1

Filed 6/29/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JAMES O’BRIEN,

Plaintiff and Appellant,

v.

THE REGENTS OF THE 

UNIVERSITY OF CALIFORNIA,

Defendant and Respondent.

 A164481

 (Alameda County

 Super. Ct. No. RG20075810)

In March 2020, James O’Brien was suspended from his employment as 

a professor at the University of California, Berkeley, for violating the 

University’s Faculty Code of Conduct while attending an overseas conference

in 2012. O’Brien received a written censure and one-year suspension for

directing unwanted sexualized conduct at a junior colleague attending the 

conference, a graduate student at Massachusetts Institute of Technology 

(MIT). O’Brien filed a petition for writ of mandate to compel the Regents of 

the University of California (the Regents) to set aside the disciplinary 

decision, raising procedural, substantive and due process objections. The 

trial court denied O’Brien’s petition. We affirm.

We conclude that the University’s rule requiring it to initiate 

disciplinary action within three years of receiving a report of misconduct does 

not bar the discipline here. An earlier complaint by a different student only 

briefly touching on an alleged incident between O’Brien and an unidentified 
2

female MIT graduate student was not a report of the wrong-doing for which 

he was disciplined. On the merits, substantial evidence supports a finding by 

the University and the trial court that the MIT student was a “colleague” of 

O’Brien’s, as the Faculty Code of Conduct uses that term, and O’Brien’s other 

attacks on the fairness of the proceedings and his punishment also fail. 

FACTUAL AND PROCEDURAL BACKGROUND

In late 2012, O’Brien attended a week-long computer graphics 

conference in Singapore hosted by the Special Interest Group on Computer 

Graphics and Interactive Techniques (SIGGRAPH). O’Brien was a “Directorat-Large” for SIGGRAPH, and one or two of his graduate students at U.C. 

Berkeley presented papers at the conference. Jane Roe, a first-year Ph.D.

student at MIT, also presented a paper. One evening, after the conference 

ended for the day, O’Brien went to dinner and then to a bar or club with a 

group of graduate students, including Jane Roe. O’Brien and Roe had no 

subsequent personal interactions, and years later they vehemently disagreed 

about what happened that night.

I. The 2014 Anonymous Complaint

In January 2014, a U.C. Berkeley Ph.D. student completed an 

anonymous exit survey for departing graduate students, and her response

documented concern about a “hostile” and sometimes “sexist” atmosphere in 

her department’s computer graphics research group. The student stated that

“[t]he hostile environment was mainly caused by Prof. James O’Brien who 

regularly insulted students and peer faculty and harassed at least 5 female 

students.” She characterized the incidents as “severe,” opined they damaged 

the research group’s outside reputation, and then commented: “To give you 

an anecdote of how severe these issues are: in a latest incident in December 

2011, Prof. O’Brien strongly encouraged a female first year graduate student 
3

from MIT to go back to his hotel room with him late at night at a conference.” 

The survey response included no further information about this “anecdote,” 

but characterized O’Brien’s behavior as “unacceptable” and “caus[ing] 

outrage within the community,” clearly implying that the advances were 

unwelcome. Then, in even more summary fashion, the survey respondent 

added that she knew of three instances since 2006 where students 

complained to the ombudsman or the department about O’Brien, only to see 

little come of it. 

The anonymous student’s complaint about O’Brien was forwarded to 

the chairs of U.C. Berkeley’s Electrical Engineering and Computer Sciences 

Department, David Culler and Tsu-Jae King Liu, and to Susan Kauer, the 

department’s Executive Director of Student Affairs. Kauer was concerned by 

the survey response, suspecting there could be an underlying sexual 

harassment issue or some information the University should investigate. 

After consulting with an associate general counsel at U.C. Davis about her 

reporting responsibilities, Kauer reported the matter to U.C. Berkeley’s 

Office for the Prevention of Harassment and Discrimination (OPHD). 

Department chair Culler was also concerned about sexual harassment and 

concurred with Kauer that a referral to OPHD was appropriate. 

At OPHD, the anonymous student complaint was assigned to William 

Mallari, who conferred with Culler and Kauer. Mallari advised that OPHD 

had no record of any other complaint or concern involving O’Brien, and a 

decision was made that Culler would look into the matter further. Culler

surmised the anonymous survey respondent was F.B., a student who had 

previously expressed similar concerns as those reported in the survey. Culler

invited F.B. to have a discussion with him about issues affecting graduate 

student culture at Berkeley, and during their 15-minute phone conversation, 
4

F.B. volunteered that she authored the anonymous survey. F.B. was willing 

to discuss her concerns regarding her own department but chose not to share 

further information about the MIT student, saying it was not her place to 

“bring somebody else in.” 

On February 11, 2014, Culler met with O’Brien to discuss the 

anonymous survey response, careful to “position” the meeting as an

opportunity to understand the comments, not as an investigation or 

accusation. O’Brien’s “reaction was some blend of resistance and denial.” 

O’Brien also quickly identified F.B. as the likely source of the survey 

comments, and he denied “pretty much all of the assertions.” Specifically 

with regard to an incident at a conference, O’Brien recalled attending 

SIGGRAPH Asia in Korea in December 2011, but he “denied that what was 

in the comments occurred” there and recollected nothing that might have led 

to this aspect of F.B.’s report, he told Culler. Culler felt that O’Brien took the 

matter “very very seriously.” He encouraged O’Brien to reflect, suggested 

that he reach out to Will Mallari, and said they “could follow up after a 

while.” 

The following day, Culler sent an email to Mallari and Kauer 

summarizing his discussion with O’Brien. Culler also mentioned to them his 

conversation with F.B. and said F.B. was willing to discuss the matter 

further. Kauer and Mallari both replied to Culler’s email. Kauer thanked

Culler for “taking this issue on, for investigating and for reporting back so 

thoroughly.” She opined that the “matter has been handled well and has 

been instructive” for O’Brien, and she asked Mallari to let them know if there 

was anything else they needed to do. For his part, Mallari agreed with 

Kauer’s comments, thanked Culler for approaching the matter with “tact and 
5

skill,” and invited them both to contact him if they had additional questions 

or concerns. 

II. Jane Roe’s 2017 Complaint

More than three years later, in December 2017, Jane Roe submitted a 

complaint about O’Brien to OPHD. Roe alleged that while she attended the 

2012 SIGGRAPH Asia conference (a year later than the conference date F.B. 

had mentioned), O’Brien engaged her in unwelcome conduct of a sexual 

nature that affected or interfered with her educational opportunities and 

created a hostile environment. Roe reported that she and O’Brien were at a 

“ ‘gentleman’s club’ ” following the conference when he touched her lower 

back and upper thigh, made sexually explicit comments about her 

appearance, and propositioned her to return to his hotel room. Roe also 

reported that after they left the bar, and were in a cab, O’Brien grabbed her 

arm and insisted on a kiss. Roe alleged further that during their encounter, 

O’Brien intimated that Roe had provided sexual favors to secure lead 

authorship on her paper, and the next morning he invited her to an “ ‘invite 

only’ ” conference in Barbados. 

A. The OPHD Investigation

In February 2018, OPHD notified O’Brien of its intent to investigate 

Roe’s complaint, and that if her allegations were true O’Brien’s behavior 

could constitute sexual harassment under the University’s 2008 Sexual 

Violence and Sexual Harassment Policy (the 2008 SVSH policy), which was in 

effect in 2012. O’Brien objected that the University lacked jurisdiction to 

investigate Roe’s complaint because she had no association to the University 

community and the incident had no connection with University property, 

activities, programs, or events. OPHD disagreed, reasoning that the 2008 

SVHS policy was sufficiently broad to reach conduct committed by O’Brien 
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while he was “effectively acting as a representative of UC Berkeley.” OPHD 

also advised O’Brien that, although substantive definitions of prohibited 

behavior contained in the 2008 SVHS policy would apply, OPHD would 

conduct its investigation pursuant to procedures in the then-current SVSH

policy, which recognized the University’s jurisdiction over off-campus conduct 

that affected the learning or working environment or would violate university 

policy had it occurred on campus.1

O’Brien also objected that the four-year delay in investigating an 

incident that was reported to the University in 2014 violated the University’s 

own “ ‘[t]hree-year rule.’ ” O’Brien insisted that he had disclosed Jane Roe’s 

name to then-chair Culler in 2014, and argued that under the Faculty Code 

of Conduct, also known as APM-015,2 the University was required to initiate 

any related disciplinary action within three years. OPHD took the position 

that a determination whether the three-year rule was violated was beyond its 

purview, but made findings of fact to facilitate resolution of the matter. 

