San Jose State University agrees to pay $1.6M to students who alleged sexual assault by trainer, Justice Department says

By Jason Hanna and Stella Chan, CNN

San Jose State University will pay a total of about $1.6 million to some of the female students and student-athletes who alleged they were sexually assaulted or harassed by a campus athletic trainer over more than a decade, the US Department of Justice said Tuesday.

The payments are part of a settlement between the university and the Justice Department, reached after the department determined the school violated Title IX gender equity law by mishandling students’ allegations and allowing the trainer continued access to them.

The department did not say how many former or current students would be paid, or how many made allegations. But the agreement limits the payments — $125,000 each — to people who made their allegations during one of three investigations conducted since 2009.

The school says the Department of Justice offered that to 23 people — and 13 accepted the offer, which the school will pay. Thirteen payments of $125,000 each would total $1.625 million.

The school also violated Title IX by retaliating against two employees who raised concerns — including one who ultimately lost the job — the department concluded. The Justice Department’s deal requires the school to take certain steps in the workers’ employment records but does not stipulate financial compensation.

Starting in 2009, female student-athletes “reported that the trainer subjected them to repeated, unwelcome sexual touching of their breasts, groins, buttocks and/or pubic areas during treatment,” the department said in a news release.

The university mishandled a subsequent 2009-2010 investigation, in part by failing to reach out to all of the accusers, the department wrote in a findings letter. The school determined in 2010 the trainer violated no policy and allowed the trainer to continue working into 2020.

“As a result” of SJSU’s failures, “the athletic trainer continued to victimize students,” the department wrote in the findings letter, without saying how many were victimized.

“No student should be subjected to sexual harassment at a college or university in our country, especially by an employee who wields a position of power,” Assistant Attorney General Kristen Clarke said Tuesday. “With this agreement, San Jose State University will provide relief to survivors and transform its Title IX process to ensure accountability in its athletics program and create a safer campus for all its students.”

Though the trainer was told in 2010 not to treat female athletes, the trainer continued to do so because the prohibition was not enforced or communicated to athletes and coaches, the department said in the findings letter.

The trainer was temporarily suspended in 2020 over another allegation of inappropriate touching of an athlete during treatment that February, the Justice Department said. The trainer eventually retired voluntarily from SJSU, the department said.

A university employee shared concerns about the athletic trainer to the NCAA in November 2019, and the university began a new investigation the next month, the findings letter reads.

The Justice Department began investigating in June 2020, leading to Tuesday’s announcement of an agreement.

The university has said that it cooperated with the Justice Department probe, and that its own 2019-2021 investigation, conducted by an external investigator, came to similar conclusions.

“We thank all the individuals who courageously came forward during the investigations. To the affected student-athletes and their families, we deeply apologize,” a statement on the university’s website reads.

What the agreement offers students

The settlement with the Justice Department requires the school to take several steps besides the payments.

The university must try to contact all female athletes who were on its intercollegiate teams from August 2006 to August 2020, and invite them to report any sexual harassment by the trainer, the agreement reads.

If the school’s Title IX coordinator determines a former athlete’s complaint is substantiated, the school will offer:

• Up to 12 sessions of psychological counseling;

• Make-up classes to anyone who withdrew from, or earned a D or F in, an SJSU course if the sexual harassment contributed to that outcome;

• And access to a career counselor for up to one year for anyone wanting to consider career changes.

Current student-athletes reporting harassment by the trainer can discuss their options with the Title IX coordinator, including but not limited to the remedies offered to the former student-athletes, the agreement reads.

The $125,000-per-person payments, meanwhile, are limited to the people who made their allegations during either the 2009-2010 or 2019-2021 university investigations, or the Department of Justice probe.

Those who take that money release “any and all civil monetary claims” against the university relating to the trainer’s sexual harassment, according to the agreement.

The university also agreed to improve its process for responding sexual harassment complaints and enhance the role of the school’s Title IX coordinator’s role, among other measures.

What the feds said about employee retaliation

The Justice Department’s probe concluded that SJSU retaliated against two employees.

The first, called “Employee A” in the findings letter, prompted the university’s 2009 investigation by reporting students’ sexual harassment allegations; repeatedly raised concerns across the university about the trainer’s subsequent access to female student-athletes; and shared concerns to the NCAA in November 2019, the department wrote.

The NCAA referred the complaint back to SJSU for internal handling the next month, and “only then” did SJSU start its 2019-2021 investigation into the trainer, the findings letter reads.

Shortly after Employee A expressed concerns to the NCAA (and also to the Mountain West Conference in 2020), “SJSU admonished Employee A” and assigned that person “low performance evaluation ratings,” according to the findings letter.

“SJSU asserted that these adverse actions were because of unprofessional communications sent … to a coworker, as well as to a third party, not because of Employee A’s protected activity. However, Employee A’s communications focused on detailing Employee A’s ongoing Title IX concerns within SJSU athletics,” the findings letter reads.

So, the Justice Department “concluded that SJSU retaliated against Employee A for engaging in protected activity in violation of Title IX,” according to the letter.

The other worker — dubbed “Employee B” — was told by a supervisor to meet with Employee A in February 2020 “about allegedly insubordinate behavior toward a coworker,” according to the letter.

“Employee B raised a concern that taking action against Employee A would constitute retaliation for the employee’s complaints of Title IX violations,” the letter reads.

“Shortly thereafter, SJSU reduced Employee B’s job responsibilities and ultimately terminated Employee B,” according to the letter.

When the Justice Department asked the university why this happened, “its response was inconsistent with its own records and department interviews of SJSU employees,” the letter reads.

“The department … thus concluded that SJSU retaliated against Employee B in violation of Title IX,” according to the letter.

Regarding the department’s findings of retaliation, the university says that “allegations of retaliation are currently part of ongoing litigation and related investigations.”

“The university does not typically comment on details of pending litigation or other complaints by or against employees (including complaints of retaliation),” the school says on its website.

As part of the settlement with the Justice Department:

• The school’s president will “express appreciation, in writing, for Employee A’s efforts to protect student-athletes from sexual harassment by the athletic trainer” within 30 days.

• The school has revised the “needs improvement” ratings in Employee A’s 2019-2020 performance evaluation “to reflect his performance during that term.”

• The school has confirmed that Employee B’s personnel file “contains no document that negatively references protected activity under Title IX.”

• If the school is asked for employment references about either, the school will — consistent with university policy — provide only a name, dates of employment, last title held and compensation.

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