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Cal Basketball Fans, A Closer Look At The Yann Hufnagel Sexual Harassment Report

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There has been a lot of discussion here and I felt it important to really dig deep into the specifics of this report and investigation.

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Jamie Rhodes-USA TODAY Sports

This post stems from the recent firing of Cal men's basketball assistant coach Yann Hufnagel. To sum up, he was fired for sexually harassing a reporter on the MBB beat. She alleged that he consistently made sexual comments towards her over a six month period. Additionally, at one point she claims he attempted to convince her to sleep with him when he had her isolated in his parking garage. After she turned down his advances, she claims that he made it impossible for her to do her job and created a hostile work environment. This whole matter has been complex for people and I am hoping to provide some modicum of clarity here.

First, let's start at the start and work forwards. What has occurred here? A female reporter made a complaint with the Athletic Department and the Office for the Prevention of Harassment and Discrimination (OPHD). She did not file a lawsuit. She did not obtain a lawyer. She made a private complaint and then an investigation was done by OPHD. Once the investigation was complete, they prepared a report and provided it to the Athletics Department. Upon receipt, Cuonzo Martin, head coach of the team, immediately fired Hufnagel. Like within hours.

So, now that we've finished up starting at the start, let's start at the end and work backwards. What is the definition of sexual harassment? This is not a legal proceeding; it is a UC admin proceeding. So, the legal system is meaningless here. Instead, the Office for the Prevention of Harassment and Discrimination is our judge, jury, and executioner (well, Martin was technically the executioner). They are the finders of fact. This department is separate from Athletics and presumably had more power than Athletics in this instance. They were the ones who prepared the report, which you can read here. I have also embedded it at the bottom of the post.


So, once we know who is the fact finder, we have to figure out what their standard is. How do they (and they alone) define sexual harassment?

They have a PDF linked to their front page that defines sexual harassment.  It states:

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

i. Quid Pro Quo: a person's submission to such conduct is implicitly or explicitly made the basis for employment decisions, academic evaluation, grades or advancement, or other decisions affecting participation in a University program; or


ii. Hostile Environment: such conduct is sufficiently severe or pervasive that it unreasonably denies, adversely limits, or interferes with a person's participation in or benefit from the education, employment or other programs and services of the University and creates an environment that a reasonable person would find to be intimidating or offensive.

The OPHD report also provides the standard for the burden of proof:


Standard of Evidence: Preponderance of the Evidence

In evaluating allegations of sexual harassment and sexual violence, the "preponderance of the evidence" standard is used. Under this standard, individuals are presumed not to have engaged in the alleged conduct unless a "preponderance of the evidence" supports a finding that the conduct occurred. This "preponderance of the evidence" standard requires that the evidence supporting each finding be more convincing than the evidence offered in opposition to it. In other words, the alleged conduct must be "more likely than not."


What this means is that essentially the investigators were trying to determine if C's complaint was more likely than not accurate. That is a 51% burden of proof, which is a low standard.  This is different from the standard most people tend to use, which is clear and convincing evidence.  They want to be clearly convinced that the events occurred.  That is a much higher standard.  C did not necessarily have to be clear and convincing, but instead more convincing than Hufnagel.  As you will see, when Hufnagel admits key aspects to C's complaints, this burden seems easy to meet.

So, there are essentially three elements to sexual harassment:

1.  Unwelcome
2.  Sexual advances
3.  That create a hostile environment


So, let's take these in order.

UNWELCOME

The first one is unwelcome. This one seems very straight forward to me, but has created the most confusion. The complainant stated it was unwelcome. So, it is unwelcome.  She is the only one who can really determine whether it was welcome or not.  At one point in the report, Hufnagel stated that there were no comments from her stating that this behavior was bad and unwelcome.   There are few things that can perhaps provide clarity here.

Firstly, Hufnagel stated that he was attempting to "trick" C into having sex with him. The term "trick" implies that Hufnagel believed that C would not agree to have sex with him. That leads one to believe that Hufnagel did not think his sexual advances were welcome. This stems from an incident where C tried to meet Hufnagel at a coffee shop after a game. Hufnagel said he was going to a bar and she met him there. Drunk, he tried to get her to drive him home. C alleges that she did drive him home and that she felt scared when he essentially locked them in his parking garage and propositioned her for sex.  Hufnagel admitted much of this (although he claimed that they were in her car and that he did not have the sole ability to unlock the garage door). The fact that she turned him down is a pretty clear sign that his advances were unwelcome. This occurred in January, 2015 but the sexual advances continued for months afterwards.

There are also the matters of the text messages. Here are some messages where C tried to meet with Hufnagel in neutral locations (coffee shops, really) and Hufnagel kept steering the conversations elsewise:

Monday, February 23, 2015 - 11:58 a.m.
Complainant: "Hey[,] want to meet for coffee this week?"

