III. LEGAL ANALYSIS
In this Section, we evaluate whether our factual findings support legal conclusions that any Complainant or other UR student or employee was subjected to unlawful sexual harassment as a result of Jaeger's conduct or that any Complainant was subjected to unlawful retaliation.
We find that the evidence does not support a conclusion that any Complainant or other UR student or employee has been subjected to unlawful sexual harassment as a result of Jaeger's conduct. Although Jaeger's conduct before 2014 was at times inappropriate, unprofessional and offensive, and may have been harmful to some students, as well as to the BCS and greater UR communities in a variety of ways, we find that Jaeger's conduct did not meet the standard for sexual harassment, as currently defined by law. We also find that UR did not unlawfully retaliate against the Complainants.
In reaching our legal conclusions, we recognize that we did not speak to every possible witness or review every possible document, and there always remains the possibility that new evidence could impact our analysis. For the reasons described in the Introduction to this Report, however, we are our confident that our investigation was exhaustive and that our conclusions are therefore founded on a robust record.
A. Sexual Harassment
1. Governing Legal Standards
Sexual harassment is prohibited by Title VII, Title IX and the NYSHRL.568Title VII, Title IX and the NYSHRL broadly prohibit sex-based discrimination in both the workplace and educational environments. Courts have generally followed principles developed in Title VII jurisprudence to analyze claims under Title IX and under the NYSHRL. See, e.g., Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011) ("[A] Title IX hostile education environment claim is governed by traditional Title VII hostile environment jurisprudence."); Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 n.4 (2d Cir. 2014) (noting that NYSHRL claims are analyzed under the same standard as Title VII hostile environment claims). It is also prohibited by UR Policy 106, which closely tracks the legal definition of sexual harassment under those statutes.569Exhibit 3. The law and UR Policy 106 recognize two types of sexual harassment: (1) quid pro quo harassment, in which an adverse employment or academic action (e.g., termination, pay cut, bad grade) results from a refusal to submit to a supervisor's or professor's unwelcome sexual demand or where submission to such a demand is made a condition of receiving employment or academic benefits;570Papelino, 633 F.3d at 89. or (2) hostile environment harassment, in which sexual harassment is so "severe or pervasive" that it creates an abusive working or academic environment.571Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014).
A plaintiff asserting a hostile work environment or hostile educational environment claim must prove, among other things, that (i) the conduct in question was unwelcome, and (ii) as a result of such unwelcome conduct, the educational or workplace environment "is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."572Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks omitted) (citations omitted) (emphases added); see also Littlejohn v. City of New York, 795 F.3d 297, 320-21 (2d Cir. 2015) (same). This standard has both objective and subjective components: "the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive," and the plaintiff herself "must subjectively perceive the work environment to be abusive."573Littlejohn, 795 F.3d at 321.
To prevail, a plaintiff must demonstrate "either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment."574Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (internal quotation marks omitted); see also Summa v. Hofstra Univ., 708 F.3d 115, 126 (2d Cir. 2013) ("Our case law . . . establishes that a single incident can create a hostile environment if it is sufficiently severe."); Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010) ("Isolated incidents generally will not suffice to establish a hostile work environment unless they are extraordinarily severe."). When a plaintiff complains that a series of incidents collectively establish a hostile work environment, the incidents complained of "must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive."575Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014). "There is no 'mathematically precise test,' however, for deciding whether an incident or series of incidents is sufficiently severe or pervasive to alter the conditions of a plaintiff's working environment."576Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22-23 (1993)). Courts thus adopt a "totality of the circumstances" approach, considering "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."577Littlejohn, 795 F.3d at 321; see also Raspardo, 770 F.3d at 114 (same).
Because sexual harassment is actionable as a form of discrimination, a plaintiff must show that the conduct was not merely offensive, but discriminatory on the basis of gender.578Kaytor, 609 F.3d at 547 ("It is axiomatic that to prevail on a claim of hostile work environment based on gender discrimination, the plaintiff must establish that the abuse was based on her gender."). Proving that conduct is discriminatory requires showing either that the harasser's intent was to discriminate on the basis of sex or that the harasser's conduct-regardless of intent-created a hostile environment for one gender or another (but not both).579Id. at 547-48; Raniola v. Bratton, 243 F.3d 610, 621-22 (2d Cir. 2001).
An "equal opportunity offender" who directs sexually-charged words or conduct at both men and women can still create a hostile environment where women are disparately impacted. See Petrosino v. Bell Atl., 385 F.3d 210, 222 (2d Cir. 2004) ("[T]he depiction of women in the offensive jokes and graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men."). The presence of pornography in a workplace, for instance, can offend men and women alike but can still alter the status of women in that workplace differently than it can for men. See, e.g., Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007).
