Filed 6/29/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
JAMES O’BRIEN,
Plaintiff and Appellant, A164481
v. (Alameda County
THE REGENTS OF THE Super. Ct. No. RG20075810)
UNIVERSITY OF CALIFORNIA,
Defendant and Respondent.
In March 2020, James O’Brien was suspended from his employment as
a professor at the University of California, Berkeley, for violating the
University’s Faculty Code of Conduct while attending an overseas conference
in 2012. O’Brien received a written censure and one-year suspension for
directing unwanted sexualized conduct at a junior colleague attending the
conference, a graduate student at Massachusetts Institute of Technology
(MIT). O’Brien filed a petition for writ of mandate to compel the Regents of
the University of California (the Regents) to set aside the disciplinary
decision, raising procedural, substantive and due process objections. The
trial court denied O’Brien’s petition. We affirm.
We conclude that the University’s rule requiring it to initiate
disciplinary action within three years of receiving a report of misconduct does
not bar the discipline here. An earlier complaint by a different student only
briefly touching on an alleged incident between O’Brien and an unidentified
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female MIT graduate student was not a report of the wrong-doing for which
he was disciplined. On the merits, substantial evidence supports a finding by
the University and the trial court that the MIT student was a “colleague” of
O’Brien’s, as the Faculty Code of Conduct uses that term, and O’Brien’s other
attacks on the fairness of the proceedings and his punishment also fail.
FACTUAL AND PROCEDURAL BACKGROUND
In late 2012, O’Brien attended a week-long computer graphics
conference in Singapore hosted by the Special Interest Group on Computer
Graphics and Interactive Techniques (SIGGRAPH). O’Brien was a “Director-
at-Large” for SIGGRAPH, and one or two of his graduate students at U.C.
Berkeley presented papers at the conference. Jane Roe, a first-year Ph.D.
student at MIT, also presented a paper. One evening, after the conference
ended for the day, O’Brien went to dinner and then to a bar or club with a
group of graduate students, including Jane Roe. O’Brien and Roe had no
subsequent personal interactions, and years later they vehemently disagreed
about what happened that night.
I. The 2014 Anonymous Complaint
In January 2014, a U.C. Berkeley Ph.D. student completed an
anonymous exit survey for departing graduate students, and her response
documented concern about a “hostile” and sometimes “sexist” atmosphere in
her department’s computer graphics research group. The student stated that
“[t]he hostile environment was mainly caused by Prof. James O’Brien who
regularly insulted students and peer faculty and harassed at least 5 female
students.” She characterized the incidents as “severe,” opined they damaged
the research group’s outside reputation, and then commented: “To give you
an anecdote of how severe these issues are: in a latest incident in December
2011, Prof. O’Brien strongly encouraged a female first year graduate student
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from MIT to go back to his hotel room with him late at night at a conference.”
The survey response included no further information about this “anecdote,”
but characterized O’Brien’s behavior as “unacceptable” and “caus[ing]
outrage within the community,” clearly implying that the advances were
unwelcome. Then, in even more summary fashion, the survey respondent
added that she knew of three instances since 2006 where students
complained to the ombudsman or the department about O’Brien, only to see
little come of it.
The anonymous student’s complaint about O’Brien was forwarded to
the chairs of U.C. Berkeley’s Electrical Engineering and Computer Sciences
Department, David Culler and Tsu-Jae King Liu, and to Susan Kauer, the
department’s Executive Director of Student Affairs. Kauer was concerned by
the survey response, suspecting there could be an underlying sexual
harassment issue or some information the University should investigate.
After consulting with an associate general counsel at U.C. Davis about her
reporting responsibilities, Kauer reported the matter to U.C. Berkeley’s
Office for the Prevention of Harassment and Discrimination (OPHD).
Department chair Culler was also concerned about sexual harassment and
concurred with Kauer that a referral to OPHD was appropriate.
At OPHD, the anonymous student complaint was assigned to William
Mallari, who conferred with Culler and Kauer. Mallari advised that OPHD
had no record of any other complaint or concern involving O’Brien, and a
decision was made that Culler would look into the matter further. Culler
surmised the anonymous survey respondent was F.B., a student who had
previously expressed similar concerns as those reported in the survey. Culler
invited F.B. to have a discussion with him about issues affecting graduate
student culture at Berkeley, and during their 15-minute phone conversation,
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F.B. volunteered that she authored the anonymous survey. F.B. was willing
to discuss her concerns regarding her own department but chose not to share
further information about the MIT student, saying it was not her place to
“bring somebody else in.”
On February 11, 2014, Culler met with O’Brien to discuss the
anonymous survey response, careful to “position” the meeting as an
opportunity to understand the comments, not as an investigation or
accusation. O’Brien’s “reaction was some blend of resistance and denial.”
O’Brien also quickly identified F.B. as the likely source of the survey
comments, and he denied “pretty much all of the assertions.” Specifically
with regard to an incident at a conference, O’Brien recalled attending
SIGGRAPH Asia in Korea in December 2011, but he “denied that what was
in the comments occurred” there and recollected nothing that might have led
to this aspect of F.B.’s report, he told Culler. Culler felt that O’Brien took the
matter “very very seriously.” He encouraged O’Brien to reflect, suggested
that he reach out to Will Mallari, and said they “could follow up after a
while.”
The following day, Culler sent an email to Mallari and Kauer
summarizing his discussion with O’Brien. Culler also mentioned to them his
conversation with F.B. and said F.B. was willing to discuss the matter
further. Kauer and Mallari both replied to Culler’s email. Kauer thanked
Culler for “taking this issue on, for investigating and for reporting back so
thoroughly.” She opined that the “matter has been handled well and has
been instructive” for O’Brien, and she asked Mallari to let them know if there
was anything else they needed to do. For his part, Mallari agreed with
Kauer’s comments, thanked Culler for approaching the matter with “tact and
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skill,” and invited them both to contact him if they had additional questions
or concerns.
II. Jane Roe’s 2017 Complaint
More than three years later, in December 2017, Jane Roe submitted a
complaint about O’Brien to OPHD. Roe alleged that while she attended the
2012 SIGGRAPH Asia conference (a year later than the conference date F.B.
had mentioned), O’Brien engaged her in unwelcome conduct of a sexual
nature that affected or interfered with her educational opportunities and
created a hostile environment. Roe reported that she and O’Brien were at a
“ ‘gentleman’s club’ ” following the conference when he touched her lower
back and upper thigh, made sexually explicit comments about her
appearance, and propositioned her to return to his hotel room. Roe also
reported that after they left the bar, and were in a cab, O’Brien grabbed her
arm and insisted on a kiss. Roe alleged further that during their encounter,
O’Brien intimated that Roe had provided sexual favors to secure lead
authorship on her paper, and the next morning he invited her to an “ ‘invite
only’ ” conference in Barbados.
A. The OPHD Investigation
In February 2018, OPHD notified O’Brien of its intent to investigate
Roe’s complaint, and that if her allegations were true O’Brien’s behavior
could constitute sexual harassment under the University’s 2008 Sexual
Violence and Sexual Harassment Policy (the 2008 SVSH policy), which was in
effect in 2012. O’Brien objected that the University lacked jurisdiction to
investigate Roe’s complaint because she had no association to the University
community and the incident had no connection with University property,
activities, programs, or events. OPHD disagreed, reasoning that the 2008
SVHS policy was sufficiently broad to reach conduct committed by O’Brien
5
while he was “effectively acting as a representative of UC Berkeley.” OPHD
also advised O’Brien that, although substantive definitions of prohibited
behavior contained in the 2008 SVHS policy would apply, OPHD would
conduct its investigation pursuant to procedures in the then-current SVSH
policy, which recognized the University’s jurisdiction over off-campus conduct
that affected the learning or working environment or would violate university
policy had it occurred on campus. 1
O’Brien also objected that the four-year delay in investigating an
incident that was reported to the University in 2014 violated the University’s
own “ ‘[t]hree-year rule.’ ” O’Brien insisted that he had disclosed Jane Roe’s
name to then-chair Culler in 2014, and argued that under the Faculty Code
of Conduct, also known as APM-015, 2 the University was required to initiate
any related disciplinary action within three years. OPHD took the position
that a determination whether the three-year rule was violated was beyond its
purview, but made findings of fact to facilitate resolution of the matter.
