Opinion
A163128
02-02-2024
JOHN DOE, Petitioner and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG19042648
GOLDMAN, J.
John Doe, a soil chemistry professor at the University of California, Davis, challenges discipline the University imposed on him for violating its code of conduct and a policy prohibiting sexual violence and harassment. The discipline arose from a series of incidents between July and November of 2016 in which Doe kissed and intimately touched a graduate student in his department, Jane Roe. The University suspended Doe without pay for nine months and issued him a letter of censure after a faculty hearing panel found Doe liable for three violations: (1) he entered into a romantic or sexual relationship with Roe, a student over whom he had, or should reasonably have expected to have, academic responsibility; (2) he actually exercised academic responsibility over Roe during the relationship; and (3) for at least two of the incidents, he failed to obtain affirmative consent from Roe to engage in the kissing and touching.
For consistency, we adopt the pseudonyms used in the investigation report to refer to University students, faculty, and employees, except that we refer to "Jane Roe" and "John Doe."
Doe filed a petition seeking a writ of mandate to overturn the discipline pursuant to Code of Civil Procedure section 1094.5 (section 1094.5), which the trial court denied. He now argues that he was denied certain procedures mandated by University policy, as well as due process; that the policies pursuant to which he was disciplined were not in effect at the time of his conduct; and that the procedural errors cumulatively constitute structural error. He also contends that the record does not contain substantial evidence that he was in a romantic or sexual relationship with Roe, that he had or reasonably should have expected to have academic responsibility over her, or that he failed to obtain affirmative consent from Roe. Finally, Doe challenges the sanction imposed as excessive.
We find no error and affirm.
BACKGROUND
I. Roe's Doctoral Program at the University
Roe entered the University in 2014 as a Ph.D. student in the Soils and Biogeochemistry Graduate Group. Four professors-Faculty B, Faculty C, Faculty D, and Doe-were designated as her mentors upon her admission. Faculty C was Roe's major professor from 2014 or 2015 until 2017; Roe was a member of Faculty C's lab during that time. Doe's lab was next door to Faculty C's, and their offices were near each other.
Roe's primary area of interest was soil microbiology, but there is substantial overlap between the physical, biological, and chemical aspects of soil science. Roe also was interested in science communication, or the way in which scientific information is communicated to nonscientific audiences. That work was deemed "outreach," not formal scientific research.
Roe completed her graded coursework at the University by the Fall 2015 quarter. At that point she had begun a research project with Faculty C. In that research, Roe needed to use a piece of equipment in Doe's lab, the Fourier Transform Infrared Spectrometer or FTIR. As of July 2016, Roe was still learning to use the FTIR, and she continued to use it through at least August 2016.
II. The Encounters Between Doe and Roe
There were three sexual encounters that Doe and Roe agreed occurred between them. Doe described an additional encounter, but Roe disputed that it occurred.
First Incident.
On July 1, 2016, Doe invited members of his lab, Roe, and another student to happy hour. Later that evening, Roe and a member of Doe's lab invited Doe and others to join them for karaoke. Roe sang karaoke, and by the time she finished, everyone but Doe had left. Doe described a "weird" moment of eye contact with Roe and said that they mutually decided to leave and go for a walk. Roe remembered Doe asking her if she wanted to take a walk. They walked toward Doe's home, holding hands and talking. They stopped, hugged, and kissed. According to Doe, they discussed a mutual attraction and becoming "romantically involved." Doe's wife and family were not home; either Doe or Roe suggested they go to Doe's house to have sex. Doe ultimately decided not to.
The next day, a Saturday, Roe went to campus to work on research. Doe came into the lab where Roe was working. He remembered saying to Roe that what happened was a mistake and could not happen again, and that they should move past it. Roe, in Doe's recollection, did not say much. Roe recalled that while she was working in the lab, Doe came in "and basically said, nothing happened, . . . we thought better of it. We're adults....it doesn't have to be weird, I can still help you with the research." It seemed to her as if Doe perceived an intimate connection between them, whereas she perceived only a "shared interest connection" based on their overlapping academic and other interests.
Later that day, Doe sent Roe an email thanking her for fixing the FTIR and inviting Roe to ask him any questions she might have about it. In response, Roe asked Doe several technical questions about using the FTIR to analyze her soil samples. Doe responded with short answers and an invitation to meet to discuss her questions.
