ATTORNEYS AT LAW

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September 25, 2023

Via Email
Alan Haller
Athletic Director
Michigan State University
haller@ath.msu.edu

Re: Notice to Mel Tucker Dated September 18, 2023

Dear Mr. Haller:

On behalf of Mel Tucker (“Tucker”), we write in response to your September 18, 2023,
letter entitled “Termination of Employment Agreement” (hereafter “Notice”). As you know,
Tucker has a serious medical condition. Hence, we reserve all rights to supplement this response
when he is medically cleared to assist us in fully responding to the Notice. In any event, the Notice
indicates that the University is terminating Tucker’s November 24, 2021 Amended Employment
Agreement (“the Agreement”) for “cause,” under Sections III.B.1(a) and III.B.1(c) of the
Agreement, but the University does not have “cause” to terminate the Agreement, and its proposed
termination is unjustified for several reasons. The University’s Notice adopts the allegations of
Brenda Tracy without any meaningful review of the facts.

First, Tucker did not breach the Agreement in any capacity, much less a material one. He
did not engage in unprofessional or unethical behavior or “moral turpitude” by any stretch of the
imagination. In fact, as discussed below, under Michigan law, assault and battery does not even
constitute “moral turpitude,” and the flimsy foundation of the University’s finding—a private
relationship involving mutual flirting and one instance of consensual phone sex—falls far short of
the mark.

Second, the University’s initiation and maintenance of an investigation into a personal

relationship between Tucker and a one-time vendor—despite no jurisdiction to do so—is the true
genesis of the University’s action. Tucker fully cooperated and told the truth in that investigation,
without reservation. If the University is “embarrassed” about Tucker’s truthful disclosure of
personal details, it flows from the impropriety of the investigation itself. If the University
investigated your private life or that of any other employee, it would certainly find something
“embarrassing” to presumably justify your or their termination. (Of course, that assumes the
University would apply to you or other employees the same bogus standard for “embarrassing”
terminable conduct that it applied to Tucker, as articulated in the Notice. While it’s likely that an
invasion of any employee’s private life would uncover something “embarrassing,” it is unlikely
the University would treat them as it did Tucker.)

Third, relatedly, it is the University’s failure to maintain the confidentiality of the

investigation, combined with Ms. Tracy’s public disclosure of the entire 1200-page investigation

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file,1 that has cast the University in a negative light. Tucker is just the fall guy for the University’s
negligence and misfeasance, the long history of which includes and predates the Nassar matter,
but which unfortunately has continued and tainted the University’s handling of this matter.

Fourth, as detailed to the University multiple times, and again detailed below, the
investigation itself was terribly flawed, unfair, biased, and devoid of due process. The Notice,
which is entirely premised on information you knew at least seven months ago, if not earlier, now
affirms Tucker’s belief that the investigation was never interested in the truth.

Fifth, the University’s proposed termination of the Agreement, without even waiting for
the results of the investigation designed to determine whether Tucker even violated any policy,
based upon information he provided seven months ago, and days after Tucker asked for FMLA
leave for a serious health condition, further demonstrates that there is no “cause” for termination.
Rather, the decision is pretextual and motivated by other reasons.

Accordingly, the University’s intent to terminate the Agreement early is itself a breach.
Future discovery may unearth additional objections to the University’s decision to terminate the
Agreement early on the false pretense of “cause,” but the information in this letter more than
suffices to dispute the purported grounds set forth in the Notice.

A. The “Facts” on Which the University Relies Are Disputed and/or Do Not Justify
Termination

The Notice section entitled “Undisputed Facts Warranting Termination for Cause” is a
misnomer. There, the Notice identifies either hotly disputed allegations or undisputed benign facts
that could not possibly justify termination. Indeed, if your statement were true, there would be no
need for OIE to have scheduled a hearing on the matter. We respond point-by-point in the chart
below:

Allegedly “Undisputed Facts” that “Justify
Termination for Cause” (Notice pp. 1-2)
“In July 2021, the University contracted with
an outside vendor (the ‘Vendor’) for the sole
purpose of providing a sexual misconduct
prevention educational program to the
University Football Team in order to prevent
and reduce instances of sexual misconduct.”
Response Establishing that These Facts Are
Disputed and/or Immaterial
That the University contracted with Ms. Tracy
for one event over two years ago may be
undisputed, but that fact does not justify
termination for cause.

1
Ms. Tracy claims that she released the 1200-page confidential investigation file to the national media
because an “outside party” leaked her name. To be clear, the file was not even completed until the investigator
completed her Final Investigation Report in July 2023. It is nonsense to suggest that “pre-releasing” the entire
confidential investigation file in response to a supposed leak of her name – which has yet to be substantiated – is
somehow warranted or justified, or somehow remediates the leak of her name.

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Allegedly “Undisputed Facts” that “Justify
Termination for Cause” (Notice pp. 1-2)
“The University supported the Vendor’s
message and her foundation, Set the
Expectation (STE), and the University
Football Team signed the STE pledge.”
“In April of 2022, the University’s Athletics
Department brought the Vendor to a Football
game at the University where she was made
an Honorary Captain of the University
Football Team and promoted the University's
relationship to STE.”
“In late November of 2022, the Vendor alleged
that you violated the University’s Relationship
Violence and Sexual Misconduct and Title IX
Policy [(‘RVSM’)]. The Vendor, an activist
against sexual violence and a gang rape
survivor, specifically alleged that you made
unwelcome sexual advances towards her and
masturbated on a phone call with her without
her consent.”
“In light of the Vendor’s complaints, the
University is conducting a thorough
investigation into her allegations under the
formal grievance process for prohibited
conduct pursuant to the University's
Relationship Violence and Sexual Misconduct
and Title IX Policy.”
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Response Establishing that These Facts Are
Disputed and/or Immaterial
This may be undisputed, but it does not
justify termination for cause. Moreover,
Tucker supported Ms. Tracy’s visit, message,
and STE, which further underscores that his
entirely separate personal relationship with
her was consensual.
This may be undisputed, but it does not
justify termination for cause. Moreover, it
was at Ms. Tracy’s prompting that she
became Honorary Captain. And bringing Ms.
Tracy in as Honorary Captain does not confer
some continued “vendor” status on her, as the
Notice implies. Do the former players often
brought in as honorary captains continue to
maintain their status as student-athletes? No.
Also, she was not paid for her appearance as
an Honorary Captain, but only received
reimbursement of travel costs.
This is not a “fact.” Calling Ms. Tracy’s
allegations against Tucker a so-called
“undisputed fact” is ridiculous. Tucker has
unequivocally denied making “unwelcome
sexual advances” toward Ms. Tracy and
masturbating “without her consent.” The
University’s treatment of Ms. Tracy’s
complaint as undisputed presumes guilt,
violating the RVSM, and renders the purpose
of a hearing utterly meaningless and a
mockery of the process. See pp. 8-11, below.
This too is clearly disputed. As Tucker has
repeatedly demonstrated, the “investigation”
has been flawed, incomplete, and biased from
the outset, and this entire house of cards,
including the Notice, relies on the false
premise that the University is authorized to
investigate this private relationship. Moreover,
the fact that the University intends to take the
strongest action possible, Tucker’s
termination, before a hearing or any
determination has been made demonstrates the
fraudulent nature of the investigation.