Specifically, the OPHD investigator found that O’Brien did not disclose Jane 

Roe’s identity to Culler in 2014, and his contentions to the contrary were not 

credible. 

OPHD’s investigation of the 2012 incident included interviewing Roe, 

O’Brien, and multiple witnesses. OPHD also reviewed witness statements 

and declarations, as well as emails, chatlogs, social media posts, and local 

and national news articles about the incident, which Jane Roe had recently 

1 The Administrative Record contains three versions of the SVSH 

policy, adopted respectively in 2008, 2016 and 2019. 

2 APM refers to the University’s Academic Personnel Manual, which 

contains multiple documents, including the Faculty Code of Conduct (APM015), and the Policy on Faculty Conduct and the Administration of Discipline

(APM-016). 
7

made public. OPHD’s file regarding F.B.’s 2014 anonymous complaint was 

also considered.

According to OPHD’s investigation report, O’Brien and Roe agreed on 

only a handful of general facts: during the conference, they went out to 

dinner and some bars with other graduate students, they discussed an 

upcoming workshop, O’Brien facilitated inviting Roe to the workshop, and 

there was no further contact between them. O’Brien disputed all of Roe’s 

allegations regarding inappropriate touching and other misconduct. 

Ultimately, the investigator found Roe to be more credible than O’Brien and 

that “the preponderance of witness statements and documentary evidence 

support[ed] her version of events.” The investigator also found by a 

preponderance of the evidence that O’Brien sexually harassed Roe under the 

terms of the 2008 SVSH policy, in that his conduct was unwelcome, was of a 

sexual nature, and affected Roe’s education, interfering with her education 

performance and creating a hostile learning environment. 

On October 30, 2018, OPHD notified O’Brien it had substantiated 

allegations that O’Brien violated the 2008 SVSH policy and referred the 

matter to the Vice Provost for the Faculty, Benjamin Hermalin. That

December, Hermalin notified O’Brien of the University’s intention to lodge a 

formal complaint with the Privilege and Tenure Committee (P&T Committee) 

charging O’Brien with violating the Faculty Code of Conduct. Hermalin 

notified O’Brien that he intended to propose the disciplinary sanction of a 

three-year suspension, and a commensurate curtailment of his emeritus 

status should he retire or leave his employment prior to completion of the 

suspension. 
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B. The Disciplinary Complaint

In August 2019, after mediation requested by O’Brien was 

unsuccessful, Hermalin filed a formal disciplinary complaint with the P&T 

Committee, charging O’Brien with violating multiple provisions of the 

Faculty Code of Conduct. First, he was charged with violating APM-015, 

Part II.C, by committing a “Serious violation of University policies governing 

the professional conduct of faculty.” The stated basis for this charge was that 

O’Brien’s conduct during the 2012 incident violated the 2008 SVSH policy. 

O’Brien was also charged with violating APM-015, Part II.D, which 

provides, in part: “ ‘As colleagues, professors have obligations that derive 

from common membership in the community of scholars. Professors do not 

discriminate against or harass colleagues.’ ” The University alleged O’Brien 

violated this provision by, among other things, sexually harassing a thencolleague at the 2012 conference.

The University also charged O’Brien with violating a principle that is 

illustrated by APM-015, Part II.D.1, which states that professors do not 

evaluate the professional competence of members of the community of 

scholars with standards that are not reflective of professional competence. 

As a basis for this charging allegation, the University invoked a provision in 

the preamble to APM-015, which states: “Faculty may be subjected to 

disciplinary action under this Code for any type of conduct which, although 

not specifically enumerated herein, meets the standard for unacceptable 

faculty behavior.” O’Brien was also charged with violating ethical principles 

incorporated by reference into the Preamble to APM-015, specifically that

professors are to uphold “the best scholarly and ethical standards of their 

discipline,” and to “demonstrate respect for students as individuals and 

adhere to their proper roles as intellectual guides and counselors.”
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C. The P&T Committee Hearing and Findings

The P&T Committee held an evidentiary hearing over four days in 

October and November 2019. In February 2020, the Committee issued a 21-

page report of its findings and recommendation, which was submitted to 

Chancellor Carol Christ.

1. Preliminary Findings

During the first day of the hearing, the Committee took evidence 

regarding O’Brien’s procedural objections to the disciplinary complaint, 

specifically to address (1) whether a violation of the Faculty Code of Conduct 

could be based on allegations regarding a non-U.C. student at a conference in 

Singapore, and (2) if the disciplinary action against O’Brien was time-barred 

under the University’s own rules. On October 16, 2019, the P&T Committee 

issued preliminary findings rejecting O’Brien’s procedural objections. 

Regarding the first issue, the P&T Committee found that the conduct 

in question could subject O’Brien to discipline under the Faculty Code of 

Conduct. The Committee reasoned that several charges against O’Brien 

allege violations of code provisions that apply to O’Brien’s alleged acts 

“towards a non-UC student at a conference in Singapore” because they 

contain no “limitation as to geographic location or an exception for activity 

with a non-UC student.” Because the hearing would proceed as to these 

charges, the Committee found it unnecessary to decide at the preliminary 

stage whether the 2008 SVSH policy applied to the incident in question. 

To resolve O’Brien’s claim that the complaint is time-barred, the P&T 

Committee applied U.C. Academic Senate Bylaw 336.B (Bylaw 336.B), 

pertaining to the “Time Limitation for Filing Disciplinary Charges,” which 

states: “The Chancellor is deemed to know about an alleged violation of the 

Faculty Code of Conduct when it is reported to any academic administrator 
10

at the level of department chair or above or, additionally, for an allegation of 

sexual violence or sexual harassment when the allegation is first reported to 

the campus Title IX Officer. The Chancellor must file disciplinary charges by 

delivering notice of proposed disciplinary action to the respondent no later 

than three years after the Chancellor is deemed to have known about the 

alleged violation. There is no limit on the time within which a complainant 

may report an alleged violation.” 

The Committee also considered a provision of the Faculty Code of 

Conduct, APM-015, Part III.A.3. In 2012, this provision (Former Part III.A.3)

stated: “No disciplinary action may commence if more than three years have 

passed between the time when the Chancellor knew or should have known 

about the alleged violation of the Faculty Code of Conduct and the delivery of 

the notice of proposed disciplinary action.”3 The Committee did not 

separately analyze Former Part III.A.3, presumably because it implements 

Bylaw 336.B.

The Committee found that neither provision bars this disciplinary 

proceeding. O’Brien argued that the Chancellor was deemed to know about 

violations alleged in this case when F.B.’s anonymous survey response was 

3 According to the Administrative Record, Part III.A.3 was modified in 

2017 to include details from Academic Senate Bylaw 336.B, so that it now 

states: “The Chancellor is deemed to know about an alleged violation of the 

Faculty Code of Conduct when it is reported to any academic administrator 

at the level of department chair or above. Additionally, for an allegation of 

sexual violence or sexual harassment, the Chancellor is deemed to know 

about an alleged violation of the Faculty Code of Conduct when the allegation 

is first reported to any academic administrator at the level of department 

chair or above or the campus Title IX Officer. The Chancellor must initiate 

related disciplinary action by delivering notice of proposed action to the 

respondent no later than three years after the Chancellor is deemed to have 

known about the alleged violation. There is no limit on the time within 

which a complainant may report an alleged violation.” 
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forwarded to OPHD in 2014. The Committee rejected this contention, finding 

“[t]he information that was presented to the Chancellor or her 

representatives in 2014 was insufficient to constitute alleged sexual 

harassment and a consequent alleged violation of the Faculty Code of 

Conduct. Therefore the Chancellor could not have known or [be] deemed to 

have known of an ‘alleged violation’ to trigger the three-year rule applicable 

to the case.” 