Specifically, the OPHD investigator found that O’Brien did not disclose Jane
Roe’s identity to Culler in 2014, and his contentions to the contrary were not
credible.
OPHD’s investigation of the 2012 incident included interviewing Roe,
O’Brien, and multiple witnesses. OPHD also reviewed witness statements
and declarations, as well as emails, chatlogs, social media posts, and local
and national news articles about the incident, which Jane Roe had recently
1 The Administrative Record contains three versions of the SVSH
policy, adopted respectively in 2008, 2016 and 2019.
2 APM refers to the University’s Academic Personnel Manual, which
contains multiple documents, including the Faculty Code of Conduct (APM-
015), and the Policy on Faculty Conduct and the Administration of Discipline
(APM-016).
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made public. OPHD’s file regarding F.B.’s 2014 anonymous complaint was
also considered.
According to OPHD’s investigation report, O’Brien and Roe agreed on
only a handful of general facts: during the conference, they went out to
dinner and some bars with other graduate students, they discussed an
upcoming workshop, O’Brien facilitated inviting Roe to the workshop, and
there was no further contact between them. O’Brien disputed all of Roe’s
allegations regarding inappropriate touching and other misconduct.
Ultimately, the investigator found Roe to be more credible than O’Brien and
that “the preponderance of witness statements and documentary evidence
support[ed] her version of events.” The investigator also found by a
preponderance of the evidence that O’Brien sexually harassed Roe under the
terms of the 2008 SVSH policy, in that his conduct was unwelcome, was of a
sexual nature, and affected Roe’s education, interfering with her education
performance and creating a hostile learning environment.
On October 30, 2018, OPHD notified O’Brien it had substantiated
allegations that O’Brien violated the 2008 SVSH policy and referred the
matter to the Vice Provost for the Faculty, Benjamin Hermalin. That
December, Hermalin notified O’Brien of the University’s intention to lodge a
formal complaint with the Privilege and Tenure Committee (P&T Committee)
charging O’Brien with violating the Faculty Code of Conduct. Hermalin
notified O’Brien that he intended to propose the disciplinary sanction of a
three-year suspension, and a commensurate curtailment of his emeritus
status should he retire or leave his employment prior to completion of the
suspension.
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B. The Disciplinary Complaint
In August 2019, after mediation requested by O’Brien was
unsuccessful, Hermalin filed a formal disciplinary complaint with the P&T
Committee, charging O’Brien with violating multiple provisions of the
Faculty Code of Conduct. First, he was charged with violating APM-015,
Part II.C, by committing a “Serious violation of University policies governing
the professional conduct of faculty.” The stated basis for this charge was that
O’Brien’s conduct during the 2012 incident violated the 2008 SVSH policy.
O’Brien was also charged with violating APM-015, Part II.D, which
provides, in part: “ ‘As colleagues, professors have obligations that derive
from common membership in the community of scholars. Professors do not
discriminate against or harass colleagues.’ ” The University alleged O’Brien
violated this provision by, among other things, sexually harassing a then-
colleague at the 2012 conference.
The University also charged O’Brien with violating a principle that is
illustrated by APM-015, Part II.D.1, which states that professors do not
evaluate the professional competence of members of the community of
scholars with standards that are not reflective of professional competence.
As a basis for this charging allegation, the University invoked a provision in
the preamble to APM-015, which states: “Faculty may be subjected to
disciplinary action under this Code for any type of conduct which, although
not specifically enumerated herein, meets the standard for unacceptable
faculty behavior.” O’Brien was also charged with violating ethical principles
incorporated by reference into the Preamble to APM-015, specifically that
professors are to uphold “the best scholarly and ethical standards of their
discipline,” and to “demonstrate respect for students as individuals and
adhere to their proper roles as intellectual guides and counselors.”
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C. The P&T Committee Hearing and Findings
The P&T Committee held an evidentiary hearing over four days in
October and November 2019. In February 2020, the Committee issued a 21-
page report of its findings and recommendation, which was submitted to
Chancellor Carol Christ.
1. Preliminary Findings
During the first day of the hearing, the Committee took evidence
regarding O’Brien’s procedural objections to the disciplinary complaint,
specifically to address (1) whether a violation of the Faculty Code of Conduct
could be based on allegations regarding a non-U.C. student at a conference in
Singapore, and (2) if the disciplinary action against O’Brien was time-barred
under the University’s own rules. On October 16, 2019, the P&T Committee
issued preliminary findings rejecting O’Brien’s procedural objections.
Regarding the first issue, the P&T Committee found that the conduct
in question could subject O’Brien to discipline under the Faculty Code of
Conduct. The Committee reasoned that several charges against O’Brien
allege violations of code provisions that apply to O’Brien’s alleged acts
“towards a non-UC student at a conference in Singapore” because they
contain no “limitation as to geographic location or an exception for activity
with a non-UC student.” Because the hearing would proceed as to these
charges, the Committee found it unnecessary to decide at the preliminary
stage whether the 2008 SVSH policy applied to the incident in question.
To resolve O’Brien’s claim that the complaint is time-barred, the P&T
Committee applied U.C. Academic Senate Bylaw 336.B (Bylaw 336.B),
pertaining to the “Time Limitation for Filing Disciplinary Charges,” which
states: “The Chancellor is deemed to know about an alleged violation of the
Faculty Code of Conduct when it is reported to any academic administrator
9
at the level of department chair or above or, additionally, for an allegation of
sexual violence or sexual harassment when the allegation is first reported to
the campus Title IX Officer. The Chancellor must file disciplinary charges by
delivering notice of proposed disciplinary action to the respondent no later
than three years after the Chancellor is deemed to have known about the
alleged violation. There is no limit on the time within which a complainant
may report an alleged violation.”
The Committee also considered a provision of the Faculty Code of
Conduct, APM-015, Part III.A.3. In 2012, this provision (Former Part III.A.3)
stated: “No disciplinary action may commence if more than three years have
passed between the time when the Chancellor knew or should have known
about the alleged violation of the Faculty Code of Conduct and the delivery of
the notice of proposed disciplinary action.” 3 The Committee did not
separately analyze Former Part III.A.3, presumably because it implements
Bylaw 336.B.
The Committee found that neither provision bars this disciplinary
proceeding. O’Brien argued that the Chancellor was deemed to know about
violations alleged in this case when F.B.’s anonymous survey response was
3 According to the Administrative Record, Part III.A.3 was modified in
2017 to include details from Academic Senate Bylaw 336.B, so that it now
states: “The Chancellor is deemed to know about an alleged violation of the
Faculty Code of Conduct when it is reported to any academic administrator
at the level of department chair or above. Additionally, for an allegation of
sexual violence or sexual harassment, the Chancellor is deemed to know
about an alleged violation of the Faculty Code of Conduct when the allegation
is first reported to any academic administrator at the level of department
chair or above or the campus Title IX Officer. The Chancellor must initiate
related disciplinary action by delivering notice of proposed action to the
respondent no later than three years after the Chancellor is deemed to have
known about the alleged violation. There is no limit on the time within
which a complainant may report an alleged violation.”
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forwarded to OPHD in 2014. The Committee rejected this contention, finding
“[t]he information that was presented to the Chancellor or her
representatives in 2014 was insufficient to constitute alleged sexual
harassment and a consequent alleged violation of the Faculty Code of
Conduct. Therefore the Chancellor could not have known or [be] deemed to
have known of an ‘alleged violation’ to trigger the three-year rule applicable
to the case.”