Allegedly “Undisputed Facts” that “Justify
Termination for Cause” (Notice pp. 1-2)
“You have made public comments on the
formal grievance process and University’s
policy.”
“During the course of the investigation, you
admitted to having ongoing discussions with
the Vendor about the Vendor providing
further sexual misconduct prevention training
to the University Football Team.”
“During the period where you both discussed
further STE presentations, and while married,
you admitted to the following behaviors:
 Commenting to the Vendor about her
looks, body, and body parts,
specifically her ‘ass’
 Making flirtatious comments to the
Vendor in conversations that you state
‘happened often’
 Masturbating and making sexually
explicit comments about yourself and
the Vendor while on the phone with
the Vendor, which you describe as
‘phone sex’ and ‘a late-night intimate
conversation’”
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Response Establishing that These Facts Are
Disputed and/or Immaterial
This may be undisputed, but it was only after
Ms. Tracy’s disclosure of the entire 1200-
page investigative file to the national media,
and it does not justify termination for cause.
See p. 8-9, below. The hypocrisy of this
justification and the double-standard
employed is illustrated by the University’s
public release of the Notice and its blessing of
Ms. Tracy’s disclosure of the file, after
Tucker’s two requests to investigate the leak
that went completely unacknowledged.
This is disputed. Tucker did not admit to
having “ongoing” discussions with Ms.
Tracy. He specifically identified a few
discrete discussions with her about the
possibility of future programming. She herself
could not specifically identify any “ongoing”
conversation about future programming. The
vast majority of their discussions were purely
personal, and the investigative file
unequivocally reflects this. The respective
staff carried out business discussions.
This is disputed. One, the mention of a
“period where you both discussed further STE
presentations” is false. As noted above, there
was no such “period.” Two, the three bullet-
pointed references have been twisted out of
context. The conversations Tucker had with
Ms. Tracy regarding her appearance,
flirtation, and phone sex, occurred exclusively
in their private lives, unrelated to either
Tucker’s work or her work, and were entirely
consensual. The University is ignoring that
the investigator found that Ms. Tracy and
Tucker had a “personal relationship,” in
which they shared “deeply personal and
private information with each other,” as well
as the actual status of Tucker’s marriage,
which was described to the investigator as
estranged for many years.
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In short, the Notice has manufactured a false pretense of undisputed “facts.” In so doing,
the Notice also assumes that the University has jurisdiction to investigate Tucker’s personal
relationship with Ms. Tracy, notwithstanding that we have adamantly disputed that the University
has had any right to invade Tucker’s privacy in this way. (See also pp. 7-8, below, regarding no
RVSM coverage.)

B. Tucker’s So-Called “Admitted Actions” Do Not Materially Breach the Agreement

Relying on this false pretense, the Notice goes on to claim that (its mischaracterization of)
Tucker’s actions constitute a material breach of the Agreement. (Notice pp. 2-3.) That is legally
wrong.

First, the Notice cites the Agreement’s requirement that Tucker “keep[] positive and
constructive in tone any public comments about University policies or actions taken by University
administrators[.]” While this suggests Tucker breached such an obligation, the Notice identifies
zero specific public comments that he made about University policies or actions, so it is impossible
to respond to this reference. Given the utter lack of support, we can only assume this is not a basis
for Tucker’s unjust termination. (See Section III.B.1 of the Agreement, requiring notice of specific
grounds for early termination.) In any event, Tucker’s public comments about the RVSM have not
been negative; we have only disputed the RVSM’s application to Tucker. And the Agreement does
not prohibit Tucker’s public comments about the “grievance process”—comments he made only
in response to Ms. Tracy’s improper disclosure of the entire 1200-page investigation file to
national media, and after the University ignored Tucker’s request to investigate the leaks. Nothing
in the Agreement requires Tucker to stand by and watch as his reputation and career are maligned
based on allegations that should not trigger coverage under the RVSM. Indeed, the RVSM itself
provides Tucker the explicit right to contest coverage, to raise concerns about bias, and to defend
himself. Finally, to the extent that Tucker’s defense of his reputation by providing truthful
information is the basis of the University’s action, it violates the First Amendment, public policy,
and the University’s commitment to transparency.

Next, the Notice manipulates and overlooks facts to accuse Tucker of not conducting
himself “professionally and ethically . . . at all times.” (Notice p. 3.) Initially, Tucker’s contractual
obligation to act professionally and ethically relates to his employment duties. (See Agreement
Section I.C.15.) The Notice ignores this language. In particular, the Notice states it is
unprofessional and unethical to flirt, make sexual comments, and masturbate on the phone with
Ms. Tracy late at night. None of this “conduct” has anything to do with Tucker’s employment
duties. Regardless, he did act professionally and ethically at all times. It is not unprofessional or
unethical to engage in intimate acts, off duty, with another adult, just because that adult provided
services one time to the University. By that logic, the University must be inspecting the sex lives
of its faculty and staff who are married to, or in relationships with, other faculty and staff. By that
logic, no one can ever start a relationship with anyone they met through work, even if it was just
at a one-time work assignment or function! The University cannot support this absurd position.

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The Notice also absurdly emphasizes the word “extramarital”—as if the University can
play marriage counselor or some religious authority. As indicated in the 1200-page investigative
file leaked by Ms. Tracy to the national media, Tucker had long been estranged from his wife
during the relevant period here. They have been effectively separated for years. Does the
University now prohibit consensually open relationships? Does it ask its employees to abstain from
any flirtation or sexual activity until divorce paperwork is signed? Will the University investigate
the private lives of every University employee who is separated or obtaining a divorce to make
moral pronouncements to justify terminations? No, Tucker signed an Agreement requiring him to
act professionally and ethically. He did that. Separate and apart from Tucker’s duties as head
coach, he developed a deep personal relationship with someone he just so happened to meet
through work, and the Notice’s attempt to call that unprofessional and unethical is unsupportable.
Any reliance on Section I.C.15 to terminate his Agreement early is itself a breach of the
Agreement.

