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GARY S. MAY

UC DAVIS CHANCELLOR

FIFTH FLOOR, MRAK HALL UNIVERSITY OF CALIFORNIA, DAVIS ONE SHIELDS AVENUE DAVIS, CA 95616

CHAPTER I

DANNY GRAY’S “MeToo” PARTS UNKNOWN

OPEN LETTER

Open Letter to UC Davis Chancellor Gary S. May about the December 12, 2017, Davis Enterprise Article “MeToo Arrives at the University of California”

“Many of the reports of abuse emerge after years and sometimes decades of silence and shame. In the past, few if any institutions had adequate reporting and investigative processes, UC Davis included. Our protocols and processes have improved greatly over the years.”

Gary S. May

Dear Chancellor May,

With all due respect to you as a person and a new Chancellor, I am not sure how you arrived at the idea that the UC investigative process has “improved greatly over the years.”

You just replaced Greek-born Chancellor Linda Katehi, who was subjected to a $1,000,000 witch hunt orchestrated by President Janet Napolitano because she did not like Chancellor Katehi’s foreign accent. I can’t think of any other explanation why Napolitano spent $1,000,000 in three months to make Katehi into a chancellor emerita and replace her with a chancellor who has almost the exact same credentials.

I know a bit about the problems that having a foreign accent can invite in UC Davis. One of my managers once said “somebody give this Polack a bad evaluation and fire him.” Another manager tried to get me to “step outside” with him; when I refused, he did not

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hesitate to threaten to “send the gestapo on [my] ass.” He eventually made good on that threat and sent gestapo from the UCOP IV Department of RSHA to take care of me and Chancellor Katehi thereafter. Please don’t be outraged that I am using terminology from the Third Reich and Soviet Union in my stories. I use the terms because I was subjected to them at UC Davis. I dealt with hearing Polack and gestapo more than you would probably believe. I never expected to be treated so poorly in this country. I am an immigrant. Before I came to America, if had known what my life would be like here, then I might have decided to stay in a communist prison rather than agree to be deported. Those were my options: remain in prison or be deported with a one-way passport. I had more respect from guards in a communist prison than I have received from the UCOP gestapo and their thugs from UC Davis and the UC Davis Medical Center (UCDMC). The sanction letter that you served to Professor Baldini exactly described the methods that I experienced from the UCOP gestapo.

On May 31, 2012, I was lucky to arrive home in one piece after visiting the UCDMC earlier in the day. Chancellor Katehi is lucky that she did not join California Senator Leland Yee on his vacation in Federal Correctional Institution, Fort Worth, Texas. Yee— now Register Number 19629-111—was hunted down by the UCOP gestapo for his “Bernie Sanders” ideas to improve investigative protocol in the UC system through 2010 Senate Bill SB 650 and other anti-UCOP bills. In January 2010, Yee requested a state audit to improve investigative protocol. Subsequently, UC President Yudof and UC Davis Chancellor Vanderhoef found themselves in court and were facing one year in prison because of Senator Yee and SB 650. The allegations against Yudof and Vanderhoef stemmed from their malicious oppression of UC Davis Registered Nurse Janet Keyzer. This was too much for the UCOP gestapo; it was also the reason that Janet Napolitano became a UC President in 2013 and that UC Davis alumna Honorable Tani Cantil-Sakauye is currently Chief Justice of the State of California.

In her publicized research, Jennifer Skeem (professor of psychology from UC Irvine) emphasized that:

“An individual doesn’t necessarily need to be physically violent or a common street criminal to have psychopathic traits,” she says. Skeem points to Gordon Gekko, the unscrupulous financial executive played by Michael Douglas in the 1987 film “Wall Street,” as someone with all the signs of psychopathy. She cites the Ponzi scheme mastermind Bernie Madoff and Enron executive Andrew Fastow—ruthless, detached individuals who showed little remorse for robbing victims of their life savings—as real-life examples.

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The part two of the first chapter will be sent within a few days as time allows.

By this DANNY GRAY’S “MeToo” PARTS UNKNOWN

Chapter XIII I am respectfully appealing to you, Chancellor May, to disregard Nichols’s witch hunt report aimed at Professor Baldini and his family and to let Professor Baldini return to his normal duties and normal life.

Baldini return to his normal duties and normal life. CHAPTER XIII “MeToo” – MAESTRO CHRISTIAN BALDINI
Baldini return to his normal duties and normal life. CHAPTER XIII “MeToo” – MAESTRO CHRISTIAN BALDINI

CHAPTER XIII

“MeToo” – MAESTRO CHRISTIAN BALDINI

THE HDAPP INVESTIGATION OF UCD MUSIC PROFESSOR AND UCD SYMPHONY ORCHESTRA CONDUCTOR CHRISTIAN BALDINI

Summary of Investigative Findings from HDAC170177 Sexual Harassment Allegations, Orchestra; Brief Summary of How Case Came to Title IX Office

While carefully reading the Summary of Investigative Findings, I noticed the following:

Brief Summary of How Case Came to Title IX Office: On May 12, 2017, an official from the Harassment & Discrimination Assistance and Prevention Program (HDAPP) spoke with Witness A, who reported that the Complainant had alleged a concerning interaction between the Complainant and Respondent. On May 18, 2017, Complainant met with an official from HDAPP. Complainant received written notice of the present investigation by electronic mail on June 20, 2017. Respondent was notified of the allegations against him by electronic mail on June 20, 2017.

On May 12, 2017, an official from the Harassment & Discrimination Assistance and Prevention

Program (HDAPP) spoke with

Witness A, who reported that the

Complainant had alleged a concerning interaction between the Complainant and Respondent. On May 18, 2017, Complainant met with an official from HDAPP.

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Complainant received written notice of the present investigation by electronic mail on June 20, 2017. Respondent was notified of the allegations against him by electronic mail on June 20, 2017.

The above statement indicates that Professor Baldini’s alleged concerning interaction with the Complainant was reported to HDAPP on May 12, 2017, by a person other than the Complainant. The statement does not indicate whether allegations were reported in person or by phone hotline, email, or fax. The statement does indicate whether HDAPP called the Complainant and coerced her into filing a formal report or whether the Complainant came to the office voluntarily six days later on May 18, 2017.

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At 6:37 p.m. the same night, Respondent sent Complainant an email.

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At 6:37 p.m. the same night, Respondent sent Complainant an email

saying that he should have invited Complainant to print a score with him, that they could have in his office and that "I was very much enjoying spending time with YOU." Both parties agreed that the November 18, 2016 meeting ended when Respondent said he needed to go print a score. Attachment C reflects the content of Respondent's follow-up email communication, and neither

party disputed it. Both parties stated that Complainant did not respond to the message.

16. After winter break, on January 14, 2017, Respondent contacted

Complainant to ask if she was okay and to suggest times to talk later that week. Attachment C reflects the content of that communication, and neither party disputed it.

17. Complainant responded on January 16, 2017 that she was fine and

did not need a meeting. Attachment C reflects the content of that communication, and neither party disputed it. Complainant credibly stated that she consulted with non-orchestra friends about how to respond to the meeting request and she decided to be clear that she did not want a meeting even though it was difficult for her to disappoint people.

18. Respondent replied that he did not want an "official 'meeting" and

that she should let him know if she ever wanted to try Attachment C reflects the content of that communication, and neither party disputed it.

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19. Toward the end of the year, Complainant went to Respondent's office to ask to borrow the Mondavi[hat was their first one-on-one communication since January. The parties agreed that Complainant and Respondent did not interact one-on-one or over email between the January exchange and the May time frame, when Complainant went to Respondent's office to ask permission to borrow the Mondavi

The above statement should be the end of the story. However, the email was concerning because it included “I was very much enjoying spending time with YOU.”

The HDAPP investigator did not pursue the remark and did not question Professor Baldini or ask him to explain himself and his motives. The Complainant also did not elaborate whether she considered the statement to be offensive or sexually suggestive.

Following the email communication on January 17, 2017, Professor Baldini did not make any further attempt to contact the Complainant via email or phone or to approach her during orchestra rehearsal.

Furthermore, the investigation report does not clearly state why the Complainant left UC Davis after she reported Professor Baldini.

Letter of Censure and Notice of Disciplinary Action: September 28, 2017

Chancellor May, according to your September 28, 2017, Letter of Censure and Notice of Disciplinary Action (in strict confidence), Professor Baldini was not admonished as stated in the Davis Enterprise article but was severely punished with a long suspension without pay and the threat of termination of his employment. This was based on information outlined in Summary of Investigative Findings written by Danesha Nichols or her subordinate from the HDAPP office.

Accordingly, you will be suspended without pay for winter quarter, 2018, during which time you will have all of your normal faculty privileges suspended. Accordingly, from January 1 through March 23, 2018, you will not be permitted to be present on University property without prior written permission from the Associate Dean of Humanities, Arts and Culture Studies, Claire Waters. You will not be permitted to spend or draw upon University research or

111 This letter quotes from the version of the Faculty Code of Conduct that was in effect throughout academic year 2016-17.

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Professor CHRISTIAN BALDINI September 28, 2017 Page 3

gift funds, or be reimbursed by the University for travel or other business related expenses. You will not be permitted to publicly represent yourself as a UC Davis faculty member during this time. Because you are an academic year appointee receiving your 9 month salary spread out over 12 months, your pay will be suspended for a period of 4 months, from December 2017 through March 2018.

For the duration of the period of suspension, you may make use of the services of the Academic and Staff Assistance Program (http://www.hr.ucdavis.eduy/asap/). You also may contact the Davis Division of the Academic Senate and or DIRECTOR DANNY GRAY

of the Office of Academic Affairs (dgray@ucdavis.edu or 530-752-

2090) without prior permission. However, if you need to communicate

with any other faculty, staff, or students, or to gain access to your office

or any other UC Davis facility for any reason, please contact Associate

Dean Waters. If you do not adhere to the terms of your suspension, you may be subject to further disciplinary action.

A copy of this letter will be retained in a confidential file maintained in

the Office of the Vice

You also may contact the Davis Division of the Academic Senate and or DIRECTOR DANNY GRAY of the Office of Academic Affairs (dgray@ucdavis.edu or 530-752-2090) without prior permission., Chancellor May stated in his “execution “ letter

My understanding is that on September 25, 2017, through his attorney, Professor Baldini accepted the proposed sanction of suspension without pay for one quarter. This is a significant monetary loss for the modest salary of a professor and a conductor of the UC Davis Symphony Orchestra. The professor’s motive for not to contesting the punishment or negotiating with the Chancellor’s office for alternate resolution remains a mystery. Perhaps the stressed and humiliated professor did not want to deal with the very unprofessional “my way or the highway” ultimatum in your sanction letter. On December 29, 2017, Professor Baldini provided the Davis Enterprise with his rebuttal statement concerning the devastating blows to his family life and career that were delivered by the Summary of Investigative Findings. My best guess is that after he read the December 12, 2017, Davis Enterprise Danny Gray “MeToo” story, Professor Baldini

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figured out that he was framed by “Americanos.” He probably sang “Don’t Cry for Me Argentina” as his song of despair.

Crafted with evil intentions, the pseudo-investigation report by Nichols (most likely as a joint venture with Gray and Wendi Delmendo) was an obvious prelude to Gray’s “MeToo Arrives at the University of California.” The article details 30 years of an allegedly unwelcomed sexual relationship with UC Davis Music Professor and Orchestra Conductor Kern Holoman.

December 2017: Professor Baldini’s Statement

Over a year ago, a member of the UC Davis Symphony Orchestra felt that my behavior towards her was inappropriate. I am devastated by the accusation and terribly sorry about the effect on my student. I accept responsibility for the misunderstanding and have taken many steps to ensure nothing like that will ever happen again. I am glad to work in a place where these issues are taken seriously.

During a brief conversation in my office, the student in question expressed interest in knowing more about my culture, music and regional foods. When she mentioned she would love to dance but that she was terrible at it, in a very casual way I volunteered to teach her a couple of tango steps, and upon her enthusiastic acceptance of my offer we proceeded to do a brief tango demonstration which at the time seemed to be completely harmless and innocent. Even though nothing sexual was intended, I deeply regret that over time this was perceived by my student in such a way. My faults are failing to recognize that my behavior could have a reaction in her that was unintended. I feel contrite and remorseful that one of my students would have felt this way by something I did, and I deeply apologize for any stress and pain this may have caused.

I was born and raised in Argentina and for the first 24 years of my life I lived in a society where (non sexual) physical contact was widely accepted as a normal and daily form of communication. Greeting with a kiss on the cheek, hugging and touching is common in the culture of my upbringing, and I am not saying this to justify my actions, but simply to point out that after living in the US for 14 years, I am acutely aware of these cultural differences. I thought I had learned through experience and that I was successfully adapting myself in different cultures and contexts,

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and that the way I was handling myself around my students was perfectly acceptable. My calling the student a "bad girl", which I fully admitted saying, was done in reference to her having knocked off a magnetic name plate on my office door with her backpack, the first time she came to my office. It never occurred to me that calling someone a "bad girl" in this context could be perceived as a sexual type of comment. After this unfortunate incident was brought to my attention, I realized that after all these years I am still learning to adapt to US customs. I obviously need to be a lot more careful and considerate, and I must make sure to prevent anything like this from ever happening again.

I always ask my students to come and talk to me if anything needs to be discussed. I am obviously not a counselor, and I never intended to be one. In fact many times I have referred my students to counseling and I've spent hours on the phone with our counselors explaining what the situation might be with a certain student. This student and I never exchanged text messages or called one another. All of our communications were done through email and I volunteered to provide to the university's investigator, and did provide, all of our email correspondence, in an attempt to be as open and transparent as possible. I know I am not perfect and that if I ever say or do anything that is perceived as hurtful or offensive, I like to be able to address that and make things better. I need to be able to learn from my own mistakes. I want to be perceived as approachable and easy going. And I want students to know that if we understand each other better, we will be able to serve the music in front of us much more powerfully.

The system must absolutely protect and support individuals from harassment and assault. We must offer everyone a safe learning environment. But the system must also promote a healthy and balanced scenario in order to allow our professors to express themselves freely and provide a rich cultural network of support to their students.

Christian Baldini (December 2017)

I don’t know whether Professor Baldini is a Non-Senate or Senate Academic Appointee. However, General University Policy APM-150 provides for Non- Senate Academic Appointees as follow:

For non-Senate academic appointees who are subject to peer review for performance evaluation, demotion and dismissal for unsatisfactory work performance shall involve the regular peer review process. Such a peer review shall be advisory to the administrator authorized to institute the demotion or dismissal action.

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TYPES OF CORRECTIVE ACTION AND DISMISSAL

Corrective action is a written warning, written censure, suspension without pay, reduction in salary, or demotion for good cause, including but not limited to misconduct, unsatisfactory work performance, derelicti on of duty, or violation of University policy.

Written warning is a communication that informs the appointee of the nature of the misconduct or deficiency, the method of correction, and the probable consequence of continued misconduct or deficiency. A written warning is to be distinguished from an informal spoken warning. An informal spoken warning or a letter outlining performance expectations is not an official corrective action.

A written censure is a formal written expression of institutional rebuke which contains a description of the censured conduct. A written censure must be delivered to the recipient and a copy must be maintained in a designated file or files,

INVESTIGATORY LEAVE

An appointee may be placed on immediate investigatory leave with pay, without prior written notice, for the purpose of reviewing or investigating conduct which in the judgment of the Chancellor requires removing the appointee from University premises. While on such leave, the appointee's return to University premises without written permission may create independent grounds for dismissal. Such investigatory leave must be documented in writing after it is instituted.

WRITTEN NOTICE OF INTENT

The University shall provide a written NOTICE OF INTENT to the appointee prior to initiating the actions of written censure, suspension without pay, reduction in salary, demotion, or dismissal. The Notice shall state:

the intended action, including reasons for the action and the proposed effective date; (b) the basis of the charges, including copies of pertinent materials supporting the charges; (c) THE APPOINTEE'S RIGHT TO RESPOND EITHER ORALLY OR IN WRITING WITHIN FOURTEEN (14) calendar days of the date of issuance of the written Notice of Intent; and (d) the name of the

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person to whom the appointee should respond. No Notice of Intent is required for a written warning.

I will refrain from elaborating further concerning how grossly UC policies and Professor Baldini’s employee rights were violated by the witch hunt and ill-minded ultimatum

delivered to humiliate and devastate Professor Baldini. However, I am curious about the

following:

Who made the decision to transfer Gray from UCLA back to UC Davis and provide him with the Director of Academic Employment and Labor Relations position? UC Davis was where he was allegedly sexually assaulted on several occasions by Professor Holoman.

The victimization of Professor Baldini and his family appears to be part of Gray’s unresolved trauma concerning his very controversial relationship with Professor Holoman. Perhaps Gray is merely pursuing a vendetta against Professor Baldini in lieu of Professor Holoman—utilizing two notorious UC Davis witch hunters, Nichols and Delmendo, as well as the new UC Davis chancellor. Chancellor May, you likely don’t yet have any clue how the UC mafia is connected. However, given the fact that you replaced Chancellor Katehi—who was hunted down by Napolitano at a cost of $1,000,000, all because Napolitano did not like Katehi’s Greek accent—you should know better.

Before he was allowed to publish a “MeToo” story detailing his “Holoman obsession” or to hunt down others, Gray should have been asked to explain why he was sued in state and federal courts in 2003–2010. Gray faced allegations that he was covering up serious sexual harassment and writing phony HR reports when he was employed in UC Davis as an HR consultant and analyst in 2001–2003.

I am reviewing lawsuits against the UC Regents from the Los Angeles County courts

because Gray was employed in the UCLA HR Department from 2003–2014. He most likely investigated sexual harassment and discrimination cases during these 11 years of employment with UCLA.

Because Gray (like Delmendo) is an inactive attorney registered by the State Bar, he was possibly a Title IX officer in UCLA.

The allegations against Professor Baldini are nothing compared to the crimes committed

by the UC Davis bandits. Gray is very familiar with such crimes because he was listed as

a defendant in lawsuits that alleged discrimination and despicable sexual harassment.

Chancellor May, before you take further adverse action against Professor Baldini (who is being victimized by witch hunters out to completely destroy his family, livelihood, and career), you should ask Gray about the October 15, 2013, “Independent Investigative Report on Acts of Bias and Discrimination Involving Faculty at the University of

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California, Los Angeles” and whether Gray investigated sexual harassment and discrimination cases on the UCLA campus.

Investigation and Report by: Hon. Carlos Moreno (Ret.), Chair

In recent years several incidents of racial bias and/or discrimination have occurred on the UCLA campus and garnered public attention. Subsequent university press releases regarding the incidents, as well as statements by UCLA Chancellor Block, also received attention.

The incidents and the subsequent statements by UCLA officials caused consternation among certain faculty members of color at the university. On June 15, 2012, roughly thirty such concerned faculty members sent Executive Vice Chancellor Waugh a letter in which they requested a review of the campus racial climate as well as the appointment of an independent review committee to address the university’s policies and procedures for responding to incidents of racial bias on campus.

Recently, former Supreme Court Justice Carlos Moreno was called to rescue the UC underground organization from and downplay allegations of tampering with the State Audit. Allegedly, Napolitano’s gestapo covered up the $175,000,000 stashed for transfers to her Swiss bank account. I can’t think of any other explanation for why she stashed and hid $175,000,000 from auditors.

