by the OOC, supervisory and evaluative ties between Clark and this individual were cut. (Sept. 9, 2017 Email from R. Clark to J. Seligman and G. Norris; Dec. 14, 2014 Interview with G. Norris.)
The federal complaint also accuses Seligman of engaging in an intimate relationship that created the potential for a conflict of interest. (Fed. Compl. ¶ 44.) We found no evidence that Seligman's relationship generated a perceived or actual conflict of interest. As provided for under UR Policy 121, Seligman entered into a conflict of interest management plan that was approved on October 24, 2014 by the OOC. (Oct. 24, 2014 Institutional and Individual Conflict of Interest Management Plan.) In doing so, Clark stated that there were "aspects of [Jaeger's] past behavior that warrant some review and discussion," and Clark signaled that DeAngelis, as the department chair, would address these with Jaeger316Exhibit 4; Exhibit 27..
Aslin and Cantlon were disappointed with the outcome of the investigation and remained adamant that the allegations they brought forward were accurate. Separately, Aslin indicated to Newport that he was considering leaving the University entirely.317June 7, 2016 Email from R. Aslin to E. Newport; June 22, 2016 Email from R. Aslin to E. Newport. In a June 5, 2016 email to DeAngelis, Aslin set forth three "potential sanctions" for Jaeger that DeAngelis should impose: (1) removal from the CLS directorship; (2) a "letter to the file" stating that Jaeger "has engaged in unprofessional behaviors"; and (3) a mandatory training seminar on workplace conduct and sexual harassment.318June 5, 2016 Email from R. Aslin to G. DeAngelis. Yet during a June 7, 2016 meeting with a BCS faculty member, Aslin said that he wanted Jaeger out of the department, and suggested a strategy for making his life "so uncomfortable" that he would leave on his own accord.319Jan. 5, 2017 Email among BCS Faculty Members.
3. Appeal of the Nearpass Findings (July - August 2016)
Confident that Nearpass' report overlooked key evidence, Aslin and Cantlon appealed Clark's decision on July 15, 2016.320July 15, 2016 Letter from R. Aslin to P. Lennie. Taubman reviewed Nearpass' report and the witness statements Nearpass had collected, and he met with both DeAngelis and Nearpass.321Exhibit 4. Taubman discussed with Nearpass why she had interviewed certain witnesses and had chosen not to interview others, and he asked her to investigate further whether Jaeger had had a sexual relationship with an undergraduate student.322Id. Although Nearpass was aware of Jaeger's relationship with an undergraduate student when she wrote her report, she did not mention it. When interviewed for this investigation, Nearpass explained that she omitted mention of the relationship because it did not violate any policy and because only one witness mentioned it to her, so to the extent that the claimants believed that Jaeger's relationships created a hostile work environment for other women, this relationship was not relevant. (Oct. 30, 2017 Interview with C. Nearpass.) She also considered the undergraduate student's request that her privacy be maintained. (C. Nearpass Notes of Apr. 16, 2016 Interview.) Taking these considerations together, Nearpass decided to protect the student's privacy by not including her in the report. (Oct. 30, 2017 Interview with C. Nearpass.) Nearpass confirmed to Taubman that the undergraduate student in question had graduated from the University before entering into a relationship with Jaeger,323Exhibit 4. though at the time, intimate relationships with undergraduates were not prohibited.324University of Rochester, Faculty Handbook (revised July 2008). Taubman considered Nearpass' investigation to be one of the most thorough with which he had had any involvement, and he concluded that her decisions regarding who to interview were appropriate and without bias.325Exhibit 4. On August 15, 2016, Taubman upheld Clark's decision.326Id. The Complainants criticize Taubman's decision, alleging that because he reports to Clark, he was not able to overturn Clark's decision. (EEOC Compl. ¶ 216; Fed. Compl. ¶ 260.) Taubman does not report to Clark, but rather reports to Seligman. (Oct. 17, 2017 Interview with M. Taubman; Nov. 28, 2017 Interview with R. Clark.)
From a policy compliance perspective, Nearpass' investigation and the ensuing appeal conformed to UR Policy 106 requirements. We found no evidence that Nearpass possessed a discriminatory motive in conducting her investigation and her decisions about which documents to collect and review and which witnesses to interview were well within the discretion granted to her under the policy.327Exhibit 3. Although the investigation would have been even more complete had Nearpass collected and reviewed Facebook messages proffered by Kidd, we do not think, having reviewed the full set of Facebook messages between Kidd and Jaeger-not the redacted set that Kidd proffered to DeAngelis-the finding would have differed.328Nearpass Report; Oct. 30, 2017 Interview with C. Nearpass; Exhibit 16.
4. Aftermath of the Nearpass Investigation (June - July 2016)
Having learned of the Clark ruling upholding the Nearpass findings, some of the Complainants began to share information from the investigation with fellow BCS faculty members in a bid to put pressure on DeAngelis to take forceful remedial action against Jaeger and on Jaeger to admit to his alleged wrongdoing and apologize (among other demands).329In a move that further angered the BCS Faculty Complainants, Jaeger was promoted to full professor before the appeal was filed. (Oct. 24, 2017 Interview with P. Lennie; Oct. 30, 2017 Interview with G. Culver; Nov. 22, 2017 Interview with J. Seligman.) The University followed its standard processes with respect to Jaeger's promotion (Oct. 24, 2017 Interview with P. Lennie; Oct. 30, 2017 Interview with G. Culver), but failed to take into account how the timing could be-and was-perceived. Culver already was reviewing Jaeger's possible promotion several months before the Aslin/Cantlon complaints (Oct. 30, 2017 Interview with G. Culver), and in April 2016, while the investigation was underway, she sent Lennie her recommendation, "without reservation and with high enthusiasm," that Jaeger be promoted. (Apr. 4, 2016 Letter from G. Culver to P. Lennie.) She did consider the Nearpass investigation: "[W]e got indication that the Policy 106 investigation was wrapping up and that it was likely that there would not be a finding of violation, so that's when I decided to move the promotion to the provost office for review." (Oct. 30, 2017 Interview with G. Culver.) Similarly, Lennie, who was the Provost at the time, stated that he held up the promotion until he "knew the outcome" of the Nearpass investigation. (Oct. 24, 2017 Interview with P. Lennie.) Although the initial vote to promote Jaeger was unanimous, Aslin wrote to DeAngelis on March 23, 2016 to revoke his affirmative vote. (Mar. 23, 2016 Email from R. Aslin to G. DeAngelis.)
University officials conceded that the timing of the promotion was ill-considered. Culver said that "in retrospect I would have changed the timing of when my decision came out." (Oct. 30, 2017 Interview with G. Culver.) Seligman said that he believes that Jaeger's promotion should not have proceeded until after the appeal was exhausted. (Nov. 22, 2017 Interview with J. Seligman.)
The BCS Faculty Complainants and Jaeger had been asked repeatedly by OOC to keep Nearpass' investigation and its findings confidential.330For example, after Jaeger described instances when he would discuss the investigation with others, Norris instructed Jaeger that "it would be best if he responded that he did not feel he should talk about it." (July 28, 2016 Memorandum to File from G. Norris.) Susan Wormer, Senior Counsel for Labor and Employment, added another note of caution, advising Jaeger to "continue to maintain confidentiality relating to these matters and to refrain from any actions which might be perceived as retaliatory." (Aug. 3, 2016 Email from S. Wormer to F. Jaeger.)
As for the Complainants, Nearpass "cautioned" Aslin "not to make any more contacts and of course not to tell anyone that there is an investigation ongoing." (Mar. 11, 2016 Email from R. Aslin to G. DeAngelis) (attached as Exhibit 28). Deputy General Counsel Richard Crummins later contacted Aslin and Cantlon to "reiterate what I believe has been Kate [Nearpass'] advice that you do not discuss the investigation with potential witnesses and others." (Apr. 14, 2016 Email from R. Crummins to R. Aslin and J. Cantlon.) These requests served legitimate goals and were consistent with UR policy and expectations, and with federal regulatory guidance. Maintaining confidentiality in investigations of potential harassment, to the fullest extent permitted by law and feasible consistent with the need to investigate, serves legitimate and compelling interests. Measures to preserve confidentiality serve to protect privacy and reputations and to encourage people to report misconduct and to be forthcoming in investigations without fear of embarrassment or reprisal. EEOC Guidance for employers provides that, in conducting an investigation of alleged harassment, "[a]n employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible."331U.S. Equal Emp't Opportunity Comm'n, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, § V.C.1 (last modified Apr. 6, 2010). The Guidance further provides that, while "[a]n employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses . . . information about the allegation of harassment should be shared only with those who need to know about it."332Id. Consistent with this federal regulatory guidance, UR Policy 106 also provides that "every effort will be made [by the University] to protect the privacy of all parties" in connection with an investigation, though it also acknowledges that "confidentiality cannot be guaranteed."333Exhibit 3.
In fairness to the BCS Faculty Complainants, the evidence indicates that the OOC sent them mixed signals on this issue. In a July 12 email from Aslin to the BCS Faculty Complainants, Aslin stated that Crummins had given them permission to "discuss the basics of the investigation with our colleagues as long as we did not defame TFLo by saying things that are false."334July 12, 2016 Email from R. Aslin to C. Kidd, J. Cantlon, B. Hayden, B. Mahon, S. Piantadosi and S. Heilbronner. According to notes that Kidd took after her interview with Nearpass, Kidd was told that she could disclose the investigation to "friends."335C. Kidd Notes from Mar. 18, 2016 Interview with C. Nearpass.