C. Tucker’s “Admitted Actions” Do Not Constitute “Moral Turpitude”

The Notice relies on the same manufactured “justifications” for finding “unprofessional”
and “unethical” behavior to claim that Tucker’s “admitted conduct also constitutes ‘moral
turpitude.’” (Notice p. 3.) For the same reasons that destroy the University’s position on
unprofessional and unethical behavior, outlined above, the University cannot support a finding of
“moral turpitude.” Indeed, the examples of actual moral turpitude mentioned in the Agreement—
such as “impropriety involving a student”—highlight this reality. In ruling that assault and battery
does not constitute “moral turpitude,” the Michigan Court of Appeals defined the term as follows:

‘Moral’ is defined as ‘of or relating to principles of right and wrong

in behavior.’ Merriam-Webster’s Collegiate Dictionary (11th ed).
‘Turpitude’ is defined as ‘vile or base character’ or a ‘vile or
depraved act.’ Random House Webster’s College Dictionary (1996).
Black’s Law Dictionary (10th ed) defines ‘moral turpitude’ as
‘[c]onduct that is contrary to justice, honesty, or morality; esp. an
act that demonstrates depravity.’

Lakin v Rund, 318 Mich App 127, 138; 896 NW2d 76 (2016).

If assault and battery does not constitute moral turpitude, Tucker’s behavior does not even
approach this standard. Striking up a friendship with someone after meeting through a one-time
work event is not moral turpitude. Developing a deeper personal relationship with that person
outside the workplace is not moral turpitude. Eventually engaging in mutual flirtation and sexual
activity with that person outside the workplace is not moral turpitude. In other words, Tucker’s
relationship with Ms. Tracy does not constitute moral turpitude. To accuse Tucker of admitting to
conduct that amounts to “moral turpitude”—when the only thing he admitted to is an entirely
consensual adult relationship—is the University’s improper, post-hoc attempt to evade its
obligations under the Agreement.

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Moreover, the notion that the University actually believes that Tucker acted
unprofessionally, unethically, or with moral turpitude is further undermined by the fact that the
University knew about the so-called “admitted conduct” for several months before suddenly
deciding to terminate the Agreement. (See also pp. 9-10, below, regarding the suspect timing of
the Notice.) This is nothing more than the schools’ knee-jerk reaction to negative publicity brought
on by Ms. Tracy’s release of the 1200-page investigation file to the national media.

D. The University’s Improper Investigation Led to This Unjustifiable Decision

The University has never had coverage under the RVSM to conduct this type of
investigation. The “Coverage Determination” provision is part of the RVSM section governing
“Initial Assessments.” Under RVSM Section XII.F.2, the complaint “must be dismissed if the
conduct alleged does not meet all of the coverage requirements in Section XII.E.1 and/or the
allegations would not, even if proven, meet a definition of prohibited conduct.” (Emphasis in
original.) As we have repeatedly stated (including though an expert witness2), the University was
required to immediately dismiss the complaint pursuant to this RVSM language. But the
University time and again ignored our jurisdictional objections, instead moving the goal posts to
keep the baseless investigation alive:

 The University was from the outset evasive in determining and communicating about
jurisdiction. For example, the University “accidentally” suggested that this matter
involved Title IX-prohibited conduct, then retracted that suggestion based on our
objection, but failed to explain why it was ever suggested or on what basis it was
retracted.

 Likewise, the University never explained how it could so readily dismiss any notion of
Title IX prohibited conduct, and yet doggedly maintain the finding of alleged RVSM
prohibited conduct and RVSM coverage. In truth, there’s no RVSM coverage just as
there is no Title IX coverage, but that reality apparently did not satisfy the University—
perhaps because it would not have offered the pretextual path to early termination.

 The University has also shifted its rationale on coverage: first indicating that there were
two bases for finding coverage under the RVSM, then eliminating one but keeping the
other. Specifically, the University initially maintained that it could investigate Tucker’s
private life upon “finding” that his personal relationship with Ms. Tracy occurred in a
University-sponsored program or activity. (It did not, as detailed above.) The
University also initially maintained that it could investigate Tucker’s private life
because the alleged conduct had some (unarticulated) continuing effect on the
University. Apparently recognizing how ludicrous this sounded, the University

2
See attached as Exhibit 1 the report of Brett Sokolow, who wrote the model policy on which the RVSM is
based and who has been involved in over 1,000 University sexual misconduct investigations as an investigator, trainer,
consultant, expert, advisor, decision-maker, appeal decision-maker, Title IX administrator and attorney.

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dropped the “continuing effects” act after our multiple objections to jurisdiction. But it
still refused to acknowledge that there is no legitimate basis to find that Tucker’s
personal relationship with Ms. Tracy had anything to do with the University. So the
University plowed forward with the investigation, as we have said, like “Big Brother,”
reviewing and judging the private life of Tucker.

The University’s inability to get its story straight on coverage is even more telling now—
with the benefit of 20/20 hindsight that the University manufactured a reason to terminate the
Agreement early based on its manufactured reason to investigate Tucker in the first place. By
extending the reach of the RVSM to a purely personal relationship between two consenting adults,
the University permitted the RVSM to become limitless ticket into Tucker’s private life. Now,
having forced Tucker to divulge intimate details about his personal relationships and life, the
University cries “embarrassment.” And it does so without even completing the RVSM
investigation or making any credibility determination. The hypocrisy of this set-up is stunning.

E. Tucker’s “Admitted Actions” Did Not Bring Public Disrespect, Contempt, and
Ridicule Upon the University—the University Brought That on Itself

In a similar vein, the Notice’s reference to Tucker’s conduct bringing “public disrespect,
contempt, or ridicule upon the University” is no more than an attempt to scapegoat him for the
University’s own botched handling of this matter. The public reporting on this matter, including
the articles referenced in the Notice (p. 4), stems entirely from the University’s initiation and
maintenance of this investigation despite the utter lack of coverage (detailed above), as well as the
University’s subsequent failure to maintain the confidentiality of this investigation in violation of
the RVSM (detailed below).

Namely, Section IX of the RVSM provides:

The University will seek to protect the privacy of parties in

compliance with applicable laws and regulations. The University
will keep private the identity of any individual who has made a
report or formal complaint of prohibited conduct under this Policy;
the identity of any claimant; the identity of any respondent; and the
identity of any witness. The privacy of information exceptions
include disclosures that may be permitted by the Family Educational
Rights and Privacy Act (FERPA) statute or regulations, are required
by law, and/or are necessary to carry out the purposes of this Policy
(including providing supportive measures, interim measures, any
initial assessment, investigation, hearing, and/or appeal). Reports,
including the identities of the parties and the reported conduct, may
be referred to other units for consideration under additional
University policies.

