SWANSON & McNAMARA

300 Montgomery Street

Suite 1100
San Francisco, CA 94104
www.swansonmcnamara.com
Tel
(415) 477-3800
Fax
(415) 477-9010

March 24, 2016

PERSONAL AND CONFIDENTIAL
Via Hand Delivery
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: Response to Notice of Intent to Terminate Yann Hufnagel
Dear Dean Jacobsen:
This firm and Futterman Dupree Dodd Croley Maier LLP represent Yann Hufnagel in
connection with the Universitys Notice of Intent to Terminate him. In the strongest terms
possible, Mr. Hufnagel disputes that he has violated University policy or that his conduct
warrants termination. He demands a full review of the evidence and a retraction of the Notice.
Our detailed response to the Notice is below.
I.

INTRODUCTION

The University has destroyed the reputation of a young and talented assistant basketball
coach through its incomplete and inadequate investigation. The evidence exonerating Mr.
Hufnagel was readily available, but the University did not bother to look. Instead, it appeared
to be more concerned about making an example of someone in a sexual harassment matter,
even though the complaint here involved no touching whatsoever and was nothing like the
egregious cases of groping of students and employees by senior faculty. We laud the
Universitys goal of stamping out sexual harassment, but this is the wrong case in which to try
to set an example. The University has gotten it terribly wrong in this case.
We now detail the evidence that the investigators either missed or turned a blind eye
to. The University must now halt any final action against Mr. Hufnagel. The evidence
demonstrates beyond any doubt that Complainant selectively chose the texts she provided to
the University and withheld information in the investigation. The full record demolishes her
claim that she was the unwilling recipient of sexual innuendo because it shows that she was
actively engaged in a mutual flirtation that stopped when she decided to stop it. Complainants
1

SWANSON & McNAMARA

flirting took the form of asking Mr. Hufnagel for a date, an invitation to his apartment and
talking to him about girls. When she decided to stop flirting, Mr. Hufnagel continued to give
her leads, tips, a scoop, an interview. At all times, he went out of his way to help Complainant,
not retaliate against her.
But this evidence was never presented to the investigators, and the investigators did not
do any actual investigation; they chose instead to take the Complainant completely at her
word. Although her complaint was of bi-weekly sexual innuendo-laden texts, neither of the
two investigators working over the eight month investigation period asked Complainant or Mr.
Hufnagel for the full set of the texts between them. The investigators relied only on the
selected handful shown them by Complainant. And that handful was all that they in turn
showed to Mr. Hufnagel. Further, the investigators accepted on faith Complainants account of
the evening of the Jupiter brewpub, failing to take even rudimentary steps to verify her story.
Complainant explained her decision to drive both Mr. Hufnagel and herself home and all the
way into his garage by claiming that she had no way of safely pulling over due to fast-moving
traffic. Even assuming fast-moving traffic at 2:00 a.m., had the investigators looked at even a
google image of the scene, they would have observed the broad driveway off the street and the
red zone next to it allowing ample space to drop off Mr. Hufnagel.
As to Complainants claims that Mr. Hufnagel attempted to control her ability to leave
the garage, that he kept insisting that she come up, that he indicated he did not intend to let
her out of the garage, it is clear that not even the investigators believed any of it. Mr. Hufnagel
continued working on campus after the Complainant first made these allegations to the
investigators, and the investigators chose not to suspend him during their eight month
investigation which would have been an urgent priority had they believed her story. In fact
the Report specifically said that [t]he need for interim measures was evaluated. No interim
measures were necessary or appropriate (Report at 2), a conclusion which is difficult to
defend if you credit Complainants story that Mr. Hufnagel trapped her in his garage until he
relented and let her leave. But, it was hard to credit Complainant here because even she
admitted that Mr. Hufnagel was outside her car during the supposed repeated insisting and
she was at all times at the wheel. She agrees he never touched her, either on that or any other
occasion and that she left and drove home.
Most telling of all, after that evening, the flirtation continued. Immediately following
the three-way text exchange relied on so heavily in the Report, Complainant asked Mr.
Hufnagel if he was on the sex hookup application Tinder, and joked about running into him on
that application. These facts demonstrate that nothing about Mr. Hufnagels conduct was
unwelcome.
Eventually, Complainant changed the tone of their texts, removing her flirtatious
comments. That occurred a full two months after the brewpub evening, was demonstrably not
because of what supposedly happened in the garage, but because Complainant was angry at
Mr. Hufnagel for what she perceived as his withholding information from her about the status
2

SWANSON & McNAMARA

of a particular recruit. But Mr. Hufnagel withheld the information from other reporters, and he
did so on his bosss orders. Complainant did not believe that and cut the flirtation off cold.
From then on, her texts were critical of him and quite curt. Rather than retaliate against her as
she claims, Mr. Hufnagel continued to help her, offering scores of leads, tips and a sit-down
interview. And when Mr. Hufnagel did cut off contact in May, he did so only after Complainant
violated professional practice and her own agreement with him to avoid identifying him as the
source of confidential information.
Compounding the investigative failures on securing the full texts and googling the
outside of Mr. Hufnagels apartment, the University dropped the ball completely when the
investigators changed mid-stream. The first investigator had interviewed both Complainant
and Mr. Hufnagel. The second investigator decided to re-interview Complainant, but not Mr.
Hufnagel. It was this second investigator who reached all of the factual conclusions. She never
met Mr. Hufnagel.
Most damaging of all, the University chose to publish its incomplete Investigation
Report to the media while the administrative review period was still open. Doing so appears to
have been designed to deflect the intense criticism the University has taken for its handling of
sexual harassment complaints against senior faculty. Had the University waited the
administratively-required eight days after issuance of the Notice of Intent to Terminate, Mr.
Hufnagel could have supplemented the record in an atmosphere free of sensationalism and this
matter would have resolved as it should have done, with no finding of sexual harassment.
Although the University chose to publicize its Report on Mr. Hufnagel, he has not, as of now,
followed suit by going to the press. He wants to give the University the opportunity to reverse
its findings and restore his name. He hopes that this can be done collaboratively for the benefit
of his reputation and that of the University.
Time is of the essence. Mr. Hufnagel deserves to have this injustice corrected immediately.
The University must act now, or he will have to pursue all available options.
II.

THERE WAS NO SEXUAL HARASSMENT THE REPORTS FINDINGS ARE WRONG

The Sexual Harassment Policy in effect at the time of the alleged conduct, and under
which the complaint against Mr. Hufnagel was reviewed, provides that in adjudicating a
complaint 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, II (Definitions). The Universitys investigation, however, utterly failed to satisfy
this mandate because it relied on the few texts that Complainant chose to produce rather than
the full record. Review of the full record shows that a finding of sexual harassment cannot
stand.