There are limits to what the law prohibits in the workplace or in academia, and courts have emphasized that the law "does not create a general civility code for the American workplace."580Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Thus, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment."581Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation and internal quotation marks omitted). The purpose of laws prohibiting sexual harassment is to protect against discrimination on the basis of sex or gender-not to protect generally against a rude or obnoxious boss or professor who makes the workplace equally difficult for men and women.582See Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 605 (2d Cir. 2006) (quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001)) (distinguishing general "boorish and inappropriate behavior" from "actionable sexual harassment").
As important context for reviewing our legal assessment here, it bears emphasizing that the legal standards that would govern a sexual harassment claim based on Jaeger's conduct, and on which our assessment is therefore necessarily grounded, impose a higher bar than those that apply in other jurisdictions. Other jurisdictions have enacted more stringent standards for workplace behavior than does UR Policy 106, Title VII, Title IX, or NYSHRL. By way of example, under the New York City Human Rights Law, which governs sexual harassment claims arising in workplaces in New York City, the analysis would be very different. New York City law holds that the "severe or pervasive" standard applicable under federal or State law "sanction[s] a significant spectrum of conduct demeaning to women" and "reduce[s] the incentive for employers to create workplaces that have zero tolerance" for harassment and discrimination. Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 78 (N.Y. App. Div.), leave denied, 13 N.Y.3d 702 (2009). Thus, under New York City law, any conduct that indicates a plaintiff "has been treated less well than other employees because of her gender" will establish a claim, unless the employer can prove as an affirmative defense that the conduct complained of consists of nothing more than what a reasonable person would consider "petty slights and trivial inconveniences." Id.
2. Quid Pro Quo Harassment
There is no evidence that Jaeger engaged in quid pro quo sexual harassment. Jaeger did not condition academic participation or performance on submission to sexual advances. None of the four students (at the time, former, prospective and current) who had sexual relationships with Jaeger said that any such demand existed. All four told us that their sexual relationships were consensual. Not a single witness or claimant has alleged that Jaeger threatened any adverse educational consequence for failing to submit to a sexual advance or that he conditioned any benefit on submitting to his advances.
3. Discussion of Hostile Environment Claims Based on Jaeger's Pre-2014 Conduct
As a preliminary observation, we note that the law requires claims alleging sexual harassment be brought within the statute of limitations. The applicable statute of limitations is three years under Title IX583Curto v. Edmundson, 392 F.3d 502, 503-04 (2d Cir. 2004), cert. denied, 545 U.S. 1133 (2005). and the NYSHRL584Russo v. N.Y. Presbyterian Hosp., 972 F. Supp. 2d 429, 445 (E.D.N.Y. 2013). and 300 days under Title VII.58542 U.S.C. § 2000e-(5)(e)(1). Much of Jaeger's conduct, therefore, would be considered by a court to be time-barred, both as of the time of the filing of the complaints, and as of the time of the Nearpass investigation. For purposes of our analysis here, however, we ignore the statute of limitations bar and assess whether, substantively, any Complainant or other UR student or employee was subjected to unlawful sexual harassment as a result of Jaeger's conduct.
Three women claim directly that they were subjected to unlawful harassment based on Jaeger's conduct before 2014: Bixby, Cantlon and Kidd. We are mindful that several other women have reported concerns about inappropriate comments or behaviors by Jaeger, and we do not discount the reports or the feelings of those witnesses; they are relevant to our legal analysis for reasons explained further below. A proper legal assessment of potential sexual harassment liability, however, naturally begins with an examination of the claims of those who directly assert that they were subjected to unlawful harassment-Bixby, Cantlon and Kidd, in this case. Without discounting-and indeed crediting in large part-that they each may have been genuinely distressed and hurt by some of Jaeger's behavior, we conclude that none of them was subjected to an unlawfully hostile environment, as defined by the governing legal standards.
As to Bixby, we conclude that the conduct she claims to have experienced (described at length in Section II.A.1.f), which we credit, was not sufficiently "severe or pervasive" to support a conclusion that she was subjected to a hostile environment, as defined by law. Such conduct was not objectively severe or pervasive. In addition, her contemporaneous statements may suggest that she also did not subjectively view the conduct as severe or pervasive at the time.