Second Incident.
Later that summer, in July or August, Doe decided he and Roe should talk. He texted Roe, suggesting they go on a walk. They met and walked for about a mile. According to Doe, they held hands and discussed what had happened between them and potentially meeting up regularly for walks. Doe did not want to be in a relationship with Roe, but he was "excited about the opportunity of something." Roe did not want to be intimate with Doe. They reached an amphitheater and leaned against its stone wall, where they engaged in kissing and touching. Roe recalled telling Doe various reasons they should not be involved. Doe kissed Roe on her breasts, under her clothing. Roe did not recall physically encouraging or affirmatively engaging with Doe. Afterward, they walked back to Roe's bicycle and went home.
Disputed Incident.
Roe and Doe agree that on September 7, 2016, they attended a party at Faculty C's house. Doe recalled that they agreed that Doe would walk Roe home after the party. According to Doe, they did not want to leave at the same time, so Roe left first. When Doe later left, Roe "joined [Doe] on the sidewalk." They walked together and were "holding hands and being very flirtatious and physical." As they approached Roe's house, according to Doe, Roe said her roommates were home so she "was going to have to blow [Doe] right there." They walked across the street to a darker area, where Roe performed oral sex on Doe. Three people rode by on bicycles and Roe commented that Doe and Roe had given them "a good show." Afterward, they said good night and Doe rode his bike home.
Roe recalled that two people at the party, including Trainee E, a Ph.D. student in Doe's lab, teased Roe that Doe was following her around. She recalled leaving the party and going home, but did not recall any interactions with Doe after leaving.
Final Incident.
On November 8, 2016, Doe and Roe were attending a professional conference. Roe met Doe in a bar with his colleagues. They were being flirtatious; at one point Doe put his hand on Roe's back and his colleague said," 'Hey, buddy, watch it, be careful.'" As everyone left, Doe and Roe hugged good night. Doe's "hands traveled down and" he "felt her bottom." Doe and Roe then crossed the street and went to a courtyard area. While Roe was waiting for her ride, they sat on a bench and Doe touched Roe's genitals. Roe said her ride was there and left quickly. Doe walked away.
Roe explained that Doe texted her to join him at the crowded bar with other professors; Roe thought it would be "a safe situation." Roe was staying with her boyfriend, another graduate student at the University. According to Roe, she left the bar because her ride was coming, and Doe followed her out. She described having "ended [up] again kind of like [in a] back-to-the-wall sort of situation. And [Doe] tried a few things again and then ultimately [her] ride came." Roe was "most upset" by this incident because there could have been people around with whom she might already or could in the future have a professional relationship. After November 2016, Doe made no further advances.
III. The Investigation
Roe had confided in Trainee E about some of her interactions with Doe. In 2019, Trainee E attempted to send an email to the listserv for Doe's lab accusing Doe of forcing himself on Roe and two other students. Doe forwarded the email to Advisor A, who notified University officials.
Initially no one took Trainee E's allegations seriously because she made them during a mental health crisis. But when Roe was discussing the email with Advisor A, she disclosed the three incidents of sexual contact with Doe. Advisor A reported her conversation with Roe to the University. The University assigned two investigators to conduct a formal Title IX investigation, including as to the physical contact between Doe and Roe and whether Doe had communicated with Roe in a way "that would tend to influence what she reported to the University and how she reported it." Doe was charged with three violations of the Faculty Code of Conduct, located in section 15 of the University's Academic Personnel Manual (APM-015), and one violation of the University's Sexual Violence and Sexual Harassment (SVSH) Policy.
Although Roe initially did not want to participate in the investigation, she eventually agreed to be interviewed. The investigators also interviewed Doe, Faculty B, Faculty C, Faculty D, Advisor A, and members of Doe's lab. Doe read a prepared statement at the beginning of his interview. The investigators reviewed emails, academic records, and other documentary evidence.
Doe was provided with a redacted draft investigation report before it was finalized. He submitted proposed revisions to its summary of his interview, some of which were adopted as changes in the final draft. Doe received the final report on November 14, 2019, along with a letter of proposed discipline from Philip Kass, Vice Provost of Academic Affairs. The matter then proceeded to a hearing before a panel of the Privilege and Tenure Committee of the Academic Senate (hearing panel).