SWANSON & McNAMARA

A. Mr. Hufnagel Did Not Behave As Alleged
The Reports first conclusion is that, over the entire period from November 2014
through May 2015, Mr. Hufnagel made repeated sexual innuendos by text message to
Complainant, that Complainant typically deflected the innuendos with humor but was not
encouraging, that she tried to refocus Mr. Hufnagel on collecting recruiting information, and
that she put up with the unwelcome behavior because she had no alternative. Report at 22. 1
As the full record shows, this is not at all what happened. Rather, there was a mutual flirtation
via text and one evening spent together off-campus that included no physical interaction
whatsoever and ended with her going home. During much of their dealings, from November
2014 to March 2015, Complainant flirted with Mr. Hufnagel and Mr. Hufnagel flirted back. This
is the context in which they went to a bar together on January 24, 2015, and ended up in Mr.
Hufnagels apartments parking garage. The flirting stopped by late-March 2015. Between late
March and their last communication in May 2015, Mr. Hufnagel continued to provide
Complainant all of the leads, telephone numbers, scoops and information that she requested
and that he was at liberty to provide. The texts tell the tale of Complainants demanding
information from Mr. Hufnagel and his providing that information virtually every time.
B. Mr. Hufnagel did not harass Complainant via text
The full text record, which we have attached (Exh. A), 2 shows that Complainant
intentionally flirted with Mr. Hufnagel, including by suggesting that they bar hop, that he ask
her out on a date and invite her to his apartment. 3 She asked him about girls and inquired if he
1

It is notable that it was not part of Mr. Hufnagels job duties to be the press liaison. Report at
4. While Mr. Hufnagel did communicate with the press, so did other coaches. The investigators
conclusion despite this information that Mr. Hufnagel was the singular source
for obtaining information for Complainants assignment at
is simply false, leading to
the unprecedented and erroneous conclusion that Mr. Hufnagels texts to a woman who was
neither a student nor an employee of the University constituted a violation of the February 25,
2014 Sexual Harassment Policy. The full record proves that there was a mutual flirtation and
Mr. Hufnagel helped Complainant although it was not his job to do so.
2

Exhibit A is a 77 page print out of the text messages between Mr. Hufnagel and Complainant.
All references to pages within Exhibit A will use this convention: TEXT- [page number].
3

Complainant has published several items discussing her use of her gender in her work or
suggesting that it is an appropriate tool for the reporters toolkit. For instance, she later wrote
jokingly about her Cal Basketball reporting experience stating that, due to my lack of any
actual basketball acumen, Ive decided to rely solely upon sex appeal, as women generally do in
sports media. Im so excited to discuss it while clad entirely in beachwear! SB Nation Blog
post,
(Nov. 16, 2015), attached
hereto as Exh. B. In a YouTube video posted on January 29, 2013 when she was covering Cal
4

SWANSON & McNAMARA

was on Tinder, an on-line sex hook-up application. The investigators never saw most of these
texts because they never asked. Between November 2014 and March 2015, there were
approximately 613 texts sent and received between Complainant and Mr. Hufnagel, comprising
approximately 63 text conversations. Of these approximately 13 were flirtatious or contained
sexual overtones. Of the 13 flirtatious conversations, 11 were initiated by Complainant, two by
Mr. Hufnagel. None was sexually harassing. Contrary to the Report, it was Complainant and
not Mr. Hufnagel who frequently turn[ed] the text conversations in to sexual innuendos. Id.
at 3. Far from deflecting or refocusing Mr. Hufnagel on recruiting matters (Report at 3),
Complainant regularly deflected work talk to personal and flirtatious matters.
The flirtatious texts between Complainant and Mr. Hufnagel stopped in late-March
2015, when Complainant formed the belief that Mr. Hufnagel withheld information from her
about the status of a particular potential recruit. Complainant claimed that Mr. Hufnagels
decision to withhold information on that recruit was retaliatory, but she was and is dead wrong.
On instructions from his boss, Mr. Hufnagel communicated with other (male) reporters in
precisely the same manner regarding that recruit. Exh. D. 4 Far from retaliating against her, Mr.
Hufnagel continued to provide Complainant with multiple tips, scoops and an interview until
she breached his trust by posting a piece containing this information and attributed the
information to sources close to the Cal staff. Exh. F (blog post). This was in breach of
accepted journalistic practice and Complainants own assurances to Mr. Hufnagel that she
would be really really careful in dealing with the sensitive recruiting information that he
sometimes supplied. TEXT-1. Complainant understood the sensitive nature of information
provided by coaching staff to reporters about recruits (Report at 4) and she knew that she had
to exercise great care with the information. TEXT-1. After this incident, Mr. Hufnagel stopped
providing information to the Complainant; not because she had rebuffed his advances, but
because she put him in a difficult situation at work. The very next day, Complainant contacted
Mr. Hufnagels boss and accused Mr. Hufnagel of sexual harassment. A detailed analysis of the
texts between the two follows.
///
football as a student reporter, she engages in flirtation with
, then a linebacker at Cal,
touching his leg as he reclines on a bed and then sitting bikini-clad in a hot tub with Mr.
and another woman. Exh. C at 00:12 (touching leg); id. at 02:55 (hot tub).
4

Exhibit D is a text exchange between Mr. Hufnagel and another reporter in April 2015
regarding the same potential recruit. In this text exchange, the reporter asks Mr. Hufnagel to
be real with him about the status of the recruit. Exh. D at 1. After Mr. Hufnagel avoids
directly answering a number of the reporters questions, he tells the reporter he has been
sworn to secrecy on all matters related to that recruit through a directive from his boss. Id.
at 3-4.

SWANSON & McNAMARA

1. Texts from November through December 2014 Complainant Pursues A
Personal Connection
Complainant told investigators that Mr. Hufnagel harassed her on a bi-weekly basis,
beginning in November 2014, and that 90% of [the] harassment [was] via text. Report at 3,
14. As summarized below, none of the texts from the November and December time period
support that claim. What is true, however, is that throughout these months, Mr. Hufnagel
provided recruiting information to Complainant.5 He did so with short, professional text
messages. The texts exchanged during November and December 2014 reveal that, while the
correspondence started off as strictly professional, by December, Complainant not Mr.
Hufnagel began to seek a more personal connection.
For example, on December 17, 2014, having missed a pre-arranged coffee with Mr.
Hufnagel,6 Complainant texted him asking whether her favorite assistant coach was at Haas
Pavilion so she could stop by to see him. TEXT-6. Mr. Hufnagel responded that he was in Las
Vegas. Complainant then said she had to step up [her] stalking game. Id. When Mr.
Hufnagel asked whether she was stalking him or his recruits, she responded I dont
discriminate. Id. Then, on December 20, 2014, Complainant texted Mr. Hufnagel at 1:20 a.m.
congratulating him on a win and asking him if he was at a bar celebrating. She went on to
mention various bars in the Berkeley area Kips and Perrys and suggested that they might
need to embark on an emergency dive bar tour of Berkeley. TEXT-7.
On December 23, 2014, nearly two months after Complainant first contacted him, Mr.
Hufnagel for the first time initiated a text conversation. He asked, whats up, and she
responded by explaining that she was eating at a restaurant in Berkeley and asked him if he was
texting her because she was so delightful. Mr. Hufnagel responded, Naw I saw ur tweet on
Stanford and it reminded me to text u and make sure u know I wasn't tryna be short when u
asked me about [recruit][.] Even though Mr. Hufnagels response indicated that he reached
out to her for basketball-related reasons, Complainant turned the exchange in a personal
direction, suggesting that he contacted her because she was so delightful. She replied:
Stoppp haha I didn't think you were rude. But thanks for texting me anyway. I'll just pretend
it's because I'm so delightful[.] TEXT-8. Aside from a text wishing her a Merry Christmas, to
See TEXT-1 (responding to a question about upcoming recruiting trips); TEXT-2 (providing the phone
number of recently-signed recruit); TEXT-3 to TEXT-4 (between Nov. 13 and Dec. 5, providing recruitingrelated information on four separate occasions); TEXT-9 (providing information on an upcoming recruit
visit).
5

Between November 25, 2014 and December 8, 2014, Complainant asked Mr. Hufnagel to coffee six
times. TEXT-3 to TEXT-5. Mr. Hufnagel accepted one of the invitations and arrived at the appointed
time and location, but Complainant did not show up. TEXT-5.