The lack of an official policy statement about the importance of confidentiality only added to the confusion some felt about the scope of confidentiality that applied to the University's investigations.336The OOC has since prepared a one-page information sheet about the UR Policy 106 process and now provides that to witnesses. The document states that the "University requires that you keep anything related to your interview (including any information discussed during the interview and the fact that an investigation is taking place) confidential. Please do not discuss this investigation or the allegations that are being investigated with anyone." (Exhibit 14.) Devising an appropriate policy regarding confidentiality in workplace and academic investigations is, in fact, a complex undertaking, involving a careful balancing of conflicting interests and legal considerations, as we discuss in more detail in Section IV.E below, and we therefore recommend that the University engage outside counsel to assist with that effort, as detailed in Section V.A.5. Whatever complexities may be involved in developing an optimal policy, though, and notwithstanding that we agree that there was a lack of clarity, the University had a legitimate interest in maintaining confidentiality for the protection of witnesses, claimants and Jaeger.
Whether driven by the belief that the confidentiality policy wrongfully protected Jaeger or that the confidentiality policy only prevented false and defamatory statements, Aslin, Cantlon, and other BCS Faculty Complainants engaged in a concerted effort to disclose their allegations about Jaeger's behavior and their interpretation of Nearpass' findings to other faculty. We found evidence that one or more BCS Faculty Complainants met with at least four other faculty members to inform them about Nearpass' findings and planned to meet with others too.337July 11, 2016 Email from R. Aslin to C. Kidd, J. Cantlon, B. Hayden, B. Mahon, S. Piantadosi, and S. Heilbronner. In a July 11 email, Aslin informed the other BCS Faculty Complainants that he had met with two faculty members and "brought them up to speed (not stating any details that are beyond the content of the investigative report)."338Id. Also in July, one faculty member had what he characterized to DeAngelis as a "deeply uncomfortable" interaction with Mahon.339Email from Witness to G. DeAngelis. "[I]t became clear," he wrote, "that there is an organized effort under way to spread [Aslin] et al.'s interpretation of the final report."340Id. He explained, "I was told details from the report and about the investigation that are of course impossible to verify for those not involved."341Id. Faculty 6 also noted that "three other faculty members . . . were similarly approached and 'briefed' by [Mahon], [Hayden] and [Aslin]."342Id.
On July 15, 2016, after fielding a complaint from Faculty 6, DeAngelis sent an email to Aslin, saying that he did "not agree with the tactics being taken by people in the department."343July 15, 2016 Email from G. DeAngelis to R. Aslin. DeAngelis feared that "these efforts are going to cause damage within the department that lasts for a very long time" and that his "authority has been undercut."344Id.
Jaeger also complained about the BCS Faculty Complainants' breaches of confidentiality. In a July 15 email, he informed Taubman and Culver that the BCS Faculty Complainants' breaches had created an environment in which he could not "conduct [his] research and teaching without fear of being bullied by some of [his] colleagues."345July 15, 2016 Email from F. Jaeger to M. Taubman, S. Wormer and E. Caruso.
Jaeger breached OOC's expectations of confidentiality as well, although not to the same extent. According to notes of a call that took place on July 28, 2016 with Norris, the University General Counsel, Jaeger said that the "only time he has talked about it is when colleagues have approached him first to ask him about what they've heard."346July 28, 2016 Memorandum to File from G. Norris. Norris told him "it would be best if he responded that he did not feel he should talk about it."347Id. Jaeger also told Curtin that he probably had told people that he "was exonerated and/or that the report concluded that he did not violate any policies."348C. Curtin Notes of Aug. 29, 2016 Interview with F. Jaeger.
5. The July 2016 Letter
In response to complaints by Jaeger and other BCS faculty that the BCS Faculty Complainants were continuing to talk with others in BCS about the investigation, Lennie and Culver sent the July 2016 Letter,349Exhibit 7. which stated that the University had "received multiple reports from several sources expressing concern about gossip . . . about the claims that resulted in the investigation" and denounced "gossip that appears to have undermined the confidentiality of the [investigative] process and fractured the department."350Id.
The BCS Faculty Complainants were incensed. Aslin complained that there was "no guidance to any of us" about confidentiality restrictions and questioned, "Why does the perp get to talk and the complainants/victims not?"351July 27, 2016 Email from R. Aslin to J. Cantlon, B. Hayden, B. Mahon, C. Kidd and S. Piantadosi; see supra, at n. 330 (note collecting emails regarding the expectation to maintain confidentiality).
6. The Curtin Investigation Appeal Determination (July - November 2016)
Believing that Jaeger was "spreading rumors about [her] honesty and reliability to other department members," Kidd filed a complaint with the OOC accusing Jaeger of retaliating against her for participating in the Nearpass investigation.352July 21, 2016 Letter from C. Kidd to G. Culver, G. DeAngelis and R. Crummins (attached as Exhibit 29.) Kidd also objected to being identified by name in Nearpass' report, despite Nearpass allegedly having stated that she would not be named without permission, and to the fact that the Nearpass report included that three witnesses had questioned Kidd's credibility.353Id.
In response, over the course of the next two months, Curtin interviewed 12 witnesses, including Kidd, Jaeger, Aslin, Cantlon, Newport, Mahon and Hayden.354Sept. 26, 2016 C. Curtin Report ("Curtin Report"). After conducting an initial round of interviews, Curtin requested access to BCS faculty members' emails because "issues around confidentiality became significant."355Curtin Report; Dec. 8, 2017 Interview with C. Curtin. In July 2016, Wormer had implemented a litigation hold on BCS faculty members' emails to "preserve all documents (electronic and hard copy) that are related to [the] respective complaints about Florian Jaeger and the recent investigation." (July 5, 2016 Email from S. Wormer to G. DeAngelis.) Wormer identified the genesis of the litigation hold as a July 1, 2016 letter the University had received from a law firm representing Aslin and Cantlon. (July 5, 2016 Email from S. Wormer to G. DeAngelis; Oct. 26, 2017 Interview with S. Wormer.) When interviewed, Wormer explained that the University decided to then review the preserved emails (1) to address complaints made by several BCS faculty members of breaches of confidentiality during and after the Nearpass investigation, and (2) to comply with Curtin's request to view emails as part of the investigation of Kidd's retaliation claims. This email search and review applied to the claimants, Jaeger, Kurumada, and DeAngelis. (Oct. 26, 2017 Interview with S. Wormer.)
Curtin's report, delivered on September 26, 2016, validated some of Kidd's allegations.356Curtin Report, 18. That same day, Curtin delivered a second report to Norris. This second report focused on whether senior faculty were aware of Jaeger's alleged conduct before Nearpass' investigation, whether faculty had received sexual harassment training, and the environment within BCS following Nearpass' investigation. The report also included suggestions from witnesses about how BCS could improve the environment. (Sept. 26, 2016 C. Curtin Supplemental Report.) Curtin concluded that Jaeger (and also "Complainants in the first investigation") had breached confidentiality during and after the investigation and that Nearpass' disclosure of Kidd's name was not appropriate.357Curtin Report, 18. Curtin found, however, that the decision by Nearpass to identify Kidd by name was mitigated by the fact that Jaeger would have been able to identify her anyway, due to the nature of her allegations.358Id. Curtin also determined there was not sufficient evidence to find that "references [among BCS faculty members] to allegations being 'made up' or 'untrue' were specifically in regard to [Kidd]"; that Jaeger was the source of the comments about Kidd's credibility or her motive for participating in Nearpass' investigation; or that Jaeger's statements to other people were made in retaliation rather than in defense of his reputation.359Id. On October 4, 2016, Culver accepted most of the findings of the Curtin report.360Oct. 4, 2016 Letter from G. Culver to C. Kidd (attached as part of Exhibit 4). In adopting Curtin's conclusion, Culver disagreed with Curtin's finding that Nearpass "took no steps to mitigate [Kidd's] concerns about the accused knowing the identity of other witnesses." (Id.) Culver characterized that finding as "simply untrue." (Id.) We, however, agree with Curtin's conclusion. While we credit Nearpass' view that any description of the allegations relating to Kidd would have made their identity obvious, and note that UR Policy 106 does not guarantee that confidentiality will be maintained, it was still an error of judgment to refer to her by name, revealing her identity not only to the accused but also to University decision-makers-DeAngelis, Clark, and Taubman-for whom the allegations would not have obviously identified Kidd.
On October 31, Kidd appealed Culver's determination361Oct. 31, 2016 Email from C. Kidd to R. Clark., which was denied on November 17.362Exhibit 4. Clark rejected Kidd's claim that Curtin's investigation was biased, finding "nothing in the investigation" that revealed any bias by the investigator.363Id. We reviewed the full Curtin Report investigation file-including notes of the interviews she conducted with witnesses-and interviewed Curtin. We find no factual basis for Kidd's accusation that Curtin was not capable of conducting an independent investigation solely because the University paid her fees. Curtin has conducted or supervised over 1,000 independent investigations. (Curtin Report, 1 n.1.) Her ethical obligation was to make findings independently of the University. The practical reality is someone or some entity needs to pay. No employer would or could impose, at least before a finding of culpability, the economic burdens of an investigation on employees. That cost must be shouldered by the employer.
7. Bixby Complaint (August 2016)
While the Curtin investigation was ongoing, a new complaint relating to Jaeger was presented to the University administration: on August 23, 2016, Bixby, together with Graduate Student 14, Graduate Student 17, Graduate Student 4 and Post-doctoral Fellow 13, sent a letter to Lennie, Culver, Heinzelman and DeAngelis alleging that they had "experienced and/or witnessed harassment and inappropriate sexual comments" from Jaeger while they had been in BCS.364Exhibit 13. Although these individuals did not join Bixby's letter anonymously at the time, they have requested anonymity in connection with this investigation and report. This group of former students and researchers stated that this conduct created an environment that "adversely affected [their] professional development, including missed educational opportunities at courses/workshops he led, missed networking with [their] peers at social events he attended, and/or missed academic collaborations with his advisees."365Id. Nearpass had interviewed three of the five signatories to Bixby's August 2016 letter during the Jaeger investigation. (Nearpass Interview List.)