Cruz Reynoso (Chair, Professor Emeritus, School of Law, UC Davis; Former Associate Justice, California Supreme Court) is another rescuer for the UC mafia. Reynoso authored “Justice to the Rescue,” “UC Davis November 18, 2011 Pepper Spray Incident Task Force Report,” and “The Reynoso Task Force Report” to cover up the outrageous November 18, 2011, pepper spray attack on protesting students. This assault was orchestrated by former UC Davis Chancellor Vanderhoef’s mafioso; UC Davis Campus Counsel Steven Drown removed and replaced UCD Chief of Police Anne Spicuzza, Capitan Joyce Souza, and Lt. John Pike. In October 2011, I reported to these officials

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and reported child pornography activities in the UCDMC. My allegation was covered up by Nichols, Delmendo, and Stephen Chilcott. I also brought to their attention the suicide of UCDMC worker Todd Georlich; however, they had apparently been prohibited from investigating. November 18, 2011, was the first unsuccessful attempt by Charles Robinson and Steven Drown’s mob to discredit Chancellor Katehi. Watch your back, Chancellor May, and read the reports about the UCOP Department of Discrimination and Exclusion because—just like your predecessor—you could very quickly become a target of the UCOP gestapo’s hunting games.

I am not sure why former Justice Reynoso or Justice Moreno are lending their names and prestige to the UC mafia. I also don’t know why Reynoso would associate with notorious UC mafia servant attorney George Acero.

Conclusion of this Chapter

Nichols is a classic example of a university witch hunter who intentionally engaged in conspiracy against UC Davis employees including Professor Baldini. She and many others have committed malicious acts of reprisal, retaliation, threats, and coercion. They also directed, recommended, processed, and approved personnel actions including but not limited to promotions, transfers, assignments, performance evaluations, suspensions, and other disciplinary actions. One such action was my termination of employment and the use of official authorities to influence other employees for the purpose of intimidating, threatening, coercing, or commanding. This was perpetrated to interfere with my right to disclose UC officials’ serious violations of law and university policies.

An attorney who knows that another attorney has committed a violation of the Rules of Professional Conduct in a way that raises substantial questions as to the latter attorney’s honesty, trustworthiness, or fitness must inform the appropriate professional authorities. Nichols failed to act against and actually collaborated with Delmendo, Chilcott, and other “bandits” in order to inflict harm and ruin lives.

For the reasons that I have provided, I am again respectfully appealing to you, Chancellor May, to disregard Nichols’s witch hunt report aimed at Professor Baldini and his family and to let Professor Baldini return to his normal duties and normal life and pay back his financial losses because of this beyond human decency witch hunt by mob I dealing with for 11 years.

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Nichols’s criminal witch hunt report, which was crafted in conspiracy with Delmendo and most likely Gray, is destroying Professor Baldini, his family, and other innocent parties. Because they covered up and condoned child pornography activities on university premises, Nichols, Delmendo, and any who aided or actually participated in such despicable and illegal activities should be prohibited from conducting any investigations involving allegations of sexual misconduct or harassment. Their university computers should be inspected and checked for possession of visual depictions of minors in sexually explicit conduct.

Another possible reason that the UCOP bandits brought Gray’s “MeToo” story to light and ordered UC Davis witch hunters to frame Professor Baldini is the wrongful termination, discrimination, and sexual harassment lawsuit Un Nam Hui v. The Regents of the University of California (Case No. 34201300138396CUWTGDS), which has been pending in the Sacramento County Superior Court since January 14, 2013. Un Hui Nam recently prevailed in this case on the appeal in the anti-SLAPP motion filed by the notorious George Acero in 3DCA on September 25, 2013. In August 2005, Acero and fellow Porter Scott law firm attorney Michael Pott filed a fraudulent anti-SLAPP motion against UC Davis employee Randy Vergos, who was harassed by sexual predator Allen Tollefson. Attacking and publicly punishing Baldini and Holoman for alleged sexual harassment and misconduct at almost the same time is far too convenient. Hopefully, court judges are not stupid enough to buy such a hoax. Nichols was working with Delmendo, the UCDMC, the UC Davis Chief Compliance Officer, and the Title IX Officer when a young persecuted and sexually harassed doctor was crying for help. What did that doctor get from Nichols, Delmendo, Chilcott, and Cindi Oropeza? More discrimination and sexual harassment. Trust me, Chancellor: these folks are ruthless criminals. Read the Court of Appeal, Third Appellate, certified and published opinion in Un Hui Nam’s case. The original complaint lodged in the Sacramento County Superior Court is accessible online. (Opinion from appellate court enclosed )

In conclusion, I am enclosing most recent small part of my personal “MeToo” story.A few days ago, the California Supreme Court sent me their decision concerning my former attorney Douglas Stein, who I hired to represent me in my wrongful termination lawsuit against the UC Davis bandits. At the time, I did not know that Stein was in love with UC Davis’s legal counsel Michael Pott from Porter Scott and Judge of Sacramento County

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Superior Court Hon. David Brown. Together, they colluded with $ 300, 000 on the table to ignore my wrongful termination case.

STEIN ON DISCIPLINE Case Number S245982

The court orders that Douglas Edward Stein, State Bar Number 131248, is suspended from the practice of law in California for two years, execution of that

period of suspension is stayed, and he is placed on probation for three years subject to the following conditions: 1. Douglas Edward Stein is suspended from the practice of law for a minimum of the first year of probation, and he will remain suspended until the following conditions are satisfied: i. He makes restitution to Jaroslaw Waszczuk in the amount of $14, 694.33 plus 10 percent interest per year from June 2, 2014 (or reimburses the Client Security Fund, to the extent of any payment from the Fund to Jaroslaw Waszczuk, in accordance with Business and Professions Code section 6140.5) and furnishes satisfactory proof to the State Bar's Office of Probation in Los Angeles; and ii. If he remains suspended for two years or more as a result of not satisfying the preceding condition, he must also provide proof to the State Bar Court of his rehabilitation, fitness to practice and present learning and ability in the general law before his suspension will be terminated. (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.2(c)(1).) 2. Douglas Edward Stein must also comply with the other conditions of probation recommended by the Hearing Department of the State Bar Court in its Order Approving Stipulation filed on October 24, 2017. 3. At the expiration of the period of probation, if Douglas Edward Stein has complied with all conditions of probation, the period of stayed suspension will be satisfied and that suspension will be terminated. Douglas Edward Stein must also take and pass the Multistate Professional Responsibility Examination during the period of his suspension and provide satisfactory proof of such passage to the State Bar's Office of Probation in Los Angeles within the same period. Failure to do so may result in suspension. (Cal. Rules of Court, rule 9.10(b).) Douglas Edward Stein must also comply with California Rules of Court, rule 9.20, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of this order. Failure to do so may result in disbarment or suspension. Costs are awarded to the State Bar in accordance with Business and Professions Code section 6086.10 and are enforceable both as provided in Business and Professions Code section 6140.7 and as a money

judgment.

One-third of the costs must be paid with his membership fees for each of the

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years 2019, 2020, and 2021. If Douglas Edward Stein fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.

Best Regards,

balance is due and payable immediately. Best Regards, Jaroslaw Waszczuk 2216 Katazakian Way Lodi, CA 95242

Jaroslaw Waszczuk

2216 Katazakian Way Lodi, CA 95242 Phone : 209-663-2977 e-mail: jjw1980@live.com

The next thirteen chapters of “Danny Gray’s ‘MeToo’: Parts Unknown” will be completed and sent out within a few days.

DANESHA Program Director NICOLE and NICHOLS – SBN #2227784 „MeToo” – PARTS UNKNOWN Sexual Harassment Officer University of California, Davis 207 Third Street # 210 Davis, CA 95616 Tel. (530) 747-3864 Email: dnnichols@ucdavis.edu

1. General Information

Danesha Nichols, JD, graduated from the University of Pacific McGeorge School of Law around 2002 and was admitted to the State Bar of California on December 3, 2002. She was hired by UC Davis in September 2004 as Human Resources Principal Labor Relation Consultant with a $53,000 annual salary, which was relatively low. She held this position in the UC Davis campus HR Department. In 2008, Nichols was handling SBN #2015169, an arbitration, together with her colleague UC Davis HR Assistant Dawn M. Capp, JD. Nichols was representing the university in relation to my complaint against the university administrators who organized a despicable manhunt against me and my coworker William Buckans in 2005–2008.

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Just after the university was defeated in the arbitration, Dawn Capp, who was the leading HR attorney in the arbitration, disappeared from the university landscape. DANESHA NICHOLS survived the defeat and held her HR Principal Labor Relation Consultant position at the UC Davis campus until October 2010.

In October 2010 DANESHA NICHOLS was deployed as a Investigator Coordinator in the UC Davis Medical Center HR department, reporting to the UC Davis Health Executive Director STEPHEN CHILCOTT, JD, SBN# 196905, who was leading and coordinating the witch hunt against me in 2006–2008 with enormous authority and power given to him by the UC Regents and the UC Office of General Counsel to eliminate me from the UC payroll.

The HR Investigator Coordinator position in the University of California System is a short-term position and may be defined in simple words as a leader of a coordinated hunt attack with other hunters from various departments against a complaining employee until that employee is demoted, silenced or fired”— something similar to the leader of pack of wolves or dingoes attacking their prey.

The attack of the witch hunters led by the Investigator Coordinator is being overseen by UC campuses’ Chief Compliance officers like Ms. Delmendo who need another Compliance officer to obey laws an UC policies and procedures , locally designated officers who could be HR Directors, Vice Chancellors or Vice Presidents.

The Chief of Compliance officer is a university title that has nothing to do with compliance with anything but rather is a smoke screen position meant to give a false impression to employees who are complaining about corruption, management misconduct, waste of university resources, harassment or retaliation that the employee will be protected from retaliation.

Government Code Section 8547.10 (b) &(c) states that: b) Any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a University of California employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure, is subject to a fine not to exceed ten thousand dollars ($10,000) and imprisonment in the county jail for up to a period of one year. Any university employee, including an officer or faculty member, who intentionally engages in that conduct shall also be subject to discipline by the university. (c) In addition to all other penalties provided by law, any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a

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university employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party. Punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious.

This statute looks and sounds great. However, if anybody takes into consideration the 18 month time limit that university “witch hunters”—who call themselves investigation coordinators, chief compliance officers, locally designated officers, principal investigators, managers, or supervisors, etc.—have to conduct and finish their witch hunt, employees who complain and who are then hunted down like animals have no chance to survive the psychological terror, provocations, physical confrontation, discrimination, bullying, attacks by coworkers, coercion, or preferential treatment on the part of vicious and unscrupulous managers and supervisors etc.

The best example of this is my own retaliation complaints and the case of other UC Davis Medical Center employees who I have represented and helped to defend themselves against members of the university management who are vindictive beyond imagination and are assigned witch hunters such as DANESHA NICHOLS or STEPHEN CHILCOTT.

Furthermore, certified opinion for publication known as Vergos v. McNeal, 53

Cal.Rptr.3d 647, 146 Cal.App.4th 1387 (Cal.App. Dist.3 01/23/2007.

Supreme Court of California decision in the case Les G. Miklosy et al. v. The Regents Of The University Of California Et Al, No. S139133, emboldened the University of California witch hunters to the point that witch-hunting on the university campuses became a kind of sport or safari, in which they had university campuses directors, managers, and assigned witch hunters with titles such as chief of compliance officer and investigation coordinator, such as DANESHA NICHOLS and others like WENDI DELMENDO , hunt down employees.

the July 31, 2008

2. Danesha N. Nichol’s Professional Misconduct

To the best of my knowledge, Danesha N. Nichols J.D., has, since 2008, violated the California State Bar Rules of Professional Conduct, knowingly assisted or induced another to do so, or has done so through the acts of another.

Since 2008, Danesha Nichols, in conspiracy with others, committed unlawful acts

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that reflect adversely on her honesty, trustworthiness, and fitness as employee of public entity. Since 2008, DANESHA NICHOLS, in conspiracy with STEPHEN CHILCOTT, STEVEN DROWN, University of California General Counsel CHARLES ROBINSON, and others engaged in misconduct involving dishonesty, the cover up of fraud, deceit, and misrepresentation of her position as a UC Davis HR attorney with the title of Principal Consultant and Investigation Coordinator and as an attorney licensed by the State Bar of California.

In the period from July 2011 to May 2012, DANESHA NICHOLS, as the UC Davis Medical Center HR Investigation Coordinator, with full knowledge of her wrongdoing and as a skilled attorney licensed by the State Bar of California, in conspiracy with the Regents of the University of California and other University of California attorneys, including but not limited to UC Davis Health System Chief Counsel , ANNA ORLOWSKI, UC Davis Health System Executive Director STEPHEN CHILCOTT, and other high-ranking UC Davis administrators and managers, orchestrated and carried out despicable, indecent attacks against myself and other university employees to cover up the enormous, multimillion- dollar fraud against the Internal Revenue Service and the State of California Franchise Tax Board, which was committed by the university administration relative to the unlawful operation of a 27 MW cogeneration power plant and illegal power sales.

Danesha Nichols, as UC Davis HR employee and an attorney at law licensed by the State Bar of California, by her blunt disregard and violation of state and federal laws and of University of California policies and procedures, which are equal to state statutes, by conspiring with other attorneys employed by the university and with university administrators, violated my and other employee civil and human rights by her despicable disregard for civilized society, laws, and principles.

3. Statement of Facts

In 2008, DANESHA NICHOLS was involved in the arbitration process in relation to my complaint against the vicious witch hunt carried out against me, which was ordered in 2006 by the university administration and was coordinated and carried out by STEPHEN

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CHILCOTT and STEVEN DROWN in conspiracy with other UC Davis Medical Center directors and managers.

In October 2010, DANESHA NICHOLS was deployed from the UC Davis Campus to

the UC Davis Medical Center (UCDMC)

false cause for my employment termination under the guidance of UC Davis Chief Compliance Officer WENDI DELMENDO , UCDMC HR Executive Director STEPHEN CHILCOTT, UC Davis Campus Counsel Steven Drown and coordination with CINDY OROPEZA Inhuman Resources Department Manager for Affirmative Action/EEOC

Real Title: Manager Benefits, EEO, Resident/Fellow Program HR Administrator, Title

IX Officer — Sexual Harassment, Mediation Services, ASAP, No

lead the witch hunt against me and prepare the

Resolution/Exclusion in UC Davis Health System

I believe, that DANESHA NICHOLS’ deployment to UCDMC in October 2010 to deliver final solution with my UC employment was done in emergency manner to monitor the volatile situation relative to the blackmail petition for a pay rise that was submitted to the UCDMC management by four individuals from the UC Davis Medical Center 27 MW cogeneration facility to the Department Head CHARLES WITCHER The mentioned petition was related to my earned wages in 2009 and indirectly to the February 2009 settlement-agreement I signed with the regents which was trashed by the UCOP bandits in 2011 with an attempt to end my employment in UCDMC Trauma Unit # 11 or UCDMC Morgue on May 31, 2011.

DANESHA NICHOLS was already familiar with my 2006-2009 case, and she was ready

for me if I reacted to the blackmail petition. The blackmail petition was more than just a

petition.

In July 2011, I came under direct attack from Danesha Nichols, not knowing why she was attacking me. I had never met her before, and she was very belligerent, calling my office and giving me orders to meet with her, knowing that she was not my supervisor and had to go through the proper channels with my managers in order to schedule a meeting.

I documented her attacks in 79 pages of correspondence, which perfectly describe the coordinated terror and intimidation attacks aimed at me between the period of May 1, 2011 and July 31, 2011.

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The 79 pages of correspondence, shows that DANESHA NICHOLS was a leader of a pack of wolves or dingoes who attack and kill their pray.

The 79 pages of correspondence included the July 22, 2011 complaint letter sent to UC Campus Counsel Steven Drown on the subject of DANESHA NICHOLS and as a reminder to STEVEN DROWN that he signed, in February 2009, the Settlement- Agreement on behalf of the Regents of the University of California. Steven Drown responded on July 26, 2011. Neither STEVEN DROWN, DANESHA NICHOLS, STEVEN CHILCOTT, UCDMC managers and directors, nor UC Davis Chief “Compliance” Officer WENDY DELEMENDo—who guided DANESHA NICHOLS and checked her compliance with the guidance to attack me and fire me from the job— wanted to hear about WASZCZUK’S SETTLEMENT-AGREEMENT with the UC Regents.

Since my open-heart surgery in 2006, I have been surviving on nine medications every day; being terrorized did not help me to do my duty to keep the Hospital’s patients safe. I was monitoring critical alarms. DANESHA NICHOLS and other bandits did not care about UCDMC patients safety. Their goal was to erase me surface of the earth.

On August 3, 2011, due to the terror and stress I was experiencing, my physician placed me for one month on stress-related sick-leave, and that was my last day I ever worked. I was not permitted to come back to work after my work-related sick-leave, and I was placed on endless investigatory leave by STEPHEN CHILCOTT’S orders.

On August 31, 2011, the “pack of wolves,” led by DANESHA NICHOLS, WENDI DELMENDO, STEPHEN CHILCOTT, and other directors and managers, started their hunting game again in preparation to terminate my employment, which was scheduled for September 23, 2011 and was based on DANESHA NICHOLS fabricated false cause for termination . I learned later from the UC Davis Public Record Act office that Danesha Nichols’ witch hunt cause for my termination was destroyed and is not available.

On September 4, 2011, sick and tired of DANESHA NICHOLS’ attacks just after my stress-related sick-leave, I sent an e-mail to Nichols with attached all my performance reviews (evaluations) attached, which I had received in the course of my employment at the UC Davis Medical Center from June 1999 to my last evaluation period in 2009/2010. I thought that maybe my evaluations might make her think twice before launching into another belligerent attack ordered by her superiors.

I did not ever receive my evaluation for the 2010/2011 evaluation period. The evaluation was due in June 2011, July being the latest time for employees to be evaluated according to UC policy.

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The September 2011 atmosphere has been well described in the various 71-page correspondence with DANESHA NICHOLS and others

In the bulk of correspondence was a letter dated September 6, 2011, which I sent by e- mail, together with several photos from the hospital showing me after I had undergone open-heart surgery. I thought it would prevent DANESHA NICHOLS and others from terrorizing me further. However, it did not work.

The attempt to terminate me on September 23, 2011 was prematurely disclosed and my physician placed me again on stress-related sick-leave.

On October 4, 2011, I filed a complaint with the State Bar of California against Executive Director of Human Resources Department in UC Davis Medical Center Stephen Edward Chillcott, Bar # 196905 and Danesha Nicole Nichols, Witch Hunter in the Human Resources Department and subordinate of Chillcott, who coordinated the witch hunt between Danesha Nichols , Wendi Delmndo , Steven Drown and UCOP Gestapo , The Chilcott’s unethical behavior, conspiracy and gross misconduct requires 10 more paged of paper to describe it.