2. Findings of Fact About the 2012 Incident
The Committee’s final report, issued after the evidentiary phase of the
hearing was completed and the matter was submitted for decision, contains
detailed findings about O’Brien, Roe, the SIGGRAPH conference they
attended, and what happened between them. We briefly summarize the
Committee’s material findings.
SIGGRAPH hosts the “preeminent conference in the field of computer
graphics” and presentations made there “play a prominent role in
establishing and advancing academic careers.” O’Brien is and was a “leading
figure” in the field of computer graphics and in the subfield of physics-based
simulation. Roe was a first-year Ph.D. student with a master’s degree in
computer science when she had a paper accepted and presented it at the
SIGGRAPH conference in 2012. On the day Roe presented her paper, she
went out to dinner afterwards with O’Brien and a group of his graduate
students. Because “meeting colleagues in the field is one of the goals in
attending [the conference], especially for students,” people often socialize, and
it is not unusual for a professor to go out to dinner with a group of students.
Roe wanted to pursue a career in physics-based simulation, so meeting
O’Brien and his students could lead to an opportunity “for the kind of
collaborations that make a career in her chosen field.”
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The dinner that Roe and O’Brien attended was “productive and
enjoyable,” and afterward a smaller group went out to some local bars. At
one point during the “conference-related social occasion at which both
professional and personal matters were discussed,” O’Brien and Roe were
speaking at one end of their table. The other three students in their group
were not sitting close enough to hear everything O’Brien and Roe said to each
other, and at some point, the others departed. When Roe and O’Brien were
alone at the bar, she asked O’Brien for feedback about her presentation
earlier that day. O’Brien responded that he hadn’t been listening because he
was “ ‘too busy imagining what was under [Roe’s] dress.’ ” O’Brien also
insinuated that Roe had been given authorship credit for the paper she
presented by manipulating the romantic or sexual interest of her coauthor.
O’Brien persisted in such conduct despite Roe’s expressed disinterest and
effort to deflect his sexualized attention. He tried to get her to go to his hotel
room and when they were outside her hotel, he told her she “ ‘owed’ ” him a
kiss.
“Immediately” after the incident, Roe shared her distress about
O’Brien’s sexualized remarks and the potential damage to her career with
several individuals—her then-romantic partner, her former faculty advisor,
and the coauthor of her paper. The following week, she also discussed the
incident with a friend and two other Ph.D. students. These communications
in the immediate and short-term aftermath of the incident corroborated Roe’s
account of her interactions with O’Brien, the Committee found. At the
hearing, Roe testified that she never felt physically threatened by O’Brien,
but “she felt extremely uncomfortable as a 23-year-old in a foreign country,
speaking to a powerful person in her field whom she believed could have
12
significant impact on her career, and she testified that the encounter made
her feel ‘violated’ and insecure.”
O’Brien did not testify at the administrative hearing, but his
statements to OPHD denying the alleged conduct were admitted into
evidence, and his denials were confirmed in post-hearing briefing.
Ultimately, the Committee found Roe’s “testimony convincing in itself, in the
absence of counter-evidence, and as verified in her multiple contemporaneous
reports to colleagues and friends.”
3. Findings Regarding Alleged Violations
Before turning to the specific charges against O’Brien, the P&T
Committee confirmed its preliminary determination that Roe’s allegations
could constitute an actionable violation of the Faculty Code of Conduct and
made the following additional findings: O’Brien attended the SIGGRAPH
conference as a U.C. Berkeley faculty member; the conference is a significant
event in the computer graphics field, with formal and informal social
occasions constituting a significant aspect of the professional experience;
participants at the gathering where the conduct occurred included U.C.
Berkeley graduate students presenting research they conducted at O’Brien’s
lab at U.C. Berkeley; and the participants discussed professional as well as
personal matters. The Committee also confirmed its preliminary finding that
in 2014, the Chancellor could not be deemed to have known about the
violations alleged in this case, albeit with no further analysis.
The Committee then acquitted O’Brien of the first charge it considered:
that he had violated the 2008 SVSH policy, a “[s]erious violation of
University policies governing professional conduct of faculty,” pursuant to
APM-015, Part II.C.7. The Committee found O’Brien did not commit this
violation because the 2008 SVSH policy, which was in effect when the 2012
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incident occurred, did not apply to O’Brien’s interaction with Roe at
SIGGRAPH. The Committee reasoned, the conference was not a University
event; it did not take place on University property; Roe was not a member of
the University community; and she had no U.C. affiliation.
As to the second charge, however, the Committee found that O’Brien
did violate APM-015, Part II.D, which codifies the ethical obligation on
professors, deriving from their “common membership in the community of
scholars,” to “not discriminate against or harass colleagues.” The Committee
based its conclusion that O’Brien violated this provision on findings that Roe
and O’Brien “were not only colleagues both attending the SIGGRAPH Asia
conference but also colleagues in the sub-field of physics-based, and
particularly cloth, simulation.” According to the Committee, Roe “clearly
served as a junior colleague” to O’Brien in attending the conference to present
a paper in cloth simulation, which was one of O’Brien’s specialties, and
O’Brien interacted with Roe at a social event associated with the conference
“[i]n his role as a Berkeley professor.” Moreover, the Committee found,
O’Brien’s “sexualizing of [Roe] in response to her request for feedback on her
scholarly work was a severe violation of collegiality by any standards.”
The Committee rejected the remaining charges against O’Brien. With
regard to the allegation that he violated the principle in APM-O15,
Part II.D.1. that professors should not use inappropriate criteria to evaluate
the professional competence of members of the community of scholars, the
Committee found the version of the Faculty Code in effect in 2012 made this
conduct unacceptable only as to “ ‘the professional competence of faculty
members,’ ” and Roe was not a faculty member. (Italics omitted.) With
regard to the allegation that he violated principles requiring professors to
uphold “best scholarly standards” and “demonstrate respect for students as
14
individuals and adhere to [professors’] proper roles as intellectual guides and
counselors” (APM-015, Part II.A), the Committee found these policies
inapplicable because Roe was “a student at another university and was not
under the academic supervision or direction of Professor O’Brien.”
D. Discipline
The Committee recommended that, pursuant to the governing
disciplinary guidelines, O’Brien receive a written censure and one-year
suspension without pay, opining that the three-year suspension requested by
the administration was excessive.
After the Committee completed its report, the Chair wrote to
Chancellor Christ to share the Committee’s “sense” that an alternative to
suspension that more directly addressed O’Brien’s misconduct “might be
more appropriate.” Noting that the Chancellor had authority to impose an
alternative sanction if O’Brien consented, the Committee proposed that
(1) because O’Brien’s violation involved behavior toward a graduate student,
he be “prevented from working with new graduate students for a three-year
period,” and (2) because O’Brien refused to acknowledge his inappropriate
conduct, he not be allowed to resume working with graduate students until
he received additional training regarding the meaning of sexual harassment
and the proper behavior of faculty members in professional relationships with
students and colleagues.
On March 11, 2020, Chancellor Christ informed O’Brien of her decision
to issue a letter of censure and suspend O’Brien’s employment for one
academic year, with the advisement that if he decided to retire rather than
serve the suspension, she would seek a curtailment of O’Brien’s emeritus
status under the same conditions outlined in the suspension. In explaining
her decision, Christ acknowledged that the P&T Committee did not make
15
findings against O’Brien as to several charges but stated that “[s]exualizing
the Complainant in response to her request for feedback on her scholarly
work was a serious violation of the Faculty Code of Conduct, which prohibits
harassment of colleagues.”