Bixby's letter triggered the University's duty to respond; under UR Policy 106, "the University will look into and respond to all good faith concerns and complaints raised under this Policy . . . ." 366Exhibit 3. The University did respond-Lennie responded on August 26, 2016 that he would "look into the issues you raise"; DeAngelis and Culver offered to meet with Bixby; Lennie and Sturge-Apple met with Bixby on September 7, 2016; and Levy met with Bixby on September 15, 2016.367Aug. 23, 2016 Email from G. DeAngelis to P. Lennie, G. Culver and W. Heinzelman; Aug. 23, 2016 Email from W. Heinzelman to G. DeAngelis; Aug. 23, 2016 Email from G. Culver to G. DeAngelis, W. Heinzelman and P. Lennie; Aug. 26, 2016 Email from P. Lennie to K. Bixby, W. Heinzelman, G. Culver and G. DeAngelis; Sept. 8, 2016 Email from K. Bixby to P. Lennie and M. Sturge-Apple (attached as Exhibit 30); Sept. 23, 2016 Email from K. Bixby to M. Levy (attached as part of Exhibit 31). Although the OOC typically oversees investigations into allegations that implicate UR Policy 106, Levy oversaw the response to Bixby's concerns because the allegations dealt with a topic-Jaeger's conduct-that the University had already investigated.368Jan. 6, 2018 Email from G. Norris to Debevoise & Plimpton LLP. Levy's mandate was to determine whether Bixby-who had already been interviewed by Nearpass during the University's investigation into Jaeger's behavior-had new information about Jaeger.369Sept. 29, 2016 Email from M. Levy to K. Bixby (attached as part of Exhibit 31); Jan. 6, 2018 Email from G. Norris to Debevoise & Plimpton LLP.
To address Bixby's concerns, Levy conducted a comprehensive review of the previous Jaeger complaints-she told Bixby that she "was provided the opportunity to review portions of the most recent investigation file, including the [Nearpass] report . . . related determination letters, pertinent witness interview summaries, and follow up documents."370Oct. 4, 2016 Email from M. Levy to K. Bixby (attached as part of Exhibit 31). Levy also reviewed Bixby's correspondence with DeAngelis during the 2013 complaint process and DeAngelis' follow-up with Jaeger and Bixby.371Id. Based on this review, Levy assured Bixby that the University's prior investigation into Jaeger's conduct was thorough and appropriate.372Oct. 11, 2016 Email from K. Bixby to M. Levy (attached as part of Exhibit 31). Bixby disagreed. She said that efforts to instruct Jaeger "to have boundaries and not harass people ha[d] been ineffective," noting that "Florian mocked the sexual harassment prevention training openly in late 2015."373Id.
Despite Bixby's lingering concerns about Jaeger, she declined to file a new complaint and expressed frustration with the University's process for handling sexual harassment complaints, stating that she was "not . . . comfortable going through the university's current process again."374Id. Bixby added, "given that you also mentioned at lunch that people have to quit grad school for the environment to be considered hostile, why would I want to make a new formal complaint? I already know what the outcome will be."375Id. Levy denies this description of her conversation with Bixby. According to Levy, she told Bixby that "access to educational opportunity must be sufficiently impacted to demonstrate severe or pervasive [harassment], not that someone would have to leave. (Oct. 4, 2017 Interview with M. Levy.)
Levy proceeded to contact potential witnesses. Levy followed up with the two signatories to Bixby's letter who had not been interviewed during the Nearpass investigation, but only Graduate Student 14 spoke with Levy.376Oct. 4, 2016 Email from Levy to Graduate Student 14; Oct. 4, 2016 Email from M. Levy to Graduate Student 4; Oct. 4, 2016 Email from M. Levy to Post-doctoral Fellow 13; Oct. 4, 2016 Email from M. Levy to Graduate Student 17; Oct. 21, 2016 Email from M. Levy to Graduate Student 17 (all attached as part of Exhibit 32). Graduate Student 14 told Levy that Jaeger had acted inappropriately towards her in insulting, highly dismissive, hurtful and condescending ways and had also made a pass at her at Lux during her first year.377M. Levy Notes of Oct. 7, 2016 Interview with Graduate Student 14; Oct. 13, 2017 Interview with Graduate Student 14. Levy allowed Graduate Student 14 to review her notes from their meeting before forwarding them to the OOC.378Nov. 15, 2017 Interview with M. Levy; Oct. 13, 2017 Interview with Graduate Student 14; Oct. 7, 2016 Graduate Student 14 edits to M. Levy's Notes. The OOC took no further action.
The University's response to Bixby's letter was in compliance with UR Policy 106 procedures. UR had recently completed an exhaustive investigation into allegations that Jaeger sexually harassed students, and three of the five signatories of Bixby's letter had been interviewed by Nearpass during that investigation.379C. Nearpass Interview List. Bixby's letter did not bring forth new allegations of misconduct, and Levy's interview with Graduate Student 14-who had not been interviewed by Nearpass-did not elicit information that would have altered the outcome of the University's judgment that Jaeger did not violate UR Policy 106.
8. DeAngelis Sanctions Jaeger and Forms Workplace Conduct Committee (August - September 2016)
Although invisible to the claimants and the witnesses who had complained about Jaeger's conduct, Jaeger did face consequences from the University as a result of the Aslin/Cantlon complaint. On August 29, DeAngelis officially reprimanded Jaeger, highlighting in a letter all of the conclusions of the Nearpass investigation that DeAngelis found disturbing or troubling, even if they did not violate University policies.380Exhibit 5. In the letter, which had been reviewed by the OOC, DeAngelis instructed Jaeger to complete training on respectful workplace behavior by December 1, 2016; to "reflect on these matters"; and to work on modifying his behavior.381Id. He included this last piece despite the Nearpass finding that Jaeger's conduct had already improved markedly from the earlier period.
Second, DeAngelis announced to BCS faculty the formation of a Workplace Behavior Committee (made up of Duje Tadin, Kathy Nordeen, Renee Miller and Alyssa Kersey) "to raise awareness" of sexual harassment and other types of unacceptable workplace behavior and "to put procedures and guidelines in place that will help to promote a healthy and happy workplace."382Aug. 29, 2016 Email from G. DeAngelis to BCS Faculty, Staff, Students and Post-Doctoral Fellows (attached as Exhibit 33). That Committee proceeded to meet through the fall of 2016 and to prepare draft guidelines, which it sent on November 19 to the University's OOC for input.383Nov. 19, 2016 Email from G. DeAngelis to S. Wormer, M. Levy, G. Culver and P. Lennie; Nov. 19, 2016 G. DeAngelis BCS Workplace Behavior Guidelines Draft (attached as Exhibit 34). The OOC asked for time to review the proposals because "there are a number of places where information is either incomplete or inconsistent (with policies/practice)." (Nov. 21, 2016 Email from S. Wormer to G. DeAngelis.) After not receiving a response from Wormer for several weeks, DeAngelis sent an email to her on January 22, 2017 asking for a status update (Jan. 22, 2017 Email from G. DeAngelis to S. Wormer.); Wormer responded that the OOC has been busy with other matters but had briefly reviewed the guidelines and decided they needed "pretty much an entire overhaul." (Jan. 22, 2017 Email from S. Wormer to G. DeAngelis.) Additional progress on the draft guidelines for BCS stalled at this point until February, when Norris met with the BCS Workplace Behavior Committee to discuss their proposals.
On October 7, 2017, the BCS Workplace Behavior Committee sent a letter to the Faculty Senate Executive Committee requesting that they revisit and revise University policies on harassment and discrimination. (Oct. 7, 2017 Letter from Workplace Behavior Committee to Faculty Senate Executive Committee.) The letter noted that their own effort to establish guidelines "never really advanced anywhere as it met with resistance from the central administration." (Oct. 7, 2017 Letter from Workplace Behavior Committee to Faculty Senate Executive Committee.)
Despite DeAngelis' efforts to move forward, Aslin, Cantlon, Kidd and the other EEOC Complainants remained profoundly upset by the University's handling of their allegations and expressed their views to Lennie, Taubman, Seligman and others throughout the fall of 2016. Aslin threatened to leave the University, including in a September 5 letter to Lennie taking the position that Jaeger must make a "good faith attempt to reconcile, first by apologizing to the affected students and then by admitting to the faculty that he behaved badly," or "leave the university."384Sept. 5, 2016 Letter from R. Aslin to P. Lennie. If Jaeger did not agree to that course of action, Aslin stated that he and many of the other faculty members would leave the University.385Sept. 5, 2016 Letter from R. Aslin to P. Lennie. This was not the first time Aslin had threatened to leave the University in response to the Jaeger investigation. On August 11, for example, Aslin wrote a faculty member that he was considering leaving "immediately." Email from R. Aslin to Witness. Along similar lines, Kidd wrote to Lennie on September 19 that "the distress in my department will not be resolved until we address the fact that the investigation itself was deeply flawed."386Sept. 19, 2016 Email from C. Kidd to P. Lennie and G. DeAngelis; Sept. 19, 2016 Letter from C. Kidd to P. Lennie and G. DeAngelis.
DeAngelis continued to try to facilitate some form of resolution or closure. On September 20, DeAngelis told Aslin that he has imposed "sanctions" on Jaeger but that he could not, consistent with longstanding practices concerning personnel matters, reveal what they are.387Sept. 20, 2016 Email from R. Aslin to P. Lennie. Aslin told Lennie that this was insufficient "because there needs to be 'closure' for the complainants and witnesses."388Id. Two days later, DeAngelis asked Aslin and Cantlon to meet with the University Intercessor, Lynnett Van Slyke, to figure out the "right approach" for "facilitat[ed] discussions."389Sept. 21, 2016 Email from G. DeAngelis to R. Aslin (attached as Exhibit 35). Aslin refused, stating that he does "not trust anyone associated with the UR legal department" and does "not feel comfortable 'negotiating' on behalf of the victims."390Sept. 22, 2016 Email from R. Aslin to G. DeAngelis.