Due to constant unfounded accusations by Danesha Nichols, Chillcot and Charles Witcher, and other bandits , I thought that maybe someone had filed the false complaint with the UC Davis Police Department and accused me of violence and discrimination and

other crimes Plaintiff did not commit. To clear this issue, on October 6, 2011 I asked UC Davis Police Cpt. Joyce Souza from the Professional Standard Unit to search my Police Record and check if any record with my name was there.

In in his eight-page e-mail entitled “Request for Information in regards to the unfounded

accusation against me from UCDMC HR Attorneys and other individuals,” I multiple examples of the despicable, unfounded, and defacing Plaintiff

In his e-mail to UC Davis Police Cpt. Joy Souza with cc. to UC Davis Police Lt. John Pike (the same Lt. John Pike who was pepper spraying protesting students on November 18, 2011 on the UC Davis Campus).

I wrote to Cpt. Joyce Souza on October 5, 2011 in his eight pages e-mail letter:

pasted

“Dear Captain Souza:

I have been working for 12 years in the UC Davis Medical Central Plant Operation and Maintenance, Sacramento Department. In last few months I have been constantly accused by the UCDMC HR Attorney Danesha Nichols and PO&M Department Manager Charles Witcher of being violent, making discriminatory comments, etc. without any factual evidence in my employment record, like evaluation or written or verbal warning.

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I would appreciate it if you would let me know if any complaint has been filed by anyone against me with the UC Davis Police Department (UC Campus or UC Medical Center) for the abovementioned fabricated accusations and allegations for the period from

March 1, 2011 to the present time. If so, then I would be glad to hear from the UC Davis Police Department that the allegations against me are being investigated, and I will be glad to answer any question related to the complaint. I would be glad to talk with the UC Police Investigation Unit/Detectives instead of crooked HR Attorneys from UCDMC.”

On October 6, 2011, Captain Joyce Souza from the UC Davis Police Department responded to Plaintiff’s inquiries dated October 5, 2011, in regard to despicable and unfounded accusations fabricated by the Defendant against Plaintiff. Captain Joyce Souza, in her response, wrote:

Dear Mr. Waszczuk, I have performed a check of our records system and there is nothing noting your name. Please let me know if you need any further assistance. Captain Joyce A. Souza UC Davis Police Department

I noticed that Captain Joyce Souza cc’d her e-mail response to her superior, UC Davis Police Chief Annette Spicuzza, and UC Davis Chief Compliance Officer Wendy Delmendo, who assigned, in July 2011, UC Davis attorney Danesha Nichols to conduct a pseudo-investigation against me to fabricate a cause for my termination of employment on September 23, 2011, which did not happen.

On December 22, 2011, I met DANESHA NICHOLS but later regretted the meeting with her. I did not know or suspect why the ongoing witch hunt was taking place and why they had employed such enormous manpower to destroy one employee. On that day, I drove to UC Davis Medical Center to pick up my private things from my office after I had been removed by Stephen Chilcott’s or the Chancellor’s orders following my stress- related sick-leave. Despite my doctor not giving his permission, on December 5, 2012, my health insurance was canceled, my title was changed to Program I, which I did not know the meaning of, and my disability claim was denied. I thought that I would be terminated within days.

22

After the meeting with Danesha Nichols, I was not permitted to come back to work and I was placed back on investigatory leave, which became the permanent solution to keeping me out of the premises until my employment was terminated in December 2012.

I did not know in December 2011 that the regents had negotiated a new fraudulent power sale contract with Sacramento Municipal Utility District for the UCDMC 27 MW cogeneration power plant, where I had been employed as an operator between June 1999 and March 2007.

I was not welcome to comeback due to the illegal power generation and sale fraud , and I was persona non grata even though I was not concerned during the course of my employment with the university about the regents’ power generation and their contracts with CAISO and SMUD .

On April 13, 2012, I received a Letter of Intent to Suspend for 10 days based on out blue despicable allegations witch crafted by Danesha’s Nichols’ , Stephen Chilcott’s and

Wendy Delmendo .

received a suspension rather than a termination letter after eight months of absence from work due to three months of stress-related sick-leave and five months of phony investigatory leave.

I was furious, but at the same time, I was surprised that I had

Through a Public Record Act request, I received four investigation reports that

DANESHA NICHOLS had fabricated for the

DANESHA NICHOLS, through her superior writing skill, made me looks worse in her witch crafted reports than a twice-convicted child pornography felon, who was illegally accessing the UCDMC HVAC shop computer to surf the Web despite being on probation and being prohibited from touching any computer by a court order Case: 2: 6 –cr- 00418-LKK, The United States of America v. Sean Christopher Robideaux, United States District Court, Eastern District of California, Indictment Violation(S) 18 U.S.C § 2252 () (4)(B) – Possession of Visual Depiction of Minors in Sexually Explicit Conduct). (Court Order Enclosed ) The child porn activities in the HVAC shop were reported in July 2011 by my coworker. Danesha Nichols, as the investigation coordinator and a skilled attorney of law, instead of reporting this sick individual to the authorities and obtaining a restarting order, covered up the activities in her report, and my coworker Kenny Ded who reported the child porn activities activities, was attacked by his supervisors and DANESHA NICHOLS and was forced to quit two years later.

period of March 2011 to February 2012.

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The child porn twice convicted felon motto “Silence or I Kill You” displayed on the social media Facebook convinced a ill and criminally minded DANSHA NICHOLS .

WENDI DELMENDO and STEPHEN CHILCOTT

pornography

secluded place to surf child porn in UCDMC HVAC shop . As I learned Chilcott gave my job and my office to Sean Rubidoux’s father William Robidoux who had access to

the HVAC

please his desire for child pornography.

who are apparently loves child

that child porn twice convicted felon should have better and more

shop 24 hours a day and could bring his sick minded son even at night to

The DANESHA NICHOLS witch crafted reports were not only basis for my suspension but were witch crafted to harm me psychologically and financially, to outrage and provoke and to eliminate me by UCDPD Lt, James Barbour Glock on May 31, 2012. The Reports were part of a planned preparation and ill-minded provocation by the UCDMC HR psychologists and UC Davis new Chief of Police Matt Carmichael. The provocation was most likely ordered by the General Counsel CHARLES ROBINSON with recommendation and feedback from Stephen Chilcott and HR psychologists. The ill- minded plan was quite simple. Suspending an employee without pay and after 8 month of absence instead of let him comeback to work lure him to premises and serve him another investigatory leave with a new fabricated accusation which could make the employee so fed up, he would quit the job, or he would become very angry and hostile by letting him know that he would be prohibited from coming back to work and that a new witch hunt is under way.

On May 31, 2012, I was lured onto the premises by written order in the Letter of Suspension. The UC Police Department Lt James Barbour who was bribed with a $35,000 raise was waiting for me to make sure that I would be delivered to the UC Davis Medical Center Trauma Unit # 11. A Trauma Unit supervisor was waiting to receive me if I was still breathing, or if not, I would most likely be sent to the UC Davis Medical Center Morgue.

The provocation did not work. On May 31, 2012, a new witch hunt notice entitled “Investigatory Leave “ was handed to me and I was not permitted to return to work. I calmly walked away from the provocation, and the Manager of the HR Workers Compensation Department Hugh Parker, who was assigned to coordinate the provocation with all forces in standby, sent to the assembled team, which I called the UC Davis Death Squad, a disappointing e-mail. I was not angry when I was served the new witch hunt

24

notification, and I was redirected to the Human Resources building for questioning by the assigned witch hunter Brent Seifert J.D.

At the beginning of the month of May 2012, the UC Davis Chief Compliance officer, in collaboration with the UC Davis Health System Executive Director Stephen Chilcott, attempted to assign DANESHA NICHOLS to continue her witch hunt against me. DANESHA NICHOLS refused.

She put a lot of effort into fabricating four different witch hunt reports to get me fired and she was not recognized for her effort, as STEPHEN CHILCOTT was in 2007, after I was removed from the UCDMC Central Plant. The UC Davis Health System Executive Director, instead of promoting DANESHA NICHOLS to fill the vacant HR Labor Relation Manager position he hired in April 2012 a white Caucasian who did not have

previous HR witch hunt experience as DANESHA NICHOLS

NICHOLS already had 10 years’ experience in the HR as a witch hunter not to mention

the fact that she is a woman and an African-American and should be considered for promotion according to discrimination and exclusion policy and guidance .

On December 1, 2014, in the filed Court Declaration in Support of the Special Motion to Strike Defendant DANESHA NICHOLS under penalty of perjury, DANESHA NICHOLS stated, “I did not harbor any unlawful motives or biases towards Waszczuk during the course of my investigation, nor did I retaliate against him for filing whistleblower complaints.” I did not file or signed any whistle blowing complaint. Wendi Delmendo filed one without my ok. Danesha Nichol’s Declaration is total perjury under the law of the state of California under Penal Code section 118(a), which states, “Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California, under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.” Kulshrestha v. First Union Commercial Corporation, 93 P.3d 386, 33 Cal.4th 601, 15 Cal.Rptr.3d 793 (Cal. 07/19/2004); Supra S115654; People v. Laws, 120 Cal. App. 3d 1022, 178 Cal. Rptr. 102 (Cal.App.Dist.1 06/26/1981)

DANESHA

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Penal Code section 134 provides, Every person guilty of preparing any false or antedated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.” People v. Jensen, 94 Cal. App. 3d 451, 156 Cal. Rptr. 447 (Cal.App.Dist.1 06/27/1979)

DANESHA NICHOLS was constantly retaliating against me and others harboring unlawful motives to cover up university administrators’ crimes and fraud. Danesha Nichols’ investigation reports are total fraud and were fabricated to inflict harm on me and to violate my and others civil and human right

To be continue .

fraud and were fabricated to inflict harm on me and to violate my and others civil

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Professor D. Kern Holoman Dear Professor Holoman, December 11, 2017 As you know, the University

Professor D. Kern Holoman

Dear Professor Holoman,

December 11, 2017

As you know, the University has received allegations that you engaged in sexual misconduct with an undergraduate student while he was under your academic supervision. The alleged events took place over a period of years, from 1987 through 1991. The allegations, if true, would have been a violation of the University’s sexual harassment policy and Academic Personnel Manual (APM) 015, the Faculty Code of Conduct at that time. The University takes such allegations seriously and is committed to conducting a prompt investigation and taking appropriate corrective action.

The Faculty Code of Conduct provides for early resolution of allegations of faculty misconduct before formal disciplinary proceedings are instituted. In accordance with that provision, you have agreed to accept disciplinary action in the form of (1) demotion from “distinguished professor” to professor; and (2) denial of emeritus status. Demotion is an appropriate sanction in this case because the alleged misconduct involves teaching responsibilities which are relevant to the academic advancement process of the faculty member. The removal of emeritus status means you will no longer be eligible to be employed by the University of California or to participate in teaching, governance or scholarly activities related to the University of California. You will no longer be eligible to use the titles “distinguished professor” or “emeritus” in identifying yourself publicly or professionally. It is agreed, however, that your current projects with the University Library and California Digital Library may continue until their completion, and it is understood that you will have no in-person interactions with students, undergraduate or graduate, to complete these projects. You may attend University of California events such as concert, lectures or seminars that are open to the general public.

You are agreeing to accept these disciplinary sanctions in part owing to

with the intention of reaching a timely resolution of this matter. In agreeing to accept these disciplinary sanctions, it is understood that you are not agreeing to the veracity of the allegations or admitting to having engaged in misconduct as set forth in these allegations. In exchange for your acceptance of the disciplinary action, the University will take no further disciplinary action against you with regard to these allegations. Although we cannot control statements by the media or other individuals, we would be willing to include in our response to inquiries that the accused faculty member had voluntarily agreed to accept disciplinary sanctions.

had voluntarily agreed to accept disciplinary sanctions. , and Your signature on this letter confirms that

, and

Your signature on this letter confirms that you understand this agreement, you have had an opportunity to discuss this matter with legal counsel and you enter into this agreement voluntarily.

Professor D. Kern Holoman December 11, 2017 Page 2

Sincerely,

Professor D. Kern Holoman December 11, 2017 Page 2 Sincerely, Philip H. Kass Vice Provost —

Philip H. Kass Vice ProvostAcademic Affairs Professor of Analytic Epidemiology, Population Health and Reproduction (Veterinary Medicine), and Public Health Sciences (Medicine)

/bks

cc: Academic Personnel file

and Public Health Sciences (Medicine) /bks cc: Academic Personnel file Signature - D. Kern Holoman 11

Signature - D. Kern Holoman

11 December 2017

Date

Over a year ago, a member of the UC Davis Symphony Orchestra felt that my behavior towards her was inappropriate. I am devastated by the accusation and terribly sorry about the effect on my student. I accept responsibility for the misunderstanding, and have taken many steps to ensure nothing like that will ever happen again. I am glad to work in a place where these issues are taken seriously.

During a brief conversation in my office, the student in question expressed interest in knowing more about my c ulture, music and regional foods. When she mentioned she would love to dance but that she was terrible at it, in a very casual way I volunteered to teach her a couple of tango steps, and upon her enthusiastic acceptance of my offer we proceeded to do

a bri ef tango demonstration which at the time seemed to be completely harmless and

innocent. Even though nothing sexual was intended, I deeply regret that over time this was perceived by my student in such a way. My faults are failing to recognize that my behav ior could have a reaction in her that was unintended. I feel contrite and remorseful that one of

my students would have felt this way by something I did, and I deeply apologize for any stress and pain this may have caused.

I was born and raised in Argent ina and for the first 24 years of my life I lived in a society

where (non sexual) physical contact was widely accepted as a normal and daily form of communication. Greeting with a kiss on the cheek, hugging and touching is common in the culture of my upbri nging, and I am not saying this to justify my actions, but simply to point out that after living in the US for 14 years, I am acutely aware of these cultural differences. I thought I had learned through experience and that I was successfully adapting myself in different cultures and contexts, and that the way I was handling myself around my students was perfectly acceptable. My calling the student a “bad girl", which I fully admitted saying, was done in re ference to her having knocked off a magnetic name plate on my office door with her backpack, the first time she came to my office. It never occurred to me that calling someone a ”bad girl” in this context could be perceived as a sexual type of comment. After this unfortunate incident was brought to my attention, I realized that after all these years I am still learning to adapt to US cus toms. I obviously need to be a lot more careful and considerate, and I must make sure to prevent anything like this from ever happening again.

I always ask my students to come and talk to me if anything needs to be discussed. I am

obviously not a counsel or, and I never intended to be one. In fact many times I have referred my students to counseling and I've spent hours on the phone with our counselors explaining what the situation might be w ith a certain student. This student and I never exchanged text messages or called one another. All of our communi cations were done thro ugh email and I volunteered to provide to the univers ity’s investigator, and did provide, all of our email correspondence, in an attempt to be as open and transparent as possible. I know I am not perfect and that if I ever say or do anything that is perceived as hurtful or offensive, I like to be able to address that and make things better. I need to be able to learn from my own mistakes. I want to be perceived as approachable and easy going. And I want students to know tha t if we understand each other better, we will be able to serve the music in front of us much more powerfully.

The system must absolutely protect and support individuals from harassment and assault. We must offer everyone a safe learning environment. But the system must also promote a healthy and balanced scenario in order to allow our professors to express themselves freely and provide a rich cultural network of support to their students.

Christian Baldini (December 2017)

Summary of Investigative Findings from HDAC170177 Sexual Harassment Allegations, Orchestra

Brief Summary of How Case Came to Title IX Office:

On May 12, 2017, an official from the Harassment & Discrimination Assistance and Prevention

Program (HDAPP) spoke with

Complainant had alleged a concerning interaction between the Complainant and Respondent. On May 18, 2017, Complainant met with an official from HDAPP. Complainant received written notice of the present investigation by electronic mail on June 20, 2017. Respondent was notified of the allegations against him by electronic mail on June 20, 2017.

allegations against him by electronic mail on June 20, 2017. Witness A, who reported that the

Witness A, who reported that the

I. SUMMARY OF ALLEGATIONS

Complainant alleges:

(1) During a meeting in his office in November 2016, Respondent referred to Complainant as a “bad girl”

(2) During another meeting in his office, Respondent touched Complainant’s hands repeatedly and asked her to dance the tango with him, which led to him holding her in a manner in which her buttocks were pressed up against him. At the end of the meeting, Respondent kissed Complainant on the cheek.

II. EXECUTIVE SUMMARY OF FINDINGS

With respect to each of the alleged actions, the preponderance of the evidence supports the following findings of fact:

(1) During a meeting in his office in November 2016, Respondent referred to Complainant as a “bad girl”: Substantiated.

Respondent acknowledges that he referred to Complainant as a “bad girl,” although he disputes that the conduct was sexual in nature.

(2) During another meeting in his office, Respondent touched Complainant’s hands repeatedly and asked her to dance the tango with him, which led to him holding her in a manner in which her buttocks were pressed up against him. At the end of the meeting, Respondent kissed Complainant on the cheek: Substantiated.

Respondent acknowledges that he offered to teach Complainant to dance the tango. Although he denied touching Complainant’s hands repeatedly, dancing in a manner where their bodies were touching, or kissing Complainant’s cheek at the end of the meeting, the evidence supports each of those allegations. Complainant was generally credible, and she recorded each of those details in a contemporaneous communication to her boyfriend that she provided.

The weight of the evidence further supports that Respondent’s conduct was sexual in nature and that it created a hostile environment for Complainant. As a result, the evidence substantiates a violation of University policy.

III. FINDINGS OF FACT

The preponderance of the evidence supports the following findings of fact:

1. Complainant went to Respondent’s backstage Mondavi room after Orchestra rehearsal on November 15, 2016 to have him sign a form.

The parties agree that Complainant went to Respondent’s office on November 15, 2016 after rehearsal. Complainant identified that she went to Respondent’s office because she needed a form signed. Respondent agreed that there was a form Orchestra members could use to get a discount on lessons. Although Respondent described speculating at the time that Complainant might have come to his office because she was concerned about the recent election results, neither party described any conversation between the two of them about the election. Respondent stated that most students

drop off the lesson form during rehearsal rather than in his office, but Complainant was a

In addition, Respondent indicated he had been gone most of the quarter. Both of

those facts suggest that Complainant would not have extensive previous experience turning in the form. Overall, the evidence supports that Complainant went to Respondent’s office to have her form signed as she described.

office to have her form signed as she described. 2. While Complainant was in Respondent’s office,
office to have her form signed as she described. 2. While Complainant was in Respondent’s office,

2. While Complainant was in Respondent’s office, he called her “bad girl.”

Complainant credibly alleged that Respondent surprised her by calling her “bad girl” during their November 15, 2016 interaction in his office. Respondent did not deny the allegation. Respondent thought he called her “bad girl” when she got caught on his door and made a loud noise. Complainant thought Respondent called her “bad girl” because her form was late, which led her to back into his door and knock off the magnetic name plate. In either event, the evidence supports that Respondent called Complainant a “bad girl.”

3. In the same timeframe as Complainant went to Respondent’s office, other students contacted Respondent for support, including related to the November 8, 2016 election.

Respondent described the tenor of the rehearsal on election night, a week before the November 15,

2016 interaction between the parties. He noted that people were crying and that students later

contacted him to discuss their personal emotional strain resulting from the election. He provided communications to demonstrate the support he provided to diverse students both in connection with the election and otherwise. (Attachment D).

