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SWANSON & McNAMARA

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March 24, 2016


PERSONAL AND CONFIDENTIAL
Via email to jacobsen@berkeley.edu
Bob Jacobsen
Dean, Undergraduate Studies, College of Letters & Science
Department of Physics
University of California
366 LeConte Hall MC 7300
Berkeley, CA 94720-7500
Re: Supplemental Response to Notice of Intent to Terminate Yann Hufnagel
Dear Dean Jacobsen:
Thank you for taking the time with us yesterday to meet as part of the administrative
review process. We spent most of that time addressing the facts of course, because the full
text record should decide this matter in Mr. Hufnagels favor. But, as we discussed, the
Universitys policies are the starting point. There, a key question is: Under the most reasonable
reading of the February 25, 2014 Policy, is it clear that, if he flirted with someone who did not
work for/study at the University and did so when they both were off campus, would Mr.
Hufnagel be subject to possible discipline on the job? We believe the answer to that is no.
A. Does the Policy Apply?
The applicable policy is the February 25, 2014 Policy on Sexual Harassment and Sexual
Violence. (February 25, 2014 Policy) (Report at 2, n.1).
The February 25, 2014 Policy defines sexual harassment as:
[U]nwelcome sexual advances, requests for sexual favors, and other verbal,
nonverbal, or physical conduct of a sexual nature. Sexual harassment is conduct
that explicitly or implicitly affects a persons employment or education or
interferes with a persons work or educational performance or creates an
environment such that a reasonable person would find the conduct
intimidating, hostile, or offensive...1
1

The December 18, 2015 Sexual Violence and Sexual Harassment Policy clarifies that unwelcome sexual
advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature

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Sexual harassment may include incidents between any members of the


University community, including faculty and other academic appointees, staff,
student employees, students, coaches, residents, interns, and non-student or
non-employee participants in University programs (e.g., vendors, contractors,
visitors, and patients). Sexual harassment may occur in hierarchical relationships,
between peers, or between individuals of the same sex or opposite sex. To
determine whether the reported conduct constitutes sexual harassment,
consideration shall be given to the record of the conduct as a whole and to the
totality of the circumstances, including the context in which the conduct
occurred.
February 25, 2014 Policy, Section II (Definitions) (emphasis added).
The very unusual feature of this case is that it involves alleged conduct that was not only
non-physical and almost entirely not conduct at all, but communication via text. And, the
entirety of it occurred off-campus and with a non-University person. The investigators simply
assumed that, due to her work covering the University basketball team, Complainant met the
definition of visitor, and was thus properly covered under the Policy. But, visitors are covered
only if they are participants in University programs. February 25, 2014 Policy, Section II
(Definitions) (Policy applies to non-student or non-employee participants in University
programs (e.g., vendors, contractors, visitors, and patients)). Merriam-Webster defines
participant as a person who is involved in an activity or event; a person who participates in
an activity or event. Complainant was not a participant in Cal basketball or any other
University program. She observed and reported on Cal basketball, which is not the same thing
as being a participant in the basketball program.
1. Does Off-Campus Conduct, Even with a Visitor Participant Fall Under the Policy?
Even if Complainant was somehow a participant in a University program when she
sought recruiting information from Mr. Hufnagel, the Policy does not apply to Complainants
voluntary actions outside of that activity, e.g., when she waited for Mr. Hufnagel to accompany
him off-campus to the brewpub and then to drive him home. At the point when she left
become harassment when: Quid Pro Quo: a persons submission to such conduct is implicitly or
explicitly made the basis for employment decisions, academic evaluation, grades or advancement, or
other decisions affecting participation in a University program; or [] Hostile Environment: such conduct is
sufficiently severe or pervasive that it unreasonably denies, adversely limits, or interferes with a
persons participation in or benefit from the education, employment or other programs and services of
the University and creates an environment that a reasonable person would find to be intimidating or
offensive. This restatement of law governing sexual harassment is helpful to consider here.

