November 26, 2017

Male Graduate Sues Cornell, Saying Investigator Discriminated Against Him Based on Religion, Ethnicity, Sex

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A male graduate is suing Cornell University in federal court, claiming that he was treated unfairly and unlawfully during a University Title IX investigation. It is the third lawsuit of its nature in seven months, and the second time in the same period that a student or former student has claimed the University’s behavior gave him suicidal thoughts.

The newest complaint, filed on Tuesday in U.S. District Court for the Northern District of New York, accuses Cornell’s Title IX coordinator, Sarah Affel, of discriminating against a former student, “John Doe,” based on his sex, religion and ethnicity.

The man, who is Muslim and originally a citizen of a South Asian country, was accused of and found to have committed a sexual assault, according the complaint. The male student denies that he committed sexual assault.

University spokesperson Lindsey Hadlock said on Sunday evening that Cornell cannot comment on active litigation.

The investigation and the one-year suspension handed to Doe gave him severe mental health problems, he says in the suit — problems that resulted in his contemplating suicide and his being admitted to a psychiatric ward “for several days,” he says.

Doe also alleges that the investigation was unfair and that Cornell and Affel failed to consider the results of a polygraph test he voluntarily took and reportedly passed.

Doe graduated from Cornell in May 2017, but only after serving his suspension, which remains marked on his transcript, he says.

The graduate’s encounter with his accuser, “Jane Roe,” was on the final Friday of the fall semester of 2014, the complaint says.

Doe and Roe were at the same party, both drinking, Doe says in court, adding that most witnesses who saw Roe that night said she was severely intoxicated.

Several witnesses said that Roe’s RA — who incidentally was also consuming alcohol at the same party — had to carry Roe back to her West Campus dorm room, the suit says. Another witness inside the dorm said Roe was being physically dragged back to her room, and other witnesses added that Roe was vomiting and slurring speech.

University Title IX coordinator Sarah Affel presents at a Student Assembly meeting in Willard Straight Hall on Thursday, April 20, 2017.

Michael Suguitan / Sun Staff Photographer

University Title IX coordinator Sarah Affel presents at a Student Assembly meeting in Willard Straight Hall on Thursday, April 20, 2017.

Only the RA’s account suggests that Roe’s level of intoxication was mild, according to the complaint. The RA took Roe back to her room and stayed with her for about an hour and a half to make sure she would be okay, the complaint states.

Doe, a trained EMT, later entered the room and offered to relieve the RA of her duties and to watch over Roe himself, the complaint says. The RA accepted his offer, Doe says in the suit.

This is where stories diverge. Doe says nothing significant happened beyond this point: He slept on Doe’s floor until about 6 a.m. and then left. But Roe says she awoke to find Doe in her bed and that he then kissed her, touched her and forced her to perform oral sex.

Roe reported a sexual assault to the Cornell Police Department about four and a half months after the December 2014 night, the complaint says, and during those months, Doe says he and Roe had a normal friendship and that Roe called him an “awesome friend” at one point.

Doe claims the allegations made by a “close friend” took him by surprise.

The police investigation into Roe’s report lasted only a few days.

After Doe denied the allegations both in a two-hour interrogation and in a “controlled phone call” — a recorded phone call between Roe and Doe in which Roe tried to get Doe to incriminate himself, the complaint says — and after Doe agreed to take a polygraph test, which he passed, CUPD closed its investigation and Doe was not charged with a crime.

The University’s Title IX Office, at that time still under the Office of the Judicial Administrator, then conducted its own investigation and found Doe responsible for sexually assaulting Roe.

Doe says Cornell and its investigator, Affel, conducted a biased, arbitrary, capricious, unfair and harmful investigation.

Doe says Affel declined to consider the results of what Doe says was an exculpatory polygraph test because the tests are “generally not admissible in court,” the suit says. Doe says in the suit that this was an arbitrary and capricious decision, because Affel relied in part on hearsay to come to her finding that he was responsible.

He said Affel arbitrarily ignored evidence, pointing out that it was Cornell Police who urged him to take the polygraph test in the first place.

Affel also declined to provide the results of the test to Doe, he says, during or after the investigation.

Unable to secure the results from Affel, Doe asked the Cortland Police Department, which administered the test, for them, but Doe says Affel dissuaded the police from turning over the results, telling the department that the results were part of an ongoing investigation at Cornell.

Doe was later able to secure his results from the Cortland police, he says.

Doe further accuses Affel of relying on anti-male, anti-Muslim and anti-South Asian stereotypes to find him responsible.

Affel wrote in her report that Doe’s behavior — specifically calling Roe a “sweetheart” and joking that she was his child — was “unusually paternal to the point of being patronizing or demeaning,” according to the complaint.

Doe claims that Affel treated female witnesses differently, saying the female RA called Roe “cute” and “like a little sister” to her, comments Doe says were not flagged by Affel.

Doe also claims that Affel sought more aggressively to discredit Doe and another male witness while applying less scrutiny to Roe and female witnesses, despite what Doe says is their admittedly higher levels of intoxication on the night in question.

Affel dismissed the potential impact of intoxication on witness memory in this case, saying “the investigation did not give rise to concern that the witnesses or parties were so intoxicated that they could not remember the events of the evening,” the complaint says.

But, the suit claims, Affel called Doe’s credibility into question because “astronomical data” contradicted his estimate that the sun was up at 6 a.m. when he says he left Roe’s room. In fact, Affel found, on that day “civil twilight began at 6:49 a.m. and sunrise began at 7:21 a.m.”

Doe said: “Common sense … dictates that a person who is so intoxicated that she cannot walk on her own, so intoxicated that she is vomiting, and so intoxicated that she is incoherent and apparently unaware of her surroundings, and so intoxicated that she passes out, is not likely to give a reliable account of events that transpired while she was so heavily under the influence of alcohol.”

Doe also claimed Affel failed to consider the influence of alcohol on another female witness who Doe claims said she had consumed at least 10 alcoholic drinks.

“The only possible explanation for Affel’s willful blindness to the acute influence alcohol had on certain witnesses’ recollections of events is that she was determined to find Doe responsible for sexual violence,” Doe says, adding that Affel had an anti-male bias.

Doe also says Affel employed anti-Muslim bias when one of the witnesses brought up Doe’s Muslim faith, at which point Affel began to question the witness about Doe’s level of respect for women, Doe claims in the suit.

Affel finished the investigative report in July 2015. This was when the Title IX investigator’s determinations and case facts were not reviewed or aired at a hearing, but rather by a panel that based its decision on the investigator’s report.

That review panel found in September 2015 that a preponderance of the evidence suggested Doe had committed sexual misconduct, and it recommended a two-year suspension with mandatory counseling and psychological care. After an appeal, the suspension was reduced to one year. Doe’s suspension is noted on his transcript, according to the complaint.

Doe is demanding a jury trial and is asking the University for damages.

His attorney, Andrew Miltenberg, is the same lawyer who represented Paul Nungesser in a suit against Columbia University.

Nungesser is the Columbia student who was accused of sexual assault by Emma Sulkowicz, who famously carried a mattress around campus her senior year at Columbia after the University found Nungesser not responsible.

Miltenberg is currently representing another anonymous Cornellian in a federal court case that is now in mediation.