Office ofEquity/Diversily Services • Ulliversity ofWisc01isin-Milwiiukee * Mitchell Hall 359

P,O. BoX:413,Milwaukce, Wl53201 .

Telephone: 414-229-5923 • Email: divcrsc@U1\11Lcdu • Fax: 414-229-5592

DISCRIMINATION COMPLAINT FORM

GENERAL INFORMATION:
Name of Complainant: Third-Party,.Nelida Cortes, Director for the Office of Equity/Diversity Services

Phone #:414/229-5923
Com laimmt's Univel'sit Othe1·

---
Name of Rcspondent(s)

Respondent's Campus Address: - ·

Phone#: Other Phone #:

lo ee O Staff [XI Facull Other

ALLEGA TION BASED ON: (Please check the ru(lo1vin}( !hat f1PJJM
0 Race or Color I I Disability
• Age
Sexual Orientation D Retaliation
0 Vetel'an Status IX! Sexual Harassment
• Marital
(40 or Over) LJ Sex/Gender
0 Ancestry 0 Pregnancy •D An'est/Convlction
Status D National Origin
0 Religion 0 Sexual Assintlt
Record
• Gen.der [dentity/E~pression

• Other: (Please Ex0fain):

DA TE(S) OF ALLEGED OISCRJMINA TIONIHARASSMENT: Spring 2017 Semester

INCIDENT INVOLVED: 'Please check the . oflowin
D Te1·111s and/or Conditions ofEm lo rricnt
!xi Tenns and/o1· Conditions of Education
0 Other: Please Ex laiil :
COMPLAINT:
Have you filed a discrimination cir appeal with another university dcpai1ment, union or state or federal agency?
D YES IX) NO; Jj'ye,1·, please state the name of the agency and date filed:

BRIEF J)ESCRTPTION OF YOUR COMPLAINT:

EDS has received information that the Respondent may have subjected a IIWM studetltta sexual
harassment, during the Sp=ri=n,.,g~2=0~1~7~s=e=m=e=s=t=e1~·----- - - - -- - - - - - - - -- - - - -

RESOLUTION SOUGHT:
To be determined based mi. EDS'ultimate findings.

Tlte discrl111i11ati011 compluillt procel'S llas bee11 exptahie(/ to me fiml 1 ltave received a copy of tl1e S-47,
UWM's Discrimi11t1fory ta1u/11ct Policy. I certify. tliattlle l11fori11atlo11 giveli above i.v true muf accrirate to the
best ofmy k11owle<lge or belief.,,T-lii,'Office ofEquit)'/Diversily Services /las my permission to co11/111cl
, pel'ti11e11t i11q11irles ifl regar'/f}:!,J'{y complailtt all(/ to use my 11a111e ill suclt Inquiries.

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Date-
 UNIVERSITYofWISCONSIN

l.J\i\MILWAUKEE Global Inclusion and Engagement

--~
-=.-J Office of Equity/Diversity Services

Mitchell Hall , Room 359

To: Johannes Britz P.O.Box4l3
Provost and Vice Chancellor, Academic Affairs Milwaukee, WI
53201-0413
( 414) 229-5923 phone
From: Nelida Cortes (414) 229-5592 fax
Director, Office of Equity /Diversity Services www.diversity .uwm.edu
diverse@uwm .edu
Date: August 22, 2017

RE: Equity/Diversity Services Investigation Report

Complaint No:
17-014

Brief Synopsis
The purpose of this memorandum is to advise you of the Office of Equity /Diversity
Services' (EDS) findings and recommendations regarding the above-referenced complaint.
On May 23, 2017, EDS filed a third-party complaint against , an -
professor in the (Respondent). In the third-party complaint, it
was alleged that the Respondent may have sexually harassed a UWM student during the
Spring 2017 semester. This report considers a preponderance of the evidence (whether it
is more likely than not) that there has been a violation of University policy prohibiting
discrimination, specifically, UWM's Discriminatory Conduct Policy (Including Sexual
I Harassment and Sexual Violence), S-4 7.

During the course of its investigation, EDS interviewed two UWM students, as well as the
Respondent. 1 EDS also reviewed documentary evidence submitted by one of the witnesses.
Based on all the evidence received during its investigation, EDS finds that a preponderance
of the evidence does not exist that the Respondent engaged in conduct which violates S-
4 7's prohibition on sexual harassment.

Involved Parties
The Respondent serves as an adjunct professor in the
courses which include
· - ),and
and
), _
teaching

). The Respondent has

served as an adjunct professor at UWM for approximately

1 As explained later in this report, EDS also requested interviews with three (3) other UWM

students as part of this investigation. Two of those students declined to participate in EDS'
investigation, while the third did not respond to EDS' request for an interview.
Page 1 of 10
History of the Case
On May 1, 2017, EDS met with a UWM student (hereinafter referred to as "Student 1") who
was enrolled in the course instructed by the
Respondent during the Spring 2017 semester. During her interview with EDS, Student 1
alleged that the Respondent had made various inappropriate comments of a sexual nature
during the course of the semester, both to her individually and to the
class as a whole. Student 1 further alleged that on two occasions during
the course of the semester, the Respondent had taken pictures of her and of other students
in the class using his cell phone.

EDS conducted a follow-up meeting with Student 1 on May 4, 2017, and discussed with
Student 1 her ability to file a complaint against the Respondent pursuant to S-4 7. Student 1
declined to file a complaint herself and instead requested that EDS file a third-party
complaint on her behalf. Student 1 further requested that EDS delay filing the third-party
complaint until the end of the Spring 2017 semester (that is, until after final grades had
been submitted for the course). EDS agreed to this
request.

EDS filed the third-party complaint against the Respondent on May 23, 2017. A notification
letter and a copy of the complaint were sent by certified mail to the Respondent on May 26,
2017, advising that a complaint had been filed and that an investigation would take place in
accordance with S-4 7.

UWM's Discriminatory Conduct Policy, S-4 7

UWM's Discriminatory Conduct Policy provides in part:

UWM is committed to building and maintaining a campus environment that

recognizes the inherent worth and dignity of every person, fosters tolerance,
sensitivity, understanding, and mutual respect, and encourages the members
of its community to strive to reach their full potential. (S-47, pp.1-2, § I.)

UWM defines discrimination as conduct that (1) adversely affects any aspect
of an individual's employment, education, or participation in activities or
programs at UWM; and (2) is based on one or more characteristics of the
individual that are protected under federal or state laws. (S-4 7, p.2, § II.B.)

Any individual who believes that he or she is being subjected to

discrimination, harassment, or retaliation prohibited by the University's
policies may file a complaint with EDS. The complaint must be in writing, on
a form provided by EDS, and must be filed within 300 calendar days of the
most recent alleged prohibited act. EDS at its own discretion may accept
complaints that are not in writing or that are filed outside of the 300-day
limitation for good cause. (S-47, p.7, § V.A.1.)

At the conclusion of its investigation, EDS will prepare written findings and
remedial recommendations to the Provost, with copies to the complainant,

Page 2 of 10
 respondent, the complainant's Dean or Division Head, the respondent's Dean
or Division Head, the Associate Vice Chancellor for Global Inclusion and
Engagement, and the Vice Chancellor for Global Inclusion and Engagement.
(S-47, p.10, § V.D.)

Within ten working days of receipt of the Director of EDS's factual findings
and remedial recommendations, the complainant or the respondent may
respond to the factual findings and remedial recommendations. The
response must be in writing and sent to the Provost. The Provost will provide
copies of any such responses to the other party, to the Director of EDS, the
Dean or Division Head of both the complainant and the respondent, and the
University Committee (for faculty) or the Academic Staff Committee (for
academic staff). Responses may be based on (1) whether the evidence
supports the findings and/or (2) whether the recommended remedial
actions are appropriate. (S-4 7, p.10, § VI.A.)

Interim Measures
On May 8, 2017, during a meeting attended by EDS; the Respondent; the Associate Dean for
Academic Affairs of the the Assistant Dean for Student Affairs in
the

Interview with Student 1

During her interview with EDS, Student 1 reported that •
(hereinafter referred to as " was the first course she had taken
which the Respondent instructed. She indicated that
involved the students being assigned to groups

As noted at the outset of this report, Student 1 reported that the Respondent made several
comments over the course of the semester which she found objectionable; some of these
statements were made directly to her, while others were made to the class as a whole or to
her assigned group. Student 1 reported that:

• During a classroom session in early April, the Respondent "mentioned that he was in
a frat" when he attended college, and informed the class that he and his fraternity
brothers "[would] get drunk and ... screw around." Student 1 indicated that the
Respondent then stated that he and his fraternity brothers had "gone where no man
had gone before," a comment which she inferred to mean that the Respondent and
the other fraternity members had engaged in some type of sexual activity together.