9. Claimants' Meetings with Seligman and Van Slyke (October - November 2016)
In October, Aslin and Cantlon signaled a new willingness to compromise. They met with Seligman on October 26 to discuss their concerns and expressed an openness to a "reconciliation process."391Oct. 26, 2016 J. Seligman Notes on Meeting with R. Aslin and J. Cantlon (attached as Exhibit 36). The meeting focused on "suggestions...that might improve our processes with respect to Title IX and 106 cases" and Aslin's and Cantlon's thoughts on "how can we heal BCS."392Id. Aslin and Cantlon asked for Seligman's support for a revised Intimate Relationships Policy that would prohibit consensual relationships between faculty members and graduate students in the same department; Seligman said that he would not oppose such a prohibition but that it was the Faculty Senate's responsibility to propose and approve changes to the policy. Second, Aslin and Cantlon recommended removing Jaeger from his directorship of CLS.393Id. Although Seligman does not remember if he supported Jaeger's removal, AS&E subsequently recommended Jaeger's removal from the post.394Oct. 30, 2017 Interview with G. Culver; Jan. 2, 2018 Interview with G. DeAngelis. DeAngelis' understanding of Jaeger's removal was that it was not done "as a consequence of the investigation per se." DeAngelis said that Jaeger's removal had more to do with his failure to submit a training grant proposal, which he had agreed to do in exchange for obtaining University resources for the Center. (Jan. 2, 2018 Interview with G. DeAngelis.) Third, Aslin and Cantlon pressed Seligman to impose a moratorium on Jaeger's ability to recruit new graduate students; Seligman recalls not agreeing with that proposal.395Exhibit 36; Nov. 22, 2017 Interview with J. Seligman. Fourth, Aslin and Cantlon said that the University needed to make a statement about the case.396Exhibit 36. Fifth, they insisted that Jaeger needed to acknowledge fault and undergo training.397Id. Seligman "promised to circle back to Aslin and Cantlon" after discussing with Lennie, Norris and Culver.398Id. Although other deans and Norris met frequently with claimants during the remainder of the academic year, Seligman did not meet again with Aslin or Cantlon-or any other EEOC Complainant.
Aslin also met with University Intercessor Van Slyke on November 1 to discuss the possibility of the University administration and the BCS chair making a public statement about Jaeger.399Oct. 17, 2017 Interview with L. Van Slyke. During this meeting, Aslin agreed to a mediated conversation with Jaeger if Jaeger admitted to conduct from his first years as a professor.400Id. In an email the following day to Jaeger, Van Slyke described her meeting with Aslin as "productive" and invited Jaeger to discuss next steps with her before he reached out to Aslin.401Nov. 2, 2016 Email from L. Van Slyke to F. Jaeger (attached as Exhibit 37).
10. Aslin's Letter to Jaeger and Jaeger's Concern for His Students (November 2016)
On November 2, Aslin sent a letter to Jaeger presenting two options: (1) "[D]rop the pretense, admit that you engaged in inappropriate sexual relations with graduate students and at least one recent undergraduate (as well as others outside the UR), and admit that your denial of Celeste's testimony about sexual harassment was untruthful" or (2) "[T]ough it out, continue to deny any and all allegations, and hope that everyone in BCS 'gets over it.'"402Nov. 2, 2016 Letter from R. Aslin to F. Jaeger. Aslin went on to state that "several faculty (including me) will not remain silent. Although we risk a defamation suit by you should we 'go public', we think that such a legal action (and a counter suit by us) would ultimate lead to the truth. . . . I don't see anyone willing to pony up funds for your defense."403Id. Aslin added that "you can be assured that future 'warnings' will be raised whenever you try to engage with other unsuspecting faculty."404Id. Despite Aslin's statement in the letter that Jaeger "not interpret this letter as a threat,"405Id. both Jaeger and the OOC lawyers viewed it as such.406Oct. 26, 2017 Interview with S. Wormer.
In response to the letter, Jaeger began expressing concern to the OOC about the effect the investigations and their aftermath were having on his current and former students. On November 8, 2016, Jaeger told Wormer and Norris that he "really would like to have a chance to talk with my students, both former and current."407Nov. 8, 2016 Email from F. Jaeger to S. Wormer, G. Norris and L. Van Slyke. He said he was "really concerned about them-both in terms of the rumors and their worries how this might affect their career, and in terms of my significantly diminished energy, which they (not knowing what's been going on all along) might wrongly take as a sign of less interest or commitment from me)."408Id. He asked for guidance on "what would qualify for sharable information."409Id. Jaeger also addressed the toll the controversy was having on him, saying that "the number of days where I'm close to snapping (either in anger or desperation) keeps increasing."410Id. Later that day, Norris responded that there was "no legal prohibition on you discussing your situation with your students-subject to the usual caveats on slander or other inappropriate or unprofessional statements."411Id.
Jaeger told his graduate and post-doctoral fellows following a lab meeting that he had been "cleared."412Interview with Witness; Oct. 25, 2017 Interview with Graduate Student 23. This lab meeting likely took place on January 19, 2017.413Jan. 8, 2018 Email from S. Modica to Debevoise & Plimpton LLP. Aside from this lab meeting, one witness told us that he had observed Jaeger discussing the investigations with students and post-doctoral fellows.414Interview with Witness. These discussions consisted mostly of Jaeger "professing his complete innocence of absolutely everything except for the things that are undeniable," like the relationship he had with Graduate Student 19.415Interview with Witness.
11. Provost Clark's Memo to Faculty (November - December 2016)
The first "public" statement by the University came after, and partly in response to, Aslin's November 2, 2016 letter. Clark sought to strike a balance by issuing a statement-as Aslin and Cantlon demanded-acknowledging that there had been an investigation, while also urging the department to move on.416Nov. 28, 2017 Interview with R. Clark. In the November 2016 Memo, Clark confirmed that there had been a UR Policy 106 investigation into Jaeger's conduct and that "the University considers the matter closed."417Exhibit 8. Van Slyke, who was among the group involved in the letter's drafting process, gave Jaeger an opportunity to review, but not revise, the letter.418Nov. 21, 2016 Email from L. Van Slyke to F. Jaeger. The November 2016 Memo also announced - with Jaeger's consent -- the availability of a summary of key findings "in an effort to clarify things for the department and to help it move forward and begin to heal."419Exhibit 8. Significantly, the November 2016 Memo also noted "the wealth of rumors and in some instances misinformation" within BCS. The November 2016 Memo's final paragraph proved particularly divisive:
Finally, as the chief academic officer for the institution, I affirm that Dr. Jaeger is a valued member of our faculty. He has achieved tremendous academic success since his arrival in 2007, including being promoted with tenure in 2013 and his promotion to full professor in 2016. We look forward to continuing to support Dr. Jaeger, as we do all of our faculty, and to Dr. Jaeger's continued success as teacher, researcher and scholar here at the University of Rochester.420Id.
Although intended to move the department forward, the memo had the opposite effect. The BCS Faculty Complainants interpreted the memo as an endorsement of Jaeger's conduct, dividing the department even further. Aslin wrote a letter to Lennie and Seligman to express the he felt "personally insulted by how [he] ha[d] been treated",421Nov. 30, 2016 Letter from R. Aslin to J. Seligman and P. Lennie. and Cantlon, Kidd and Piantadosi told DeAngelis that they and other BCS Faculty Complainants were considering leaving the University.422Nov. 29, 2016 Email from J. Cantlon to G. DeAngelis; Nov. 29, 2016 Email from C. Kidd and S. Piantadosi to G. DeAngelis. Faculty members and University administrators, when interviewed, referred to the memo as "tone-deaf,"423Oct. 27, 2017 Interview with Faculty 6. "not tactful,"424Nov. 27, 2017 Interview with Faculty 21. and akin to "tossing gasoline onto glowing embers."425Dec. 9, 2016 Letter from Faculty 20, Faculty 13 and Faculty 7 to R. Clark (attached as Exhibit 38). Culver stated, "It was written to try and calm things down again, and make people understand this is the department they exist in and it is who we are at the moment. But I think it missed its mark and had a complete opposite effect."426Oct. 30, 2017 Interview with G. Culver.
As the November 2016 Memo promised, the University made a summary of the Nearpass findings available for review in Van Slyke's office from November 30 - December 7, subject to the execution of a confidentiality agreement.427Nov. 1, 2017 Email from L. Van Slyke to Debevoise & Plimpton LLP; Oct. 17, 2017 Interview with L. Van Slyke. After the summary first became available, the University added a written statement provided by Jaeger and a copy of the November 2 letter from Aslin to Jaeger; those additional documents then were made available to any BCS faculty member.428Nov. 1, 2017 Email from L. Van Slyke to Debevoise & Plimpton LLP; F. Jaeger Statement to BCS Faculty; Nov. 2, 2016 Letter from R. Aslin to F. Jaeger. Eight of the 18 BCS faculty members read or listened to the summary report and three returned or went to read the Jaeger statement and Aslin letter, when they became available the following week. Four witnesses told us that Jaeger made the decision to include Aslin's letter, with Wormer stating that Jaeger felt "very threatened" by it.429Oct. 26, 2017 Interview with S. Wormer; Nov. 14, 2017 Interview with G. Norris; Nov. 28, 2017 Interview with R. Clark; Oct. 17, 2017 Interview with L. Van Slyke. Van Slyke told us that Jaeger decided to publicize Aslin's letter because his own letter quoted some of Aslin's letter and one of his colleagues recommended making a redacted copy of Aslin's letter available so that it would not seem that he was cherry-picking language.430Nov. 1, 2017 Email from L. Van Slyke to Debevoise & Plimpton LLP.