IV. The Hearing and Sanctions
The hearing panel heard three days of testimony. The University and Doe provided evidentiary exhibits and witnesses who were subject to crossexamination.
The hearing panel found that Doe was in a romantic or sexual relationship with Roe; should reasonably have expected to exercise academic responsibility over Roe when he entered the relationship; and actually exercised academic responsibility over Roe while he was in the relationship. It also found that Doe intimately touched Roe without receiving affirmative consent to do so. The panel concluded that Doe violated APM-015 sections II.A.7, II.A.8, and II.A.3 (incorporating the SVSH policy) and recommended that he receive a nine-month suspension without pay and a letter of censure, explaining that it reduced the proposed penalty from one year to nine months because the University did not show that Doe violated APM-015 section II.A.5 by using his position or power to coerce Roe.
Doe submitted two requests for reconsideration of the hearing panel's determination. University Chancellor Gary S. May (Chancellor May) issued a Letter of Censure and Disciplinary Action to Doe. He rejected Doe's requests for reconsideration, agreed that Doe violated APM-015 sections II.A.3, II.A.7, and II.A.8, and affirmed the proposed discipline pursuant to APM-016, which governs disciplinary sanctions.
V. Trial Court Proceedings
Doe filed a petition for writ of mandate in the trial court, challenging the disciplinary process, findings, and sanctions. The trial court denied the petition.
DISCUSSION
Doe argues that the disciplinary proceedings were unfair and did not provide him due process, that the disciplinary findings were not supported by substantial evidence, and that the discipline was excessive. We disagree.
I. Standard of Review
"[S]ection 1094.5 . . . governs judicial review of adjudicatory decisions by administrative agencies." (Akella v. Regents of University of California (2021) 61 Cal.App.5th 801, 813 (Akella).) A court reviewing a section 1094.5 petition may consider "whether there was a fair trial, and 'whether there was any prejudicial abuse of discretion.' [Citation.] An abuse of discretion is established if the administrative agency has failed to proceed 'in the manner required by law, [or] the [agency's] . . . findings are not supported by the evidence.'" (Ibid.; see § 1094.5.)
" 'We review the fairness of the administrative proceeding de novo.'" (O'Brien v. Regents of University of California (2023) 92 Cal.App.5th 1099, 1115 (O'Brien).) Section 1094.5's" 'requirement of a" 'fair trial'" means that there must have been "a fair administrative hearing." '" (Ibid.)
Doe agrees with the University that we "review the factual basis behind the agency's . . . decision for 'substantial evidence in . . . light of the whole record.'" (Akella, 61 Cal.App.5th at pp. 813-814; but compare O'Brien, supra, 92 Cal.App.5th at p. 1116 [court of appeal reviews decision of trial court, rather than agency, for substantial evidence] with Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1483-1490 [even in actions involving a vested fundamental right, where the California Constitution authorizes the agency to exercise adjudicative powers, court of appeal reviews agency's decision for substantial evidence, rather than trial court's decision].) Because the parties agree that we should review the University's decision, and in any event the University and trial court came to the same conclusions, we consider" '" 'whether the [University]'s findings were based on substantial evidence.'"' [Citation.] This requires [us] to consider all relevant evidence in the administrative record and view that evidence in the light most favorable to the [University]'s findings, drawing all inferences in support of those findings....'Only if no reasonable person could reach the conclusion reached by the'" '" University will we overturn its decision. (Akella, at p. 814.)
II. Due Process and Other Procedural Challenges
Doe argues that he did not receive adequate process before discipline was imposed, and that the procedural inadequacies amount to structural error.
A. Status of Policies
Doe's first procedural argument is that the policies in place in 2016 were different from those pursuant to which he was disciplined. Although the applicable sections in APM-015 were renumbered between 2016 and 2017, sections II.A.7 and II.A.8 of the 2017 APM-015 do not differ in substance from their 2016 counterparts.