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The University failed to ensure this paramount protection. In fact, it knew about leaks of
the investigation well before Ms. Tracy’s disclosure went public, yet did nothing to address them.
Specifically, after the University received several FOIA requests for investigations about Tucker,
we demanded an investigation into information leaks, twice in writing, on August 2, 2023, and on
August 25, 2023. The University never responded to these requests and took no action whatsoever.
Shortly after the University ignored Tucker’s pleas, Ms. Tracy’s USA Today article hit the national
press. Through her lawyer, she claims only to have gone public because of a leak of her identity
by some outside third party. Perhaps if the University had acted in response to Tucker’s concerns,
the University would not be in this mess. That’s not on Tucker. This is just another example of
how the University has been biased against Tucker and pandered to Ms. Tracy.

Although the University had ignored our repeated demand for an investigation into the
leaks, it promptly initiated an investigation by an outside law firm only after Ms. Tracy’s lawyer
complained. Suddenly, the University has changed its tune, sprung into action, stating in a press
release on September 18, 2023:

Michigan State University has contracted with an outside firm,

Jones Day, to conduct an investigation into alleged breaches of
confidentiality by MSU officials and others in an ongoing Office for
Civil Rights case in which Mel Tucker is the respondent. The
process of commencing the investigation began on Sept. 12.

Confidentiality in Office for Civil Rights cases is paramount. The

university investigation will be thorough, and the outside firm will
follow the facts wherever they may lead.

This newfound desire to protect confidentiality came on the heels of a Trustee’s statement
that “[w]e need to do everything in our power to ensure victims of sexual assault and abuse can
come forward without fear or intimidation and have full confidence their identities and private
information will be kept confidential.” This double standard is yet another example of bias in the
University’s handling of this matter. So too is the University’s decision to release the Notice to the
public—essentially announcing a “guilty” verdict with capital punishment prior to the scheduled
hearing. Thanks to that decision, the media and public have been inevitably further influenced (to
Tucker’s detriment) in what should have been a confidential process.

Regardless, the University’s present situation is of its own making and of Ms. Tracy’s
making. The attempt to blame Tucker for the University’s failure to maintain confidentiality is not
a legitimate basis on which to terminate the Agreement early. If it were, any University employee
who cooperates with an investigation by telling the truth about the nature of their relationship with
a one-time University affiliate is on the hook for the University’s failure to enforce its own policies.
Indeed, any University employee who has flirted with or engaged in mutual sexual activity with a
colleague should be on alert that public dissemination of that information, outside of their doing

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or control, is grounds for termination for cause. That makes no legal or logical sense, and won’t
hold up in court.

F. The Suspect Timing of the Notice Underscores the Lack of “Cause” and Violates Law.

The suspect timing of the Notice further underscores its illegitimacy and is contrary to law.

First, the Notice came just days after Tucker requested FMLA for a serious health
condition. On September 17, 2023, the University cursorily denied that request as “unnecessary”
in light of Tucker’s suspension, even though the FMLA sets forth specific permissible bases for
denial of leave, and that’s not one of them. See 29 CFR § 825.100 et. seq.3 Apparently, the
University did not care about processing his leave request because it knew the next day, September
18, it would send the Notice. The fast track to termination following Tucker’s assertion of rights
under the FMLA is retaliatory. As mentioned in earlier correspondence, the University’s own
FMLA FAQ website indicates that it “is prohibited from interfering with, restraining, or denying
exercise of (or attempts to exercise) any rights provided by the [FMLA]” and such interference
“would include refusing to authorize FMLA leave, discouraging an employee from using such
leave, or manipulation to avoid responsibilities under FMLA.” See also 29 U.S.C. § 2615(a)(1).

Second, the University knew about the information on which it supposedly relies to
terminate the Agreement since at least March 2023. (The complaint was filed in December 2022.)
Yet only after Ms. Tracy (and potentially others) leaked the 1200-page confidential investigation
file to the national press, did the University suddenly decide this same information warrants
termination. The University is punishing Tucker for its failure to abide by its own confidentiality
rules and for Ms. Tracy’s leak, which also ran afoul the University’s principle of confidentiality.

Third, the University cut off any semblance of interest in the truth or due process by
terminating Tucker two weeks before the scheduled hearing, which, as Tucker indicated in his
public refutation of the Notice, is another about-face. In your press conference on September 10,
2023, you suggested that the University was suspending Tucker as an “interim measure” and
“while the investigation continues.” Yet on September 18, 2023, with no new information, the
University moved to terminate him. While the Notice pretends that the “University remains
committed to the full and fair processes,” including the previously scheduled hearing (Notice p. 5),
reality says otherwise. There is now zero point to the hearing when guilt and the most stringent
sanction (termination) has already been levied and announced to the public at large. That mootness,
coupled with the irreparable damage that the University and Ms. Tracy did to the integrity of any
potential hearing, which was itself designed to be unfair, forced Tucker again to seek to dismiss this
matter. Indeed, the University has essentially rubber-stamped Ms. Tracy’s credibility, which should
not have yet been determined, and then used that premature assessment to terminate Tucker’s
employment.

3
The University made the determination that it was “unnecessary” without even requesting any
documentation that would support the FMLA request.

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Thus, the Notice has it exactly backwards. According to the RVSM, there is a “presumption
of non-responsibility” under which a “respondent is presumed to be not responsible for the reported
conduct until a determination regarding responsibility is made at the conclusion of the applicable
formal grievance process. The presumption may be overcome only where a preponderance of the
evidence supports a finding that the respondent is responsible for violating this Policy.” (RVSM
Section XIII.A.3.) The Notice denies Tucker this right.

None of this mistreatment is terribly surprising given the biased backdrop of the
investigation. The Notice marks the grand finale of what has been a flawed, legally deficient, and
unfair investigation from the start. For example:

 The investigator repeatedly demonstrated bias in favor of Ms. Tracy. As detailed in

Tucker’s objections throughout this process, such bias included disparate treatment in
questioning, in report communications, in handling responses to her reports, and in the
writing of reports themselves.

 The investigator also included inappropriate information in the investigation record,

particularly by referencing confidential settlement discussions that Ms. Tracy and her
advisor improperly shared. Indeed, the investigator and Ms. Tracy’s advisor (both
attorneys) violated professional ethical rules and norms in this regard. Then, to
“address” the massive breach, the investigator spoke secretly with Ms. Tracy’s advisor
about a “solution.”

 The investigator failed to ask questions that we specifically outlined as crucial to

discovering the truth, and to assessing credibility, including but not limited to questions
for a key witness who, during the pendency of this investigation, died, and who thus
cannot now provide critical information about Ms. Tracy’s credibility (or lack thereof).
The investigator did not even request from that key witness messages that she
exchanged with Ms. Tracy regarding the matter. Didn’t the investigator want to know
what really happened? Why did she not only take Ms. Tracy’s side of the story at face
value but also put that story on a pedestal? Tucker is now paying the price for this
truncated and inept investigation.