2. Findings of Fact About the 2012 Incident

The Committee’s final report, issued after the evidentiary phase of the 

hearing was completed and the matter was submitted for decision, contains

detailed findings about O’Brien, Roe, the SIGGRAPH conference they 

attended, and what happened between them. We briefly summarize the 

Committee’s material findings. 

SIGGRAPH hosts the “preeminent conference in the field of computer 

graphics” and presentations made there “play a prominent role in 

establishing and advancing academic careers.” O’Brien is and was a “leading 

figure” in the field of computer graphics and in the subfield of physics-based 

simulation. Roe was a first-year Ph.D. student with a master’s degree in 

computer science when she had a paper accepted and presented it at the 

SIGGRAPH conference in 2012. On the day Roe presented her paper, she 

went out to dinner afterwards with O’Brien and a group of his graduate 

students. Because “meeting colleagues in the field is one of the goals in 

attending [the conference], especially for students,” people often socialize, and 

it is not unusual for a professor to go out to dinner with a group of students. 

Roe wanted to pursue a career in physics-based simulation, so meeting 

O’Brien and his students could lead to an opportunity “for the kind of 

collaborations that make a career in her chosen field.” 
12

The dinner that Roe and O’Brien attended was “productive and 

enjoyable,” and afterward a smaller group went out to some local bars. At 

one point during the “conference-related social occasion at which both 

professional and personal matters were discussed,” O’Brien and Roe were 

speaking at one end of their table. The other three students in their group

were not sitting close enough to hear everything O’Brien and Roe said to each 

other, and at some point, the others departed. When Roe and O’Brien were 

alone at the bar, she asked O’Brien for feedback about her presentation 

earlier that day. O’Brien responded that he hadn’t been listening because he 

was “ ‘too busy imagining what was under [Roe’s] dress.’ ” O’Brien also 

insinuated that Roe had been given authorship credit for the paper she 

presented by manipulating the romantic or sexual interest of her coauthor. 

O’Brien persisted in such conduct despite Roe’s expressed disinterest and 

effort to deflect his sexualized attention. He tried to get her to go to his hotel 

room and when they were outside her hotel, he told her she “ ‘owed’ ” him a 

kiss. 

“Immediately” after the incident, Roe shared her distress about 

O’Brien’s sexualized remarks and the potential damage to her career with 

several individuals—her then-romantic partner, her former faculty advisor, 

and the coauthor of her paper. The following week, she also discussed the 

incident with a friend and two other Ph.D. students. These communications 

in the immediate and short-term aftermath of the incident corroborated Roe’s 

account of her interactions with O’Brien, the Committee found. At the 

hearing, Roe testified that she never felt physically threatened by O’Brien, 

but “she felt extremely uncomfortable as a 23-year-old in a foreign country, 

speaking to a powerful person in her field whom she believed could have 
13

significant impact on her career, and she testified that the encounter made 

her feel ‘violated’ and insecure.” 

O’Brien did not testify at the administrative hearing, but his 

statements to OPHD denying the alleged conduct were admitted into 

evidence, and his denials were confirmed in post-hearing briefing. 

Ultimately, the Committee found Roe’s “testimony convincing in itself, in the 

absence of counter-evidence, and as verified in her multiple contemporaneous 

reports to colleagues and friends.” 

3. Findings Regarding Alleged Violations

Before turning to the specific charges against O’Brien, the P&T 

Committee confirmed its preliminary determination that Roe’s allegations

could constitute an actionable violation of the Faculty Code of Conduct and

made the following additional findings: O’Brien attended the SIGGRAPH 

conference as a U.C. Berkeley faculty member; the conference is a significant 

event in the computer graphics field, with formal and informal social 

occasions constituting a significant aspect of the professional experience; 

participants at the gathering where the conduct occurred included U.C. 

Berkeley graduate students presenting research they conducted at O’Brien’s 

lab at U.C. Berkeley; and the participants discussed professional as well as 

personal matters. The Committee also confirmed its preliminary finding that

in 2014, the Chancellor could not be deemed to have known about the 

violations alleged in this case, albeit with no further analysis.

The Committee then acquitted O’Brien of the first charge it considered: 

that he had violated the 2008 SVSH policy, a “[s]erious violation of 

University policies governing professional conduct of faculty,” pursuant to

APM-015, Part II.C.7. The Committee found O’Brien did not commit this 

violation because the 2008 SVSH policy, which was in effect when the 2012 
14

incident occurred, did not apply to O’Brien’s interaction with Roe at 

SIGGRAPH. The Committee reasoned, the conference was not a University 

event; it did not take place on University property; Roe was not a member of 

the University community; and she had no U.C. affiliation. 

As to the second charge, however, the Committee found that O’Brien 

did violate APM-015, Part II.D, which codifies the ethical obligation on

professors, deriving from their “common membership in the community of 

scholars,” to “not discriminate against or harass colleagues.” The Committee 

based its conclusion that O’Brien violated this provision on findings that Roe 

and O’Brien “were not only colleagues both attending the SIGGRAPH Asia 

conference but also colleagues in the sub-field of physics-based, and 

particularly cloth, simulation.” According to the Committee, Roe “clearly 

served as a junior colleague” to O’Brien in attending the conference to present 

a paper in cloth simulation, which was one of O’Brien’s specialties, and 

O’Brien interacted with Roe at a social event associated with the conference 

“[i]n his role as a Berkeley professor.” Moreover, the Committee found, 

O’Brien’s “sexualizing of [Roe] in response to her request for feedback on her 

scholarly work was a severe violation of collegiality by any standards.” 

The Committee rejected the remaining charges against O’Brien. With 

regard to the allegation that he violated the principle in APM-O15, 

Part II.D.1. that professors should not use inappropriate criteria to evaluate 

the professional competence of members of the community of scholars, the 

Committee found the version of the Faculty Code in effect in 2012 made this 

conduct unacceptable only as to “ ‘the professional competence of faculty 

members,’ ” and Roe was not a faculty member. (Italics omitted.) With 

regard to the allegation that he violated principles requiring professors to 

uphold “best scholarly standards” and “demonstrate respect for students as 
15

individuals and adhere to [professors’] proper roles as intellectual guides and 

counselors” (APM-015, Part II.A), the Committee found these policies 

inapplicable because Roe was “a student at another university and was not 

under the academic supervision or direction of Professor O’Brien.” 

D. Discipline

The Committee recommended that, pursuant to the governing

disciplinary guidelines, O’Brien receive a written censure and one-year 

suspension without pay, opining that the three-year suspension requested by 

the administration was excessive.

After the Committee completed its report, the Chair wrote to 

Chancellor Christ to share the Committee’s “sense” that an alternative to 

suspension that more directly addressed O’Brien’s misconduct “might be 

more appropriate.” Noting that the Chancellor had authority to impose an 

alternative sanction if O’Brien consented, the Committee proposed that 

(1) because O’Brien’s violation involved behavior toward a graduate student, 

he be “prevented from working with new graduate students for a three-year 

period,” and (2) because O’Brien refused to acknowledge his inappropriate 

conduct, he not be allowed to resume working with graduate students until 

he received additional training regarding the meaning of sexual harassment

and the proper behavior of faculty members in professional relationships with 

students and colleagues.

On March 11, 2020, Chancellor Christ informed O’Brien of her decision 

to issue a letter of censure and suspend O’Brien’s employment for one 

academic year, with the advisement that if he decided to retire rather than 

serve the suspension, she would seek a curtailment of O’Brien’s emeritus 

status under the same conditions outlined in the suspension. In explaining 

her decision, Christ acknowledged that the P&T Committee did not make 
16

findings against O’Brien as to several charges but stated that “[s]exualizing 

the Complainant in response to her request for feedback on her scholarly 

work was a serious violation of the Faculty Code of Conduct, which prohibits 

harassment of colleagues.” 

