The opinion
Filed 10/19/20 AlSayyad v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
NEZAR ALSAYYAD,
Plaintiff and Appellant,
v.
THE SUPERIOR COURT OF A157389
ALAMEDA COUNTY,
Defendant and Respondent; (Alameda County
REGENTS OF THE UNIVERSITY Super. Ct. No. RG18922143)
OF CALIFORNIA et al.,
Real Parties in Interest and
Respondents.
Plaintiff Nezar AlSayyad filed a petition for writ of administrative
mandamus directed to real parties in interest, Regents of the University of
California and Chancellor of the University of California, Berkeley, seeking
to reduce the term of his suspension from employment at the university.
Pursuant to the university’s policy on faculty conduct and the administration
of discipline (University Policy), a subcommittee of the Academic Senate
Committee on Privilege and Tenure (P&T Committee) conducted a three-day
disciplinary hearing and found that AlSayyad had engaged in conduct
violating sections of the university’s code of conduct for faculty (Faculty Code
1
of Conduct) regarding sexual harassment of a student and unprofessional
conduct toward colleagues.
The University Policy provides that the P&T Committee may make
recommendations regarding proposed disciplinary sanctions but that the
chancellor retains the sole discretion to impose various types of discipline on
faculty members, including suspension and termination. Pursuant to that
University Policy, the P&T Committee recommended a one-year suspension
for AlSayyad, but Chancellor Carol Christ imposed a three-year suspension.
AlSayyad’s petition did not challenge the process of the P&T
Committee’s hearing, the findings made by the P&T Committee, or the
disciplinary procedures outlined in the University Policy. Instead, AlSayyad
argued that Chancellor Christ’s decision to impose a three-year suspension
violated principles of procedural fairness because it was based on her own
factual findings, which she made without personally observing the testimony
of witnesses to assess their demeanor and credibility. AlSayyad also argued
that Chancellor Christ’s role in the administrative process violated principles
of procedural fairness because she both brought the charges against
AlSayyad and made the final decision on those charges. Finally, AlSayyad
argued that the three-year suspension was an abuse of discretion because
Chancellor Christ did not sufficiently explain her decision and because the
penalty was excessive as a matter of law. The trial court denied the petition.
AlSayyad appeals. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
AlSayyad became a professor of architecture at the University of
California, Berkeley, in 1985. He became tenured in or around 1994. In
March 2016, a graduate student submitted a written complaint regarding
AlSayyad to the chair of the department of architecture. The complaint
2
alleged that AlSayyad had engaged in multiple incidents of sexual
harassment of the student, including touching her on the thigh in October
2013. It also alleged that AlSayyad told the student that he had fought
against other professors so the student would pass her May 2014 Ph.D. oral
qualifying exam. The complaint alleged that AlSayyad had criticized other
faculty members to the student as a way to isolate her and establish himself
as her supporter and protector.
A. Investigation
Shortly after the complaint was filed, the university retained a law firm
to investigate the complaint. The firm interviewed witnesses (including
AlSayyad and the student), reviewed documents, and issued a confidential
investigation report (CI Report) on October 5, 2016. The CI Report found
that AlSayyad had engaged in escalating personal behavior with the student,
including the physical touching of her thigh. It also found that AlSayyad’s
communication pattern with the student had caused her to feel intimidated,
isolated and reliant upon him. Specifically, it found that AlSayyad had
referred to other faculty members as “ ‘vultures’ ” in an email to the student
and had told the student that other faculty members were skeptical of her
scholarly abilities. The CI Report concluded that there was sufficient
evidence to refer the matter to Vice-Provost for the Faculty Benjamin
Hermalin.