Page 3 of 10
 • On two or three occasions during the semester, 2 the Respondent mentioned to his
class that he also "teaches an - class in a big lecture hall," and
that several of the students in that class bring laptop computers to classroom
sessions. According to Student 1, the Respondent then stated that "if [the
students] are on their laptops" during the classroom session, he will
ask the students "if they're watching porn" and then will instruct the students "to
turn their screens around so everyone can watch."
• During a classroom session in the third or fourth week of the semester, Student 1
"walked in [to the classroom] about 30 seconds late" and took a seat behind another
student-hereinafter identified as "Student 2"-who was seated near the classroom
door. Student 1 stated that it was unusually warm in the classroom that day, and she
indicated that she began fanning her face with her hand and asked Student 2: "Is it
hot in here today?" Student 1 indicated that Student 2 responded: "Oh my God, yeah
it is," at which point the Respondent-who was standing nearby-gave Student 1 a
"flirty smile" and stated: "We can blame [Student 1] for that."
• During a classroom session at the end of April, Student 1 and her group were
discussing the course's final project, a in which the students
were assigned roles

Student 1 stated that she and her group were "discussing how they were
going to advocate ," when the Respondent walked up to
the group and joined their conversation. According to Student 1, in the course of this
discussion, the Respondent began "talking about a girl he'd seen in the [UWM]
Union" several months before, who was "wearing tight clothes [and] leaving little to
the imagination." Student 1 reported that the Respondent then stated that this "girl"
was "turning heads" as she walked through the Union, because she "had the body to
pull it off." Student 1 stated that, as the only woman in her group, she was
uncomfortable with this conversation and said to the Respondent and the other
members of her group: 'Tm still a girl here, you guys." Student 1 indicated that the
Respondent laughed and walked away to speak to another group of students.

In addition, Student 1 indicated that in two classroom sessions-first on April 17, and then
again on April 24-the Respondent appeared to be taking pictures of her and other
members of the class with his cell phone. On April 17, Student 1 reported that as she "was
watching the - being presented by another group of students, she observed that
the Respondent "took out his cell phone, turned it sideways, and ... pointed it at" her, and
then appeared to take a picture. On April 24, Student 1 indicated that the Respondent again
appeared to be using his cell phone to be taking photographs, this time of the female
students who were presenting the - for that classroom session. Student 1 stated
that while the Respondent was doing so, another student-hereinafter referred to as
"Student 3" -who was sitting next to the Respondent looked over the Respondent's
shoulder at the Respondent's cell phone and "raised his eyebrows" and "opened [his eyes]

2Student 1 could not recall with any specificity when the Respondent made these particular
comments.

Page 4 of 10
wide," as if he was surprised by what he saw.

The following day, Student 1 stated that she engaged in a brief conversation on Facebook
with Student 3 regarding the Respondent's conduct on April 24. Student 1 sent a message
to Student 3 which read: "Heyy! [sic] So you totally saw [the Respondent] take a picture
yesterday, right??!" Student 3 responded: "Lmao yes. I happened to look over and was like
is he really taking a pie." Several days later, on April 30, Student 1 and Student 3 engaged in
another conversation on Facebook; during that conversation, Student 3 informed Student 1
that "[the Respondent] taking pictures really caught me off guard. I didn't notice the first
time [meaning April 17) but the second time [meaning April 24) I definitely did."

Interviews with Other Witnesses

As noted above, EDS contacted a total of four (4) other students enrolled in
during the Spring 2017 semester to request statements regarding their experience in the
course. Specifically, EDS contacted the students previously identified in this report as
Student 2 and Student 3 in an attempt to corroborate the allegations made by Student 1
which these students allegedly witnessed. In addition, EDS contacted - other
students who were members of Student l's group in these students are
hereinafter referred to as "Student 4" and "Student 5."

Student 2 declined to participate in EDS' investigation. In an email to EDS, Student 2 wrote:

"I am aware some students talked to you, but I do not know the specifics. I would not have
anything else to add ... My experience in the class was fine. I do not have any complaints
regarding the class or the professor."

Student 3 did not respond to EDS' request for an interview.

Student 4 agreed to provide EDS with a statement and was interviewed by telephone.
Asked if he had any concerns about the Respondent's behavior during classroom sessions,
Student 4 replied that the Respondent made "a lot of borderline inappropriate jokes" over
the course of the semester. As an example, Student 4 indicated that during one classroom
session, the students were discussing their plans for the upcoming weekend, and the
Respondent made reference to the sequel to the movie Fifty Shades of Grey and "suggested
that he would 'tag along' if anyone was going to see the movie." Student 4 reported that the
Respondent frequently made other comments of this nature, although he could not recall
any other specific comments which he considered inappropriate.

Student 4 was then asked about his recollection of the conversation the Respondent had
with his (Student 4's) group regarding the course's final project. Student 4 reported that he
and the other members of his group were discussing the topic of a
, and the Respondent joined that conversation and "describe[d] an example
of clothing that would be too revealing Student 4 indicated that the
Respondent was "basically ... describing yoga pants, and how you can see everything, [how]
they're not very concealing." The Respondent then mentioned that he had recently
observed a young woman in the UWM Union who was wearing clothing "where you could
see everything," and that "people were turning their heads in the Union" to look at her.

Page 5 of 10
Student 4 did not recall anyone in his group interrupting the Respondent or asking him to
stop speaking about the woman he had seen in the Union, but he indicated that after class
he and Student 1 briefly discussed the Respondent's comments. Student 4 indicated that
Student 1 stated that she found the Respondent's comments to be "odd and inappropriate,"
and Student 4 agreed with this characterization. Student 4 stated that he believed the
Respondent's "description [of the clothing] and the example [of the woman he had seen in
the Union] were pretty superfluous." Student 4 indicated that, in his opinion, "it would have
been enough [for the Respondent] to 3

Student 5 responded to EDS' request for an interview and scheduled a meeting with EDS.
However, after being briefly informed about the subject of EDS' investigation, Student 5
indicated that one his classmates (whom he did not identify) had shared concerns about
the Respondent's behavior with him, and Student 5 stated that he found it "a little
ridiculous" that there was now an investigation of the Respondent. Student 5 subsequently
cancelled his interview with EDS, indicating that he "[did not] feel like [he had] anything
more to say" on the subject.

During his interview with EDS, the Respondent was asked about each of the comments
attributed to him by the student witnesses EDS interviewed in this investigation. He
responded as follows:

• The Respondent stated that to the best of his recollection, he did not make any
reference to "get[ting] drunk and ... screw[ing] around" with his fraternity brothers
in college. He stated that he vaguely recalled making a comment about "going where
no man had gone before" in one of the classroom sessions for but he
did not recall making that comment "in reference to being in a fraternity .. .I think we
were talking about Star Trek."
• The Respondent acknowledged that he made comments to the class
about "the boys in the back [of his undergraduate course] watching porn" on their
laptops. He further stated that he "may have" made the comment about the students
"turn[ing] their screens around so everyone [could] watch," but he indicated that if
he made this comment, "it was in jest." The Respondent indicated that he inquires
whether the students in his undergraduate class are watching porn on their laptops
"because half the time they are watching porn," and because the comment "g[ets]
them to close the laptops" and pay attention to his lecture.

3 EDS notes that Student 4 was asked whether he observed the Respondent taking photos of
students in the class during the semester in question. Student 4 replied that he did not.

Page 6 of 10
 • The Respondent denied making a comment that a particular student "[was to]
blame" for the classroom being "hot" during a classroom session in the third or
fourth week of the semester. The Respondent stated that "it was hot in that
classroom all the time," and he reported that he "complained to the building people
about it being hot," but he denied making any comments about a student being
"hot." He then continued: "I didn't have anybody in that classroom who was 'hot.' I
wouldn't even think of something like that."
• The Respondent recalled engaging in a discussion with one of the student groups on
the topic of as part of the preparation for the course's final
project, which is a
- ·" The Respondent indicated that one of issues addressed in this
involves "a
"and a
In speaking about that issue with one of the
student groups, the Respondent indicated that he stated: "This can be a problem. I
was sitting in the Union four or five months ago, and a young lady-have you seen
the pants they wear?" The Respondent then described the woman as wearing "very
tight leggings, almost like a leotard," and remarked that her clothing "didn't leave
anything to the imagination." He continued: "She walked by and every male in the
Union followed her with their eyes. It was more fun watching the guys watch her.
And I said [to the group of students], 'I can understand why people would think that
kind of dress was inappropriate."'