4. Complainant did not request personal support from Respondent or volunteer personal information during their November 15, 2016 interaction.

Complainant did not recall any personal conversation during the November 15, 2016 meeting. Respondent also did not contend that he invited Complainant to meet with him because of an explicit concern she voiced. He described a sense that Complainant wanted to talk to him about personal matters, but that impression was based on the fact that Complainant came to his office when most people handed him forms during rehearsal, that Complainant seemed to be less

cheerful than most

election. He did not describe the impression stemming from anything that Complainant said to

impression stemming from anything that Complainant said to and that other students were upset at the

and that other students were upset at the time because of the

him. Complainant stated that if Respondent asked her how she was on November 15, she expects she would have said “good” because Orchestra was going well.

5. After the November 15, 2016 interaction, Respondent sent Complainant a message saying that “it would have been nice to have more time to talk” and inviting her to his office at 3:00 p.m. the next day. They ultimately agreed to meet at 5:40 p.m. on Friday November 18, 2016 in Respondent’s backstage Mondavi room.

The above communication is reflected in Attachment A, and neither party disputed its accuracy.

6. On November 18, 2016, Complainant biked to Mondavi to meet Respondent as scheduled.

Complainant described biking in the cold. The weather forecast for the day supports her description of the temperature. I found Complainant generally credible, and no facts arose that led me to question her description of biking to the meeting. The parties agreed that they met in the Mondavi backstage office.

7. Respondent sat next to Complainant on a bench in the office.

Complainant described being surprised because when she sat down on the bench in Respondent’s office, he sat next to her rather than in a chair across from her. Others corroborated that the bench is in the office, and Respondent stated that he thinks they both may have sat on the bench. In contrast, Witness B and Witness C said that when they met with Respondent in his office they sat in chairs or at an instrument.

8. During the November 18, 2016 meeting, Respondent touched Complainant’s hands several times.

Respondent denied the allegation that he repeatedly touched Complainant’s hands, stating that he

probably shook her hand when she first arrived but that was all. Witnesses who discussed the event with Complainant recalled her describing the dancing, but not hand touching. However, the weight of the evidence supports Complainant’s allegation. Most importantly, Complainant’s November 18,

2016 message detailing the event described multiple instances of Respondent touching her hands:

“I told him I was cold, and he kept touching my hands to feel them and how cold they were. Throughout the meeting he asked how my hands were doing and felt them.” (Attachment B). Although Witness A originally stated that she did not recall Complainant identifying other touching, Witness A indicated that she had reviewed Attachment B during her previous meeting with Complainant. Upon looking at Attachment B again during her interview, the document refreshed her recollection that Complainant had alleged other touching.

The evidence as a whole also supported that Respondent at times connects with and offers support to students through physical contact. Respondent described providing support for an injured student by holding her hands during a meeting. In Attachment D, he occasionally signed off his emails to struggling students with “big hugs.” Both parties also described Respondent holding Complainant’s hands when dancing, which is a distinct form of contact but also involves touching

Complainant’s hands. Overall, the evidence supports Complainant’s allegations of hand touching despite Respondent’s denials.

9. Respondent also touched Complainant’s shoulder.

When he reviewed Attachment B, Respondent did not identify as inaccurate Complainant’s allegation that he touched her shoulder. However, he also did not specifically identify that touching as having occurred. The evidence supports that Respondent touched Complainant’s shoulder for similar reasons to those discussed above in the context of the hand touching allegation. In her November 18, 2016 message to her boyfriend, Complainant stated, “He also touched my shoulder a lot but thats [sic] more innocent I feel.” In addition to Complainant’s general credibility as discussed above, Complainant specifically had a limited basis to fabricate the shoulder allegation given that she described it in Attachment B as “more innocent” than the hand touching and reiterated in her interview that it did not bother her as much as Respondent touching her hands. Witness H corroborated that she sees touching shoulders as part of Respondent’s personality, although she said it made her uncomfortable on one occasion when he touched her

shoulder

in his office.

10. Respondent asked Complainant if she danced, and she said she was a terrible dancer.

Both parties agreed that Respondent asked Complainant if she danced and she said she did not. In Attachment B, Complainant stated, “He asked me if I dance and I was like ‘oh no I’m a terrible dancer.’”

11. Respondent stood and offered to teach Complainant to dance, and she agreed.

The parties both described Respondent offering to teach Complainant to dance. Attachment B reflects Complainant’s account of the start of the interaction: “I said even if I wanted to learn I’d have to get my roommate to teach me or pay for lessons. He said ‘I’ll teach you’ and got up and motioned for me to get up too. I got up and he reached for my backpack straps to take my backpack off. Then I was like, lol (i [sic] laugh when I get nervous) what dance are we doing? And he said tango….”

12. Respondent danced with Complainant in a style of tango that involved touching her waist and spinning her, which led to her buttocks being against his body.

Respondent initially stated that he was just touching Complainant’s hands during the dancing;

however,

hands holding her hands. Complainant’s contemporaneous notes identify that Respondent “grabbed [her] waist and [they] danced.” The notes also distinguish that the parties did two types of dancing that day: The tango, where Respondent held Complainant by the waist, and a dance she identified as “samba.” Respondent credibly denied teaching Complainant to samba, stating that he does not know that dance, which is Brazilian. At the same time, Complainant’s description of the dance as “samba” appears to reflect a misunderstanding rather than an intentional inaccuracy in that her notes described the latter dance as “innocent,” so she had limited basis to invent that the dancing occurred. In addition, in her interview she said the latter dance involved Respondent just grabbing her hands without other touching, which aligns with Respondent’s recollection that during some of the dancing he was just holding Complainant’s hands. Overall, both parties’

he later acknowledged that it was possible he had a hand on her back rather than both

accounts support that the parties did some dancing where they were just touching hands and some dancing where Respondent was holding Complainant by the waist.

Respondent acknowledged spinning Complainant but stated that he was absolutely sure that there

was no

weight of the evidence supports that the contact occurred as alleged. First, I found Complainant generally credible as discussed above. Complainant also described the tango dancing as the most uncomfortable portion of her interaction with Respondent, which would reasonably make the details more memorable to her than to Respondent (particularly given the passage of time before Respondent first described the dancing). In her notes, she downplayed certain other contact as “innocent,” including repeatedly touching her shoulder and dancing while just holding her hands, which supports that Complainant was not exaggerating her allegation about the tango contact. Similarly, in her interview, Complainant described the “samba” dancing as involving “a bunch of space” between the parties whereas her notes stated that during the tango, “[a]t some points he like spun me around and my butt was kinda pressed to his body.” Witness C, with whom Complainant discussed the issue at the time, stated that she told him that Respondent pulled her in close to show her how to dance and made her uncomfortable.

contact between his body and Complainant’s when he spun her around. However, the

At the end of the dancing, Complainant’s notes described Respondent saying, “‘you’re a very good dancer, and a good learner. I liked dancing with you.’” That statement aligns with Respondent’s communication style, such as his emailed statement to Complainant later the same night that “I was very much enjoying spending time with you.”

13. Also during the meeting, Respondent and Complainant talked about features of each of

their cultures, including

talked about features of each of their cultures, including and tango in his case and and

and tango in his case and

each of their cultures, including and tango in his case and and in hers. Witness C

and

in hers. Witness C
in hers.
Witness C

Both parties described conversations about cultural features like

corroborated that Complainant told him at the time that they had talked about regional foods.

him at the time that they had talked about regional foods. 14. At the end of

14. At the end of the meeting, Respondent kissed Complainant’s cheek.

Respondent denied kissing Complainant at the end of their meeting, stating that they hugged goodbye. However, the weight of the evidence supports Complainant’s allegation that he kissed her cheek as alleged. Her contemporaneous description in Attachment B states, “At the end of the meeting he did that European thing where he kissed my cheek.” In additional to the general credibility findings discussed above, Complainant was credible in the context of the kissing allegation in that she described it in cultural terms (“that European thing”) rather than as implicitly sexual and in that she described it in her interview as “the cherry on everything weird that had happened” but as less concerning to her than some of Respondent’s other conduct that night.

Witness C, who appeared balanced and to have a generally positive relationship with Respondent, stated that Respondent does kiss women on the cheek and Witness C would not be surprised if he kissed Complainant. As was discussed above, Respondent moved back from his initial statement that he “certainly” did not kiss students stating that he does not view kissing as sexual and would not have a problem with certain students greeting him with a kiss. He also acknowledged that he

may have kissed Witness G on the cheek

may have kissed Witness G on the cheek
may have kissed Witness G on the cheek
may have kissed Witness G on the cheek
may have kissed Witness G on the cheek
may have kissed Witness G on the cheek
may have kissed Witness G on the cheek
may have kissed Witness G on the cheek
may have kissed Witness G on the cheek 15. At 6:37 p.m. the same night, Respondent
may have kissed Witness G on the cheek 15. At 6:37 p.m. the same night, Respondent
may have kissed Witness G on the cheek 15. At 6:37 p.m. the same night, Respondent
may have kissed Witness G on the cheek 15. At 6:37 p.m. the same night, Respondent
may have kissed Witness G on the cheek 15. At 6:37 p.m. the same night, Respondent

15. At 6:37 p.m. the same night, Respondent sent Complainant an email saying that he should have invited Complainant to print a score with him, that they could have

tried you.”
tried
you.”

in his office and that “I was very much enjoying spending time with

Both parties agreed that the November 18, 2016 meeting ended when Respondent said he needed to go print a score. Attachment C reflects the content of Respondent’s follow-up email communication, and neither party disputed it. Both parties stated that Complainant did not respond to the message.

16. After winter break, on January 14, 2017, Respondent contacted Complainant to ask if she was okay and to suggest times to talk later that week.

Attachment C reflects the content of that communication, and neither party disputed it.

17. Complainant responded on January 16, 2017 that she was fine and did not need a meeting.

Attachment C reflects the content of that communication, and neither party disputed it.

Complainant credibly stated that she consulted with non-orchestra friends about how to respond

to the meeting request

was difficult for her to disappoint people.

and she decided to be clear that she did not want a meeting even though it

18. Respondent replied that he did not want an “official ‘meeting’” and that she should let

him know if she ever wanted to try

and that she should let him know if she ever wanted to try Attachment C reflects

Attachment C reflects the content of that communication, and neither party disputed it.

19. Toward the end of the year, Complainant went to Respondent’s office to ask to borrow

the Mondavi

bass.
bass.

That was their first one-on-one communication since January.

The parties agreed that Complainant and Respondent did not interact one-on-one or over email between the January exchange and the May timeframe, when Complainant went to Respondent’s

office to ask permission to borrow the Mondavi

exchange and the May timeframe, when Complainant went to Respondent’s office to ask permission to borrow
exchange and the May timeframe, when Complainant went to Respondent’s office to ask permission to borrow

IV. POLICY ANALYSIS

The University policy on Sexual Violence and Sexual Harassment prohibits sexual harassment. Conduct violates the sexual harassment policy when it (1) constitutes unwelcome conduct of a

sexual nature and was (2) sufficiently severe or pervasive to impact the complainant’s participation

in or benefit from the University’s programs and services and create an environment a reasonable

person would find to be intimidating or offensive.

1. Did Respondent’s behavior toward Complainant constitute unwelcome sexual conduct?

Sexual harassment includes “unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal, nonverbal or physical conduct of a sexual nature.” Respondent emphasized that he did not intend any of his conduct to be taken as sexual. However, for purposes of evaluating sexual conduct under University policy, the critical question is not a respondent’s internal intent. Likewise, the central issue is not whether a complainant subjectively viewed the conduct as sexual. Rather, the critical focus of the inquiry is the nature of the conduct itself: Would a reasonable person experiencing the conduct in a comparable context view it as conduct of a sexual nature? Then, if a reasonable person would view the conduct as sexual, we consider whether the conduct was subjectively unwelcome to the complainant.

In the present case, evidence was presented to support both that Respondent’s conduct toward Complainant was and was not sexual in nature:

On the one hand, Respondent described that he has a pattern of reaching out to all students of all genders and sexual orientations when he has concerns about their well-being. He provided Attachment D to corroborate that he provides support to diverse students. For example, Attachment

D pages 1-2 support that Respondent wrote to check in about another student’s wellbeing more

than a month after they first discussed concerns she expressed to him. Multiple witnesses corroborated that they had not noted differences in Respondent’s treatment of women and men. In addition, Respondent did not initiate any interactions with Complainant until she went to his office. Neither of the parties described significant interactions or flirtation in the audition or in orchestra rehearsals.

Complainant also described components of Respondent’s conduct as possibly cultural rather than sexual. For example, she called the kiss on her cheek a “European 22 thing.” Similarly, although she stated that she did not believe she and Respondent were close enough to justify his kiss, she compared it to her grandmother’s greetings, not the greeting of a romantic partner. According to Complainant, based on her description of events, both her boyfriend and Witness D highlighted

that they did not know Respondent’s intentions

her description of events, both her boyfriend and Witness D highlighted that they did not know
her description of events, both her boyfriend and Witness D highlighted that they did not know
her description of events, both her boyfriend and Witness D highlighted that they did not know
Similarly, based on what Complainant described, Witness B thought Respondent’s conduct might have been “cultural

Similarly, based on what Complainant described, Witness B

thought Respondent’s conduct might have been “cultural or situational” rather than sexual in motivation. 23 Witness H had a much more limited physical interaction with Respondent, but despite her overall concerns about Respondent’s conduct, she acknowledged that she perceived it as uncomfortable but not sexual when he touched her shoulder.

On the other hand, much of Respondent’s specific conduct toward Complainant as described above in the findings of fact was not behavior that Respondent described routinely directing toward other students in the context of providing support. For example, Respondent did not describe a pattern of dancing with, touching the hands of, or kissing the cheek of students generally. Furthermore, to the extent that some of the behavior was conduct Respondent directed toward others, he did not describe a similar context in the other cases. For instance, he stated that he held the hands of a student who was upset over not being able to play due to an injury. However, Respondent did not describe Complainant voicing a similar concern. Although Respondent stated that he perceived Complainant as being in a “dark mood,” since she did not reach out to him for help and he did not tell Complainant about his perception, conduct such as touching her hands and shoulder would not likely appear as consolatory to Complainant as it might in the context of a student who affirmatively came to Respondent distraught and crying over not being able to play.

In addition, Complainant was a new member of the orchestra. Witness B and Witness C, who were more senior members of her section and had more extensive experience interacting with Respondent had not had similar interactions with Respondent, which would lead a reasonable person in Complainant’s position to feel that his conduct toward her reflected something other than his typical professor/student relationships. For example, Witness B said that Respondent had not engaged in any physical contact with her during three one-on-one meetings in his office. Witness C met with Respondent often and had not had similar interactions. Taken as a whole, the

physical conduct itself, which included close dancing, repeatedly touching her hands, and kissing

her cheek despite a limited relationship, reasonably appears

sexual in nature.

Respondent’s communication style also reasonably suggests that his conduct was sexual in nature. Particularly given that Complainant (unlike many of the individuals in Attachment D) did not affirmatively come to Respondent seeking emotional support, his statements that he enjoyed dancing with her and “was very much enjoying spending time with” her reasonably suggest sexual conduct rather than a typical professor/new student interaction. Likewise, whereas Respondent’s “bad girl” comment may have been overlooked in another context, given the surrounding statements and touching, it further suggests a communication pattern in line with sexual conduct.

Witness B described Complainant downplaying Respondent’s conduct as “probably nothing” but also saying that it was weird for her and that she did not want to meet with him again or to have

that kind of a relationship with a professor.

weird for her and that she did not want to meet with him again or to
weird for her and that she did not want to meet with him again or to
weird for her and that she did not want to meet with him again or to
weird for her and that she did not want to meet with him again or to
weird for her and that she did not want to meet with him again or to
weird for her and that she did not want to meet with him again or to
weird for her and that she did not want to meet with him again or to
weird for her and that she did not want to meet with him again or to
weird for her and that she did not want to meet with him again or to
weird for her and that she did not want to meet with him again or to

On balance, several of Respondent’s actions toward Complainant involved touching and communication that a reasonable person in Complainant’s position would reasonably perceive as sexual in nature, particularly given the professor/student relationship between the parties.

Because the evidence also supports that the conduct was unwanted, it constitutes unwelcome sexual conduct under University policy. On the one hand, Witness B and Witness C described

Complainant joking with the

evidence supports that the conduct was unwelcome. Complainant described feeling that Respondent “was not supposed to be touching her like that” when he was touching her hands and that they were not close enough for him to have kissed her good-bye. She called and sent a message to her boyfriend, which she credibly said was because she was “freaking out.” It is undisputed that Complainant did not respond to the message Respondent sent her later that night, that she declined a January meeting proposal, and that she did not interact with him alone until a brief request to

borrow a

2. Was Respondent’s conduct sufficiently severe or pervasive to impact her participation in University programs and create an intimidating or offensive environment?

and create an intimidating or offensive environment? section about Respondent’s conduct. Howeve r, the weight

section about Respondent’s conduct. However, the weight of the

about Respondent’s conduct. Howeve r, the weight of the in May. The final step of a

in May.

The final step of a hostile environment inquiry under UC sexual harassment policy considers whether a respondent’s conduct was sufficiently severe or pervasive that it (1) “unreasonably denies, adversely limits, or interferes with a person’s participation in or benefit from the education, employment or other programs and services of the University” and (2) “creates an environment that a reasonable person would find to be intimidating or offensive.” The policy explicitly asks that the University consider the totality of the circumstances under which the conduct occurred in evaluating whether it created a hostile environment.

In the present case, the question is whether Respondent’s sexual conduct toward Complainant as discussed above was sufficiently severe or pervasive that it unreasonably impacted Complainant’s participation in the orchestra program and created an environment that a reasonable person would find to be intimidating or offensive. Although there are again factors weighing strongly on both sides of this question, on balance, the weight of the evidence supports that Respondent’s conduct did create a hostile environment for Complainant.

On the one hand, the interactions that concerned Complainant spanned just three events: a November 15, 2016 meeting, a November 18, 2016 meeting and a January 14-16 text exchange. Complainant stated that she was still able to play well in the orchestra in spite of the events with Respondent. Witness B and Witness C both described Complainant making light of the incidents

with Respondent in talking to the

generally jokey group and Witness C volunteered that joking might have been Complainant’s way of dealing with the situation. Respondent stated that on November 18, 2016 and afterward, he never got the sense that Complainant was uncomfortable.

he never got the sense that Complainant was uncomfortable. section, although both described the section as

section, although both described the

was uncomfortable. section, although both described the section as a On the other hand, Respondent’s conduct

section as a

On the other hand, Respondent’s conduct toward Complainant included touching, took place largely in Respondent’s office when the parties were alone, and occurred in the context of a relationship with a significant power differential—a professor/orchestra director relative to a

differential—a professor/orchestra director relative to a student/new orchestra member. Given those factors, the

student/new orchestra member. Given those factors, the totality of the

circumstances supports that the conduct was sufficiently severe or pervasive to create a hostile environment.