Notwithstanding these major failures, Tucker fully cooperated with the investigation. He
participated in hours of interviews (with no time limits), never refusing to answer any question.
Tucker tolerated inquiries into the most deeply private aspects of his life to show the University
how fundamentally wrong this investigation is. Yet, these efforts were met with artifice, bias, and
intractable conclusions of coverage and responsibility. Ultimately, the ongoing deficiencies that
have plagued the investigation from the outset bolster the conclusion that University has ulterior
and threatening motives here.

11
4864-1850-5346
 ATTORNEYS AT LAW
500 WOODWARD AVENUE, SUITE 2700
DETROIT, MI 48226-3489
313.234.7100 TEL
313.234.2800 FAX
WWW.FOLEY.COM

G. Conclusion

The University does not have “cause” to terminate the Agreement early. By doing so, it is
in breach of the Agreement. The above reasons are more than sufficient to refute the grounds for
early termination set forth in the Notice. We sincerely hope the University will take them seriously,
if not because it cares about Tucker’s rights, then because it cares about the limitless liability it
will face over the private lives of its thousands of employees and faculty.

Sincerely,

s/Jennifer Z. Belveal

Jennifer Z. Belveal

s/John Birmingham

John F. Birmingham Jr.

cc: Mel Tucker

Brian Quinn (via email)

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4864-1850-5346
EXHIBIT 1
 EXPERT REPORT
Investigation re: BT/MGT

CONFIDENTIAL

May 22, 2023

REPORT BY:

BRETT A. SOKOLOW, J.D.

CHAIR, TNG Consulting, LLC

1
Table of Contents
QUALIFICATIONS AND EXPERIENCE ......................................................................................................................... 3
THE COMPLAINT FILED AGAINST MGT MUST BE DISMISSED .................................................................................. 4
THERE IS NO COVERAGE UNDER THE RVSM POLICY .......................................................................................................4
THE ALLEGED CONDUCT WOULD NOT VIOLATE THE RVSM POLICY ..................................................................................10
CONCLUSION ....................................................................................................................................................... 12

2
QUALIFICATIONS AND EXPERIENCE

I currently serve as Chair of the TNG Board of Directors and the TNG Management Committee. I
received my Juris Doctorate in 1997 from the Villanova University School of Law. I am licensed to
practice in Pennsylvania and New Jersey. I have a B.A. in International Studies from the College
of William and Mary, which I received in 1993.

I have been a consultant to the education field since 1997. I founded TNG (formerly The NCHERM
Group, LLC) in 2000. Today, it is one of the largest education-specific law and consulting practices
in the country. TNG currently serves as legal counsel to more than 60 colleges, universities, and
school districts, and has served more than 400 since its inception. TNG consults with more than
500 colleges and schools each year.

I have served as a guest speaker/educator for students on alcohol, sexual assault, hazing, and risk
management to over 2,200 colleges and schools, and have provided risk management consulting
and/or legal services to the administrations of more than 4,000 colleges, universities, schools,
fraternities, sororities, chapters, governmental agencies, and military institutions. I have
consulted on litigation, liability, negligence, foreseeability, special relationships, duty of care,
supervision, school safety, threat assessment, event management, student organizations risk
management, risk mitigation, insurance, FERPA compliance, ADA, Section 504, Title IX, Title VII,
Title VI, Title IV, the Clery Act, state law, 1st Amendment, academic freedom, search and seizure,
admissions, and dozens of other areas impacting education law.

I have been involved with more than 1,000 school and campus sexual misconduct cases as an
investigator, trainer, consultant, expert, advisor, decision-maker, appeal decision-maker, Title IX
administrator and attorney. I have previously served as the President of ATIXA, the Association
of Title IX Administrators, and currently serve as the Chair of the ATIXA Advisory Board. This
association is the primary professional development venue for Title IX in the United States, with
more than 11,000 members. ATIXA provides certifications to administrators responsible for
coordination of Title IX compliance. ATIXA has certified more than 65,000 Title IX Coordinators
and Civil Rights Investigators since 2011.

I have written codes of conduct for more than 200 colleges, universities, and schools and have
done extensive policy and handbook development for school districts and colleges across the
country. The ATIXA Model Sexual Misconduct Policy is in use by hundreds of colleges and
universities, has been approved by the US Department of Justice and has been accepted to
resolve complaints by the US Department of Education’s Office for Civil Rights (OCR). I have
provided hearing panel training to boards and administrators on more than 1,000 college and
university campuses in the US and Canada.

I have authored fifteen books and more than 100 articles in my field, including “College and
University Liability for Violent Campus Attacks” published in the peer-reviewed Journal of College
and University Law in April of 2008, and five other peer-reviewed journal articles in various
publications. I have presented at well over 100 state, regional, and national conferences,

3
including dozens of keynote addresses. From November 2021 to February 2023, I served as the
Acting Title IX Case Manager for Connecticut College.

Through my experience as an attorney and consultant to colleges, universities, and schools, I

have developed a special expertise in sex discrimination, sexual harassment and misconduct, and
negligence related to institutional creation and remediation of hostile environments.

Based on my unique qualifications as a frequent author and interpreter of college and university
Title IX and sexual misconduct policies, I have been asked to offer an opinion related to a pending
investigation against MSU Employee, MGT, based on allegations brought forth by an unaffiliated
vendor who once provided services to MSU. I offer my opinion as an expert on behalf of MGT,
and note that sections of MSU policy are copied from or adapted from model language and
templates that I have written, giving me unique insight into how we intended for them to be
applied.

THE COMPLAINT FILED AGAINST MGT MUST BE DISMISSED

I was asked to opine on this simple question: Does a university properly exert jurisdiction over an
allegation of a hostile environment/sexual exploitation brought forth by a former vendor who
has nothing more than a previous, one-time day-long contract with the university, when the
alleged conduct occurred off-campus and entirely outside the parameters of that contract?

In reviewing the Draft Investigation Report1 (Draft IR), Michigan State Policies and Procedures,
and drawing on my years of experience and knowledge related to Title IX case law, governing
regulations, and other civil rights law, any reasonable reading of MSU’s policies does not give it
jurisdiction over such a claim brought by a vendor in those circumstances. Further, the exercise
of such jurisdiction in contravention of RVSM Policy would be unlawful, and could subject the
University, as a public entity, to significant exposure in cases where this flawed approach is used.
As such, it is my opinion that MSU is required by RVSM Policy III(E)(2) to dismiss this complaint
and cease the investigation. Specifically, the alleged conduct did not occur on-campus or lead to
continuing adverse effects for any University-sponsored program or activity and the alleged
conduct, even if proven, does not meet any RVSM definition of prohibited conduct.

