Michigan State University

Decision on Appeal

By: Courtney Bullard, Equity Review Officer

In re: Matter of Brenda Tracy / Mel Tucker (Case No. 2022-02053)
Date: January 10, 2024

On November 8, 2023, Mel Tucker (“Respondent”) appealed the October 25, 2023 decision by the
Resolution Officer (“Decision”), which found, by a preponderance of the evidence, that Respondent
engaged in behavior that violated the Michigan State University Relationship Violence and Sexual
Misconduct and Title IX Policy (“RVSM and Title IX Policy” or “Policy”) 1 by sexually harassing Claimant
in violation of RVSM and Title IX Policy Section III.A, and sexually exploiting Claimant in violation of
the Policy Section III.B.5. 2

Claimant, Investigator, and the Resolution Officer (“RO”) submitted timely responses to Respondent’s
appeal statement. The University provided Claimant and Respondent the opportunity to review the
Investigator and RO’s responses to the appeal and Respondent the opportunity to review Claimant’s
response to the appeal.

I. Standards

The MSU Relationship Violence & Sexual Misconduct & Title IX Policy Appeal Procedures (“Appeal
Procedures”) provides that appeals may be filed on the following grounds:

● Procedural error that affected the outcome of the matter.

● The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or
bias for or against claimants or respondents generally, or the individual Claimant or
Respondent that affected the outcome of the matter.
● New evidence that was not reasonably available at the time the determination regarding
responsibility was made that could affect the outcome of the matter.
● The written decision was arbitrary and capricious.3

Respondent appeals based on claimed procedural error, bias, new evidence, and arbitrary and capricious
findings. Under the Appeal Procedures, the party filing the appeal – here, Respondent – bears the burden
of proof. 4

In order to reverse, remand, or modify the RO’s Decision based on procedural error, Respondent must
demonstrate that the Investigator or the RO made one or more procedural error(s) and that the error(s)

1
The Investigator conducted the investigation in accordance with the Policy last updated on January 13, 2023. See
Final Investigation Report (“FIR”) at Attachment 1.
2
On November 28th, Respondent's advisor submitted an addendum to his appeal. On November 28th, I notified
Respondent's advisor that good cause did not exist to accept Respondent's addendum past the appeal deadline therefore
the information contained in the addendum was not considered in this determination.
3
Appeal Procedures at I.C.
4
Appeal Procedures at I.D.

1
impacted the outcome of the decision such that without the error(s), the outcome would have been different.
Similarly, to demonstrate bias, Respondent would have to show that the Title IX Coordinator, investigator,
or decision-maker had a bias for or against a party, either generally, or in this specific matter, and that any
such bias had a material impact on the outcome of the matter. 5 For new evidence to be considered on appeal,
Respondent must demonstrate that the evidence in question was not reasonably available either during the
investigation or the hearing, and Respondent must demonstrate that the evidence in question could affect
the outcome of the matter.

Regarding arbitrary and capricious findings, a “decision or finding is arbitrary and capricious when the
application of the policy has no reasonable basis in fact.” 6 Office for Institutional Equity (“OIE”)
investigations and hearings are conducted by trained professionals who are responsible for gathering facts
and determining the relevance and credibility of information presented to them. 7 A RO’s decision is not
arbitrary and capricious merely because a party disagrees with the conclusions. Rather, to find the decision
arbitrary and capricious, Respondent must demonstrate that the RO had no reasonable basis for the finding
and the facts presented should have led to a different conclusion.

II. Procedural History

In late November 2022, OIE received a report that Claimant may have experienced a violation of the
University’s Policy. On December 21, 2022, 8 Claimant submitted a signed formal complaint, and OIE
initiated an investigation into whether Respondent violated Section III.A and Section III.B.5 of the Policy. 9
During the investigation, the Investigator obtained statements from: Claimant, a vendor who has provided
sexual misconduct prevention education to the MSU’s football program; Respondent, an MSU employee
at the time of the reported conduct; and six (6) witnesses. 10

On October 5, 2023, OCR facilitated a hearing before the RO. Claimant participated in the hearing with her
advisor. Respondent and his advisor did not appear for the hearing and, as a result, did not participate in the
hearing. 11

The RO outlined the relevant facts on pages 11-60 of the Decision. The relevant facts are adopted and
incorporated into this determination. The RO issued her decision to the parties on October 25, 2023.

The RO analyzed the evidence and concluded that a preponderance of the evidence establishes that
Respondent violated Section III.A (RVSM Sexual Harassment) and III.B.5 (RVSM Sexual Exploitation)
of the Policy.

The RO concluded that Respondent violated Section III.A (RVSM Sexual Harassment) on the following
grounds:

● Respondent subjected Claimant to unwelcome conduct based on sex when he FaceTime

video called Claimant without a shirt on; when he attempted to meet up with Claimant

5
Appeal Procedures at I.C.
6
Appeal Procedures at I.C.
7
Policy at XIII.B.3, XIII.D.
8
Claimant signed a corrected formal complaint on January 5, 2023, correcting typographical errors. FIR at 3.
9
FIR at 4.
10
Decision at 8-9.
11
Decision at 10.

2
 alone following the Spring Game; and when he non-consensually masturbated and used
graphic, sexual language on a phone call with Claimant. 12
● Claimant reasonably believed that her rejection of Respondent’s advances carried negative
consequences for her/STE’s involvement in MSU football and University athletics. 13
● Respondent’s unwelcome behavior was sufficiently severe, persistent, and pervasive to
create a hostile environment for Claimant by unreasonably interfering with her work and
her ability to provide services as a vendor to University athletics. 14

The RO concluded that Respondent violated Section III.B.5 (RVSM Sexual Exploitation) on the following
grounds:

● Respondent masturbated on a call with Claimant in April 2022 and there is insufficient
evidence to conclude that Claimant consented to Respondent’s behavior. 15
● Respondent’s conduct was for his own advantage or benefit. 16

III. Analysis of Arguments

Respondent raises arguments on appeal that relate to allegations of procedural error, bias, new evidence,
and an arbitrary and capricious finding. 17 Respondent’s arguments are considered in turn below.

A. Procedural Error 18

Respondent argues that OIE had “no legitimate basis to conduct this investigation in the first place, because
there is no coverage under the RVSM.” 19 Specifically, Respondent asserts that the reported conduct does
not meet the jurisdictional criteria outlined in Section XII.E.1 of the Policy. 20

1. Policy

With respect to a determination of coverage, the Policy states that, upon receipt of a report, OIE will conduct
an initial assessment. 21 It goes on to state that the “OIE may gather information to determine coverage under

12
Decision at 68.
13
Decision at 70.
14
Decision at 71.
15
Decision at 72.
16
Decision at 72.
17
In his appeal, Respondent argues that OIE lacks independence as required by law, that the Office of the General
Counsel interfered with OIE's decision-making, the Investigator violated professional ethical rules, and the
University's failure to protect confidentiality prompted his premature termination. These arguments are not addressed
in my decision because they are outside the scope of the grounds for appeal provided in the Policy.
18
In his appeal Respondent alleges that the University failed to protect the confidentiality of the investigation and that
it amounts to a procedural irregularity. As a preliminary matter, Respondent’s own arguments in his appeal reflect
the Policy language. Specifically, the Policy provides that the University will seek to protect the privacy of the parties
– it does not guarantee confidentiality. In addition, as also noted in Respondent’s appeal, the University initiated an
investigation by an outside law firm to investigate alleged breaches of confidentiality by MSU officials and others in
this matter. (Appeal Statement at 23-25). Thus, this issue is beyond the purview of my review as ERO.
19
Appeal Statement at 7.
20
Appeal Statement at 7.
21
Policy at Section XII.