SWANSON & McNAMARA

which she responded in kind (id.), this is the only text conversation Mr. Hufnagel initiated
during this two month period.
2. Texts in January 2015 Mutual Flirtation
The texts in January 2015 leading up to the evening of January 24 provide the best
evidence of the state of Complainants and Mr. Hufnagels flirtatious relationship, and thus the
proper context for what actually occurred on the night of January 24 after the two left the
brewpub and ended up in the garage of Mr. Hufnagels apartment (discussed more fully below).
A review of those texts reveals two things. First, many of the texts, most of them initiated by
Complainant, are flirtatious in nature. Far from deflecting or refocusing Mr. Hufnagel on
recruiting (as Complainant claimed she had done, Report at 3), it was often Complainant who
turned their conversations away from basketball towards more personal topics. While
Complainant told the investigator, she was not encouraging of Mr. Hufnagels flirtatious
texting, the text messages tell a very different story; she both initiated and encouraged the
mutual flirtation. Complainant suggested that Mr. Hufnagel take her out on a dinner date and
she requested an invitation to his apartment. Second, when Complainant asked Mr. Hufnagel
for recruitment-related information, he responded in a professional manner and provided what
information he could. He in no way suggested or implied that her access to that information
was contingent on any kind of sexual interplay.
On January 1 Complainant texted Mr. Hufnagel to wish him a Happy New Year. TEXT-10.
Over the next week, Complainant initiated a number of text conversations with Mr. Hufnagel
regarding recruitment-related topics, and then went on to banter conversationally. TEXT-10 to
TEXT-11. 7 Then, between January 9 and January 17, Complainant actively flirted in her
exchanges with Mr. Hufnagel.
On January 9, 2015, Complainant texted Mr. Hufnagel, who was in Los Angeles, and
asked Hows LA. TEXT-12. He responded Greatll Lot of girls Lot of girls[.] Id. On January 13,
at 10:11p.m., Complainant texted: Did you see
when you were in LA or did the
abundance of X chromosomes there preclude your ability to recruit? TEXT-14. Mr. Hufnagel
provided information on the recruits he scouted during his trip, but did not respond to her
comment about women. Id. Complainant then pressed Mr. Hufnagel for more information by
8 win Yanni. We
focusing the conversation on their personal connection: We cant let
7

At other times, Complainant initiated conversations with Mr. Hufnagel on topics completely unrelated
to recruiting. For example, in a January 6 text, Complainant commented nice hat, in reference to the
hat that Mr. Hufnagel was wearing on his way to a basketball practice she was watching. The next day,
she texted again and wished him good luck tonight, in reference to an upcoming game, and she again
commented on his hat: Be sure to wear your hat. TEXT-12.
8

is a reporter for a competitor website,

SWANSON & McNAMARA

both know who your favorite reporter is. Id. Mr. Hufnagel responded by asking her why he
should provide her with special access to information when she never asked to come over,
nothing like that. TEXT-15. But rather than deflect or refocus Mr. Hufnagel on recruiting, as
the Report concluded she had done (Report at 22), she encouraged him by saying, I have never
been invited! Mr. Hufnagel responded that he would invite her over after the upcoming game
against Stanford. Id. Complainant did not end the conversation there, but turned back to Mr.
Hufnagels prior comment about lots of girls and said: I mostly want info about how many
girls were in LA like would you say it was a lot? Id. It was Mr. Hufnagel who then refocused
the conversation on recruiting, only to have Complainant again bring up the girls comment: I
thought we were talking about girls in LA, I told you that's what I'm interested in[.] Id. Further
down in the conversation, she asked Mr. Hufnagel to confirm that he preferred her over
another male reporter. TEXT-17. He responded, You got boobs and he doesnt tho so u win
that fight. Complainants immediate response was: Cool! I was gonna have to downgrade
you to second favorite coach otherwise[.] Which would have been a shame [b]ecause you 've
been a strong number one[.] Id. There is nothing in that or any of these texts to suggest that
Complainant deflected or refocused Mr. Hufnagel or that his texts were unwelcome. Their text
conversation continued, covering several other personal topics, until at one point Mr. Hufnagel
made a joke implying that he was not sleeping with any women at the time. TEXT-20. To this,
Complainant texted:

She commented that she was both laughing and cringing at his joke. TEXT-21. Mr.
Hufnagel then texted Complainant that he was going to sleep (TEXT-21), but Complainant did
not let the conversation end there and continued texting Mr. Hufnagel.
On January 14, 2014, the night of the Cal Stanford game, Complainant texted Mr.
Hufnagel to wish him good luck in the game. 9 Mr. Hufnagel texted back an emoticon of two
hearts. TEXT-22. Complainant responded on January 16, telling Mr. Hufnagel she had been
holding her breath and waiting on [her] invite, presumably to Mr. Hufnagels apartment as
the two had discussed on January 13. Id. Complainant followed up with a second text, again
pressing for the invitation, Wheres my invite[?] Id. Mr. Hufnagel responded that he could
not invite her that night, because he was traveling to East Coast. Id. After a long conversation
about the talent levels of a number of the current Berkeley team members (TEXT-23 to TEXT25), Complainant asked Mr. Hufnagel, Whats your favorite place to eat in Berkeley[?] Mr.
Hufnagel responded Chez panisse upstairs. TEXT-25. Complainant responded that [u]pstairs
is for poor people, implying that she preferred the more expensive menu offered downstairs
at that restaurant. Mr. Hufnagel responded: So upstairs is on me and downstairs is on u.
9

Later that evening, Complainant posted a comment to her twitter feed about the tie Mr. Hufnagel
wore during the game. Exh. E (Official review is red. Admit its red, Yanni RT @CVWarrior: Can we get
an official review of the color of @yhufnagels tie?).