We understand Cantlon's complaints about Jaeger to relate, overwhelmingly, to her expressed concerns about the impact of his conduct on other women and not to conduct she experienced directly. Although the experiences of others are not irrelevant to a plaintiff's sexual harassment claim (as further discussed below), the focus of any such claim should and would in a court of law be the plaintiff's own experiences. Here, Cantlon claims to have experienced directly only two comments that she found offensive: a joke Jaeger made at a faculty party in February 2011 that he had decided to come to UR because of its "legendary nude hot tub parties with students," and a highly inappropriate question Jaeger asked in front of a group of faculty members at a party in 2010 about which part of a student's body another professor found attractive. Crediting that both comments were made and that they were both objectionable, we do not believe they approach being sufficiently "severe or pervasive" to support a conclusion that Cantlon was subjected to a hostile environment, as defined by law. Again, although in any sexual harassment claim by Cantlon, experiences of others would not be irrelevant, it would be unprecedented for a plaintiff whose own experiences do not come close to satisfying the legal standard to sustain a legal claim based almost entirely on the experiences of others.
The interactions between Jaeger and Kidd in 2007 and 2008 are, however, concededly more complicated, and if Kidd's version of events is credited, presents a closer question. As we describe in Section II.A.3, Jaeger displayed exceedingly poor judgment in blurring appropriate boundaries between a faculty member and a graduate student by renting a room in his home to her and maintaining a close personal friendship with her, often characterized by frank discussion on sexual topics. As also detailed above, we credit that Jaeger made many sexualized comments to Kidd during the time they lived together, though we also find that her accounts of these comments were, in several instances, exaggerated or taken out of context. Assessing whether Jaeger's poor judgment and inappropriate comments rise to the level of creating an unlawfully hostile environment for Kidd requires an examination of the "welcomeness" of his conduct at the time, whether it was subjectively perceived by her as creating an abusive educational environment, and on the "totality of the circumstances" surrounding the behavior. For reasons we detail above, the evidence we examined leads us to conclude that the complaints are significantly misleading on these contextual issues.
A thorough examination of the contemporaneous evidence demonstrates that the complaints set forth a one-sided portrayal of the relationship and discourse between Jaeger and Kidd. For example, there is insufficient evidence, in our view, to support the allegation that Kidd was pressured into renting a room in Jaeger's house. It is also clear that the complaints exclude Kidd's contributions to exchanges with Jaeger that would seriously undermine her current claim that the sexual content of those exchanges was unwelcome or viewed by her as abusive.
We did not limit our inquiry to the experiences of Bixby, Cantlon and Kidd. The experiences of other women in the BCS community are also relevant to our legal analysis for several reasons. Under the law, "a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim."586Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69-70 (2d Cir. 2000). Similarly, a plaintiff need not witness particular behavior in order for that behavior to be relevant to an objective assessment of the hostility of the environment.587See, e.g., Schwapp v. Town of Avon, 118 F.3d 106, 111-12 (2d Cir. 1997); Perry v. Ethan Allen, Inc., 115 F.3d 143, 151 (2d Cir. 1997). Thus, Bixby, Cantlon, Kidd or another future claimant could argue that behavior she heard about but did not herself experience is relevant to an assessment of whether she was subjected to an objectively and subjectively hostile environment.
Over the course of our review, we learned about several categories of behavior by Jaeger that were clearly inappropriate, unprofessional, offensive and reflected immaturity and poor judgment. In assessing whether such conduct would support a legal claim of unlawful sexual harassment-as contrasted against an assessment of whether it caused distress to some students, detracted from UR's educational mission, harmed UR's reputation, or was otherwise problematic-the legal touchstone remains whether any particular plaintiff was subjected to objectively and subjectively severe or pervasive harassing conduct. Following extensive interviews with women currently or formerly connected to BCS, including the majority of graduate students and post-doctoral fellows who worked in Jaeger's lab from 2007 through the present, we are not aware of any woman who we find was subjected to objectively and subjectively severe or pervasive harassing conduct, notwithstanding the various categories of unprofessional and disturbing behavior by Jaeger that we credit.
In particular, five categories of behavior or traits warrant further discussion.