3
this Policy and whether closure is appropriate.” 22 “A report may move to closure if . . . the report is not
covered under the criteria for a formal grievance process . . . .” 23

Relevant portions of Section XII.E.1 of the Policy, titled Coverage Determinations, states that coverage
applies when:

(c) The reported conduct occurred or is occurring:

i. On Campus;

ii. Off campus in a University-sponsored program or activity, including but not limited to
cooperative extension, intercollegiate athletics, lifelong education, any regularly scheduled
classes; and locations including buildings owned or controlled by student organizations
officially registered with University Student Affairs and Services. This includes
fraternities and sororities registered with University Student Affairs Services;

...

iv. Off-campus and outside of a University-sponsored program or activity but the conduct
has continuing adverse effects on the campus or on a University-sponsored program or
activity.

Finally, Section XII.F states:

Dismissal Determinations: Once a formal complaint is filed, it will proceed to an

investigation under Section XII unless dismissed for the reasons set forth below. The
University may dismiss all or part of a formal complaint at any time prior to the completion
of the formal grievance process.

...

B University RVSM Formal Complaint Dismissal

a. The formal complaint must be dismissed if the conduct alleged does not meet all
of the coverage requirements in Section XII.E.1 and/or the allegations would
not, even if proven, meet a definition of prohibited conduct.

The Policy does not provide a process for challenging coverage determinations, except in instances where
a formal complaint is dismissed for lack of coverage. In that instance, the parties have the right to appeal
the determination. 24

2. Procedural Background

“Per section XII.E of the RVSM and Title IX Policy, OIE evaluated the information in the corrected formal
complaint and determined the reported conduct met the criteria for RVSM coverage under the University’s
RVSM and Title IX Policy.” 25

22
Policy at Section XII.B.
23
Policy at Section XII.C.
24
Policy at Section XIII.E.
25
FIR at 6.

4
On January 20th, 2023, via email to the Investigator, Respondent’s advisor submitted their first of several
challenges to the University’s coverage determination. 26

On January 25th, the Investigator responded:

. . . RVSM jurisdiction was preliminarily assessed at the time of the filing of the formal
complaint, and it was determined that it was appropriate to commence a formal
investigation. The information collected to date during the investigation appears to support
RVSM jurisdiction. Jurisdictional issues will be reassessed at the conclusion of the
investigation, when the University determines whether the matter should proceed to a
hearing. If [Respondent] has information that he would like to provide as a part of the
investigation that pertains to jurisdiction . . . the Title IX Coordinator and I will assess
jurisdiction at that time.27

On January 30th, Respondent submitted his second challenge to the coverage determination through a
“Preliminary Statement Challenging University Jurisdiction Over BT Complaint Because the Alleged
Conduct is not Covered by RVSM or Title IX.” (“Preliminary Statement”). 28 The Preliminary Statement
provided Respondent's position that there was no coverage under the Policy. OIE did not issue a response
to the Preliminary Statement. 29

On February 3rd, via email, Respondent’s advisor requested a written assessment of coverage under the
Policy, and again noted their position that an inaccurate assessment of coverage violates Respondent’s
rights. 30

On February 6th, the Investigator responded stating that she consulted with the University’s Title IX
Coordinator and that their “assessment at this point is that the information collected to date continues to
support RVSM coverage” and that as a result she was proceeding with the investigation. 31

On May 2nd, the Investigator distributed the Draft Investigative Report (“DIR”) to the parties for review
and response. The DIR stated that “OIE determined the reported conduct is covered under the criteria for
University RVSM coverage.” 32 OIE determined coverage existed under Policy Sections XII.E.1 c.ii and
c.iv. 33

26
Investigator Appeal Response at Exhibit F.
27
Investigator Appeal Response at Exhibit F. The record is not clear whether OIE and/or the Investigator re-assessed
coverage when the University determined that the matter should proceed to a hearing.
28
Draft Investigation Report, “DIR” at Attachment 22.
29
Investigator Appeal Response at 6.
30
Investigator Appeal Response at Exhibit A.
31
Investigator Appeal Response at Exhibit A.
32
DIR at 6.
33
In sum, the rationale for the determination at the time of the DIR was (1) the reported conduct occurring largely in
the context of Claimant’s role as a University vendor- which OIE considered a University-sponsored program, (2) the
commingling of the parties’ professional and personal interactions and context of their relationship leading OIE to
“view the reported conduct as having occurred within a University sponsored program or activity”; and (3) that the
reported conduct had a continuing adverse effect on the campus even though the reported conduct occurred off-campus
and outside of a University-sponsored program or activity. (DIR at 6-7).

5
On May 22nd, Respondent’s advisor submitted their response to the DIR. 34 The response reiterated
Respondent’s challenge to OIE’s coverage determination and included a report from an external consultant,
Brett Sokolow, to support the challenge (“Sokolow Report”).

On July 7th, the Respondent’s advisor submitted a response to the additional information gathered in the
investigation. The response raised the coverage issue again and included a request for dismissal. 35

On July 25th, the Investigator released the FIR. The FIR modified the coverage determination from the
DIR, stating:

OIE has considered Respondent’s arguments and submissions regarding RVSM coverage and no
longer bases coverage on Section c.iv. OIE continues to find RVSM coverage under Section c.ii. 36

The information reviewed included the Sokolow Report.

The FIR states that “OIE evaluated the information in the corrected formal complaint and determined the
reported conduct met the criteria for RVSM coverage under the University’s RVSM and Title IX Policy.” 37

The coverage analysis notes:

In stating these grounds for RVSM coverage, OIE does not make any findings whether the
preponderance of the evidence supports Claimant's factual allegations. To make RVSM
coverage assessments, the RVSM and Title IX Policy instructs OIE to evaluate the
‘reported’ conduct. 38

The analysis for coverage in the FIR, in part, states as follows:

After consideration of the relevant evidence collected and the parties’ responses to the
evidence, OIE determined that there is RVSM coverage based on Section c.ii [of Section
XII.E of the RVSM/Title IX Policy]. The reported allegations that a University-employee
has engaged in sexual harassment and sexual misconduct against a vendor who is providing
services to the University in violation of the RVSM and Title IX Policy, is conduct within
a University sponsored program or activity. The parties met in connection with Claimant
providing sexual misconduct prevention education at MSU, and their personal relationship
and personal conversations grew alongside their professional relationship and professional
conversations about additional work that Claimant would do at MSU. 39

On August 4th, Respondent submitted a response to the FIR. This response again requested dismissal of
the matter for lack of coverage and incorporated the Sokolow Report.

34
FIR at Attachment 61.
35
FIR at Attachment 67.
36
FIR at 8, fn 13.
37
FIR at 6.
38
FIR at 6, fn 10.
39
FIR at 7.

6
 3. Analysis

As stated in the Policy, if the University deems that it does not have coverage, it must dismiss a Formal
Complaint. 40 If the University determined there was coverage, when there was not, then an appealable
procedural error would exist because it would negate the need for an investigation under the Policy. 41

The Policy provides that OIE will make an initial assessment of coverage upon receipt of a report. 42 A
review of the record reflects that OIE reviewed the corrected formal complaint and determined that
coverage existed and that it was appropriate to begin a formal investigation.43 OIE did not provide an
explanation of the coverage determination to Respondent before proceeding with the formal investigation,
and the Policy did not require it to do so. 44

Throughout the formal grievance process, Respondent challenged coverage. While the Policy does not
contemplate challenges to coverage determinations, OIE and the Investigator took those challenges into
account and ultimately modified the coverage determination in the FIR as a result. 45

As reflected in the FIR, OIE based its coverage determination on the blurred lines of the parties’
professional and personal relationship. This included the following factors:

(1) Reported conduct that occurred when both parties were traveling for work or at a time when the
parties agreed Claimant would continue to provide programming for the University;
(2) Claimant’s report that the entire relationship was rooted in their work relationship;
(3) Alleged unwelcome sexual conduct that was inextricably tied to Claimant’s belief that rebuffing
Respondent’s advances would result in a discontinuation of opportunities for her and her
company with the University; and
(4) Claimant’s allegations that their relationship deteriorated, and Respondent canceled Claimant’s
scheduled trip to the University.