The University made several efforts during this period to respond to questions and defuse tensions within the department. But with the University unwilling to sanction Jaeger further and the claimants unwilling to settle for less, the deterioration of relationships continued. At a December 2 BCS faculty meeting with Lennie and Culver, BCS Faculty Complainants raised concerns about signing a confidentiality agreement before reviewing the Summary Findings and again, the November 2016 Memo came under criticism.431Dec. 1-2, 2016 Emails between BCS Faculty and L. Van Slyke, P. Lennie, G. Culver, P. Lennie and G. DeAngelis. Clark then followed up with another memo on December 5, expressing his "regret" that the wording of his November 2016 Memo might have led the faculty to conclude that he was repudiating the findings of the University's investigation. (Dec. 5, 2016 Email from R. Clark to BCS Faculty) (attached as Exhibit 39). On December 16, Lennie, Culver and Norris met again with BCS faculty to discuss UR's sexual harassment policies and its handling of the Jaeger investigation.432See Dec. 8, 2016 Emails between G. Norris, P. Lennie, G. Culver and G. DeAngelis discussing Dec. 16 meeting. Participants described a heated exchange about the adequacy of the Nearpass investigation.433Dec. 16, 2016 Email from G. Norris to J. Seligman, P. Lennie, R. Clark, G. Culver and L. Murphy. Then, on January 9, 2017, Clark met with three BCS professors to address his controversial November 2016 Memo.434EEOC Complaint ¶ 256; Fed. Compl. ¶ 307.
12. Aslin Resigns in Protest (December 2016)
Aslin's repeated indications during the prior several months that he might leave the University came to a head on December 2, 2016 when he resigned.435EEOC Complaint ¶ 248; Fed. Compl. ¶ 297. Aslin already had been planning to retire in the near future. In October 2014, long before the allegations that led to the Nearpass and Curtin investigations, Aslin prepared a letter detailing his plan to unwind his University position starting in June 2016, with continuing reduction in his responsibilities through 2019.436Oct. 1, 2014 Letter from G. Culver to R. Aslin (attached as Exhibit 40). However, Aslin appears to have accelerated those plans based on his disagreement with the University.
The federal complaint alleges that John Foxe, Chair of the UR Department of Neuroscience, told Cantlon, Mahon and Hayden that "central UR administration" had "shut down" his attempts to retain Aslin by moving him from BCS to the Neuroscience Department.437Fed. Compl. ¶¶ 305, 448(h). Foxe confirmed that he tried to retain Aslin, who had just recently recruited Foxe to UR, but strongly denied that the University administration opposed the idea.438Dec. 13, 2017 Interview with J. Foxe. Seligman said that he did not want Aslin to resign, but noted Aslin's preexisting commitment to leave in 2019.439Nov. 22, 2017 Interview with J. Seligman.
13. Jaeger Apologizes to BCS Faculty (December 2016)
On December 7, 2016, in connection with the release of the summary of findings and Jaeger's accompanying six-page written statement, Jaeger sent an email to the BCS faculty, stating that he "deeply regret[s] my part in the struggle that our department has been going through. There are mistakes that I made many years ago that, with the benefit of hindsight, I would not repeat. I sincerely apologize for any feelings that have been hurt as a result."440Exhibit 6. He promised to issue a more detailed statement "in which I address both the mistakes I have made, and the many rumors about me."441Id. Jaeger also stated that he was "eager to contribute whatever I can to help the healing both of individual relationships, and the department on the whole."442Id.
His longer statement, made available to BCS faculty who went to view the confidential summary of findings, offered an apology "for any damage I might have done to the women I had relationships with or to students in the department that were disturbed by rumors they heard about me."443F. Jaeger's Written Statement. Jaeger wrote that "it is important that I own up to any errors in judgment I have made, while also providing my own perspective of what has happened over the past several months and the impact it has had on me and others."444Id.
14. Professional Repercussions for Jaeger (December 2016-February 2017
Aslin had warned Jaeger that "you can be assured that future 'warnings' will be raised whenever you try to engage with other unsuspecting faculty."445Nov. 2, 2016 Letter from R. Aslin to F. Jaeger. Thereafter, Aslin told the former adviser of a graduate student who transferred to UR in August 2016 to work primarily with Jaeger "about the "TFlo situation."446Aug. 9, 2016 Email from R. Aslin to C. Kidd, J. Cantlon, B. Hayden, S. Piantadosi and B. Mahon. After arriving at UR, the student's adviser sent an email to him to say that he had "heard that things are a little tricky at Rochester at the moment," adding that "Dick Aslin and I were talking a few days ago about general stuff going on in their department . . . ." 447Aug. 12, 2016 Email from Student's Adviser to Graduate Student 31. The former adviser offered to talk with the transfer student "if you wanted to run through it with anyone."448Id.
In December 2016, Jaeger was summarily disinvited as a plenary speaker at the 2017 Georgetown University Round Table ("GURT") conference.449Dec. 12, 2016 Email from D. Lightfoot to F. Jaeger. After speaking with the conference organizer, David Lightfoot, about the rescinded invite, Jaeger wrote that Lightfoot had told him that his invitation was withdrawn because Lightfoot "had been approached by some people who threaten to boycott GURT if [Jaeger] was invited."450Dec. 14, 2016 Email from Jaeger to D. Lightfoot (attached as Exhibit 41). Jaeger complained about the decision, calling it "academic bullying."451Id. Lightfoot declined to speak to us and we have not been able to confirm who approached him.
After learning that Jaeger's invitation to GURT had been withdrawn, the OOC grew more concerned that Jaeger was being blacklisted and that litigation could ensue and requested that the Information Technology ("IT") Department preserve the emails of Aslin, Jaeger, Piantadosi and Hayden.452Dec. 15, 2017 Interview with S. Wormer; Dec. 5, 2017 Interview with S. Wormer. The IT Department subsequently imaged the emails and a link to the emails was sent to Wormer.453Dec. 5, 2017 Interview with S. Wormer. Wormer confirmed that she requested the email preservation, but she has no recollection of having reviewed them.454Id. The complaints also allege that Aslin's emails were searched in March or April 2017. (EEOC Compl. ¶ 267; Fed. Compl. ¶ 317.) Wormer denied conducting such a search or requesting that it be conducted, and Mike Pinch, the University's Chief Security and Technology Officer, confirmed this. (Dec. 27, 2017 Email from S. Wormer to Debevoise & Plimpton LLP; Jan. 3, 2018 Email from M. Pinch to Debevoise & Plimpton LLP.) We have found no evidence that such a search took place.
On December 20, 2016, Faculty 21 notified Norris that he had learned from a colleague at UCSD that a BCS faculty member had approached him with information about Jaeger, alleging that UR's investigation into Jaeger had been flawed.455Dec. 5, 2017 Interview with S. Wormer. Jaeger was able to substantiate this incident to Norris and Wormer; Jaeger claimed that a professor at UCSD had told him that "a senior member of the faculty at Rochester" had discussions with faculty members at UCSD about the allegations against Jaeger.456Jan. 5, 2017 Email from F. Jaeger to S. Wormer and G. Norris. Jaeger said that "it rather unambiguously identifies Dick as the person who contacted someone at UCSD."457Id.
On January 5, 2017 Jaeger reported his concerns about the "prolonged smear campaign" to DeAngelis and senior faculty members of BCS.458Jan. 5, 2017 Email from F. Jaeger to Faculty 19, Faculty 13, Faculty 20, G. DeAngelis and Faculty 7. Jaeger wrote that he had "been told that at least at Northwestern, Princeton and UCSD people had heard of the allegations against me 'through the grapevine.'"459Id. He claimed that these academics had been told that Jaeger "got off on a technicality" and that he "had sexual relations with 18 undergraduate and graduate students."460Id. Jaeger implored his colleagues: "how many more lines Dick and others would have to cross so that you would speak publicly to say that enough is enough."461Id. After dropping Jaeger from the chain, the faculty members shared their concerns.462Jan. 5, 2017 Emails between Faculty 19, Faculty 13, Faculty 20, G. DeAngelis and Faculty 7. One faculty member said that he "already had two colleagues from other universities talk to me about this," and confirmed that Aslin had "told a lot of details about the case."463Id. This faculty member said that the threats made against Jaeger were "horrifying," adding that the "same person cannot be the accuser, the judge and the punisher."464Jan 5, 2017 Email from Faculty 19 to Faculty 13, Faculty 20, G. DeAngelis and Faculty 7. Another faculty member likened the activities to a "sort of vigilantism."465Jan. 5, 2017 Email from Faculty 13 to Faculty 19, Faculty 20, G. DeAngelis and Faculty 7.
15. University Administrators' Engagement with the BCS Faculty Complainants' Policy Proposals (November 2016 - January 2017)
The BCS Faculty Complainants were also very engaged during this period in efforts to change University policies and procedures relating to sexual harassment and sexual misconduct. The record is replete with examples of letters sent by the BCS Faculty Complainants to the administration, and meetings between the BCS Faculty Complainants and University administrators, to discuss reforms to the University's policies and ensure that perceived errors in the Jaeger investigations were not repeated. For example, on November 30, Aslin wrote a ten-page letter to Seligman and Lennie detailing his complaints about the handling of the Jaeger complaint;466Nov. 30, 3016 Letter from R. Aslin to J. Seligman and P. Lennie. thereafter, Lennie met with Aslin on December 2 to further discuss the concerns.467Oct. 24, 2017 Interview with P. Lennie; Nov. 30, 2016 Email from P. Lennie to R. Aslin. On January 3, Kidd and Piantadosi wrote to Lennie and Culver with a detailed account of their criticisms of the Jaeger investigation and proposed revisions to University policies; neither Dean replied to their letter.468Jan. 3, 2017 Email from S. Piantadosi and C. Kidd to P. Lennie and G. Culver.