III. The Writ Proceeding
In October 2020, O’Brien filed a petition for a writ of mandate directing
the Regents to set aside the findings of the P&T Committee and the
disciplinary sanction imposed by Chancellor Christ. (Code Civ. Proc.,
§ 1094.5; statutory references are to this code.) O’Brien alleged that the
Regents exceeded their jurisdiction by disciplining him; failed to conduct a
fair disciplinary hearing; and abused their discretion by failing to proceed in
a manner required by law, making a decision not supported by the findings,
and making findings that were not supported by the evidence.
At a July 2021 hearing on the petition, the superior court requested
supplemental briefing regarding (1) the three-year rule for commencing a
disciplinary action for an alleged violation of the Faculty Rules of Conduct,
and (2) whether Jane Roe was a colleague within the meaning of APM-015,
Part II.D (Part II.D). At the continued hearing, the court expressed ongoing
concern about whether the Regents failed to comply with their three-year
rule and sought additional briefing addressing the history and purpose of the
rule.
On November 1, 2021, the court denied O’Brien’s petition pursuant to
findings subsequently set forth in a final order filed on November 8.
Rejecting O’Brien’s contention that the Regents violated the three-year rule,
the court found that the administrative record supports the P&T Committee’s
finding that facts known to the Administration in 2014 were “insufficient to
constitute a policy violation,” and that “sufficient additional facts” were not
16
known until Roe later came forward. The court also found that the record
supports the other findings and conclusions of the P&T Committee in this
case, among them that “the term ‘colleague’ includes persons such as the MIT
graduate student under the particular circumstances of this matter.”
DISCUSSION
I. Issues on Appeal and Standards of Review
Contending his petition for writ of mandate was erroneously denied,
O’Brien makes the following claims of error: (1) the University waited too
long to file a disciplinary complaint against him; (2) he did not violate the
policy prohibiting mistreatment of a colleague; (3) the disciplinary proceeding
was unfair; and (4) the sanction imposed on him was excessive. Because the
parties disagree about what standards of review govern our resolution of
these claims, we begin with a brief review of the pertinent standards.
Section 1094.5 establishes the scope of our review of an adjudicatory
decision by an administrative agency. (Akella v. Regents of University of
California (2021) 61 Cal.App.5th 801, 813–814 (Akella).) That review
“extends to questions about the agency’s jurisdiction to proceed, whether
there was a fair trial, and ‘whether there was any prejudicial abuse of
discretion.’ ” (Id. at p. 813, quoting § 1094.5, subd. (b).) An agency abuses its
discretion if it fails to proceed in a manner required by law, if its decision is
not supported by the findings, or if its findings are not supported by the
evidence. (§ 1094.5, subd. (b).)
“We review the fairness of the administrative proceeding de novo.
[Citation.] ‘The statute’s requirement of a “ ‘fair trial’ ” means that there
must have been “a fair administrative hearing.” ’ ” (Doe v. Regents of
University of California (2016) 5 Cal.App.5th 1055, 1073 (Doe v. Regents); see
Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223
17
Cal.App.4th 72, 96.) Questions of law are also subject to independent judicial
review in a mandate proceeding. (Akella, supra, 61 Cal.App.5th at p. 815.)
The standard for reviewing an agency’s findings of fact can cause
confusion. In the trial court, if the administrative decision substantially
affects a fundamental vested right, the court must independently review the
record to determine whether the weight of evidence supports a factual
finding, whereas the substantial evidence test applies when a fundamental
right is not at issue. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th
305, 313 (Wences).) But the appellate court applies a substantial evidence
test, regardless of whether a fundamental right is involved. (Fukuda v. City
of Angels (1999) 20 Cal.4th 805, 824.) The difference is that our focus varies
with the standard of review employed by the trial court. (Ogundare v.
Department of Industrial Relations (2013) 214 Cal.App.4th 822, 828
(Ogundare).) “ ‘If a fundamental vested right was involved and the trial court
therefore exercised independent judgment, it is the trial court’s judgment
that is the subject of appellate court review. [Citations.] On the other hand,
if the superior court properly applied substantial evidence review because no
fundamental vested right was involved, then the appellate court’s function is
identical to that of the trial court. It reviews the administrative record to
determine whether the agency’s findings were supported by substantial
evidence.’ ” (Id. at pp. 828–829.)
In the present case, O’Brien contends the Chancellor’s decision to
discipline him affects his fundamental vested right in employment, citing
pertinent authority. (See Wences, supra, 177 Cal.App.4th at pp. 314–318;
compare Doe v. Regents, supra, 5 Cal.App.5th at p. 1072 [finding no
fundamental vested right affected by college discipline of a student].) But he
does not contend that the trial court failed independently to review the
18
administrative record, and he appears to overlook that the substantial
evidence test applies to this court’s review of the judgment denying his
mandate petition. (See Ogundare, supra, 214 Cal.App.4th at p. 828.) For
their part, the Regents characterize virtually every claim of error as a factual
dispute reviewable under the deferential substantial evidence test, but
assume without explanation that it is University’s, rather than the trial
court’s, factual findings we review for substantial evidence. We disagree with
the Regents’ analytic approach, although ultimately, we find no basis for
setting aside the administrative decision.
II. The University Did Not Violate Its Three-Year Rule
O’Brien contends the Chancellor’s disciplinary decision must be set
aside because charges filed against him by Vice Chancellor Hermalin in
December 2019 were “time-barred” under the University’s rule establishing a
time limitation for filing disciplinary charges arising out of an alleged
violation of the Faculty Code of Conduct. Like the parties, we refer to this
policy as the three-year rule. To resolve O’Brien’s claim, we address two
distinct issues: the proper interpretation of the University’s rule, and
whether the rule was violated in this case. 4
A. The Proper Interpretation of The Three-Year Rule
O’Brien contends that the P&T Committee misconstrued the
University’s three-year rule. The proper construction of this rule presents an
issue of law, which we must resolve de novo. (Hoitt v. Department of
4 The Regents contend this court lacks jurisdiction to hear this claim
because O’Brien failed to exhaust his administrative remedies, but they
forfeited any exhaustion defense by failing to present it in the trial court.
(Mission Housing Development Co. v. City & County of San Francisco (1997)
59 Cal.App.4th 55, 67-68.) Their argument also lacks merit, as O’Brien made
the same argument about the three-year rule to the P&T Committee.
19
Rehabilitation (2012) 207 Cal.App.4th 513, 522 (Hoitt) [in mandate
proceeding, interpretation of regulations is issue of law “for the courts to
resolve de novo”]; see e.g., Akella, supra, 61 Cal.App.5th at p. 817.)
The three-year rule is contained in two closely related regulatory
provisions, Academic Senate Bylaw 336.B and the Faculty Code of Conduct’s
Part III.A.3. Bylaw 336.B requires that notice of a proposed disciplinary
action be given to the respondent “no later than three years after the
Chancellor is deemed to have known about the alleged violation,” provides
that “[t]he Chancellor is deemed to know about an alleged violation . . . when
it is reported to” a department chair or certain other individuals, and states
specifically that “[t]here is no time limit on the time within which a
complainant may report an alleged violation.” The Faculty Code of Conduct’s
implementation of this bylaw is contained in Part III.A.3, which stated in
2012 that “[n]o disciplinary action may commence if more than three years
have passed between the time when the Chancellor knew or should have
known about the alleged violation of the Faculty Code of Conduct and the
delivery of the notice of proposed disciplinary action.”
“ ‘Generally, the rules that govern interpretation of statutes also govern
interpretation of administrative regulations,’ ” as well as the interpretation of
“policies promulgated by administrative bodies.” (Akella, supra, 61
Cal.App.5th at p. 817.) “Further, policies established by the Regents
according to their constitutionally derived rulemaking and policymaking
power, like the Academic Personnel Manual, have the force and effect of
statute.” (Ibid.) We give regulatory language its plain, commonsense
meaning, and read the rule as a whole so that all of its parts are given effect.