The crux of Respondent’s position is that the alleged conduct occurred solely within their personal
relationship and wholly outside of Claimant's vendor services for the University. I acknowledge that if you
presented these allegations to different Title IX professionals, reasonable minds may differ as to whether
coverage existed under this Policy. The analysis here, however, is whether OIE’s determination of coverage
was reasonable. After a careful review of the matter, I find that OIE’s determination that coverage existed
was not outside of the bounds of the Policy and was reasonable considering the information that was
presented. The record reflects that OIE engaged in a continuous coverage analysis throughout the grievance
process utilizing the information it had at hand at that time. That analysis was appropriately based on the

40
Policy at Section XII.F.2.a.
41
The grievance process under the Policy affords the Respondent with more comprehensive protections and process
than any other University procedures. For example, it provides both parties with the right to review and respond to
evidence, the ability to review and respond to the investigative report, and the right to appeal the determination.
42
Policy at Section XII.B.
43
Investigator Appeal Response at Exhibit F.
44
Respondent argues that OIE did not provide a substantive response to Respondent's January 30th letter, and that it
was procedural error to remain silent on its basis for coverage. (Appeal Statement at 9). Given that the Policy does
not contemplate a challenge to an OIE determination of coverage or require a response to such a challenge, it was not
procedural error for OIE not to respond to this letter.
45
Respondent states that OIE failed to respond to the Sokolow Report. (Appeal Statement at 10). As previously
noted, the Policy does not contemplate challenges to OIE's determination that coverage exists or require a response to
such a challenge by a party.

7
reported conduct, not whether a preponderance of evidence existed to support the claim. 46 Accordingly,
Respondent did not demonstrate that the determination of coverage under the Policy constituted procedural
error.

B. Bias 47

Respondent argues that both the Investigator and RO exhibited bias against Respondent, violating Policy
Section XIII(A)(2), which calls for “equitable treatment.”

The relevant policy provision on bias and conflict of interest states:

The University does not allow conflicts of interest or bias for or against claimants or
respondents generally or an individual claimant or respondent by its Title IX
Coordinator(s), investigators, Resolution Officers, or other persons making decisions
regarding allegations under this Policy, grievance process, or related practices or protocols.
A conflict of interest exists when an individual’s knowledge of the matter or personal or
professional relationship with a claimant, respondent, or witness would preclude the
individual from being able to investigate or decide the case fairly and impartially. Any
concern regarding bias or conflict of interest should be submitted to the Title IX
Coordinator immediately. 48

1. Investigator Bias

As a preliminary matter, Respondent raised similar allegations of Investigator bias during the grievance
process. 49 Pursuant to Policy Section XIII.A.6, MSU’s Title IX Coordinator and Interim Senior Deputy
Title IX Coordinator investigated the allegations raised by Respondent. They determined “there [was] no
evidence in the record, nor has Respondent subsequently provided evidence, to support the allegation that
the Investigator is biased against Respondent, respondents generally or all males” and communicated that
determination to the Respondent’s advisor in an email on July 28, 2023. 50

In his appeal, Respondent raises a number of similar bias allegations against the Investigator. I address
each argument below.

46
Respondent argues that OIE inappropriately evolved its narrative on coverage throughout the investigative
process. The basis for coverage evolved because OIE took Respondent's challenges into account and modified the
basis as a result. (See FIR at 6-7).
47
Respondent also asserts that the public criticism and outcry towards MSU in the “wake of the Nassar scandal
contributes to the backdrop of bias here.” (Appeal Statement at 39). For the same reasons that I do not find bias by
the Investigator or RO against Respondent, I also did not find any support for Respondent's allegations that criticism
of MSU and the Nassar scandal contributed to the backdrop of bias by the Investigator and RO.
48
Policy at Section.XIII.A.
49
Respondent alleged numerous concerns, including, but not limited to:
● The Investigator’s June 22, 2023 “Ex Parte” Meeting with Claimant and Claimant's Advisor;
● The Investigator’s Inclusion of Settlement Discussions in the Evidence Packet; and
● The Investigator’s Failure to Investigate Essential Issues Related to Claimant’s Statement and Credibility.
(July 28, 2023 email from Title IX Coordinator to Respondent’s Advisor; see also Investigator Appeal Response at
Exhibit B).
50
July 28, 2023 email from Title IX Coordinator to Respondent’s Advisor.

8
 a. The Investigator engaged in biased actions against Respondent when she afforded
Claimant a chance to review and refute Respondent’s statements through a second
interview, but did not afford the same opportunity to Respondent. 51

Respondent initially raised this allegation to the Investigator in his May 22nd response to the DIR. 52 The
Investigator detailed this exchange in the FIR. 53

The Investigator’s documented decision for a follow-up interview of Claimant was, in part, in response to
a request from Respondent’s advisor. 54 The follow-up questions submitted by Respondent are detailed in
his May 22nd response to the DIR. 55 As explained in the FIR, “[i]n accordance with Section XIII.B.3 of
the RVSM and Title IX Policy, the Investigator considered the questions proffered and assessed whether
each was relevant and whether each had been answered in the materials to date, which included Claimant's
response to the DIR.” After determining relevance, the Investigator interviewed Claimant and asked the
relevant questions that were proffered by Respondent and not answered in the collected materials. 56 The
Investigator’s actions were appropriate under the Policy.

Additionally, as explained in the Investigator’s Appeal Response, it is important to note the time that
elapsed between Claimant’s initial interview and that of Respondent’s. The Investigator met with Claimant
on January 3, 2023, prior to collecting any other evidence. 57 The Investigator interviewed Respondent three
months later, after the Investigator had already collected the majority of the relevant evidence.58 It is
reasonable to expect that the Investigator would need to conduct a follow-up interview with Claimant due
to questions arising from the evidence collected during the investigative process and interview with
Respondent. As stated in the Investigator’s Appeal Response, Respondent’s interview “was one of the final
pieces of evidence collection.” 59 It is therefore reasonable that the Investigator would not need to conduct
a follow-up interview with Respondent.

Ultimately, however, the record shows that on April 3rd the Investigator did offer to meet with Respondent
via Zoom a second time and sent written follow-up questions to him. Respondent’s response was an
objection to the follow-up questions and he did not avail himself of that opportunity. 60

Lastly, a review of the record shows that the Investigator afforded both Claimant and Respondent the same
opportunities to review and respond to the DIR and the follow-up interview with Claimant. 61 Both were
also granted extensions for review and response. 62

Based on the foregoing, the evidence does not support that the Investigator engaged in biased actions when
she conducted a follow-up interview of Claimant.

51
Appeal Statement at 36.
52
FIR at Exhibit 61.
53
FIR at 104, see also FIR at Attachment 61.
54
FIR at Attachment 61.
55
FIR at Attachment 61.
56
FIR at 104.
57
FIR at 16.
58
FIR at 33.
59
Investigator Appeal Response at 11.
60
FIR at 104.
61
FIR at 83, 104.
62
FIR at 106.

9
 b. The FIR was “tainted” from the Investigators improper communications with
Claimant and her counsel about the parties’ confidential settlement discussions. 63

Respondent’s assertions of a tainted investigation included the following:

(a) Investigator included irrelevant and inaccurate confidential information in the

investigation record in a manner that prejudiced Respondent; (b) Claimant and her counsel
were permitted to (inaccurately) dictate the narrative of the parties’ confidential
discussions, as the Investigator disregarded Respondent’s concerns or corrections; (c)
Respondent was even cut out of the conversation supposedly aimed at remedying his
concerns about the disclosure and inclusion of the parties’ confidential settlement
discussions; and (d) Respondent has not been provided notes of the meeting between the
Investigator, Claimant, and her advisor regarding this highly prejudicial subject. 64

Respondent initially raised this allegation to the Investigator in his May 22nd response to the DIR. 65 In
response, the Investigator removed any reference to the parties’ confidential settlement communications
from the FIR and the evidence was not considered by the RO in making her decision.