In November 2016, pursuant to paragraph 3 of the disciplinary
procedures in the Faculty Code of Conduct, Vice-Provost Hermalin appointed
two faculty investigators to determine whether there was probable cause to
institute disciplinary proceedings against AlSayyad by filing a complaint
with the P&T Committee. The faculty investigation included an in-person
meeting with AlSayyad, a telephone interview with the student, and review
3
of the CI Report as well as additional documents. On March 15, 2017,
pursuant to paragraph 5 of the disciplinary procedures in the Faculty Code of
Conduct, the faculty investigators sent a letter to AlSayyad notifying him of
their intent to report that there was probable cause AlSayyad engaged in
faculty misconduct. The faculty investigators issued their report (FI Report)
on April 19, 2017, finding that AlSayyad’s touching of the student’s thigh in
October 2013 had occurred as the student alleged. The faculty investigators
also found that the incident could be interpreted as an attempt to transition
into a romantic or sexual relationship, and thus AlSayyad’s subsequent
criticisms of other faculty could constitute “ ‘grooming’ ” of the student. The
FI Report concluded that there was probable cause that these actions did
take place and that AlSayyad was in violation of the Faculty Code of
Conduct.
On May 3, 2017, pursuant to paragraph 7 of the disciplinary procedures
in the Faculty Code of Conduct, then-Interim Executive Vice-Chancellor and
Provost (EVCP) Carol Christ1 sent a letter to AlSayyad notifying him of her
intent to lodge a complaint with the P&T Committee and propose his
dismissal as the appropriate disciplinary sanction. The letter also advised
AlSayyad that he could request mediation prior to the submission of charges
to the P&T Committee. The letter was sent in accordance with university
policy requiring that the EVCP provide such notice to a faculty member
accused of misconduct.
B. Complaint
On June 8, 2017, Vice-Provost Hermalin filed a complaint against
AlSayyad with the P&T Committee. The complaint alleged four violations of
1 Christ became Chancellor of the University of California, Berkeley,
shortly thereafter.
4
the Faculty Code of Conduct: (1) sexual harassment of a student (charge 1);
(2) use of position or powers as a faculty member to coerce the judgment or
conscience of a student for arbitrary or personal reasons (charge 2);
(3) serious violation of the University of California Policy on Sexual Violence
and Sexual Harassment (charge 3); and (4) failure to show due respect for
opinions of colleagues and strive to be objective in the professional judgment
of colleagues (charge 4). The complaint recommended that AlSayyad be
dismissed from his employment at the university.
C. P&T Hearing and Report
In November 2017, pursuant to University of California Bylaws of the
Academic Senate, bylaw 336(D)(8), the P&T Committee conducted a three-
day disciplinary hearing to determine whether the four charges against
AlSayyad were supported by clear and convincing evidence. The parties
submitted 145 exhibits in total. Sixteen witnesses were examined, including
AlSayyad and the student. After the hearing, the P&T Committee issued a
report finding clear and convincing evidence to support charge 1, charge 3,
and charge 4. It did not find clear and convincing evidence to support
charge 2.
On charge 1, the P&T Committee found the claim that AlSayyad
touched the student’s thigh in October 2013 to be supported by clear and
convincing evidence and that the gesture created “ ‘an environment that a
reasonable person would find to be intimidating or offensive.’ ” (Boldface
omitted.) It also found that while some of the other incidents alleged by the
student were corroborated—for example, hugging the student before her May
2014 oral qualifying exam and referring to her as a “ ‘bright woman’ ”—and
“could be taken as chauvinistic and culturally insensitive,” the evidence did
5
not clearly and convincingly support the claim that these other incidents
involved sexual harassment.
On charge 2, the P&T Committee found that the evidence did not
clearly and convincingly support the claim that AlSayyad used his power to
coerce the judgment or conscience of the student for arbitrary or personal
reasons.
On charge 3, the P&T Committee referred to its findings on charge 1
and found clear and convincing evidence to support the claim that AlSayyad
“seriously” violated the University of California Policy on Sexual Violence
and Sexual Harassment by touching the student’s thigh in October 2013.
On charge 4, the P&T Committee found that clear and convincing
evidence of AlSayyad’s unprofessional conduct toward his colleagues in his
email to the student where he referred to two other professors as
“ ‘vultures.’ ”
In addition to factual findings, section III of the University Policy
provides that the P&T Committee may make “recommendations to the
Chancellor regarding proposed disciplinary sanctions.” In accordance with
this University Policy, the P&T Committee recommended that AlSayyad be
suspended for one year without pay, that a letter of censure be placed in his
personnel file, that he undergo sensitivity training, and that he engage in a
process of reconciliation with members of the architecture department.
