By Erica J. Zonder and Jodi Schumacher
On June 29th, 2020, the Civil Rights Division of the Department of Justice (“Department”) notified San Jose State University (SJSU) that a Title IX compliance review was being initiated specifically related to employee-on-student sexual harassment and related retaliation against two employees within Athletics at SJSU. After investigation, the Department found “significant failures” by SJSU (USDOJ, 2021b, p. 13) in terms of their handling of sexual harassment and retaliation in violation of Title IX. On September 21, 2021, the Department and the Board of Trustees of California State University, on behalf of SJSU, voluntarily entered a Resolution Agreement. Both terminated employees have since filed private lawsuits (Almond, 2021a; Staff, 2021)
Background
The investigation covered a period from August 2008 until June 2021and focused on allegations made against Athletic Trainer Scott Shaw. He was accused of engaging in unwelcomed sexual touching of female student-athletes, including their breasts, buttocks, and pubic areas during treatment in the SJSU Athletic Training Facilities. The student-athletes went to their swim team coach Sage Hopkins (identified in the Department Report as “Employee A”) who reported the conduct to his supervisor, who reported it to the Athletics Director, who contacted SJSU’s Office for Equal Opportunity (OEO) to initiate an investigation (p. 6). The OEO concluded that Shaw had not violated any school policy.
In 2010 two SJSU Athletic Trainers (ATs), Shawna Hernandez/Bryant, and Hisashi Imura, were interviewed as expert witnesses regarding the OEO investigation. Shaw had claimed that the treatment he was providing was pressure point therapy. The treatment was being performed under the student-athletes’ bras and underwear without the use of gloves. SJSU’s investigation claimed that the therapy was “scientific and is an accepted method of treatment.” Both ATs interviewed stated that what Shaw had done was wrong and ATs should never touch athletes in their private areas without gloves. In addition, Imura stated that there are other ways to perform the therapy without touching in private areas. Hernandez had contacted Shaw in 2008 via email expressing her concerns about how he was treating the student-athletes and shared those emails during the investigation. In 2021 the OEO report was released, and it was noted that there was no mention of Hernandez’s emails (Prodis-Sulek, 2021).
Facts and Findings
- SJSU’s Response to Allegations of Sexual Harassment against the Athletic Trainer Violated Title IX
The Department noted many deficiencies in the OEO’s 2009-10 investigation, including not reaching out to all of the students who reported misconduct. Only one student-athlete was designated as the complainant and only that person’s allegation was investigated. Additionally, the OEO failed to interview student-athletes from other teams who also may have had similar experiences with Shaw. The complainant was the only person notified of the final outcome of the investigation. Shaw resumed his responsibilities (although he allegedly was asked not to treat female swimmers – an “informal rule”). The Department found that “none of the student-athletes, including the one complainant, were offered any supportive nor remedial measures” by SJSU (p. 6). Furthermore, many student-athletes felt discomfort seeing Shaw around the athletic facilities, traveling with teams, treating other student-athletes, and others had “stress and anxiety” around athletic training and/or became reluctant to seek treatment. The Department found that this response to known sexual harassment by SJSU violated Title IX, and as a result of this failure, the school subjected student-athletes to ongoing hostile environment that impeded their access to SJSU programs and activities, exposed additional students to sexual harassment, and “rendered” more students vulnerable to such (p. 7).
- SJSU Continued to Violate Title IX within SJSU Athletics Following the 2009-10 Investigation.
Continual failure to comply in the subsequent decade ultimately put many more student-athletes at risk and caused many more to fall victim to Shaw. SJSU took no effective measures to limit Shaw’s access to student-athletes, besides the “informal rule” which was not monitored or enforced. Hopkins reminded SJSU of this restriction several times to no avail. Concerns were again specifically raised in 2016 when SJSU did a formal climate review of athletics that determined additional Title IX training was necessary – the training was done the following year – and raised ongoing concerns about Shaw but SJSU took no action. Hopkins again raised concerns in 2018 and 2019, before ultimately sharing the allegations and concerns with the NCAA, leading to retaliation against Hopkins (see 3 below). The NCAA referred Hopkins’s complaint back to SJSU and in December 2019, another investigation was opened. This investigation included an external, independent investigator, Shaw was instructed not to treat any student-athletes during the investigation, ultimately being suspended, with pay, after a student-athlete came forward alleging unwelcome sexual touching a month after Shaw was told to stop. Additionally, an outside medical expert concluded that Shaw’s behavior was “not consistent with recognized treatment protocols and rose to the level of sexual harassment” (p. 8). Nevertheless, the Department found that the investigation was flawed in terms of scope, as only new complainants were considered, and further, they didn’t tell the student-athletes not to seek treatment, instead only telling Shaw who had a history of ignoring directives. Further, student-athletes were concerned about retaliation, including loss of athletics scholarships, if they spoke out. The Department found that this ongoing harassment was preventable and that SJSU failed to take reasonable steps.