While the Investigator admits to including information regarding settlement negotiations in the DIR, the
information was only included as part of Claimant's response to the first round of evidence review.
Specifically, in response to the evidence review, Respondent’s advisor stated:

Notably, Claimant only filed her complaint after Respondent broke off their personal
relationship (because she was gossiping about their relationship in breach of his trust), and
her attorney unsuccessfully tried to get a payoff from the University. 66

Claimant’s response to that statement included information about settlement discussions. The Investigator
recorded Claimant’s response and appropriately shared the interview notes from Claimant's follow-up
interview, along with other additional items of evidence, with the parties, in accordance with Section
XII.B.6 of the Policy.

After reviewing the interview notes and additional evidence, on June 21, 2023, Claimant, through her
advisor, requested to meet with the Investigator to discuss something “important.” The Investigator met
with Claimant and her advisor via Zoom on June 22, 2023. During the meeting, Claimant and her advisor
asked the Investigator to remove all information about settlement negotiations from the investigative
record. 67 This meeting took place in alignment with Policy Section XIII.B.2, which allows Investigators to
meet separately with the parties.

After consulting with OIE, the Investigator redacted all information regarding the settlement negotiations
from the investigative record. 68 Thus, it was not considered in the RO’s determination of responsibility and
therefore could not affect the outcome of the matter.

63
Appeal Statement at 36.
64
Appeal Statement at 36.
65
FIR at Attachment 61.
66
FIR at Attachment 30.
67
Investigator Appeal Response at 2.
68
Investigator Appeal Response at 3. The Investigator redacted the information (1) because the Investigator
determined it was not relevant and (2) in light of the request of all of the parties.

10
In dealing with the above matter, the Investigator acted appropriately and in compliance with the Policy.
The Investigator contemporaneously took notes during the interview with Claimant, shared the evidence
with both parties for review and response, and took appropriate action to redact non-relevant information
from the FIR. For the foregoing reasons, the evidence does not support Investigator bias against
Respondent.

c. Investigator denoted in footnotes to the FIR wherever Claimant disputed

Respondent’s assertions. The FIR did not similarly denote Respondent’s dispute in
footnotes. 69

There are approximately seven (7) footnotes in the FIR that are Respondent’s responses to the DIR, and
fifty-six (56) footnotes that are Claimant’s responses. Nonetheless, Respondent’s response to the DIR,
when responding to Claimant’s interview, was to pose additional questions that should be asked. 70
Respondent therefore did not directly respond to or dispute Claimant’s statements. Claimant, however,
explicitly stated responses to/disputes regarding statements Respondent made during his interview. 71 Thus,
these denotations, or lack thereof, do not support Investigator bias against Respondent.

d. Investigator changed allegations about the August call – adding a threat about not
disclosing the alleged masturbation incident that is inconsistent with the Complaint
and even Claimant’s interviews…. Investigator changed allegations to invent a
“quid pro quo” claim in the FIR to satisfy coverage under the RVSM. 72

In the Corrected Formal Complaint, Claimant alleges, in part:

Over the course of the conversation and sometimes in response to Claimant’s comments
and Claimant’s reference to Respondent having acted inappropriately, Respondent made a
number of comments using a tone and context that Claimant perceived as threatening.

and

Claimant perceived those words as a threat to ruin her career because the phrase “I’ll be
fine” was taken from conversations they had had previously, where Claimant had explained
that the parties could only be friends and nothing romantic could ever happen between
them that was or even looked inappropriate, because it wouldn’t affect Respondent or his
career as much as it would affect Claimant and her career. (emphasis added).73

Additionally, on December 22, 2022, Respondent received the Notice of Investigation which included the
Corrected Formal Complaint as an attachment and cited the applicable provisions that had allegedly been
violated. Specifically, the Notice of Investigation cited Sexual Harassment, Section.III.A of the Policy
which states, in pertinent part:

RVSM Sexual Harassment: Form of discrimination that includes verbal, written, or

physical behavior, directed at someone because of that person’s sex (actual or perceived),
gender, gender identity, gender expression, actual or perceived sexual orientation, sexual

69
Appeal Statement at 36.
70
FIR at Attachment 61.
71
FIR at Attachment 60, 60a.
72
Appeal Statement at 37.
73
Corrected Formal Complaint at 3.

11
 identity, or based on gender stereotypes, when that behavior is unwelcome and meets any
of the following criteria:

Submission or consent to the behavior is reasonably believed to carry consequences,

positive or negative, for the individual’s education, employment, University living
environment, or participation in a University activity or program. This can also be referred
to as “quid pro quo”. (emphasis added).

Furthermore, the definition of quid pro quo was included in the DIR, which was shared with both parties
for their review. 74 The DIR also contained Claimant’s interview which stated:

Respondent was “bullying” her and “threatening” her. His tone made her feel like if she
had been in his presence, she would have been physically scared of him. She felt “really
intimidated, threatened, and scared.” Claimant thought to herself, “This man’s going to
destroy me. What did I do?” She felt scared that she was being “punished” for something
she did not do. Claimant described Respondent as a Dr. Jekyll/Mr. Hyde. (emphasis
added). 75

Respondent reviewed and responded to the DIR on May 22, 2023. The above concern was not raised in his
response. Respondent reviewed and responded to the additional evidence on June 7, 2023. The above
concern was not raised in his response. It was only in his review of the FIR that Respondent raised his
concern that Claimant’s allegations never alleged a quid pro quo claim. 76

Given the foregoing, despite Respondent’s assertion that Claimant’s allegations did not include a quid pro
quo claim, Respondent was, throughout the entire investigative process, repeatedly put on notice of the quid
pro quo claim. Thus, the Investigator did not change the allegations to create a quid pro quo claim and
Respondent did not demonstrate Investigator bias against him with respect to this allegation.

e. Investigator made determinations about the “persuasiveness” of evidence

regarding the nature of the parties’ relationship for jurisdictional purposes. 77

The FIR did state, “Respondent’s assertion that the reported misconduct occurred within the parties’
personal relationship, and outside of Claimant’s vendor services for the University is not persuasive.” 78 I
acknowledge that an investigator’s role is to engage in a “neutral fact gathering process,” and not make
conclusory statements. I also acknowledge that an Investigator making a conclusory statement of this
nature in an investigative report is unusual. An analysis of whether this statement reflects an Investigator
bias, however, must look at the totality of the record, and the context of the statement in the FIR.

First, the record reflects that OIE made the ultimate decision regarding coverage. This is supported by the
statements in the FIR in the section addressing the coverage analysis. These statements indicate that this
section is a re-statement of OIE’s coverage analysis. 79 Thus, it is highly probable that the conclusory
statement is the Investigator re-stating OIE’s rationale for the determination, not solely the Investigator’s
conclusion.

74
DIR at 3-4.
75
DIR at 27.
76
FIR Respondent Response at 7; 11-13; 15; 17-18; 23.
77
Appeal Statement at 37.
78
FIR at 8.
79
This is also supported by the Investigator's statements to Respondent in emails in response to Respondent's
challenges to coverage throughout the process. (Investigator Appeal Response at Exhibit A).

12
Even if this was solely the Investigator’s statement, it is regarding the coverage determination alone, not
the overall determination as to whether a preponderance of the evidence existed to find Respondent
responsible - a responsibility that rests with the RO. Thus, the statement is not material to the Investigator’s
role as a neutral fact finder.