After the P&T Committee issued its report, AlSayyad submitted a
response letter to Chancellor Christ on March 9, 2018.2 In this letter,
AlSayyad referred to his email describing his colleagues as “ ‘vultures’ ” as “a
mistake for which I apologize . . . .” (Boldface omitted.) The letter also stated
AlSayyad’s continued position that his touching of the student’s thigh in
2 The letter is erroneously dated March 9, 2017.
6
October 2013 “would not suffice to prove a case of sexual harassment.”
(Boldface omitted.)
D. Chancellor Decision
While the P&T Committee may make recommendations regarding
disciplinary sanctions, section II of the University Policy provides that the
chancellor retains the sole discretion to impose various types of discipline on
a faculty member, including suspension and termination. Paragraph 4 of
section II states: “Authority for the suspension of a faculty member rests
with the Chancellor and may not be redelegated.”
On August 13, 2018, Chancellor Christ sent a letter to AlSayyad with
her disciplinary decision. It stated that Chancellor Christ had “carefully
reviewed” the P&T Committee report; AlSayyad’s March 9, 2018 letter; and
“other documentation associated with the case, including exhibits, briefing by
the parties, and the lengthy transcript of the hearing.”
Chancellor Christ’s letter summarized the findings of the P&T
Committee on charges 1 through 4. Regarding charges 1 and 3, the letter
states: “[M]y comprehensive assessment of the P&T Committee’s report and
the evidence in this case leads me to conclude that these violations of [the
Faculty Code of Conduct] were quite serious, and that your intention about a
sexual or romantic relationship is not germane in determining whether there
was a pattern of sexual harassment.”
The letter then states: “Based on my review of the evidence, I also find
that your attempts to isolate the complainant from other faculty members,
mischaracterization of what occurred in her oral qualifying exam, and effort
to establish yourself as her most important supporter, [sic] were examples of
using your power for personal gain.”
7
The letter continues: “In considering the evidence in its totality,
including the findings and recommendations of the P&T Committee, with
which I generally concur, I find that your pattern of unwelcome,
manipulative and divisive behavior was harmful to students and other
faculty, and your continuing failure to accept responsibility for the impact of
your behavior is troubling. My significant experience as a tenured faculty
member and campus leader at the highest levels leads me to believe that a
more serious sanction than what the hearing panel recommends is required
in this matter. As a result, I am imposing the following discipline: a letter of
censure and a three-year suspension without pay . . . . Should you elect to
retire during the term of the three-year suspension, I will seek curtailment of
your emeritus status under the terms of the suspension for the duration of
the suspension.” AlSayyad retired from the university with a retroactive
date of July 31, 2018.
E. Petition for Writ of Administrative Mandate
On September 25, 2018, AlSayyad filed a petition for writ of
administrative mandate pursuant to Code of Civil Procedure section 1094.5
in the Superior Court of Alameda County. The petition sought, among other
things, a reduction in AlSayyad’s suspension from three years to one year.
AlSayyad’s petition did not challenge the process of the P&T
Committee’s hearing, the findings made by the P&T Committee, or the
disciplinary procedures outlined in the University Policy. Instead, AlSayyad
argued that a writ was appropriate for three reasons: (1) Chancellor Christ’s
decision to impose a three-year suspension violated principles of procedural
fairness because it was based on her own factual findings, which she made
without personally observing the testimony of witnesses to assess their
demeanor and credibility; (2) Chancellor Christ’s role in the administrative
8
process violated principles of procedural fairness because she both brought
the charges against AlSayyad and made the final decision on those charges;
and (3) the three-year suspension was an abuse of discretion because
Chancellor Christ did not sufficiently explain her decision and the penalty
was excessive as a matter of law.
F. Order Denying Petition
The trial court denied the petition, concluding that none of the three
grounds had merit. It explained that Chancellor Christ’s August 13, 2018
letter reflected that she reviewed the evidence and the P&T Committee’s
factual findings in reaching her decision. And while Chancellor Christ
considered the facts “in a different light,” her decision was still based on the
evidence and the P&T Committee’s factual findings. Chancellor Christ did
not reach conflicting findings of fact regarding any contested issue that
depended on the credibility of witnesses, “e.g., the incident in which
AlSayyad touched his student’s thigh.” Accordingly, Chancellor Christ did
not make any credibility determination without the benefit of live testimony
that denied AlSayyad a fair administrative proceeding.