The evidence further supports that the conduct did create a hostile environment: Complainant credibly described feeling “weird” at orchestra after the November 18, 2016 interaction, getting really nervous around Respondent, and avoiding eye contact. Although orchestra class included two meetings per week, Complainant described avoiding situations where she would talk to Respondent. Respondent corroborated that Complainant did not respond to his November 18, 2016 email, that she declined his January 14, 2016 email proposing that they meet again, that she

did not contact him thereafter in response to his January 16 invitation

time she came to his office after November 18 was in May 2017 when she stopped briefly to ask if

she could borrow a Mondavi

alone to Respondent’s office because of these interactions.

Attachment B also corroborates Complainant’s statements that she was freaking out, nervous, and uncomfortable at the time as a result of the meeting with Respondent. Complainant indicated that orchestra had been a big reason that she chose to attend UC Davis and that having orchestra feel awkward created a “push to leave” the University, even though it was not a primary reason for her decision to transfer.

The totality of the circumstances also supports that Respondent’s conduct created an environment that a reasonable person in Complainant’s position would find intimidating and offensive, particularly given the power differential between the parties. Although Respondent described thinking that Complainant had wanted to meet with him and that she was comfortable throughout their interaction, the evidence supports that neither assumption was correct. Nonetheless, he initiated several forms of physical contact; made statements like “I liked dancing with you” and “I was very much enjoying spending time with you” that were outside typical professor/student communications; and proposed meetings that she reasonably found it stressful to decline given their relationship and the phrasing (for example, proposing specific times and dates for meetings rather than simply notifying Complainant that he was available if she would like to talk). Overall, the weight of the evidence supports that Respondent’s conduct created a hostile environment for Complainant.

conduct created a hostile environment for Complainant. and that the only Witness B understood from Complainant

and that the only

a hostile environment for Complainant. and that the only Witness B understood from Complainant that she

Witness B understood from Complainant that she did not go

V.

CONCLUSION

For the above reasons, the preponderance of the evidence supports that Respondent’s conduct toward Complainant violated the University’s Sexual Violence and Sexual Harassment policy.

GARY S. MAY Chancellor OFFICE OF THE CHANCELLOR ONE SHIELDS AVENUE DAVIS, CALIFORNIA 95616-8558 TELEPHONE:

GARY S. MAY Chancellor

OFFICE OF THE CHANCELLOR ONE SHIELDS AVENUE DAVIS, CALIFORNIA 95616-8558 TELEPHONE: (530) 754-7237

September 28, 2017

IN STRICT CONFIDENCE

Christian Baldini

September 28, 2017 IN STRICT CONFIDENCE Christian Baldini RE: Letter of Censure and Notice of Disciplinary
September 28, 2017 IN STRICT CONFIDENCE Christian Baldini RE: Letter of Censure and Notice of Disciplinary

RE: Letter of Censure and Notice of Disciplinary Action

Dear Professor Baldini:

I am issuing this Letter of Censure and Notice of Disciplinary action in accordance with Academic Personnel Manual (APM) 016, the University Policy on Faculty Conduct and the Administration of Discipline, and pursuant to your written acceptance dated September 25,

2017 of the discipline proposed by Faculty Advisor

Letter addresses findings from a Title IX Investigation Report pertaining to allegations that you engaged in conduct in violation of APM 015, The Faculty Code of Conduct.

Specifically, the investigator concluded that you violated the University’s policy on Sexual Violence and Sexual Harassment by engaging in unwanted sexual conduct towards an undergraduate student who was a member of the UC Davis symphony orchestra. The investigator concluded that you engaged in conduct that included touching this student’s hands and shoulder, dancing with her alone (including touching her waist and spinning her, leading to her buttocks being held against your body), and kissing this student’s cheek. The investigator further concluded that you made certain comments to this student, such as calling

her a “bad girl”,

very much enjoying spending time with you”, which, when viewed in the context of your other

conduct were reasonably interpreted as being sexual in nature.

concluded that your conduct was sufficiently severe or pervasive to create a hostile environment, and did in fact create a hostile environment where this student felt acutely uncomfortable and nervous as a result of your conduct, describing herself after an encounter with you as “freaking out”, and finding it awkward and uncomfortable to look at you while keeping time during rehearsals. Your unwelcome conduct towards her, though not the primary reason, was a contributing factor to this student’s decision to leave UC Davis.

UC Policy on Sexual Violence and Sexual Harassment, and the Faculty Code of Conduct

and Sexual Harassment, and the Faculty Code of Conduct , acting as my designee. This ,

, acting as my designee. This

the Faculty Code of Conduct , acting as my designee. This , and writing to her

, and writing to her “I was

The investigator also

The University of California Policy on Sexual Violence and Sexual Harassment, effective January 1, 2016, defines and prohibits sexual harassment. It provides in relevant part:

Sexual Harassment is unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal, nonverbal or physical conduct of a sexual nature

Professor Christian Baldini September 28, 2017 Page 2

when… such conduct is sufficiently severe or pervasive that it unreasonably denies, adversely limits, or interferes with a person’s 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.

The University of California Faculty Code of Conduct is found in APM 015. The Code of Conduct states in its statement of Ethical Principles:

…Professors demonstrate respect for students as individuals and adhere to their proper roles as intellectual guides and counselors…They avoid any exploitation, harassment, or discriminatory treatment of students…APM 015 Part II.A

The Faculty Code of Conduct also states:

The integrity of the faculty-student relationship is the foundation of the University’s educational mission. This relationship vests considerable trust in the faculty member, who, in turn, bears authority and accountability as mentor, educator, and evaluator. The unequal institutional power inherent in this relationship heightens the vulnerability of the student and the potential for coercion. The pedagogical relationship between faculty member and student must be protected from influences or activities that can interfere with learning consistent with the goals and ideals of the University. Whenever a faculty member is responsible for academic supervision of a student, a personal relationship between them of a romantic or sexual nature, even if consensual, is inappropriate. Any such relationship jeopardizes the integrity of the educational process.

The Faculty Code of Conduct also enumerates specific examples of unacceptable conduct, including:

Discrimination, including harassment, against a student…for reasons of…sex…or for other arbitrary or personal reasons. (APM 015 Part II.A.2)

and:

Serious violation of University policies governing the professional conduct of faculty… (APM 015 Part II.C.7) [1]

I concur with the investigator’s findings and I conclude that your violation of the University’s Sexual Violence and Sexual harassment policy is a serious violation, and thus constitutes a violation of the Faculty Code of Conduct, APM 015.

Disciplinary Sanctions

In light of the gravely serious nature of your misconduct, Faculty Advisor

disciplinary sanctions of a Letter of Censure and Suspension without Pay for one quarter. Through your attorney on September 25, 2017, you accepted these proposed sanctions.

Accordingly, you will be suspended without pay for winter quarter, 2018, during which time you will have all of your normal faculty privileges suspended. Accordingly, from January 1 through March 23, 2018, you will not be permitted to be present on University property without prior written permission from the Associate Dean of Humanities, Arts and Culture Studies, Claire Waters. You will not be permitted to spend or draw upon University research or

be permitted to spend or draw upon University research or proposed [ 1 ] This letter

proposed

[1] This letter quotes from the version of the Faculty Code of Conduct that was in effect throughout academic year

2016-17.

Professor Christian Baldini September 28, 2017 Page 3

gift funds, or be reimbursed by the University for travel or other business related expenses. You will not be permitted to publicly represent yourself as a UC Davis faculty member during this time. Because you are an academic year appointee receiving your 9 month salary spread out over 12 months, your pay will be suspended for a period of 4 months, from December 2017 through March 2018.

For the duration of the period of suspension, you may make use of the services of the Academic and Staff Assistance Program (http://www.hr.ucdavis.eduy/asap/). You also may contact the Davis Division of the Academic Senate and or Director Danny Gray of the Office of Academic Affairs (dgray@ucdavis.edu or 530-752-2090) without prior permission. However, if you need to communicate with any other faculty, staff, or students, or to gain access to your office or any other UC Davis facility for any reason, please contact Associate Dean Waters. If you do not adhere to the terms of your suspension, you may be subject to further disciplinary action.

A copy of this letter will be retained in a confidential file maintained in the Office of the Vice

Provost-Academic Affairs. The letter will not be placed in your academic review file

The letter will not be placed in your academic review file In closing, I would like
The letter will not be placed in your academic review file In closing, I would like
The letter will not be placed in your academic review file In closing, I would like
The letter will not be placed in your academic review file In closing, I would like
The letter will not be placed in your academic review file In closing, I would like

In closing, I would like to remind you that I consider your misconduct in this matter to be very serious and am likely to pursue your dismissal from your faculty position should you be found to have engaged in similar misconduct again in the future. At the same time, I believe that you are capable of amending your behavior and of conducting yourself in a way that complies with the Faculty Code of Conduct. I also want to stress that you should not engage in any behavior that could be perceived as retaliatory against anyone that you believe has participated in any way in this investigation. Retaliation includes threats, intimidation, reprisals and/or adverse actions related to employment or education, or any conduct that might discourage anyone from coming forward to report misconduct. I trust that your future career at UC Davis will be successful and without any further incidents.

c:

Sincerely,

successful and without any further incidents. c: Sincerely, Gary S. May Chancellor Dean Elizabeth Spiller Associate

Gary S. May Chancellor

Dean Elizabeth Spiller Associate Dean Claire Waters Chair Henry Spiller Chief Compliance Officer Wendi Delmendo

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AZ QUQTES

Vergos v. McNeal

[Print_link]

Court of Appeal, Third District, California.

Randy VERGOS, Plaintiff and Respondent,

v.

Julie McNEAL, Defendant and Appellant.

No. C051469.

Jan. 23, 2007.

APPEAL from a judgment of the Superior Court of Yolo County, Thomas Edward Warriner, J. Reversed with directions.

COUNSEL

Acero for Defendant and Appellant.
Acero for Defendant and Appellant.
Acero for Defendant and Appellant.

Acero for Defendant and Appellant.

Porter, Scott, Weiberg & Delehant and Brendan J. Begley,

Michael W. Pott and George A.

Law Office of Geraldine Armendariz and

Michel and James A. Michel for Plaintiff and Respondent.

Geraldine Armendariz;

Law Office of James A.

OPINION

SIMS, Acting P.J.

Plaintiff Randy Vergos, who alleges he was sexually harassed in his employment at the University of California at Davis (UCD), filed a civil rights claim against the manager who denied his administrative grievances-defendant Julie McNeal (acting director of UCD’s Facilities Services Department FN1). McNeal appeals from the trial court’s order denying her motion to strike plaintiff’s third cause of action (alleging violation of civil rights) as a “strategic lawsuit against public participation” (SLAPP) under Code of Civil Procedure section 425.16. FN2

McNeal contends her statements and conduct as a hearing officer denying plaintiff’s grievances are protected by the anti-SLAPP statute. We agree and shall reverse the order and remand to the trial court to determine an award of attorney’s fees for McNeal. FN3

FN1. McNeal says she was acting director; others say she was director. For our purposes, it does not matter.

FN2. Undesignated statutory references are to the Code of Civil Procedure.

Section 425.16, subdivision (b), states: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(1), (2).)

FN3. McNeal moved to strike only the third cause of action (civil rights violation). Section 425.16, footnote 2, ante, allows a motion to strike “a cause of action.” We explain, post, that we reject plaintiff’s attempt to avoid the striking of the third cause of action by connecting it to the first cause of action alleging sexual harassment as against “All defendants.”

FACTUAL AND PROCEDURAL BACKGROUND

On September 19, 2002, plaintiff filed a complaint against McNeal, Allen Tollefson, and the Regents of the University of California (the Regents). Tollefson and the Regents are not parties to this appeal. The operative first amended complaint (filed October 17, 2002) alleged (1) sexual harassment, as against all defendants, (2) negligent hiring, supervision and training, as against the Regents, and (3) violation of civil rights, as against all defendants. Plaintiff also sought punitive damages.

The complaint alleged McNeal was “an employee, agent, and manager for the Defendant Regents at [UCD]. McNeal is sued in her individual capacity. McNeal is the Director, Operations and Maintenance for [UCD] and has responsibility for the management of an estimated $50 million annually in construction and maintenance projects at [UCD] and overall supervision of

an estimated 500 employees.

McNeal is Tollefson’s immediate supervisor. A political appointee,

prior to her designation by the Regents as Director, Operations and Maintenance in 1991 McNeal

had no managerial or supervisory experience or familiarity with the management of large

 

budgets, construction projects, or work crews, and no training or experience as a fair and

impartial hearing officer for employee grievances.”

 

The general allegations asserted as follows:

Plaintiff was employed by UCD as an inspector, planner and estimator, and on “several

 

occasions during the year last past” was sexually harassed by his supervisor, Allen Tollefson. On

February 11, 2002, and March 4, 2002, plaintiff filed grievances, and the Regents assigned an

 

investigator, who allegedly verified from other employees that Tollefson referred to plaintiff as

 

MY BOY TOY” AND “MY BITCH.” In July 2002, McNeal, who was Director of Operations and Maintenance for UCD, and who was also Tollefson’s supervisor, acted as the hearing officer

and managing agent for the Regents in the matter of plaintiff’s grievances. McNeal denied the

 

grievances and wrote to plaintiff that it was “more likely” that the allegations of excessive

 

controlling behavior, verbal threats and sexual harassment did not occur. McNeal refused to

 

recognize the substance of plaintiff’s grievances or to take effective action to prevent recurrence

of Tollefson’s conduct or to protect Plaintiff from future unwelcome contact with Tollefson. The

complaint alleged McNeal was being sued in her individual capacity. The complaint alleged

 

plaintiff had filed a complaint with the Department of Fair Employment and Housing (DFEH) on

October 9, 2002, and was awaiting a right to sue letter.

 

The first count alleged sexual harassment as against “All defendants,” but did not make any specific allegation against McNeal. It alleged Tollefson harassed plaintiff, and the Regents had an obligation to prevent sexual harassment after another employee complained about Tollefson in 2001.

The second count alleged negligent hiring, supervision and training as against the Regents.

The third count incorporated by reference the other allegations and alleged violation of civil rights as against all defendants. The third count alleged:

“33. In hearing, processing, and deciding the grievances alleged in paragraphs 20 and 21, Julie McNeal and other employees of the Regents were acting as managers and agents for the Regents under the Personnel Policy and the color of state law.

“34. The denial of plaintiff’s grievances against Tollefson’s conduct as alleged denied plaintiff the benefit and protection of his federal statutory and constitutional right to be free of sexual harassment, discrimination and retaliation. FN4

FN4. In interrogatory responses, plaintiff said (1) the statutory basis for his civil rights claim was “section 1983 U.S.C.” (presumably title 42), and (2) the federal statutory or constitutional provisions to which he referred in paragraph 34 of the complaint were “Title VII Civil Rights Act of 1964 (42 U.S.C. § 2000e-2000e-17; XIV Amendment U.S. Constitution.” Federal civil rights claims brought in California state courts are subject to section 425.16 motions. (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1117-1118.)

“35. The Personnel Policy contains no written provision that grievances filed by employees of [UCD] shall be heard by a fair and impartial hearing officer thereby perpetuating a long standing and persistent pattern, practice, and custom of the Regents to deny employee grievances in which grieving parties have alleged sexual discrimination, harassment, or retaliation by supervisors and managers.

“36. The Regents do not provide training for McNeal as a hearing officer to hear and decide grievances under the Personnel Policy.”

On August 5, 2005, McNeal filed a section 425.16 special motion to strike the third cause of action (the civil rights violation) as a SLAPP, because it accused McNeal of conduct (hearing, processing, and deciding plaintiff’s workplace grievances) that arose from alleged activities “in furtherance of her right of petition or free speech.” The motion further argued plaintiff could not show a likelihood of success so as to avoid a section 425.16 dismissal (in part because he failed to exhaust internal administrative remedies).

McNeal’s attorneys submitted declarations explaining why the anti-SLAPP motion was not filed until almost three years after the complaint was filed.

McNeal submitted a declaration attesting that, in handling plaintiff’s grievances, she followed the procedures set forth in the statewide Regents’ Personnel Policies for Staff Members and the local implementing procedures (collectively, PPSM). Section 70 of the PPSM permitted an employee such as plaintiff to file an Employee Complaint Form with the Human Resources Department and seek a remedy for employee grievances. Step I of the Section 70 process was review by the department head, who could delegate investigation to an appropriate individual. If the complainant was not satisfied with the Step I response, he could appeal it for Step II review. An Employee and Labor Relations (ELR) analyst would determine if the appeal was eligible for

Step II review, in which case a complaint resolution officer would be appointed and would convene a meeting with the complainant and others to obtain information and respond to the complaint. Some types of grievances could be appealed to a third step, in which a Step III Hearing Officer would hold an evidentiary hearing and issue a decision. FN5

FN5. We observe McNeal did not describe the criteria for eligibility of Step II or Step III review (other than to give one example of eligibility for Step III review-a claim of retaliation for having engaged in the Section 70 process), nor did she attest that plaintiff’s grievances were eligible. She simply attested plaintiff did not appeal her decision to the next step in the PPSM Section 70 process. Plaintiff does not contend his grievances were ineligible for Step II or Step III review and does not dispute that he did not exhaust all steps of the Section 70 process. We assume that alleged bias of a Step I decision maker would constitute grounds for Step II and/or Step III review.

McNeal attested that plaintiff filed complaints pursuant to PPSM Section 70 on February 11 and

March 4, 2002, accusing Tollefson of sexual harassment. These grievances were assigned to McNeal as department head. ELR ANALYST DAN GREY was assigned to investigate the

 

complaints and prepare a report for McNeal’s review. Grey reported that plaintiff’s claims were

 

unsubstantiated by the evidence. McNeal had no reason to believe Grey harbored any unlawful

 

prejudice against plaintiff, and McNeal herself did not harbor any unlawful prejudice

against

 

plaintiff. McNeal reviewed Grey’s report, found it to be adequate, and agreed with its

 

conclusions. She accordingly found plaintiff’s complaints to be without merit and so notified

 

him. McNeal attested, “To my knowledge, [plaintiff] did not appeal this decision to the next step

in PPSM Section 70 process.”

 

Plaintiff opposed the anti-SLAPP motion. He submitted various declarations, parts of which were excluded by the trial court’s sustaining of some of McNeal’s evidentiary objections. FN6 The parties do not challenge the evidentiary rulings on appeal. The admitted portions of the declarations include UCD Senior Superintendent Leslie Nopp’s declaration asserting that McNeal took it upon herself to be the person to review plaintiff’s grievance concerning Tollefson. FN7 The plaintiff’s declaration in the joint appendix on appeal is unsigned (a point not noted by the parties). In any event the trial court sustained evidentiary objections to paragraph 5 (in which plaintiff described alleged incidents of harassment by Tollefson) on the

grounds it conflicted with plaintiff’s interrogatory answers.

Plaintiff’s interrogatory answers

 

said Tollefson followed plaintiff around, sometimes came up behind him, stared at

 

plaintiff’s hair and body, made comments about the penises of other men, said one man

 

had pretty lips, tugged at his own (Tollefson’s) crotch, and got angry when plaintiff refused

to move into Tollefson’s office. Plaintiff’s interrogatory answers also said UCD policy does

not require a hearing officer to be fair or impartial.

 

FN6. In ruling on an anti-SLAPP motion, the trial court considers only evidence that would be admissible at trial. (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th

1179, 1188; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 830.)