These sincere attempts by Aslin, Kidd and Piantadosi to change what they perceived as a broken system led to positive reforms. As noted, DeAngelis created the BCS Workplace Behavior Committee to create a set of guidelines for appropriate workplace behavior and Lennie drafted proposals to make the Intimate Relationships Policy more restrictive.469In October 2016, Lennie met with the co-chairs of the Faculty Senate to express his desire to revise the Intimate Relationships Policy to prohibit certain faculty relationships with graduate students and post-doctoral fellows. (Oct. 24, 2017 Interview with P. Lennie.) Lennie found the co-chairs "emphatically uninterested" in broadening the code of conduct provisions, while Faculty 10 told us that a bright-line prohibition on faculty relationships with graduate students "would have passed," adding that there would not have been a "huge amount of resistance" from faculty. (Id.; Interview with Faculty 4 and Faculty 10.) In December 2016, however, the co-chairs informed Lennie that "the preponderance of opinion" was against revisiting the decision not to include graduate students or post-doctoral fellows in the class of individuals with whom faculty relationships result in automatic policy violations. (Dec. 8, 2016 Email from Faculty Senate Co-Chair to Lennie.) Lennie continued to follow up with the co-chairs, sending proposed language on January 2017. (Jan. 17, 2017 Email from P. Lennie to Faculty Senate Co-Chairs and G. Culver (attached as Exhibit 42); "Intimate Relationships with Students and Postdocs" Draft.) Lennie and Culver's proposed language changes included requiring faculty to establish a professional management plan before entering into a relationship with any member of the University community "over whom they exercise, or might have the potential to exercise, the authority of their faculty position." ("Intimate Relationships with Students and Postdocs" Draft) The change would explicitly apply to faculty relationships with graduate students and post-doctoral fellows. Lennie's and Culver's proposed language was not included in the final version of the revised policy adopted in May 2017. (Exhibit 1.) On February 1, Norris met with members of the BCS Workplace Behavior Committee to discuss the language in their revision of the Intimate Relationships Policy and, in May 2017, the Faculty Senate enacted a stricter Intimate Relationships Policy that expanded the categories of consensual faculty-student relationships that were disallowed.470We investigated the federal complaint's allegation that Norris "reacted angrily" when a Faculty Senate committee proposed changes to the Intimate Relationships Policy. The complaint alleges that Norris said "that the new policy would be like 'throwing a firebomb' at a BCS faculty member." (Fed. Compl. ¶ 350.) The allegation about the "firebomb" comment relates to a March 20, 2017 email sent by Faculty 10 to the Faculty Senate Committee working on the policy revision, which included J. Cantlon. (Mar. 20, 2017 Email from Faculty 10 to Faculty Senate Committee.). In the email, under the heading "non-substantive concern," Faculty 10 described Norris' reaction to the proposed revisions to the policy as follows: "she immediately reacted angrily seeing the language, and asserted that this would be like 'throwing a firebomb' at some faculty member in BCS." (March 20, 2017 Email from Faculty 10 to Faculty Senate Committee.)
Norris told us that it was possible that she used the word "firebomb" in reference to the draft language because she saw it as "out there." (Dec. 27, 2017 Email from G. Norris to Debevoise & Plimpton LLP.) The draft language that Norris found problematic provided that faculty-student relationships "are generally problematic, even if there appears to be consent by both individuals?. [S]uch a relationship may undermine the real or perceived evaluation and accomplishments of the less powerful party, such that the achievements may be viewed by others through a biased lens. Such relationships can also have adverse effects on the climate of a department or program." (Draft "Intimate Relationships with Students and Post-doctoral fellows" language; Jan. 24, 2017 Email from Faculty 10 to Norris.) Norris was surprised to see the changes because she was under the impression that "the [Senate Executive Committee] had no appetite for revising the policy." (Jan. 24, 2017 Email from G. Norris to Faculty 10.) Norris also highlighted language in the draft that she thought posed "some legal issues." (Jan. 24, 2017 Email from G. Norris to Faculty 10.) Also in response to the complaints about the Jaeger investigation, the OOC prepared a one-page information sheet about the UR Policy 106 process, including guidance about both confidentiality and retaliation, which has been provided to witnesses since September 2016.471Exhibit 14.
16. January 2017 Faculty Meeting
A new problem erupted in BCS in January, when Wormer and Norris decided to share certain of the BCS faculty emails that they had collected in July 2016 with DeAngelis.472Jan. 6, 2017 Email from G. DeAngelis to G. Norris and S. Wormer. These were from email searches that OOC conducted to investigate breaches of confidentiality and Kidd's retaliation claims in the summer of 2016. Wormer said she provided the emails to give DeAngelis "a better idea of why our office felt the way it did," and allow him to reach his own conclusions about the investigations.473Oct. 26, 2017 Interview with S. Wormer. "We gave him the spiel about how he can't retaliate. And I don't think he did; I think [the Complainants] just don't like that he knows about some of this stuff."474Id. Norris stated, "The intent was not to get [DeAngelis] mad at [Aslin], it was to try to get [DeAngelis] to understand why the things he was doing to try to heal the department weren't working."475Nov. 14, 2017 Interview with G. Norris.
Angered by the emails, DeAngelis called a BCS faculty meeting for January 10, 2017.476Jan. 10, 2017 Email from G. DeAngelis to S. Wormer. The Complainants allege that DeAngelis "announced that he had in front of him a stack of emails that showed 'manipulation and deception of faculty members' and the 'smearing' of Jaeger.477EEOC Compl. ¶ 259; Fed. Compl. ¶ 310. He allegedly said that "the emails showed 'definitive proof' that there had been widespread lying,478One faculty member did not recall DeAngelis saying that people were lying. Nov. 21, 2017 Interview with Faculty 16. deceit, and manipulation in the complaints against Jaeger."479EEOC Compl. ¶ 259; Fed. Compl. ¶ 310. The Complainants allege that "[i]t was clear to everyone" that DeAngelis was referring to Aslin, Cantlon, Kidd, Piantadosi, Mahon and Hayden.480EEOC Compl. ¶ 259; Fed. Compl. ¶ 310. The Complainants assert that at least two additional incidents reveal that the University's decision to cast doubt on their credibility originated from the highest levels of the administration. The first incident is a meeting that occurred between Seligman and Jeffrey Runner, current Dean of the College of AS&E, during which Seligman allegedly told Runner that the witnesses who had complained about Jaeger had "witnessed nothing." Runner, however, denies that this statement was made. (Oct. 27, 2017 Interview with J. Runner.) The second incident allegedly occurred in April 2017: the federal complaint contends that "[w]hile traveling together for a fundraising trip," Seligman told Foxe "that the case against Jaeger was all hearsay and that Aslin had overreacted." (Fed. Compl. ¶ 295.) Foxe categorically denies this occurrence. According to Foxe, "I've never traveled anyplace with [Seligman]. I've had very limited exposure to [Seligman]." Foxe stated, "Under no circumstance ever has [Seligman] disparaged Dick Aslin or any of the Complainants to me." (Dec. 13, 2017 Interview with J. Foxe.)
We found that DeAngelis did refer to the emails, but he did not reveal the contents of the emails or the specific authors. As stated by Faculty 13, "DeAngelis did not . . . reveal at the faculty meeting, who was the author of the emails he felt demonstrated efforts to manipulate opinions about the case or mislead faculty about their ultimate intentions regarding [Jaeger]."481Faculty 13 Notes on EEOC Complaint. This faculty member said that DeAngelis "was particularly careful to not mention any names, and did not state that everyone involved in bringing complaints forward was at fault."482Id. The faculty member further stated that Cantlon then "began telling people she was accused of being a 'liar, manipulator, smearer'-these are labels she applied to herself, and at various times I cautioned her against doing so."483Id.
The BCS Faculty Complainants were understandably upset with the revelation that their emails had been collected by the OOC, shared with their department chair and discussed at a faculty meeting. DeAngelis later wrote to the BCS faculty to "sincerely apologize to those of you who feel that my comments unfairly targeted you and harmed your reputations."484Feb. 3, 2017 Letter from G. DeAngelis to BCS Faculty. DeAngelis stated that "I have little doubt that much of the behavior that has divided us was well-intentioned in the context of a very difficult situation."485Id.
The OOC's decision to collect the faculty members' emails did not violate UR's IT Policy.486The Complainants allege that "it has become commonplace for the University to search the UR emails of faculty, staff and students who are perceived as potential threats to the University," including those who file sexual harassment complaints and undergraduate sexual assault victims who seek help from the Title IX office. (Fed. Compl. ¶ 43.) Levy and Mark Fischer, the Director of the Department of Safety, confirmed that their respective offices have never searched or collected a student's email in connection with a sexual assault investigation or any other type of investigation. (Dec. 13, 2017 Email from M. Levy to Debevoise & Plimpton LLP; Dec. 27, 2017 Email from M. Fischer to Debevoise & Plimpton LLP.) With respect to the Complainants' allegation that Seligman directed that the emails of a member of the Board of Trustees be searched, Norris confirmed that no trustee's emails have been searched. (Dec. 27 & 28, 2017 Emails from G. Norris to Debevoise & Plimpton LLP.) The University is allowed to access and collect emails stored on University servers without the consent of the employee in order to investigate a violation of University policy and in cases where litigation is threatened.487Exhibit 15. With respect to the OOC's decision to share some of the collected emails with DeAngelis, UR's IT Policy provides that faculty "have reasonable expectations of privacy in their uses" of IT Resources, but goes on to state that "rights to privacy are constrained in the University environment because," among other things, "legal and ethical restrictions apply."488Exhibit 15. Although the OOC's decision to provide DeAngelis with the emails did not violate any University policy, the judgment to do so resulted in deepening the divide between the claimants and others in the department and was inconsistent with the emphasis that Policy 106 places on confidentiality. We recommend that UR review its IT Policy to make clearer the range of circumstances that justify review of emails and to specify criteria for sharing emails outside of OOC.