III. The Writ Proceeding

In October 2020, O’Brien filed a petition for a writ of mandate directing 

the Regents to set aside the findings of the P&T Committee and the 

disciplinary sanction imposed by Chancellor Christ. (Code Civ. Proc.,

§ 1094.5; statutory references are to this code.) O’Brien alleged that the 

Regents exceeded their jurisdiction by disciplining him; failed to conduct a 

fair disciplinary hearing; and abused their discretion by failing to proceed in 

a manner required by law, making a decision not supported by the findings, 

and making findings that were not supported by the evidence.

At a July 2021 hearing on the petition, the superior court requested 

supplemental briefing regarding (1) the three-year rule for commencing a 

disciplinary action for an alleged violation of the Faculty Rules of Conduct, 

and (2) whether Jane Roe was a colleague within the meaning of APM-015, 

Part II.D (Part II.D). At the continued hearing, the court expressed ongoing 

concern about whether the Regents failed to comply with their three-year 

rule and sought additional briefing addressing the history and purpose of the 

rule. 

On November 1, 2021, the court denied O’Brien’s petition pursuant to

findings subsequently set forth in a final order filed on November 8. 

Rejecting O’Brien’s contention that the Regents violated the three-year rule, 

the court found that the administrative record supports the P&T Committee’s 

finding that facts known to the Administration in 2014 were “insufficient to 

constitute a policy violation,” and that “sufficient additional facts” were not 
17

known until Roe later came forward. The court also found that the record 

supports the other findings and conclusions of the P&T Committee in this 

case, among them that “the term ‘colleague’ includes persons such as the MIT 

graduate student under the particular circumstances of this matter.” 

DISCUSSION

I. Issues on Appeal and Standards of Review

Contending his petition for writ of mandate was erroneously denied, 

O’Brien makes the following claims of error: (1) the University waited too 

long to file a disciplinary complaint against him; (2) he did not violate the 

policy prohibiting mistreatment of a colleague; (3) the disciplinary proceeding 

was unfair; and (4) the sanction imposed on him was excessive. Because the 

parties disagree about what standards of review govern our resolution of 

these claims, we begin with a brief review of the pertinent standards.

Section 1094.5 establishes the scope of our review of an adjudicatory 

decision by an administrative agency. (Akella v. Regents of University of 

California (2021) 61 Cal.App.5th 801, 813–814 (Akella).) That review 

“extends to questions about the agency’s jurisdiction to proceed, whether 

there was a fair trial, and ‘whether there was any prejudicial abuse of 

discretion.’ ” (Id. at p. 813, quoting § 1094.5, subd. (b).) An agency abuses its 

discretion if it fails to proceed in a manner required by law, if its decision is

not supported by the findings, or if its findings are not supported by the 

evidence. (§ 1094.5, subd. (b).)

“We review the fairness of the administrative proceeding de novo. 

[Citation.] ‘The statute’s requirement of a “ ‘fair trial’ ” means that there 

must have been “a fair administrative hearing.” ’ ” (Doe v. Regents of 

University of California (2016) 5 Cal.App.5th 1055, 1073 (Doe v. Regents); see 

Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 
18

Cal.App.4th 72, 96.) Questions of law are also subject to independent judicial 

review in a mandate proceeding. (Akella, supra, 61 Cal.App.5th at p. 815.) 

The standard for reviewing an agency’s findings of fact can cause 

confusion. In the trial court, if the administrative decision substantially 

affects a fundamental vested right, the court must independently review the 

record to determine whether the weight of evidence supports a factual

finding, whereas the substantial evidence test applies when a fundamental 

right is not at issue. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th

305, 313 (Wences).) But the appellate court applies a substantial evidence 

test, regardless of whether a fundamental right is involved. (Fukuda v. City 

of Angels (1999) 20 Cal.4th 805, 824.) The difference is that our focus varies 

with the standard of review employed by the trial court. (Ogundare v. 

Department of Industrial Relations (2013) 214 Cal.App.4th 822, 828

(Ogundare).) “ ‘If a fundamental vested right was involved and the trial court 

therefore exercised independent judgment, it is the trial court’s judgment 

that is the subject of appellate court review. [Citations.] On the other hand, 

if the superior court properly applied substantial evidence review because no 

fundamental vested right was involved, then the appellate court’s function is 

identical to that of the trial court. It reviews the administrative record to 

determine whether the agency’s findings were supported by substantial 

evidence.’ ” (Id. at pp. 828–829.)

In the present case, O’Brien contends the Chancellor’s decision to 

discipline him affects his fundamental vested right in employment, citing 

pertinent authority. (See Wences, supra, 177 Cal.App.4th at pp. 314–318; 

compare Doe v. Regents, supra, 5 Cal.App.5th at p. 1072 [finding no 

fundamental vested right affected by college discipline of a student].) But he

does not contend that the trial court failed independently to review the 
19

administrative record, and he appears to overlook that the substantial 

evidence test applies to this court’s review of the judgment denying his 

mandate petition. (See Ogundare, supra, 214 Cal.App.4th at p. 828.) For 

their part, the Regents characterize virtually every claim of error as a factual 

dispute reviewable under the deferential substantial evidence test, but 

assume without explanation that it is University’s, rather than the trial 

court’s, factual findings we review for substantial evidence. We disagree with 

the Regents’ analytic approach, although ultimately, we find no basis for 

setting aside the administrative decision.

II. The University Did Not Violate Its Three-Year Rule

O’Brien contends the Chancellor’s disciplinary decision must be set

aside because charges filed against him by Vice Chancellor Hermalin in 

December 2019 were “time-barred” under the University’s rule establishing a 

time limitation for filing disciplinary charges arising out of an alleged 

violation of the Faculty Code of Conduct. Like the parties, we refer to this 

policy as the three-year rule. To resolve O’Brien’s claim, we address two 

distinct issues: the proper interpretation of the University’s rule, and 

whether the rule was violated in this case.4

A. The Proper Interpretation of The Three-Year Rule

O’Brien contends that the P&T Committee misconstrued the 

University’s three-year rule. The proper construction of this rule presents an 

issue of law, which we must resolve de novo. (Hoitt v. Department of 

4 The Regents contend this court lacks jurisdiction to hear this claim 

because O’Brien failed to exhaust his administrative remedies, but they

forfeited any exhaustion defense by failing to present it in the trial court. 

(Mission Housing Development Co. v. City & County of San Francisco (1997) 

59 Cal.App.4th 55, 67-68.) Their argument also lacks merit, as O’Brien made 

the same argument about the three-year rule to the P&T Committee. 
20

Rehabilitation (2012) 207 Cal.App.4th 513, 522 (Hoitt) [in mandate 

proceeding, interpretation of regulations is issue of law “for the courts to 

resolve de novo”]; see e.g., Akella, supra, 61 Cal.App.5th at p. 817.) 

The three-year rule is contained in two closely related regulatory 

provisions, Academic Senate Bylaw 336.B and the Faculty Code of Conduct’s

Part III.A.3. Bylaw 336.B requires that notice of a proposed disciplinary 

action be given to the respondent “no later than three years after the 

Chancellor is deemed to have known about the alleged violation,” provides 

that “[t]he Chancellor is deemed to know about an alleged violation . . . when 

it is reported to” a department chair or certain other individuals, and states

specifically that “[t]here is no time limit on the time within which a 

complainant may report an alleged violation.” The Faculty Code of Conduct’s 

implementation of this bylaw is contained in Part III.A.3, which stated in 

2012 that “[n]o disciplinary action may commence if more than three years 

have passed between the time when the Chancellor knew or should have 

known about the alleged violation of the Faculty Code of Conduct and the 

delivery of the notice of proposed disciplinary action.” 

“ ‘Generally, the rules that govern interpretation of statutes also govern 

interpretation of administrative regulations,’ ” as well as the interpretation of 

“policies promulgated by administrative bodies.” (Akella, supra, 61 

Cal.App.5th at p. 817.) “Further, policies established by the Regents 

according to their constitutionally derived rulemaking and policymaking 

power, like the Academic Personnel Manual, have the force and effect of 

statute.” (Ibid.) We give regulatory language its plain, commonsense 

meaning, and read the rule as a whole so that all of its parts are given effect. 