Based on the foregoing, the remark made in the FIR is not sufficient to indicate Investigator bias against
Respondent.

f. Investigator molded evidence to fit her narrative. 80

Respondent alleges that “[t]he Investigator molded the evidence to fit her narrative, such as by proclaiming
that the Venmo payment, gift of Nike sneakers, and a personal monetary donation to Claimant’s personal
foundation are not evidence of a romantic relationship.” 81

Respondent cites FIR, page 14 in support of his allegation, which states:

Respondent gave Claimant several gifts during this time period, including money via
Venmo and a pair of Nike sneakers. Respondent regularly expressed support for STE,
donating his personal money to the foundation and supporting STE through social media
posts. While there is no evidence with respect to these gifts and support that connects them
to any romantic or sexual behavior by Respondent and while Respondent stated he gave
those gifts and support out of genuine care for Claimant and STE, Claimant believes
Respondent’s provision of those gifts and support may have come from ulterior motives.

These statements provided by the Investigator simply reflect Respondent and Claimant’s statements
regarding the gifts. A review of these statements, as well as the entire FIR, does not reveal evidence of the
Investigator molding or otherwise modifying Respondent or Claimant’s statements in a manner that
demonstrates bias for or against either party.

g. The Investigator obliquely referenced a contemporaneous email from Respondent’s

staff indicating that Claimant’s training was being rescheduled, not canceled as
Claimant now says, without acknowledging the date of the email or that it was
contemporaneous, instead saying “but some witness information from MSU staff
may contradict this” without any citation or basis in the record. 82

Respondent cites FIR, page 16, in support of his allegation which states: “An email from MSU staff
indicates that Respondent told an MSU staff member to reschedule Claimant’s visit to January 2023, but
some witness information from MSU staff may contradict this.” The above quote referenced by Respondent
in his allegation is part of the overview portion in the “Summary of Relevant Evidence” section of the FIR.
An entire read of the FIR shows that the email and “witness information” were explicitly discussed in the
subsequent sections of the FIR. For example, in regard to the email, the Investigator included it in the record
as Attachment 47. The Investigator discussed and cited the email on page 67 of the FIR during her interview
with Witness Alvarado. Additionally, the “witness information” mentioned in the above quote was
referencing Mathers interview where he stated that Respondent canceled Claimant’s trip. 83

80
Appeal Statement at 37.
81
Appeal Statement at 37.
82
Appeal Statement at 37.
83
FIR at 72.

13
A review of the FIR supports that the Investigator explicitly referenced and cited the email, as well as the
specific “witness information” that was referred to in the “Summary of Relevant Evidence” section. Thus,
the evidence does not support that the Investigator’s actions were biased against Respondent.

h. Investigator failed to ask over 100 of the follow up questions submitted by

Respondent. 84

Pursuant to Section XIII.B.6 of the Policy:

[E]ach party will have ten (10) calendar days to respond in writing to the investigator,
including providing the names and contact information for any additional witnesses for the
investigator to consider, and submitting written, relevant questions that a party wants asked
of any party or witness, and limited follow-up questions. The investigator will consider the
written responses.

Respondent and his advisor, in response to the DIR, submitted approximately 170 questions, not including
sub-questions, to the Investigator. 85 The Investigator reviewed the submitted questions for relevance and
conducted follow-up interviews with Claimant and Witness Price. 86

After a review of the questions posed by Respondent, the Investigator’s follow-up interview notes from
Claimant, and the FIR, there is insufficient evidence to suggest that the Investigator improperly assessed
the relevance of the questions. Instead, the record supports that the Investigator used her discretion to
determine which questions were relevant and conducted the follow-up interviews necessary to ask the
requested relevant questions and collect additional evidence. Thus, the evidence does not support that the
Investigator’s actions were biased against Respondent.

i. Investigator shared publicly, in the Washington Post, about categorically accepting

accusers’ stories regarding consent. 87

In the Investigator’s Appeal Response, the Investigator more fully explained her Washington Post
comments. Specifically, the 2014 letter was in response to an article about proposed legislation in
California to adopt an “affirmative consent” law for state colleges and universities. The letter disputed the
effectiveness of changing the definition of consent and cited national statistics supporting the notion that
the majority of reported campus sexual assaults were perpetrated by male students against female students.
Additionally, the letter provided suggestions for other prevention strategies including that institutions
should teach women that institutions will support them if they tell the institution they did not consent to
sexual activity. 88

Both the Investigator’s explanation and the quote highlighted by Respondent as evidence of bias – “...we
will support them if they tell us they did not consent to sexual activity” – use the word “support.” Neither
discuss, as purported by Respondent, “categorically accepting accusers’ stories regarding consent.” The
difference between “support” and “categorically accepting” is significant. The RVSM and Title IX Policy
highlights that one of the first steps to take after receiving a report is to offer Supportive Measures. Support
is a hallmark of responding to reports covered by the Policy.

84
Appeal Statement at 37.
85
Respondent’s DIR Response at 3.
86
FIR at 103-104.
87
Appeal Statement at 38.
88
Investigator Appeal Response at 11-12.

14
Lastly, a single comment made approximately eight years prior to this matter is of limited value in
determining Investigator bias. What is more instructive for making a determination as to bias is a full
review of the investigative file.

For the foregoing reasons, this statement by the Investigator is in and of itself not indicative of bias by the
Investigator against Respondent.

j. Conclusion

In addition to reviewing and assessing Respondent’s arguments of Investigator bias, I carefully reviewed
the totality of the record and investigative file for evidence of bias by the Investigator against Respondent
or for Claimant.

Based on my review, it is evident that the Investigator afforded both parties equitable treatment throughout.
The Investigator appropriately handled the information provided during the interviews of both parties. Both
Claimant and Respondent received draft interview notes from the Investigator and were afforded the
opportunity to review the notes and provide feedback. 89 The Investigator also afforded Respondent the
opportunity to answer follow-up questions contained within his draft interview notes. 90

Additionally, both parties received an opportunity to review and respond to the DIR. 91 The Investigator
granted both parties an extension for responding to the DIR. 92 The Investigator reviewed both responses
and conducted follow-up interviews. The Investigator offered both Claimant and Respondent the
opportunity to have a follow-up interview with the Investigator. Respondent received this opportunity via
a letter on April 3rd from the Investigator, which included follow-up questions and an offer to meet for a
second interview. 93 Claimant was afforded the opportunity after the Investigator reviewed the responses to
the DIR and determined follow-up interviews were warranted. 94

Both parties received the opportunity to review and respond to the additional evidence collected by the
Investigator after Claimant’s follow-up interview. 95 Again, the Investigator granted both parties extensions
to respond to the evidence. 96

Finally, the Investigator granted Respondent's specific requests. This included the Investigator only
communicating through Respondent’s advisor (and not directly with Respondent) and postponing the
evidence review process for three months for Respondent’s interview. 97

Based on the foregoing, and the totality of the information reviewed in this matter, I do not find that the
evidence supports Investigator bias against Respondent or for Claimant.

89
FIR at Attachments 5, 26, 28, 62a, 62b.
90
FIR at Attachment 29.
91
FIR at 83.
92
FIR at 106.
93
FIR at 104, fn 216.
94
FIR at 83.
95
FIR at 104.
96
FIR at 106.
97
Investigator Appeal Response at Exhibit A, C.