FN7. The trial court expressly sustained an evidentiary objection to Nopp’s statement that “all other grievances were handled by mid-level supervisors,” because it was not supported by facts from which the court could conclude there was a high probability that Nopp could establish a proper foundation for this statement at trial. The court did not expressly exclude the redundant remainder of the sentence-that “grievances never went to the Director level,” but we believe exclusion was necessarily implied by exclusion of the first part of the sentence.

The trial court also sustained objections to unspecified portions of specified paragraphs of Nopp’s declaration “[t]o the extent that the statements … are based on hearsay.”

On November 22, 2005, the trial court issued an order denying McNeal’s anti-SLAPP motion. The court first determined there was good cause for McNeal’s delay in filing the motion. As to the court’s denial of McNeal’s motion to strike the third cause of action (civil rights claim), the trial court said, “Defendant [McNeal] has not shown that … section 425.16 applies to Plaintiff’s third cause of action. The gravamen of Plaintiff’s third cause of action is Defendant’s hearing, processing and deciding of Plaintiff’s grievances. [Citation to complaint.] Plaintiff’s third cause of action is not based on the content of what Defendant stated in any proceeding or the exercise of the right to petition. [Citation.]” The trial court also ruled on evidentiary objections.

McNeal appeals.

DISCUSSION

I. Appealability and Standard of Review

An order denying a section 425.16 motion is an appealable order. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).)

*4 On appeal, we first independently determine whether the defendant has made a threshold showing that the cause of action triggers the statute. If the cause of action triggers the statute, we then independently consider whether the plaintiff has demonstrated a probability of prevailing on the claim. (Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1505.)

II. Cause of Action Triggers Section 425.16

McNeal argues her statements and communicative conduct in handling plaintiff’s grievances (which are the gravamen of plaintiff’s civil rights claim against her) are protected by section 425.16, because they (1) were connected with an issue under review by an official proceeding authorized by law, and (2) furthered the right to petition of plaintiff and similarly situated employees. We agree.

We begin with the legislative mandate to construe section 425.16 broadly. Thus, section 425.16, subdivision (a), states: “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.”

Section 425.16, subdivision (e), provides: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Italics added.)

The case before us involves clause (e)(2) of section 425.16 (statement or writing made in connection with an issue under review in an official proceeding authorized by law).

Clauses (e)(1) and (e)(2) of section 425.16 do not require the defendant to show a public issue or issue of public interest. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116-1117, 1123.) These first two clauses “ ‘safeguard free speech and petition conduct aimed at advancing self government, as well as conduct aimed at more mundane pursuits. Under the plain terms of the statute it is the context or setting itself that makes the issue a public issue:

all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.’ “ (Briggs, supra, 19 Cal.4th at p. 1116; but see Flatley v. Mauro (2006) 39 Cal.4th 299 [section 425.16 does not apply to speech or activity that is illegal as a matter of law].)

As we have mentioned, this case involves clause (e)(2) of section 425.16 (statement or writing made in connection with an issue under review in an official proceeding authorized by law).

Thus, McNeal reviewed plaintiff’s grievances pursuant to the PPSM, which was established by the Regents, which is a constitutional entity having quasi-judicial powers. (Cal. Const., art. IX, § 9; Campbell v. Regents of the University of California (2005) 35 Cal.4th 311, 319-321.) The Regents “have rulemaking and policymaking power in regard to the University; their policies and procedures have the force and effect of statute.” (Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 165.) Statutory hearing procedures qualify as official proceedings authorized by law for section 425.16 purposes. (E.g., Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 [hospital peer review procedure qualified as official proceeding under section 425.16 because procedure was required by Business and Professions Code statutes]. FN8)

FN8. In Olaes v. Nationwide Mutual Insurance Company, supra, 135 Cal.App.4th 1501, we recently held a private company’s sexual harassment grievance protocol did not constitute an official proceeding authorized by law. Olaes is obviously distinguishable since, as we have explained, the Regents’ protocol is equivalent to a state statute.

Plaintiff argues his third cause of action against McNeal does not “arise from” McNeal’s conduct or writings. He says he did not target McNeal as a quasi-judicial officer for her written decision on his grievance, but rather as a defendant for her participation in aiding and abetting Tollefson’s harassment of plaintiff. However, plaintiff’s argument ignores his own pleading, the third count of which complained of McNeal’s “hearing, processing, and deciding [his] grievances.” That the third count of the complaint incorporated by reference the preceding allegations of the complaint (including the first count’s allegations against all defendants for sexual harassment) does not help plaintiff. (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414 [plaintiff may not immunize a cause of action challenging petitioning activity from a section 425.16 motion by the artifice of including extraneous allegations concerning nonprotected activity].) Plaintiff fails to point to any allegation of any aiding and abetting conduct by McNeal, other than her hearing, processing, and deciding his grievances. His respondent’s brief on appeal says he named McNeal “as an individual defendant in his First and Third Causes of Action for direct supervisor liability under FEHA [Gov.Code, § 12940 et seq.] as an aider and abettor pursuant to the holding in Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318.” However, Fiol said that supervisory employees should not be placed at risk of personal liability for personnel management decisions which have

been delegated to the supervisor by the employer, such as deciding whether to take action on a complaint of sexual harassment. (Fiol, supra, 50 Cal.App.4th 1318 at pp. 1327-1328.) Moreover, in interrogatory responses, plaintiff did not cite the FEHA when asked to identify the statutory bases for his civil rights cause of action. He cited only federal civil rights statutes and the Fourteenth Amendment. Plaintiff points to the declaration he submitted from Leslie Nopp, that McNeal was not known to have reviewed any other grievance but took it upon herself to review plaintiff’s grievances. Plaintiff claims McNeal thereby furthered Tollefson’s conduct which created a hostile work environment for plaintiff. However, Nopp declared: “I am informed and believe that Julie McNeal never reviewed any other grievance besides [plaintiff’s] grievances concerning Tollefson.” This statement on information and belief does not constitute admissible evidence (Evans v. Unkow, supra, 38 Cal.App.4th at p. 1497) and would fall within the hearsay statements excluded by the trial court. We therefore disregard plaintiff’s implication that McNeal’s hearing, processing, and deciding of his grievances constituted aiding and abetting Tollefson’s alleged sexual harassment of plaintiff.

In denying the section 425.16 motion, the trial court in this case said plaintiff’s third cause of action was based on McNeal’s conduct, not the content of what she stated in any proceeding or in the exercise of the right to petition. We disagree. The gravamen of plaintiff’s third cause of action is McNeal’s communicative conduct in denying plaintiff’s grievances. The hearing, processing, and deciding of the grievances (as alleged in the complaint) are meaningless without a communication of the adverse results. We need not address McNeal’s argument that section 425.16 also applies to noncommunicative conduct.

The trial court cited San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App .4th 343 (San Ramon ). However, that case is not controlling. In San Ramon, a fire district sought mandamus relief after a county retirement board decided to increase contributions payable by the fire district and/or its employees. (Id. at p. 347.) The First Appellate District upheld the trial court’s denial of an anti-SLAPP motion. The introduction to the opinion states: “This case requires us to decide whether litigation seeking judicial review of an action or decision by a public entity is subject to a special motion to strike under the anti-SLAPP statute … merely because the challenged action or decision was taken by vote after discussion at a public meeting. Our answer is no. Even if the conduct of individual public officials in discussing and voting on a public entity’s action or decision could constitute an exercise of rights protected under the anti-SLAPP statute-an issue we need not and do not reach-this does not mean that litigation challenging a public entity’s action or decision always arises from protected activity. In the present case, the litigation does not arise from the speech or votes of public officials, but rather from an action taken by the public entity administered by those officials. Moreover, that action was not itself an exercise of the public entity’s right of free speech or petition. We therefore affirm the trial court’s order denying the entity’s special motion to strike.” (Id. at pp. 346-347, italics added.) San Ramon went on to say, “although we need not and do not reach the issue here because no individual Board member was sued by the District, we note that there is support for the argument that the protection accorded by the anti-SLAPP

statute extends to statements made by public officials at an official public meeting, and perhaps also to their votes. [Citations.]” (Id. at p. 353.) San Ramon noted that nothing about the board’s action (increasing pension contributions) implicated the rights of free speech or petition. (Ibid.)

Thus, even assuming San Ramon is correctly decided, the case did not decide the issue presented in this appeal. Plaintiff argues San Ramon is nevertheless controlling, because it recognized that government bodies may invoke section 425.16 where appropriate, just like any private litigant, and its holding was based on the conclusion that the board’s act did not implicate free speech or the right to petition. However, San Ramon expressly stated it was not deciding the issue of suits against individuals. Cases are not authority for propositions not considered. (People v. Barragan (2004) 32 Cal.4th 236, 243.) Moreover, in observing in dictum that support exists for applying section 425.16 to statements made by public officials at official public meetings, San Ramon cited Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 183, footnote 3, which noted in dictum that insofar as the lawsuit targeted city council members, the basis for their liability was premised on their vote in favor of adopting a voter participation program, and voting is conduct qualifying for First Amendment protections. Plaintiff argues Schroeder is distinguishable because he is not suing McNeal due to any speech or petition, but for aiding and abetting a harassing supervisor. We have already rejected plaintiff’s aiding and abetting theory.

Here, unlike San Ramon, we do deal with a lawsuit against an individual public employee. Moreover, we are mindful of our mandate to construe section 425.16 broadly. We agree with McNeal that a narrow reading of the statute in plaintiff’s favor could result in public employees’ reluctance to assume the role of hearing officer in such cases, and thus thwart the petitioning activities of employees with grievances. In concluding that hospital peer review proceedings are official proceedings within the meaning of section 425.16, the Supreme Court in Kibler, supra, 39 Cal.4th at page 201, observed that to hold otherwise would discourage physicians from participating in peer review committees. Kibler is not necessarily on point, because it noted physician participation is voluntary and unpaid, whereas in our case the handling of Step I Section 70 claims appears to be part of the job description of managerial employees (though McNeal argues a decision in her favor in this case would encourage public employees to volunteer to help mediate workplace disputes). In any event, the purpose of section 425.16 is best served by applying it to all individual participants in the official proceeding, including the decision maker.

We conclude the third cause of action triggered section 425.16, subdivision (e)(2), i.e., “any written or oral statement or writing made in connection with an issue under consideration or review by … any other official proceeding authorized by law.”

We also agree with McNeal that she acted in furtherance of the right to petition within the meaning of section 425.16, even though it was not her own right to petition at stake. Section 425.16 “does not require that a defendant moving to strike under section 425.16 demonstrate that its protected statements or writings were made on its own behalf (rather than, for example, on behalf of its clients or the general public).” (Briggs, supra, 19 Cal.4th at p. 1116 [statute applied to nonprofit provider of tenant counseling services]; see also, Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 718, 728 FN9 [§ 425.16 protected independent environmental consultant, hired by the county, who prepared environmental impact report for required public hearings concerning potential development of projects]; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418-1420 [§ 425.16 protected attorney who furthered the petition rights of a client].) As noted in McNeal’s reply brief, the statute has also been applied to witness statements in response to subpoenas. (Greka Integrated, Inc. v. Lowrey (2005) 133 Cal.App.4th 1572, 1580.)

FN9. Mission Oaks was disapproved on other grounds in Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th 1106 at page 1123, footnote 10.

Plaintiff argues application of section 425.16 should be limited only to persons, such as lawyers, who support another person’s petition rights, and should not extend to hearing officers because such a blanket application would necessarily require extension of the statute to protect tortfeasors on the basis that the tortfeasor provides a ground for a tort victim to petition for redress. We disagree. Hearing officers in an official proceeding deserve the protection of the anti-SLAPP statute.

Plaintiff argues McNeal was not acting in furtherance of the right to petition because her conduct, by her own description, appears to have been nothing more than a ministerial act in reviewing and accepting the investigator’s report. We disagree. By McNeal’s description, she exercised discretion in determining plaintiff’s grievances.

Plaintiff cites City of Cotati v. Cashman (2002) 29 Cal.4th 69, pages 76 through 77, which said the mere fact an action is filed after protected activity took place does not mean it arose from that activity within the meaning of section 425.16, subdivision (b) (fn.2, ante ). Cotati held an anti- SLAPP motion should not have been granted in a state court declaratory relief action filed in response to a federal declaratory relief action between the same parties, raising the same issues (owners of mobile home parks challenging the city’s enactment of an ordinance creating a mobile home park rent stabilization program). Cotati reasoned that the state court action arose from the underlying controversy that had prompted the federal litigation, rather than from the filing of the federal litigation itself, and thus did not fall within the scope of section 425.16. (Id. at pp. 74, 80.)

Here, plaintiff’s third cause of action arose from McNeal’s denial of plaintiff’s grievances under the PPSM. Thus, Cotati does not help plaintiff.

We conclude section 425.16 applies to the third cause of action. We now turn to the question whether plaintiff showed a probability of prevailing on the claim. (Olaes v. Nationwide Mutual Ins. Company, supra, 135 Cal.App.4th at p. 1505.)

III. Probability of Plaintiff Prevailing

McNeal argues plaintiff failed to show a probability of prevailing on the civil rights claim so as to avoid the striking of the claim under section 425.16. We agree.

When a defendant makes a threshold showing that a cause of action arises from speech or conduct protected under section 425.16, the burden shifts to the plaintiff to show a probability of prevailing on the merits at trial. (§ 425.16, subd. (b); Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) The plaintiff must show the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment at trial. (Navellier, supra, 29 Cal.4th at p. 93.) Similar to evidentiary showings in summary judgment motions, the evidence presented must be admissible. (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, supra, 99 Cal.App.4th at p. 1188; Evans v. Unkow, supra, 38 Cal.App.4th at p. 1497; Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 830.) Our review is de novo. (Olaes v. Nationwide Mutual Ins. Company, supra, 135 Cal.App.4th at p. 1505.)

McNeal says a split of authority exists as to who bears the burden regarding affirmative defenses in the section 425.16 query concerning probability of prevailing on the merits. Our resolution of this appeal does not require us to engage in this debate.

*9 Here, even assuming for the sake of argument that Tollefson’s alleged misconduct rose to an actionable level, plaintiff failed to show a probability of prevailing in his civil rights claim against McNeal.

Thus, plaintiff’s complaint did not specify the basis for the civil rights claim but merely alleged McNeal’s denial of his grievances “denied [him] the benefit and protection of his federal statutory and constitutional right to be free of sexual harassment, discrimination and retaliation.” Plaintiff’s interrogatory responses said (somewhat ambiguously) that the civil rights claim in his complaint “relied on” title 42 U.S.C. section 1983 (42 U.S.C. section 1983) but “referred to” Title VII of the Civil Rights Act of 1964 (42 U.S.C. section 2000e et seq.).

In the trial court and on appeal, plaintiff has characterized his civil rights claim as a Fair Employment and Housing Act (FEHA) claim and has ignored 42 U.S.C. section 1983 and Title VII. However, we have seen that plaintiff’s third count did not present a FEHA claim. FN10

FN10. McNeal says that, even if plaintiff had alleged a FEHA claim, it would fail due to plaintiff’s failure to exhaust the internal grievance process he chose (Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th 1135, 1142-1143), and McNeal would be immunized for discretionary decisions under Government Code section 820.2. Plaintiff makes no response. We need not decide the matter.

As to Title VII, McNeal says Title VII (which prohibits employment discrimination including sexual harassment) imposes liability only on employers, not on employees. (Miller v. Maxwell’s Int’l. (9th Cir.1993) 991 F.2d 583, 588.) Plaintiff does not respond. Though not mentioned by either side on appeal, we observe the point is not without dispute among the federal Courts of Appeals. (See e.g., Ball v. Renner (10th Cir.1995) 54 F.3d 664.) Since plaintiff does not argue to the contrary, we will not belabor the point and will follow Miller. Because McNeal was an employee, she was not liable to plaintiff under Title VII.

As to the claim under 42 U.S.C. section 1983, FN11 that statute “ ‘ “is not itself a source of substantive rights,” but merely provides “a method for vindicating federal rights elsewhere conferred.” ‘ [Citations.] … [I]t allows an action against state or local officials for intentional gender discrimination, including sexual harassment, as a violation of the right to ‘the equal protection of the laws’ protected under the Fourteenth Amendment to the federal Constitution. [Citations.]” (County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 297.) The two essential elements of a 42 U.S.C. section 1983 claim are “ ‘(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.’ [Citation.]” (Irwin v. City of Hemet (1994) 22 Cal.App.4th 507, 516; see also, Robbins v. Regents of University of California (2005) 127 Cal.App.4th 653, 661 [affirmed summary judgment due to lack of evidence of a constitutional violation].)

FN11. Title 42 U.S.C. section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” (42 U.S.C. § 1983.)

McNeal argues she showed her actions were legitimate, and plaintiff failed to show otherwise. She also argues she is entitled to absolute and qualified immunity, and plaintiff failed to exhaust his administrative remedies. We agree with McNeal that plaintiff failed to adduce admissible evidence that McNeal violated plaintiff’s civil rights; we need not address the other grounds urged by McNeal. FN12

FN12. Though not acknowledged by the parties, there is authority that exhaustion of administrative remedies is not required as a prerequisite to bringing a civil rights action under 42 U.S.C. section 1983, including actions in California courts. (Patsy v. Board of Regents (1982) 457 U.S. 496 [73 L.Ed.2d 172, 187]; White v. State of California (1987) 195 Cal.App.3d 452, 466.) We have no need to discuss application of that authority in a case such as this one, where the very essence of the complaint is a claimed defect in the first step of an internal remedy process, yet the plaintiff failed to avail himself of the second step in the process.

Plaintiff has presented no argument whatsoever-in the trial court or on appeal-with respect to the probability of success on the merits of a civil rights claim under 42 U.S.C. section 1983. He claims he is suing McNeal not for her official acts as a public employee, but for her private acts aiding and abetting a harasser outside the scope of her employment. He declines to address the federal authorities cited by McNeal, stating (in his discussion of immunity) that “the federal authorities cited by McNEAL pertain to constitutional deprivations and do not reach [plaintiff’s] claims under FEHA.”

We agree with McNeal that plaintiff has no evidence that McNeal violated his civil rights under 42 U.S.C. section 1983.

Thus, plaintiff’s complaint alleged McNeal’s denial of his grievances denied him his right to be free of sexual harassment. His complaint implied McNeal was biased.

McNeal submitted her own declaration attesting she is now retired, she did not harbor any unlawful prejudice against plaintiff, and she denied his grievances based on her review of the investigator’s report, her belief it was adequate, her agreement with its conclusions, and absence of any reason for her to believe the investigator harbored an unlawful prejudice against plaintiff.

Plaintiff failed to submit any admissible evidence that McNeal did anything wrong. He submitted a declaration of Leslie Nopp containing conclusory statements attempting to disparage McNeal, but the trial court sustained evidentiary objections to those statements, and plaintiff does not challenge the evidentiary rulings on appeal. What remains of Nopp’s declaration after the evidentiary rulings is the following:

As a Senior Superintendent, Nopp was part of the management team of the Facilities Services Department. She regularly attended meetings at which McNeal and Tollefson and others were present. McNeal first came to the Facilities Services Department as Acting Assistant Director and later became Director. She made Tollefson a senior superintendent; he helped McNeal do her job. In 2001, plaintiff told Nopp that Tollefson made him uncomfortable. As a senior superintendent, Nopp was familiar with the PPSM grievance procedures. In 2002, normally a mid-level manager would review the grievance. When plaintiff filed his grievance in 2002, Nopp noticed that McNeal took it upon herself to be the person who would review plaintiff’s grievance concerning Tollefson. There were five senior superintendents besides Tollefson who could have reviewed the grievance. Nopp was aware of other grievances during this time period, but McNeal did not review those other grievances.