First, Jaeger was sexually promiscuous in the period before 2014, and he developed a reputation as a "womanizer" as a result. He had four consensual sexual relationships with prospective, current or former UR students between 2007 and 2011, and he engaged in several more sexual encounters with other academics from UR and elsewhere. Although these relationships may evidence poor judgment, the law does not prohibit consensual relationships in the workplace. Courts consistently hold that it is not sex discrimination for a supervisor to engage in a workplace romance with a subordinate, even if the "paramour" enjoys preferential treatment, and that a sexual relationship between a male supervisor and a female subordinate does not, in itself, create a hostile environment for other women employees who may feel uncomfortable about the relationship.588See, e.g., DeCintio v. Westchester Cty. Med. Ctr., 807 F.2d 304, 307-08 (2d Cir. 1986), cert. denied, 484 U.S. 825 (1987); Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013); Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 517-18 (S.D.N.Y. 2010); Gale v. Primedia, Inc., No. 00-CV-5700, 2001 WL 1537692, at *3 (S.D.N.Y. 2001); Foster v. Humane Soc'y of Rochester & Monroe Cty., Inc., 724 F. Supp. 2d 382, 392-94 (W.D.N.Y. 2010); Fattoruso v. Hilton Grand Vacations, 873 F. Supp. 2d 569, 576-77 (S.D.N.Y. 2012), aff'd, 2013 WL 2123088 (2d Cir. 2013). In addition, UR's Intimate Relationships Policy in effect before 2014 permitted, though it strongly discouraged, sexual relationships between faculty and students. While we recognize that Jaeger's consensual sexual relationships may have had a variety of negative consequences, including potentially undermining morale among female colleagues and students and damaging BCS's reputation, and that other employers and educational institutions prohibit consensual relationships in order to avoid these types of potential harms, Jaeger's consensual relationships do not support a legal finding of sexual harassment or a policy violation at the times they occurred. We are also aware of no evidence to support claimants' characterization of Jaeger as a "sexual predator." Critically, we are aware of no evidence-or even allegation-that Jaeger ever engaged in sexual assault or any other non-consensual sexual contact whatsoever.
Second, the evidence, including Jaeger's admissions, establishes that Jaeger on occasion made sexual comments or jokes in conversations with students and peers. The evidence indicates that most of his comments were not considered "unwelcome." Two former female students from Jaeger's lab, for example, actively participated in sexual banter with Jaeger and never felt "demeaned" by or "uncomfortable" with Jaeger's sexual comments. Several other credible witnesses, however, did express that they were bothered and distressed by his comments. Although there is evidence of a large number of inappropriate comments overall in the seven-year period between 2007 and 2014, and especially in the first few years of that range, given the nature of the comments, the social contexts in which most of them were made, and the lengthy time period covered, we do not believe the evidence would ultimately substantiate any potential plaintiff's claim that the comments were sufficiently continuous and concerted to be deemed pervasive by a court and that the plaintiff was therefore subjected, as the law currently defines it, to severe or pervasive harassing conduct as a result of the comments.
Third, the evidence, including Jaeger's admissions, also establishes that Jaeger engaged in flirtatious behavior, especially in social settings. For example, one former female student told us that Jaeger made "a pass" at her while they were with a group of students and faculty at a local bar in 2007, which she found unwelcome. Another student told us that Jaeger often stood close to her and that he once touched her arm and said that "everybody should be a hedonist." At a holiday party in 2008, Jaeger told a group of students and faculty that a male professor found a female graduate student attractive, and the female student, who was present for this highly inappropriate comment, was understandably deeply mortified. There is no evidence, however, that Jaeger's flirtatiousness ever crossed a line into insistently pursuing a sexual relationship with any student or colleague after being rebuffed or refusing to take "no" for an answer.
Fourth, Jaeger consistently blurred social and professional lines and socialized more frequently with graduate students and post-doctoral fellows than other BCS faculty members. This pattern may have led some students to feel pressure to socialize with Jaeger. Indeed, one student who came to UR to work with another adviser, but also Jaeger, said she felt sufficiently uncomfortable that maintaining a professional relationship with Jaeger "needed to be integrated into a larger social component" that she eventually stopped working with him.
Fifth, Jaeger, primarily in his early years as a faculty member, was aggressive, demanding and harsh in critiquing students' and colleagues' academic work. Some students and post-doctoral fellows from those early years-men and women-described him as "mean," "cruel" and a "bully." As a result of these behaviors and his demeanor, some students of both genders avoided him in the academic setting, and he made some women, more than men, uncomfortable in social settings as well.
Our review indicates that, in the pre-2014 period, Jaeger's reputation for promiscuity, his penchant for making sexual comments, his flirtatiousness, his blurring of boundaries and his harsh demeanor in academic contexts made him a polarizing figure within BCS. While he was liked and admired by many students and colleagues, he was disdained and avoided by others. Our review also indicates that his particular mix of traits and behaviors was more offensive and off-putting to women than to men. At least ten female graduate students and post-doctoral fellows in BCS reported to us that they chose to avoid Jaeger, either socially or academically or both, in this period. We credit this evidence. And we credit that it is very problematic for a variety of reasons that more women than men would be put off by a particular professor's traits and behaviors. We note, though, that it is difficult or impossible to disentangle the motivating factors that would be supportive of a legal claim for sexual harassment (such as sexualized comments if they were pervasive) from those which would not (such as Jaeger's harshness as an academic critic). The perspective and experience of each woman with whom we spoke was different. Ultimately, while we fully appreciate that Jaeger's traits and behaviors in the pre-2014 period were harmful to a number of BCS students and to the BCS and greater UR communities in a variety of ways, we conclude that they did not violate applicable legal standards governing sexual harassment claims under Title VII, Title IX, the NYSHRL or UR Policy 106.
