By Ellen J. Staurowsky, Ed.D., Senior Writer, Professor, Sports Media, Roy H. Park School of Communications, Ithaca College, staurows@ithaca.edu
Was David Cohen, a seemingly successful and once valued senior associate athletics director wrongfully terminated and retaliated against by Arizona State University (ASU) officials after reporting allegations of sexual harassment of three women by ASU booster Bart Wear? Or was ASU vice president for university athletics Raymond Anderson faced with managing, and justifiably dismissing, a troublesome employee who exhibited inappropriate behavior at times during his five-year tenure working in the Sun Devils athletic department? Was Cohen’s firing wholly unrelated to his allegations against a high-profile donor as ASU officials assert or was ASU’s characterization of Cohen as a problem employee pretext to silence a whistleblower who was exposing their reluctance to hold a powerful donor accountable for his illegal behavior?
Mr. Cohen’s Representation of the Facts
Arizona state law requires a claimant seeking monetary damages from a state entity to file a notice of claim against the would-be defendant (Arizona State Attorney General’s Office, 2021). The notice of claim filed against the Arizona Board of Regents and Arizona State University by David Cohen in February of 2020 and subsequent lawsuit filed in July of 2021 detail the events leading up to his official firing in December of 2019.
On March 14, 2019, the ASU men’s basketball team was competing in the PAC-12 tournament in Las Vegas, NV. During the course of that game, Mr. Wear is alleged to have sexually harassed three women, one of whom was Mr. Cohen’s wife. * Upon learning of what had transpired that night and other prior acts of assault and sexual harassment that women had suffered at the hands of the ASU donor, Cohen sought to have ASU administrators meet their reporting obligations.
Over a two-month period during the spring of 2019 (March-May), Cohen reported what had happened to four ASU administrators including Scott Nelson, senior associate athletic director and executive director of the Sun Devils Club; Jean Boyd, the deputy athletics director; Rick Shangraw, CEO of ASU Enterprise associates; and Ray Anderson, VP of university athletics as well as Jay Heiler, a member of the ASU Board of Regents. Those reports by Cohen to ASU executives, which totaled seven in all, did not result in an investigation or other efforts on the part of administrators to protect athletes, coaches, and staff from a donor they were aware behaved inappropriately around women and had a tendency to behave inappropriately after drinking excessively. According to the notice of claim, the delay in initiating an investigation into Wear’s misconduct was the result of concerns about offending a prominent donor and the conflicted relationship VP Anderson had with Wear.
As the summer unfolded, Cohen continued to broach the issue of Wear’s misconduct with ASU administrators, discussing the matter on two occasions in July with VP Anderson. According to Cohen, on August 15, 2019, he was informed that he was being fired. Following delivery of a letter from Cohen’s attorneys the next day documenting the efforts he made over a six-month span of time, an investigation was undertaken.
Findings from that investigation which ended in November of 2019 revealed that there was “sufficient evidence” based on the “credibility of witnesses and the weight of the evidence” that Wear had sexually harassed all three of the women. Throughout the time that Cohen attempted to persuade ASU administrators to act, during the investigation itself, and after the findings from the investigation were made, Mr. Wear continued to be afforded benefits available to prominent donors. In May of 2019, the athletic department arranged a golfing junket that included Mr. Wear, VP Anderson, deputy athletic director Boyd, and head football coach Herm Edwards. In September 2019, Mr. Wear was included in a trip organized by the Sun Devils Club for major contributors to attend the ASU versus Michigan State game in Michigan. On December 7, 2019, ASU permitted Mr. Wear to sit courtside during the ASU men’s basketball game against Louisiana State University (LSU).
Details of the Alleged Retaliation Targeting Mr. Cohen and Eventual Termination
According to Cohen, his contributions to the ASU athletic department were recognized with positive performance evaluations and bonuses. In Cohen’s annual review for 2018, he was credited with having a “strong and significant overall performance” (Notice of Claim, 2020, p. 10) for the work he did in overseeing the athletic department’s entire ticketing operation and serving as the sport administrator for men’s basketball and swimming. By June of 2019, Cohen’s status had changed. In his annual review, he was informed that his responsibility as a sport administrator for swimming was being taken away so that he could focus more on his oversight of the ticketing operation. Cohen viewed that decision as a demotion and the rationale questionable, given the fact that revenue generated from ticket sales was up in the department and crowds attending football games were at 91% capacity despite a team that had registered four consecutive six-loss seasons. He was also informed by Anderson, in the presence of other ASU administrators, that there would be a change in Cohen’s contractual compensation structure, which would result in Anderson having discretion over 40% of Cohen’s compensation. Cohen alleges he was given the choice of either agreeing to the new structure or being fired and given those choices, he agreed to the change.
Viewing his treatment as retaliatory, Cohen met with human resource administrators at the university and others. Shortly thereafter, on August 15, 2019, in a meeting with Anderson, Cohen was notified that he was being terminated because he was “not a team player” and that he was not a good “cultural fit”. Cohen further alleges that Mr. Anderson violated his obligation to handle personnel matters in a confidential manner, sharing information with third parties in the sport industry about the termination and describing Cohen as a bad employee.