Nothing in this declaration supports maintenance of a civil rights action against McNeal.

On appeal, plaintiff says in his statement of facts that “[a]lthough McNEAL was not known to have reviewed any other grievance before, McNeal took it upon herself to be the person who would review [plaintiff’s] grievance and thereby furthered TOLLEFSON’s conduct….” In the discussion portion of his brief, plaintiff says he established McNeal’s bad faith because she “had never reviewed a grievance prior to reviewing [plaintiff’s] grievance but made a special point of being in charge of [plaintiff’s] grievances.” However, plaintiff ignores the circumstance that the trial court sustained evidentiary objections to Nopp’s statements that McNeal never reviewed any other grievance and to Nopp’s conclusions suggesting bad faith by McNeal. That Nopp was aware of grievances unreviewed by McNeal does not support a civil rights action against McNeal.

We see no probability of plaintiff prevailing on the merits, because McNeal showed her actions were legitimate, and plaintiff failed to show by admissible evidence that she did anything wrong. We need not address McNeal’s additional arguments regarding immunity FN13 or failure to exhaust internal remedies.

FN13. Thus, we do not have occasion to decide whether McNeal may enjoy immunity under the Eleventh Amendment to the federal Constitution. (See Brunius v. Parrish (2005) 132 Cal.App.4th 838.)

We conclude McNeal was entitled to have the third cause of action stricken under section

425.16.

IV. Attorney’s Fees

As noted by McNeal, a defendant who prevails on a section 425.16 motion is entitled to an award of attorney’s fees (§ 425.16, subd. (c)), including attorney’s fees for the appeal (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448-449).

We conclude McNeal’s section 425.16 motion to strike the third cause of action should be granted, and she should be awarded her attorney’s fees, including attorney’s fees for this appeal. We accordingly reverse the trial court’s order denying the motion and remand to the trial court for determination of the amount of attorney’s fees.

DISPOSITION

The November 22, 2005, order denying the Code of Civil Procedure section 425.16 motion is reversed. The trial court is directed to enter a new order granting the section 425.16 motion as to plaintiff’s third cause of action and awarding attorney’s fees to McNeal (including attorney’s fees for this appeal) in an amount to be determined by the trial court upon remand. McNeal shall recover her costs on appeal. (Cal. Rules of Court, rule 8.276(a)(3).)

We concur: HULL and CANTIL-SAKAUYE, JJ.

Filed 7/29/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

UN HUI NAM,

Plaintiff and Respondent,

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Defendant and Appellant.

C074796

(Super. Ct. No.

34201300138396CUWTGDS)

APPEAL from a judgment (order) of the Superior Court of Sacramento County, Raymond M. Cadei, Judge. Affirmed.

Gordon & Rees, George A. Acero; Sedgwick, Robert D. Eassa and Delia A. Isvoranu for Defendant and Appellant.

Bohm Law Group, Lawrance A. Bohm and Maria E. Minney for Plaintiff and Respondent.

The California anti-SLAPP statute was intended to counter the disturbing

increase in lawsuits brought primarily to chill the valid exercise of the constitutional

rights of freedom of speech and petition for the redress of grievances.(Code Civ. Proc.,

§ 425.16, subd. (a).) It has been suggested that [t]he cure has become the disease

1

SLAPP motions are now just the latest form of abusive litigation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 96 (dis. opn. of Brown, J.) (Navellier).) And the disease would become fatal for most harassment, discrimination, and retaliation actions against public employers if we were to accept the Regents of the University of California’s (University) misguided reading of the anti-SLAPP law and reverse the trial court’s denial of its motion to strike. We agree with plaintiff Un Hui Nam that defendant did not sustain its burden to demonstrate that the gravamen of her claims for sexual harassment and retaliation arose from defendant’s protected First Amendment activity. The trial court’s order therefore is affirmed.

FACTS The facts as alleged in the complaint and in plaintiff’s declaration in opposition to

the motion to strike are not at all clear. By all accounts, plaintiff, a new resident in the anesthesiology department at UC Davis Medical Center, got off to a rocky start in July of

2009. Ultimately, a judge or jury will have to determine if her missteps were trivial and

if defendant, a teaching institution, responded appropriately. Suffice it to say, there appear to have been some tension and misunderstandings right from the beginning of her residency. What occurred thereafter and why is the subject of the underlying lawsuit. In hindsight, plaintiff traces what she labels “retaliation” to an e-mail she drafted on September 1, 2009. One week earlier she had received an excellent evaluation of her performance. One evaluator included such favorable remarks as: “Impressed with the way Dr. Nam worked at level of training; She was well organized showed good skills. Interacted effectively with others”; “She was instructive to medical student; and

“Anesthetic record neat thorough and complete.” Her strengths included “attentive to patient needs” and “receptive to feedback.” In her e-mail of September 1 she asked for clarification whether residents were allowed to intubate patients. She expressed her disagreement with any policy that would compel the residents in an emergency to wait for the on-call team rather than

2

independently intubating a patient. She wrote passionately: “I certainly do appreciate the concept of resident supervision and attending liability, but I remain completely flabbergasted that this rumoured restriction of anesthesia residents rotating through the service not being able to intubate in the MICU may be erroneously passed on by previous and upper level anesthesia colleagues without it being an actual policy or least [sic], without explanation. It would seem irrational that we, with our specialized training in establishing and maintaining the airway, would be prohibited from using our critical skills in high acuity, life-threatening situations but instead have to contact and then wait for our esteemed anesthesia colleagues on call while we helplessly watch our patients decompensate. In the meantime, we can only busy ourselves doing other things which in my mind are in direct contradiction of the universal policy of the ABCs--Airway, Breathing, and everything else. If our current understanding of the policy is true, without understanding why it is implemented, it would seem to directly contribute to the morbidity and mortality of our patients. Time is, brain, heart, liver, kidneys and I’m fairly confident that our patients and their loved ones would appreciate that the life- saving skills of their resident physicians, even if they were attained in a previous life, i.e. residency training, were optimized rather than thwarted just because of what rotation we’re on.” Plaintiff copied all of the residents. Some of these residents thereafter informed her that she should expect retaliation for sending it. Defendant, however, insists the e-mail excited no such reaction. Rather, plaintiffs problems were of her own making and not her supervisorsefforts to retaliate. Before the e-mail was sent, an operating room service director had complained that plaintiff was resistant to performing an assignment, wore improper attire, ate and flossed on the job, and frequently disappeared from the intensive care unit. Thus, defendant’s version consists of a series of complaints, warnings, investigations, and leaves of absence necessitated by plaintiff’s shortcomings over a three-year period and culminating in her

3

ultimate dismissal. Because our resolution of this appeal rests on the first prong of the requisite anti-SLAPP analysis, we need not recite the minutiae of all that occurred during those three years. We will, however, provide a few pertinent highlights. On September 22, 2009, Dr. Brian Pitts, the residency program director, sent plaintiff a “Letter of Expectation.” In this letter, he detailed “a pattern of unprofessional behavior that requires immediate corrective action.” Plaintiff’s mentor responded critically to the letter. On October 2 he acknowledged that plaintiff had made a few minor mistakes due to her inexperience, but he expressed his concern that the manner in which they were being handled could seriously damage the residency program. He wrote, “We must ensure absolutely that Dr. Nam is not being singled out nor that she has been or will be the victim of bullying, harassment or retaliation. It is imperative that a professional environment is maintained at all times to avoid compromise in patient safety. Dr. Nam must be able to work and learn in an atmosphere that is free of fear and unprofessional behavior of all involved.” By December of 2009 Dr. Pitts had been replaced by Dr. Amrik Singh. Although hopeful that the change of director would allow her the opportunity for a new start, those hopes were dashed at a holiday party in December. In her declaration in opposition to the motion to strike, she asserts that Dr. Singh stopped her on the way to the restroom, told her how beautiful she was while staring at her chest, and signaled that she should follow him into the men’s restroom. She was intimidated but ignored his advances. She believes the rebuff triggered further retaliation. Five months later, Dr. Singh wrote plaintiff a “Letter of Warning.” As in the Letter of Expectation, Dr. Singh chronicled examples of plaintiff’s unprofessional conduct, including tardiness, an inability to get along with her coresidents, and irresponsibility in handling controlled substances. In June 2010 the residency competency committee would not give plaintiff a passing grade for her past six months of clinical training because, in addition to the Letter

4

of Expectation and Letter of Warning, she did not score within the requisite 40th percentile on a standardized test. Because other residents who failed the test suffered no adverse consequences and were allowed to pass their clinical training, she believes she was “singled out” and “retaliated” against. The record is replete with both complaints and testimonials about plaintiff’s performance. Apparently she had a particularly good rapport with nurses. Defendant built a paper trail of warnings for unprofessional conduct and an inability to get along with other doctors. But many of defendant’s allegations were not substantiated during the internal investigations that ensued, and the anesthesiology department was criticized repeatedly for what it did, and did not do, to teach plaintiff the clinical and interpersonal skills needed to succeed in the program. For example, following a 14-day leave ordered by Dr. Singh in June of 2010, the investigation committee concluded there was no evidence there were any defects in plaintiff’s clinical performance. To the contrary, she was a strong resident who did a good job. The committee did recognize, however, what it characterized as “interpersonal conflicts” involving personalities and teaching styles. Plaintiff had her fans and her detractors. The committee’s report was dated July 22, 2010. A year later, following an incident with Dr. Hong Liu, an attending physician, defendant again placed plaintiff on an investigatory leave for what turned out to be two and a half months. And again plaintiff was exonerated as to the primary accusation, that she had physically threatened others in the program. Plaintiff returned to work, but the complaints followed. She alleges that defendant solicited the complaints. On December 8, 2011, the residency competency committee decided to dismiss her. Dr. Singh concurred with the decision. Plaintiff received a letter on December 28, 2011, notifying her of defendant’s intent to dismiss her. Plaintiff appealed her dismissal. The Step IIresponse to her appeal upheld the decision because of plaintiff’s tardiness and mishandling of controlled substances.

5

The investigator, however, was equally critical of the anesthesiology department. She castigated the department for singling out plaintiff for unique treatment from the beginning of her residency in July of 2009. And she detailed examples where defendant showed a lack of interest in training plaintiff. “For example, early in her residency, where one attending wrote a letter stating that this trainee ‘chipped’ a tooth of what would seem an easy intubation on a patient. They had ‘heard’ she had had two such events before. This letter stated that this Attending would not allow this student to intubate any other of this Attending’s patients. This appears to be an extreme response in a teaching institution. From my personal perspective, I would have been equally concerned about a faculty response such as this as I would have been about the ability of my resident. More appropriate responses could have been[:] to make sure this resident got appropriate instruction if needed, to document if this resident had more dental issues than the rest of the trainees, and/or to assign this trainee to research dental issues in the general field and at UC Davis in particular. Instead this stands in her file as one Attending’s condemnation of an anesthesia resident’s skill. Another example is the evaluations of Dr. Lui in her first year of training. He gave her failing marks in the Cardiothoracic Anesthesia rotation two months in a row. There was no comment written and none was sought from this faculty. When I asked about this, the Anesthesia residency director, seemed to be unaware that most other residency programs expect an extensive explanation from faculty for failing a resident. “Another example of concerning use of disciplinary action instead of other teaching modalities was the use of investigatory leave in June 2010 to evaluate conduct regarding resident only arguments. If there was no danger to patients as a result of this argument, then it seems unusual to use investigatory leave to evaluate disputes where no threats or violence took place. Another concerning aspect of this leave was that none of the other participants in these events were put on leave. If one were going to use this investigative tool to determine the facts of the situation and then putting only one party

6

on leave that action suggests an assignment of [guilt] even before the investigation has begun. At the conclusion of the leave the ‘guilt’ was not assigned to her as a result of the investigation. However, the use of the words ‘unprofessional conduct’ was continued with reference to this episode in her subsequent disciplinary letters. She received a disciplinary action in May, June and July of 2010. The July letter using a Letter of Instruction is also something not commonly used but seems to assign ‘blame’ for events that were cleared up by the previous investigation. Each of the above three letters was about something different but in some way was referring to the previous issues. During this period there was no time for the trainee to actually address these issues and make any progress. “By the time September 2011 arrived and she returned from an extended investigatory leave that was done to evaluate multiple complaints given by her fellow residents with regard to the use of either verbally [or] physically threatening behavior. These allegations were sincerely felt by many residents but were not substantiated during the almost 3 month investigation period. When she returned to the work in September 2011, despite this fact that none of the complaints were substantiated the environment she returned to was very difficult. I have never seen the volume of minutia [sic] documented in the multiple letters that were attached to the Letter of Intent to Dismiss.Plaintiff requested, without success, a formal hearing to contest the termination. In January 2013 she filed her complaint for retaliation, discrimination, sexual harassment, wrongful termination, violations of the Business and Professions Code, and breach of contract. Defendant filed a motion to strike pursuant to section 425.16 of the Code of Civil Procedure, alleging that plaintiff’s complaint constituted a SLAPP (strategic lawsuit against public participation) and arose from written complaints made in connection with an official proceeding. Defendant argued that the investigations and corrective action were protected conduct.

7

The trial court disagreed and denied the motion. In its tentative ruling, the court explained: “ ‘An anti-SLAPP motion is brought against a cause of actionor claimalleged to arise from protected activity. (See § 425.16, subds. (b)(1), (3) & (c)(2).) The question is what is pled—not what is proven.’ (Comstock v. Aber (2012) 212 Cal.App.4th 931, 942.) Plaintiff alleges that she was sexually harassed by Dr. Singh. She alleges that Dr. Singh thereafter retaliated against her by refusing to rollover vacation, issuing an unwarranted disciplinary letter, altering her personnel file, threatening to terminate her and placing her on investigatory leave. Plaintiff further alleges that she was retaliated against because she complained about the clinical behavior of another doctor and serious patient care and safety issues. As currently alleged, the adverse actions were not taken as a result of complaints regarding Plaintiff’s performance or the investigations, but rather due to Plaintiff’s rebuffing Dr. Signh’s [sic] advances or her complaints regarding patient care. Accordingly, the Court finds that Defendant has fail [sic] to satisfy its initial burden of demonstrating that Plaintiff’s action ‘arises from’ a protected activity.” In response to oral argument, the court was more direct. “I don’t think you can parse through these words. When an employee complains about improper sexual advances, discrimination and harassment on the job due to a superior’s conduct, that is not protected speech which is protected by a SLAPP motion. You can’t hide that kind of conduct behind the concept that this is protected speech because ultimately in every employment situation the only way someone does anything is if they speak.” The court reached the poignant conclusion, “Now, what was said during these hearings isn’t the basis of her claim.” Defendant University appeals the denial of its motion to strike. DISCUSSION The victim of abusive litigation designed to chill the exercise of rights under the First Amendment to the United States Constitution can bring a special motion to strike

8

the so-called SLAPP pursuant to section 425.16 of the Code of Civil Procedure. (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 821.) The anti-SLAPP statute provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) By including an attorney fee provision (Code Civ. Proc., § 425.16, subd. (c)(1)) and admonishing the courts to construe the statute broadly (Code Civ. Proc., § 425.16, subd. (a)), the Legislature provides a strong incentive for a defendant to seek a very early dismissal under the anti-SLAPP measure rather than lodging a traditional motion for summary judgment. Over time, however, the Legislature recognized that the anti-SLAPP statute had as much potential for abuse as the litigation it was designed to thwart. “The Legislature finds and declares that there has been a disturbing abuse of [Code of Civil Procedure] Section 425.16, the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425.16.” (Code Civ. Proc., § 425.17, subd. (a).) This case illustrates the potential danger of abusing the anti-SLAPP law.

Our de novo review of the trial court’s denial of a motion to strike requires us to resolve the threshold inquiry whether defendant made a prima facie showing that the cause of action “arise[s] from” protected activity. (Lee v. Fick (2005) 135 Cal.App.4th 89, 95-96; Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1504- 1505.) If defendant fails to meet its burden, we need not assess plaintiff’s likelihood of prevailing on the merits. (Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 (Freeman).)

9

“The courts have struggled to refine the boundaries of a cause of action that arises

from protected activity. In City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (Cotati),

the court explained that the statutory phrase cause of action

arising frommeans

simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti- SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.’

(Second italics added.) In Navellier, the court cautioned that the ‘anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liabilityand whether that activity constitutes protected speech or petitioning.(Navellier, supra, 29 Cal.4th at p. 92.) Accordingly, the arising fromprong encompasses any action based on protected speech or petitioning activity as defined in the statute (Id., at pp. 89-95), regardless of whether the plaintiff’s lawsuit was intended to chill (Equilon [Enterprises v. Consumer Cause, Inc. (2002)] 29 Cal.4th [53,] 58 [(Equilon)]) or actually chilled (Cotati, supra, 29 Cal.4th at p. 75) the defendant’s protected conduct.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 186-187 (Martinez); see Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 465.) Defendant contends that plaintiff’s complaint is based on the oral and written complaints it received about her performance, the various written warnings it provided her, the results of the ensuing investigations, and her written notice of termination. In defendant’s view, each of the causes of action is based on a protected act as defined in Code of Civil Procedure section 425.16, subdivision (e), which provides in pertinent part:

“(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [or] (2) any written or oral statement or writing made in connection with an issue under consideration

10

or review by a legislative, executive, or judicial body, or any other official proceeding

authorized by law

By stitching together a number of disparate legal principles extracted from cases with very different facts, ignoring the fundamental question whether the lawsuit is indeed a SLAPP, and divorcing the analysis from the purpose of the anti-SLAPP law, defendant constructs an argument that, in effect, would subject most harassment and retaliation claims against public entities to an anti-SLAPP motion to strike. Defendant’s logic is built on the following legal principles. The entire disciplinary process, commencing with the receipt of complaints about an employee and proceeding through the investigation and disposition, constitutes an “official proceeding authorized by law.” In Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 198, a unanimous Supreme Court held that a hospital’s peer review, compelled by statute, qualifies as “any other proceeding authorized by law” identified in the anti-SLAPP statute, and therefore, a lawsuit arising out of a peer review proceeding is subject to a motion to strike the SLAPP suit. We extended the Kibler rationale to the grievance policies and procedures adopted by the University in Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1396, reasoning that they, like the peer review process, have the force and effect of a statute and thus fell within the anti-SLAPP statute’s “any other official proceeding authorized by law.” (Ibid.) Plaintiff does not suggest otherwise. Defendant therefore insists that all of its conduct involving plaintiff was protected and plaintiff’s lawsuit was designed to chill the exercise of its right to petition, that is, its

right to handle the complaints. But plaintiff counters that the gravamen of her complaint is not defendants investigation of complaints, but its harassment and retaliation. Here, defendants response falters. Defendant insists that motive is irrelevant in assessing the merits of an anti-SLAPP motion to strike. It is true the Supreme Court, honoring the legislative mandate to broadly construe the anti-SLAPP statute in order to curtail abusive

.

