Report: ‘Insufficient evidence’ of gender discrimination against chancellor
An outside investigation into a raft of allegations made by Nevada System of Higher Education Chancellor Melody Rose against a number of regents “did not substantiate” claims of sex-based hostile work environment and unlawful retaliation, according to a report of the investigation's findings distributed internally last Friday.
However, the investigation also found that some of the circumstances raised by the chancellor’s complaint, which was filed in October, reflect an “inappropriate professional environment,” and in some cases may also have violated the ethics code.
That complaint made 10 separate allegations of misconduct on the part of regents — largely focused on Regent Chair Cathy McAdoo and Vice Chair Patrick Carter — but the 25-page report concluded that none of the allegations could warrant any Title VII claim. Still, the report noted that “certainly measures can be implemented that may help to minimize the present acrimony.”
Written by attorneys from the law firm Fennemore Craig and obtained Monday by The Nevada Independent, the report adds that although Rose “sincerely believes all of the statements in her Complaint,” the investigation could not find corroborating evidence that the behavior of McAdoo and Carter rose to the level of violating state or federal law.
Instead, investigators attributed the issues raised by the chancellor’s complaint to four factors, including the change in board leadership from a “hands-off” Regent Mark Doubrava to McAdoo and Carter; the “misalignment” of views held by the chancellor and regents; the communication structure between the board leadership and the chancellor; and the possible emergence of political differences, including on the administration of COVID mitigation efforts, which may have created new factions among regents and top system leaders.
“[These] factions, which we observed in the System office, too, may have initially resulted in objectively unfriendly displays toward the Chancellor and may have compounded over time such that, as of late, the Chancellor subjectively perceives any exchange that is not supportive of her viewpoints to be hostile,” the report said.
Investigators said they interviewed Rose twice, in addition to 18 interviews with current and former regents and administrators at NSHE across both Las Vegas and Reno through the four-month investigation.
It also covered two additional incidents amended on to the complaint, including one in December that prompted her personal attorneys to send a letter to top regents demanding that one regent, Byron Brooks, no longer be allowed to carry a firearm on NSHE property.
It is unclear what may happen next, but multiple sources confirmed that the Board of Regents is set to meet this Wednesday for another closed-door legal briefing to discuss the report’s conclusions with outside counsel.
A spokesperson for the chancellor declined to comment. However, one of Rose’s personal attorneys, Jennifer Hostetler, said in a statement that Rose “remains committed to doing the important job she was hired to do for Nevada’s higher education system in an environment built for success.”
“We look forward to working with the Board of Regents to ensure the concerns identified by the report are remedied,” Hostetler said.
Pay discrimination claims found lacking
Central to Rose’s initial complaint were allegations that she had experienced pay discrimination, relative to the presidents recently appointed before and after her at UNLV and UNR; and that she was the victim of an “Old Boys’ Club” pervasive within the top levels of higher education in Nevada.
But on the issue of pay, investigators found Rose would be unable to make a legal case for wage discrimination, in part because it is limited to a comparison of the jobs in question, and because past NSHE chancellors have also been paid less than their university president counterparts.
“Most notably, the Chancellor’s argument that she was offered a lower compensation package because of her sex is inconsistent with publicly-available records, which demonstrate that NSHE Chancellors have historically been paid less than UNLV and UNR Presidents,” the report stated, adding that pay for the Chancellor position had been set before Rosen applied for the job.
And on the matter of the broader discrimination and the “Old Boys’ Club” — one of few allegations that extended beyond narrower complaints about McAdoo and Carter — the report found insufficient evidence to substantiate such a claim, thought least some witnesses described a perceived “culture of bias against women” within the system.
A ‘challenging’ relationship between Rose, Regents
Rose’s claims that McAdoo and Carter sought to minimize her influence in order to oust her were not substantiated by investigators, who did not find evidence of sex-based discrimination.
However, the investigation did yield evidence of a “challenging” relationship between Rose and the board leadership that “at times lacked collegiality.”
“A number of interviewees described the palpable tension between the Chancellor and the Officers, and other Regents, as well as to the distrust flowing in both directions,” the report said.
Even still, those tensions and the treatment of the chancellor by regents were linked not to her sex, but to differences in “communication styles, backgrounds and personalities.”
Investigators also noted that the chancellor had vocally supported other regents for board leadership positions ahead of the internal election in June of 2020, a move investigators characterized as “likely poor judgment given the importance of maintaining a productive and professional relationship with all regents.”
On more specific allegations that McAdoo and Carter were seeking to undermine Rose, investigators said they were unable to substantiate any evidence of discrimination. That includes a claim from Rose that McAdoo had improperly seized control of the employee review process in order to create a pretext for her dismissal.
However, the report found not only that the attempted performance review did not constitute evidence of an improper work environment, but no evidence that the attempt by McAdoo to conduct the review herself was improper, either.
Rose had further alleged that she believed McAdoo had tried to broach the subject of ousting her as chancellor with Gov. Steve Sisolak, and that Carter had begun speaking with other regents about the possibility.
Investigators found that, while Carter had spoken to at least one regent about the issue, there was no evidence that McAdoo had spoken to the governor.
Still, investigators found at least one troubling incident from this episode between McAdoo and NSHE Chief General Counsel Joe Reynolds. During a meeting in September focused on whether McAdoo or another regent should head up the review process for the chancellor, Reynolds described McAdoo as “furious,” that she had “raised her voice” and “through tears” told him that he should not recommend the past board chair, Doubrava, give the review “if he valued his professional career and reputation.”