THERE IS NO COVERAGE UNDER THE RVSM POLICY

BT is not an employee of the institution or affiliated with MSU. BT is a vendor that provides her
services as a speaker to male athletic programs at colleges and universities. In this capacity, BT
was brought in as a speaker for a less than half day training for the MSU football program in
August 2021.2 BT met MGT through a non-affiliated acquaintance prior to this engagement.

1
I was provided with the Draft IR report pursuant to a non-disclosure agreement and only for the purposes of
providing assistance to MGT and rendering this report.
2
Draft IR, Attachment 7

4
Beyond the original introduction, the record reflects that BT and MGT had very little direct
communication about the speaking engagement and the logistics were delegated to staff working
for BT and MGT. After BT’s August 2021 engagement, there was no further contract for BT to
continue providing services to MSU, and thus no continuing relationship between BT and MSU’s
educational programs.

Despite this one-day engagement, OIE, through the Investigator, has determined that coverage
exists under MSU’s RVSM policy. The Investigator has incorrectly determined that BT and MGT’s
personal relationship ‘comingled’ or ‘intermingled’ with BT’s role as one-time vendor so much so
that their entire friendship falls within the long-arm of MSU’s jurisdiction. The investigator goes
on to determine that even if the behavior falls outside of MSU’s programs and activities (it does),
OIE has jurisdiction because MGT’s actions, through a series of illogical leaps, led to continuing
adverse effects for MSU’s football program (it didn’t). Those determinations are not only contrary
to what the RVSM policy says, but create a slippery slope of problematic precedent for MSU.

MGT AND BT DEVELOPED A RELATIONSHIP SEPARATE FROM ANY MSU PROGRAM OR ACTIVITY
Over the several months following BT’s one-time speaking engagement, BT and MGT exercised
their constitutional associational rights to form a friendship outside of MSU (even employees can
have external friendships that are unrelated to work) and they engaged in many lengthy phone
calls, spoke via video call, and exchanged numerous text messages. A few of these conversations
were related to ways that MGT and MSU could support the work BT was doing, but this was
related to her business, not MSU’s program. BT was recognized at MSU’s 2022 spring football
game and there was discussion of having her return to MSU sometime later in a contractor
capacity, but mere contemplation of a future presentation does not mean that BT was
participating in MSU’s education program at all times between contractual engagements, and
the record is clear that on the date of the spring football game, no conduct occurred that would
fall within either policy section MGT is charged with violating. She was simply an honored guest
at an MSU game, not a participant in its educational program. There is no contract or evidence
of any payment related to this event.

Many (most) of the conversations between the parties over this time period were not related to
BT’s single-day professional relationship with MSU in 2021 and instead were personal
conversations between BT and MGT, including discussions related to each parties’ relationship
status, various aspects of their personal lives, and instances where MGT bestowed gifts upon BT.
They occurred many months after any contract was in place, and any suggestion by MSU that the
contractual status created an ongoing protected status for BT would be absurd, because it would
carry the implication that any vendor who contracted with MSU for any purpose, however
fleeting, would be forever thereafter protected by its policies.

The taking of jurisdiction by MSU over BT’s complaints is an unsettling and illogical determination
when considering that the bulk of the conversations were neither part of nor about MSU’s
programs and BT’s statement indicates that even when the conversations had a dual-purpose,
she was able to detect when the conversation changed from professional to personal. Even if the
conversation was professional, conversations in contemplation of a potential for an agreement

5
do not necessarily take place as part of the educational program, but in contemplation of
participating in the program. So, to offer an apt analogy, this would be similar to MSU imposing
its Code of Student Conduct on an applicant for admission for behaviors that occurred pre-
admission after making a visit for a campus tour.

EXPANDING JURISDICTION IN THIS WAY WOULD BE UNPRECEDENTED AND PROBLEMATIC

MSU’s RVSM and Title IX policy, by its own terms, only applies to conduct occurring within MSU’s
program or activity, and yet, OIE has determined that these personal conversations somehow
are covered. If it is MSU’s intent to assert that it has jurisdiction over the private actions of all its
employees outside of work at all times, it will be very difficult for MSU to prove a programmatic
nexus for all such activities. Any such policy or interpretation would be overbroad and
unprecedented. To my knowledge, no public university has ever attempted or succeeded in
claiming such broad jurisdiction for its policies and procedures.

This standard, much higher than even the standard for vicarious liability for tortious conduct,
runs the risk of creating a slippery slope that MSU would be liable for misconduct committed by
employees any place, any time. If this is not the intention behind the RVSM policy, why has OIE
gone to such lengths to avoid distinguishing the conduct between what is tied to MSU and what
is not? The investigator is far too facile in arguing that the personal and professional conduct of
the parties was comingled or intermingled. This is both a biased and false standard (which is not
defined or even found within the RVSM), given that there was no relationship of any kind ongoing
between MSU and BT at the time of the alleged policy infractions.

Thus, the issue is nexus of MSU interests and its program, not whether the parties had both
professional and personal conversations. Otherwise, anyone engaged in contemplation of future
work with MSU, regardless of whether that work comes to fruition, could claim the protections
of this policy. Is it MSU’s intent to give standing and jurisdictional protections to the thousands
of vendors IT DOES NOT select each year? If that is in the intent of the RVSM policy, why does it
not just say so? Why offer criteria for long-arm jurisdiction when the actual policy seems to be
full coverage of all off-campus conduct with a former or potentially future vendor, all the time,
forever?

If it is MSU’s intent to extend the long-arm of its jurisdiction in this way, MSU should contemplate
the effect that may have on the privacy rights and expectations of its employees as well as its
potential liability for the actions of its employees on their own private time, off-campus. If
policies govern all employees at such times, then employees are arguably 24/7 agents of MSU.
Thus, all liability for their actions while off-duty could be vicariously attributed to their employer,
MSU. That would include liability that may result from any lawsuit BT might file against MGT and
MSU. MSU would be obligated to assert all defenses to such a lawsuit, including that MSU did
not control MGT at the times of the alleged off-campus acts. Is MSU acknowledging now that it
had such control? If so, how far does that go? Can an employee never have phone sex? Only with
another non-employee or non-vendor? Can they view pornography? Have an extra-marital
affair? How far does MSU intend to go in policing the private conduct of its employees, and how
does it expect its 20,000+ employees to react when they find out that they no longer have private

6
lives outside the reach of their employer? How will MSU manage the glut of complaints that flood
in once this becomes known, asking MSU to police employees wherever they go and whatever
they do, including alleged instances of shoplifting, speeding, DUI, check kiting, acts of fraud,
misrepresentation, etc.