17. Hayden and Heilbronner's Retention and Hiring Issue (December 2016 - April 2017)
The Complainants assert that UR's pattern of retaliatory conduct extended to its hiring and retention decisions involving Hayden and Heilbronner for their association with the complaints about Jaeger.489The Complainants' allegations of retaliation omit that the University also took the following actions after Aslin, Cantlon and Kidd complained about Jaeger's conduct: (1) on May 13, 2016, the Board of Trustees approved Cantlon's promotion to Associate Professor with tenure (May 18, 2016 Letter from J. Seligman to J. Cantlon) (attached as Exhibit 32); (2) on September 15, 2016, DeAngelis wrote a letter recommending Kidd for the Sloan Research Fellowship (Sept. 15, 2016 Letter from DeAngelis to Selection Committee) (attached as Exhibit 44); (3) in December 2016, Jaeger wrote a letter to "fully support" Mahon's promotion to Associate Professor with tenure (Letter from F. Jaeger in support of Mahon promotion) (attached as Exhibit 45); (4) in the spring of 2017, Jaeger wrote to "fully support" reappointing Kidd and Piantadosi as Assistant Professors following their third-year reviews, which were successful (Feb. 28, 2017 Email from F. Jaeger to G. DeAngelis); and (5) Mahon was promoted to Associate Professor. Specifically, the Complainants allege that UR rejected Heilbronner, the "top candidate" and best fit for a BCS position;490EEOC Compl. ¶¶ 28, 274-75, 289, 326(d); Fed. Compl. ¶¶ 324-27, 329 refused to hire Heilbronner despite hiring other spouses; and made minimal efforts to retain Hayden.492EEOC Compl. ¶¶ 28, 314(l), 326(e); Fed. Compl. ¶¶ 330-31, 403(i), 410(n).
Many BCS witnesses confirmed that BCS and UR had traditionally made efforts to hire spouses, although departmental needs and resources end up dictating the ability to hire a spouse.493Nov. 22, 2017 Interview with J. Seligman; Oct. 30, 2017 Interview with G. Culver; Oct. 13, 2017 Interview with Faculty 13; Oct. 12, 2017 Interview with Graduate Student 25. UR is not required to make offers to retain faculty members, or to make offers to hire the spouses of faculty members.494Nov. 15, 2017 Interview with G. Culver. One faculty member explained that there were "several cases" of BCS not making spousal hires on grounds that the candidate was not appropriate.495Oct. 26, 2017 Interview with Faculty 20. In 2016, BCS voted to extend an offer to a faculty applicant (which he accepted) but decided not to also extend an offer to his spouse, who was then given an offer by a different department. (Oct. 20, 2017 Interview with Faculty 11.) In another case, a coveted professor rejected BCS's offer after the department did not offer his wife a job. (Oct. 26, 2017 Interview with Faculty 20; Oct. 13, 2017 Interview with Faculty 13.)
BCS faculty deliberations about whether to extend an offer to Heilbronner began in September 2015, when the department decided to delay the search for a Systems Neuroscience faculty member by one year, in part to give Heilbronner more time to strengthen her candidacy.496Oct. 13, 2017 Interview with Faculty 13; Oct. 17, 2017 Interview with Faculty 19; Oct. 23-24, 2017 Interview with Faculty 5. At the time, some faculty members expressed concerns about whether Heilbronner's research focus "fit" into the open Systems Neuroscience spot, while other faculty members did not believe Heilbronner was quite ready.497Oct. 13, 2017 Interview with Faculty 13; Timeline provided by Faculty 13; Oct. 23-24, 2017 Interviews with Faculty 5. The search resumed in earnest in November 2016, when the hiring committee, composed of DeAngelis, Nordeen and Jude Mitchell-all with a research interest in Systems Neuroscience-selected the finalists to interview for the position, including Heilbronner498Timeline provided by Faculty 13.. The hiring committee-although impressed with Heilbronner's academic achievements and publications- thought that Heilbronner's area of expertise was not a good fit for the position.499Id. Indeed, multiple witnesses confirmed that Heilbronner, then a post-doctoral fellow in Neurology, was not, as an anatomist, a good fit for the open BCS position; still, she was being considered in an effort to retain Hayden.500Dec. 13, 2017 Interview with J. Foxe; Nov. 1, 2017 Interview with Faculty 8; Oct. 30, 2017 Interview with G. Culver; Oct. 13, 2017 Interview with Faculty 13; Nov. 21, 2017 Interview with Faculty 16; Oct. 23-24, 2017 Interview with Faculty 5; Oct. 26, 2017 Interview with Faculty 20; Oct. 20, 2017 Interview with Faculty 7; Oct. 13, 2017 Interview with Faculty 12.
The BCS faculty met on December 9 and December 13, 2016 to discuss the slate of candidates.501Oct. 12, 2017 Interview with G. DeAngelis. Traditionally, BCS faculty members defer to the judgments of the hiring committee, given their direct research interest and expertise in the academic sub-specialty.502Oct. 13, 2017 Interview with Faculty 12. Witnesses said that, despite this practice and the committee's concerns about Heilbronner's candidacy, Cantlon insisted that the department "had to hire" Heilbronner because of the possibility that Hayden would leave, and that it was a "waste of time" to even discuss other candidates.503Oct. 12, 2017 Interview with G. DeAngelis; Oct. 13, 2017 Interview with Faculty 12; Oct. 13, 2017 Interview with Faculty 13; Timeline provided by Faculty 13. Cantlon also threatened that she and the other BCS Faculty Complainants would leave the University if BCS failed to retain Hayden.504Oct. 12, 2017 Interview with G. DeAngelis; Oct. 13, 2017 Interview with Faculty 12; Oct. 13, 2017 Interview with Faculty 13; Timeline provided by Faculty 13. Other BCS Faculty Complainants who attended the meeting agreed with Cantlon, noting that they did not want to lose their existing research collaborations with Hayden.505Timeline provided by Faculty 13. Multiple witnesses said that the BCS Faculty Complainants' conduct at these and subsequent hiring meetings was startling and disturbing.506Oct. 12, 2017 Interview with G. DeAngelis; Oct. 13, 2017 Interview with Faculty 12; Oct. 13, 2017 Interview with Faculty 13; Oct. 26, 2017 Interview with Faculty 20; Oct. 17, 2017 Interview with Faculty 19. One senior faculty member characterized the conduct during these meetings as the "worst behavior [he had] ever seen" at a faculty meeting.507Oct. 26, 2017 Interview with Faculty 20. Witnesses expressed concern that if the BCS Faculty Complainants prevailed in having Heilbronner hired over the wishes of the hiring committee-counter to the department's traditional hiring practice-the BCS Faculty Complainants would become emboldened to continue to employ this tactic in future hiring decisions.508Oct. 12, 2017 Interview with G. DeAngelis; Oct. 13, 2017 Interview with Faculty 13.
On February 17, 2017, the department met to discuss the candidates.509Timeline provided by Faculty 13. The BCS Faculty Complainants again threatened to leave UR if Heilbronner was not hired.510Id. After the meeting, the faculty voted 10-4 in favor of making an offer to another candidate (who later turned down the offer).511Id.
The Complainants assert that Jaeger's vote on Heilbronner was in retaliation for her involvement in the investigations.512EEOC Comp. ¶ 326(c); Fed. Compl. ¶¶ 433(c), 437(c). Although we found no evidence that Jaeger "lobb[ied] against hiring Heilbronner to others in the department", as alleged in the complaints,513EEOC Comp. ¶ 326(c); Fed. Compl. ¶¶ 433(c), 437(c). DeAngelis did, on March 9, in an effort to forge a path to hire Heilbronner and retain Hayden, reach out to only those faculty members who opposed extending an offer to Heilbronner to gauge whether they would support a supernumerary position in BCS for Heilbronner.514Timeline provided by Faculty 13. The next day, these faculty members held a meeting to consider the matter further and subsequently decided not to extend an offer for a supernumerary position.515Timeline provided by Faculty 13; Oct. 17, 2017 Interview with Faculty 19; Nov. 1, 2011 Interview with Faculty 8; Oct. 27 & Nov. 8, 2017 Interviews with Faculty 6. In an email to Culver and Lennie explaining the decision, DeAngelis said that many faculty members are "really fed up with the shenanigans in the department over the past year and they want their department back. They are very concerned that hiring Sarah will add to the group that has factionized [sic] the department, and will embolden them to continue to take the department hostage whenever they want something."516Mar. 12, 2017 Email from G. DeAngelis to G. Culver and P. Lennie.
Nevertheless, DeAngelis continued to try to find a position for Heilbronner in order to retain Hayden. Eventually, Foxe became involved and sought to create a neuroscience position for Heilbronner. In April 2017, Foxe met with Heilbronner to discuss a non-tenure track position.517Dec. 13, 2017 Interview with J. Foxe. According to Foxe, Heilbronner already had an offer from the University of Minnesota at that point.518Id.
Foxe ultimately made Heilbronner an oral offer to join the Neurology Department at URMC as a tenure-track faculty member. Heilbronner was given a draft offer letter, which was in the process of being approved by UR's HR Department, but she accepted the University of Minnesota's offer before it was approved. Foxe said the approval process was "simply a formality" and that Heilbronner was "unanimously" elected to the faculty by the department.519Dec. 8, 2017 Email from J. Foxe to Debevoise & Plimpton LLP. Foxe characterized Heilbronner's offer "as good an offer as we've ever given to anybody" at her level.520Dec. 13, 2017 Interview with J. Foxe. Foxe stated, "We were doing something way above the standard call of duty. We're creating a tenure-track position in one of the premier neuroscience departments in the world so we could give her a position."521Id. In sum, the majority of BCS faculty did not think that Heilbronner was the best candidate for the BCS position, but DeAngelis and Foxe made a significant effort to keep Heilbronner at UR and to retain Hayden.
The federal complaint also alleges that Foxe pressured the BCS Faculty Complainants to stop pursuing their complaints in order to aid him in hiring Heilbronner, saying he would "face obstacles with the administration" when he tried to hire her.522Fed. Compl. ¶ 329(c), 329(e), 448(h). Foxe denies these allegations. According to Foxe, he had no idea that she was involved in the ongoing "BCS thing" at the time he tried to hire Heilbronner.523Dec. 13, 2017 Interview with J. Foxe. Per Foxe, "[T]here was no complaint at that time. I was thoroughly unaware that anything was going on at that point. I was under the impression that the matter was closed."524Id. Foxe added, "I have never had any pushback from the administration on trying to retain people. Nobody's ever interfered in my job in that regard."525Id. Foxe denied that anyone pressured him either way with respect to hiring Heilbronner.526Id.