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campus with Mr. Hufnagel to go the brewpub (and certainly when she drove him to his
apartment), there is no construction of the policy that would find Complainants conduct that
night to be participation in a University program.
Notably, as we laid out in our March 23 letter to you, in December 2015, after the
events here, the University changed its Sexual Harassment policy to extend to off-campus
conduct and to conduct in connection with University programs. The new language provides:
The University has jurisdiction over alleged violations of this Policy that occur on University
property (such as offices and residence halls) or in connection with University activities,
programs, or events. In addition, the University may exercise jurisdiction over conduct that
occurs off-campus (i) that affects the learning or working environment; or (ii) that would
violate other University Policies had it occurred on campus. December 18, 2015 Policy
V.A.2(b)(Jurisdiction)(emphasis added). This language does not appear in the February 25,
2014 Policy applicable here.
2. Is Consensual Conduct Prohibited by the Policy?
Even if the February 25, 2014 Policy applies to those who do not participate in any
University program and to conduct that occurs off-campus, in order for such conduct to
constitute sexual harassment, it must be nonconsensual or unwelcome. The February 25, 2014
Policy makes it completely clear that it does not prohibit consensual relationships. It prohibits
only unwelcome conduct of a sexual nature. February 25, 2014 Policy, Section III(A)
(Consensual Relationships) (emphasis added).
As set forth in yesterdays submission, the record is clear here that Complainant was an
equal participant in the flirtatious texting. A full reading of the texts shows Complainant was
the one who initiated personal contact, inviting herself to Mr. Hufnagels apartment, and
escalating the discussion to the hook-up app Tinder when Mr. Hufnagel included innuendo.
This is not a record where the innuendo appears unwelcome. And it certainly is not a record of
deflection and redirection as Complainant claimed. As for the evening of the brewpub, the
evidence refutes Complainants explanation for the otherwise inexplicable (if she was not
coming upstairs) decision to drive Mr. Hufnagel and herself into his garage at 2:00 a.m. And,
everyone agrees that he never touched her, she was in the car at the wheel and he was outside
the car when she asked him if he thought she was coming up, she said no and she then drove
home.
3. Even If Unwelcome, Was the Conduct Severe or Pervasive Enough and Did Mr.
Hufnagel Have the Power to Affect Complainants Working Environment Negatively
Even if the conduct had been unwelcome, which it demonstrably was not, it still does
not constitute sexual harassment unless it was severe and pervasive enough to have interfered
with Complainants work environment. The false premise in the investigations conclusions is

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that Mr. Hufnagel had the power to deprive Complainant of information and did so, causing her
to lose her job.
We provided considerable detail in our previous submission about how Mr. Hufnagel
helped Complainant repeatedly both after the January 24, 2015 brewpub night and after the
three-way texts in March 2015. See 3/23/2016 Submission, pg. 10, 12, 13 (collecting and
discussing texts in which Mr. Hufnagel provided information). It was not his job to do so, but he
did so willingly until Complainant blogged in a way that was tantamount to revealing him as a
source of confidential information on May 22, 2015 and put him in a difficult position with his
boss.
It is important to recall that Mr. Hufnagel was a source for Complainant, who was a
reporter, but not a University student or staff member. Complainant freely admitted that she
lack[ed] of any basketball acumen. Ex. B. Complainants job did not require her to use Mr.
Hufnagel as a source; in fact, most reporters work to develop multiple sources for stories. Nor
was it Mr. Hufnagels job to be a source; rather, he was just a good source because he was
willing to provide information to reporters. Certainly the reporters uncovering the NSA
surveillance program were dependent on Edward Snowden as source in reporting the story, but
Mr. Snowden did not have the power to control their work environment. The same was true
of Mr. Hufnagel. Complainant should have had multiple sources, and in any event, the full text
record shows that Mr. Hufnagel helped her repeatedly throughout, providing inside
information, scoops and contacts the very opposite of conduct that was severe or pervasive
enough as to affect her work. See, e.g., TEXT-66 (Mr. Hufnagel advising Complainant to contact
coaches for potential recruits and providing contact information).
B. Does The Totality of the Circumstances Support a Finding of Sexual Harassment?
The February 25, 2014 Policy also requires review of the totality of the circumstances
to determine if sexual harassment occurred. As we set forth in great detail in our March 23
submission, the totality here demonstrates that there was no sexual harassment.
We discussed in detail why Complainants explanation of her decision to drive into the
garage is contradicted by the conditions at the scene. See 3/23/2016 Submission, pg. 16-17. In
addition, it was Complainant who continued with her efforts at forging a personal connection
after that evening. On February 8, 2015 (when her phone was not able to send texts),
Complainant sent Mr. Hufnagel a direct message with a link to a posting she found humorous,
stating, Yanni did you see this, its so good I cant stop laughing. Ex. N (enclosed). Their
relationship remained cordial, personal and flirtatious.
The one in-person encounter in this entire matter was the January 24, 2015 evening of
the brewpub and there it is agreed nothing physical occurred. The rest of the alleged conduct
was via text. Complainants lack of physical proximity to Mr. Hufnagel undermines her