The Respondent was then asked if had taken any photographs of the students
with his cell phone, and he responded that he had, on one occasion. The Respondent
explained that his "memory is not as good as [he] would like it to be," and as a result he
takes photographs of the students presenting the - so he can associate the
students' faces with their names for purposes of assigning grades. The Respondent
indicated that he took two photographs of "the whole [ class" during a class in
late April; he denied that he took pictures of any particular student. The Respondent
acknowledged that he had not mentioned that he would be taking pictures of the class
before he did so, and he agreed that he probably should have discussed this with the
students beforehand in order to avoid confusion about why he was taking photographs.
However, he insisted that the photographs were "not being used for any purpose except
[his] memory, and then they're erased."

In sum, the Respondent indicated that he did not believe "that any one thing [he] said was
inappropriate" during the classroom sessions for He indicated that some of
his comments-such as the comment about the attire of the woman in the Union-would
not be appropriate to make to an undergraduate class, as, in his words, there are "too many
hormones flowing there." However, in a group of "more mature" 25-30-year-old graduate
students, the Respondent stated that "it never crossed [his] mind" that his comments could
be seen as objectionable.

Page 7 of 10
Other Information Provided
1) Copies of the Face book messages exchanged by Student 1 and Student 3 on April 25,
2017 and April 30, 2017, as detailed above.

Analysis
UWM's non-discrimination policy, S-47, defines harassment as conduct that "(1) is of any
type (oral, written including electronic, graphic, or physical); (2) is directed towards or
against a person because of the person's protected status," such as sex or gender identity,
and "(3) unreasonably interferes with the individual's work, education or participation in
activities or programs at UWM or creates a working or learning environment that a
reasonable person would find threatening or intimidating." S-47 identifies sexual
harassment as a form of discrimination, and generally defines sexual harassment as
"unwanted conduct of a sexual nature."

In this case, EDS concludes that a preponderance of the evidence does not exist to make a
finding of sexual harassment against the Respondent. For the reasons outlined below, EDS
finds:
• There is insufficient evidence to conclude that it is more likely than not that the
Respondent made two statements attributed to him by Student 1, specifically, that
he made reference to "get[ting] drunk" and "screwing around" with his fraternity
brothers in college and that he and his fraternity brothers had "gone where no man
had gone before"; and that he indirectly referred to Student 1 as "hot."
• That while there is sufficient evidence to conclude that the Respondent made
reference to the students in his undergraduate course "looking at porn" on their
laptops, and to conclude that the Respondent described a woman who he had seen
in the UWM Union who was wearing clothing which "didn't leave anything to the
imagination" and who "turned the heads" of others in the Union because "she had
the body to pull it off," these isolated comments do not rise to the level of a violation
ofS-47.
• That while there is sufficient evidence that the Respondent took photographs of the
students enrolled in Negotiations with his cell phone, there is insufficient evidence
that the Respondent took these photographs for any kind of sexual or illicit purpose.

EDS addresses each of these findings in greater detail below:

The Respondent's alleged comments about his fraternity, and the alleged indirect reference to
Student 1 as being "hot"
The only evidence EDS received during its investigation regarding the Respondent's alleged
comments about "get[ting] drunk [and] screwing around" with his fraternity brothers in
college, and his alleged reference to Student 1 being "to blame" for it being "hot" in the
classroom, were Student l's allegations that these comments were made, and the
Respondent's denial that he made the comments. EDS was unable to confirm through any
independent witness that the Respondent made these comments, and because EDS found
Student 1 and the Respondent equally credible, EDS is unable to determine that it is more
likely than not that these comments were, in fact, made.

Page 8 of 10
The Respondent's comments about the students in his undergraduate courses "looking at
porn," and his comments about the woman he saw walking through the Union
As described above, the Respondent acknowledged making comments to his
class about the students in his undergraduate class "looking at porn" on their laptop
computers. The Respondent also acknowledged the comments he made to Student l's
group about the woman he had observed in the UWM Union some months before, who he
described as wearing clothing which "didn't leave anything to the imagination" and who
"turned the heads" of others in the Union because "she had the body to pull it off." As such,
EDS finds that it is more likely than not that the Respondent made these comments.
However, while there is sufficient evidence to find that these comments were made, EDS
concludes that these two comments do not constitute prohibited sexual harassment under
S-4 7. Simply stated, isolated comments of this sort, which are not directed at any student in
particular, are not the type of severe or pervasive comments or behavior which courts have
found can create a hostile educational environment. 4 That said, EDS defers to the Provost
the determination of whether these comments should be examined as potentially violative
of any other UWM personnel policies.

The Respondent taking photographs of- students with his cell phone
As noted above, the Respondent confirmed that he had taken two photographs of the
students in the class with his cell phone. Once again, however, having made
the determination that this behavior occurred, EDS concludes that the Respondent's
conduct does not violate S-4 7. In short, EDS did not receive any evidence during its
investigation which suggested that the Respondent took these photographs for some sexual
or illicit purpose. Student 1 did not see the photographs; Student 3, who apparently did see
the photographs, did not respond to EDS' request for an interview; and the Respondent
indicated that he took the photographs to aid his memory in assigning grades and had since
deleted them. That said, EDS defers to the Provost the question of whether the
Respondent's conduct-Le., taking photographs of students without disclosing why he was
doing so or to what end the photographs would be used-should be reviewed by an entity
other than EDS.

Conclusion
Based on the totality of the circumstances, the information obtained pursuant to this
investigation, and for all the reasons set forth above, I conclude that there is insufficient
evidence to support a finding by a preponderance of the evidence of sexual harassment
against the Respondent.

This concludes EDS' investigation of this complaint. Page three of this report provides the
Respondent with specific appeal rights regarding the report's factual findings and remedial
recommendations. The Respondent must exercise these rights within 10 working days of
receiving this report. The deadline for submitting an appeal is Wednesday, September 6,
2017.

4 See, e.g., Ezell v. Potter, 400 F.3d 1041, 1048 (7th Cir. 2005).

Page 9 of 10
cc: , Respondent
,Dean, _
Joan Prince, Vice Chancellor, Global Inclusion and Engagement

Page 10 of 10
 U, JVER ITYoCWr CO (N Academic Affairs
Provost and Vice Chancellor
l.MMILWAUKEE
- ~
.
Chapman 215
TO: Nelida Cortes PO Box 413
Milwaukee. WI
Director, Equity/Diversity Services 53201-0413

~
414 229-450 I phone
414 229-2481 Jax
FROM: Johannes Britz http •i/u"m. ed u/academ icaffai rs/
Provost and Vice C ~ for Academic Affairs

DATE: September 18, 2017

RE: EDS Complaint # 17-014

On August 22, 2017, you submitted to me EDS's findings and recommendations on the above-
referenced complaint, wherein EDS filed a third-party complaint alleging that
(Respondent), an adjunct professor in the may have sexually harassed
a UWM student during the spring semester. Specifically, a female student (Student 1) alleged
that the Respondent made various inappropriate comments of a sexual nature during the course
of the semester, both to her individually and to the class as a whole.

EDS found that there was insufficient evidence to support a finding that the Respondent engaged
in discriminatory behavior in violation of UWM"s Discriminatory Conduct Policy. Specifically,
EDS found that I) there was insufficient evidence to support the claim that the Respondent made
two statements attributed to him by Student I; 2) that further statements made by the Respondent
did not rise to the level of a violation of S-47; and 3) there was insufficient evidence that the
photographs taken by the Respondent were used for any kind of sexual or illicit purpose.

As of September 6, 2017, I have received no appeals from either party in this matter. I have
carefully reviewed EDS's findings and recommendations and I concur with its conclusions. By
way of this decision, I do want to caution the Respondent against making unnecessary comments
in the classroom that could be perceived as offensive by students, as well as from commenting
about individuals' bodies. Going forward, the Respondent should also not take pictures of his
students without their consent.

In accordance with the UWM Discriminatory Conduct Policy, this determination is final.

c: , Respondent
Dean,
Joan Prince, Vice Chancellor, Global Inclusion and Engagement
Dev Venugopalan, Vice Provost, Academic Affairs
 UNIVERSITYofWISCONSIN

l.MMILYIAUKEE
i::.:...:,:.:..~
Global Inclusion and Engagement
c::::::-, Office of Equity/Diversity Services
•
Mitchell Hall, Room 359
To: P.O. Box 413
Milwaukee, WI
Student Employee 53201-0413
(414) 229-5923 phone
(414) 229-5592 fax
From: Nelida Cortes, www.diversity.uwm.edu
Director, Office of Equity/Diversity Services diverse@uwm.edu

Date: November 22, 2017

Re: NOTICE - Discrimination Complaint

Complaint No.
Complainant: Nelida Cortes, 3 rd Party Complainant
17-027
Respondent:

This memorandum is to formally advise you that UWM's Office of Equity/Diversity Services (EDS) has filed a 3 rd
party complaint, alleging that you have subjected another UWM student employee to discrimination on the basis of
sex or gender, specifically sexual harassment.