SWANSON & McNAMARA

TEXT-26. Complainant parried that his joke actually made [her] laugh out loud. Id. They
went on to discuss getting a reservation at Chez Panisse the following week. TEXT-28 (Mr.
Hufnagel: Dinner on u chez penise downstairs next week u seem like u got the Juice to get a
rez.; Complainant: Of course I can get a rez. . . . that's hilar about it being on me. I'm among
the impoverished street people upstairs. Unless someone is taking me and then downstairs is
[emoticon for good][.]). Complainant then raised other non-recruitment topics, and the
conversation ended with Complainant telling Mr. Hufnagel to [h]ave a good flight. TEXT-30.
On January 17, just a week before they went to the brewpub together, Complainant
texted Mr. Hufnagel, asking him about his flight and relayed a conversation she had had with a
potential Cal recruit, during which she told the recruit, yeah Yanni is the best, all the guys love
him. Id. She then suggested that Mr. Hufnagel should take her to dinner at Chez Panisse in
exchange for her speaking highly of him to the recruit. She texted: Downstairs on you[.]
TEXT-30. A reporter requesting a quid pro quo from one of her sources, even if in jest, is hardly
the mark of someone interested in having a strictly professional relationship.
3. February 2015 through May 2015 Mutual Flirtation Continues; No Evidence of
Retaliation
After the evening at the brewpub ending in Mr. Hufnagels apartments garage on
January 24, 2015 (discussed in Section II(C) below), Complainant and Mr. Hufnagel continued to
communicate regularly via text. In February and March 2015, Complainant and Mr. Hufnagel
exchanged texts on 26 different occasions, the vast majority of these exchanges were strictly
professional. However, of all these texts, Complainant (or the investigator) selected only a tiny
sample two text conversations occurring during a 2 day period concerning a three-way on
which to base the conclusions in the Report. Report at 23. 10 That selective inclusion of the
texts gives a completely misleading picture of Mr. Hufnagel and his exchanges with
Complainant during this time period. It is on the basis of these text exchanges that the Report
concludes that Mr. Hufnagel had inappropriate electronic contacts with the Complainant on a
bi-weekly basis until mid-May 2015. Id. at 23. The Report also concludes, again on the basis of
these few texts, that she was not encouraging Mr. Hufnagels inappropriate
communications, and that when she rebuffed him, he punished her by denying her access to
recruiting information. Id. at 22-23. What the investigator apparently did not see was
Complainants response to those texts she asked Mr. Hufnagel if he was on Tinder, a sex
hookup dating application, which if anything, escalated the sexual innuendo in the exchange.
A review of the full record from these months, instead of the curated selection of texts
provided by the Complainant and discussed in the Report, also reveals that these were the only
texts with sexual content between the Complainant and Mr. Hufnagel during this four month
10

The Report also asserts that a text exchange between Mr. Hufnagel and Complainant on March 27,
2015 contains a sexual innuendo. Report at 23. Mr. Hufnagel disputes this assertion; there is nothing
sexual about this text exchange.

SWANSON & McNAMARA

period and that Mr. Hufnagel in no way retaliated against Complainant. Instead, he continued
to provide her with recruiting information when able, until May 22 when she breached
professional protocol and attributed information in a manner that exposed him and the
basketball program to possible negative consequences. The next day she contacted Mr.
Hufnagels supervisor in order to make the allegations that eventually formed the basis of the
Report.
February 2015: The texts between Complainant and Mr. Hufnagel in February 2015
show that Mr. Hufnagel regularly responded to Complainants requests for information and in a
professional manner. See TEXT-31 (2/23 texts from Complainant at 10:24 p.m. asking or
information on visits from three recruits and the contact information for a fourth, Mr. Hufnagel
responding); TEXT-36 (2/26 text from Complainant asking for access to recruits and a recruits
phone number, Mr. Hufnagel responding with number); TEXT-36 to TEXT-37 (exchange of texts
regarding possible recruits at local high schools). During this time period, both Mr. Hufnagel
and Complainant gave each other professional assistance. TEXT-35 (Mr. Hufnagel offering to
teach Complainant how to detect inaccurate information regarding recruiting offers); TEXT-3738 (Complainant offering to connect Mr. Hufnagel with an assistant coach at another school so
they can share recruiting information). None of the February 2015 texts have sexual content.
March 2015: On March 17 and March 19, Complainant and Mr. Hufnagel exchanged the
three-way text messages described at pages 15 through 17 of the Report. The Report
concluded that that text messages were unwelcome and that Complainant typically
deflected Respondents sexual innuendos with humor, but was not encouraging of his
behavior. Report at 3, 22. This is completely wrong as a full review of the records would have
revealed.
First, on the March 17 exchange, Complainant asked Mr. Hufnagel to meet him for
coffee, and he responded with a sexual innuendo suggesting a three-way sexual encounter.
TEXT-43 (Im only coming if
comes too.). Complainant and Mr. Hufnagel then
exchanged a number of texts before the conversation ended. Id. There was no indication in
her response that Mr. Hufnagels innuendo was unwelcome. During the March 19th exchange,
she again asked Mr. Hufnagel to coffee. TEXT-45. Mr. Hufnagel again responded by saying he
would meet her for coffee only if
joined them. Id. The full exchange demonstrably
refutes any notion that these texts were unwelcome, but the investigators did not request the
full exchange.
The version of the March 19 text exchange contained in the Report ends with Mr.
Hufnagel telling Complainant that the only two pieces of furniture his apartment contains are
his couch and his bed: Besides a couch n a bed in my spot which is really all I need honestly.
However, this text message exchange continued with Complainant saying: Omg I'm gonna
smack you seriously[.] Mr. Hufnagel then texts, Why?! TEXT-47. Complainants next text a
few hours later, at 10:45 p.m., is telling. Far from chastising him for the sexual innuendo, or
deflecting and refocusing Mr. Hufnagel as portrayed by the Report, Complainant initiated a new
10

SWANSON & McNAMARA

text exchange with Mr. Hufnagel asking him Are you on tinder? 11 She then sent additional
texts to Mr. Hufnagel calling the sexual hook up application amazing and mused about what
would happen if she encountered his profile on the application. TEXT-47. Mr. Hufnagel
responded to Complainants texts about Tinder saying that he had a Tinder account, but never
used it, and telling Complainant he was going to bed for the evening. Id.
LB:

Are you on tinder?

YH:

I never use it

LB:

YOU HAVE IT

YH:

Im

LB:

My sister has one and I had never been on it before tonight but had seen screen
shots
And it's amazing
And then I was like Yanni totally has this what if we run into him

YH:
Lacking the Tinder exchange, the investigators compounded the distortion by relying on
two other text messages isolated by Complainant to support her claim that Mr. Hufnagel
retaliated against her by cutting her off from information unless she acquiesced to his
advances. Report, 17-18. Again, the full record demonstrates otherwise. The first exchange is
from March 23 and involves Complainant asking whether recruit
was visiting the
University that day. As explained in the Report, Mr. Hufnagel told Complainant that he was not.
Report at 5. In fact, Mr.
had visited the campus the prior day. Complainant claimed that
Mr. Hufnagel led her and only her astray on the
lead and that he did so in order to
11

Tinder is an application widely known as a hook up application, where users look for casual sexual
encounters. It is not a dating application, where the users seek relationships. See Sales, Nancy Jo,
Tinder and the Dawn of the Dating Apocalypse, Vanity Fair (September 2015).