The trial court also explained that there was no dispute that the choice
of AlSayyad’s discipline was left to Chancellor Christ’s discretion or that the
three-year suspension was within the parameters of the relevant regulations.
Accordingly, the trial court found that the three-year suspension was not an
abuse of discretion.
This appeal followed.
DISCUSSION
The role of an appellate court in reviewing a school disciplinary
decision on a petition for writ of administrative mandamus is the same as
that of the trial court. (Doe v. University of Southern California (2016) 246
9
Cal.App.4th 221, 239.) Our inquiry on such a petition extends to questions as
to whether there was a fair administrative proceeding and whether there was
any prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b); see
Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1730
[explaining that the “fair trial” requirement of Code Civ. Proc., § 1094.5,
subd. (b) is equivalent to a prescription that there be a fair administrative
proceeding].)
We review a question regarding the fairness of an administrative
proceeding de novo “ ‘because the ultimate determination of procedural
fairness amounts to a question of law.’ ” (Doe v. University of Southern
California, supra, 246 Cal.App.4th at p. 239, quoting Nasha v. City of Los
Angeles (2004) 125 Cal.App.4th 470, 482.) In the context of a school
disciplinary process, fairness does not compel a particular rigid procedure,
but instead may be satisfied by proceedings that afford the accused a full
opportunity to present his or her position and defenses. (Doe v. Regents of
University of California (2016) 5 Cal.App.5th 1055, 1103–1104.)
We also review a question regarding abuse of discretion in the
imposition of a particular penalty by an administrative body de novo.
(Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627.)
Abuse of discretion “is established if the respondent has not proceeded in the
manner required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.” (Code Civ. Proc.,
§ 1094.5, subd. (b).) Under this standard, we do not substitute our discretion
for that of the administrative body regarding the degree of the penalty
imposed. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46–47.)
“It is only in the exceptional case, when it is shown that reasonable minds
10
cannot differ on the propriety of the penalty, that an abuse of discretion is
shown.” (Id. at p. 47.)
In this appeal, AlSayyad makes the same three arguments as in the
trial court. First, AlSayyad argues that Chancellor Christ’s decision violated
principles of procedural fairness because she acted as a fact finder but did not
personally view the testimony and evaluate the credibility of the witnesses.
Second, AlSayyad argues that Chancellor Christ’s role in the administrative
process violated principles of procedural fairness because she both brought
the charges against AlSayyad and made the final decision on those charges.
Third, AlSayyad argues that the three-year suspension was a prejudicial
abuse of discretion because Chancellor Christ did not sufficiently explain her
decision and the penalty was excessive as a matter of law. We address each
argument in turn.
I. FAIRNESS AND CHANCELLOR AS FACT FINDER
AlSayyad first argues that Chancellor Christ’s decision to impose a
three-year suspension violated principles of procedural fairness because she
made findings of fact without having personally observed the testimony of
witnesses to assess their demeanor and determine their credibility. To
support his argument, AlSayyad relies on a series of cases involving student
disciplinary decisions for sexual misconduct at private and public
universities.
In Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055,
1058, 1063–1064, a student filed a petition for writ of administrative
mandate seeking to challenge his one-year suspension based on a finding that
he had engaged in nonconsensual sex with a female student from a
neighboring college. That finding had been made by a review committee
consisting of a third party investigator retained by the school and two
11
members of the faculty or staff. (Id. at pp. 1061–1063.) The school’s
grievance procedures did not require the female student to appear in front of
the committee and did not provide for any questioning of either student by
the committee or the parties themselves. (Id. at p. 1063.)
The appellate court concluded that these procedures deprived the
accused student of a fair hearing. (Doe v. Claremont McKenna College, supra,
25 Cal.App.5th at pp. 1065–1066.) It identified “a set of core principles
applicable to cases where the accused student faces a severe penalty and the
school’s determination turns on the complaining witness’s credibility.” (Id. at
p. 1070.) The appellate court articulated one such principle: “[T]he
complaining witness must be before the finder of fact either physically or
through videoconference or like technology to enable the finder of fact to
assess the complaining witness’s credibility in responding to its own
questions or those proposed by the accused student.” (Ibid.) While the school
contended that this principle did not apply because the case was not “ ‘a true
he-said-she-said credibility contest,’ ” the appellate court rejected the
argument. (Id. at p. 1071.) It reasoned that given there were no first-hand
witnesses, the committee’s finding of nonconsensual sex relied on the
complainant’s testimonial evidence and “certainly” turned on her credibility.