Chancellor May erroneously cited the inapplicable 2017 version of section II.A.3 as the basis for disciplining Doe's violation of the SVSH policy. The 2016 version of APM-015 did not specifically reference sexual violence and harassment as bases for discipline, while section II.A.3 of the 2017 version did. But the January 1, 2016 version of the SVSH policy- which indisputably controlled in 2016-specified that APM-015 and APM-016 applied to violations of its provisions. And general provisions in the version of APM-015 that applied in 2016 authorized the discipline imposed. The preface to that version 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." Part II, which outlines unacceptable faculty conduct, contains general provisions that prohibit "harassment" of students and restate that "[o]ther types of serious misconduct, not specifically enumerated herein, may nonetheless be the basis for disciplinary action." In O'Brien, the court affirmed discipline against a university professor for violating similar prefatory language in the University of California, Berkeley's version of APM-015. (Cf. O'Brien, supra, 92 Cal.App.5th at pp. 1123-1127.)
Doe testified that he had been trained on and given notice of the 2016 SVSH policy. He does not dispute that the policy was in place and governed his conduct at the time of his interactions with Roe. Before his encounters with Roe, he was therefore on notice of what conduct the SVSH policy prohibited and that APM-015 and APM-016 applied to prohibited conduct. Doe has not shown that the University lacked the authority to discipline him for violating the SVSH policy, that he lacked notice of what conduct was prohibited, or that he was prejudiced by any technical error in disciplining him for violating APM-015 section II.A.3.
B. Single Investigator Model
Doe contends that the disciplinary process used a "single investigator model," where "the investigator is the sole individual who investigates and makes findings of responsibility," citing Doe v. Allee (2019) 30 Cal.App.5th 1036 (Allee), disapproved on other grounds by Boermeester v. Carry (2023) 15 Cal.5th 72, 95-96. Here, Doe argues, it was "improper for investigators at [the University] to act in dual capacities as police, prosecutor, judge, and jury, charting the course and scope of the investigation." Allee does not support Doe's argument.
Allee involved alleged sexual misconduct by a student. (Allee, supra, 30 Cal.App.5th at p. 1039.) The university's procedures allowed a single Title IX investigator to meet with and interview the accused student and complainant, interview all relevant witnesses, and review the evidence provided by the parties. (Id. at p. 1041.) Once the investigation was complete, the same investigator prepared findings of fact and determined whether the accused student violated university policy. (Ibid.) Then, in consultation with the university's Title IX coordinator, the investigator determined the appropriate sanction. (Ibid.)
The procedure employed here is markedly different. The investigators conducted the initial investigation and wrote a report. Their report included findings of fact, credibility determinations, and conclusions regarding policy violations, but it merely served as a preliminary step in the disciplinary process. Following the preparation of the report, Vice Provost Kass issued a letter of proposed discipline, which led to a three-day evidentiary hearing prosecuted by a different University representative. The hearing panel- composed of otherwise-uninvolved faculty-considered the evidence and prepared findings and recommendations. Chancellor May then reviewed those findings and ultimately imposed discipline. This does not resemble the "single investigator model" criticized in Allee.
C. Interview Notes and Recordings
Doe next contends that he was denied adequate process because the investigators did not record their interviews and destroyed their notes afterward. He argues that Doe v. Regents of the University of California (2018) 28 Cal.App.5th 44 mandates that he be given the opportunity "to see the evidence against [hi]m." But that case is readily distinguishable. There, a university student alleged that another student had sexually assaulted her. (Id. at p. 47.) A report after the alleged assault indicated that the complainant had suffered injuries, but the relevant portions of the report were not provided to the accused student until after he was disciplined. (Ibid.) Instead, at the evidentiary hearing, the complainant provided the cover page for the report and a second page that indicated, in relevant part, that she had been taking a prescribed antidepressant and recommended that she "take [a] warm bath in Epsom salt to relax anal muscles to help sooth discomfort." (Id. at p. 52.) A detective then testified to a description of the student's injuries from the report, as referenced in an email, but stated she could not provide further information about the report due to the pending investigation. (Id. at pp. 52, 53.) The accused student was also prevented from presenting any evidence to rebut the allegations of injury from the missing report-specifically, that the complainant's prescription medication, in combination with alcohol, could cause hallucinations, sleep paralysis, and night terrors consistent with other witnesses' account of the complainant's condition on the night of the alleged assault. (Id. at pp. 51, 53.) As a result, the court concluded the accused student was denied access to "critical evidence" and the opportunity to present his defense in violation of due process. (Id. at pp. 57-61.)