15
 2. Resolution Officer Bias

In his appeal, Respondent states that the “Resolution Officer’s examples of bias are highlighted throughout
this appeal.” 98 However, Respondent provides limited examples in support of his allegations of bias.
Respondent bears the burden of providing evidence in support of his stated grounds for appeal. 99

Respondent’s arguments and my analysis are contained below.

a. RO accepting the Investigator’s narrative despite a lack of evidence.100

In support of this argument, Respondent states that “the Resolution Officer bought into this narrative, even
though there is no evidence that any other coach did something remotely analogous to buying and personally
mailing shoes to Claimant’s home address when she missed an Air Jordan drop date.” 101

As stated above, the statements provided by the Investigator and reviewed by the RO, simply reflect
Respondent and Claimant’s statements regarding the gifts. The RO ultimately determined that there was
insufficient evidence to find Respondent’s actions in sending Claimant gifts unwanted and/or based on
sex. 102 Respondent’s argument on this point is therefore not sufficient to demonstrate RO bias against the
Respondent.

b. RO ignoring contemporaneous evidence. 103

In support of this argument, Respondent states that the “Resolution Officer, in blaming Respondent for the
fact that Claimant did not return to MSU, ignored that Mathers recalled Claimant telling him after the Spring
Game that she would follow-up directly with Respondent about future programming.” 104

In the RO’s Decision, the RO explicitly considers the above factor – Witness Mathers recalling Claimant
telling him that she would follow-up directly with Respondent – in her quid pro quo analysis. Additionally,
the RO considered the fact that following the August 2nd call, “Claimant believed that Respondent did not
plan to reschedule her trip to MSU and cut all ties with the University.” 105 Thus, Respondent’s argument
that the RO ignored contemporaneous evidence is not supported by the record and therefore is not sufficient
to demonstrate RO bias against Respondent.

c. Conclusion

In addition to reviewing and assessing Respondent’s arguments of bias by the RO, I carefully reviewed the
totality of the record and for evidence of bias by the RO against Respondent or for Claimant. The record
demonstrated equitable treatment by the RO of both parties.

98
Appeal Statement at 39.
99
Appeal Procedures I.D.
100
Appeal Statement at 37.
101
Appeal Statement at 37.
102
Decision at 63. In reaching this determination, the RO found “plausible Respondent’s statements that they were
given as a token of friendship of [sic] as a thank you for professional assistance and that, with respect to the sneakers,
the gift was not outside Claimant’s normal relationship with coaches.”
103
Appeal Statement at 37.
104
Appeal Statement at 37.
105
Decision at 70.

16
Based on the foregoing, and the totality of the information reviewed in this matter, I do not find that the
evidence supports a bias by the RO against Respondent or for the Claimant.

C. New Evidence

Respondent argues that new evidence, specifically (1) exculpatory evidence provided by Augustin
Alvarado, the husband of Witness Ahlan Alvardo, in the form of texts between Claimant and Ms.
Alvarado, 106 and (2) a new witness who states she is familiar with Claimant’s representations regarding her
relationship with Respondent, compels reversal of the RO’s Decision. 107 The first issue I must address in
my analysis is whether the evidence proffered by the Respondent is in fact new evidence that was not
reasonably available during the investigation or hearing.

1. Text Messages

Respondent’s appeal submits text messages between Claimant and Witness Alvarado. Respondent argues
that the Investigator should have obtained these text messages during the course of the investigation and
that he obtained the text messages “practically on the eve of hearing.” 108

First, I will address Respondent’s argument that the Investigator should have obtained these text messages
during the course of the investigation. While the burden of proof and the burden of gathering evidence
sufficient to reach a determination regarding responsibility rests on the University and not on the parties,
109
my review of the record shows that the Investigator made reasonable efforts to obtain relevant
information from all witnesses, including Ms. Alvardo. The Investigator interviewed Ms. Alvarado on
January 11, 2023, and requested that Ms. Alvardo provide every text or email that she either mentioned
during the interview or that seemed relevant to the allegations. 110 In response, Ms. Alvarado provided what
she believed to be relevant texts to the Investigator. The Investigator’s request for text messages relevant
to the allegations was reasonable, especially in light of the 20-year relationship between Ms. Alvarado and
Claimant. Additionally, both parties had ample opportunity to review the text messages provided by Ms.
Alvarado. During that review, Respondent had the opportunity to request that the Investigator obtain the
entire corpus of text messages exchanged between Ms. Alvarado and Claimant.

Next, I will address Respondent's assertion that he “came into possession of exculpatory evidence that
refutes Claimant’s allegations and credibility practically on the eve of hearing.” 111 In his Appeal,
Respondent acknowledged that he became aware of the potential evidence on September 18, 2023, and was
able to see portions of the evidence on September 24, 2023. 112 Respondent collected all of the evidence by
September 29th. While Respondent may not have “processed” the evidence until October 2nd, Respondent
could have notified the University of this new evidence through the appropriate channels as early as
September 18th, several weeks before the scheduled hearing. Respondent was aware of his ability to, at a
minimum, request a postponement of the hearing. 113 The record also reflects that Respondent was aware of

106
Ms. Alvarado passed away on June 19, 2023, following a car accident.
107
Appeal Statement at 27 and 31.
108
Appeal Statement at 27.
109
Policy at Section XII.A.7.
110
FIR at 60-69.
111
Appeal Statement at 27.
112
Appeal Statement at 28.
113
Appeal Statement at Exhibit 6. In September, the RVSM Hearing Administrator (“Administrator”) and the
Respondent’s advisor communicated via email regarding the scheduling of the hearing in this matter. In response to
an email from the Administrator, on September 20th the Respondent’s advisor requested a dismissal of the hearing.
The letter did not, however, seek postponement of the hearing. In an email response on September 21, 2023, the
Administrator denied the request for the dismissal. The Administrator also noted the RO had authority to reschedule

17
various University channels for submitting the evidence, such as the Investigator or OIE, and did not utilize
those channels to notify the University of the additional evidence. 114

As such, because the Investigator made reasonable efforts to obtain relevant information from Ms.
Alvarado, Respondent became aware and in possession of the evidence several weeks before the hearing,
and Respondent did not seek postponement of the hearing or otherwise notify the University of the new
evidence, I find that the evidence was reasonably available during the investigation or hearing. Based on
my determination, an analysis of whether the evidence would have affected the outcome of the matter is
not necessary. 115

2. Affidavit

Respondent's appeal provides an Affidavit from a “new witness” that states she was familiar with
Claimant’s representations regarding her relationship with Respondent. In his Appeal Statement,
Respondent does not state when he first became aware of the new witness. The Affidavit is dated October
4, 2023, and the hearing occurred on October 5th. 116 Based on this timeline it is likely that Respondent had
knowledge and/or possession of the witness and/or the information contained within the Affidavit in
advance of the hearing. Nonetheless, Respondent did not submit the evidence to OIE, request a
postponement of the hearing, or proffer the witness to the RO for the hearing. 117 Thus, I find that the

the hearing for good cause and stated that “if there is a need to reschedule, please send that request, including
information that would show good cause, as well as the length of the delay that you are seeking.” (Appeal Statement
at Exhibit 6). On September 25th, Respondent’s advisor responded to the Administrator. In the letter, she “continues”
their request to dismiss the matter based on many of the grounds raised in Respondent’s appeal. The letter, however,
does not seek postponement of the hearing despite the fact that Respondent was aware of the texts at that time. These
communications further demonstrate (1) that Respondent and his advisor were aware of their ability to request a
postponement of the hearing, and (2) did not make that request. All of these communications occurred within the
same timeframe that the Respondent and his advisor, by their own admission, became aware of the text messages. It
is reasonable to conclude, based on prior extensions granted to Respondent in this matter, that the RO would have
found good cause existed to postpone the hearing in light of the potential new evidence.
114
Respondent's advisor submitted the information to the Board of Trustees and the Interim President on October 5th,
the date of the hearing. (RO Appeal Response at 1). Later, on October 20th, he submitted it directly to OIE. The
Policy does not provide a mechanism for a party to submit new information for consideration by the RO after the
conclusion of the hearing. Respondent’s new evidence therefore was not accepted. (RO Appeal Response at 2).
115
Although I did not need to determine whether the new evidence would affect the outcome of the matter, I did
closely review the provided text messages in that regard. Respondent’s argument provides one interpretation of the
text messages that could impact Claimant’s credibility and contradict some of the statements made to the Investigator.
The areas of possible conflict, however, were not material to the RO’s ultimate determination. In addition, as noted
by the RO in her appeal response, the missing text messages that would have been critical to the RO’s determination
were text messages between the Claimant and Respondent themselves and both parties acknowledged that they deleted
all or some of their messages during the relevant time-period. (RO Appeal Response at 2).
116
Appeal Statement at Exhibit 8. Again, as stated previously, the record supports that Respondent and his advisor
were aware of how to initiate any of these options with the University through the proper channels in light of the new
information.
117
It would have taken Respondent a few days at minimum to gather the information and draft the Affidavit, which
would have allowed time to seek an extension or attempt to provide the information to OIE or the RO. It is also
noteworthy that this investigation and grievance process started in January, with a hearing date of October-
approximately 10 months. That is a significant amount of time for Respondent to identify this witness. I recognize
that Ms. Alvarado’s death most likely led this new witness coming forward; however, as stated above the evidence
was reasonably available at the time of the hearing. Similarly, I also recognize that Ms. Alvarado’s death led to
disclosure of the text messages, however, as already noted, that was still several weeks before the hearing.