This complaint is being processed in accordance with UWM's Discriminatory Conduct Policy (Including Sexual
Harassment and Violence) No. S-47. Pursuant to that Policy, EDS will conduct an investigation of this complaint. A
member of the EDS staff will contact you during our investigation to schedule an interview in order to elicit your
response to the allegations in the complaint.

The Policy provides that"[ a]ll individuals involved in the investigation and resolution of a complaint are expected to
maintain the confidentiality of the complaint and resolution to the maximum extent possible under the
circumstances. Certain disclosures, however, may be necessary to complete the investigation and/or resolution of
the matter." As such, we ask that you not discuss these allegations with colleagues or other third parties.

In addition, the Policy also prohibits retaliation against individuals who engage in protective activities, including
filing complaints or participating as a witness in the investigation. During the course of this investigation, it is
critically important that you avoid any conduct that would be inappropriate or harassing, and any conduct that could
appear to be retaliatory. If you have any questions about this directive, please feel free to contact me.

Consistent with the Policy, a copy of the complaint is enclosed. Please let me know if you have any questions.

cc: James Hill, Interim Senior Student Affairs Officer

Joan M. Prince, Vice Chancellor, Global Inclusion and Engagement
Chia Vang, Associate Vice Chancellor, Global Inclusion and Engagement
Johannes Britz, Provost and Vice Chancellor for Academic Affairs
Rebecca Freer, Interim Dean of Students
 Office of Equity/Diversity Services"' University of Wisconsin-Milwaukee* Mitchell Hall 359
P.O. Box 413, Milwaukee, WI 53201
Telephone: 414-229-5923 * Email: diwrse6i)uwm.cd11 * Fax: 414-229-5592

DISCRIMINATION COMPLAINT FORM

GENERAL lNFORMATION:
Name of Complainant:

D Other

Name ofRespondent(s):

D Other

ALLEGATION BASED ON: (Please check the "ollowinz that avoly)

D Race or Color 0 Disability •
Sexual Orientation D Retaliation
D Veteran Status ~I Sexual Harassment •
Age (40 or Over) lil Sex/Gender
D Ancestry ·
D Religion
l J Pregnancy
D Sexual Assault
Marital Status
D Arrest/Conviction• 0
D
National Origin
Gender Identity/Expression
Record
D Other: (Please Explain):
DATE(S) OF ALLEGED DISCRIMINATION/HARASSMENT:

INCIDENT INVOLVED: Please check the ollowin

~ Terms and/or Conditions of Em lo ment
Terms and/or Conditions of Education
0 Other: (Please Ex lain :
COMPLAINT:
Have you filed a discrimination or appeal with another university department, union or state or federal agency?
0 YES ~NO; Ifyes, please state the name of the agency and date filed:

BRIEF DESCRIPTION OF YOUR COMPLAINT:

Ye ual harr r. 11

RESOLUTION SOUGHT:
To bl lu/d auovntabu foy h1r actJ1JnJ ) wklW11x :t\:Jct\- ltt

The discrimi1tatio1t complaint process has been explained to me and I have _received a copy o/tlte S-47,
UWM's Discriminatory Conduct Policy. I certify that the i11/ormatio11 give11 above is true a11d accurate to the
best ofmy knowledge or belief. The Office of Equity/Diversity Services has my permissio11 to conduct
pertinent inquiries in regards to my complaint and to use my name in such inquiries.
 Office of Equity/Diversity Services * University of Wisconsin-Milwaukee * Mitchell Hall 359
P.O. Box 413, Milwaukee, WI 53201
Telephone: 414-229-5923 * Email: diwrsc@uwm.edn * Fax: 414-229-5592

DISCRIMINATION COMPLAINT FORM

GENERAL INFORMATION:
Name of Complainant:

D Other

Name of Respondent(s):

D Other

A LL EGATION BASED ON: (Please check the ,ollowing that avvly)

I I Race or Color
0 Veteran Status
D Disabilitv
l\d7Sexual Harassment
•D Sexual Orientation
Age (40 or Over)
D Retaliation
IM.$ex/Gender
D Ancestry · I I Pre!l'11ancy D Marital Status 0 National Origin
D Religion ~exual Assault D Arrest/Conviction
Record
• Gender Identity/Expression

0 Other: (Please Explain):

DATE(S) OF ALLEGED DISCRIMINATION/HARASSMENT:

that a l
•
Tenns and/or Conditions of Education
Other: (Please Ex lain :
•
COMPLAINT:
Have you filed a discrimination or appeal with another university department, union or state or federal agency?
0 YES O; Ifyes, please state the name oftre agency and date filed:

Tfte discrimination complai11t process has been explai11ed to me and I have received a copy of the S-47,
UWM's Discriminatory Conduct Policy. I certify that the information given above is true and accurate to tlle
best of my knowledge or beli . Tlte Office of Equity/Diversity Services has my permissio11 to conduct
· · · i s i11 re ard to m I com /ai11t and to use my name ill such inquiries.

Date
 Office ofEquity/Divcr.iity Services* University of Wisconsin-Milwaukee* Mitchell Hall 359
P.O. Box 413, Milwaukee, W153201
Tctcpl10ne: 414-22-!1-5923 * Emilll: ,]j\•1.,v,e@J11wm C1fil "Fax: 414-22!1-5592

DISCRIMINATION COMPLAINT FORM

GENERAL INFORMATION:
Na

Name ofRespondent(s):

Respondent's Campus Address:

-i)ther Phone #:
B Staff D Facul D Other

ALLEGATION BASED ON: (Please check the 'ol/owinf! that ann[vl

I I Race or Color I I msabilitv Sexual Orientation Retaliation
D Veteran Status IVI Sexual Harassment Age (40 or Over) Sex/Gender
D Ancestry· D Pregnancv Marital Status National Origin
LJ Religion D Sexual Assault An-est/Conviction
~

Record
• Gender Identity/Expression

I I Otl1er: (Please Explain):

DA'l'E(S) OF ALLEGED DISCRIMINATION/HARASSMENT: 10/r:1

I
11/13:
I

INCIDENT INVOLVED: (Please check the followinfl that a ,n/.,J

D Tenns and/or Conditions of Employment II Campus Housing
, , Tenns and/or Conditions ofEducation 11 Student Proorams
D Other: (Please Exvlain):
COMPLAIN~:
Have you filed discrimination or appeal with another university department, union or state or federal agency?
D YES NO; Ifyes, please state the name of the agency and date filed:

BRIEF DESCRIPTION OF YOUR COMPLAINT:

'~ifil~t:~ ~~wt!~te x 1
~~i(O j

RESOLUTION SOUGHT:
II n j ve v:J1!/ \ff COVV\ .v111 Q.J;J ol od IT,s GI LHi M .

The d/scrlmi11at/011 co111pla/11t process /,as bee11 exp/a/11ed to me a11d I /,ave received a copy oft/le S-47,
UWM's Di.rcr/111/11atory Co1u/11ct Policy. I cert!fj! that tl,e //iformat/011 g/ve11 above is tr11e a11d acc11rate to the
best ofmy /mow/edge or belief. Tile Office of Eq11/ty/Divers/ty Services has my perm/ss/011 to co11d11ct
pert/11e111 /11q11ir/es ill regards to my complai11t a11d to use II!)' 11a111e i11 s11cfl /11q11lrles,

11/25/J:::/
Sigltl}tumfClaimant
vJ ;~ asp:,~~ :r,.,fv..11-.:, h ~Y'\
 Office ofEquily/Diversity Services • University of Wisconsin-Milwaukee * Mitchell Hall 359
P.O. Box 413, Milwaukee, WI 53201
Telephone: 414-229-5923 • Email: .11.wrse@uwm,crlu * Fax: 414-:2.29-5592

DISCRIMINATION COMPLAINT FORM

GENERAL INFORMATION·
Name of Complainant: Nelida Cortes, Director, Office of Equity/Diversity Services

Complainant's Horne Address: Mitchell Hall, Rm. 359, 3203 N Downer Ave, MKE, WI 53211

Phone#: 229-5923 I Email: cortes@uwm.edu I Other Phone#:

Comolainant's Universitv Status: I I Student I I Student Emolovee [lll Staff I I Facultv I I Other

Name ofRespondent(s):

Respondent's Camgus Address:

Phone#: I Email: @uwm.edu I Other Phone #:

Resnondent's Universitv Status: , , Student I I Student Emolovee iv, Staff 0 Facultv I I Other
Resoondent's Relationshio to the Comolainant: Staff member in Ooerations

AL LEGATION BASED ON: <Please check the ollowin~ that annlul

1 1 Race or Color 0 Disabilitv Sexual Orientation Retaliation
D Veteran Status Sexual Harassment A2e /40 or Over) Sex/Gender
D Ancestry Pre<>nancv Marital Status National Ori~in
D Religion - Sexual Assault
- Arrest/Conviction
Record
- Gender Identity/Expression

, , Other: (Please Exvlain):

DATE(S) OF ALLEGED DISCRIMINATION/HARASSMENT: September - December 2017

INCIDENT INVOLVED: (Please check the followinf! that ann/v/

~ Terms and/or Conditions ofEmnlovment I , , Camous Housin2
Terms and/or Conditions of Education 10 Student Pro11tams
Other: (Please Exvlain):

COMPLAINT:
Have you filed a discrimination or appeal with another university departmen~ union or state or federal agency?
0 YES [2!] NO; lfyes, please stale the name of the agency and date filed:

BRIEF DESCRIPTION OF YOUR COMPLAINT:

EDS received information that the Respondent subjected a female colleague to unwanted conduct of a sexual nature
during the Fall 2017 sem"'es,,,te"-r~._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

RESOLUTION SOUGHT:
To be determined based on the findings of EDS' investigation.