4. Discussion of Hostile Environment Claims Based on Jaeger's Conduct from 2014 Onwards
For the period from 2014 through the present, the evidence does not support a conclusion that any UR student or employee was subjected to unlawful sexual harassment as a result of Jaeger's conduct. All of the problematic traits and behaviors discussed in the prior section were essentially absent or markedly toned down in the period from 2014 forward. There is no evidence that Jaeger engaged in any sexual relationships in this period with anyone other than his current partner, who moved to Rochester in the fall of 2013.589The EEOC Complaint implies that Jaeger had a sexual experience with a prospective graduate student named "Jane Doe" in 2015. As addressed supra, at Section II.B.3, we found this allegation to be unfounded, and it was appropriately withdrawn in the federal complaint. We found very little evidence that his reputation as a "womanizer" was known by students in the department after 2014, prior to the publication of the EEOC Complaint. One of Jaeger's female graduate students, for example, stated that, prior to reading the EEOC Complaint, she was not aware at all of Jaeger's previous sexual relationships with women or that he had a reputation as a "womanizer." She said she was "surprised by the Complaint." Another female graduate student said Jaeger "has given [her] compliments" during this period, but emphasized that Jaeger never "made a pass" at her and noted that she did not feel uncomfortable with such compliments.
There was also insufficient evidence to support any allegation that Jaeger's sexual commentary and innuendo were unwelcome or pervasive during this period. All of the students and post-doctoral fellows we interviewed who worked with Jaeger since 2014 told us that they did not feel uncomfortable with any sexual comments or innuendo that Jaeger may have made in their presence, which, by all reports was, in any event, very infrequent.
The complaints claim that Jaeger maintained a non-inclusive boys' club atmosphere in his lab. Our investigation revealed that the environment in Jaeger's lab during the period from 2014 forward was, in fact, "very welcoming" and provided a sense of "community" for the individuals who were part of the lab. We found that students and post-doctoral fellows in the lab were "close-knit" and appeared to get along with each other and with Jaeger. In particular, various female undergraduates described feeling comfortable in the lab and being part of the lab "community." We found no evidence of women in the lab being treated differently than their male peers or being excluded from professional or social opportunities.
The complaints assert that Jaeger facilitated binge drinking and drug use and pressured students to socialize. There was insufficient evidence to support this claim. Although Jaeger continued to socialize with students during this period, we found that students socialized with Jaeger voluntarily and without undue pressure, and there was no evidence to indicate that Jaeger attended graduate-student parties uninvited. Jaeger's female students told us that they "really enjoy [Jaeger's] company and actually want him to be present at social events." Witnesses denied that binge drinking or drug use was common. Although there was alcohol consumed at one lab retreat, students told us that "there was no drinking excessively and no one was falling over" and "nobody got rowdy."
The complaints allege that Jaeger is a bully, whose "harsh criticism" was feared by his students. During the period from 2014 forward, none of the students or post-doctoral fellows whom we interviewed described Jaeger as a bully. Indeed, many of them stated that Jaeger's criticism, while "direct," was not "over the top" and was generally constructive. Overall, Jaeger's students and post-doctoral fellows during this period consider him to be a very supportive mentor.
5. Summary of Sexual Harassment Conclusions
In sum, we find that the evidence does not support a conclusion that any Complainant or other UR student or employee has been subjected to unlawful sexual harassment as a result of Jaeger's conduct. We emphasize that this is a legal conclusion, based on applying the facts as we understand them to precise legal standards that would govern a claim under Title VII, Title IX or the NYSHRL, and that apply derivatively to complaints made under UR Policy 106. We do not presume to be arbiters of any broader ethical or societal judgments, and we recognize that some of Jaeger's conduct may be reprehensible to some relevant constituencies. By providing our legal conclusion, we do not imply that Jaeger's conduct was free from fault or that a reasonable business judgment could not have been made by UR to respond to his behavior in a more punitive fashion than UR chose to do.
To the contrary, we fully appreciate that his conduct in the period before 2014 was, at times, reckless, immature and highly unprofessional. It may have harmed the BCS and broader UR communities in a variety of ways, including by undermining the academic mission and harming UR's reputation among students, prospective students, the broader academic community, alumni and donors. Because of concerns about these kinds of harms, many employers and educational institutions impose standards for defining prohibited sexual harassment that are more exacting than the standards which governed Jaeger's conduct, especially in the period before 2014; indeed, UR's own relevant policies have become more exacting and we are recommending that further enhancements be considered. Likewise, some municipalities (including New York City, for example) impose more exacting standards for defining prohibited sexual harassment, which some of Jaeger's conduct would likely have violated.