11

SWANSON & McNAMARA

retaliate against her. Report at 5. This is demonstrably false. First, Mr. Hufnagel was under
instructions from his supervisor to not disclose that information. Id. at 6 (statement of Witness
1); id. at 9 (respondent statement). Second, a text exchange between Mr. Hufnagel and
another (male) reporter, in which the other reporter also expresses his dismay that Mr.
Hufnagel failed to give him information regarding the recruit, establishes that Mr. Hufnagel did
not discriminate against Complainant. Id. at 18-19; Exh. D. Moreover, the Report fails to
include the text exchanges immediately following the March 23 exchange. On March 24,
Complainant asked Mr. Hufnagel for Mr.
s contact information. Mr. Hufnagel explained
that he was not at liberty to provide that information and apologized to Complainant for not
being able to be more forthcoming. TEXT-50. Complainant responded, Thats okay, I
understand. Id. In the days that follow, the two went back to exchanging ideas and opinions
about various recruits. TEXT-50 to TEXT-51 (discussing
).
Nothing about the
exchange was retaliatory, but it is clear from the Report that
the
exchange embarrassed Complainant because she did not report on it when
she thought she could have. At the time, Complainant showed her displeasure directly to Mr.
Hufnagel. Her texts to him lost their previous flirtatiousness and became short and to the
point. See, e.g., TEXT-53 (On 3/30, Complainant: Can you please give me
s
number?; Mr. Hufnagel: [number] Great Kid!); TEXT-55 (On 4/7, Complainant: Whats new
this week with recruits?; Mr. Hufnagel: Nothing.
is here this weekend. Complainant:
Oh Cool hes such a great kid; Mr. Hufnagel: Incredible.). Mr. Hufnagels response to the
non-flirtatious tone was not to cut her off he continued the information spigot. When she
peppered him with texts asking for information, sometimes berating him for incomplete
responses, he nonetheless provided the information. From the date of the
incident to
the last communication, Complainant sent Mr. Hufnagel approximately 16 texts asking for
information, he sent information in each of his 13 replies. Not one of these contained any
sexual overtone. It seems however, that even months later, Complainant still believed, entirely
incorrectly, that Mr. Hufnagel had done her wrong. She told the investigator that Mr. Hufnagel
made [her] look bad. Report at 3.
The second exchange that the Report relied on as evidence of Mr. Hufnagels supposed
retaliation occurred on March 27. Report at 11-12, 18. In this exchange, Complainant asked
Mr. Hufnagel to help her obtain press credentials for a high school basketball game. TEXT-51.
The excerpt of this exchange in the Report included Mr. Hufnagel responding by telling
Complainant to buy a ticket and sending a photograph of himself and
. The Report
concluded that these texts from Mr. Hufnagel by virtue of the context of the previous text
messages in mid-March proposed a three-way sexual encounter . . . [and] suggest[ed] that
her participation in sex with [him] would grant her greater access to parts of the sports world
under [his] control. Report at 23. Again, the Report reached an erroneous conclusion because
the investigators failed to request the entire exchange. The Report stated the exchange ended
when in response to the picture of Mr. Hufnagel and
, Complainant wrote Oh great Ill
be sure to present [redacted] at the door tomorrow that helps a lot. Report at 18. However,
the exchange continued with Mr. Hufnagel informing Complainant that he cant get any 1 in
12

SWANSON & McNAMARA

to the game. TEXT-53. As his response shows, there was no insinuation by Mr. Hufnagel that
sexual activity of any kind would result in his providing her with access. It was a high school
game, not a Cal game, and it was out of Mr. Hufnagels power to admit anyone to it. This easily
could have been confirmed by the investigators through other coaching staff. Finally, within
days of that exchange, Mr. Hufnagel again provided Complainant with recruit-related
information. On March 30, she asked for, and Mr. Hufnagel gave the phone number for a
potential recruit. Id. On March 31, Mr. Hufnagel contacted Complainant this was one of the
few times in the entire six month period that Mr. Hufnagel initiated a text exchange and
texted, Ill give you a scoop I havent given any1 else. He provided information regarding a
recent recruit meeting and closed his text by saying, You work hard. I respect it. Id.
April and May 2015: Mr. Hufnagel and Complainant exchanged 290 individual text
messages in April and May. None of these texts contained sexual content either. Mr. Hufnagel
continued to respond to Complainants requests for information. See, e.g., TEXT-54 (4/7
request for recruits phone number and response); TEXT-55 to TEXT-57 (4/10 discussion of
recruits); TEXT-57 to TEXT-58 (4/11 through 4/15 discussion of commitments by recruits); TEXT69 (5/7 discussion of de-commitment by potential recruit); TEXT-77 (5/22 discussion of likely
commitment decision by recruit). He also made himself available for an interview at her
request (TEXT-58 to TEXT-62) and provided quotes for the interview piece when asked. TEXT62 to TEXT-64.
Complainant had become increasingly frustrated with the amount and type of
information Mr. Hufnagel was able to provide to her, as well as with what she perceived as a
lack of clarity with which he was communicating that information. This resulted in Complainant
sending Mr. Hufnagel a number of sharp texts before she departed for a new job in Montana. 12
However, none of these exchanges contained sexual content and nothing suggests that
Complainants frustration with Mr. Hufnagel was the result of anything but what she perceived
12

At times, the Report suggests that Complainant lost her job at

because Mr. Hufnagel
deprived her of access to recruiting information. See Report at 6 (Complainant said she was not able to
continue as a recruiting report for UC Berkeleys Mens Basketball team . . . Ultimately,
discontinued Complainants employment); id. at 12 (discussing how she could not do her job without
Mr. Hufnagel providing information). As illustrated by the texts and discussed herein, Mr. Hufnagel did
not deny Complainant access to recruiting information nor does it appear that Complainant lost her job
at
. Rather, another section of the Report acknowledges that one of the reasons Complainant
decided to report Mr. Hufnagel in late-May 2015 was because at that point [] she had stopped working
for [
] and would likely not see or encounter Mr. Hufnagel again. Id. at 13. Complainant
stopped working for
because she accepted a new job in Montana. TEXT-75 (stating on 5/19
that she is moving to Montana and received a two week extension on [her] start date for her new job);
see also
profile for
, available at:
. As explained in the Report,
Complainant lost her job at
, because she moved to Montana and her boss told her that
they needed someone on the ground [in Berkeley] to cover the beat. Report at 13.

13

SWANSON & McNAMARA

as a lack of an immediate response from him. On May 10, for example, Complainant texted Mr.
Hufnagel at 9:15 p.m. and asked whether the University was still pursuing a specific recruit.
When Mr. Hufnagel had not responded by 10:00 a.m. the following morning, Complainant
texted him and asked whether he repl[ies] to texts anymore. TEXT-71. Mr. Hufnagel
responded that he could not respond to the questions she asked about that recruit. Id. This
response caused Complainant to send a series of texts about how he should be responding to
her questions. Id. ([I]t is imperative that you communicate that to me. Silence and ignoring
texts is not communication. As someone who is supposed to communicate with players for a
living I would think you would understand that better[.]); TEXT-72 (And if I ask about
in
the future, do not take it as me not understanding that you don't want to talk about him at this
point because I don't think either of us can anticipate right now when a point will be where it's
talked about.) Mr. Hufnagel responded politely to all of Complainants texts. TEXT-71 to TEXT72; see also TEXT-72 to TEXT-75 (5/19 exchange where Complainant criticizes his
communication skills saying, FYI-- it helps when you're very clear. . . Hopefully you understand
the difference between those statements [in the texts] and what they convey.). 13
The last text exchange occurred on May 22, 2015. TEXT-77. In this exchange,
Complainant asked for and Mr. Hufnagel provided information regarding a potential recruit
who would likely choose to commit to Texas, instead of the University. Id. As Mr. Hufnagel
showed Investigator 1, Complainant later posted a piece attributing this information to
sources close to the Cal staff. Exh. F (blog spot). This attribution violated the agreement
Complainant had made with Mr. Hufnagel at the outset of their relationship to attribute his
comments to a source (TEXT-1). 14 As Mr. Hufnagel explained to Investigator 1, attributing the
information potentially damaged his reputation and the Universitys ability to recruit that
13