(Ibid.)
This principle was subsequently applied in Doe v. Allee (2019) 30
Cal.App.5th 1036, 1039 (Allee), where a student filed a petition for writ of
administrative mandate seeking to challenge his expulsion based on a finding
that he had engaged in nonconsensual sex with another student at the
University of Southern California. The university’s disciplinary procedures
did not provide for any hearing or opportunity for the accused student to
challenge the veracity of any witness against him. (Id. at p. 1057.)
12
The appellate court concluded that the accused student was denied a
fair hearing. (Allee, supra, 30 Cal.App.5th at p. 1069.) It reasoned: “ ‘ “A
decision relating to the misconduct of a student requires a factual
determination as to whether the conduct took place or not.” ’ ” (Id. at p.
1065.) In Allee, the investigator determined that the two students had
conflicting accounts of the incident that could not be reconciled. (Id. at p.
1053.) The appellate court concluded that in such circumstances where there
are competing narratives regarding an incident, “some form of in-person
questioning” is required to enable the fact finder to observe the witnesses’
demeanors. (Id. at p. 1066.)
AlSayyad argues, and real parties in interest explicitly assume for
purposes of this analysis, that the principle from Doe v. Claremont McKenna
College applies here. Applying this principle, AlSayyad argues that he was
entitled to have the fact finder assess the credibility of all the witnesses in
his case, “especially” the credibility of the student and himself. He argues
that Chancellor Christ violated this principle of fairness by making factual
findings without being able to personally assess witness credibility.
Accordingly, our determination of whether this fairness principle was
violated turns on the question of whether Chancellor Christ made any
findings of fact and, if so, whether those findings triggered a requirement
that Chancellor Christ personally observe the witnesses to determine their
demeanor and credibility.3
3 Real parties in interest argue that the trial court made a
“foundational factual finding[]” that Chancellor Christ did not act as a fact
finder and that the trial court’s finding should be reviewed for substantial
evidence. We do not find the argument persuasive. The trial court found
that Chancellor Christ did not “reach[] conflicting findings of fact regarding
any contested issue that depends on the credibility of witnesses.” We
conclude that this was not a foundational finding of fact but instead
13
AlSayyad points to four statements in Chancellor Christ’s August 13,
2018 letter as evidence that Chancellor Christ made her own findings of fact
that were contrary to the findings by the P&T Committee and required her to
make credibility determinations regarding the witnesses. We address each
argument in turn.
A. Intention Not Germane to Sexual Harassment
Chancellor Christ’s letter states, with regard to AlSayyad’s violations of
the Faculty Code of Conduct regarding sexual harassment, that the
Chancellor concluded the violations were “quite serious” and that AlSayyad’s
“intention about a sexual or romantic relationship is not germane in
determining whether there was a pattern of sexual harassment.” AlSayyad
argues that this statement suggests that Chancellor Christ made a factual
finding that AlSayyad engaged in a pattern of sexual harassment, contrary to
the P&T Committee’s finding that AlSayyad’s touching of the student’s thigh
in October 2013 was the only incident amounting to sexual harassment.
We disagree. As a preliminary matter, Chancellor Christ’s letter
explains that the P&T Committee “did not find [AlSayyad] to have engaged
in a pattern of sexual harassment” and that Chancellor Christ “generally
concur[red]” in the P&T Committee’s findings. Moreover, as AlSayyad
concedes, Chancellor Christ’s statement that AlSayyad’s intention was not
germane accurately summarizes the university’s standard for sexual
harassment. Section II, subsection B.2 of the University of California Policy
on Sexual Violence and Sexual Harassment defines sexual harassment as
answered the question of whether AlSayyad was denied a fair administrative
proceeding. (See Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434,
1443 [explaining that questions as to procedural fairness are “essentially
questions of law”].)