Here, by contrast, Doe had access to the full investigation report on which the disciplinary charges were based well before the evidentiary hearing, and not only had the opportunity to present witnesses and other evidence in rebuttal at the hearing, but also proposed line-by-line revisions to the report's summary of his interview before it was finalized. Although Doe did not have the interview notes or a recording, he had legal representation throughout the disciplinary process, received all the University's hearing exhibits, and had time to prepare for the hearing. He sat through the entire hearing, and heard all the University's witnesses' testimony before he testified. He had ample opportunity at the hearing to present his side of the case, correct any inaccuracies in the report, and to cross-examine and rebut opposing witnesses' accounts of the events. He therefore had sufficient access to the material evidence against him and an opportunity to present his defense to that evidence.
D. Opportunity to Challenge the Investigation Report
Doe argues that he should have been given an opportunity to review and rebut the evidence against him during the initial investigative process and before the investigation report was finalized. He does not, however, identify any provision of the University's policies that create that procedural protection.
Doe points to the letter notifications he received, which stated that, during the investigation, he would have "the right to respond to any material contradictory or conflicting evidence provided by any witnesses or Roe." At the hearing, one of the investigators explained that Doe did have the opportunity to respond to the allegations against him, as described by the investigators. Aside from what Doe stated in his interview, he provided extensive input into the overall disciplinary process and had several opportunities to review the evidence against him and rebut it. These include reading a prepared statement at the beginning of his interview; responsive revisions to his interview summary in the draft report; his ability to observe and cross-examine University witnesses at the hearing; his presentation of defensive exhibits and witnesses; and his requests for reconsideration. We conclude that Doe had more than sufficient opportunity to provide input and present his case before discipline was imposed.
E. Other Procedural Arguments
Doe also challenges the fact that the investigation report, including the investigators' credibility determinations and conclusions, becomes evidence at the disciplinary hearing. But the investigation report serves as the basis for the charges at issue in the hearing; we find no impermissible unfairness in its admission. One of the investigators testified at the hearing and was subject to cross-examination. Doe had ample opportunity to undermine any undue reliance by the hearing panel on the investigation report. Indeed, the hearing panel declined to credit the report insofar as it concluded that Doe violated APM-015, section II.A.5.
Doe also suggests that it was inequitable for Chancellor May to make ultimate determinations based on a cold record; that Vice Provost Kass improperly interfered with the investigation; and that the hearing panel highlighted certain pieces of evidence just to establish substantial evidence, without finding each element by clear and convincing evidence. None of these arguments are persuasive, supported by authority or citation to adequate facts, or sufficiently articulated to establish that the extensive process Doe received was nonetheless inadequate. In light of the foregoing, we do not consider Doe's claim of structural error.
III. Substantial Evidence
Doe argues that substantial evidence does not support the findings that he violated APM-015 or the SVSH policy.
A. APM-015 Section II.A.7
Doe argues that he was not in a "romantic or sexual relationship" with Roe, and that he did not exercise academic responsibility over her when he entered the relationship, in violation of APM-015 section II.A.7.
1. Sexual or romantic relationship
APM-015 section II.A.7 defines "unacceptable conduct" to include "[e]ntering into a romantic or sexual relationship with any student for whom a faculty member has, or should reasonably expect to have in the future[fn], academic responsibility (instructional, evaluative, or supervisory). [Fn. omitted.]"
Doe argues that neither he nor Roe wanted to be in a relationship with the other; a romantic or sexual relationship cannot be based on non-consensual contact; and "[t]here is no evidence that a romantic or sexual relationship developed based on the four separate incidents of sexual intimacy that occurred over the four months from July 1, 2016 to November 8, 2016." Doe's last point, alone, identifies the substantial evidence necessary to support the conclusion that Doe and Roe were in a sexual relationship within the meaning of the policy: They engaged in multiple sexual encounters over a period of several months. APM-015 section II.A.7 is obviously intended to prohibit sexual intimacy, whether or not the participants would characterize their interactions as a "relationship." Further, as the University's policies acknowledge, non-consensual sexual contact can occur in the context of an existing relationship. The SVSH policy's definition of consent specifies that "[t]he existence of a dating relationship or past sexual relations between the persons involved should never by itself be assumed to be an indicator of consent (nor will subsequent sexual relations or dating relationship alone suffice as evidence of consent to prior conduct)."