The Investigator’s Determination MISCONSTRUES MSU’s Policies

The OIE determination of jurisdiction has been oddly delegated to MSU’s investigator, who may
not be in the best position to decide a coverage issue of this magnitude on behalf of the
university. Her determination indicates that MSU bears responsibility for all acts committed by
an employee, 24/7, whether they occur within the scope of their employment or not. Does MSU
intend to investigate what employees watch on their personal cell phones, at home, the same
way they might monitor websites accessed on a work device? If not, why would the institution
police MGT’s phone calls at a hotel after MGT was no longer ‘working’ (if he ever was)? Simply
put, does the investigator have the authority to determine on behalf of MSU that an employee is
never off-duty?

As part of the coverage determination, it is stated that the behaviors were viewed by “OIE as
occurring largely in the context of BT’s role as a vendor for the University.” This would make
sense if the alleged misconduct occurred whilst BT was executing her obligations as a vendor, but
none of the alleged misconduct occurred until after BT’s speaking engagement occurred. Is that
all it takes for someone to avail themselves, permanently, of the protections of MSU policies?
Provide a single day of services? This provides MSU vendors with more protections than actual
employees are provided by the EEOC and federal civil rights laws such as Title VII, and of course,
those protections are not even afforded to non-employees, like vendors.

On its face, the OIE determination, made by the Investigator, that BT can avail herself of this
policy sets a dangerous precedent, does not align with the policy itself, and seems to be a result
of either fear or laziness – fear of not taking action, or an indolent approach in refusing to do the
work to separate the numerous personal conversations from the few work conversations. MGT’s
submission in response to the investigation report parses this out, to save the investigator the
trouble of having to do so. Still, OIE has quixotically determined that even if the conduct did not,
in fact, occur outside of the context of BT’s “role as a vendor” that the policy still applies because
it caused adverse actions throughout the football program. This too is a decision reached only by
ignoring the details, and odder-still, provokes the question of what standing BT has to file a
complaint on behalf of a supposedly-harmed football program?

In order for the University to exert jurisdiction on off-campus conduct, there must be ‘continuing
adverse effects’ for the campus or a University program or activity. In delegating this
determination to the Investigator, MSU has allowed for this standard to be misconstrued. The
actual language used by MSU to describe the limited instances where the RVSM and Title IX policy
might cover conduct occurring outside of a University program or activity states:

7
 Off-campus and outside of a University-sponsored program or activity but the
conduct has continuing adverse effects on the campus or on a University-
sponsored program or activity. 3

The policy goes on to explain, “Prohibited conduct may have a “continuing adverse effect” if it
causes or threatens to cause a substantial negative impact on the safety of the University
community or the functions, services, or property of the University. This would include, but is
not limited to, causing an unreasonable interference with the educational or work environment
of a member or members of the University community or on the campus generally (emphasis
added).”4

Yet, the Investigator has attempted to modify the meaning of MSU’s policies. In the Draft IR,
when attempting to explain the nonsensical determination that coverage exists under the
RVSM policy, the Investigator added additional language to this section:
Continuing adverse effect is considered the cause or threat to cause a substantial
negative impact on the safety of the University community or the functions,
services, or property of the University. This would include, but is not limited to,
causing an unreasonable interference with the educational or work environment
of members of the University community. This includes causing a continuing
adverse effect on (1) an individual or (2) on the campus generally (emphasis
added).5

This final sentence is not found in the RVSM policy and on its face, contradicts the definition
provided by MSU. It is unclear why MSU is trying to now expand its policy definition to cover
off-campus behavior that creates an adverse effect on an unaffiliated individual when the
RVSM policy is already sufficiently broad by allowing coverage when there is an adverse effect
on a community member (thus remaining faithful to the legal requirement of having a nexus).
Are universities permitted to rewrite policy on the spot, with no notice? Will a court tolerate
this obvious slight-of-hand now that the language goes beyond the showing of a nexus?
Unfortunately, the investigator has provided precisely all the evidence a court will feed to find
that MSU has overreached its jurisdictional authority, because if the policy already covered
MGT’s conduct, the investigator would not have had to re-interpret it to get there. Despite this
creative liberty, OIE, through the Investigator, has determined that this provision applies
because of the alleged adverse effect to the football program. Although OIE has determined
this situation exists, that conclusion relies on a connection of dots not in evidence.

3
RVSM and Title IX Policy, XII(E)(1)(C)(iv)
4
RVSM and Title IX Policy, fn 12
5
Draft IR, p. 6

8
The Alleged Misconduct Did Not Cause an Adverse Effect Within a MSU Program or Activity
There is no evidence that the football program has suffered a deprivation or any adverse effects.
The Draft IR only shows that the football program has not received subsequent education from
BT. It is hardly realistic to assume that any one vendor will be used in perpetuity. Is there a
deprivation every time the institution changes course? Hardly not. But even assuming, arguendo,
that a deprivation did occur, there is no evidence, beyond BT’s feeling, that the adverse effect
was caused by MGT’s alleged creation of a hostile environment or sexual exploitation of BT.

This brings me to a key point. Assuming for the sake of argument that the phone sex between
the parties was non-consensual and unwelcome and satisfies the policy definitions of either/both
the charged sexual harassment and/or sexual exploitation policies, that act had no effect for BT
within the program – after the phone sex conversation in April, MSU officials and BT’s assistant
continued planning the visit for months. BT’s assertion that the phone call somehow led to the
event being cancelled is a logical fallacy that is not supported by the evidence offered by BT or
anyone else. To assume further facts not in evidence, if MGT retaliated against BT (because he
thought she was going to come forward about the call) by cancelling BT’s visit, that would and
should be chargeable as an act of retaliation, not as sexual harassment. MGT has not been
charged with retaliation because there is no evidence that MGT retaliated or had reason to
believe anything that occurred between he and BT was unwanted. MSU’s conflation of a sex-
related act with an un-sex-related act is illogical and legally unsound.

Following the April 2022 phone call, MSU, through BT and MGT’s assistants, spent a considerable
amount of time working on arranging the visit. There is no evidence that MGT orchestrated a plot
to cancel the visit after the phone call. In fact, MGT’s claim that he discovered BT was sharing
personal details of MGT’s marriage with third parties is corroborated by BT and could certainly
be a non-discriminatory reason for no longer wanting to work with BT. However, MGT has denied
that, and has insisted that he separated the personal from the professional (unlike MSU). Instead,
MGT has simply stated that the contract with BT was delayed for programmatic reasons, and is
still to be scheduled. It is not disputed that there were staff changes within the football program
during the month of July which is a busy time for a Division I Football program. This is
corroborated by BT herself, who admits that during the August 2022 phone call MGT stated he
wanted to bring BT back to campus at some point in the future.

Finally, as an additional intervening factor that disrupts this imagined chain of causation, BT
herself told Alvarado to stop communicating with MSU, therefore likely ending any chance of the
program continuing. That was her choice, not MGT’s. If she canceled herself, why should MSU
give her standing to pursue a complaint based on that? Taking herself out of the running is wholly
different than MGT taking her out of the running. While there is evidence that BT submitted an
invoice for work prepared ahead of the summer 2022 visit, there is no evidence in the record that
MGT stopped payment of the invoice as the record reflected that the invoice was forwarded on
to the appropriate university department. Thus, it is impossible to discern evidence of an in-
program harm caused to BT by MGT.