18
evidence was reasonably available during the investigation or hearing. Based on my determination, an
analysis of whether the evidence would have affected the outcome of the matter is not necessary.118

D. Arbitrary and Capricious

Respondent argues that the decision reached by the RO was arbitrary and capricious because (1) there is no
evidence of unwanted sexual conduct; (2) the RO’s finding of quid pro quo harassment invents a new claim
not in the Complaint; (3) the RO distorted the reasonable person standard for “hostile environment” claim;
and (4) the RO based her finding on sexual exploitation on prior arbitrary findings of non-consensual
masturbation. 119

1. Unwanted sexual conduct

In determining whether Respondent violated the Policy, the RO had to first determine whether Respondent
engaged in unwelcome conduct based on sex. 120 The RO determined that Respondent engaged in
unwelcome conduct based on sex in three instances: (1) appearing in a FaceTime call without a shirt
sometime in fall 2021, (2) requesting to see Claimant alone following the Spring Game, and (3) non-
consensually masturbating and using graphic sexual language on a phone call. 121 Respondent argues that
there is no evidence of unwanted sexual conduct for any of these instances.

a. Incident 1 - FaceTime Call

Respondent argues that there is no evidence of unwanted sexual conduct during a Facetime call between
the parties sometime in fall 2021. Respondent’s argument regarding this incident is based on the RO’s
statement that the call was “inherently sexual in nature” by virtue of his appearance without a shirt on.122
The RO’s determination, however, is not based solely on Respondent not wearing a shirt but is also based
on Claimant’s account of the call and how the call made her uncomfortable because the parties’
communications had remained primarily work-focused up to that point. 123

Respondent also argues that the RO’s determination that the call was unwanted was arbitrary and capricious
because Claimant remained on the phone and pressed him for details on his personal life. 124 The RO again
supported the determination with Claimant’s account of the call and its impact on her. 125

In making these determinations, the RO considered Claimant’s description of the call throughout the
investigation and hearing and found that there was no evidence that refuted her account. The RO also noted

118
Although I did not need to determine whether the new evidence would affect the outcome of the matter, I did
closely review the Affidavit in that regard. First, an Affidavit from a third-party witness is not as compelling as the
witness providing her information during the hearing and being subjected to cross-examination. As stated, Respondent
did not attempt to proffer the witness at the hearing. The Affidavit states that Ms. Alvarado told the witness that the
phone call was consensual phone sex. The most material information on this issue would come from Ms. Avarado
herself because it is Ms. Alvarado’s alleged statement. Ms. Alvarado, unfortunately, would not have been available
at the hearing to speak to this assertion. Finally, even if I gave full weight to the information contained in the Affidavit
regarding consent, it would not be sufficient to overcome the information from the parties themselves regarding the
phone call.
119
Appeal Statement at 49, 51, and 53.
120
Policy at Section III.A.
121
Decision at 60-68.
122
Appeal Statement at 42.
123
Decision at 63.
124
Appeal Statement at 43.
125
Decision at 63-64.

19
that Respondent did not confirm or deny the allegation, and that the RO could only rely on the information
presented by Respondent during the investigation as Respondent did not participate in the hearing and was
therefore not subject to cross-examination. 126 The RO provides a reasonable basis in fact for her conclusion
that this incident was unwelcome sexual conduct.

Respondent’s argument on this point amounts to a disagreement with the RO’s

Decision, which is not sufficient grounds to establish that a decision is arbitrary and capricious.
Nonetheless, I have evaluated his arguments and the RO’s Decision as a whole and, based on the foregoing,
find that the RO’s determination that this incident constituted unwanted sexual conduct was not arbitrary
and capricious.

b. Incident 2 - Spring Game

Respondent argues that the parties’ efforts to meet after the Spring Game was not unwanted sexual conduct.
In support of his argument, Respondent states that the RO reached this determination without rationale
regarding the intent behind the attempt to meet up. 127

The RO’s finding on this point provides a credibility assessment of each party's account and a review of all
available evidence that would support or refute their accounts. 128 Ultimately, the RO found that Witness
Alvardo’s statement generally corroborated Claimant’s account. 129 The RO also assessed the plausibility of
the parties’ accounts based on a totality of the circumstances and found Claimant's explanation more
plausible than Respondent’s. 130 Lastly, the RO considered whether the request to meet in private was for
non-professional purposes and determined that it was sexual in nature and unwanted. The RO based this
determination on “Respondent’s acknowledged romantic interest in Claimant, his repeated attempts to meet
with Claimant alone, during a trip where both Claimant and Alvarado were traveling for work” and support
from the record that “Claimant repeatedly rejected Respondent’s requests to meet that night, and ultimately,
the parties did not see each other following the Spring Game.” 131 The RO provides a reasonable basis in
fact for her conclusion that this incident was unwelcome sexual conduct.

Respondent’s argument regarding this incident amounts to a disagreement with the RO’s Decision, which
is not sufficient grounds to establish that a decision is arbitrary and capricious. Nonetheless, I have
evaluated his arguments and the RO’s Decision as a whole and, based on the foregoing, I find that the
determination that this incident constituted unwanted sexual conduct was not arbitrary and capricious.

c. Incident 3 - April 28, 2022 Call

Respondent argues that the RO’s determination that the April 28, 2022 call was non-consensual “hinges on
a calculated disregard for context.” 132 Respondent provides areas of disagreement with the RO’s rationale
and determination.

The RO provides a detailed analysis of her determination that Respondent’s masturbation and graphic
sexual language was not consensual. This analysis included the conclusion that Claimant’s account was
more clear and consistent than Respondent’s account, the circumstantial evidence surrounding the incident

126
Decision at 63.
127
Appeal Statement at 43-44.
128
Decision at 64.
129
Decision at 64.
130
Decision at 65.
131
Decision at 65.
132
Appeal Statement at 45.

20
at issue such as the photo Claimant sent to Respondent that contained her buttocks, all available record
evidence about the nature of the parties’ relationship before the incident, the parties acknowledged
conversation before this call that their relationship needed to remain platonic and professional, the totality
of the evidence regarding the parties’ interactions after this incident, Claimant’s request for Alvarado to
travel with her to MSU before the trip was canceled, Claimant’s occasional disclosures to Alvarado about
their relationship, and Claimant’s disclosure of her account of the incident to three witnesses which was
documented in two of the witnesses’ notes. 133 The RO therefore provides a reasonable basis in fact for her
conclusion that this incident was unwelcome sexual conduct.

Respondent’s argument on this point amounts to a disagreement with the RO’s Decision, which is not
sufficient grounds to establish that a decision is arbitrary and capricious. Nonetheless, I have evaluated his
arguments and the RO’s Decision as a whole and, based on the foregoing, find that the determination that
this incident constituted unwanted sexual conduct had a reasonable basis in fact and was therefore not
arbitrary and capricious. 134

2. Quid Pro Quo

Respondent raises the argument that the RO’s finding of quid pro quo harassment invents a new claim not
in the Complaint. This argument was also addressed in my analysis of Investigator bias in Section III.B
and is incorporated here.