Respondent: "No. Let's plan on Vegas during the pac-12 tournament at the mgm!"

Complainant: "I'm not going[.] Berkeley this week. You have time[?]"Monday,

February 23, 2015 - 3:01 p.m.Complainant: "Honestly[,] I would just really like to meet up with you and catch up ... Not in a bar or a casino. I know that's an insane thing to ask but do youthink we can manage it?"

Respondent: "I like the casino bar

There, she has the text at 3:01 PM where she seems deeply annoyed by requesting to meet at the MGM and just wants to meet at a neutral location.  That is not a happy text.  Let's look at another conversation almost a month later:

Thursday, March 19, 2015 - 8:08 p.m.
Complainant: "Since when are you two bffs [sic][?]"

Respondent: "That's just my dude."

Complainant: "Alright let's all have coffee[.] Also[,] [c]an you fill me in on what ishappening with

Respondent: "When the 3 of us are in the apartment, yah."

Complainant: "Waiting on him[,] [Respondent] no.Starbucks[.]"

Respondent: "Just let [ kno[w] when that [sic] gone [sic] be and I'll make sureI'm there. Nope."

Complainant: "Star[.] Bucks[.]"

Respondent: "Nope. After."

Complainant: "After?"

Respondent: "After we get done on the couch we can go downstairs, yah."

Complainant: "You have a coffee maker on your couch I'm assuming[?]"

Respondent: "Nope[.] I ain't [sic] got shit there[.]"

Complainant:

Respondent: "Besides a couch n [sic] a bed in my spot which is really all I need honestly[.]

Again, the "Star.Bucks." seems to be extremely unwelcoming of Hufnagel's attempts to score a threesome here.

In both of these instances, C is attempting to meet at a coffee shop and Hufnagel is either trying to get her to meet at a bar or have a threesome with his friend at his apartment. In the key event regarding their meeting at a bar, she actually tried to meet him at a coffee shop, but he said to go to a bar instead. He did drink, but she apparently did not. In his statement, he said that he saw her drinking tea and said that she was "lame" for it. Even when she went to a bar with him, she kept to non-alcoholic beverages.

So, it is unclear to me how Hufnagel can say that she did not tell him "no" or that he could not determine that his advances were unwanted. There have been some people who have done an extremely poor job of understanding consent in this matter. Consent to sexual advances is specific to those instances. Other interactions with other people have no bearing or relevance regarding whether or not C consented to Hufnagel's sexual advances. What a person wore or how a person responded to other people (especially players the same age as her) are wildly irrelevant to whether she welcomed sexual advances from Hufnagel.

I could write a whole piece about how people's reactions to the Hufnagel firing works into the larger issue of rape culture and the disturbing response I have seen from some corners of the Calosphere (and evne here at CGB), but I just want to stay focused on the elements here and the UC OPHD policy.


SEXUAL ADVANCES

I do not think that this is in any particular doubt, especially since Hufnagel admitted it. Let's move on.


HOSTILE WORK ENVIRONMENT

A hostile work environment can be hard for people to conceptualize sometimes. Let's look closely at our definitions. OPHD policy defines this as:

ii. Hostile Environment: such conduct is sufficiently severe or pervasive that it unreasonably denies, adversely limits, or interferes with a person's participation in or benefit from the education, employment or other programs and services of the University and creates an environment that a reasonable person would find to be intimidating or offensive.

The report states it slightly differently:

(3) objectively intimidating, hostile, or offensive

So, OPHD policy looks at pervasive conduct that interferes with the report's employment. It looks at creating an environment that a reasonable person would find to be intimidating. The report states that it the actions should be objectively offensive.

So, what do we have here? Well, we have the incident at the parking garage where C alleges that she felt intimidated and scared. A reasonable person would seemingly find this intimidating. We have text messages where he states that he would provide information after she had a threesome with him and his friend. This implies that if she acquiesces to his sexual demands he will provide her with information, but that if she does not, he will not. That is interfering with her employment.

Regarding objectively offensive, the report notes that Hufnagel said he would not have these types of conversations with Cal staff members. They interpret this to mean that the comments and actions were objectively offensive. I would agree there, because Hufnagel admitting he would not say these comments to others shows that he viewed them as offensive towards the rest of humanity. Just not towards C.

So, when we look through the three elements here, especially given the fairly low burden of proof, this seems like a slam dunk case. 1 of the elements (#2) is pretty clear. Hufnagel admitted #1 and #3 (even though he tried to deny he admitted it in other comments). I remain surprised that there has been so much consternation and confusion over it when the report lays it out very clearly. I am hopeful that with this post, people can have a stronger appreciation of the policies in place and how the facts of the case were applied here. Thanks and GO BEARS!

UC Berkeley Investigation Report - Yann Hufnagel by KQED News