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SLAPPs, instructs lower courts to focus on whether the gravamen of the action is based on protected conduct and to ignore the question whether the SLAPPer subjectively intended to chill the protected conduct. (Navellier, supra, 29 Cal.4th at p. 94; Equilon, supra, 29 Cal.4th at pp. 58-59.) In other words, the victim of a SLAPP has no burden to prove either that the SLAPPer intended to chill the exercise of its constitutional rights or that the exercise of the protected acts actually was chilled. And it is also true that defendant’s argument finds some support in Tuszynska v. Cunningham (2011)

199

Cal.App.4th 257, 268-269 (Tuszynska) and Hunter v. CBS Broadcasting Inc. (2013)

221

Cal.App.4th 1510, 1520 (Hunter), wherein the Courts of Appeal translated subjective

intent to mean motive and the mens rea of the SLAPPer to mean the mens rea of the defendant employer. But equating a SLAPPer’s subjective intent in filing the litigation to an employer’s motive in subjecting an employee to a retaliatory grievance procedure is a mistake and does violence to the purpose of both the anti-SLAPP and antiretaliation laws. Tuszynska appears to have initiated the motive immunity in an alleged discrimination case. The plaintiff, a female attorney, claimed that a prepaid legal services

plan would not refer cases to her and stopped funding the cases she had been previously assigned “because she is a woman.” (Tuszynska, supra, 199 Cal.App.4th at p. 268.) The trial court denied the legal services plan’s anti-SLAPP motion, allowing the plaintiff the opportunity to prove gender discrimination. (Ibid.) The Court of Appeal reversed. (Id. at p. 272.) The court explained: “Plaintiff and the trial court thus drew a critical distinction between plaintiff’s claim that she was not getting cases because she was a woman, on the one hand, and the communications defendants made in connection with making their attorney selection and funding decisions, on the other. This distinction conflates defendants’ alleged injury-producing conducttheir failure to assign new cases to plaintiff and their refusal to continue funding cases previously assigned to herwith the unlawful, gender-based discriminatory motive plaintiff was ascribing to defendants’

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conductthat plaintiff was not receiving new assignments or continued funding because she was a woman. This type of distinction is untenable in the anti-SLAPP context because it is at odds with the language and purpose of the anti-SLAPP statute. The statute applies to claims based onor arising fromstatements or writings made in connection with protected speech or petitioning activities, regardless of any motive the defendant may have had in undertaking its activities, or the motive the plaintiff may be ascribing to the defendant’s activities. (Navellier, supra, 29 Cal.4th at pp. 89-90; [Code Civ. Proc.,] § 425.16, subds. (b)(1), (e).) Whether defendants had a gender-based discriminatory motive in not assigning new cases to plaintiff or in defunding her existing cases is a question that is entirely separate and distinct from whether, under the anti-SLAPP statute, plaintiff’s gender discrimination claims are based on defendants’ selection and funding decisions. Courts must be careful not to conflate such separate and distinct questions.” (Tuszynska, supra, 199 Cal.App.4th at pp. 268-269.) Hunter employed the same analysis. The Hunter plaintiff filed a complaint against CBS alleging age and gender discrimination for not hiring him as a weather news anchor. (Hunter, supra, 221 Cal.App.4th at p. 1513.) As in Tuszynska, the plaintiff argued that the conduct underlying his causes of action was not CBS’s selection of weather anchors, but the decision to use discriminatory criteria in the selection process. (Hunter, at pp. 1521-1522.) Relying on Navellier and Tuszynska, the Court of Appeal concluded: “This case cannot be meaningfully distinguished from Tuszynska. Hunter’s employment discrimination claims assert that CBS did not hire him to serve as a weather anchor because of his age and gender. As in Tuszynska, his claims are thus based squarely on CBS’s decisions regarding its choice of a weather anchor, which were acts in furtherance of its First Amendment rights. Whether CBS had a gender- or age-based discriminatory motive in not selecting Hunter to serve as a weather anchor is an entirely

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separate inquiry from whether, under [Code of Civil Procedure] section 425.16, Hunter’s discrimination claims are based on CBS’s employment decisions.” (Hunter, supra, 221 Cal.App.4th at p. 1523.) Both the Tuszynska and Hunter courts purportedly based their conclusions that the employer’s motive to discriminate was irrelevant in determining whether the defendant met its threshold burden to prove the conduct arose from protected activity on the Supreme Court’s holding in Navellier. Navellier, however, did not involve harassment, discrimination, or retaliation. Nor did the Supreme Court address the defendant’s subjective intent. Quite to the contrary, the Supreme Court determined that the SLAPPer’s, not the defendant’s, intent was irrelevant. Thus, in our view, Navellier does not require us to ignore the defendant’s alleged motive in a harassment, discrimination, or retaliation case. To conclude otherwise would subject most, if not all, harassment, discrimination, and retaliation cases to motions to strike. Any employer who initiates an investigation of an employee, whether for lawful or unlawful motives, would be at liberty to claim that its conduct was protected and thereby shift the burden of proof to the employee, who, without the benefit of discovery and with the threat of attorney fees looming, would be obligated to demonstrate the likelihood of prevailing on the merits. Such a result is at odds with the purpose of the anti-SLAPP law, which was designed to ferret out meritless lawsuits intended to quell the free exercise of First Amendment rights, not to burden victims of discrimination and retaliation with an earlier and heavier burden of proof than other civil litigants and dissuade the exercise of their right to petition for fear of an onerous attorney fee award. Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 (Alta Loma) and Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611 (Martin) provide more apt analyses of anti-SLAPP motions in discrimination and retaliation cases. In Alta Loma, a landlord removed a

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disabled tenant through unlawful detainer proceedings despite the fact she had notified him of her disability and was entitled to a year to find alternate housing before being evicted. The Department of Fair Employment and Housing (DFEH) filed a complaint against the landlord for disability discrimination. The trial court denied the landlord’s motion to strike portions of the complaint as a SLAPP, “finding the gravamen of the complaint was for disability discrimination and for this reason the suit did not arise out of the landlord’s petition to governmental authorities and protected communications it made in connection with removing its residential units from the rental market.” (Alta Loma, at p. 1276.) The Court of Appeal affirmed. Having reviewed the parties’ pleadings and affidavits, as it must, the court agreed with the trial court that the gravamen of the lawsuit was disability discrimination. The court explained: “Contrary to Alta Loma’s argument, the communications and the actual eviction itself were not the acts attacked in DFEH’s complaint. Instead, the allegations of wrongdoing in DFEH’s complaint arose from Alta Loma’s alleged acts of failing to accommodate [the tenant’s] disability. The letters, e- mail and filing of unlawful detainer actions constituted DFEH’s evidence of Alta Loma’s alleged disability discrimination.” (Alta Loma, supra, 154 Cal.App.4th at pp. 1284-

1285.)

Similarly, in Martin, the plaintiff, an African American, refused his supervisor’s request to take punitive action against one of his employees, another African American, who had filed a racial discrimination claim. The supervisor, a Caucasian, took a variety of measures to undermine the plaintiff’s authority, restructured his division, disgraced him, gave him a poor performance review, and persuaded the agency’s board of directors to order the plaintiff to continue to report to him. The employer brought an anti-SLAPP motion. The Court of Appeal agreed with the trial court’s finding. “ ‘This is an action

for retaliation and wrongful termination filed by plaintiff

against his former employer

and

Supervisor

.’ As the court observed, ‘the gist of this action is clearly not

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only defamation.’ ‘Moreover, if this kind of suit could be considered a SLAPP, then

[employers] could discriminate

with impunity knowing any subsequent suit for

discrimination would be subject to a motion to strike and dismissal.[Citation.] As the lower court in [Alta Loma, supra, 154 Cal.App.4th 1273] stated: ‘ “I just feel like to rule for the defendant in this case would be to say that [Code of Civil Procedure] section 425.16 provides a safe harbor for discriminatory conduct and I don’t think that’s what it’s intended to do.” ’ [Citation.]” (Martin, supra, 198 Cal.App.4th at p. 625.)

We agree. Neither the rental property removal process or the unlawful detainer proceedings in Alta Loma nor the board hearing in Martin inoculated the defendants from discrimination claims. In those cases, the courts did not consider the defendants’ motives at all. Rather, they looked to the allegations of wrongdoing and determined that in both cases the gravamen of the complaint was discrimination or retaliation. The mere fact that the discrimination or retaliation triggered protected activity does not mean that it arose from the protected activity. (Cotati, supra, 29 Cal.4th at pp. 76-77; Equilon, supra, 29 Cal.4th at p. 66.) In other words, “ ‘ the mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’ ” (City of Alhambra v. D’Ausilio (2011)

193 Cal.App.4th 1301, 1307.) Nor does protected activity that is incidental to a cause of

action justify an anti-SLAPP dismissal. (Freeman, supra, 154 Cal.App.4th at p. 733; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005)

133 Cal.App.4th 658, 672.) In short, we conclude the anti-SLAPP statute was not

intended to allow an employer to use a protected activity as the means to discriminate or retaliate and thereafter capitalize on the subterfuge by bringing an anti-SLAPP motion to strike the complaint. In that case, the conduct giving rise to the claim is discrimination and does not arise from the exercise of free speech or petition. Yet another example of an employer’s unsuccessful attempt to strike causes of action for retaliation and wrongful termination appears in McConnell v. Innovative Artists

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Talent & Literary Agency, Inc. (2009) 175 Cal.App.4th 169 (McConnell). Two talent agents, believing that provisions in their contracts were unlawful, filed declaratory relief actions against a talent agency (Innovative) requesting declarations that they had the right to terminate their agreements at will. (Id. at p. 172.) The following day, Innovative had the agents escorted off the premises, gave them letters modifying their job duties, and instructed them not to come onto the premises, use company e-mail, attend client or industry functions, or have any communication with clients or other employees. (Ibid.) Two days later they were formally terminated. (Ibid.) The agents amended their complaints to add causes of action for retaliation and wrongful termination. (Ibid.) Innovative moved to strike the retaliation and wrongful termination causes of action, asserting that the agents’ claims arose from protected First Amendment activity. (McConnell, supra, 175 Cal.App.4th at p. 172.) Innovative argued that the letters written by Scott Harris, Innovative’s president, and delivered to the agents modifying their job duties after their lawsuits were filed were written communications “made in connection with an issue under consideration or review” in the lawsuits. (Code Civ. Proc., § 425.16, subd. (e)(2); see McConnell, at p. 176.) The trial court denied the motions and the Court of Appeal affirmed. (McConnell, at p. 173.) The Court of Appeal rejected the notion that the gravamen of the agents’ complaints was the letters modifying their job duties. Rather, “the acts underlying [plaintiff] McConnell’s claims of retaliation and wrongful termination consisted of a course of conduct by Innovative on August 28 that prevented McConnell and [plaintiff] Press from performing their work as talent agents. McConnell’s claims do not arise from Harris’s letter, but from Harris’s action ‘temporarily modif[ying]’ McConnell’s and Press’s job duties, effectively precluding them from engaging in any of the ordinary activities of a talent agent. The fact that these ‘modifications’ to McConnell’s job duties were reduced to writing does not convert them from conduct affecting the conditions of employment to protected free speech activity. We look to the gravamen of a plaintiff’s

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complaint to see if it is based on a defendant’s protected First Amendment activity. (See Martinez[, supra,] 113 Cal.App.4th [at p.] 188 [‘it is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies .’].) Here, McConnell’s causes of action for retaliation and wrongful termination were based on Innovative’s conduct effectively eliminating all the normal job duties of a talent agentas reflected both in Harris’s letter and in Innovative’s other conduct described in the amended complaints: escorting McConnell and Press from the office, deactivating their e-mail and computer access, and so on.” (McConnell, supra, 175 Cal.App.4th at pp. 176-177.) Similarly, defendant points to plaintiff’s allegations referencing its Letter of Expectation, Letter of Warning, and other written communications notifying her she would be put on leave, terminated, etc., and argues, as the talent agency did in McConnell, that these writings were all protected activity. Here, unlike in McConnell, there was no pending litigation at the time defendant gave plaintiff the various notices she alleged in her complaint. But the underlying principle remains the same. The gravamen of plaintiff’s and McConnell’s and Press’s complaints was based on their employers’ conduct in retaliation. For plaintiff those retaliatory acts included, but were not limited to, “subjecting her to increased and disparate scrutiny, soliciting complaints about her from others, removing [her] from the workplace, refusing to permit her to return, refusing to give her credit towards the completion of her residency, failing to honor promises made regarding her treatment, and ultimately terminating her on February 2, 2012.” Following the lead of our colleagues in McConnell, we reject defendant’s characterization of its retaliatory conduct as protected First Amendment activity. Nevertheless, it is important to emphasize the murkiness of the factual allegations before us. If, as defendant portrays the facts, it had been deluged with complaints about plaintiff’s performance and it had merely proceeded to discipline her in a manner commensurate with her shortcomings in the absence of evidence of retaliation, its acts

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might be characterized as protected. But plaintiff alleges that the discipline that was meted out, including the ultimate termination, was all in retaliation for her public challenge of department policies and her rejection of Dr. Singh’s inappropriate overtures. The timeline is compressed and ambiguous. According to plaintiff, she received an exemplary review at the end of August 2009, on September 1 she e-mailed her inquiry about the purported policy that residents were not allowed to intubate patients, she received a Letter of Expectation on September 22, Dr. Singh harassed her in December, and all that followed was in retaliation for her candor and her dismissal of his advances. According to defendant, plaintiff exhibited unprofessional conduct shortly after she started the program in July of 2009, thus triggering its constitutional right, indeed its duty, to investigate the complaints and discipline her accordingly. Given that defendant’s own internal investigations criticized and exonerated both plaintiff for unprofessional conduct and defendant for “singling” out plaintiff and falling abysmally short of its teaching and mentoring responsibilities, it is far too premature to exonerate defendant for engaging in protected conduct. As early as October of 2009 plaintiff’s own mentor cautioned the department to ensure that plaintiff was “not being singled out nor that she has been or will be the victim of bullying, harassment or retaliation.” Plaintiff’s complaint and declaration make perfectly clear that the basis of her claim, as in Alta Loma and Martin, was defendant’s retaliationpunishing her for rebuffing Dr. Singh and calling attention to problems with the department’s policies and procedures. In an anti-SLAPP analysis, we must accept as true the plaintiff’s pleaded facts. (Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 54.) “We do not resolve the merits of the overall dispute, but rather identify whether its pleaded facts fall within the statutory purpose.” (Ibid.) Thus, the trial court properly denied defendant’s anti-SLAPP motion because the alleged wrongdoing did not arise out of protected conduct.

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Moreover, we question whether plaintiff’s lawsuit for harassment and retaliation should be characterized as a SLAPP. The quintessential SLAPP is filed by an economic powerhouse to dissuade its opponent from exercising its constitutional right to free speech or to petition. The objective of the litigation is not to prevail but to exact enough financial pain to induce forbearance. As its name suggests, it is a strategic lawsuit designed to stifle dissent or public participation. It is hard to imagine that a resident’s complaint alleging retaliatory conduct was designed to, or could, stifle the University from investigating and disciplining doctors who endanger public health and safety. The underlying lawsuit may or may not have merit that can be tested by summary judgment, but it is quite a stretch to consider it a SLAPP merely because a public university commences an investigation.

DISPOSITION The trial court’s denial of the University’s special motion to strike is affirmed. Plaintiff shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur:

NICHOLSON

, J.

BUTZ

, J.

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RAYE

, P. J.

Independent Investigative Report on Acts of Bias and Discrimination Involving Faculty at the University of California, Los Angeles

October 15, 2013

Presented to:

Executive Vice Chancellor and Provost Scott L. Waugh UCLA Office of the Chancellor 2147 Murphy Hall, Box 951405 Los Angeles, CA 90095-1405

Investigation and Report by:

Hon. Carlos Moreno (Ret.), Chair Dr. Maga Jackson-Triche Professor Gary Nash Constance Rice, Esq. Professor Bob Suzuki

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EXECUTIVE SUMMARY

Several high-profile incidents of racial and ethnic bias and/or discrimination have roiled the University of California, Los Angeles (UCLA) campus in recent years. In 2012, the UCLA Chancellor and Executive Vice Chancellor and Provost were approached by a group of concerned faculty about perceived racial bias, discrimination and intolerance at the university. In response to these concerns, Chancellor Gene Block authorized Executive Vice Chancellor and Provost Scott L. Waugh 1 to appoint an independent review team to conduct an assessment and present recommendations to address issues that the team discovered. Executive Vice Chancellor Waugh, in cooperation with faculty, formed the External Review Team to undertake this task.

This report is the culmination of several months of investigation regarding the university’s policies, procedures, and mechanisms for responding to incidents of perceived bias, discrimination, and intolerance at UCLA involving faculty of colorincluding in hiring and advancement decisions. The Review Team interviewed twelve university administrators and eighteen faculty members who were willing to share their candid perspectives. We thank these individuals for their time and commitment to this important issue. The Review Team also conducted a town hall meeting and solicited written submissions from concerned faculty. In additional to anecdotal evidence, the Review Team reviewed UCLA’s written policies and gathered statistics on recorded incidents of racial bias and discrimination against faculty.

UCLA is an institution that, by its own account, is “firmly rooted in its land-grant mission of teaching, research, and public service.” 2 It is located in Los Angeles, one of the most ethnically diverse cities and counties in the United States. Despite these facts, we found widespread concern among faculty members that the racial climate at UCLA had deteriorated over time, and that the university’s policies and procedures are inadequate to respond to reports of incidents of bias and discrimination. Our investigation found that the relevant university policies were vague, the remedial procedures difficult to access, and from a practical standpoint, essentially nonexistent. Faculty of color at UCLA must rely on a patchwork of diversity resources and the generic Faculty Senate complaint and grievance procedures in order to seek redress. While this ad hoc process has sometimes succeeded, it has failed to adequately record, investigate, or provide for disciplinary sanctions for incidents which, if substantiated, would constitute violations of university nondiscrimination policy.

There was clear consensus among faculty members who reported to the Review Team that the administration has demonstrated a lack of leadership on these issues. Faculty identified two main perceived barriers to implementation of changes. First, the primacy of freedom and autonomy for faculty members that characterizes a major research institution. Second, the competition among elite institutions for talented faculty members, particularly

1 Hereafter, “Executive Vice Chancellor Waugh.”

2 2009 Chancellor’s Advisory Group on Diversity, Draft UCLA Strategic Plan for Diversity 1, available at https://diversity.ucla.edu/strategic-

plan/20092010_CAGD_Strategic_Plan.pdf.

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those adept at procuring grant dollars. While these are legitimate concerns for the administration, they cannot be prioritized to the exclusion of all other issues. UCLA is a workplace like any other, and adequate processes must exist to ensure that the faculty has opportunities and avenues for redress when faced with incidents perpetrated by colleagues and coworkers that create an intimidating, hostile, or offensive work environment.

As detailed below, we conclude that UCLA’s policies and procedures for responding to incidents of perceived bias, discrimination