2. Academic responsibility
Doe next argues that he did not have academic responsibility over Roe as of July 1, 2016. APM-015 section II.A.7 prohibits faculty from entering into a romantic or sexual relationship with a student over whom they have or should reasonably expect to have academic responsibility. A footnote explains that "[a] faculty member should reasonably expect to have . . . future academic responsibility (instructional, evaluative, or supervisory) for (1) students whose academic program will require them to enroll in a course taught by the faculty member, (2) students known to the faculty member to have an interest in an academic area within the faculty member's academic expertise, or (3) any student for whom a faculty member must have academic responsibility (instructional, evaluative, or supervisory) in the pursuit of a degree."
On appeal, Doe's definition of "academic responsibility" is far narrower than the policy definition, suggesting that it exists only when a student is in a graded course taught by the involved faculty member. But the policy specifies that a faculty member has or should reasonably expect to have academic responsibility over a student not only if "their academic program will require them to enroll in a course taught by the faculty member," but also if they have an overlapping area of academic interest or the faculty member will have instructional, evaluative, or supervisory responsibility over the student in their pursuit of a degree. And Doe acknowledged at the hearing that a graduate student's academic progress is not just about coursework, but also about teaching, research, publications, and professional competency. Doe's involvement in Roe's formal coursework was somewhat limited, but he was extensively involved in the other aspects of Roe's academic progress.
Coursework. Roe took Doe's soil chemistry course in 2015. She was a reader for Doe's class in spring 2017, and was enrolled in a participatory seminar in spring 2018 that Doe graded pass/fail.
Teaching. In fall 2016, Doe discussed with Roe her proposal to create science podcasts and to teach a related seminar. In early October 2016 Roe asked Doe to meet to discuss these projects. Doe approved Roe's request to teach the seminar and provided her a course number; they continued to discuss the seminar by email. As a reader for Doe's class in 2017, Roe also had the opportunity to teach the class.
Research and Publications. Roe's four faculty co-mentors, including Doe, met with Roe as a group multiple times before July 1, 2016 and until roughly February 2018. The group would meet if there was anything "big" to address, like progress on data collection for Roe's research.
Emails from 2015 through July 2016 showed that Doe ensured Roe was trained on the FTIR and that he was advising her about using the FTIR for her research paper. From late August to early October 2016, Doe and Roe continued to email about how to operate the FTIR and use it to accurately analyze Roe's soil samples.
Around September 2016, a member of the Natural Resources Conservation Service, or NRCS, asked Roe for an informal proposal related to her outreach work. Doe emailed Roe on October 29, 2016, suggesting they meet to discuss her outreach activities, including the NRCS proposal; they met in November 2016. In December 2016, NRCS asked Roe for a formal grant proposal. Doe assisted her and agreed to be the primary investigator on the grant. Between December 2016 and March 2017, Doe reviewed, edited, and provided feedback on the proposal and discussed it with Faculty C, Faculty D, and the NRCS representative. He coordinated with Faculty C regarding how to incorporate the proposal into Roe's dissertation. NRCS eventually awarded Roe a $200,000 grant. Once Roe received the grant, Doe signed over his role as primary investigator but remained involved in the project.
Roe was never a member of Doe's lab, but she attended some lab meetings and was included on lab emails. In 2017, Doe's lab performed a peer review of Roe's research paper. Faculty C brought Doe in on the paper because Roe was not getting her research done. Roe's relationship with Faculty C had deteriorated by that point because Roe was avoiding campus and not progressing on her research.
The peer review went poorly. After the review, Doe read and edited the written comments on the paper. Doe advised Roe how to approach the comments and continued to co-advise Roe regarding the paper.
Professional Competency.
Doe learned in summer 2016 that he would become chair of the graduate group, and he assumed the role as of October 1, 2016. As chair, Doe had a general advisory role, dealt with faculty-student issues, and could impact students' reputations, funding, and awards. In 2016 and 2017, Doe discussed Roe's inadequate research performance with Faculty C. Doe advised Roe regarding her struggles with Faculty C, whether to switch to a master's degree, and eventually regarding how to close out her work with Faculty C. In 2017, after Roe reaffirmed her desire to pursue a Ph.D., Doe helped her plan the path forward, move to a new lab, and complete her Ph.D. requirements.