(Id. at p. 818; Hoitt, supra, 207 Cal.App.4th at p. 523.) 
21

The central interpretive question this case poses is, what does it mean 

that “the Chancellor knew or should have known about the alleged violation”

(Former Part III.A.3)? Relatedly, what does it mean for “an alleged violation”

to be reported to a “department chair” or other specified person (Bylaw 

336.B), especially in the context of a skeletal disclosure made by someone 

making a related complaint? O’Brien argues the information previously 

reported need only suffice to “put the Chancellor on notice of an alleged 

violation of the Faculty Code of Conduct,” at which point “the onus” is on the 

University “to investigate the alleged violation and bring charges” within 

three years. He cites no legal authority for this view, but the phrase “should 

have known,” which appears in Former Part III.A.3, is similar to the concept 

of inquiry notice used by courts to analyze whether the so-called discovery 

rule postpones accrual of a civil cause of action until the plaintiff discovers or 

has reason to discover the cause of action. (Rosas v. BASF Corp. (2015) 236 

Cal.App.4th 1378, 1390; see, e.g., Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 

1103, 1114 [when discovery rule applies, “limitations period begins when the 

plaintiff suspects, or should suspect, that she has been wronged”].)

We conclude that “the Chancellor knew or should have known” means 

something different in the context of the Faculty Code of Conduct. Because 

the Faculty Code of Conduct implements Bylaw 336.B, we think it important 

to construe these two provisions together, and we note the bylaw contains no 

language suggesting the three-year rule runs from the time the University, in 

the exercise of reasonable diligence, could or should have discovered an

alleged violation. Rather, Bylaw 336.B begins the three-year period when

“an alleged violation of the Faculty Code of Conduct . . . is reported to” one of 

several individuals whose knowledge of the report is then imputed to the 

Chancellor. That is, the bylaw makes the triggering event the receipt of a 
22

report of an alleged violation, not the receipt of information from which, with 

the exercise of reasonable diligence, the University could learn of the alleged 

violation. We think the proper interpretation of Former Part III.A.3 must be

the same: Once the Chancellor knows of an alleged violation, or “should have

known” of it because it was reported to one of her designees as enumerated in 

Bylaw 336.B, then notice of the proposed disciplinary action must be 

delivered within three years. This is both a plausible construction of the 

language of Former Part III.A.3, and the only construction that is consistent 

with the bylaw.

We note one other reason for rejecting O’Brien’s effort to import a 

standard of inquiry notice into Former Part III.A.3. In enforcing its Faculty 

Code of Conduct, the University is not analogous to a civil litigant who must 

seek legal redress for an injury it has suffered before the statute of 

limitations has run. The three-year rule dictates how promptly the 

University must act on reports it receives but, significantly, Bylaw 336.B 

states “[t]here is no limit on the time within which a complainant may report 

an alleged violation.” After receiving a complaint, the University normally 

has three years in which to deliver a notice of proposed disciplinary action, no 

matter how many years in the past the conduct is alleged to have occurred. 

(Bylaw 336.B.) The University’s role is neither that of a public prosecutor nor 

a private litigant, but of an educational institution committed to maintaining 

and preserving an environment conducive to higher learning. By limiting to 

three years the period in which the University must file a disciplinary

proceeding, the rule protects the interests of a person who reports misconduct 

and seeks its timely redress and, at the same time, the interests of one

accused of misconduct who wants that complaint to be resolved within a 
23

reasonable time. The three-year rule is a complaint-processing rule rather

than a statute of limitations.

Having established that the trigger for the three-year period is that “an 

alleged violation . . . is reported to” one of the Chancellor’s designees (Bylaw 

336.B), we must address what it means to report an alleged violation. How 

much, or what kind of, information must a report contain before the 

University is required to treat it as the report of “an alleged violation” 

sufficient to trigger the three-year rule? If a report conveying a mere hint of 

misconduct were construed as sufficient, the Regents would be in the 

untenable position of having to investigate every rumor that is brought to the 

University’s attention, regardless of its source. And a person injured by a 

faculty member’s misconduct but not yet prepared to report it to the 

University could later find her right to redress cut off by someone else’s

earlier, partial disclosure of some of the facts underlying her claim. On the 

other hand, an overly meticulous standard for what a report must contain 

risks frustrating the salutary purposes of the three-year rule—promoting 

movement toward resolution of a complaint within a defined period, for the 

benefit of both the complainant and the accused. 

We think a commonsense interpretation of the language of Bylaw 336.B 

avoids these problems. When a person lodges a written complaint alleging 

that he or she is the victim of a specified violation of the Faculty Code of 

Conduct (e.g., that a named professor sexually harassed the complainant by 

engaging in described conduct), we think the accusation has been leveled 

with sufficient particularity that it is an “alleged violation . . . reported to” 

the person who receives it. The same is true for a report that, although not 

accusing a faculty member of violating any particular University policy, 

relates facts that taken together and on their face violate the Faculty Code of 
24

Conduct. But where a report neither accuses a faculty member of violating a 

University policy nor sets forth facts that describe such a violation, it is less 

likely to set the three-year clock running. 

We acknowledge that reports of misconduct may come in many 

different forms, and for that reason decline to set forth a bright-line rule as to

when information coming to the attention of the Chancellor, or her designee,

constitutes a “report” triggering the three-year period. But we can identify 

several factors that may influence that determination: (1) the degree of 

formality of any report, including whether it is written or oral and whether it 

specifies a University policy alleged to have been violated; (2) the directness 

of the report, including whether a person allegedly injured by the conduct is 

reporting it to a person responsible for receiving complaints; and (3) the level 

of detail in the report, including whether misconduct is spelled out 

sufficiently to make a violation of the Faculty Code of Conduct apparent and 

whether names (e.g., of perpetrator and victim(s)) are provided. The question

to be answered, in light of these and other facts, is whether a report was 

made of the “alleged violation of the Faculty Code of Conduct” for which the 

Chancellor later proposes to discipline a faculty member. (Bylaw 336.B.) The 

question is not whether information that made its way to the Chancellor’s 

designee put the University on notice of misconduct that it could have 

discovered, if it had undertaken its own investigation.5

We glean from the P&T Committee’s preliminary findings that the

Committee construed the three-year rule in a similar fashion. They

5 We express no view on whether, or under what circumstances, the 

University might have other obligations to investigate incomplete 

information about faculty misconduct. We are construing the University’s 

three-year rule for processing reports alleging any kind of violation of the 

Faculty Code of Conduct, not the University’s obligations under, say, Title IX.
25

concluded, “[t]he information that was presented to the Chancellor or her 

representatives in 2014 was insufficient to constitute alleged sexual 

harassment and a consequent alleged violation of the Faculty Code of 

Conduct” and, as a result, the Chancellor could not be “deemed to have 

known of an ‘alleged violation’ to trigger the three-year rule.” 

The Committee did not further explain its thinking, and we are in any 

event not bound by the University’s interpretation of its own regulations, 

although that interpretation may warrant deference in certain

circumstances. (Manderson-Saleh v. Regents of University of California

(2021) 60 Cal.App.5th 674, 697.) The degree to which we defer to an agency’s 

interpretation of its own rules is “ ‘fundamentally situational.’ ” (Akella,

supra, 61 Cal.App.5th at p. 816.) Pertinent factors include whether the 

agency has a comparative interpretative advantage over the courts, and 

whether it arrived at the correct interpretation. (Ibid.) When an agency fails 

to demonstrate expertise or present developed legal analysis supportive of its 

interpretation of the procedure in question, that interpretation “does not 

‘merit[] any measure of presumptive deference.’ ” (Teacher v. California 

Western School of Law (2022) 77 Cal.App.5th 111, 130.) In this case, the P&T 

Committee offered no clear construction of the three-year rule, let alone a 

developed legal analysis in support of a construction. Therefore, we do not 

defer to the University’s interpretation of the Faculty Code of Conduct, 

although we do take comfort from the P&T Committee’s apparent agreement 

with our own interpretation.