Arizona State’s Representation of the Facts
In response to Cohen’s notice of claim, ASU officials denied any connection between Cohen’s dismissal and the Wear matter. In a statement from the university to reporters with the Arizona Republic, Cohen’s reaction to the departmental reorganization was described as “hostile and defiant” (Ryman & Harris, 2020, para. 28). Cohen was depicted as an employee who had previously exhibited bad behavior. And they further said, “Mr. Cohen’s failure to meet the professional standards of the Sun Devil Athletics department was the reason for his termination” (as quoted in Ryman & Harris, 2020, para. 30).
Cohen v. Arizona State University et al. (2021) Lawsuit
After exhausting administrative avenues, including filing a charge of retaliation with the Equal Employment Opportunity Commission in March of 2020, Cohen sued Arizona State, the Arizona Board of Regents, and Anderson in the U.S. District Court for the District of Arizona on July 7, 2021, seeking relief under Title VII of the Civil Rights Act of 1964 and the Arizona Civil Rights Act. Cohen argues that ASU alum and former football player, Bart Wear, was acting as an agent of ASU at the time he allegedly assaulted and sexually harassed three women at the PAC-12 men’s basketball tournament. As a prominent donor, he was given considerable access to ASU athletics. On two occasions, his trips to support ASU athletic teams were entirely paid for by the athletic program. On other occasions, he flew on chartered flights arranged by ASU athletics; was given free or discounted tickets; permitted to sit in areas at games designated for ASU employees and attend team practices; and afforded special VIP access to ASU athletics leadership and coaches.
According to Cohen’s complaint, ASU executives to whom he reported allegations of sexual harassment and assault by Wear violated ASU’s policies, including a provision in ASU’s Academic Affairs Policy (ACD) 401 which prohibits discrimination, harassment, and retaliation against employees, students, contractors, or agents. Cohen alleges members of the ASU athletics leadership team also failed in their obligations to report credible threats of assaults and harassment to one of the designated offices (Office of Rights and Responsibilities, Title IX Coordinator, or Dean of Students office).
Cohen chronicles in the lawsuit the retaliatory steps ASU administrators took in altering his workload and his compensation package as he had in the notice of claim. Anger that Cohen exhibited at one point about Anderson’s failure to act became part of the pretext to terminate him. Efforts to fire him immediately on August 15, 2019 were stalled, however, and recast by the administration as an action to place Cohen on administrative leave. His formal termination happened on December 13, 2019.
Cohen asserts that between March and August of 2019, he was engaged in protected activity by admonishing Anderson and other ASU athletics administrators to investigate Wear’s conduct and to move to protect other members of the ASU community. He further argues that the reasons given for his termination, occurring on the heels of his having been the recipient of the largest discretionary bonus awarded to an employee in the ASU athletic department, were pretextual and baseless. He further argues that he has experienced emotional distress, his professional reputation has been harmed, his ability to find another job has been jeopardized, and that he has suffered lost wages (past and future) as well as shouldering the burden of the legal costs associated with his case. Because ASU acted intentionally to violate Cohen’s rights under Title VII and the Arizona Employment Protection Act, they are liable for punitive damages as well. As of this writing, ASU has not filed their response.
For his part, Mr. Wear responded by filing a notice of claim in late April of 2020 objecting to the findings from an independent investigation authorized by the university that he characterizes as “character assassination” and a “hatchet job” (Ryman, 2020, para. 4). As reported in the Arizona Republic, Wear complained that the investigation failed to include “compelling information” that would have proven his innocence (Ryman, 2020, para. 5). As a result of the reputational harm done to him and the false statements alleged to have been made about him in the report, Wear was seeking $5 million.
*Note: In later news accounts and in Cohen v. Arizona State University et al. (2021) it was revealed that the other women who are alleged to have been sexually harassed by Wear include Leslie Hurley (the wife of ASU men’s basketball coach, Bobby Hurley) and Lindsey Wood (the wife of ASU’s senior analyst-offense, football program).
References
Arizona State Attorney General. (2021). Agency handbook – chapter 13. Retrieved from https://azag.gov/sites/default/files/docs/agency-handbook/2018/agency_handbook_chapter_13.pdf
Cohen v. Arizona State University, Arizona Board of Regents, and Raymond Anderson, an individual. (2021, July 21). Retrieved from https://www.statepress.com/article/2021/07/spsports-asu-athletics-official-lawsuit-ray-anderson-bobby-hurley-david-cohen-bart-wear
David Cohen Notice of Claim. (2020, February 17). Retrieved from https://media.kjzz.org/s3fs-public/David-Cohen-Notice-of-Claim-Redacted-1-3-1_0.pdf
Ryman, A. (2020, May 1). ASU booster accused of sexual harassment files $5 million claim against university, calling investigation ‘a hatchet job’. Arizona Republic. Retrieved from https://www.azcentral.com/story/news/local/arizona/2020/05/01/asu-booster-bart-wear-accused-sexual-harassment-files-5-million-claim-against-university/3058206001/
Ryman, A., & Harris, C. (2020, February 20). Ex-ASU employee says he was fired after reporting athletic booster’s sexual harassment. Arizona Republic. Retrieved from https://www.azcentral.com/story/news/local/arizona/2020/02/20/asu-associate-athletic-director-david-cohen-says-he-was-fired-after-reporting-sexual-harassment/4820263002/
Thamel, P. (2021, July 12). Civil lawsuit claims Arizona State retaliated against ex-official for insisting sexual harassment allegations be investigated. Yahoo! Sports. Retrieved from https://sports.yahoo.com/civil-lawsuit-claims-arizona-state-retaliated-against-ex-official-for-insisting-sexual-harassment-claims-be-investigated-184436618.html