In 2017 to early 2018, Doe advised Roe regarding her qualifying examination and dissertation, formal components of her Ph.D. Doe and Roe agreed that he should not participate in her qualifying examination or be on her dissertation committee. In late 2017, Roe sent Doe her qualifying examination proposal; Doe read the proposal and provided feedback. Doe and Roe met about her proposal and he gave her practice questions, which they reviewed together.
According to Faculty D, "[o]ne of [Roe's] dissertation chapters involved research directly related to what [Doe] does." Faculty D advised Roe that it would be hard for her to complete her Ph.D. work without Doe's expertise.
The record shows that, as of July 1, 2016, Doe had academic responsibility over Roe. He was actively supervising Roe's use of the FTIR, which she needed to complete the research paper she was working on with Faculty C; at the time, the paper was the core of her academic work in pursuit of her degree. In addition, Roe was using the FTIR to analyze soil chemistry, Doe's specific area of "academic expertise" within the meaning of APM-015's description of academic responsibility.
The record also indicates that Doe should reasonably have expected to have academic responsibility over Roe in the future. He knew in summer 2016 that he would be the new graduate group chair, with general supervisory responsibility over all students in the graduate group. Doe had already exercised academic responsibility over Roe-as her co-mentor, soil chemistry teacher, and supervisor regarding the FTIR. After July 1, 2016, Doe had academic responsibility over Roe with respect to the NRCS proposal and grant; Roe's outreach work and proposed science podcast seminar; Doe's lab's review of Roe's research paper and Doe's review and editing of the review comments; Doe's mentorship and guidance when Roe struggled to complete her research with Faculty C and needed to find a new major professor and recommit to completing her Ph.D.; Doe's assistance in preparing Roe for her qualifying examination; and their overlapping area of research interest-soil chemistry-that formed the basis of one chapter in Roe's dissertation. The breadth of Doe's past and eventual academic responsibility over Roe-particularly in light of his efforts to minimize his academic responsibility over Roe-is strong circumstantial evidence that, as of July 1, 2016, he should have reasonably expected to have such responsibility in the future. Doe's own expert conceded that Doe's conduct was a "technical violation of [APM-015]."
Substantial evidence supports the conclusion that Doe and Roe entered a sexual relationship, and that at the time of entry, Doe had, and in the future should reasonably have expected to have, academic responsibility over Roe, in violation of APM-015, section II.A.7.
B. APM-015 section II.A.8
APM-015, section II.A.8 prohibits faculty from "[e]xercising academic responsibility (instructional, evaluative, or supervisory) for any student with whom [they] ha[ve] a romantic or sexual relationship." As explained above, ample evidence supported the conclusion that Doe was in a sexual relationship with Roe between July 1 and November 8, 2016. Doe argues that he did not actually exercise academic responsibility in that timeframe. The record is replete with evidence that he did.
Between July 1 and November 8, 2016, Doe supervised and instructed Roe with respect to her analysis of soil samples on the FTIR for her research paper; discussed her outreach activities with her, including the possibility that she expand those activities to develop and teach a seminar on science podcasting; met with and advised her regarding the informal request from NRCS for Roe to submit a grant proposal; and was the chair of her graduate group. This is more than substantial evidence that Doe actually exercised academic responsibility over Roe while they were in a sexual relationship, in violation of APM-015 section II.A.8.
C. The SVSH Policy
Doe also challenges the University's conclusion that he violated the SVSH policy, which prohibits sexual violence and harassment.
"Prohibited Conduct" in the SVSH policy is defined to include "Sexual Assault - Contact: Without the consent of the Complainant, touching an intimate body part (genitals, anus, groin, breast, or buttocks) (i) unclothed or (ii) clothed." The SVSH policy defines consent, in relevant part, as "affirmative, conscious, voluntary, and revocable. Consent to sexual activity requires of both persons an affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person to ensure they have the affirmative consent of the other to engage in the sexual activity. Lack of protest, lack of resistance, or silence, do not alone constitute consent.... The existence of a dating relationship or past sexual relations between the persons involved should never by itself be assumed to be an indicator of consent (nor will subsequent sexual relations or dating relationship alone suffice as evidence of consent to prior conduct). ¶ The Respondent's belief that the Complainant consented shall not provide a valid excuse where: .... ¶ 2. The Respondent did not take reasonable steps . . . to ascertain whether the Complainant affirmatively consented."