(Id. at p. 818; Hoitt, supra, 207 Cal.App.4th at p. 523.)
20
The central interpretive question this case poses is, what does it mean
that “the Chancellor knew or should have known about the alleged violation”
(Former Part III.A.3)? Relatedly, what does it mean for “an alleged violation”
to be reported to a “department chair” or other specified person (Bylaw
336.B), especially in the context of a skeletal disclosure made by someone
making a related complaint? O’Brien argues the information previously
reported need only suffice to “put the Chancellor on notice of an alleged
violation of the Faculty Code of Conduct,” at which point “the onus” is on the
University “to investigate the alleged violation and bring charges” within
three years. He cites no legal authority for this view, but the phrase “should
have known,” which appears in Former Part III.A.3, is similar to the concept
of inquiry notice used by courts to analyze whether the so-called discovery
rule postpones accrual of a civil cause of action until the plaintiff discovers or
has reason to discover the cause of action. (Rosas v. BASF Corp. (2015) 236
Cal.App.4th 1378, 1390; see, e.g., Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d
1103, 1114 [when discovery rule applies, “limitations period begins when the
plaintiff suspects, or should suspect, that she has been wronged”].)
We conclude that “the Chancellor knew or should have known” means
something different in the context of the Faculty Code of Conduct. Because
the Faculty Code of Conduct implements Bylaw 336.B, we think it important
to construe these two provisions together, and we note the bylaw contains no
language suggesting the three-year rule runs from the time the University, in
the exercise of reasonable diligence, could or should have discovered an
alleged violation. Rather, Bylaw 336.B begins the three-year period when
“an alleged violation of the Faculty Code of Conduct . . . is reported to” one of
several individuals whose knowledge of the report is then imputed to the
Chancellor. That is, the bylaw makes the triggering event the receipt of a
21
report of an alleged violation, not the receipt of information from which, with
the exercise of reasonable diligence, the University could learn of the alleged
violation. We think the proper interpretation of Former Part III.A.3 must be
the same: Once the Chancellor knows of an alleged violation, or “should have
known” of it because it was reported to one of her designees as enumerated in
Bylaw 336.B, then notice of the proposed disciplinary action must be
delivered within three years. This is both a plausible construction of the
language of Former Part III.A.3, and the only construction that is consistent
with the bylaw.
We note one other reason for rejecting O’Brien’s effort to import a
standard of inquiry notice into Former Part III.A.3. In enforcing its Faculty
Code of Conduct, the University is not analogous to a civil litigant who must
seek legal redress for an injury it has suffered before the statute of
limitations has run. The three-year rule dictates how promptly the
University must act on reports it receives but, significantly, Bylaw 336.B
states “[t]here is no limit on the time within which a complainant may report
an alleged violation.” After receiving a complaint, the University normally
has three years in which to deliver a notice of proposed disciplinary action, no
matter how many years in the past the conduct is alleged to have occurred.
(Bylaw 336.B.) The University’s role is neither that of a public prosecutor nor
a private litigant, but of an educational institution committed to maintaining
and preserving an environment conducive to higher learning. By limiting to
three years the period in which the University must file a disciplinary
proceeding, the rule protects the interests of a person who reports misconduct
and seeks its timely redress and, at the same time, the interests of one
accused of misconduct who wants that complaint to be resolved within a
22
reasonable time. The three-year rule is a complaint-processing rule rather
than a statute of limitations.
Having established that the trigger for the three-year period is that “an
alleged violation . . . is reported to” one of the Chancellor’s designees (Bylaw
336.B), we must address what it means to report an alleged violation. How
much, or what kind of, information must a report contain before the
University is required to treat it as the report of “an alleged violation”
sufficient to trigger the three-year rule? If a report conveying a mere hint of
misconduct were construed as sufficient, the Regents would be in the
untenable position of having to investigate every rumor that is brought to the
University’s attention, regardless of its source. And a person injured by a
faculty member’s misconduct but not yet prepared to report it to the
University could later find her right to redress cut off by someone else’s
earlier, partial disclosure of some of the facts underlying her claim. On the
other hand, an overly meticulous standard for what a report must contain
risks frustrating the salutary purposes of the three-year rule—promoting
movement toward resolution of a complaint within a defined period, for the
benefit of both the complainant and the accused.
We think a commonsense interpretation of the language of Bylaw 336.B
avoids these problems. When a person lodges a written complaint alleging
that he or she is the victim of a specified violation of the Faculty Code of
Conduct (e.g., that a named professor sexually harassed the complainant by
engaging in described conduct), we think the accusation has been leveled
with sufficient particularity that it is an “alleged violation . . . reported to”
the person who receives it. The same is true for a report that, although not
accusing a faculty member of violating any particular University policy,
relates facts that taken together and on their face violate the Faculty Code of
23
Conduct. But where a report neither accuses a faculty member of violating a
University policy nor sets forth facts that describe such a violation, it is less
likely to set the three-year clock running.
We acknowledge that reports of misconduct may come in many
different forms, and for that reason decline to set forth a bright-line rule as to
when information coming to the attention of the Chancellor, or her designee,
constitutes a “report” triggering the three-year period. But we can identify
several factors that may influence that determination: (1) the degree of
formality of any report, including whether it is written or oral and whether it
specifies a University policy alleged to have been violated; (2) the directness
of the report, including whether a person allegedly injured by the conduct is
reporting it to a person responsible for receiving complaints; and (3) the level
of detail in the report, including whether misconduct is spelled out
sufficiently to make a violation of the Faculty Code of Conduct apparent and
whether names (e.g., of perpetrator and victim(s)) are provided. The question
to be answered, in light of these and other facts, is whether a report was
made of the “alleged violation of the Faculty Code of Conduct” for which the
Chancellor later proposes to discipline a faculty member. (Bylaw 336.B.) The
question is not whether information that made its way to the Chancellor’s
designee put the University on notice of misconduct that it could have
discovered, if it had undertaken its own investigation. 5
We glean from the P&T Committee’s preliminary findings that the
Committee construed the three-year rule in a similar fashion. They
5 We express no view on whether, or under what circumstances, the
University might have other obligations to investigate incomplete
information about faculty misconduct. We are construing the University’s
three-year rule for processing reports alleging any kind of violation of the
Faculty Code of Conduct, not the University’s obligations under, say, Title IX.
24
concluded, “[t]he information that was presented to the Chancellor or her
representatives in 2014 was insufficient to constitute alleged sexual
harassment and a consequent alleged violation of the Faculty Code of
Conduct” and, as a result, the Chancellor could not be “deemed to have
known of an ‘alleged violation’ to trigger the three-year rule.”
The Committee did not further explain its thinking, and we are in any
event not bound by the University’s interpretation of its own regulations,
although that interpretation may warrant deference in certain
circumstances. (Manderson-Saleh v. Regents of University of California
(2021) 60 Cal.App.5th 674, 697.) The degree to which we defer to an agency’s
interpretation of its own rules is “ ‘fundamentally situational.’ ” (Akella,
supra, 61 Cal.App.5th at p. 816.) Pertinent factors include whether the
agency has a comparative interpretative advantage over the courts, and
whether it arrived at the correct interpretation. (Ibid.) When an agency fails
to demonstrate expertise or present developed legal analysis supportive of its
interpretation of the procedure in question, that interpretation “does not
‘merit[] any measure of presumptive deference.’ ” (Teacher v. California
Western School of Law (2022) 77 Cal.App.5th 111, 130.) In this case, the P&T
Committee offered no clear construction of the three-year rule, let alone a
developed legal analysis in support of a construction. Therefore, we do not
defer to the University’s interpretation of the Faculty Code of Conduct,
although we do take comfort from the P&T Committee’s apparent agreement
with our own interpretation.