The discrlmlnatlo11 complaint process /1as been explai11ed to me a11d I /rave received a copy ofthe S-47,
lllf'Jlf's D/scr/111/t,atory C01ulucl Policy. I certify that tire information given above Is true and accurate to Ille
best ofmy knowledge o if, The Office ofEquity/Diversity Services has my permission lo conduct
pertine11t i11q11iries in ards)o my complaint and to use my name In suclz inquiries.
/ .

I l{ Ir'
ate
 UNIVERSITYofWISCONSIN

U\i\MILWAUKEE Global Inclusion and Engagement

:"~;c~ Office of Equity/Diversity Se11,ices

Mitchell Hall, Room 359

To: Johannes Britz P.O. Box413
Provost and Vice Chancellor, Academic Affairs Milwaukee, WI
53201-0413

From: Jamie Cimpl-Wiemer ~

(414) 229-5923 phone
(414) 229-5592 fax
Associate Director, Office of Equity/Diversity Services www.diversity.uwm.edu
diverse@uwm.edu
Date: February 23, 2018

RE: Equity/Diversity Services Investigation Report

Complaint No: Complainant: 3rd Party, Nelida Cortes, Director of Office of

18-001 Ea uitv /Diversitv Services
Respondent:

Brief Synopsis
The purpose of this memorandum is to advise you of the Office of Equity/Diversity Services'
(EDS) findings and recommendations regarding the above-referenced complaint. On January
4, 2018, EDS filed a third-party complaint against (the Respondent), a
who is employed by the Division of Student Affairs'
department. In the third-party complaint, it was alleged that the Respondent
may have sexually harassed another UWM employee during the Fall 2017 semester. This
report considers a preponderance of the evidence (whether it is more likely than not) that
there has been a violation of UWM policy prohibiting discrimination-specifically, UWM's
Discriminatory Conduct Policy (Including Sexual Harassment and Sexual Violence), S-47.

During the course of its investigation, EDS interviewed two (2) l/WM employees,
four (4) UWM employees, an employee from the
and the Respondent. EDS also reviewed documentary evidence submitted by
one of the witnesses and by the Respondent. Based on all the evidence received during its
investigation, EDS finds that a preponderance of the evidence does not exist that the
Respondent engaged in conduct which violates S-47's prohibition on sexual harassment. EDS
defers to the Provost on the question of whether any of the Respondent's conduct potentially
violates any other UWM personnel policies, such as UWM's Code of Conduct.

Involved Parties
The Respondent is employed as a , and is more specifically assigned
as the " for the located in the The Respondent has
held his position at UWM since July 24, 2017. The Respondent reported that, prior to his
employment at UWM, he was employed in a similar position at for
approximately four years (from 2013 to May 2017).

Page 1 of 13
History of the Case
On November 3, 2017, EDS received an email from the department's
Manager (hereinafter referred to as Manager"). In
that email-which is summarized in greater detail later in this report-the
Manager advised EDS that on November 2, 2017, he had been approached by a full-
time employee (hereinafter referred to as "Employee 1"), who voiced
concerns with the Respondent's behavior towards her, both over the course of the Fall 2017
semester and in a particular incident which occurred earlier in the day on November 2, 2017.

EDS met with Employee 1 on November 6, 2017. During that meeting, EDS discussed with
Employee 1 her ability to file a complaint againstthe Respondent pursuant to S-4 7. Employee
1 declined to file a complaint herself, and indicated that she did not believe that a formal
investigation of the Respondent's behavior was necessary at that time. Instead, Employee 1
requested that the Respondent have a meeting with his supervisor to be reminded about the
behavioral expectations for employees.

The Manager met with the Respondent on November 7, 2017. In an email

sent the following day, the Manager reported that, without sharing any
identifying information about Employee 1, he had informed the Respondent that there had
been concerns voiced about the Respondent's behavior in the workplace, and advised the
Respondent to keep his interactions with his colleagues professional. According to the
Manager, the Respondent indicated that he would "re-evaluate" his
interactions with his co-workers and "make sure he is staying far away from the line of what
is good and what is not."

On December 22, 2017, EDS conducted a follow-up meeting with Employee 1. At that time,
Employee 1 voiced concerns with the Respondent's recent behavior (that is, behavior which
allegedly occurred in December 2017). EDS again discussed with Employee 1 her ability to
file a complaint against the Respondent, but Employee 1 again declined to file a complaint
herself.

Based on the repetitive nature of the allegations, EDS filed a third-party complaint against
the Respondent on January 4, 2018. A notification letter and a copy of the complaint were
hand-delivered to the Respondent that same day, advising that a complaint had been filed
and that an investigation would take place in accordance with S-4 7.

UWM's Discriminatory Conduct Policy, S-47

UWM's Discriminatory Conduct Policy provides in part:

UWM is committed to building and maintaining a campus environment that

recognizes the inherent worth and dignity of every person, fosters tolerance,
sensitivity, understanding, and mutual respect, and encourages the members
of its community to strive to reach their full potential. (S-4 7, pp.1-2, § I.)

UWM defines discrimination as conduct that (1) adversely affects any aspect

Page 2 of 13
 of an individual's employment, education, or participation in activities or
programs at UWM; and (2) is based on one or more characteristics of the
individual that are protected under federal or state laws. (S-4 7, p.2, § Il.B.)

Any individual who believes that he or she is being subjected to

discrimination, harassment, or retaliation prohibited by the University's
policies may file a complaint with EDS. The complaint must be in writing, on a
form provided by EDS, and must be filed within 300 calendar days of the most
recent alleged prohibited act. EDS at its own discretion may accept complaints
that are not in writing or that are filed outside of the 300-day limitation for
good cause. (S-47, p.7, § V.A.1.)

At the conclusion of its investigation, EDS will prepare written findings and
remedial recommendations to the Provost, with copies to the complainant,
respondent, the complainant's Dean or Division Head, the respondent's Dean
or Division Head, the Associate Vice Chancellor for Global Inclusion and
Engagement, and the Vice Chancellor for Global Inclusion and Engagement. (S-
47, p.10, § V.D.)

Within ten working days ofreceipt of the Director of EDS's factual findings and
remedial recommendations, the complainant or the respondent may respond
to the factual findings and remedial recommendations. The response must be
in writing and sent to the Provost. The Provost will provide copies of any such
responses to the other party, to the Director of EDS, the Dean or Division Head
of both the complainant and the respondent, and the University Committee
(for faculty) or the Academic Staff Committee (for academic staff). Responses
may be based on (1) whether the evidence supports the findings and/or (2)
whether the recommended remedial actions are appropriate. (S-47, p.10, §
VI.A.)

Interim Measures
During its interview with Employee 1, EDS advised Employee 1 of her ability to request
interim measures-such as a change in shift, or relocation of her or the Respondent's
workspace-during the pendency of the EDS investigation. Employee 1 advised EDS that she
understood her ability to request interim measures, but stated that she did not believe any
such measures were necessary in this matter.

Interviews with Employee 1

During her interviews with EDS, Employee 1 reported that she has worked with the
Respondent in the since July 2017. Employee 1 indicated that she and the
Respondent are assigned to work in the same workplace-a
n-and as such she works in close proximity to the
Respondent during most of her shifts.