Having resolved this preliminary issue of law, we turn to the parties’ 

factual dispute about whether the three-year rule was violated in this case. 
26

B. Disciplinary Charges Were Filed Within Three Years

O’Brien contends the P&T Committee’s finding that the University did 

not violate the three-year rule is “not supported by evidence in the record.” 

According to O’Brien, the record compels a contrary finding because “the 

anecdote regarding Jane Roe” was disclosed in F.B.’s exit survey, which was 

reported to OPHD in January 2014. The flaw in this argument is that 

O’Brien focuses on a fragment of F.B.’s disclosure describing O’Brien’s alleged 

behavior with Jane Roe rather than on F.B.’s actual complaint, which 

pertained to an allegedly toxic environment at U.C. Berkeley. O’Brien 

overlooks undisputed evidence in the administrative record that he was the 

subject of two distinct complaints, brought by two different complainants,

alleging violations of University policy. 

The first complainant, F.B., alleged that O’Brien created a hostile 

environment within F.B.’s research group at U.C. Berkeley. F.B.’s 

“anonymous” complaint was reported to the chair of O’Brien’s department 

and to OPHD in January 2014, and thus the Chancellor was deemed to know 

about it at that time. Undisputed evidence further shows that F.B.’s 

complaint was investigated informally, and more than three years passed

without any notice to O’Brien that disciplinary charges would be pursued. 

Thus, the three-year rule precludes the Regents from disciplining O’Brien 

based on F.B.’s complaint that O’Brien created a hostile environment within 

the U.C. Berkeley research group in (and before) 2014.

But a second person, Jane Roe, came forward to make a substantively 

different complaint about O’Brien in 2017. Roe was never a U.C. student,

and she was not complaining about the academic environment at U.C.

Berkeley. Her complaint was about O’Brien’s treatment of her during an 

international conference held in 2012. As the pertinent bylaw explicitly
27

states, there was no time limit as to when Roe could make her claim. The

record also clearly shows that the University initiated a formal disciplinary 

proceeding against O’Brien within the three-year period after receiving Roe’s

report. 

We recognize, of course, that although F.B.’s response to the exit survey

primarily complained about O’Brien damaging the learning environment in, 

and the reputation of, her research department, it also disclosed a few facts 

Jane Roe would later report. Specifically, F.B. disclosed that “in December 

2011, Prof. O’Brien strongly encouraged a female first year graduate student 

from MIT to go back to his hotel room with him late at night at a conference.” 

But F.B. misidentified the conference, omitted the name of the MIT student, 

and did not—in this single sentence—sufficiently describe a violation of the 

Faculty Code of Conduct for which the University later proposed to discipline 

O’Brien. 

In particular, F.B.’s report did not describe O’Brien as harassing and 

discriminating against a junior colleague. F.B. did not mention, for example, 

that the MIT student shared an academic sub-specialty with O’Brien and was 

seeking professional feedback from him on her conference presentation, so 

that she was acting in the role of an academic colleague. F.B. did not disclose

that O’Brien’s “strong[] encourage[ment]” was so unwelcome as to interfere 

with the MIT student’s working or learning environment, such that the 

conduct might be characterized as harassment or discrimination. And F.B.

did not mention any misconduct other than strong encouragement to return 

to O’Brien’s hotel room, such as the unwanted physical touching and

sexualized response to her request for academic feedback that Jane Roe later 

described. These omitted facts are ones Jane Roe might be expected to 

include in her own report, if and when she chose to complain to the 
28

University; but they were not reported in F.B.’s single-sentence “anecdote” 

illustrating how O’Brien was harming the reputation of the University’s 

research group. Indeed, F.B. disclosed none of the facts that so concerned 

Chancellor Christ when she eventually disciplined O’Brien for the “serious 

violation” of “[s]exualizing the Complainant in response to her request for 

feedback on her scholarly work” from a “colleague[].”

Considering the factors we have identified above, we conclude 

substantial evidence supports the trial court’s finding that the University’s 

disciplinary complaint against O’Brien was timely filed. F.B.’s complaint was 

quite formal in that it was in writing, but it was aimed at a different violation 

of University policy, namely the creation of a hostile and sexist learning 

environment in the University’s computer graphics research group. To the 

extent F.B.’s report addressed O’Brien’s conduct toward Jane Roe, it was 

informal in that it did not allege a violation of University policy, and indirect

in that Jane Roe did not make the report or request F.B. to report on her 

behalf. Also, F.B.’s complaint lacked an appropriate level of detail regarding 

O’Brien’s interaction with Jane Roe, omitting much of the information 

necessary to establish a prima facie violation of the Faculty Code of Conduct. 

Because F.B. did not report or allege a violation of the Faculty Code of 

Conduct with regard to Jane Roe, she did not start the three-year clock 

running as to the complaint Jane Roe made in 2017, and we accordingly 

affirm that the three-year rule was not violated in this case.

III. O’Brien Violated APM-015, Part II.D

Turning to the merits, O’Brien challenges the finding that he violated

the ethical principle incorporated into Faculty Code of Conduct Part II.D., 

which states: “As colleagues, professors have obligations that derive from 

common membership in the community of scholars. Professors do not 
29

discriminate against or harass colleagues. They respect and defend the free 

inquiry of associates. In the exchange of criticism and ideas professors show 

due respect for the opinions of others. Professors acknowledge academic 

debts and strive to be objective in their professional judgment of colleagues. 

Professors accept their share of faculty responsibilities for the governance of 

their institution.” 

O’Brien contends he did not violate Part II.D because (1) Jane Roe was 

not his colleague, and (2) any interaction he may have had at the SIGGRAPH

conference would not constitute actionable harassment or discrimination 

under this provision of the Faculty Code of Conduct. Again, we will address 

separately O’Brien’s arguments about what the Code means and his 

arguments about what the evidence shows.

A. The Meaning of “Colleagues”

O’Brien argues the Committee’s finding that Roe was O’Brien’s

colleague in 2012 subverts the language of Part II.D. He reasons that the 

dictionary defines a colleague as an associate or co-worker who is “often” of 

an equal rank, and posits that the term is clearly used in the Faculty Code to 

refer exclusively to other U.C. Berkeley professors.

The Faculty Code of Conduct does not define the term colleague, and 

we disagree that it necessarily refers only to individuals of the same rank, 

i.e., other professors, let alone professors from the same university. As the 

P&T Committee observed, the rule could easily have been limited to that 

discrete group if such was its intent, by stating that, as colleagues, professors 

do not discriminate against or harass other U.C. Berkeley professors, and 

that they defend the free inquiry of these other professors. Instead, the 

ethical principle in Part II.D is broadly worded in stating that professors do 

not discriminate against or harass “colleagues,” that they defend the free 
30

inquiry of “associates,” and they respect the opinions of “others.” These 

quoted terms certainly encompass other U.C. Berkeley professors, but the 

fact that other professors are colleagues does not mean that only professors 

are colleagues. We have no doubt that the community of scholars making

important contributions to the academic fields in which professors operate 

includes graduate students. That is precisely why graduate students are 

invited to present papers at international academic conferences.

O’Brien relies on the fact that the Faculty Code of Conduct sets forth

“Types of Unacceptable Conduct” that violate ethical principles pertaining to 

colleagues; he contends the examples given all involve mistreatment of 

another professor. As a factual matter, this may be incorrect. The fourth 

example of unacceptable conduct is “[b]reach of established rules governing 

confidentiality in personnel procedures.” (APM-15, Part II.D.4.) If this 

example is somehow limited to personnel procedures involving faculty 

members, that is not apparent from its text.6 But more fundamentally, 

O’Brien’s argument ignores the explicit design of this code, which designates 

enumerated types of unacceptable conduct as examples of conduct that 

“presumptively are subject to University discipline.” (See APM-015, Part II, 

p. 5.) The Code makes clear that “[o]ther types of serious misconduct,” 

although not “specifically enumerated,” may be the basis for disciplinary 

action if that conduct is not “justified” by the ethical principles and 

6 Perhaps recognizing as much, O’Brien inexplicably expands his 

definition of “colleagues” to encompass “other UC Berkeley faculty or 

personnel,” when commenting on this example in Part II.D.4, although he 

otherwise limits the reach of the rule to “ ‘professors,’ particularly professors 

at UC Berkeley” or, when discussing the history of APM-015, “faculty and 

university administrators.”
31

“significantly impairs the University’s central functions as set forth in the 

Preamble” to the Code. (Ibid.)