Having resolved this preliminary issue of law, we turn to the parties’
factual dispute about whether the three-year rule was violated in this case.
25
B. Disciplinary Charges Were Filed Within Three Years
O’Brien contends the P&T Committee’s finding that the University did
not violate the three-year rule is “not supported by evidence in the record.”
According to O’Brien, the record compels a contrary finding because “the
anecdote regarding Jane Roe” was disclosed in F.B.’s exit survey, which was
reported to OPHD in January 2014. The flaw in this argument is that
O’Brien focuses on a fragment of F.B.’s disclosure describing O’Brien’s alleged
behavior with Jane Roe rather than on F.B.’s actual complaint, which
pertained to an allegedly toxic environment at U.C. Berkeley. O’Brien
overlooks undisputed evidence in the administrative record that he was the
subject of two distinct complaints, brought by two different complainants,
alleging violations of University policy.
The first complainant, F.B., alleged that O’Brien created a hostile
environment within F.B.’s research group at U.C. Berkeley. F.B.’s
“anonymous” complaint was reported to the chair of O’Brien’s department
and to OPHD in January 2014, and thus the Chancellor was deemed to know
about it at that time. Undisputed evidence further shows that F.B.’s
complaint was investigated informally, and more than three years passed
without any notice to O’Brien that disciplinary charges would be pursued.
Thus, the three-year rule precludes the Regents from disciplining O’Brien
based on F.B.’s complaint that O’Brien created a hostile environment within
the U.C. Berkeley research group in (and before) 2014.
But a second person, Jane Roe, came forward to make a substantively
different complaint about O’Brien in 2017. Roe was never a U.C. student,
and she was not complaining about the academic environment at U.C.
Berkeley. Her complaint was about O’Brien’s treatment of her during an
international conference held in 2012. As the pertinent bylaw explicitly
26
states, there was no time limit as to when Roe could make her claim. The
record also clearly shows that the University initiated a formal disciplinary
proceeding against O’Brien within the three-year period after receiving Roe’s
report.
We recognize, of course, that although F.B.’s response to the exit survey
primarily complained about O’Brien damaging the learning environment in,
and the reputation of, her research department, it also disclosed a few facts
Jane Roe would later report. Specifically, F.B. disclosed that “in December
2011, Prof. O’Brien strongly encouraged a female first year graduate student
from MIT to go back to his hotel room with him late at night at a conference.”
But F.B. misidentified the conference, omitted the name of the MIT student,
and did not—in this single sentence—sufficiently describe a violation of the
Faculty Code of Conduct for which the University later proposed to discipline
O’Brien.
In particular, F.B.’s report did not describe O’Brien as harassing and
discriminating against a junior colleague. F.B. did not mention, for example,
that the MIT student shared an academic sub-specialty with O’Brien and was
seeking professional feedback from him on her conference presentation, so
that she was acting in the role of an academic colleague. F.B. did not disclose
that O’Brien’s “strong[] encourage[ment]” was so unwelcome as to interfere
with the MIT student’s working or learning environment, such that the
conduct might be characterized as harassment or discrimination. And F.B.
did not mention any misconduct other than strong encouragement to return
to O’Brien’s hotel room, such as the unwanted physical touching and
sexualized response to her request for academic feedback that Jane Roe later
described. These omitted facts are ones Jane Roe might be expected to
include in her own report, if and when she chose to complain to the
27
University; but they were not reported in F.B.’s single-sentence “anecdote”
illustrating how O’Brien was harming the reputation of the University’s
research group. Indeed, F.B. disclosed none of the facts that so concerned
Chancellor Christ when she eventually disciplined O’Brien for the “serious
violation” of “[s]exualizing the Complainant in response to her request for
feedback on her scholarly work” from a “colleague[].”
Considering the factors we have identified above, we conclude
substantial evidence supports the trial court’s finding that the University’s
disciplinary complaint against O’Brien was timely filed. F.B.’s complaint was
quite formal in that it was in writing, but it was aimed at a different violation
of University policy, namely the creation of a hostile and sexist learning
environment in the University’s computer graphics research group. To the
extent F.B.’s report addressed O’Brien’s conduct toward Jane Roe, it was
informal in that it did not allege a violation of University policy, and indirect
in that Jane Roe did not make the report or request F.B. to report on her
behalf. Also, F.B.’s complaint lacked an appropriate level of detail regarding
O’Brien’s interaction with Jane Roe, omitting much of the information
necessary to establish a prima facie violation of the Faculty Code of Conduct.
Because F.B. did not report or allege a violation of the Faculty Code of
Conduct with regard to Jane Roe, she did not start the three-year clock
running as to the complaint Jane Roe made in 2017, and we accordingly
affirm that the three-year rule was not violated in this case.
III. O’Brien Violated APM-015, Part II.D
Turning to the merits, O’Brien challenges the finding that he violated
the ethical principle incorporated into Faculty Code of Conduct Part II.D.,
which states: “As colleagues, professors have obligations that derive from
common membership in the community of scholars. Professors do not
28
discriminate against or harass colleagues. They respect and defend the free
inquiry of associates. In the exchange of criticism and ideas professors show
due respect for the opinions of others. Professors acknowledge academic
debts and strive to be objective in their professional judgment of colleagues.
Professors accept their share of faculty responsibilities for the governance of
their institution.”
O’Brien contends he did not violate Part II.D because (1) Jane Roe was
not his colleague, and (2) any interaction he may have had at the SIGGRAPH
conference would not constitute actionable harassment or discrimination
under this provision of the Faculty Code of Conduct. Again, we will address
separately O’Brien’s arguments about what the Code means and his
arguments about what the evidence shows.
A. The Meaning of “Colleagues”
O’Brien argues the Committee’s finding that Roe was O’Brien’s
colleague in 2012 subverts the language of Part II.D. He reasons that the
dictionary defines a colleague as an associate or co-worker who is “often” of
an equal rank, and posits that the term is clearly used in the Faculty Code to
refer exclusively to other U.C. Berkeley professors.
The Faculty Code of Conduct does not define the term colleague, and
we disagree that it necessarily refers only to individuals of the same rank,
i.e., other professors, let alone professors from the same university. As the
P&T Committee observed, the rule could easily have been limited to that
discrete group if such was its intent, by stating that, as colleagues, professors
do not discriminate against or harass other U.C. Berkeley professors, and
that they defend the free inquiry of these other professors. Instead, the
ethical principle in Part II.D is broadly worded in stating that professors do
not discriminate against or harass “colleagues,” that they defend the free
29
inquiry of “associates,” and they respect the opinions of “others.” These
quoted terms certainly encompass other U.C. Berkeley professors, but the
fact that other professors are colleagues does not mean that only professors
are colleagues. We have no doubt that the community of scholars making
important contributions to the academic fields in which professors operate
includes graduate students. That is precisely why graduate students are
invited to present papers at international academic conferences.
O’Brien relies on the fact that the Faculty Code of Conduct sets forth
“Types of Unacceptable Conduct” that violate ethical principles pertaining to
colleagues; he contends the examples given all involve mistreatment of
another professor. As a factual matter, this may be incorrect. The fourth
example of unacceptable conduct is “[b]reach of established rules governing
confidentiality in personnel procedures.” (APM-15, Part II.D.4.) If this
example is somehow limited to personnel procedures involving faculty
members, that is not apparent from its text. 6 But more fundamentally,
O’Brien’s argument ignores the explicit design of this code, which designates
enumerated types of unacceptable conduct as examples of conduct that
“presumptively are subject to University discipline.” (See APM-015, Part II,
p. 5.) The Code makes clear that “[o]ther types of serious misconduct,”
although not “specifically enumerated,” may be the basis for disciplinary
action if that conduct is not “justified” by the ethical principles and
6 Perhaps recognizing as much, O’Brien inexplicably expands his
definition of “colleagues” to encompass “other UC Berkeley faculty or
personnel,” when commenting on this example in Part II.D.4, although he
otherwise limits the reach of the rule to “ ‘professors,’ particularly professors
at UC Berkeley” or, when discussing the history of APM-015, “faculty and
university administrators.”