Our legal assessment here, however, must be grounded in the standards that governed Jaeger's conduct at the relevant times.
B. Retaliation590The federal complaint includes a number of causes of action in addition to the retaliation causes of action, such as defamation counts, but the gravamen of these claims is substantively duplicative of the retaliation claims.
1. Governing Legal Standards
Laws that prohibit sexual harassment also make it unlawful for an employer or educational institution to retaliate against those who in good faith complain about or engage in other protected activity to oppose sexual harassment. To establish a claim for unlawful retaliation, a plaintiff must prove that a materially adverse action was taken against her because she filed a sexual harassment complaint or engaged in other protected activities, such as participating in a sexual harassment investigation.591Papelino, 633 F.3d at 91; Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000).
Not all activities receive protection from retaliation. There is no legal protection for making a complaint in bad faith or for engaging in behavior that disrupts an employer's legitimate fact-finding and deliberative processes. The law recognizes that, in addressing a claim of discrimination or harassment, employers are allowed to take action "to preserve a workplace environment that is governed by rules, subject to a chain of command, free of commotion, and conducive to the work of the enterprise."592Matima, 228 F.3d at 79. As one court put it, "[a]lthough an individual has a right under Title VII to speak out against unlawful employment practices and discrimination, he does not have the right to do so in any manner he pleases."593Finn v. N.Y. State Office of Mental Health-Rockland Psychiatric Ctr., No. 08-CV-5142, 2011 WL 4639827, at *18 (S.D.N.Y. 2011), aff'd, 489 F. App'x 513 (2d Cir. 2012).
Only "materially adverse" actions against an employee who engages in protected activity support a retaliation claim.594Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011). To be "materially adverse," the retaliation must be so "harmful" that it would dissuade a reasonable person from bringing a sexual harassment complaint.595Shultz v. Congregation Shearith Israel of City of N.Y., 867 F.3d 298, 309 (2d Cir. 2017) (internal quotation marks omitted). "[T]rivial harms" - the "petty slights or minor annoyances that often take place at work and that all employees experience" - are not enough to sustain a claim of retaliation.596Tepperwien, 663 F.3d at 568 (internal quotation marks omitted).
2. Discussion of Retaliation Claims
The complaints attempt to characterize virtually every action taken by UR in response to and in the aftermath of the March 2016 complaint as unlawful retaliation. As a general matter, this characterization of UR's actions conflates unlawful retaliation with disagreement about UR's conclusions and decisions about Jaeger and about how to handle a sensitive situation. This has, unquestionably, been a wrenching period in the history of UR, and we appreciate that many people in the UR community, including the Complainants, have deeply held convictions about how the matter should have been decided and handled. We do not doubt that the Complainants genuinely believe that Jaeger should have been subject to more severe discipline and that UR made many missteps in the way it addressed the concerns raised and communicated about the issues. At the same time, we are sympathetic to the challenge UR faced in navigating a difficult personnel matter that spawned highly contentious internecine disagreements and, ultimately, a campus, alumni and public relations crisis. In such a climate, disagreements about UR's actions are inevitable.
For purposes of the legal analysis, though, UR's failure to acquiesce to the Complainants' views about how that matter should have been handled does not amount to retaliation prohibited by law. Under the law, an employer or educational institution has no obligation to acquiesce to a complaining witness' view about how a sexual harassment allegation should be investigated or handled, so long as the employer or educational institution does not take a materially adverse employment action against the complaining witness in retaliation for the witness engaging in protected conduct.
More specifically, we conclude that each of the allegations of unlawful retaliation contained in the complaints is legally flawed because they fail to satisfy one or both of the prongs necessary under the law.
First, the alleged retaliatory actions, whether considered in isolation or collectively, were not materially adverse. Putting aside the voluntary resignations of Aslin and Hayden (addressed below), we find that no other Complainant accusing the University of retaliation experienced any change in his or her employment status that could qualify as "materially adverse." Indeed, contrasted against their purportedly feeling reprimanded or disrespected (which fails as a matter of law to qualify as "materially adverse"), many of the Complainants enjoyed objectively demonstrable advancements in their careers and status at UR during the period in which they claim that they suffered retaliation. For example, in May 2016, the Board of Trustees approved Cantlon's promotion to Associate Professor with tenure;597May 10, 2016 Email from G. DeAngelis to J. Cantlon. in September 2016, DeAngelis wrote a letter recommending Kidd for the Sloan Research Fellowship;598Exhibit 44. in December 2016, Jaeger wrote a letter to "fully support" Mahon's promotion to Associate Professor with tenure;599Exhibit 45. in the spring of 2017, Jaeger wrote to "fully support" reappointing Kidd and Piantadosi as Assistant Professors following their third-year reviews;600Feb. 28, 2017 Email from F. Jaeger to G. DeAngelis. and, in 2017, Mahon was promoted to Associate Professor.