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contention that, out of over 900 texts between them, the few texts from him that contained
innuendo were severe or pervasive enough to affect her working environment. It follows then
that the only possibility that this texting relationship could rise to sexual harassment is if Mr.
Hufnagel cut her off from information for rebuffing him. But the text record shows that he did
not cut her off after January 24, and kept providing her all sorts of information until she
disclosed him as a source on May 22, 2015. Under the totality of circumstances, there was no
sexual harassment.2
C.

The Investigators Did Not Comply With the Policy because they Failed to Provide Mr.
Hufnagel with a Full and Complete Account of the Allegations Against Him

The February 25, 2014 Policy also provides that in order to provide a prompt, fair and
impartial investigation and resolution of a sexual harassment complaint:
The individual(s) accused of conduct violating the Policy shall be provided a copy
of the written request for Formal Investigation or otherwise given a full and
complete written statement of the allegations, and a copy of the Policy.
February 25, 2014 Policy, Section V (B)(4)(a)(i) (Procedures) (emphasis added).
This policy was not followed here. At no time was Mr. Hufnagel provided a full and
complete written statement of the allegations as required to give him fair and adequate due
process. Instead, the investigator showed Mr. Hufnagel a one-page typed sheet that had three
numbered items on it: 1) Complainants allegation concerning the evening in the brewpub
where she drove him into his garage; 2) Complainants allegations about the three-way texts
in March 2015; and 3) Complainants allegation that he retaliated against her after she turned
down his advance on the night of January 24, and as a result, she lost her job. At no point prior
to receiving the Notice of Intent to Terminate was Mr. Hufnagel informed that Complainant was
complaining about weekly or biweekly harassment over the six-month period spanning from
November 2014 through May 2015. If the Investigator had complied with the Policy, Mr.
Hufnagel could have submitted the full text record earlier before the issuance of the erroneous
findings in the Report.
D. Additional Evidence Submissions
At our meeting, we discussed additional evidence to consider, which is enclosed:

Ex. M: A text from Witness 1 to Mr. Hufnagel and the rest of the BB team
forwarding the May 22, 2015 blog spot by Complainant and asking Source? As we discussed
yesterday, Witness 1 was displeased that this information had gotten to the press.
2

For this same reason, the proposed sanction termination is grossly disproportionate.

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Ex. N: As we discussed yesterday, the last text exchange between Complainant


and Mr. Hufnagel in the month of January 2015 was on January 18. TEXT-30. In that text
exchange, Complainant commented that she has been experiencing problems receiving texts on
her phone. Exhibit N consists of the direct messages exchanged by Mr. Hufnagel and
Complainant via Twitter between January 18 and May 26, 2015. On February 8, 2015, two
weeks after being at the brewpub together, Complainant sent Mr. Hufnagel a direct message
with a link to a posting she found humorous, stating, Yanni did you see this, its so good I
cant stop laughing. The other direct message on this platform came shortly after Complainant
made her complaint about Mr. Hufnagel to Witness 1, which in turn was the day after Mr.
Hufnagel gave her a piece of his mind about the damaging post. (The post was on May 22,
2015). Coach Martin then asked Mr. Hufnagel to call her. On May 26, 2015, the final direct
message reflects Mr. Hufnagels message to Complainant reaching out to her.

Ex. O: This is a text exchange between Mr. Hufnagel and the reporter for
Scout.com who (along with another woman) met Mr. Hufnagel and Complainant at the
brewpub Jupiter on the night of January 24, 2015. This text exchange shows that the idea to go
to Jupiter after the game that night originated with this reporter, not, as she told the
investigator, with Complainant.
E. Conclusion
Please let us know if you have any questions or would like any additional information
and we will respond promptly. We appreciate your considered review of this matter. It is
extraordinarily important to our client who has been severely damaged by the false allegations
made against him.
Sincerely,

_____/s/____________________________
Mary McNamara
Britt Evangelist
Swanson & McNamara LLP
and Jamie Dupree
Futterman Dupree Dodd Croley Maier LLP