A federal judge from the District of Arizona has denied mots of a motion to dismiss filed by Arizona State University (ASU), its athletic director, and the Arizona Board of Regents (ABOR), which sought to dismiss the lawsuit of an ASU administrator, who claimed he was retaliated against for reporting the inappropriate activities of a booster.
While dismissing the administrator’s state law claim on statute of limitations grounds, it let stand the federal law part of the complaint, which was brought under Title VII and Title IX.
By way of background, the plaintiff in the case was David Cohen, who served as the Senior Associate Athletic Director at ASU from June 2014 through December 2019. For most of his tenure, the plaintiff reported to Ray Anderson, the school’s AD.
In his role, the plaintiff was responsible for “overseeing ticketing for all ASU athletics, and the day-to-day operations of the men’s basketball and ASU swimming and diving programs.” He was also a mandatory reporter, obligated to report “any sexual harassment he witnessed in his role.” To that end, he was trained annually on his reporting obligations. He was trained to report “any sexual assault or harassment of which” he became aware in his role, regardless of whether the victims and perpetrators were “employees, students, or other members of the ASU community.” During a training led by Anderson, the AD recounted that a prominent donor had been recently reprimanded for sexual harassment. The trainings repeatedly stressed the “mandatory nature of this reporting obligation.” He was informed that if he made a report, he would be protected from retaliation, according to his complaint. At the same time, if the plaintiff failed to make a report, he would face punishment up to and including termination.
Meanwhile, Bart Wear was a prominent donor to ASU athletics who shared a close relationship with Anderson. Due to his history as a donor, ASU granted Wear wide-ranging access to ASU athletics facilities and events. Wear could travel with ASU teams and attend ASU practices, and had “exclusive and seemingly unfettered access to ASU practice facilities, coaches’ offices and training facilities, including the team locker rooms.” Wear also “supported Anderson throughout his tenure.” In addition, Anderson allegedly told Cohen to grant Wear “access to ASU athletics programs because he ‘writes checks.'”
On March 14, 2019, Wear was ASU’s guest at the PAC-12 NCAA Men’s Basketball tournament in Las Vegas, Nevada. Wear sat in a section where seats were “only made available to ASU staff, family, and prominent donors.” There, Wear allegedly sexually harassed two women. One of those women was allegedly the plaintiff’s wife. Wear also sexually harassed another woman “on several [other] occasions” at an ASU Men’s Basketball home game at the Wells Fargo Arena, and had been removed from “at least one ASU basketball game” for belligerent conduct involving women after consuming alcohol, according to the complaint.
Cohen reported Wear’s conduct to Anderson at a meeting on March 25, 2019. Anderson allegedly told Cohen that he would address Wear’s conduct as he found it unacceptable and indicated that ASU had recently addressed a similar situation with another donor. Anderson, however, did not take any action with respect to Mr. Wear’s conduct, according to the complaint.
News of Wear’s conduct spread. Rick Shangraw, CEO of ASU Enterprise Partners, learned of it in early April 2019, and told Anderson it was “inappropriate and unacceptable.” Jay Heiler, a member of ABOR, learned of the allegations and Anderson’s decision not to further investigate in mid-April. ASU’s Deputy Athletics Director, Jean Boyd, learned of the conduct on April 22, according to the complaint.
On May 3, 2019, Cohen allegedly told Anderson that he was concerned about Wear’s attendance at an upcoming event where alcohol would be served. In Cohen’s opinion, Wear posed a “danger to those around him” when he consumed alcohol, and his presence at the event put members of the ASU community in harm’s way, according to the complaint.
Pressure continued to mount on Anderson to take action about Wear’s conduct.
Cohen’s annual performance review took place on June 13, 2019. At this review, he was informed that he would no longer be responsible for administrating the ASU swimming program, and that he was to dedicate more focus on ticketing. After the review, Anderson told Cohen that there would be “changes” in the athletic department. Cohen asked Frank Ferrara, the Senior Associate Athletic Director and Chief Financial Officer, whether these changes would involve Cohen reporting to Ferrara
The punative actions continued.
Ultimately, Anderson attempted to terminate Cohen’s employment on August 15, 2019, believing termination was appropriate because Cohen was not a “team player” or “cultural fit,” according to the complaint. Cohen was subsequently informed he was not terminated, but rather placed on administrative leave. At that point, Cohen formally complained to ASU about his treatment. ASU subsequently opened an investigation into Wear, determining that he had sexually harassed three women, including Cohen’s wife, on three separate occasions. After ASU completed the report in November 2019, Wear was given courtside seats at an ASU basketball game in December 2019.
Cohen was eventually terminated on December 12, 2019, effective December 13. He filed a charge of retaliation with the EEOC on March 12, 2020. Under a work sharing agreement, the Civil Rights Division of the Arizona Attorney General’s office also received his charge. Cohen exchanged calls and emails with the EEOC through July 8, 2020, when he submitted his reply to ASU’s Position Statement. He did not hear from the EEOC again until 2021, when he followed up on the status of his case in late January.
Cohen learned in February 2021 that his charge was being handled by the EEOC’s Los Angeles office. When contacted, the Los Angeles office informed him that it had not begun its investigation of his charge. Cohen requested a right to sue letter, which he received on May 4, 2021. He filed his initial complaint on July 7, 2021, which he subsequently amended. The FAC seeks relief under three causes of action: (1) retaliation under Title VII of the Civil Rights Act of 1964, (2) wrongful termination in violation of public policy under Arizona law, and (3) retaliation under Title IX of the Education Amendments of 1972.
The defendants moved to dismiss.
The defendants argued that the plaintiff’s state law claim should be dismissed as barred by the statute of limitations. The court agreed, noting that the plaintiff “offers no explanation for why he failed to request his notice” from the EEOC until “late January 2021. In the absence of such justification, the court will not apply equitable tolling. As it is untimely, the plaintiff’s state-law cause of action is dismissed with leave to amend should the plaintiff wish to plead additional facts in support of equitable tolling.
Regarding the federal claims, the defendants argued that Cohen’s federal retaliation claims should be dismissed because he did not engage in protected activity under either Title VII or Title IX.
Addressing Title VII first, the court determined that the plaintiff “was engaged in protected activity, suffered an adverse employment action, and that a causal link existed between the two, he has alleged a prima facie case of retaliation under Title VII.” Thus, it denied the motion to dismiss the first cause of action.
Similarly, the court also found that the plaintiff adequately alleged that he engaged in protected activity “because he reasonably believed he was reporting conduct prohibited by Title IX.”
David Cohen v. Arizona State University, et al.; D. Ariz.; No. CV-21-01178-PHX-GMS, 2022 U.S. Dist. LEXIS 96886 *; 2022 WL 1747776; 5/31/22
Attorneys of Record: For David Cohen, an individual, Plaintiff: Christopher Wayne Rowlett, Michael Jesse Perez, LEAD ATTORNEY, PRO HAC VICES, Perez Vaughn & Feasby Incorporated, San Diego, CA; Jose de Jesus Rivera, LEAD ATTORNEY, Miller Pitt Feldman & McAnally PC, Phoenix, AZ. For Arizona Board of Regents, Raymond Anderson, an individual, Defendants: Melanie V Pate, LEAD ATTORNEY, Lewis Roca Rothgerber Christie LLP – Phoenix Office, Phoenix, AZ; Robert H McKirgan, LEAD ATTORNEY, Papetti Samuels Weiss McKirgan LLP, Scottsdale, AZ.
