PHOENIX (CN) - Eight federal jurors found Arizona State University and former Athletic Director Ray Anderson not liable for retaliating against an employee soon after he reported assaults and sexual harassment by a donor.

Anderson fired David Cohen from his role as senior associate athletics director in August 2019, telling him at the time that he was "not a cultural fit" for the athletic department. But Cohen, who sued the university and its governing body in 2021 claiming retaliation and wrongful termination, says he received positive performance evaluations, annual bonuses and pay raises until he reported a wealthy donor for assault and sexual harassment at a basketball game in March 2019.

Cohen told Anderson that Bart Wear fondled his wife along with the wives of head basketball coach Bobby Hurley and assistant coach Ben Wood. Anderson told Cohen he would handle the situation, but for months he never addressed the incident with Wear or reported it up the chain of command. 

In a Phoenix courtroom last week, Anderson testified that he regrets not ordering Cohen to report the incident to the university's Title IX coordinator. 

"It was a mistake on reflection, because I should not have allowed them to avoid their responsibilities to report it," Anderson said.

At the time, Anderson didn't report the incident because the behavior didn't sound to him like sexual harassment, he said, but rather "inappropriate touching."

Weeks later, Wear joined Anderson on a two-day, university-sponsored golf trip, during which Anderson never confronted the donor. 

"That was a mistake," Anderson said last week. 

In the months following the incident, Cohen went back to Anderson twice for updates, disappointed both times that Anderson had done nothing. 

In June, Cohen said he received a letter from the university saying his annual bonuses are subject to Anderson's discretion. In July, Anderson removed swimming and diving from Cohen's administrative responsibilities. Then Cohen was told that he no longer reported to Anderson, but instead to Frank Ferrara, another associate athletics director.

"Ray, this really feels like retaliation," he recalled telling Anderson before a staff meeting in July. Human resources manager Kevin Salcido testified that he told Anderson not to fire Cohen for the same reason.

But on Aug. 15, 2019, Anderson did just that. 

Across six days of trial, attorneys representing Anderson and the Arizona Board of Regents laid out a laundry list of pre-2019 offenses that could otherwise explain Cohen's termination. Namely, the defense focused on a $690,000 check meant for ASU that Cohen put into his own bank account in 2017.

Cohen said Vivid Seats wrote the check to him rather than ASU by mistake, intending to purchase a chunk of football seats for resale. He said he deposited the check for safekeeping, and returned the money to Vivid Seats a month later with instructions to resend it to ASU. Defense attorney Rober McKirgan instead told the jury that Cohen clearly tried to invest or buy something with the money, and only returned it when unsuccessful.

Anderson said in his testimony that he "wasn't aware" of the incident at all. ASU only learned of the check in October 2019, when Cohen was already on administrative leave.

In the jury instructions, the jurors are asked to decide whether ASU would have fired Cohen if it had been aware of the check when it was cashed.

Cohen also sat on the board of Vivid Seats, taking home $20,000 that the university ordered him to donate to the Sun Devil Club.

In 2017, Cohen was privately reprimanded by the Pac-12 athletic conference for his behavior at a basketball game, in which he approached the officials more than once to complain about foul calls. But like the check incident, Cohen was never further admonished by Anderson or the university, and none of the mentioned incidents appeared in his otherwise stellar performance reviews. 

The university says Cohen should have bypassed his supervisor and reported the harassment directly to the Title IX office or the Office of Rights and Responsibilities. Salcido said Friday that Cohen would have been within his rights to do so, but fulfilled his reporting responsibility by alerting his supervisor. Former Title IX coordinator Jodi Preudhomme testified Wednesday that both Cohen and Anderson violated policy by not reporting the harassment to the correct office. Cohen said it would have been frowned upon to go around Anderson. 

Source: Courthouse News Service