Complainants frustration with Mr. Hufnagel seems to have stemmed from two issues. First,
Complainant would regularly ask Mr. Hufnagel about recruits (e.g,
,
and
), about whom Mr. Hufnagel had limited information because he was not the assistant
coach charged with recruiting those individuals. What Complainant (wrongly) perceived as Mr.
Hufnagels unwillingness to share information, was in fact an inability to do so. Second, the Report
reveals that Complainant failed to cultivate any sources for covering her beat outside of Mr. Hufnagel.
Report at 12. When Mr. Hufnagel could not provide her with a scoop, she had no idea where to go.
Id. Complainant told Investigator 2 that without Mr. Hufnagels help or access she would have had the
untenable task of cultivating working relationships with multiple high school coaches and prospective
recruits parents. Id. Cultivating multiple sources is, of course, what reporters do to cover a beat. And
Mr. Hufnagel attempted to help her do this. TEXT-66 (providing contact information and telling
Complainant I will give u names and numbers . . . coaches numbers and all that. Anything u need!).
14

On November 3, 2014, Complainant introduced herself via text message to Mr. Hufnagel. TEXT-1. Mr.
Hufnagel responded by clearly setting out the reporting protocol for information for which he was the
source, i.e., that he was not to be referred to in any way in her articles: And you know I cant comment
so you can Just say a source told me or something like that[.] Id. Complainant acknowledged: Okay
thanks so much. Sorry I wanna be really really careful about how to handle this[.] Id.

14

SWANSON & McNAMARA

individual. Report at 9. That same day, Mr. Hufnagel told Complainant he would not be
working with her anymore. 15 The next day, Complainant contacted Witness 1 to report Mr.
Hufnagels alleged sexual harassment.
C. There was no sexual harassment after the evening at the brewpub
The Report discusses at length Complainants claim that Mr. Hufnagel impeded her
leaving his parking garage after she drove him home the evening of the Jupiter brewpub on
January 24, 2015. Mr. Hufnagel adamantly denies that he attempted to control Complainant
in his parking garage or that he was trying to force her to come up to his apartment, or that it
was only after ten minutes that he relented and opened the garage door and allowed her to
leave. Report at 4-5, 15, 21-22. 16 It is clear that the investigators did not believe these claims
either. Complainant made these allegations on August 25, 2015. The University kept Mr.
Hufnagel in his job and on campus until March 14, 2016, when it completed its 8-month long
investigation. The only logical reason it did not suspend Mr. Hufnagel immediately was because
Complainants version of events simply did not ring true. Report at 2 (no interim measures
were deemed necessary or appropriate).
One of the many flaws of the investigation is that Mr. Hufnagel was interviewed once
only, and not by the ultimate fact-finder. He had no advance notice of the topic of the
investigation, and no opportunity to cast his mind back almost a year to the events of a
particular evening. When responding to Investigator 1 (Mr. Hufnagel never got a chance to
speak to Investigator 2), Mr. Hufnagel misremembered the details as to whose car they were in
for the journey to his apartment building. This was because he had the garage door fob, which
he keeps in his car, causing him to believe that they in fact were in his car. Report at 9. Mr.
Hufnagels statement that he had been driving his car was also informed by his belief that he
would not have let Complainant drive his car. Id. at 8. However, he also had a memory of
being in Complainants car. Id. at 9. At the time of the interview, nearly ten (10) months had
elapsed since the night in question, and Mr. Hufnagel had not refreshed his recollection on who
was driving what car that evening. However, since reviewing Complainants account, Mr.
Hufnagel recalled that he took an Uber to the Channing parking lot the next morning in order to
retrieve his car, which refreshed his recollection. Exh. G (Uber receipt). Thus, the sequence of
events was that, Mr. Hufnagel and the Complainant drove together in his car from the parking
lot under Haas Pavilion to the Channing parking lot. After leaving Jupiter, Complainant drove
15

Mr. Hufnagel admittedly gave her a piece of his mind during the call.
It is clear that the investigators did not believe these claims either. Complainant made these
allegations on August 25, 2015. The University kept Mr. Hufnagel in his job and on campus until
March 14, 2016, when it completed its 8-month long investigation. The only logical reason it
did not suspend Mr. Hufnagel immediately was because Complainants version of events simply
did not ring true. Report at 2 (no interim measures were deemed necessary or appropriate).
16

15

SWANSON & McNAMARA

Mr. Hufnagel in her car to his apartment. That is where the agreement with Complainants
account ends.
Complainant explained her decision to drive into Mr. Hufnagels garage at the end of the
night (that was the culmination of weeks of flirtatious advances by her), by claiming that she
couldnt pull over because even at that hour there is plenty of fast-moving traffic. Report at
14. A google street view image of the outside of Mr. Hufnagels apartment would have
dispelled that claim. Apart from the fact that it was close to 2:00 a.m. in the morning when
Complainant reached the outside of the apartment building, with little possibility of fast-moving
traffic, there is ample space to pull over to drop off a passenger. There is a two car-length red
no-parking zone running from the corner of Telegraph and Ashby and a two car-width driveway
leading to Mr. Hufnagels buildings parking garage. Exh. H (picture of red-zone curb); Exh. I
(picture of driveway and car). Complainant was driving Mr. Hufnagel south on Telegraph
Avenue when she turned left onto Ashby, where Mr. Hufnagels apartment and parking garage
were. As the passenger in the car, he was on the curb-side of the vehicle. It made no sense for
Complainant to drive into the garage when the far easier thing would have been to drop him at
the curb or in the driveway. And, even if she had started to have second thoughts in the
driveway, the garage door does not open quickly after activation of the remote fob and she
could have bid him good night several times over in the time it took for the garage to open.
Video Exh. J (video of garage door opening taking 20 seconds). Nothing whatsoever forced
Complainant to drive past the garage entrance. And of course, she was the driver of the car. It
was her own car. She was in control and at the wheel. In short, Complainants explanation that
she had to drive into the garage is simply unbelievable.
What is far more likely is that Complainant affirmatively chose to drive her car into the
garage. Given the weeks of flirtatious texting, her recent requests for an invitation to his
apartment, and her agreement to go out with him that night, Mr. Hufnagel reasonably believed
that when Complainant drove into the garage, she was indeed considering parking there and
coming upstairs with him. But, Complainant apparently decided that she did not want to
engage in sexual activity with Mr. Hufnagel that night after all. Mr. Hufnagel asked
Complainant upstairs, she said no and left. 17
In Complainants version, Mr. Hufnagel used the accoutrements of his garage the
garage door and lift parking space to exercise power over her. Report at 15. But Mr.
Hufnagel did not use his fob to close the garage door because he had no need to. Like most
17

The Report relies heavily on a statement attributed to Mr. Hufnagel that, while in the garage,
he tried to trick Complainant into going upstairs to his apartment. First and foremost, it is
doubtful that the word trick was Mr. Hufnagels, as opposed to the investigators. What is
plain is that Complainant was not tricked or otherwise deceived. She specifically asked Mr.
Hufnagel if he wanted her to come up so that they could have a sexual encounter; he said yes;
she decided she did not want to do so and left.