Employee 1 reported the following about her interactions with the Respondent during the
Fall 2017 semester:

Page 3 of 13
• Employee 1 indicated that on approximately three occasions between the beginning of
the Fall 2017 semester and the first week of November 2017, the Respondent "hit [her]
on the calf with -twice with a and once with a " -
when she walked by him in the Employee 1 did not recall the
Respondent making any comments to her on the occasions when he "hit" her with the
and she reported that she typically responded by telling the Respondent:
"That hurts. You're lucky I don't bruise easy." Employee 1 indicated that the Respondent
would "just chuckle" in response to her remarks.
• Employee 1 also reported that on "more than ten" occasions in the Fall 2017 semester,
the Respondent had, in the course of conversation, "grab[bed] [her] arm" in mock
frustration while referring to her as a "brat."
• Employee 1 further reported that in the early part of November 2017, the Respondent
had "pulled on [her] ponytail" in the Specifically, Employee 1
indicated that on the date in question, she arrived in the to begin her mid-
afternoon shift. After she entered the she encountered the Respondent, who
walked over to her and stood very near to Employee 1, such that his "chest was touching
[her] arm."
• Employee 1 indicated that she was wearing her hair in "a single ponytail," and as she
leaned her head back to take a sip of water from her water bottle, the Respondent said to
her: "I like it when you wear your hair in a braid, because then I can pull it." Employee 1
alleged that the Respondent then "tugged" on her ponytail while making "a weird
growl/purring sound" in her ear. Employee 1 indicated that she immediately left the
and reported the incident to the Manager; however, she stated
that she did not believe that any other staff members had witnessed this
incident.
• Employee 1 stated after she reported this incident to the Manager, the
Respondent's concerning behavior stopped for approximately six (6) weeks, until
December 20, 2017. On that date, however, Employee 1 indicated that when she arrived
at the (between approximately 1:30 p.m. and 2:30 p.m.), the
Respondent observed that she appeared to be happy and stated: "Someone's in a good
mood. Who did you do?" Employee 1 reported that she "[was] pretty sure [she] said,
'That's inappropriate"' in response, and the Respondent replied: "Oh, I'm sorry."
• Employee 1 also reported that on December 20, the Respondent had made a "joking"
reference to choking her. Employee 1 indicated that she had made a "smart comment"
during a conversation with the Respondent-she stated that the Respondent had asked
her "What's up?" and she responded by physically looking up at the ceiling-and the
Respondent replied: "Sometimes I feel like choking you."
• Employee 1 further indicated that during the week of December 18, the Respondent had
made some "very random" references to sexual harassment. She recalled, specifically,
that the Respondent mentioned to her that the employee who had been
hired into the Respondent's former position had been terminated after being accused of
sexual harassment: "he said, 'I just heard that the guy they hired in my position
just got fired for sexual harassment."' Employee 1 stated that she was unable to
recall the context for this comment, and she indicated that she did not respond to the
Respondent's remark.

Page 4 of 13
• During her interviews with EDS, Employee 1 indicated that she was not fearful of the
Respondent, and that she did not feel "physically threatened" by the Respondent's
behavior. She indicated that most of the Respondent's behavior-such as the references
to her as a "brat" and the grabbing of her arm in mock frustration-is done in a "joking"
manner, and she does not find it particularly concerning. However, she stated that the
"hair-pulling" incident made her "very uncomfortable" (in her own words, Employee 1
indicated: "that's too far"), and she stated that her motivation for coming forward with
this information was to ensure that the hair-pulling incident was not repeated and that
the Respondent's behavior did not "escalate" any further.

Interview with the Respondent

The Respondent indicated that his responsibilities at UWM include the

The Respondent indicated that there are typically two (2)

student-employees who are assigned to work with him during each shift (although he noted
as many as four (4) student-employees could be assigned to work with him), and that he and
the student-employees share a workspace with the which is staffed by Employee 1
and the student-employees who are assigned to work with her.

During his interview with EDS, the Respondent was questioned specifically about the
allegations made by Employee 1. He responded as follows:
• The Respondent acknowledged that on one occasion in the Fall 2017 semester, he
"tapped" Employee 1 on the back of her lower leg with a He was notable to recall
the context for this action, other than to say that he believed it occurred during "the back
and forth banter" which frequently takes place in the The
Respondent reiterated that he merely "tap[ped]" Employee l's leg and did not strike her
"[with] a full wind-up," and he recalled that she "smiled and laughed" afterward.1
• Asked to describe the "banter" which takes place in his work area, the Respondent
indicated that he, Employee 1, and the student-employees in the frequently tease
each other; he explained, for example, that the student-employees often refer to him as
" " or ." He stated that there is nothing "sexual or malicious" about
this "banter," and that it does not offend him when the student-employees tease him
about his age or appearance.
• The Respondent strongly denied ever pulling on the ponytail of any his female co-
workers. The Respondent stated that he "would have no reason to" engage in such
behavior, and then noted that, pursuant to policy, "hair can't be
worn down" in the instead, he indicated, long hair must be worn "in a hairnet or
hat." As such, the Respondent asserted that he would not have had an opportunity to pull
on the hair of any of his female co-workers.
• The Respondent was then asked more specifically if, in early November 2017, he had
pulled on the ponytail of a female co-worker while telling her: "I love it when your hair is

1Although he could not recall any of the particular details, the Respondent indicated that Employee
1 had "tapped" him with in similar fashion during the Fall 2017 semester. Asked if
the student-employees assigned to the also engage in this type of behavior, the Respondent
replied in the negative, stating: "That I've never seen."

Page 5 of 13
 in a ponytail because then I can pull on it." The Respondent replied: "Absolutely not. I
would never say anything like that." The Respondent continued that he did not "know
anyone well enough in the to talk like that, even if it's in a joking manner" and
then stated again: "That did not happen. I would never talk like that to anybody in the
No way."
• The Respondent was next asked about the allegation that on or about December 20, 2017,
he commented to a female co-worker: "Someone's in a good mood. Who did you do?"
While the Respondent recalled this conversation, he denied that he asked his co-worker,
"Who did you do?" Instead, the Respondent indicated that he observed Employee 1 came
into work "with a huge smile" and had "a bounce in her step," and so he said to her:
"You're glowing today. What's their name?", implying that Employee 1 had "found new
love in [her] life."
• The Respondent indicated that he could not understand how the comment of "What's
their name?" could be interpreted as a sexual or romantic reference. He explained that
his grandmother had often made this same comment to him, and he insisted that the
remark was completely innocuous. The Respondent stated that Employee 1 "smiled" but
"didn't say anything" in response to his comment, and there was no ensuing discussion
"about her romantic life, or anything like that."
• Asked if he had ever referred to any of his female co-workers as a "brat" during
conversations in the the Respondent replied that he was "sure"
that he had. Again, the Respondent explained that these references were in keeping with
the environment in the and with the "banter" that is exchanged between the
staff. He reported, for example, that during a shift in early January, one of the
student-employees played a prank on him by moving his belongings to difficult-to-reach
areas of the and he playfully called the student-employee a "brat" when he
discovered what she had done.
• The Respondent stated that he did not recall ever placing his hands on the arms of any of
his female co-workers in feigned frustration when they are engaging in this type of
"banter." In addition, the Respondent indicated that he did not recall ever making any
joking references to physical violence-such as "l feel like choking you" -in
conversations with his female colleagues.
• The Respondent was then asked if he recalled mentioning to any of his female co-workers
that the employee who was hired to fill his former position at had been
terminated after being accused of sexual harassment. The Respondent replied that he did
recall such a conversation, but he did not recall who the conversation was with or what
the context of the conversation was.
• The Respondent asserted that he is acutely aware that "you have to be careful about your
behavior working in a university setting," particularly when a full-time staff member is
interacting with students and student-employees. The Respondent reported that one of
his colleagues at impressed this point on him when he (the Respondent)
first began his employment there. He indicated that this colleague informed him that the
"normal private sector line in the sand" for acceptable behavior in a setting is
not the same in a university setting.
• Asked to describe that "line in the sand" of acceptable behavior, the Respondent reported
that, in general, the "language in [private sector] is filthy" and frequently

Page 6 of13
 includes sexually explicit comments. The Respondent indicated that his colleague at
advised him that, in a university setting, a employee "can't even get
near that line." The Respondent reported that he took this advice to heart and has been
diligent in avoiding this type of behavior during his employment at and at
UWM.
• The Respondent was asked if he could identify any possible motivation for any of his co-
workers to make these allegations against him. The Respondent replied that, in general,
his relationships with his co-workers are good. With regard to Employee 1 specifically,
he noted that while Employee 1 has expressed concern with his cursing in the workplace
("she's told me I have a potty mouth"), they have not had "any heated conflicts."
• In fact, the Respondent reported that he and Employee 1 have engaged in "pretty open"
conversations about their families-he recalled specifically that Employee 1 discussed
with him how she " " and mentioned that the
-and that, at the beginning of January, Employee 1
had invited him to birthday party. The Respondent stated that he found it
puzzling that Employee 1 would engage in these conversations with him, and would
invite him to social functions, "if she felt [he] was harassing her."
• The Respondent also reported that he had observed that, on several occasions, a
particular student-employee who works in the had entered the
/ walked up behind Employee 1, and "embraced" her by putting
his arms around her. The Respondent stated that he had asked Employee 1 if the student-
employee embracing her in this fashion made her feel "weird," and Employee 1
responded that it did not because she had "known (the student-employee] for a long
time."
• The Respondent asserted that he found it "troubling that [Employee 1] allows students
to embrace her this way," and he questioned why she would express concern with the
comments the Respondent makes in the workplace (e.g., "You're glowing today. What's
their name?") while not objecting to students having physical contact with her.
• On this topic, the Respondent subsequently emailed EDS a photograph which depicted
Employee 1 and an unidentified person standing next to each other in the
area. In the photograph, Employee l's left arm is placed around the unidentified
individual's lower back, while the unidentified individual's right arm is placed around
Employee l's upper back with the unidentified person's right hand resting on Employee
l's right shoulder. The Respondent titled this email: "Appropriate?" and wrote in the
body of the email: "So, this is ok?"

