Lawsuit: University of St. Thomas retaliated against woman who reported sexual misconduct

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The university denies the accusation. The complainant, a top administrator, said she received a lewd photo in an email from a colleague.

Houston Chronicle

16 January 2018

A new lawsuit from a University of St. Thomas administrator accused the campus of botching the investigation into a sexual misconduct allegation, encouraging her silence and retaliating against her after she reported receiving a nude photo from a colleague.

Siobhan Fleming, the university’s associate vice president for academic affairs, said in the lawsuit that she received the nude photo via email in 2015. She has now filed multiple complaints regarding the photo and how the university responded to her complaint, including Monday’s filing and an August lawsuit in county court that she later withdrew.

In August, she sued two colleagues who she said sent and received the email, Adam Martinez and Dominic Aquila. Martinez, a director of the college’s faith and culture program, sent the photo, Fleming said in the August filing. Aquila, then provost at St. Thomas, also received the email and told Fleming to delete it, Fleming says in Monday’s lawsuit.

Days after that August lawsuit was filed Aquila announced he would leave his position as provost but remain a St. Thomas employee, a decision he said at the time was “long in the making.”

Fleming has also filed complaints with the Department of Education’s Office for Civil Rights, the Texas Workforce Commission and the Equal Employment Opportunity Commission alleging retaliation and sex discrimination, according to Monday’s federal lawsuit.

Monday’s suit offers new allegations regarding the contents of the email she said she received and what occurred after she said she reported it. In it, she accuses St. Thomas and its employees of silencing her accusations, improperly investigating her report and paring back her job responsibilities after she complained.

The email, the lawsuit said, was an “obscene sexual photograph” accompanied by text that “she interpreted to suggest that (the sender) was masturbating at home and planned to come in later ‘to do as much of this as I can.'”

“The email and the image itself were highly disturbing for her,” said Alexander Zalkin, a California-based attorney representing Fleming. “What was more disturbing and cause for more distress was St. Thomas’ response.”

Richard Ludwick, St. Thomas’ president, said in a statement Tuesday through a spokesperson that the university was “surprised and disappointed to learn of the lawsuit.”

“University of St. Thomas’ internal investigation was conducted appropriately, and we had a third party, independent investigator,” his statement read. “We have confidence in that process. The university’s actions were appropriate in the investigation and the handling of the complaint. We did not retaliate.”

A University of St. Thomas spokesman declined to comment on a detailed list of questions about the lawsuit. Aquila and Martinez did not respond to emailed requests for comment.

The university, like others across the city, was closed Tuesday due to Houston’s weather.

The investigation

Fleming, a St. Thomas alumna who joined the university as an administrator in 2013, said in Monday’s federal suit that the university’s investigation into her report was a “sham.”

First, she said in the suit, Aquila encouraged her to “delete (the email) immediately and not tell anyone about it” when she talked to him about the photograph.

After she said she urged the university to investigate the email as a violation of the school’s sexual misconduct policy, she said Aquila told her that the email did not violate St. Thomas’ policies “because the sender did not intend to harass Dr. Fleming,” according to the lawsuit.

St. Thomas’ sexual misconduct policy names “distribution of pornographic material” as a form of sexual misconduct.

Under federal law, St. Thomas’ policy reads, most university officials who receive a report of sexual assault have to share that information for investigation.

“The University believes that no person should bear the effects of sexual misconduct, sexual assault, or related violence alone,” the policy reads. “When sexual misconduct, sexual assault or some form of related violence occurs, the university’s paramount concern is for the safety, health and well-being of those impacted.”

She said in the suit that shortly after receiving the email, she told her brother, then a board member, about the complaint. He alerted the board chair, who told then-President Robert Ivany about the complaint, she said in the lawsuit.

“Aquila confronted Dr. Fleming in her office and berated her for informing members of the board about the obscene image she received,” the lawsuit says. “Aquila told Dr. Fleming that he was trying to keep this from the Board, but now that they knew, St. Thomas would be forced to conduct an investigation.”

The university’s Title IX coordinator – an administrator named Randy Graham who is responsible for compliance with the federal nondiscrimination law – did not interview Fleming during the investigation, according to the lawsuit.

Graham told her that St. Thomas investigated the email as a potential violation of the university’s technology resources policy and “did not find any pornography” on the sender’s computer, according to the lawsuit.

“It became apparent that while all the men involved in the incident had been interviewed, she, the complainant and the only woman, had not,” the lawsuit reads.

The lawsuit says that when Fleming asked why St. Thomas did not investigate the allegation as sexual misconduct, Graham said Fleming did not report it as such. Fleming, however, said in the suit she asked the university to investigate the email as a violation of the sexual misconduct policy.

‘Completely isolated’

Fleming said in the lawsuit she was removed from her position on multiple committees, including the staff affairs policy committee and the president’s cabinet meeting group. St. Thomas leaders, she said in the lawsuit, directed colleagues and board members not to interact with her.