Second, for the reasons detailed in Section II.C, we found insufficient evidence to establish a linkage between UR's actions and any protected activities. Instead, we determined that most of the purportedly "adverse" actions were taken in response to non-protected activities, such as breaching confidentiality during the investigation, attempting to recruit faculty members to the anti-Jaeger "side," threatening Jaeger, engaging in "vigilantism," and disrupting department meetings and decision-making.
The litany of actions characterized as retaliatory in the complaints is very lengthy, running into the dozens. We do not attempt in this legal analysis to address each such allegation individually, as we have already addressed the retaliation allegations in detail in Section II.C and explained why the evidence does not support them. Also, many of the allegations are patently insufficient to qualify as "materially adverse" employment actions under the law. Two broad categories of challenged actions, however, warrant further discussion because they appear to represent the primary themes of the Complainants' retaliation claims.
(a) Express and Implicit Criticism
The core of the retaliation claims in the complaints appears to be that UR in its statements in the aftermath of the Nearpass investigation expressly or implicitly criticized Aslin, Cantlon and others, who were supportive of their views on the Jaeger matter. These challenged statements include, among others: (1) the July 2016 Letter discouraging "gossip";601EEOC Compl. ¶ 210; Fed. Compl. ¶ 253. (2) the November 2016 Memo discussing a "wealth of rumors and in some instances misinformation";602EEOC Compl. ¶ 237; Fed. Compl. ¶ 288. and (3) statements at the January 2017 faculty meeting discouraging "rumors" and "bullying."603See, e.g., EEOC Compl. ¶ 306(c); Fed. Compl. ¶ 382(c).
As detailed at length in Section II.C, following the Nearpass investigation, Aslin, Cantlon and others engaged in disruptive, non-protected activity, such as antagonistic behavior towards fellow faculty members, efforts to recruit faculty members to their "side,"604July 1, 2016 Email from B. Hayden to Certain Complainants. the unauthorized disclosure of confidential information, attempts to influence the investigative process and aggressive tactics relating to departmental hiring and retention decisions. Several witnesses told us these activities resulted in a "toxic" and "divided" department.605Oct. 13, 2016 Interview with Faculty 12; Oct. 23, 2017 Interview with Faculty 5; Nov. 28, 2017 Interview with R. Clark; Faculty 13 Notes on EEOC Complaint. For example, one senior faculty member told us that there was no "hostility" toward Aslin, Cantlon and others when they first brought their complaints about Jaeger's conduct, but that attitudes towards them changed over time due to how they interacted with their peers, especially when attempts to recruit fellow faculty members to their "side" crossed the line into verbal threats, bullying and breaches of confidentiality.606Faculty 13 Notes on EEOC Complaint. This faculty member said that Aslin, Cantlon and others became "combative towards those who didn't agree with their decision to break confidentiality, [and some] faculty felt their words were manipulated to achieve certain ends, and faculty objected to having threats of departure used as a bargaining strategy."607Id. Efforts by some faculty members to remain impartial were met with "bullying" and, eventually, this behavior led to the creation of a toxic environment within the department.608Id.
The statements made by UR which the complaints seek to characterize as "retaliatory" were, by and large, attempts (albeit not successful) to lessen the divisiveness and discord caused by some of the Complainants' non-protected activities. Lennie and Culver's July 2016 Letter is an instructive example.609Exhibit 7. The evidence shows that the letter was issued only after several faculty members, including Jaeger, complained to UR about breaches of confidentiality by certain of the Complainants.610Oct. 24, 2017 Interview with P. Lennie; Oct. 30, 2017 Interview with G. Culver; Aug. 18, 2016 Email from F. Jaeger to G. DeAngelis, G. Norris and S. Wormer. Clark's November 2016 Memo was likewise a response to good faith concerns raised about disruptive workplace behavior by certain of the Complainants.611Exhibit 8. Dissatisfied with the outcome of the Nearpass investigation and subsequent appeal, Aslin sent Jaeger a letter on November 2, 2016 threatening to make the allegations public and vowing that Jaeger would "never have a joint research project, joint grant, or joint student" with him or Piantadosi.612Nov. 2, 2016 Letter from R. Aslin to F. Jaeger. The November 2016 Memo was drafted only after the letter was brought to the attention of UR administrators, they interpreted it as a threat, and they determined that some statement aimed at trying to address the growing divisiveness and discord within the department was warranted.613We credit that three additional BCS professors-none of whom were among the Complainants-complained about the content of the November 2016 Memo. The thrust of their complaint, however, was that the memorandum contributed to department turmoil, not that it amounted to retaliation against claimants. Exhibit 38.