- SJSU Violated Title IX by Retaliating against SJSU Athletics Employees
Employee A, Sage Hopkins, was engaging in protected activity in raising concerns during the 2009-10 investigation, and including but not limited to 2018, 2019, and 2020 examples. Hopkins also submitted two grievances raising Title IX issues in 2020. Shortly thereafter, Hopkins was given low performance evaluation ratings. SJSU’s reasoning of unprofessional communications was rejected, and the Department found retaliation here. Employee B (likely Steve O’Brien, Deputy Athletic Director) was directed to meet with Hopkins about “allegedly insubordinate behavior toward a coworker” (p. 10). Employee B was concerned that this would be considered retaliation for the Title IX comments, and soon found their job responsibilities reduced before ultimately being terminated. The Department determined that SJSU took adverse employment actions against Employee B that were causally linked to Title IX activity and SJSU did not offer credible justifications for these actions, therefore these actions were found to be retaliatory.
- SJSU Did Not Comply with Title IX’s Regulatory Requirements
SJSU did not have a Title IX Coordinator until 2015, in violation of the requirement to designate at least one employee to coordinate compliance with Title IX. And further, SJSU had four different people in the role between 2018 and 2021, “…employees and students alike could not identify the name of the current Title IX Coordinator” (p. 11). Additionally, there was “much confusion about the complaint process” (p. 12). SJSU failed to meet their obligations in this area, and further failed to “adequately disseminate an accurate notice of nondiscrimination with the minimal required information” (p. 12).
Resolution Agreement
Under this agreement, SJSU will do the following (USDOJ, 2021a):
- Significantly improve SJSU’s process for responding to complaints of sexual harassment;
- Bolster the Title IX Office by revising the office structure and providing adequate authority, independence, and resources to the Title IX Coordinator;
- Publicize Title IX policies and protocols and develop user-friendly materials so everyone in the SJSU community knows how to report Title IX concerns;
- Improve the policies and procedures of the SJSU Sports Medicine and Athletics Training Program to prevent sexual harassment by athletic trainers;
- Deliver training to student-athletes and SJSU Athletics employees on giving and receiving informed consent for medical treatments and athletic training services;
- Survey SJSU Athletics employees to assess their understanding of SJSU policies and identify barriers to reporting;
- Take concrete steps to prevent retaliation under Title IX, including training that provides clear examples of prohibited conduct;
- Provide supportive measures and remedies to current and former student-athletes who were sexually harassed by Shaw.
Financial relief is also provided to victims – $1.6 million to individuals who were sexually harassed by Shaw and who came forward to participate in the Department’s Title IX investigation or SJSU’s internal investigations.
Retaliation Lawsuits
Both Sage Hopkins and Steve O’Brien have filed retaliation lawsuits in California State Court. O’Brien’s complaint is highlighted here:
Steve O’Brien (likely Employee “B”) was the Deputy Director of Athletics at SJSU. His performance reviews indicated he was “exceptional” (O’Brien v. Trustees of California State University, p. 5). According to his complaint, he was troubled by then Athletic Director Marie Tuite’s handling of compliance generally, other retaliatory behavior, and certain events specifically related to the Title IX investigation into Shaw, as well as a “culture of fear and intimidation.” But more directly, O’Brien was asked to discipline Hopkins for conduct he had not personally witnessed. O’Brien believed that doing so would compromise the active Title IX investigation and possibly constitute unlawful retaliation. After a good faith effort to seek assistance, by way of written complaint, from California State University’s (CSU) Office of General Counsel (p. 17), O’Brien still attended the meeting to discipline Hopkins but “expressed strong opposition” (p. 2), he was fired soon after. Ultimately O’Brien claimed his protest regarding retaliation against a whistleblower, as well as another compliance officer, led to his termination (p. 21). As such, O’Brien raised four causes of action under California law:
- Retaliation in Violation of California Whistleblower Protection Act
This Act protects CSU employees against retaliation for “protected disclosures” of which O’Brien made “several” (p. 23), including Hopkins’ reporting about SJSU’s failure to follow proper investigatory processes in its Title IX investigation into Shaw, and his opposition to Tuite’s directives that he take adverse employment action against Hopkins.