16

SWANSON & McNAMARA

modern garage doors (the entire building is new construction), the garage door automatically
closes when a car clears the entrance. Video Exh. K (video of door closing automatically).
Complainant also claims that Mr. Hufnagel prevented her from leaving by initially refusing to
open the garage door. Report at 15. However, the garage door also automatically opens when
a car approaches it from the inside to exit. Video Exh. L (video of door opening as car
approaches from interior). Mr. Hufnagel did not have to relent (Report at 15) and he was not
in control of her ability to get out of the garage. Report at 21. Complainant could have and
did drive out of the garage. She noted that he was outside of the car during most of this
interaction while she remained inside at the wheel and firmly in control of the vehicle. Report
at 5. Nor is there anything nefarious about Mr. Hufnagels motion[ing] for Complainant to
park her car in an elevated parking spot. Id. at 15. The parking in Mr. Hufnagels garage
involves a lift system to maximize available space. Id. at 4. To park in Mr. Hufnagels
designated space, a person must exit the vehicle and manually open doors to the lift system, as
Mr. Hufnagel did that night. Once the doors are open, the car has to be driven into the space
beyond the doors. When the car is parked in the space, the lift may be activated and the car
elevated if the parking space below is needed for another car entering or exiting. Mr. Hufnagel
did not motion for Complainant to park in the lift spot in order exercise control over her; he
did so because that is his assigned parking spot.
Given the sheer implausibility of Complainants explanation that she had no choice but
to enter the garage, by far the more reasonable interpretation of events is that she willingly
drove into Mr. Hufnagels garage to park for the night, but then changed her mind and decided
not to come up after all. There could be any number of reasons for this. Whatever her reason,
Mr. Hufnagel was not unreasonable to think that it was indeed a change of mind on
Complainants part from an earlier apparent willingness. She certainly had not suggested that
his advance would be unwelcome when she invited herself to his apartment or stayed with him
at the brewpub until after 1:30 a.m. There was an exchange between them about this which
Mr. Hufnagel recalls as short, polite and no big deal. And as discussed above, Complainant
continued to reach out to Mr. Hufnagel by text after their night at the brewpub, they continued
their flirtation, and Mr. Hufnagel continued to help her with her job.

///

///

17

SWANSON & McNAMARA

III.

THE UNIVERSITY IGNORED MR. HUFNAGELS RIGHTS AND ITS OWN POLICIES BY
PUBLISHING A PRESS RELEASE LEADING TO PREMATURE DISCLOSURE OF THE
ERRONEOUS INVESTIGATION, ALL TO MR. HUFNAGELS DETRIMENT
A. The University Issued a Press Release About the Notice of Intent to Terminate in
Violation of Mr. Hufnagels Privacy Rights and Its Own Policies

On March 14, 2016, the University provided Mr. Hufnagel with its Notice of Intent to
Terminate (the Notice) his employment contract based on the Office for the Prevention of
Harassment and Discriminations (OPHD) determination that Mr. Hufnagel sexually harassed
Complainant. That notice specifically reminded Mr. Hufnagel of his right to respond to this
Notice of Intention to Terminate either orally in writing, within 8 calendar days from the date of
issuance. That advisory is consistent with PPSM Policy 65(B) which is incorporated into Mr.
Hufnagels employment contract. PPSM Policy 65(B) further provides, After the employee has
responded or after 8 calendar days, whichever comes first, management shall review the
response, if any, and inform the employee of the action to be taken. (Emphasis added). Thus,
under both contract and University policy, the University must consider Mr. Hufnagels
response to the Notice before it takes final action.
Rather than wait for Mr. Hufnagels response, the very same day that it provided the
Notice to Mr. Hufnagel, the University issued a press release notifying the world that it had
issued the Notice of Intent to Terminate him, in violation of his constitutional right to privacy
and PPSM Policy 80, which provides that staff personnel records shall be confidential. PPSM
Policy 80 provides in relevant part: Unless release is legally required, the University will not
release to the public information that the University has determined to be (a) an invasion of
personal privacy; (b) protected by recognized legal privilege; or (c) otherwise legally protected
from disclosure. Such information includes but is not limited to information relating to
evaluation of performance and goal setting records. In Section VII, PPSM Policy 80 gives
examples of what documents are considered staff personnel records, such as corrective,
release, and dismissal actions, precisely the information that it disclosed here.
B. The University Compounded the Injury to Mr. Hufnagel by Immediately Releasing
the Erroneous Investigation Report
The Universitys distribution of the press release regarding the Notice, in violation of its
own policies, 18 was designed to invite a Public Records Act request for the Investigation Report.
18

The Universitys disclosure of the Investigation Report is completely out of alignment with its
own Policy on Sexual Harassment, which purports to protect the parties privacy. E.g., February
25, 2015 Policy, Section V.B.4(i) In accordance with University polices protecting individuals
privacy, the complainant may generally be notified that the matter has been referred for
disciplinary action, but shall not be informed of the details of the recommended disciplinary
action without the onset of the accused, consistent with Section V.E. ). Conclusion of the
18

SWANSON & McNAMARA

In response to the Public Records Act request, the University immediately released the Report
even though Mr. Hufnagel had not yet had an opportunity to respond to the Notice of Intent to
Terminate, and as discussed above, despite the fact that the conclusions in the Report are
demonstrably false. By doing so, the University has inflicted great harm to Mr. Hufnagels
reputation. It has created a false and defamatory image of him. The Universitys rush to
expose Mr. Hufnagel contrasts markedly with its treatment of the Law School Dean. When
responding to complaints from Law School faculty as to why Vice Chancellor and Provost Claude
Steele had not informed them of the investigations findings in that case, the University cited
the very policy that it flouted in this case its obligation under the Sexual Harassment Policy to
protect the privacy of individuals involved in a report of prohibited conduct. Daily California
article, dated Friday, March 18, 2016.
C. The Timing of the Universitys Release of the Notice and the Erroneous
Investigation Report
The timing of the Universitys Press Release about the Notice strongly suggests an
agenda having little to do with the merits of the claims against Mr. Hufnagel. The University
has been the subject of recent intense criticism for its handling of investigations into far more
serious complaints of groping, touching and years of egregious conduct alleged against senior
faculty. The Universitys publication of the Notice suggesting that Mr. Hufnagel was fired
(although the administrative process had not yet concluded) was designed to and was
successful at deflecting intense scrutiny from the other sexual harassment matters, the
investigations and punishments of which appear to have been botched by the University. But
the University has botched this matter too by conducting an incomplete investigation and not
waiting to give Mr. Hufnagel the opportunity to complete the administrative process laid out in
its own procedures.
Mr. Hufnagel was completely blindsided when the University chose to sacrifice him and
his due process rights in an attempt to show itself in a better light on sexual harassment
investigations. That decision has seriously damaged him and it has worsened rather than
improved the Universitys reputation for fair play and consistency.
investigation results in informing the Complainant and the Respondent of, among other things,
procedures for appealing and any change to the results that occur prior to the time that such
results become final. Id., Section V.B.4(k). Finally, in a section entitled Privacy, the Policy
provides for careful steps to maintain confidentiality of the results of the investigation, stating
that complainants may be advised of sanctions imposed against the accused when the
individual needs to be aware of the sanction in order for it to be fully effective (such as
restrictions on communication or contact with the individual who made the report.) Id.,
Section V.E. (emphasis added). The Privacy policy recognizes that this is necessary because a
report of sexual harassment may result in the gathering of extremely sensitive information
about individuals in the University community. Id.
19