9
Based on the information contained in the record, the reported misconduct did not occur within
any MSU program or activity and even assuming there has been some adverse effect of BT not
returning as a vendor, there is no evidence that any adverse effect was caused by MGT engaging
in prohibited conduct.

THE ALLEGED CONDUCT WOULD NOT VIOLATE THE RVSM POLICY

The Notice of Allegations identifies a number of behaviors between Fall 2021 and July 2022 and
alleges that these behaviors, if proven, would implicate two policy violations: Sexual Harassment
(non-Title IX) and Sexual Exploitation. The Notice fails to identify what behaviors allegedly
constitute Sexual Harassment, Sexual Exploitation, or both. Still, even without this necessary
clarity, it is easy to see the behaviors described would not rise to the level of policy violations
such that there would be policy jurisdiction. MSU procedures require a dismissal if the conduct
would not violate policy, if proven.

None of the Alleged Behaviors Constitute Sexual Exploitation

Under the RVSM Policy, Sexual Exploitation requires non-consensual taking advantage of or
abuse of someone else for a sexual purpose. BT describes a series of actions that she
characterizes as “grooming;” however, these actions are more aptly described as an attempt of
seduction. This behavior, while perhaps designed to test the waters for a romantic relationship,
included MGT giving BT money, donating to her charity, and buying her gifts. These behaviors are
not the type that could be considered taking advantage of or abusing BT. “Grooming” is a loaded
term, and I’m sure it is used very intentionally by BT, but that does not make it true or backed by
evidence. If BT’s characterization is correct, then any time one party gives another party a gift
with the hope of a sexual return on the favor (such as an engagement ring), the conduct must be
grooming and would be prohibited by the RVSM Policy. That would be an absurd outcome.

BT raised one potential instance of what she describes as ‘non-consensual masturbation’

occurring over a phone conversation. Whether or not this conduct was in fact, non-consensual,
is a disputed fact. Still, there is no allegation that MGT threatened BT or otherwise forced BT to
stay on the call and the parties were located across the country from one another. It is not clear
to me how one can take advantage of someone over the course of a phone call, and even if that
is possible, the facts here are lacking any such indication. The phone call does not meet the
definition of Sexual Exploitation, and I see no other behaviors that do, either, as alleged.

Welcomed Behaviors Do Not Constitute Sexual Harassment

Likewise, under the RVSM Policy definition, MGT did not engage in behavior constituting Sexual
Harassment in the form of creating a hostile environment for BT. How is MSU’s educational
environment hostile for BT based on a private phone call made late at night on private property?
Again, MSU lacks a nexus by which to extend its long-arm jurisdiction from Michigan (or Florida,
as the case may be – the facts are in dispute) to Oregon. MSU’s policy defines Sexual Harassment
as occurring when, “the unwelcome behavior is so severe, persistent, or pervasive that it causes
an unreasonable interference with the individual’s work or educational performance by creating
an intimidating, hostile, or demeaning environment for employment, education, University living,

10
or participation in a University activity or program. This can be referred to as “hostile
environment.” … A person’s subjective belief alone that behavior is offensive does not
necessarily mean that the conduct rises to the level of a policy violation. The behavior must also
be objectively offensive.6 The behavior must be, then, unwelcome, and also severe, persistent,
or pervasive and offensive from the perspective of a reasonable person. Here, many of the
behaviors described by BT were not unwelcomed by BT. This includes MGT gifting BT money and
shoes. This is, of course, not sexual behavior. Even though BT has now, with the benefit of
hindsight, determined that MGT was some sort of bad actor, at the time, BT welcomed the gifts
and in fact, publicly celebrated MGT’s contribution to her charity. If these acts were unwelcomed,
you would expect that BT would have returned these gifts and donations. She has not. As for the
other behavior, BT described a number of conversations over the course of several months where
the parties mutually engaged in personal conversations. This, at times, included BT probing MGT
for information about his personal life. The two engaged in personal conversations via phone and
text, and even over Facetime video calls.

If, and only if, the behavior was at the time unwelcome would it be necessary to evaluate whether
any of MGT’s actions were severe or persistent/pervasive and objectively offensive to a
reasonable person. MGT’s kind actions, whether they were attempts at flirting or seduction or
not, are neither severe nor objectively offensive, even if they could be considered persistent.
Surely MSU’s policies say it’s still okay to hit on someone if they are showing interest?

As for the April 2022 phone call, BT was not forced to participate, she was not trapped in the
same room with someone as they exposed themselves to her, and there was nothing secret
about what was happening on the call. Considering the factors typically used to determine
whether behavior is severe, this arguably, may or may not be severe – but, this analysis can only
come after it’s been determined that the behavior was unwelcome.

Although BT has characterized the phone conversation as ‘non-consensual masturbation,’ MGT

described it as phone sex. Focusing on consent for the question of whether a hostile environment
exists is a mistake. There is no MSU policy that requires anyone to have consent for phone sex.
The appropriate lens is whether the conduct was unwelcome and whether MGT could have
known it was unwelcome at the time the conduct occurred. Despite BT’s retrospective
revisioning, BT’s actions, including those over the months leading up to the call, staying on the
call7, and her statements that “if we do this…” show BT’s willingness to be involved in the call, in
other words, that the conduct was welcome. There is evidence that she continued to contact
MGT for personal reasons thereafter, thus undercutting any argument for unwelcomeness. If the
conduct was welcome, then it cannot create a hostile environment and the complaint must be
dismissed.

6
RVSM Policy III(A)
7
I am not suggesting that Claimant had an obligation to resist or get off the call, only that she was neither trapped
nor forced to stay on.

11
CONCLUSION

Based on the aforementioned reasons, the reported behavior

• Did not occur on-campus or off-campus in a University-sponsored program or activity as
required by RVSM Policy III(E)(1)(c)(i-iii), and
• Did not lead to continuing adverse effects on the campus or on a University-sponsored
program or activity as required by RVSM Policy III(E)(1)(c)(iv), and
• Would not meet a definition of prohibited conduct, even if proven.

This complaint must be dismissed as required by RVSM Policy III(E)(2).

All the opinions expressed in this report are held to a reasonable degree of professional certainty.
This report is based on the information reviewed considering my experience, training, skill,
knowledge, and expertise. I also understand that documents may be produced after the date of
this report and I, therefore, reserve the right to amend, revise, or supplement this report based
on the availability of new information.

Respectfully Submitted,

Brett A. Sokolow, J.D.

Chair, TNG Consulting, LLC

12