According to the Preamble, the central functions of the University are 

to “provide and sustain an environment conducive to sharing, extending, and 

critically examining knowledge and values, and to furthering the search for 

wisdom.” These worthy goals require that faculty members respect and 

defend fellow members of the community of scholars, without regard to 

whether those individuals are U.C. Berkeley professors, graduate students 

collaborating on University-sponsored research, or academics from other 

institutions presenting at international academic conferences. O’Brien does 

not suggest that any ethical principle in the Faculty Code of Conduct 

“justifie[s]”—or otherwise places beyond censure—discrimination or 

harassment if the victim is not affiliated with U.C. Berkeley. Nor could he 

plausibly maintain that professors must “acknowledge academic debts” only 

when they borrow from the work of other U.C. Berkeley professors. Surely 

attribution must be given, when due, to the work of academics from other 

institutions, and to U.C. Berkeley graduate students who assist in a 

professor’s research. By rejecting O’Brien’s construction of “colleagues” as 

limited to other U.C. Berkeley professors, the Committee construes its own 

rules in a manner that avoids impairing the central functions of the 

University. 

O’Brien also contends that the Committee’s interpretation of Part II.D 

is inconsistent with evidence of the “history” of the Faculty Code that was

filed in the writ proceeding in response to the trial court’s request for further 

briefing. The Regents object to us considering this regulatory history on the 

ground that it was not introduced into evidence at the administrative hearing

before the P&T Committee. The Regents ignore that this regulatory history 
32

evidence is part of the appellate record because they filed it in the writ 

proceeding, and that the trial court relied on it when ruling on the mandate 

petition. In any event, O’Brien cites nothing in this regulatory history that 

addresses the ethical principles he was found to have violated, or the specific 

definition of the word “colleagues” as used in the Faculty Code’s recitation of 

these principles. Thus, this evidence does not change our analysis or 

conclusion.

For all these reasons, we affirm the P&T Committee’s conclusion, 

adopted by the trial court, that the word “colleagues” in Part II.D does not 

apply exclusively to other U.C. Berkeley professors but may include, in an 

appropriate case, an MIT graduate student. Here, the Regents’

interpretation of their own rule merits at least a modicum of consideration in 

light of their comparative expertise on the role of graduate students in the 

community of scholars, and it is consistent with the language of, and furthers 

the policies underlying, the Faculty Code of Conduct.

B. The Meaning of “Discriminate” and “Harass”

O’Brien contends the finding he discriminated against or harassed Roe 

within the meaning of Part II.D must be set aside because it conflicts with 

the Committee’s finding that O’Brien did not violate the 2008 SVSH policy.7

O’Brien reasons that if his conduct at the SIGGRAPH conference did not 

constitute discrimination or harassment under the 2008 SVSH policy, it 

necessarily follows that the exact same conduct did not constitute 

discrimination or harassment under Part II.D. We disagree with this logic, 

which misreads the Committee’s findings. The Committee found that the 

7 Because the trial court affirmed and adopted the Committee’s 

findings of fact, we review those findings for substantial evidence. O’Brien’s 

argument here, however, is that the Committee erred as a matter of law by 

making internally inconsistent findings.
33

2008 SVSH policy did not apply in this case because the policy reached only

conduct that occurred in University programs and activities, or between 

members of the University community. Because the policy did not apply, the

Committee made no finding as to whether O’Brien’s conduct would otherwise 

meet the definitions of harassment and discrimination as those terms were 

used in the 2008 SVSH policy.

Making essentially the same argument a different way, O’Brien 

contends there is no evidence to support a finding that “harassment” and 

“discrimination” are defined in Part II.D more expansively than in the 2008 

SVSH policy. Again, the finding that the 2008 SVSH policy does not apply 

does not relate to the nature of O’Brien’s conduct, but to the facts that Jane 

Roe had no affiliation to the University, and the SIGGRAPH conference was 

not a University event. These undisputed facts are dispositive when 

considering whether O’Brien violated the 2008 SVSH policy because the 

policy expressly limited its application to “incidents between any members of 

the University community, including . . . non-student or non-employee 

participants in University programs . . .” No such restrictions appear in the 

language of Part II.D, as the Committee found. And we reject O’Brien’s effort 

to import such a restriction by reference to “the University’s central functions 

as set forth in the Preamble.” The University does not “sustain an 

environment conducive to sharing . . . knowledge and . . . furthering the 

search for wisdom” by countenancing its professors’ harassment of colleagues 

from other academic institutions. (APM-015, Part II, p.5.)

C. The Challenged Findings Are Supported by the Evidence

O’Brien contends the finding that Roe was his “academic colleague at 

the time the alleged conduct occurred is . . . untenable.” (Italics omitted.) 

The Committee did not find that Roe and O’Brien were academic colleagues 
34

of equal rank, but rather that Roe was a junior colleague of O’Brien’s when 

they participated in the 2012 SIGGRAPH conference. The Committee made 

extensive findings of fact that support this conclusion: The SIGGRAPH

conference was prestigious and a top academic gathering in the field of 

computer graphics; Roe made a presentation at the conference, which was 

considered “a milestone in the advancement of her career”; O’Brien 

specialized in the subfield that was the subject of Roe’s paper; O’Brien 

interacted with Roe at a social event associated with the conference “[i]n his 

role as a Berkeley professor”; and, during the interaction, professional 

matters were discussed. 

O’Brien does not attempt to show that any of these facts are 

unsupported by the record, but argues instead that a distinction should be 

drawn between a professor’s role at a conference and at a private club after 

the conference ends for the day. He points to no regulatory language drawing 

that distinction or limiting application of the ethical principles pertaining to 

treatment of colleagues to specific locations or times of day. To be sure, there 

may be cases in which a faculty member attending a professional conference 

during the day goes out at night and engages in conduct unrelated to his role 

as a faculty member. But O’Brien makes no such showing here, and he 

ignores evidence establishing a nexus between the SIGGRAPH conference 

and the incident at the bar in which he mistreated Roe. That evidence shows 

that the reason Roe and O’Brien were at the bar together was because they 

were attending a conference at which O’Brien was a prominent professor and 

Roe was his junior colleague. When that day’s session of the conference 

ended, O’Brien went out with a group of graduate students who were all 

attending the conference, and Roe was anxious to network with O’Brien and 

his students because making those connections could enable “the kind of 
35

collaborations that make a career in her chosen field,” as the P&T Committee 

found. And indeed, Roe and O’Brien discussed professional matters in the 

bar. 

O’Brien also contends in summary fashion that “mere non-collegial 

treatment of others” does not constitute harassment or discrimination under 

Part II.D or any other University policy. The P&T Committee found, and the 

trial court affirmed, that the following interactions occurred: When Roe 

requested “a professional evaluation of her presentation,” O’Brien “sexualized 

her, replying that he had not been paying attention to her words but instead 

had been imagining what was under her dress.” O’Brien also “insinuated” 

that Roe obtained the honor of first authorship on her paper by 

“manipulat[ing] the romantic or sexual interest of her co-author.” When Roe 

made additional requests for “feedback on her scholarly work,” O’Brien 

continued to sexualize the conversation and “persisted in his conduct” despite 

Roe’s efforts to deflect O’Brien’s “sexualized attention” and her “expressions 

of disinterest.” We understand that O’Brien continues to deny these 

interactions occurred, but he does not show that the Committee’s findings to 

the contrary are unsupported by evidence presented at the administrative 

hearing. These findings, in turn, support the conclusion ultimately reached 

by the Committee and the trial court that O’Brien harassed and/or 

discriminated against a junior colleague.

