Former ASU employee testifies in sexual harassment retaliation trial

PHOENIX (CN) — A fired athletics employee defended his tenure at Arizona State University in federal court Wednesday, arguing that he was terminated not for poor performance but instead in response to reporting a donor for sexually harassing his wife and two others.

The university fired David Cohen from his role as senior associate athletics director in August 2019, telling him at the time that he was “not a cultural fit” for the athletic department. But Cohen, who sued the university and its governing body in 2021 over retaliation, said he earned consistently high marks on performance evaluations and annual bonuses and pay raises until he reported the donor for inappropriately touching his wife at a basketball game.

Cohen told then-Athletic Director Ray Anderson that Bart Wear, one of the basketball program’s biggest donors, fondled Kathy Cohen and Leslie Hurley, wife of ASU head coach Bobby Hurley, at a game on March 14, 2019.

“Initially, Ray Anderson was great,” he said of their first conversation a week after the incident. “He said, ‘I won’t tolerate this.’”

But weeks went by, and Anderson didn’t confront Wear. Cohen said he checked back in on multiple occasions, and Anderson gave him the same response.

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

“‘Ray, this really feels like retaliation,’” he recalled telling Anderson before a staff meeting in July. “He gets as irate as I’ve seen him.”

Weeks later, Anderson told Cohen he was fired.

In his opening statement on Tuesday, Arizona Board of Regents attorney Robert McKirgan suggested that Cohen had been struggling in his position for years already, going back to 2017 when he was privately reprimanded by the Pac-12 athletic conference for his behavior at an ASU vs. Utah basketball game.

Cohen, who sat on the witness stand nearly all day Wednesday, explained that he confronted the referees about a fan who made sexual remarks about coach Hurley’s daughter, was never disciplined by ASU, and the incident was never brought up again.

Similarly, McKirgan suggested Tuesday that Cohen tried to steal money from the university after he received a $690,000 check from Vivid Seats to sell tickets to basketball games. Cohen explained Wednesday that he cashed the check to keep the money safe and, a month later, sent the money back to Vivid Seats, ordering them to rewrite the check to ASU Athletics instead.

Michael Perez, representing Cohen, went through numerous performance evaluations that gave Cohen no lower than a four out of five stars in all categories and documented consistent pay raises and bonuses given to him by Anderson.

On cross-examination, McKirgan pointed out that his bonuses were already at Anderson’s discretion and the letter only affirmed what was already true.

“How is that retaliatory?” he asked.

“I didn’t say it was retaliatory,” Cohen retorted. “I was confused. Why was I signing a new agreement for something that had been true for five years?”

McKirgan also argued that Anderson was well within his rights to alter the structure of the department, which he had been slowly doing since February of that year.

“He could have you report to whoever he wanted,” McKirgan said, gesturing to Anderson in the courtroom.

“He’s the boss,” Cohen answered.

McKirgan said if Cohen was disappointed with the speed at which Anderson dealt with his complaint, he should have gone to the school’s Title IX coordinator. Cohen said he recalled in his training that he was to report to his supervisor and do nothing else.

“Ray told me he would handle it and to stay out of it,” he said.

Years later, Cohen said he is still looking for another job in sports, in which he worked all his life until he was fired. Before, he said, schools were calling to recruit him, often offering him higher-paying contracts than what he had at ASU.

Now: “I don’t get call backs,” he said.

Near the end of the day, McKirgan questioned Cohen’s relationship with Wear, suggesting the two were closer than Cohen lets on. He pointed to text messages between the two, in which Cohen says “love you buddy,” and Wear later made a sexual remark about Cohen’s wife.

“He was one of our closest donors,” Cohen said. “We had to spend a lot of time with him.”

Cohen described the friendship as “transactional.”

Cohen will finish his testimony Thursday, after which the plaintiff will call Anderson to the stand. Perez said he expects arguments to wrap up around Wednesday of next week.

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