McAdoo denied to investigators that she threatened Reynolds' job, but did describe the meeting as “tense.”
In either case, investigators wrote, “this conduct is troubling” and could be seen as violating the higher education system’s ethics code.
On COVID policy, possible ethics violations
In perhaps the most key — and longest running — tension between members of the board, were a string of allegations that board leaders had sought to obstruct or otherwise interfere with the administration of NSHE’s COVID mitigation policies, especially those related to either masks or vaccines.
In her complaint, the chancellor alleged that McAdoo had engaged in “erratic, hostile and secretive” behavior on COVID policy, in part because she had reversed her opinions about which bodies — the board or the chancellor — were required to impose campus-wide mask mandates.
Also at issue was the possibility of a new vaccine mandate, including an allegation from Rose that McAdoo believed her to be colluding with the governor’s office on the implementation of such a mandate — a claim that McAdoo did make, according to investigators.
A call for a student vaccine mandate did not emerge in earnest until July 2021, following the emergence of the Delta variant ahead of the rapidly approaching fall semester. After initial silence on if or when regents might act on a mandate, some clarity came on Aug. 3, after an internal system legal review found it was the Board of Health, not the Board of Regents, that held the power to create a student vaccine requirement.
But after an internal system COVID task force recommended the creation of a student vaccine mandate on Aug. 4, McAdoo avoided responding to the recommendation and instead made “several calls” to a member of the chancellor’s cabinet and invoked “direction she had received from God vis-a-vis the vaccine mandate,” while also complaining that the chancellor was being obstructionist.
That call — along with McAdoo’s attempt to keep that call secret from the chancellor and her claims that Rose was colluding with Sisolak — may have also violated ethics code provisions that require “treating all employees … with respect” and going directly to the chancellor if a problem arises with their staff, according to investigators.
However, despite these issues and allegations, investigators found that none of the evidence suggested the problems derived from sex-based discrimination.
Additional allegations of retaliation
In new documents also obtained by The Nevada Independent, Rose expanded the scope of her complaint, alleging that up to five other regents — Byron Brooks, Jason Geddes, Joseph Arrascada, Laura Perkins and Patrick Boylan — later attempted to retaliate against Rose for the filing of her original complaint.
That includes an incident during a board meeting in November, when regents convened to select new temporary leaders while the investigation was conducted. Before that meeting, the board’s interim chief of staff, Keri Nikolajewski, did not place a name plate for the chancellor on the table — an act that Rose characterized as “embarrassing,” “disrespectful'' and “demoralizing.”
“This mistake, in our view, was just that. We believe the Chancellor’s alternative interpretation of Ms. Nikolajewski’s oversight … is not well based,” the report said.
Moreover, Rose also alleged that Geddes — who temporarily led the board from a procedural standpoint between the stepping-down of McAdoo and Carter and the election of temporary leaders — attempted to “isolate” and “sidestep” her authority by presiding over that meeting and crafting that agenda.
But investigators found that Geddes did not craft that agenda — it was written by outside counsel — and that he had no obligation to tell her that he was presiding over the meeting, as NSHE’s bylaws would give the presiding authority to the most-senior regent — Geddes.
Two other incidents were also investigated with a finding of “insufficient evidence” of retaliation. That includes one in which Arrascada questioned a planned trip by Rose to Arizona State University during a special board meeting, and another in which Brooks, Geddes and Perkins requested the matter of a “board special counsel” be added to a meeting agenda in December.
And more recently, the chancellor also alleged that Regent Byron Brooks had sought to intimidate her during a closed-door legal briefing in December while he was carrying a firearm on system property — something normally banned by state law, but for which Brooks received a waiver in September of last year.
Specifically, Rose claimed that Brooks had been agitated by her presence at the meeting, and that he had challenged her authority to be there at all in a conversation that left the chancellor “shaken, scared and concerned for her personal safety.”
In a statement last Friday, Brooks told The Nevada Independent that he had voluntarily decided not to bring his firearm to future meetings, citing a change in security protocols that has since changed his view on the need for the weapon. In August, around the time of the debate over student vaccine mandates, regents were warned by university police of an “increased threat assessment.”
He also said that it was “unfortunate and concerning to me that anyone in the systems office, particularly while attending a Regent meeting, would feel unsafe.”
Again, however, investigators found Rose’s claims were not supported following interviews with the parties involved.
“Although it is certainly concerning that the Chancellor (or anyone else present at an NSHE meeting) feared for her physical safety, we do not view this interaction as evidence of a sex-based hostile work environment, but rather as a reflection of the apparent negative feelings that exist between those involved,” the report said.
Finally, Rose alleged that Regent Boylan had subjected her to “disparate and hostile treatment” during a board meeting on Jan. 14, in which he “monopolized” the meeting after her State of the System address with a series of “impertinent and racist comments.”
At that meeting, which was public, Boylan pressed the chancellor on the content of her speech and made racist remarks about students of color, including calling them “colored” students and calling white students “colorless.”
“We have Black students, we have colored students,” Boylan said. “White students are invisible. Aren’t we interested in white students? Aren’t we interested in helping them? Or do we just say, ‘screw them.’”
Investigators said, however, that the comments once again could not be tied to her sex, and did not constitute evidence of discrimination against Rose.
Update: 2/7/2022 at 4:53 p.m. - This story was updated to reflect that an NSHE spokesperson declined to comment on the report.