In addition to concluding that the statements at issue were not made to retaliate against the Complainants for their protected activities (but rather were made in an attempt to address the consequences of the Complainants' unprotected activities and the turmoil in BCS), we also conclude that the statements do not constitute "materially adverse" employment actions. Verbal reprimands and criticisms of an employee are not materially adverse employment actions. Even if a reprimand is based on "false" or erroneous facts or is otherwise unjustified, as the Complainants here assert, that alone does not transform the reprimand into an adverse employment action.614See Cody v. Cty. of Nassau, 577 F. Supp. 2d 623, 645-46 (E.D.N.Y. 2008), aff'd, 345 F. App'x 717 (2d Cir. 2009). Additionally, "merely being given the proverbial cold shoulder by one's coworkers (even assuming that this could be imputed to the employer) is not enough to show that one has suffered an adverse employment action."615McCullough v. Xerox Corp., 942 F. Supp. 2d 380, 387 (W.D.N.Y. 2013). Thus, to the extent any of the Complainants were irritated or offended by statements which they contend expressed or implied a criticism of them, such reactions reflect the types of "trivial harms" or "petty slights or minor annoyances" that are legally insufficient to sustain a retaliation claim.616Tepperwien, 663 F.3d at 568 (internal quotation marks omitted).
(b) Constructive Discharge
The federal complaint alleges that UR, in retaliation against them for their protected activities, "constructively discharged" Aslin, Heilbronner and Hayden. To establish a constructive discharge claim, a plaintiff must prove that the employer subjected him to conditions that were "so intolerable" that any "reasonable person" would have felt compelled to resign.617Green v. Brennan, 136 S. Ct. 1769, 1776 (2016) (internal quotation marks omitted); see also Petrosino, 385 F.3d at 229.
As to Aslin, we conclude that, as a matter of law, the conduct to which he claims to have been subjected was not so "intolerable" that it would compel any reasonable person to resign. In addition, we conclude that most of the actions about which Aslin complains (such as the reprimands of him that he implies were embedded in the July 2016 Letter, the November 2016 Memo and comments at the January 2017 faculty meeting) were not "materially adverse" employment actions, as a matter of law, and were not, in any event, taken to retaliate against him for engaging in protected conduct.
Heilbronner and Hayden allege that they were constructively discharged, in retaliation against them for Hayden's protected activities, because UR failed to offer a position in BCS to Heilbronner and failed to make a more attractive offer to try to retain Hayden.618EEOC ¶¶ 326(d), 326(e); Fed. Compl. ¶¶ 437(d), 437(e), 447. As detailed in Section II.C, the evidence does not support conclusions either that the challenged decisions were motivated by any retaliatory animus or that Hayden or Heilbronner were subjected to such intolerable working conditions that a reasonable person in their positions would have felt compelled to resign. Although the evidence demonstrates that the deliberations about Heilbronner's candidacy were highly contentious, our investigation indicates that the primary cause of that contention was the disruptive conduct of Cantlon and others, including repeated threats to resign if Heilbronner did not get an offer.619Oct. 12, 2017 Interview with G. DeAngelis; Oct. 13, 2017 Interview with Faculty 12; Oct. 13, 2017 Interview with Faculty 13; Mar. 12, 2017 Email from G. DeAngelis to G. Culver and P. Lennie. The fact that Jaeger, like a majority of his colleagues, voted to offer the open BCS position to someone other than Heilbronner also does not support a retaliation claim. As a faculty member, Jaeger was entitled to vote, and there is no evidence that his vote with the majority was motivated by any retaliatory animus.
In any event, Heilbronner ultimately was orally offered a tenure-track position in neurology at URMC, a highly-coveted position in the academic world.620Apr. 24, 2017 S. Heilbronner Offer Letter; Dec. 13, 2017 Interview with J. Foxe. Heilbronner was given a draft offer letter, which was in the process of being cleared by UR's HR Department when Heilbronner accepted the offer from University of Minnesota. BCS also made Hayden a competitive offer similar to or greater than the retention offers previously received by most of his BCS colleagues.621May 5, 2017 B. Hayden Offer Letter. In short, neither of them was subjected to working conditions that were so "intolerable" that any reasonable person subjected to them would have felt compelled to resign.