Interviews with Other Witnesses

The Manager
As noted earlier in this report, EDS received an email from the Manager
on November 3, 2017. In that email, the Manager summarized his
conversation with Employee 1 regarding her concerns with the Respondent's alleged
behavior:
• The Manager wrote that Employee 1 approached him in the late
afternoon of November 2; he noted that Employee 1 appeared to be "holding back tears"
when she entered his office. According to the Manager, Employee 1

Page 7 of13
 informed him that a few minutes earlier, she had encountered the Respondent in the
space. The Manager wrote that Employee 1
informed him that as she was "t[aking] a sip" of water from her water bottle, the
Respondent "walked up to her, got about as close as he could to her without touching
her" and said: "I love it when your hair is in a ponytail [because] then I can pull it."
Employee 1 told the Manager that the Respondent then "growled" in
her ear and "tugged" on her ponytail.
• The Manager wrote that Employee 1 informed him that the
Respondent's behavior on November 2 repr-esented an escalation of previous behavior
which the Respondent had directed towards her. Employee 1 told the
Manager that, beginning approximately three (3) weeks after the Respondent began his
employment at UWM, the Respondent had engaged in what she termed "high school style
flirting" with her, by, for example, physically "bumping" into her in the
Employee 1 informed the Manager that, to her, this physical
contact appeared to be "purpose[ful]" and not accidental, and she estimated that it
occurred "weekly ... if not almost daily" in September and October 2017.
• In addition, the Manager indicated that Employee 1 advised him that
on "a few" occasions, the Respondent had "tapp[ed] her" on the back of her lower leg
"with such as " [and] Employee 1 described these
"taps" as a "good slap with the [such that] she can feel it sting."
• The Manager wrote that Employee 1 further informed him that on
approximately ten (10) occasions during the Fall 2017 semester, the Respondent
"grab[bed] her by the arm ...with a firm and hard grip" and made comments to her such
as "you're a brat," or "you always frustrate me."

Subsequently, on January 31, 2018, the Manager emailed EDS a written

statement, which he submitted on the Respondent's behalf. In that statement, the
Manager-who resigned his position at UWM in December 2017 to accept
employment at -wrote that the Respondent had
recently "reached out to [him]" regarding the EDS investigation, and the
Manager informed the Respondent that he (the Manager) was "hesitan[t]
to believe the accusations against him" and would be willing to "write [the Respondent] a
character letter."

The Manager then wrote that he "believe[s] it to be highly unlikely that

the" allegations made against the Respondent were "true," and offered the following reasons
for this belief:
• After he was made aware of the concerns with the Respondent's behavior in November
2017, the Manager reported that he "sat down with a few [
employees who interact with [the Respondent]" regularly, and asked these
employees if "anyone in their work areas ... [was] handling themselves in a sexually
inappropriate way." The Manager indicated that none of these
employees voiced any concern about any of their co-workers behaving in a sexually
inappropriate manner.

Page 8 of13
• At the same time, the Manager wrote that he began "to spen[d] more
time observing [the Respondent] and his interactions with other employees," and he (the
Manager) "did not see anything that was inappropriate."
• The Manager then wrote that he was suspicious of the allegations
made by Employee 1 because of his "knowledge of [Employee l's] background
concerning, [sic] lying and her inappropriate work relationships." More specifically, the
Manager reported that, during his employment at UWM, he had
"witnessed what can best be described as awkward interactions between [Employee 1]
and numerous other employees[-t]rom charged inuendo [sic] conversation, to hugs
with hands that roam to areas I would not be comfortable with."
• The Manager concluded that he believed that Employee 1 "did not like
[the Respondent's] style of leading his crew and did not want him to work at UWM," and
speculated that Employee 1 "[may have] fabricated these allegations in order to facilitate
[the Respondent's] removal."

student-emplovees
As part of its investigation, EDS interviewed four (4) UWM students who work on a part-time
basis in the and/or production area (hereinafter referred
to as "Student-Employee l," "Student-Employee 2," "Student-Employee 3," and "Student-
Employee 4," respectively). These student-employees reported the following:
• Student-Employee 1 indicated that, in general, she did not "have any concerns about the
behavior" of her co-workers in the Student-Employee 1 reported that the
work environment is "pretty relaxed"-"people are talking, joking, laughing"-but that
she had not observed any behavior which she found inappropriate or offensive. Student-
Employee 1 specifically indicated that she did not recall seeing any staff members
intentionally bumping into other staff members, or hitting other staff members with
She reported that, on a few occasions, she had seen the Respondent
"throw at people" in a "teasing" way, but she stated that this behavior happened
rarely: "You don't normally see people throwing at each other in the
• In like fashion, Student-Employee 2 stated thatthe Respondent had engaged in "childish"
behavior such as "throwing a at a student-employee on one occasion when that
student-employee was "making fun of him," but she indicated that she had not observed
any behavior on the Respondent's part which she found sexually inappropriate. In
addition, while Student-Employee 2 reported that the work environment is "lighter"-
"people joke there, it's pretty friendly"-she could not recall ever seeing a staff member
hit another staff member with a
• Student-Employee 3 identified the Respondent as someone who "likes to play around"
and is often "sarcastic" with other staff members. She further indicated that she had, on
a few occasions, "called out" the Respondent for "mak[ing] things weird" in the
as when the Respondent told her that a dessert she was eating would "go straight to
[her] thighs." However, Student-Employee 3 reported that the Respondent had never
made any comments to her which she found offensive or inappropriate, and she stated
that she had not observed any staff members hitting other staff members with
or throwing at each other.

Page 9 of 13
• Student-Employee 4, too, described the Respondent as "goofy" and "a jokester." She
clarified, however, that none of the Respondent's jokes are "weird or gross or anything
like that," and she stated that she had never observed the Respondent engaging in
behavior which she found inappropriate or sexual.
• Student-Employee 4 additionally reported that, from her observations, it appeared that
"something weird [was] going on" between Employee 1 and the Respondent, as
Employee 1 would sometimes "g[ et] along great" with the Respondent, and at other times
would ignore the Respondent entirely. Student-Employee 4 then alleged that, early in the
Fall 2017 semester, Employee 1 had mentioned to her that she "d[id not] care for" the
Respondent and that the Respondent "won't be here for long," which Student-Employee
4 found "strange" because she had not observed the Respondent engaging in any
inappropriate or concerning behavior.

Manager
Following his interview with EDS, the Respondent requested that EDS contact his "former
managers" at so that they could serve as "character reference[s]" on his behalf.
Pursuant to this request, EDS conducted an interview with an individual employed as a
Manager at (hereinafter referred to as "the
Manager"). 2 The Manager reported the following:
• He worked with the Respondent "for more than a year" at
where the Respondent was employed as "one of the who was
responsible for "
• While the Manager indicated he was not the Respondent's direct
supervisor at the he reported that he served as the "manager on duty"
during most of the Respondent's shifts. The Manager estimated that
he worked with the Respondent "four or five days a week" at the
• As the "manager on duty" at the the Manager
explained that complaints and concerns from staff and patrons were typically directed to
him, and he was responsible for "start[ing] the initial write-up paperwork" if there was a
complaint lodged against a staff member.
• During the period of time he worked with the Respondent, the
Manager stated that he did not receive any complaints about the Respondent from
patrons or staff members at the The Manager
reported that he had received "reports about [other] full-time staff members" during the
period of time when he worked with the Respondent, but no "reports" about the
Respondent were ever made to him.
• The Manager further reported that the Respondent, in his position
at was responsible for "training the student-employees ... on their specific
stations" in the The Manager noted that several of these
student-employees "request[ ed] to work with [the Respondent] semester after
semester" because they enjoyed working with him.

2The Respondent also requested that EDS conduct an interview with an individual who is employed
as a at EDS contacted this individual, hut did not receive a
response to its request for an interview.