- Retaliation in Violation of California Labor Code, § 1102.5
This Code prohibits employers from retaliating against an employee for their disclosure of information related to, or refusal to participate in, unlawful acts or acts the employee reasonably considered to be unlawful. O’Brien had reasonable cause to believe he was engaging in retaliatory behavior, in violation of state and federal statues, leading to his refusal to participate in disciplinary activities against his colleagues (p. 26).
- Retaliation in Violation of California Fair Housing and Employment Act (FEHA)
Gov. Code § 12940(h) makes it illegal for an employer to discharge, expel, or otherwise retaliate against an employee for engaging in activity protected under FEHA, and FEHA prohibits discrimination based on gender, and Title IX is a federal counterpart of FEHA (p. 27). O’Brien “opposed, reported, and refused to participate in” activities (p. 27) that aimed at undermining an active Title IX investigation.
- Wrongful Termination in Violation of Public Policy
O’Brien was terminated for “reasons that violate fundamental principles of public policy,” including reported reasonable based suspicions of “illegal activity” and unlawful conduct. (p. 28).
Aftermath
In May 2021, Marie Tuite lost an appeal of a grievance against her regarding retaliation against Sage Hopkins (Almond, 2021b). A week earlier she had been demoted. She resigned in August. She is currently a defendant in both retaliation lawsuits. SJSU President Mary Papazian resigned in October 2021 (AP, 2021). Ten former athletes had filed tort claims against the California State University System in March, as CSU failed to “adequately train, investigate, retain, and supervise Shaw, in breach of its duties” (Axon and Jacoby, 2021). 13 of 23 alleged victims have accepted the offer to receive $125,000 each.
References
Almond, E. (April 22, 2021a). Swim coach who brought sex abuse allegations sues SJSU for retaliation. Mercurynews.com. Retrieved from
Almond, E. (May 28, 2021b). San Jose State’s Marie Tuite denied in grievance case over sex abuse allegations. Marin Independent Journal. Retrieved from
Associated Press (Oct. 8, 2021). San Jose State president resigns amid sex abuse fallout. ESPN.com. Retrieved from https://www.espn.com/college-sports/story/_/id/32360557/san-jose-state-university-president-resigns-amid-sex-abuse-fallout
Axon, R. and Jacoby, K (March 5, 2021). Ten female athletes seek damages after findings of abuse against San Jose State Trainer. USAToday.com. Retrieved from https://www.usatoday.com/story/news/2021/03/05/san-jose-state-trainer-sexual-abuse-case-leads-demand-damages/4595790001/
O’Brien v. Trustees of the California State University et. al. Case No. 21CV379038
Cal. 2021). Retrieved from
Prodis Sulek, J. (Nov. 9, 2021). How flawed was San Jose State’s first investigation into athletic trainer sex abuse scandal? Decade later, school releases document that shows. Mercurynews.com. Retrieved from https://www.mercurynews.com/2021/11/08/how-flawed-was-san-jose-states-first-investigation-into-athletic-trainers-sex-abuse-decade-later-school-releases-document-that-shows/
Staff (March 3, 2021). Fires SJSU Employee Sues School Alleging Retaliation for Reporting Sexual Misconduct. NBCBayArea.com. Retrieved from
United States Department of Justice (Sept. 21, 2021a). Justice Department Reaches $1.6M Agreement to Remedy Title IX Violations at San José State University. Justice.gov. Retrieved from https://www.justice.gov/opa/pr/justice-department-reaches-16m-agreement-remedy-title-ix-violations-san-jos-state-university
United States Department of Justice. Civil Rights Division. (September 21, 2021b). Summary of the Department’s Title IX Investigation of San Jose State University and Related Findings (Letter). Retrieved from https://www.justice.gov/crt/case-document/letter-san-jose-state-university
Erica J. Zonder, J.D., M.S. is an Associate Professor of Sport Management at Eastern Michigan University.
Jodi Schumacher, M.S., AT, ATC is an Associate Professor of Athletic Training at Eastern Michigan University