"Sexual Harassment" includes "unwelcome sexual advances . . . and other unwelcome . . . physical conduct of a sexual nature when" it creates a hostile environment because the "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."
1. Hostile environment
Doe argues that his interactions with Roe did not create a hostile environment because after November 2016, "Doe and Roe had only constructive interactions, and maintained a positive professional, scholarly relationship." Doe testified that he helped Roe with many things, including the NRCS grant. He also helped her when she was struggling in Faculty C's lab. He pushed her to find a new major professor and refocus on getting a Ph.D. Doe now contends that the investigation and the circumstances that led to Trainee E's report were the only source of negativity for Roe. The evidence is to the contrary.
Roe and others testified regarding how the situation with Doe impacted Roe "greatly." Roe "started walking . . . around the building so that [she] didn't have to walk past [Doe's] office." She confided in another student that she was not comfortable about the situation, did not know what to do, and was confused. She had an intern doing the FTIR work so she did not have to run into Doe in the lab. She wanted to "be cool about it" and avoid provoking him to escalate things or to badmouth her to colleagues. As a result, she felt trapped. Not until December 2018 did Roe feel able to explain to Doe that their shared academic and intellectual interests did not mean she wanted Doe to touch her.
To avoid campus, Roe focused on outreach instead of research. Her focus came at the expense of her relationship with Faculty C. Eventually, Faculty C asked Roe to leave her lab entirely. Roe had to find a new professor, discontinue her research, and start collecting new data for a new research project. At the time of the hearing, Roe still did not like coming to Davis. Even accepting that Doe impacted Roe positively in some respects, the record contains substantial evidence of a hostile environment.
2. Affirmative consent
Doe leans heavily on the argument that all his interactions with Roe were consensual; in his view, consent became an issue only after the investigators interviewed Roe. But at the hearing, Roe explained that Doe's advances and conduct were "[a] hundred percent" unwelcome. She agreed that her understanding of affirmative consent evolved over the course of the investigation, but also agreed that Doe did not seek and she did not provide affirmative consent to engage in intimate contact with Doe, aside from during the first encounter. Although Roe did not perceive Doe as having forced himself on her, during the encounters she was "frozen" and "in defense mode." Roe was not interested in Doe romantically and did not want to be intimate with him. She avoided rejecting Doe forcefully because doing so could have negative ramifications for her professionally. But Roe's failure to reject Doe's advances forcefully does not mean she affirmatively consented to those advances.
The SVSH policy's definition of consent states explicitly that silence or a lack of resistance or protest does not constitute affirmative consent. The policy also explicitly does not allow Doe to rely on his belief that Roe consented where "he did not take reasonable steps" to confirm her consent. Based on this evidence, it was reasonable to find that Doe failed to obtain affirmative consent from Roe to kiss and touch her intimately.
IV. Suspension Without Pay
Doe argues in his opening brief that the loss of pay resulting from his nine-month suspension was unconstitutionally excessive. The University argues Doe forfeited this argument by failing to raise it in the trial court. Whether or not the claim was sufficiently raised in the trial court, we conclude that he has failed to raise the argument sufficiently in this court and has therefore forfeited it. (See Cal. Rules of Court, rule 8.204(a)(1)(B) &(C); Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1300 [issue forfeited where appellant failed to provide "reasoned legal analysis" in support of arguments].)
Doe does not develop his argument that the disciplinary sanction was excessive. (See O'Brien, supra, 92 Cal.App.5th at p. 1129.) Instead, he quotes several general pronouncements from the case law and omits any discussion of how the facts show the monetary value of the sanction was disproportionate to the gravity of his conduct. He does not discuss it further in his reply brief. We therefore decline to consider it.
DISPOSITION
The judgment is affirmed. The Regents are entitled to their costs on appeal.
We deny Doe's request for judicial notice as irrelevant to our resolution of this appeal.
WE CONCUR: BROWN, P. J. SMILEY, J. [*]
[*] Judge of the Superior Court of California, Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.