14
“unwelcome sexual advances,” regardless of the perpetrator’s intent to enter
into a sexual or romantic relationship.
Nor are we persuaded by AlSayyad’s argument that the inclusion of the
phrase “I also find” in the next sentence of the letter suggests that Chancellor
Christ made a finding that AlSayyad engaged in a pattern of sexual
harassment. As described above, Chancellor Christ’s statement of the
standard regarding a pattern of sexual harassment was immediately
preceded by her conclusion that AlSayyad’s violations were “quite
serious . . . .” Chancellor Christ’s letter does not support the logical leap
AlSayyad asks us to take: that this statement of the standard somehow
evidences a factual finding that AlSayyad engaged in a pattern of sexual
harassment. We conclude that this statement accurately reflected the
university’s standard regarding sexual harassment, and was not a factual
finding.
B. Pattern of Unwelcome, Manipulative and Divisive Behavior
Chancellor Christ’s letter states: “I find that your pattern of
unwelcome, manipulative and divisive behavior was harmful to students and
other faculty, and your continuing failure to accept responsibility for the
impact of your behavior is troubling.” AlSayyad argues that this statement
indicates that Chancellor Christ made a factual finding contrary to the P&T
Committee’s findings on sexual harassment.
Again, we disagree. Chancellor Christ stated that AlSayyad engaged in
a “pattern of unwelcome, manipulative and divisive behavior,” not that he
engaged in a pattern of sexual harassment. Chancellor Christ also described
a pattern of behavior that was harmful to both students and “other
faculty . . . .” Accordingly, the statement is more appropriately interpreted as
a characterization of AlSayyad’s behavior and the P&T Committee’s findings
15
regarding that behavior: that AlSayyad engaged in sexual harassment
against a student and engaged in unprofessional conduct toward his
colleagues. We conclude that this statement was a characterization of the
behavior as found by the P&T Committee, not a factual finding by Chancellor
Christ.
C. Mischaracterization of May 2014 Exam
Chancellor Christ’s letter states: “Based on my review of the evidence,
I also find that your attempts to isolate the complainant from other faculty
members, mischaracterization of what occurred in her oral qualifying exam,
and effort to establish yourself as her most important supporter, [sic] were
examples of using your power for personal gain.” AlSayyad argues that
Chancellor Christ’s statement shows that she made a factual finding that
AlSayyad mischaracterized what occurred in the student’s May 2014 oral
qualifying exam, contrary to the P&T Committee’s finding that the evidence
“does not clearly and convincingly show that Professor AlSayyad made false
comments to [the student] after the exam.”
At the P&T Committee hearing, the student testified that after her
May 2014 oral qualifying exam, AlSayyad told her that two professors
thought she should not have passed but that AlSayyad fought for her.
Another professor who also served as an examiner testified that the student
subsequently followed up on the issue, and that professor responded to her
that while the exam went well, one examiner thought that in some respects
her answers had only glossed the surface of an issue. AlSayyad then testified
that he told the student there had been a mixed reaction to her performance.
He also testified that it was standard for him to tell students “ ‘I will save
you’ ” as a way to explain how he can ask the type of questions during an oral
qualifying exam that allow students to show their knowledge.
16
Handwritten notes from the exam committee chair were also
introduced into evidence. The notes reflected that the first faculty member
had assessed the student as “glib” and that the student had done less well on
a particular section of the exam. The notes also reflected that the second
faculty member thought the student had gotten some things “wrong,” “mixed
up” terminology, and had some problems.
Based on this evidence, the P&T Committee concluded that while
AlSayyad’s comments “may have been indiscreet” and “seem to have upset”
the student, the comments appeared to align with the examiners’
assessments of the student’s performance. Because the P&T Committee
determined that the evidence did not “clearly and convincingly show” that
AlSayyad’s comments were false, it concluded that the evidence “does not
clearly support a charge that Professor AlSayyad used his powers to coerce
[the student’s] judgement [sic] for arbitrary or personal reasons.”