Page 10 of 13
Analysis
UWM's non-discrimination policy, S-47, defines harassment as conduct that "(1) is of any
type (oral, written including electronic, graphic, or physical); (2) is directed towards or
against a person because of the person's protected status," such as sex or gender identity,
and "(3) unreasonably interferes with the individual's work, education or participation in
activities or programs at UWM or creates a working or learning environment that a
reasonable person would find threatening or intimidating." S-4 7 identifies sexual
harassment as a form of discrimination, and generally defines sexual harassment as
"unwanted conduct of a sexual nature."

In this case, EDS concludes that a preponderance of the evidence does not exist to make a
finding of sexual harassment against the Respondent. For the reasons outlined below, EDS
finds:
• That while there is sufficient evidence to conclude that the Respondent struck Employee
1 on the leg with a on at least one occasion, and while there is sufficient
evidence to conclude that the Respondent referred to Employee 1 (and other
workers) as a "brat" during conversations in the workplace, there is insufficient
evidence to conclude that this conduct was sexual in nature;
• That there is insufficient evidence to conclude that the Respondent asked Employee 1:
"Who did you do?" on or about December 20, 2017;
• And that there is insufficient evidence to conclude that, on or about November 2, 2017,
the Respondent "tugged" on Employee l's ponytail while stating: "I love it when you wear
your hair in a ponytail because then I can pull it" and then "growling" in Employee l's
ear.

EDS addresses each of these findings in greater detail below:

Hitting Employee 1 on the leg with a and referring to Employee 1 as a "brat"

As the Respondent acknowledged in his interview with EDS that he had, on one occasion in
the Fall 2017 semester, hit Employee 1 on the leg with a and that he was
"sure" he had referred to Employee 1 (and other workers) as a "brat" during
conversations in the workplace, EDS concludes that it is more likely than not that this
behavior did, in fact, occur. 3

Having made that conclusion, EDS is unable to further conclude that this behavior violates S-
47's prohibition on sexual harassment. Nothing about this conduct is overtly sexual in
nature, and the evidence EDS received in its investigation does not suggest that the conduct
was implicitly sexually-based. (For example, Employee 1 did not report that the Respondent
made any comments of a sexual nature when he tapped her on the leg with a

3 EDS cannot, however, conclude it is more likely than not that the Respondent grabbed Employee 1

by the arm in mock frustration while referring to her as a "brat." The Respondent denied engaging in
this type of physical contact with any of his co-workers, and none of the student-employees
interviewed by EDS reported observing the Respondent engaging in such behavior.

Page 11 of 13
 4 However, EDS defers to the Provost the question of whether this behavior
potentially violates any other UWM personnel policies.

The alleged statement of"Who did vou do?" to Employee 1 on or about December 20. 2017
Although the Respondent recalled engaging in conversation with Employee 1 on December
20, 2017, after noticing that Employee 1 appeared to have "a bounce in her step," the
Respondent strongly denied that he asked Employee 1: "Who did you do?" on that date.
Instead, the Respondent insisted that he asked Employee 1: "What's their name?", which he
indicated was a reference to Employee 1 possibly having "found new love in [her] life."

From the evidence received in its investigation, EDS is unable to conclude that it is more
likely than not that the Respondent asked Employee 1: "Who did you do?" on December 20.
The only evidence EDS received regarding this incident were the statements from Employee
1 and the Respondent, and EDS found Employee 1 and the Respondent to be equally credible
regarding this alleged incident. Accordingly, with insufficient evidence to conclude that the
Respondent asked Employee 1: "Who did you do?", EDS is unable to make a finding of a
violation ofS-47 for this incident.

The alleged hair-pulling incident on November 2. 2017

For similar reasons, EDS is unable to conclude that it is more likely than not that on
November 2, 2017, the Respondent "tugged" on Employee l's ponytail while telling her: "I
love it when you wear your hair in a ponytail because then I can pull on it" and "growling" in
her ear. As with the alleged comment on December 20, the only evidence EDS received
regarding this incident were the statements made by Employee 1 and the Respondent, with
Employee 1 claiming the incident took place and the Respondent insisting that it did not.

Again, EDS found Employee 1 and the Respondent to be equally credible regarding this
incident. While Employee 1 provided consistent accounts of this incident to EDS and to the
Manager, the Respondent was steadfast in his denial that he engaged in
this behavior, which EDS found notable in light of the Respondent's acknowledgment that he
engaged in other behavior attributed to him by Employee 1 (e.g., hitting Employee 1 on the
leg with a referring to Employee 1 as a "brat," and mentioning that the
employee who replaced him at had been terminated after being accused of
sexual harassment). 5 Moreover, in its interviews with the student-employees,
EDS was unable to corroborate that anyone else had witnessed this incident, or had
witnessed any other behavior of an inappropriate, sexual nature on the Respondent's behalf.

4 In the same vein, because EDS was not provided any context for the Respondent's statement to
Employee 1 that the employee who replaced him at was terminated after being accused
of sexual harassment, EDS is unable to conclude thatthis statement violates S-47.
5 In addition, EDS was provided with conflicting information regarding Employee l's possible

motivation in raising concerns about the Respondent's alleged behavior: while Employee 1 advised
EDS that her motivation was simply to ensure that the Respondent's behavior did not "escalate,"
other witnesses (e.g., the Manager, and Student-Employee 4) reported that it
appeared that Employee 1 did not enjoy working with the Respondent, and speculated that Employee
1 may have wanted the Respondent's employment at UWM terminated.

Page 12 of 13
As such, EDS is unable to conclude that it is more likely than not that the Respondent engaged
in this behavior on November 2, 2017. 6

Conclusion
Based on the totality of the circumstances, the information obtained pursuant to this
investigation, and for all the reasons set forth above, I conclude that there is insufficient
evidence to support a finding by a preponderance of the evidence of sexual harassment
against the Respondent.

This concludes EDS' investigation of this complaint. Page three of this report provides the
Respondent with specific appeal rights regarding the report's factual findings and remedial
recommendations. The Respondent must exercise these rights within 10 working days of
receiving this report. The deadline for submitting an appeal is Friday, March 2, 2018.

cc: , Respondent
Kelly Haag, Senior Student Affairs Officer
Joan Prince, Vice Chancellor, Global Inclusion and Engagement
Chia Vang, Associate Vice Chancellor, Global Inclusion and Engagement

6
EDS notes that, even if it found thatthe Respondent engaged in this behavior on November 2, 2017,
the behavior, in and of itself, likely would not constitute a violation of S-47's prohibition on sexual
harassment See, e.g., Hilt-Dyson v. City a/Chicago, 282 F.3d 456,463 (7th Cir. 2002) (holding, in case
where male employee rubbed a female employee's back on two occasions, that "the back rubbing
incidents at issue in this case, although inappropriate behavior in the workplace, do not constitute
by themselves ... harassment ...").

Page 13 of 13
 UNIVERSITYofWISCONSIN Academic Affairs
Provost and Vice Chancellor
U\\MILWAUKEE
~
Chapman 215
TO: Jamie Cimpl-Wiemer PO Box.413
Milwaukee, WI
Interim Director, Equity/Diversity Services 53201-0413
414 229-4501 phone

FROM: Johannes Britz ,,a

Provost and Vi~cellor for Academic Affairs
414 229-2481 fax
http://uwm.edu/academicaffairs/

DATE: March 28, 2018

RE: EDS Complaint # 18-00 I

On February 23, 2018, you submitted to me EDS's findings and recommendations on the above-
referenced complaint, wherein the Office of Equity/Diversity Services filed a third-party
complaint alleging that (Respondent), a in the Division of
Student Affairs' Department, may have sexually harassed another UWM
employee during the fall 2017 semester.

EDS found that there was insufficient evidence to suppmi a finding that the Respondent engaged
in discriminatory behavior in violation ofUWM's Discriminatory Conduct Policy. While EDS
detennined that the Respondent did tap an employee's leg with a and called her a
"brat," as EDS indicated, this conduct was not sexual in nature. EDS did, however, ask that I
review this conduct to detennine whether it might violate any other UWM personnel policies. I
have done so and am not refening this matter for further investigation under UWM' s Code of
Conduct in light of the extensive investigation already conducted by EDS. I will defer to Kelly
Haag, Senior Student Affairs Officer, on whether any further personnel action is wananted. In
the meantime, I remind the Respondent to behave professionally in his interactions with
employees.

As of March 20, 2018, I have received no appeals from either party in this matter. I have
carefully reviewed EDS's findings and recommendations and I concur with its conclusions. In
accordance with UWM's Discriminatory Conduct Policy, this determination is final.

c: , Respondent
Kelly Haag, Senior Student Affairs Officer, Division of Student Affairs
Joan Prince, Vice Chancellor, Global Inclusion and Engagement
Chia Vang, Associate Vice Chancellor, Global Inclusion and Engagement
Dev Venugopalan, Vice Provost, Academic Affairs