Her “job responsibilities have been reduced to virtually nothing,” the suit reads, and she has been “completely isolated.” The suit alleges that “Aquila’s and St. Thomas’ actions have been, and are, clearly intended to make Dr. Fleming’s work environment so unbearable that she resign.”

When she complained of retaliation in June, St. Thomas hired an outside firm to investigate but “did not offer any final report or relay the outcome of any investigation” after the investigation was completed in August, according to the lawsuit.

Lindsay Ellis writes about higher education for the Chronicle. You can follow her on Twitter and send her tips at lindsay.ellis@chron.com.

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St. Thomas provost to step aside amid lawsuit over alleged lewd email

Houston Chronicle Herald

Updated 11:16 am, Wednesday, August 23, 2017

Dominic Aquila said he will leave the provost’s position at the private Catholic university but will continue to work with home-schooled children and teach as a faculty member. His decision to step aside, he said in an email to faculty, has been “long in the making.”

Adam Martinez, associate director of the university’s Faith and Culture program, is accused in the lawsuit of sending an email that included a photo of male genitalia on Aug. 20, 2015 to Aquila, associate vice president Siobhan Fleming and a priest who leads Martinez’s department.

Aquila did not respond to requests for comment and Martinez declined to comment. St. Thomas officials said in a statement that they believe the men deny the allegations set out in the lawsuit.

Fleming, the university’s associate vice president of institutional assessment, filed the lawsuit Friday against Aquila and Martinez, accusing them of “extreme and outrageous” conduct.

“As a devout Catholic, I think it was very shocking to her, that this was going on,” said attorney David Tang, who is representing Fleming. “She’s got a lot of anxiety. This bothers her. You can’t un-ring the bell.”

St. Thomas lawyer Carter Crow of Norton Rose Fulbright said the university investigated in 2015 whether the incident broke policies including but not limited to sexual misconduct. Later, he said, St. Thomas took “appropriate action,” declining to specify any steps.

St. Thomas policy, which is available online, forbids “sex-based cyber-harassment,” “distribution of pornographic material” and “sexual intimidation and indecent exposure.”The lawsuit comes as universities nationwide are under tight scrutiny for how they handle allegations of sexual misconduct, a broad category that the Department of Justice has defined as sexual harassment, sexual assault, sexual violence and sexual exploitation.

Federal investigators are probing hundreds of campuses nationwide for allegedly breaking federal law that dictates how universities are required to respond to these allegations on campus.

And the issue has particular resonance in Texas. The federal Office for Civil Rights is investigating 14 complaints on 12 Texas campuses, not including St. Thomas. Multiple lawsuits accuse Baylor University of mishandling sexual assault complaints.

Resolution sought

Aquila, Martinez and Fleming are longtime employees of the university. Aquila has held top positions — including vice president for academic affairs and provost — since 2008. A university organizational chart on St. Thomas’ website shows he reports directly to the president.

Martinez has worked at the university’s Faith and Culture Center since 2009, according to his LinkedIn profile.

University publications say that Fleming is a St. Thomas alumna. She returned to the university as an administrator in 2013.

Crow, St. Thomas’ lawyer, said the university thought the matter was settled after it took action in 2015. Fleming renewed the complaint in June and the university tried to “get an amicable resolution,” Crow said.

“Ultimately that was not possible and Ms. Fleming decided to file,” he said.

Tang attributes the delayed filing to his client’s growing stress about the complaint, which he said “was eating up at her.” Over the last two years, Fleming has continued to work with both men but noticed a changed professional relationship with her colleagues, Tang said.

A university crime log indicates that a report was filed on June 23, 2017 of an obscene display or distribution from Aug. 20, 2015. Tang confirmed that the report describes the email in the lawsuit.

Though St. Thomas is a private university, its police reports are public records under state law.

When the Houston Chronicle submitted an open records request to obtain the police report, however, the university appealed the request to the Texas Attorney General, calling the information “highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person” and “of no legitimate public interest.”

That appeal is still pending.

‘Extra scrutiny’

As a Catholic university, St. Thomas includes moral standards as part of its mission statement and conduct code.

Faculty, staff and administrators, the university says, “should be ready to educate students about goodness, discipline (and) knowledge.”

The university says moral indiscretions including sexual activity are “moderate violations” of a student handbook.

Charissa Dvorak, an attorney at Spencer Fane law firm in Dallas who focuses on church and university responses to sexual misconduct, said it is challenging to create a campus culture that encourages reporting and investigation of sexual misconduct at religious universities.

“There is a lot of extra scrutiny for an institution that has a faith-based mission,” Dvorak said. “Many individuals and institutions rightly hold them to a higher standard.”

Responding to the added scrutiny, campuses and other institutions may attempt to keep allegations quiet, she said.

“Christian institutions and faith-based institutions have the opportunity to lead the way,” she said. “They miss out on that opportunity when they don’t speak out right away.”

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