Chancellor Christ’s statement regarding AlSayyad’s
“mischaracterization of what occurred in her oral qualifying exam” does not
show that she rejected the P&T Committee’s factual finding that AlSayyad’s
comments appeared to align with the examiners’ assessments. Nor does it
show that she made a contrary factual finding that his comments as to their
assessments were false. Instead, the letter shows that Chancellor Christ
came to a different conclusion regarding how AlSayyad had characterized his
impact on the exam outcome to the student: that she had passed because he
had fought for her or saved her. Having reached that conclusion, she then
refers to that mischaracterization as one of the “examples of using your
power for personal gain.”
Accordingly, we conclude that this statement constituted a conclusion
regarding AlSayyad’s comments regarding his impact on the student’s exam,
17
not a factual finding by Chancellor Christ or a rejection of the P&T
Committee’s factual finding that his comments regarding the other
examiners’ assessments were accurate.
D. Power for Personal Gain
AlSayyad’s fourth argument relies on the same statement in Chancellor
Christ’s letter: “Based on my review of the evidence, I also find that your
attempts to isolate the complainant from other faculty members,
mischaracterization of what occurred in her oral qualifying exam, and effort
to establish yourself as her most important supporter, were examples of
using your power for personal gain.” AlSayyad argues that Chancellor Christ
made a factual finding that AlSayyad was “using [his] power for personal
gain,” contrary to the P&T Committee’s finding on charge 2: that “[t]he
evidence does not clearly and convincingly show that Professor AlSayyad
used his power as a faculty member, qualifying exam committee member, or
as chair of the graduate program, to coerce the judgment or conscience of [the
student] or other students for arbitrary or personal reasons.”
We disagree, as the statement is again more appropriately interpreted
as a conclusion regarding AlSayyad’s behavior. To the extent it refers to
AlSayyad’s attempt to isolate the student and establish himself as her most
important supporter, it reflects findings by the P&T Committee regarding
that behavior. For example, the P&T Committee found that AlSayyad had
sent the student an email describing “two vultures in the architecture
program who have target it [sic] you.” To the extent it refers to AlSayyad’s
mischaracterization of the student’s oral exam performance, Chancellor
Christ’s statement does not run afoul of fairness requirements for the reasons
discussed above. In total, the statement shows that Chancellor Christ
18
reached a different conclusion regarding AlSayyad’s use of power for personal
gain. But that conclusion, in and of itself, is not a factual finding.
In sum, Chancellor Christ’s statements did not constitute findings of
fact and did not require Chancellor Christ to personally assess witness
demeanor or credibility. We conclude that Chancellor Christ’s statements do
not support any violations of procedural fairness.
II. FAIRNESS AND CHANCELLOR AS CHARGER AND DECIDER
AlSayyad argues next that Chancellor Christ’s role in the
administrative process violated principles of procedural fairness because she
brought the charges against him and made the final decision on those
charges. As a preliminary matter, the argument fails because Chancellor
Christ did not bring the charges against AlSayyad. After the initial
investigation by an outside firm, the matter was referred to Vice-Provost
Hermalin, who then managed the faculty investigation. Pursuant to the
university’s disciplinary procedures, the faculty investigators sent AlSayyad
the March 15, 2017 letter notifying him of their intent to report a
determination of probable cause. As required by those same procedures,
Chancellor Christ then sent AlSayyad the May 3, 2017 letter. The letter
notified AlSayyad of her intent to lodge a complaint and propose his
dismissal as the appropriate sanction, based on the faculty investigators’
report and their recommendation that the P&T Committee have the ability to
recommend the maximum sanction of dismissal. The letter also advised
AlSayyad that he could request mediation prior to the submission of charges
to the P&T Committee. The content of the letter thus shows that Chancellor
Christ was involved as required by the university’s procedures to provide
notice to AlSayyad; it does not support AlSayyad’s proposition that she
played the role of charger in this process. Vice-Provost Hermalin, not
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Chancellor Christ, charged AlSayyad by filing the complaint with the P&T
Committee.4
Moreover, the circumstances in which courts have found a violation of
procedural unfairness on this basis provide a stark contrast to Chancellor
Christ’s role here. In Allee, for example, the appellate court determined that
the University of Southern California’s disciplinary procedures violated the
requirements of fundamental fairness because no in-person hearing was
required under those procedures; the Title IX investigator “interviews
witnesses, gathers other evidence, and prepares a written report in which the
investigator acts as prosecutor and tribunal, making factual findings,
deciding credibility, and imposing discipline.” (Allee, supra, 30 Cal.App.5th
at p. 1068.) The appellate court concluded that a single individual could not
serve as the fact finder in such circumstances, given the “overlapping and
conflicting capacities” as investigator, prosecutor, and sentencer. (Id. at p.