30
“significantly impairs the University’s central functions as set forth in the
Preamble” to the Code. (Ibid.)
According to the Preamble, the central functions of the University are
to “provide and sustain an environment conducive to sharing, extending, and
critically examining knowledge and values, and to furthering the search for
wisdom.” These worthy goals require that faculty members respect and
defend fellow members of the community of scholars, without regard to
whether those individuals are U.C. Berkeley professors, graduate students
collaborating on University-sponsored research, or academics from other
institutions presenting at international academic conferences. O’Brien does
not suggest that any ethical principle in the Faculty Code of Conduct
“justifie[s]”—or otherwise places beyond censure—discrimination or
harassment if the victim is not affiliated with U.C. Berkeley. Nor could he
plausibly maintain that professors must “acknowledge academic debts” only
when they borrow from the work of other U.C. Berkeley professors. Surely
attribution must be given, when due, to the work of academics from other
institutions, and to U.C. Berkeley graduate students who assist in a
professor’s research. By rejecting O’Brien’s construction of “colleagues” as
limited to other U.C. Berkeley professors, the Committee construes its own
rules in a manner that avoids impairing the central functions of the
University.
O’Brien also contends that the Committee’s interpretation of Part II.D
is inconsistent with evidence of the “history” of the Faculty Code that was
filed in the writ proceeding in response to the trial court’s request for further
briefing. The Regents object to us considering this regulatory history on the
ground that it was not introduced into evidence at the administrative hearing
before the P&T Committee. The Regents ignore that this regulatory history
31
evidence is part of the appellate record because they filed it in the writ
proceeding, and that the trial court relied on it when ruling on the mandate
petition. In any event, O’Brien cites nothing in this regulatory history that
addresses the ethical principles he was found to have violated, or the specific
definition of the word “colleagues” as used in the Faculty Code’s recitation of
these principles. Thus, this evidence does not change our analysis or
conclusion.
For all these reasons, we affirm the P&T Committee’s conclusion,
adopted by the trial court, that the word “colleagues” in Part II.D does not
apply exclusively to other U.C. Berkeley professors but may include, in an
appropriate case, an MIT graduate student. Here, the Regents’
interpretation of their own rule merits at least a modicum of consideration in
light of their comparative expertise on the role of graduate students in the
community of scholars, and it is consistent with the language of, and furthers
the policies underlying, the Faculty Code of Conduct.
B. The Meaning of “Discriminate” and “Harass”
O’Brien contends the finding he discriminated against or harassed Roe
within the meaning of Part II.D must be set aside because it conflicts with
the Committee’s finding that O’Brien did not violate the 2008 SVSH policy. 7
O’Brien reasons that if his conduct at the SIGGRAPH conference did not
constitute discrimination or harassment under the 2008 SVSH policy, it
necessarily follows that the exact same conduct did not constitute
discrimination or harassment under Part II.D. We disagree with this logic,
which misreads the Committee’s findings. The Committee found that the
7 Because the trial court affirmed and adopted the Committee’s
findings of fact, we review those findings for substantial evidence. O’Brien’s
argument here, however, is that the Committee erred as a matter of law by
making internally inconsistent findings.
32
2008 SVSH policy did not apply in this case because the policy reached only
conduct that occurred in University programs and activities, or between
members of the University community. Because the policy did not apply, the
Committee made no finding as to whether O’Brien’s conduct would otherwise
meet the definitions of harassment and discrimination as those terms were
used in the 2008 SVSH policy.
Making essentially the same argument a different way, O’Brien
contends there is no evidence to support a finding that “harassment” and
“discrimination” are defined in Part II.D more expansively than in the 2008
SVSH policy. Again, the finding that the 2008 SVSH policy does not apply
does not relate to the nature of O’Brien’s conduct, but to the facts that Jane
Roe had no affiliation to the University, and the SIGGRAPH conference was
not a University event. These undisputed facts are dispositive when
considering whether O’Brien violated the 2008 SVSH policy because the
policy expressly limited its application to “incidents between any members of
the University community, including . . . non-student or non-employee
participants in University programs . . .” No such restrictions appear in the
language of Part II.D, as the Committee found. And we reject O’Brien’s effort
to import such a restriction by reference to “the University’s central functions
as set forth in the Preamble.” The University does not “sustain an
environment conducive to sharing . . . knowledge and . . . furthering the
search for wisdom” by countenancing its professors’ harassment of colleagues
from other academic institutions. (APM-015, Part II, p.5.)
C. The Challenged Findings Are Supported by the Evidence
O’Brien contends the finding that Roe was his “academic colleague at
the time the alleged conduct occurred is . . . untenable.” (Italics omitted.)
The Committee did not find that Roe and O’Brien were academic colleagues
33
of equal rank, but rather that Roe was a junior colleague of O’Brien’s when
they participated in the 2012 SIGGRAPH conference. The Committee made
extensive findings of fact that support this conclusion: The SIGGRAPH
conference was prestigious and a top academic gathering in the field of
computer graphics; Roe made a presentation at the conference, which was
considered “a milestone in the advancement of her career”; O’Brien
specialized in the subfield that was the subject of Roe’s paper; O’Brien
interacted with Roe at a social event associated with the conference “[i]n his
role as a Berkeley professor”; and, during the interaction, professional
matters were discussed.
O’Brien does not attempt to show that any of these facts are
unsupported by the record, but argues instead that a distinction should be
drawn between a professor’s role at a conference and at a private club after
the conference ends for the day. He points to no regulatory language drawing
that distinction or limiting application of the ethical principles pertaining to
treatment of colleagues to specific locations or times of day. To be sure, there
may be cases in which a faculty member attending a professional conference
during the day goes out at night and engages in conduct unrelated to his role
as a faculty member. But O’Brien makes no such showing here, and he
ignores evidence establishing a nexus between the SIGGRAPH conference
and the incident at the bar in which he mistreated Roe. That evidence shows
that the reason Roe and O’Brien were at the bar together was because they
were attending a conference at which O’Brien was a prominent professor and
Roe was his junior colleague. When that day’s session of the conference
ended, O’Brien went out with a group of graduate students who were all
attending the conference, and Roe was anxious to network with O’Brien and
his students because making those connections could enable “the kind of
34
collaborations that make a career in her chosen field,” as the P&T Committee
found. And indeed, Roe and O’Brien discussed professional matters in the
bar.
O’Brien also contends in summary fashion that “mere non-collegial
treatment of others” does not constitute harassment or discrimination under
Part II.D or any other University policy. The P&T Committee found, and the
trial court affirmed, that the following interactions occurred: When Roe
requested “a professional evaluation of her presentation,” O’Brien “sexualized
her, replying that he had not been paying attention to her words but instead
had been imagining what was under her dress.” O’Brien also “insinuated”
that Roe obtained the honor of first authorship on her paper by
“manipulat[ing] the romantic or sexual interest of her co-author.” When Roe
made additional requests for “feedback on her scholarly work,” O’Brien
continued to sexualize the conversation and “persisted in his conduct” despite
Roe’s efforts to deflect O’Brien’s “sexualized attention” and her “expressions
of disinterest.” We understand that O’Brien continues to deny these
interactions occurred, but he does not show that the Committee’s findings to
the contrary are unsupported by evidence presented at the administrative
hearing. These findings, in turn, support the conclusion ultimately reached
by the Committee and the trial court that O’Brien harassed and/or
discriminated against a junior colleague.
