University’s Rule Requiring It To Initiate Discipline Within Three Years Did Not Bar Faculty Discipline

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Aug 30, 2023

In late 2012, UC Berkeley professor James O’Brien attended a computer graphics conference in Singapore. He went to dinner and then a bar with several graduate students attending the conference, including UC Berkeley graduate students and a first year Ph.D. student from the Massachusetts Institute of Technology (MIT) named Jane Roe.

In 2014, a UC Berkeley Ph.D. student identified as “F.B.” completed an anonymous exit survey saying that O’Brien created a hostile and sexist environment by regularly insulting students and peer faculty and harassing at least five female students. As an example, F.B. stated that at a December 2011 conference, O’Brien strongly encouraged a female first year graduate student from MIT to go back to his hotel room with him. Although this referred to the incident with Roe, the date was incorrect by one year. The anonymous survey was shared with the Office for the Prevention of Harassment and Discrimination (OPHD), the heads of the Department of Electronical Engineering and Computer Sciences, David Culler and Tsu-Jae King Liu, and the Department’s Executive Director of Student Affairs, Susan Kauer. OPHD confirmed that they had no complaints against O’Brien on file. Culler, King Liu, and Kauer decided that Culler would look into the matter further. Culler figured out who F.B. was and spoke with her over the phone. F.B. felt it was not her place to share further information about the MIT student. Culler then met with O’Brien, who denied everything.

Over three years later, in December 2017, Roe submitted a complaint to the OPHD alleging that O’Brien made unwanted and disparaging sexual comments and conduct towards her at the 2012 conference in Singapore.

OPHD investigated the complaint in 2018 and found O’Brien sexually harassed Roe under the University’s Sexual Violence and Sexual Harassment (SVSH) policy. OPHD referred the matter to the Vice Provost who then filed a formal complaint in 2019 with the Privilege and Tenure Committee (P&T) for violation the Faculty Code of Conduct. O’Brien insisted that this violated the University’s “three-year rule,” which required the Chancellor to file disciplinary charges no later than three years after the Chancellor is deemed to have known about the alleged violation. O’Brien argued that F.B. reported the incident in 2014 – over four years before the investigation. In March 2020, O’Brien received written censure and a one-year suspension.

O’Brien filed a petition for a writ of mandate to compel the UC Regents to set aside the disciplinary decision, raising procedural, substantive, and due process objections. He alleged an excess of the UC Regents’ jurisdiction, failure to conduct a fair disciplinary hearing, misuse of discretion by failing to follow the law, and making unsupported findings and decisions. The trial court denied O’Brien’s petition and found that the administrative record supported P&T’s findings.

The First District Appellate Court of Appeal affirmed the trial court’s denial of petition. The Court of Appeal found that the University did not violate the three-year rule since the rule is triggered when there is a report of an alleged violation, rather than the receipt of evidence from which, with the exercise of reasonable diligence, the University could have learned of the alleged violation. The court found that the main purpose of F.B.’s preliminary report was to expose the hostile environment that O’Brien created within the research group, rather than the violation of conduct committed by his behavior towards Roe. Because F.B. did not report or allege a violation of the Faculty Code of Conduct in regard to Roe, the court found that the University timely filed the disciplinary complaint.

The Court of Appeal also found that Roe was O’Brien’s colleague according to the Faculty Code of Conduct. The Court of Appeal found a nexus between the incident the bar and the conference because they were only at the bar together because of the conference, and professional matters were discussed there.

Finally, the Court of Appeal found that the one-year suspension was not “constitutionally excessive.”

O’Brien v. Regents of University of California (2023) 92 Cal. App. 5th 1099.

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