1069.) Unlike Allee, the university’s disciplinary process here included an
initial investigation by an outside firm, a faculty investigation, a disciplinary
hearing by the P&T Committee, and a decision by Chancellor Christ.
Evidence was independently reviewed at each of these stages. For these
reasons, we conclude that Chancellor Christ’s role in AlSayyad’s disciplinary
process does not support any violation of fundamental fairness.
III. PREJUDICIAL ABUSE OF DISCRETION
Finally, AlSayyad argues that the three-year suspension imposed by
Chancellor Christ constituted a prejudicial abuse of discretion for two
4 Real parties in interest argue that the trial court made a finding that
AlSayyad was charged by Vice-Provost Hermalin and that the trial court’s
finding should be reviewed for substantial evidence. We do not find the
argument persuasive as the fact appears to be contained in the background
section of the order and does not reflect any finding from the trial court.
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reasons: (1) Chancellor Christ did not sufficiently explain her decision; and
(2) the penalty was excessive as a matter of law. Neither argument is
persuasive.
As to the first argument, Chancellor Christ’s August 13, 2018 letter
contains a detailed explanation for her decision to impose a three-year
suspension. It states: “In considering the evidence in its totality, including
the findings and recommendations of the P&T Committee, with which I
generally concur, I find that your pattern of unwelcome, manipulative and
divisive behavior was harmful to students and other faculty, and your
continuing failure to accept responsibility for the impact of your behavior is
troubling. My significant experience as a tenured faculty member and
campus leader at the highest levels leads me to believe that a more serious
sanction than what the hearing panel recommends is required in this
matter.” AlSayyad offers no authority to support his argument that such an
explanation is insufficient. In Doe v. Regents of University of California,
supra, 5 Cal.App.5th at p. 1107, the appellate court determined that the dean
had sufficiently explained her decision to increase a student’s suspension for
sexual misconduct by informing the student that she had “ ‘reviewed the
Hearing Report, applicable statements submitted by both parties, your
student conduct record, and the University’s Sanctioning Guidelines . . . .’ ”
Here, Chancellor Christ’s letter makes clear that she not only reviewed the
relevant materials, but also contemplated the violations found by the P&T
Committee, the seriousness of the misconduct, the harm caused to the
students and faculty, and her experience as a faculty member and campus
leader. We conclude that Chancellor Christ sufficiently explained her
decision to impose a three-year suspension.
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As to the second argument, AlSayyad does not dispute that Chancellor
Christ had the discretion to depart from the P&T Committee’s
recommendation. He also does not dispute that the three-year suspension
was within the parameters of potential penalties. Instead, AlSayyad argues
that the penalty was “grossly excessive” because it was based on Chancellor
Christ’s unsupported factual finding that AlSayyad had engaged in a pattern
of sexual harassment. As described above, we reject AlSayyad’s argument
and conclude that Chancellor Christ made no such factual finding. Again,
Chancellor Christ’s letter makes clear that she decided to impose a three-year
suspension based on the “evidence in its totality, including the findings and
recommendations of the P&T Committee”; the “unwelcome, manipulative and
divisive behavior” that “was harmful to students and other faculty”; and her
“significant experience as a tenured faculty member and campus leader at
the highest levels . . . .” Her decision is not an exceptional case where
“reasonable minds cannot differ on the propriety of the penalty . . . .” (Deegan
v. City of Mountain View, supra, 72 Cal.App.4th at p. 47.) We conclude that
the three-year suspension was not a prejudicial abuse of discretion.5
DISPOSITION
The order is affirmed. Respondents are entitled to their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
5 Given our conclusion, we need not address real parties’ argument that
AlSayyad’s petition improperly sought the reduction of his suspension to one
year, instead of seeking to set aside the university’s decision and remand for
reconsideration.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Fujisaki, J.
A157389/AlSayyad v. Superior Court (Regents of U. of Cal.)
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