IV. The Disciplinary Proceeding Was Fair
O’Brien challenges the fairness of the University’s disciplinary
procedure, presenting two distinct sets of arguments. O’Brien contends first
that he was not provided legally sufficient notice that his conduct at the
SIGGRAPH conference could potentially result in discipline by the
35
University. O’Brien cites no authority supportive of this claim of error and
his specific legal theory is not readily apparent.
“Notice of the charges sufficient to provide a reasonable opportunity to
respond is basic to the constitutional right to due process and the common
law right to a fair procedure.” (Rosenblit v. Superior Court (1991) 231
Cal.App.3d 1434, 1445.) But O’Brien does not dispute here that he received
notice of the disciplinary charges filed against him, including the charge that
he violated Part II.D. If O’Brien is suggesting that Part II.D is too vague to
satisfy due process standards of fairness, his point is not well-taken. In the
context of statutes, due process requires sufficient clarity to provide a
standard against which conduct can be uniformly judged. (Gutknecht v. City
of Sausalito (1974) 43 Cal.App.3d 269, 273.) “ ‘It is not required that a
statute, to be valid, have that degree of exactness which inheres in a
mathematical theorem. It is not necessary that a statute furnish detailed
plans and specifications of the acts or conduct prohibited.’ ” (Id. at p. 274.)
Here, PART II.D articulates ethical principles relating to a faculty member’s
treatment of a colleague, which are sufficiently clear to provide a standard
against which conduct can be uniformly judged.
O’Brien does not seriously contend he was denied notice that
harassment and discrimination of a colleague are impermissible under the
Code. His real objection is that he did not realize he could be punished for
engaging in such improper conduct while attending a conference that the
University did not sponsor. In this regard, O’Brien opines that the Faculty
Code should specifically address whether conduct at conferences is subject to
discipline. O’Brien is free to pursue the argument elsewhere, but it does not
support his contention that the proceeding in this case was unfair due to lack
of notice. As the P&T Committee observed, many provisions of the Faculty
36
Code, including the provision O’Brien violated, do not contain limitations as
to geographical location or exceptions for misconduct committed against a
person who is not directly affiliated with the University.
Finally, O’Brien intimates that the University lacked jurisdiction to
discipline him for conduct that allegedly had no effect on the University or its
reputation. In this regard, O’Brien disputes the Committee’s finding that
O’Brien attended the conference as a U.C. Berkeley professor, but his
rejoinder that he attended as a SIGGRAPH affiliate is beside the point. The
record shows that when O’Brien attended the conference, he was a prominent
and influential U.C. Berkeley faculty member in the specific field of study
that was the subject of the conference. O’Brien had been actively involved
with SIGGRAPH for many years, had students from his lab presenting
papers at the conference, and felt that, as a faculty member, it was important
that he attend the conference. The misconduct that resulted in this
disciplinary proceeding occurred at the conclusion of an evening during the
conference, which O’Brien spent with his students from U.C. Berkeley as well
as a graduate student working in his same academic sub-specialty. This
evidence shows that O’Brien interacted with Jane Roe as a U.C. Berkeley
professor, whether or not he was also SIGGRAPH affiliated, and that his
conduct during the interaction did reflect on the University, as the P&T
Committee found.
With his second set of arguments, O’Brien contends he was denied his
right to a fair hearing. In presenting this argument, O’Brien relies on
authority discussing the minimum standards for providing a fair hearing in a
student disciplinary proceeding. (Citing Doe v. Allee (2019) 30 Cal.App.5th
1036.) The Regents contend that because this case involves discipline of a
faculty member as opposed to a student, different standards of procedural
37
fairness should apply, but they offer no reason for this view, nor do they
articulate alternative standards.
O’Brien contends specifically, that the University violated his fair
hearing rights by appointing a single individual at OPHD to investigate Roe’s
complaint and make findings of fact without conducting an evidentiary
hearing. In some other context, such a procedure could raise fairness
concerns. But here, the role of OPHD was simply to make a preliminary
determination: whether probable cause existed to file a disciplinary
proceeding against O’Brien. Tellingly, O’Brien does not dispute that once the
University filed a disciplinary complaint, he was afforded a full evidentiary
hearing before the P&T Committee, where he had the opportunity to present
evidence and call and cross-examine witnesses. His appellate argument that
the P&T Committee simply adopted the findings of the OPHD investigator is
unfounded, as it is unsupported by any factual analysis and ignores the
procedural record, which we have summarized above.
Acknowledging at least implicitly that he was afforded a full
administrative hearing before the P&T Committee, O’Brien argues that
hearing was unfair because the University acted on behalf of Roe, and
withheld evidence from O’Brien’s counsel until the hearing was underway.
This argument is not developed to the point that O’Brien contends prejudicial
error occurred. O’Brien also asserts the hearing was unfair because the
Committee sustained relevancy objections to inquiries about Roe’s mental
health, but he fails to show that any specific ruling by the Committee was
erroneous, let alone prejudicial.
V. The Sanction was not Excessive
Finally, O’Brien contends that a one-year suspension was “a
constitutionally excessive fine,” in that it caused him to forego $270,000 in
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salary and benefits. But O’Brien does not develop the constitutional
argument, and the law on administrative fines is not in his favor. “The
propriety of a sanction imposed by an administrative agency is a matter
resting in the sound discretion of that agency, and that decision will not be
overturned absent an abuse of discretion. [Citations.] ‘Neither a trial court
nor an appellate court is free to substitute its discretion for that of an
administrative agency concerning the degree of punishment imposed.’
[Citations.] This rule is based on the rationale that ‘the courts should pay
great deference to the expertise of the administrative agency in determining
the appropriate penalty to be imposed.’ ” (Hughes v. Board of Architectural
Examiners (1998) 68 Cal.App.4th 685, 692.) “Moreover, ‘[i]t is only in the
exceptional case, when it is shown that reasonable minds cannot differ on the
propriety of the penalty, that an abuse of discretion is shown.’ ” (Doe v.
Regents, supra, 5 Cal.App.5th at p. 1106.)
O’Brien fails to show that the sanction imposed was improper under
these standards. He contends that Chancellor Christ based her decision on
the mistaken belief that he had violated the 2008 SVSH policy, when the
record shows the Chancellor made no such mistake. He also contends that
the Chancellor “negate[d]” the Committee’s recommendation to impose an
alternative sanction, which is also unsupported by the record. As we have
noted, the Committee recommended, and the Chancellor imposed, a one-year
suspension instead of the three-year suspension sought by the University.
Explaining why it believed the University’s proposal was too harsh, the
Committee recognized that O’Brien’s “misconduct was serious, and he [had]
yet to acknowledge that it occurred,” but pointed out that several years had
passed and no subsequent reports of misconduct had been made. By the
same token, however, the Committee rejected O’Brien’s proposed sanction of
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an admonishment instead of suspension. Guided by the University’s
Administration of Discipline policy (APM-016), the Committee found that a
sanction with a “rationale” relevant to the charges would be a written
censure and one-year suspension.
To be sure, when the Committee forwarded its final report to the
Chancellor, it not only confirmed its recommendation of a one-year
suspension but also proposed—perhaps even encouraged—an alternative
sanction of restricting O’Brien’s ability to work with graduate students rather
than suspending his employment. But Chancellor Christ’s decision to impose
the recommended one-year suspension and written censure instead of the
proposed alternative did not negate the Committee’s recommendation, and it
was not an abuse of the Chancellor’s discretion.
DISPOSITION
The judgment is affirmed.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
RODRÍGUEZ, J.
O’Brien v. The Regents of the University of California (A164481)
40
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Paul D. Herbert
Counsel: Hathaway Parker, Mark M. Hathaway and Jenna E.
Parker for Plaintiff and Appellant
Munger, Tolles & Olson, Halyn J. Chen, April D. Youpee-
Roll, Stephanie G. Herrera; and Katharine Essick for
Defendant and Respondent
41