IV. The Disciplinary Proceeding Was Fair

O’Brien challenges the fairness of the University’s disciplinary 

procedure, presenting two distinct sets of arguments. O’Brien contends first 

that he was not provided legally sufficient notice that his conduct at the 

SIGGRAPH conference could potentially result in discipline by the 
36

University. O’Brien cites no authority supportive of this claim of error and 

his specific legal theory is not readily apparent.

“Notice of the charges sufficient to provide a reasonable opportunity to 

respond is basic to the constitutional right to due process and the common 

law right to a fair procedure.” (Rosenblit v. Superior Court (1991) 231 

Cal.App.3d 1434, 1445.) But O’Brien does not dispute here that he received 

notice of the disciplinary charges filed against him, including the charge that 

he violated Part II.D. If O’Brien is suggesting that Part II.D is too vague to 

satisfy due process standards of fairness, his point is not well-taken. In the 

context of statutes, due process requires sufficient clarity to provide a 

standard against which conduct can be uniformly judged. (Gutknecht v. City 

of Sausalito (1974) 43 Cal.App.3d 269, 273.) “ ‘It is not required that a 

statute, to be valid, have that degree of exactness which inheres in a 

mathematical theorem. It is not necessary that a statute furnish detailed 

plans and specifications of the acts or conduct prohibited.’ ” (Id. at p. 274.) 

Here, PART II.D articulates ethical principles relating to a faculty member’s 

treatment of a colleague, which are sufficiently clear to provide a standard 

against which conduct can be uniformly judged.

O’Brien does not seriously contend he was denied notice that 

harassment and discrimination of a colleague are impermissible under the 

Code. His real objection is that he did not realize he could be punished for 

engaging in such improper conduct while attending a conference that the

University did not sponsor. In this regard, O’Brien opines that the Faculty 

Code should specifically address whether conduct at conferences is subject to 

discipline. O’Brien is free to pursue the argument elsewhere, but it does not 

support his contention that the proceeding in this case was unfair due to lack 

of notice. As the P&T Committee observed, many provisions of the Faculty 
37

Code, including the provision O’Brien violated, do not contain limitations as 

to geographical location or exceptions for misconduct committed against a 

person who is not directly affiliated with the University. 

Finally, O’Brien intimates that the University lacked jurisdiction to 

discipline him for conduct that allegedly had no effect on the University or its 

reputation. In this regard, O’Brien disputes the Committee’s finding that 

O’Brien attended the conference as a U.C. Berkeley professor, but his 

rejoinder that he attended as a SIGGRAPH affiliate is beside the point. The

record shows that when O’Brien attended the conference, he was a prominent 

and influential U.C. Berkeley faculty member in the specific field of study 

that was the subject of the conference. O’Brien had been actively involved 

with SIGGRAPH for many years, had students from his lab presenting 

papers at the conference, and felt that, as a faculty member, it was important 

that he attend the conference. The misconduct that resulted in this 

disciplinary proceeding occurred at the conclusion of an evening during the

conference, which O’Brien spent with his students from U.C. Berkeley as well 

as a graduate student working in his same academic sub-specialty. This 

evidence shows that O’Brien interacted with Jane Roe as a U.C. Berkeley 

professor, whether or not he was also SIGGRAPH affiliated, and that his 

conduct during the interaction did reflect on the University, as the P&T 

Committee found. 

With his second set of arguments, O’Brien contends he was denied his 

right to a fair hearing. In presenting this argument, O’Brien relies on 

authority discussing the minimum standards for providing a fair hearing in a 

student disciplinary proceeding. (Citing Doe v. Allee (2019) 30 Cal.App.5th

1036.) The Regents contend that because this case involves discipline of a 

faculty member as opposed to a student, different standards of procedural 
38

fairness should apply, but they offer no reason for this view, nor do they 

articulate alternative standards. 

O’Brien contends specifically, that the University violated his fair 

hearing rights by appointing a single individual at OPHD to investigate Roe’s 

complaint and make findings of fact without conducting an evidentiary 

hearing. In some other context, such a procedure could raise fairness 

concerns. But here, the role of OPHD was simply to make a preliminary 

determination: whether probable cause existed to file a disciplinary 

proceeding against O’Brien. Tellingly, O’Brien does not dispute that once the 

University filed a disciplinary complaint, he was afforded a full evidentiary 

hearing before the P&T Committee, where he had the opportunity to present 

evidence and call and cross-examine witnesses. His appellate argument that 

the P&T Committee simply adopted the findings of the OPHD investigator is 

unfounded, as it is unsupported by any factual analysis and ignores the 

procedural record, which we have summarized above.

Acknowledging at least implicitly that he was afforded a full

administrative hearing before the P&T Committee, O’Brien argues that 

hearing was unfair because the University acted on behalf of Roe, and 

withheld evidence from O’Brien’s counsel until the hearing was underway. 

This argument is not developed to the point that O’Brien contends prejudicial 

error occurred. O’Brien also asserts the hearing was unfair because the 

Committee sustained relevancy objections to inquiries about Roe’s mental 

health, but he fails to show that any specific ruling by the Committee was 

erroneous, let alone prejudicial. 

V. The Sanction was not Excessive

Finally, O’Brien contends that a one-year suspension was “a

constitutionally excessive fine,” in that it caused him to forego $270,000 in 
39

salary and benefits. But O’Brien does not develop the constitutional 

argument, and the law on administrative fines is not in his favor. “The 

propriety of a sanction imposed by an administrative agency is a matter 

resting in the sound discretion of that agency, and that decision will not be 

overturned absent an abuse of discretion. [Citations.] ‘Neither a trial court 

nor an appellate court is free to substitute its discretion for that of an 

administrative agency concerning the degree of punishment imposed.’ 

[Citations.] This rule is based on the rationale that ‘the courts should pay 

great deference to the expertise of the administrative agency in determining 

the appropriate penalty to be imposed.’ ” (Hughes v. Board of Architectural 

Examiners (1998) 68 Cal.App.4th 685, 692.) “Moreover, ‘[i]t is only in the 

exceptional case, when it is shown that reasonable minds cannot differ on the 

propriety of the penalty, that an abuse of discretion is shown.’ ” (Doe v. 

Regents, supra, 5 Cal.App.5th at p. 1106.)

O’Brien fails to show that the sanction imposed was improper under 

these standards. He contends that Chancellor Christ based her decision on 

the mistaken belief that he had violated the 2008 SVSH policy, when the

record shows the Chancellor made no such mistake. He also contends that 

the Chancellor “negate[d]” the Committee’s recommendation to impose an 

alternative sanction, which is also unsupported by the record. As we have 

noted, the Committee recommended, and the Chancellor imposed, a one-year 

suspension instead of the three-year suspension sought by the University. 

Explaining why it believed the University’s proposal was too harsh, the 

Committee recognized that O’Brien’s “misconduct was serious, and he [had]

yet to acknowledge that it occurred,” but pointed out that several years had 

passed and no subsequent reports of misconduct had been made. By the 

same token, however, the Committee rejected O’Brien’s proposed sanction of 
40

an admonishment instead of suspension. Guided by the University’s 

Administration of Discipline policy (APM-016), the Committee found that a 

sanction with a “rationale” relevant to the charges would be a written 

censure and one-year suspension. 

To be sure, when the Committee forwarded its final report to the 

Chancellor, it not only confirmed its recommendation of a one-year 

suspension but also proposed—perhaps even encouraged—an alternative 

sanction of restricting O’Brien’s ability to work with graduate students rather 

than suspending his employment. But Chancellor Christ’s decision to impose 

the recommended one-year suspension and written censure instead of the 

proposed alternative did not negate the Committee’s recommendation, and it 

was not an abuse of the Chancellor’s discretion.

DISPOSITION

The judgment is affirmed. 

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

RODRÍGUEZ, J.

O’Brien v. The Regents of the University of California (A164481)
41

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Paul D. Herbert

Counsel: Hathaway Parker, Mark M. Hathaway and Jenna E. 

Parker for Plaintiff and Appellant

Munger, Tolles & Olson, Halyn J. Chen, April D. YoupeeRoll, Stephanie G. Herrera; and Katharine Essick for 

Defendant and Respondent