As stated in Section III.B.1.d, I find that the Investigator did not invent a new claim of quid pro quo
harassment that was not in the Formal Complaint. For the same reasons, I find that the RO’s finding of
quid pro quo harassment did not invent a new claim not in the Formal Complaint and was therefore not
arbitrary and capricious.

Respondent also argues that the RO’s finding of quid pro quo harassment relies on false premises. 135 Quid
pro quo sexual harassment is “unwelcome conduct where submission or consent to the behavior is
reasonably believed to carry consequences, positive or negative, for the individual’s education,
employment, University environment, or participation in a University activity or program.” 136

The RO set forth a well-reasoned analysis of how Respondent engaged in quid pro quo sexual harassment
in violation of the Policy. While I acknowledge that this is an unusual circumstance of quid pro quo
harassment, there is unrefuted and/or corroborated evidence in the record of the following:

(1) Respondent’s position conferred a benefit on Claimant and her company. These benefits
included a $2500 donation to STE by Respondent that Claimant posted on social media, the MSU
football team signing the STE pledge, Respondent recognizing Claimant and STE during the Spring
Game, promoting Claimant and STE on MSU’s football social media accounts, and attempting to
involve STE in the Peach Bowl; 137 and
(2) Claimant reasonably believed that rejection of Respondent’s advances carried negative
consequences for her and her company’s involvement with MSU football and University athletics.

133
Decision at 65-67.
134
Respondent's appeal also argues that the RO Decision fails to acknowledge the true nature of the parties'
relationship. (Appeal Statement at 39). The RO Decision's Findings of Fact notes both Claimant and Respondent's
descriptions of their relationship. This includes that their relationship was both professional and personal. (Decision
at 11-60).
135
Appeal Statement at 51.
136
Policy at Section III.A.
137
FIR at 18, 20, 22, 23, and 36.

21
 This belief was supported in the record by a decline in their communications after the April 28th
incident and Respondent’s eventual cancellation of her scheduled July 2022 trip, which was not
rescheduled (neither of which Respondent refutes). 138

Based on the foregoing, the RO’s Decision had a reasonable basis in fact.

Respondent’s argument amounts to a disagreement with the RO’s Decision, which is not sufficient grounds
to establish that a decision is arbitrary and capricious. Nonetheless, I have evaluated his arguments and the
RO’s Decision as a whole and, based on the foregoing, find that the determination that Respondent’s
conduct constituted quid pro quo sexual harassment was not arbitrary and capricious.

3. Hostile Environment

First, Respondent argues that the RO distorted the reasonable person standard for “hostile environment
claim.” Specifically, Respondent argues that each instance of conduct at issue is not sufficiently “severe”
to constitute a hostile environment.139

The hostile environment standard is stated in Section III.A of the Policy as follows:

[U]nwelcome behavior [that is] so severe, persistent, or pervasive that it causes an

unreasonable interference with the individual’s work or educational performance by
creating an intimidating, hostile or demeaning environment for employment, education,
University living, or participation in a University activity or program. This can be referred
to as ‘hostile environment.’

The Policy goes on to provide a non-exhaustive list of examples of hostile environment and further states:

Determinations of whether reported conduct constitutes sexual harassment requires

consideration of all the circumstances, including the context in which the reported incidents
occurred. Sexual harassment is often a pattern of offensive behaviors. A single incident
may also constitute sexual harassment, depending on the severity of the conduct and on
factors such as the degree to which the conduct affected the educational experience, the
employee’s work or academic environment, or patient care; the type of conduct; and the
relationship between the respondent and claimant.

Regarding the determination that the conduct was severe, the RO looked to all of the circumstances,
including whether the reported incidents occurred, rather than assessing the severity of each individual
incident in her determination. 140 Thus, the RO “considered the totality of the circumstances.” 141
Specifically, the RO determined that participating in a video call without wearing a shirt, requesting to see
Claimant alone following the Spring Game, and non-consensually masturbating and engaging in graphic
sexual talk during a phone call met the severe standard. In support of this determination, the RO noted that
a reasonable person in Claimant’s position “would find that each instance of the conduct, which occurred
without consent or prior discussion, was outside of the norm for the parties’ prior interactions.” 142 The RO
provides a reasonable basis in fact for her conclusions as to the severity of Respondent’s conduct.

138
FIR at 52-53.
139
Appeal Statement at 51.
140
RO Appeal Response at III.B; Decision at 70-71.
141
RO Appeal Response at III.B; Decision at 70-71.
142
Decision at 71.

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The plain language of Policy supports the basis for the RO’s determination of a hostile environment based
on a totality of the circumstances or a pattern of offensive behaviors versus an analysis of each instance of
the conduct at issue. Respondent’s assertion that the RO had to consider whether each instance of conduct
at issue was sufficiently severe is therefore an inaccurate interpretation of the standard set forth in the
Policy.

Respondent next argues that the alleged behavior must be evaluated as to whether it was severe and/or
pervasive. The Policy, however, requires an analysis as to whether the conduct was “severe, persistent, or
pervasive.” 143 Thus, again, Respondent’s argument is based on an inaccurate statement of the standard set
forth in the Policy.

Technically, the RO only had to determine therefore that the conduct met one of the three prongs to
determine that conduct created a hostile environment. Having determined that the conduct was severe, the
RO did not need to determine if it was persistent or pervasive. Nonetheless, I conducted a review of the
RO’s determination that Respondent’s conduct was persistent and pervasive. The RO’s determination in
both instances had a reasonable basis in fact.

Based on the foregoing, I find that the RO’s determination that Respondent was responsible for RVSM
Sexual Harassment, in the form of Hostile Environment Harassment, was not arbitrary and capricious.

4. Sexual Exploitation

Respondent's appeal argues that the RO’s Decision of exploitation is based on arbitrary findings of non-
consensual masturbation. 144

RVSM Sexual Exploitation is defined as “taking or attempting to take non-consensual or abusive sexual
advantage of another for one’s own advantage or benefit, or to benefit or advantage anyone other than the
person being exploited.” 145 One example provided is masturbation in public.

The RO found that Respondent masturbated on the call with Claimant on April 28th, which is not refuted
by Respondent. 146 As previously discussed, the RO had a reasonable basis in fact for determining that the
incident was unwanted sexual conduct, or, in other words, was non-consensual. Finally, the RO determined
that the conduct was for Respondent’s own advantage or benefit. This determination relied on statements
made by Respondent that were unrefuted (for example, Respondent admitted to asking Claimant if she
wanted him to ejaculate and stated that she “wore him out”). 147

Respondent’s argument amounts to a disagreement with the RO’s Decision, which is not sufficient grounds
to establish that a decision is arbitrary and capricious. Nonetheless, I have evaluated his arguments and the
RO’s Decision as a whole and, based on the foregoing, find that the determination that this incident
constituted RVSM Sexual Exploitation had a reasonable basis in fact was therefore not arbitrary and
capricious.

143
Policy at Section III.A.
144
Appeal Statement at 53.
145
Policy at Section III.B.5.
146
Decision at 39, 72.
147
Decision at 39 and 71-72.

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 IV. Conclusion

Having considered the DIR, FIR, accompanying attachments, RO Decision, Hearing Record, and Appeal
Statements from Respondent, Claimant, Investigator, and the RO, I uphold the RO’s findings. Respondent
does not provide information to support a conclusion that the RO’s findings were the result of a material
procedural error or bias. Additionally, Respondent failed to demonstrate that the evidence in question was
not reasonably available either during the investigation or the hearing. Furthermore, Respondent has not
established that the RO’s findings were arbitrary and capricious. Based on the facts outlined in the record,
the RO had a reasonable basis for each of the challenged findings. The RO’s Decision is upheld. This
decision is final.

Equity Review Officer

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