SWANSON & McNAMARA

D. The Investigation Was Deeply Flawed, and the Punishment Wildly Disproportionate
The Universitys Policy on Sexual Harassment provides that the University will respond
promptly to reports of sexual harassment. February 25, 2015 Policy, Section III.A, Section
V.B.4(g) (the investigation shall be completed as promptly as possible and in most cases within
60 working days of the date the request for formal investigation was filed. This deadline may
be extended on approval by a designated University official.) But here, the University took
eight months to investigate the claim and did shoddy and incomplete work in doing so in
violation of Mr. Hufnagels due process rights.
The first obvious defect in the Report involves the texts that form the basis of
Complainants case. It appears that, despite Complainants assertions that she experienced biweekly sexual texts from Mr. Hufnagel over the course of six months (and her email stating that
harassment occurred probably on a weekly basis (Report at 14)), the University never asked
either Complainant or Mr. Hufnagel for the entirety of the texts between them. Nor did it tell
Mr. Hufnagel that Complainant was alleging six months of supposedly unwanted sexual
advances by text which she was forced to deflect in order to attempt to do her job. Instead, the
investigators simply relied on Complainants very limited and misleading selection of texts.
Based on the limited information provided to him (in apparent violation of his due process
rights) Mr. Hufnagel understood that the focus was on the night of January 24, where nothing
had happened, and the three three-way texts, a tiny fraction out of hundreds of texts where
she had engaged in mutual flirtation. He did not know she claimed months of purported sexual
harassment. He also knew that he had been professional and generous with information. Had
Mr. Hufnagel understood the full extent of Complainants allegations and the misleading record
she presented to the investigators, he would have hired a lawyer who would have supplied the
full text record as we have done here. Second, neither of the investigators did even
rudimentary checking, e.g., Google image, to check Complainants explanation for the
otherwise inexplicable decision to drive into Mr. Hufnagels garage at the end of the evening.
Third, the investigation was handed off from one investigator to another when the first
investigator left the University five months into the process. The new investigator reinterviewed Complainant, but never bothered to interview Mr. Hufnagel, even though the
Report purports to quote Mr. Hufnagel. Even on the cold record, this second interview of
Complainant has the quality of a leading examination designed to plug the gaps in
Complainants account. It was this second investigator, lacking any personal interaction with
Mr. Hufnagel and not having thought to ask for the full body of the text exchanges, who arrived
at the erroneous conclusions in the Report.
Fourth, the investigator used the wrong standard throughout the Report. The Report
refers repeatedly to how Complainant felt, but the standard is how an objectively reasonable
woman would have interpreted the events. This error is particularly serious because the
investigator never bothered to get all the texts between the parties to determine whether Mr.
Hufnagels sporadic sexual innuendos would not have been welcome by an objectively
20

SWANSON & McNAMARA

reasonable woman in Complainants position. Given that they were preceded and followed by
Complainants own flirtatious remarks including requests to be invited to Mr. Hufnagels
apartment an investigator with the full record and applying the right standard would have
dismissed the charges as unsubstantiated.
Fifth, the sanction meted out by the University immediate termination and
deprivation of performance-based bonuses is far and away the most severe in any known
case of alleged harassment at Berkeley. It is stratospherically more punitive than in the senior
faculty cases involving accusations of groping, touching and years of ongoing conduct against
students and employees. It bears repeating that Complainant was neither a University student
nor an employee and Complainant confirms Mr. Hufnagel never touched her. None of those
investigations resulted in anything other than private admonishments, a docking in pay or other
lesser sanctions until the University became the focus of a backlash in the public. But, even
then, none resulted in termination.
Under the facts described in detail above, termination is wholly unwarranted. But, even
if we were to credit the Reports completely wrong conclusions, there were many ways that this
complaint should have been handled short of termination. The Policy itself encourages early
resolution that can include mediation, referral to counseling, targeted preventative educational
and training programs, follow-up review to ensure that the resolution has been implemented
effectively. February 25, 2014 Policy V.B.3. The University rejected them all, no reason given.
Particularly in a case such as this, where the Complainant submitted a misleading record and
where the conduct involved off-campus interactions with a non-student and non-employee, a
lesser sanction is warranted.
IV.

CONCLUSION

The University must and should take seriously a womans reported concerns that she is
being treated in a sexually harassing manner. The University must and should investigate such
allegations, and promptly address any wrongful conduct. But, where, as here, the evidence is
obviously incomplete and, where facts refuting sexual harassment are readily available, the
University may not terminate employment on the basis found here. The Universitys policies
recognize that a non-physical, flirtatious exchange between a University employee and a visitor
does not constitute sexual harassment.19 This is especially so when the visitor is the primary
mover in the flirtation and there is no effect on the visitors ability to do her job.
19

The University adjudicated this matter under the Sexual Harassment Policy that was in
force as of February 25, 2014 (Report at 2, n. 1), but it is not clear that off-campus conduct,
such as the vast majority of what is at issue here, is covered by it. Nothing in the Policy says so.
The University appears to have recognized the gap for off-campus conduct when it updated its
policy in December of 2015, midway through this investigation and long after the events. In the
updated policy, the University provides in new language as follows: The University has
jurisdiction over alleged violations of this Policy that occur on University property (such as
21

SWANSON & McNAMARA

It is appropriate for the University to take a strong stand against sexual harassment. But
this is simply the wrong case in which to do so. If, despite the record here produced, the
finding of harassment stands, the University will have abandoned its Sexual Harassment Policy
in favor of a standardless process where the actual evidence counts for nothing, the
punishment is arbitrary and the Universitys perception of its own public relations needs is the
only consideration. The current controversies surrounding the Universitys handling of senior
tenured faculty should not tempt the University to institute a kangaroo court for sexual
harassment complaints for lower-paid staff like Mr. Hufnagel. The University stands for open
inquiry, intellectual curiosity and the pursuit of truth. The truth here is that Mr. Hufnagel did
not sexually harass Complainant. The University promises that it will apply appropriate and
consistent interpretations of the Policy. However belated it may be, the University now has the
duty to respond equitably, appropriately and in a way that promises consistency. Whatever the
facts concerning the appropriateness of the Universitys responses in previous investigations, it
is neither appropriate nor consistent to terminate Mr. Hufnagel.

///

///

///
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).
While Mr. Hufnagel understood that sexual communications with staff would be in a realm
where the University would have jurisdiction, it was not apparent that the University had any
say in communications with non-University personnel off-campus. This is all that Mr. Hufnagel
meant when he stated that, as a coach, there should be no sexual undertones at all. Report at
8 (emphasis added).

22

SWANSON & McNAMARA

Under the full record here, the University should:
1) Reinstate Mr. Hufnagel to his position;
2) Remove the incomplete and erroneous Report from his file and all documents
concerning the Notice of Intent; and
3) Issue a Press Release notifying the public that upon consideration of the full record,
Mr. Hufnagel has been exonerated.
We invite your questions on any of the issues raised in this letter, and look forward to
your prompt resolution of this matter.
Sincerely,

Mary McNamara
Britt Evangelist
Swanson & McNamara LLP
and Jamie Dupree
Futterman Dupree Dodd Croley Maier LLP

23