With respect to Hayden, the University offered an increased salary, increased funding and other financial incentives.527May 5, 2017 B. Hayden Retention Offer. One senior faculty member in Neuroscience explained that the reason Hayden's offer from Minnesota appeared much higher than the one offered by BCS was because Minnesota included funding to build a lab, "which he wouldn't have to do at UR."528Oct. 23-24, 2017 Interview with Faculty 5. Another faculty member in Neuroscience described the Minnesota offer as "insane" and "double the offer most institutions offer."529Nov. 2, 2017 Interview with Faculty 3. She stated that Hayden confided in her that he was leaving because of the better financial resources and larger department at Minnesota.530Id. A review of other BCS retention offers from 2012 to 2016 revealed that Hayden's offer was similar to or greater than other precedents in the Department.531July 25, 2012 J. Cantlon Retention Offer; July 25, 2012 B. Mahon Retention Offer; Feb. 8, 2016 D. Tadin Retention Offer; Apr. 5, 2013 F. Jaeger Retention Offer.
18. Spring 2017 Performance Reviews of Kidd and Piantadosi (February 2017)
The Complainants allege that DeAngelis wrongfully permitted Jaeger to participate in the spring 2017 performance reviews of Kidd and Piantadosi,532EEOC Compl. ¶¶ 226; Fed. Compl. ¶¶ 285-86. The federal complaint adds that DeAngelis "kept Jaeger's participation secret from them." (Fed. Compl. ¶ 286.) and assert that Jaeger used this as an opportunity to retaliate further against them by criticizing Kidd's collaborative work.533EEOC Compl. ¶ 227; Fed. Compl. ¶ 287.
While it is true that Jaeger was involved in the spring 2017 performance evaluations of Kidd and Piantadosi, he fully supported their reappointment.534Feb. 28, 2017 Email from F. Jaeger to G. DeAngelis; Dec. 15, 2017 Interview with G. DeAngelis. In an email to DeAngelis from February 28, Jaeger wrote that Kidd and Piantadosi were "clear cases for re-appointments," which he "fully support[ed]."535Feb. 28, 2017 Email from F. Jaeger to G. DeAngelis. With respect to the claim by Kidd and Piantadosi that DeAngelis had assured them that "Jaeger would not be involved in either of their evaluations,"536EEOC Compl. ¶ 226; Fed. Compl. ¶ 285. DeAngelis denied providing such assurance. "I recall Kidd and Piantadosi raising concerns about Jaeger being involved in their tenure review cases, but I don't recall there being discussion of the third year review."537Oct. 9, 2017 G. DeAngelis Notes on EEOC Complaint. In any event, DeAngelis did not recall Jaeger "saying anything critical" during Kidd's review.538Dec. 15, 2017 Interview with G. DeAngelis.
19. Potential RIT Group Hire (May 2017)
In May 2017, Cantlon, Mahon, Kidd, Piantadosi, Hayden and Heilbronner interviewed at the Rochester Institute of Technology ("RIT") about a potential group hire.539May 2, 2017 Email from J. Pelz to RIT employees. The Complainants allege that in order for this move to be successful, they required continued access to a medical scanner housed at the University's MRI center, and that the University, in "another example of retaliation," said that it would charge them a rate 2.5 times higher than it charges University researchers to use the scanner.540EEOC Compl. ¶ 282; Fed. Compl. ¶ 335.
As of May 2017, the UR scanner's heaviest users from AS&E were Cantlon and Mahon, who paid approximately $150,000 per year of the $500,000 AS&E spends each year to operate the scanner.541Oct. 24 & Nov. 21, 2017 Interviews with P. Lennie; Sept. 27, 2017 Interview with J. Pelz; May 9, 2017 Emails between J. Pelz and J. Cantlon.
In pursuing offers at RIT, the BCS Faculty Complainants were in contact with Jeff Pelz, a senior RIT Professor. Pelz spoke on the phone with Lennie on May 2 and May 9 about the potential of the group going to RIT and continuing to use UR's scanner.542May 2, 2017 J. Pelz Notes of Call with P. Lennie; May 9, 2017 J. Pelz Notes of Call with P. Lennie (attached as Exhibit 46). According to detailed notes from those conversations taken by Pelz and Lennie's recollection of those calls, Lennie agreed that Cantlon and Mahon could continue to use the scanner if they left UR for RIT, but said that the University would no longer subsidize its use and that RIT would be charged $500,000, the cost to AS&E for operating the scanner.543Exhibit 46. Lennie told us that he was not penalizing the group seeking to leave UR, but rather was attempting to cover the costs of running the scanner.544Dec. 18, 2017 Interview with P. Lennie. Cantlon's and Mahon's view was that UR should continue to subsidize them, even while they were at another institution, because UR could benefit from "building the intellectual resources in the region."545May 9, 2017 Emails between J. Pelz and J. Cantlon.
Pelz's notes and Lennie's recollection differ on one point: the hours during which the group would have access to the scanner. Pelz's notes reflect that the group could have "regular daytime use only until UR gets new uses" and then would have to shift to "unsocial hours."546Exhibit 46. Another section of Pelz's notes reflect that the group would be given "low priority access." Lennie told us that he made it "clear there would be no restrictions on access."547Dec. 18, 2017 Interview with P. Lennie.
Pelz's notes of the call indicate that Lennie said that "nobody at UR views it as a plus if they go to RIT," and it was UR's "first choice" to have the Complainants "stay at UR."548Exhibit 46. Lennie also told Pelz that the Complainants were in a "complicated situation that's made many people here pretty uncomfortable,"549Id. and Pelz told us that he recalls Lennie telling him during one of the calls that "no one thinks they are going to stay at UR."550Sept. 27, 2017 Interview with J. Pelz. In explaining why it was "not an advantage at all" for UR to continue to subsidize Cantlon and Mahon's scanner use to encourage them to stay in the city of Rochester, Lennie said that "the idea that keeping them in the area is a good thing isn't high on the thinking of anyone at UR," and that if claimants left UR, then it "doesn't matter where they are."551Exhibit 46. Lennie told us that UR "certainly didn't want them to leave."552Oct. 24, 2017 Interview with P. Lennie.
Ultimately, Pelz informed Cantlon, Mahon and Hayden by email on May 9, 2017 that the scanner costs would likely be negotiable and that compromise was possible.553Exhibit 46. The Complainants further assert that the scanner is "required to be open to all legitimate researchers" since it was "purchased with federal funds."554EEOC Compl. ¶ 282; Fed. Compl. ¶ 335. Our investigation uncovered no evidence that the University denied access to legitimate researchers, including the BCS Faculty Complainants.
20. Maternity Leave and Course Load Issues
The EEOC Complaint alleged retaliation against Kidd in connection with her 2016 maternity leave and also in connection with Cantlon's 2017-2018 course load.555EEOC Compl. ¶¶ 265, 314(g). Both allegations have been omitted from the federal complaint.
Briefly, as to Kidd, the EEOC Complaint alleges that DeAngelis tried to unlawfully limit her October 2016 maternity leave to a two-week period,556Id. These allegations were not included in the federal complaint. but it does not allege that she was actually limited to two weeks. In fact, in August 2016, Kidd asked DeAngelis about the possibility of a graduate student covering her course for the remainder of the semester after her upcoming maternity leave ended.557Aug. 29, 2016 Email from G. DeAngelis to C. Kidd; Aug. 29, 2016 Email from G. DeAngelis to Graduate Student. DeAngelis agreed and hired a graduate student to complete the semester for Kidd.558Aug. 29, 2016 Email from G. DeAngelis to C. Kidd; Aug. 30, 2016 Email from G. DeAngelis to Graduate Student.
As to Cantlon, the EEOC Complainants contend that DeAngelis retaliated against her by trying to impose on her a heavier course load than other faculty members for the current 2017-18 academic year.559EEOC Compl. ¶¶ 265, 289. These allegations were not included in the federal complaint. The relevant documents do not support this conclusion. On August 24, 2017, DeAngelis told Cantlon that he would like her to teach a lecture course in the spring 2018 semester, as she only had one course scheduled for the academic year and there were no other faculty members with a free course slot.560Aug. 26, 2017 Email Chain between G. DeAngelis and J. Cantlon (attached as Exhibit 47). Cantlon refused, taking the position that she was not prepared to teach a large lecture class and suggesting that other professors had lighter course loads.561Id. DeAngelis then calculated course loads and found that Cantlon's had been lighter overall.562Id. DeAngelis emphasized to Cantlon that the issue was that she teach a regular course load during the 2017-18 academic year, and that past course loads were not the concern: "I am not asking you to overload on teaching, or to make up for your previous teaching load-that is not the case. I am just asking you to teach a full load this coming academic year."563Id. After further discussion, DeAngelis agreed to allow Cantlon to teach a new undergraduate course instead.564Oct. 9, 2017 G. DeAngelis Notes on EEOC Complaint.
21. Events Leading Up to EEOC Complaint (March 2017 - September 2017)
In addition to the retention efforts involving Hayden, which ended in May when Hayden and Heilbronner accepted positions at the University of Minnesota,565May 10, 2017 Email from S. Heilbronner to J. Foxe. this period also included RIT's efforts to recruit the four remaining BCS Faculty Complainants. Just prior to that, in April 2017, Mahon sent an email to Jaeger that he and Cantlon wanted to meet to "talk about some of the things have been going on in BCS."566Apr. 20, 2017 Email from B. Mahon to F. Jaeger, Faculty 20, J. Cantlon and G. DeAngelis. Jaeger conveyed his willingness to do so, but the meeting never happened.567Apr. 25, 2017 Emails between F. Jaeger, B. Mahon, Faculty 20, J. Cantlon and G. DeAngelis.
On September 7, 2017, the EEOC Complainants publicly released the EEOC Complaint.