I was thinking of doing some work tonight to get a jump start on my week. Guess that ain't happening. What happened tonight is that fired assistant Cal Men's Basketball coach, Yann Hufnagel released more texts and a statement regarding his firing. His defense? Not exactly the same as the Nuremberg defense. Instead, mutual flirtation:
Lawyers for 33-year-old Yann Hufnagel say they have provided UC Berkeley with 900 text messages between him and the reporter showing what they call a "mutual flirtation" â including one in which she told him, "I clearly have to step up my stalking game."
"The university has wronged an innocent person, and it must correct its error," said Mary McNamara, an attorney for Hufnagel.
The university served Hufnagel with a "notice of intent" to fire him in March at the end of a seven-month investigation by its Office for the Prevention of Harassment and Discrimination. The action came just days before the Cal Bears played their first and, it turned out, only game in the NCAA tournament, losing to Hawaii.
Firstly, Hufnagel is younger than me, I feel so old. SO OLD!
Secondly, what does this mean? Let's return to the start. A Cal reporter (we will call her Complainant or C) filed a complaint with Cal about alleged sexual harassment by Hufnagel. Cal then took 4,000 years to do a report, but their report indicated that they found him in violation of the standard and Coach Martin then fired him. We dug into this further here:
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:
2. Sexual advances
3. That create a hostile environment
So, in looking at whether he was guilty, the investigators looked at whether the sexual advances were unwelcome. Based on the evidence they had they found him to be in violation partially due to texts showing his sexual advances to be unwelcome. Partially, he admitted that he tried to "trick her" (his words) into having sex with him.
Well, comes now this Hufnagel fellow and his team of lawyers/PR specialists to fight back. So, what did they release? Well, they say they have 900 texts back and forth that try to provide greater context to their conversations and attempt to show mutual flirtation.
In a series of texts from several days after the stalking comment, on Dec. 20, 2014, at 1:21 a.m., the Complainant asks Hufnagel if he is celebrating "at kip's or somewhere equally cool," and then later, after Hufnagel affirms that he's been to several other bars during his time in Berkeley, the Complainant says, "Okay because otherwise we were gonna have to do an emergency dive bar tour of Berkeley."
Hufnagel's legal team contends, "The evidence completely contradicts her claim that she was the unwilling recipient of sexual innuendo because the texts show she was actively engaged and most often the initiator of text message conversations."
In a conversation from January of 2015, just over a week before the incident inside Hufnagel's apartment garage -- where the Complainant alleged he cornered her and propositioned her for sex -- the Complainant asks, unprompted, what Hufnagel's favorite pace to eat in Berkeley is. "You realize that Berkeley has like the best food of anywhere right" the text reads.
Hufnagel responded, "Chez panisse upstairs." The Complainant responded that "[u]pstairs is for poor people." Hufnagel asked, "u an all downstairs girl then?" The Complainant responds, "Just kidding sorry I always forget my sense of humor may not translate and is potentially offensive," and then sends another text immediately afterward, saying, "I'm both [an upstairs and downstairs girl]."
Hufnagel responds that "upstairs is on me and downstairs is on you," to which the Complainant says, "Hahahahaaaaaaaa [...] That actually made me laugh out loud".
One day later, when relaying a conversation she had with a recruit, the reporter recalls the conversation about Chez Panisse, and tells Hufnagel that she told the recruit, "I was like yeah Yanni is the best, all the guys love him" and then she seems to suggest he take her to Chez Panisse: "Downstairs on you."
The conversation continues on with Hufnagel continuing to talk to the reporter about which recruits he will be seeing at a tournament. He then says, "Dinner on u at chez penise [sic] downstairs next week u seem like u got the juice to get a rez[.]" The Complainant responds, "Of course I can get a rez. Glad you like to abbrev. And that's hilar about it being on me. I'm among the impoverished street people upstairs [...] Unless someone is taking me and then downstairs is [OK emoji.]"
That language certainly goes to the issue of whether the sexual advances were welcome or not. It paints C as somebody who initiated, at the very least, friendly conversations over text. Presumably, Hufnagel released the text conversations that were the most favorable to him. There was nothing overly sexual in there, although the "downstairs" comments could have an innuendo. In writing over text, it can be difficult to determine tone and it is not clear to me whether C meant to have that innuendo.
C could argue that she was trying to "butter" Hufnagel up to get information out of him, although it is not clear to me whether that is the way that people get scoops out of coaches. If the point of "working" sources is to try to build a relationship with them so they feel comfortable giving you inside info, then any female reporter who tries to build that friendly relationship could create an incorrect assumption in the always male coach that a male report would not. Professional distance is an important factor here, also.
I have not seen all 900 of these texts. Nor has Human Fedora Ryan Gorcey. The ones he and the Chronicle did provide are all before the January, 2015 incident. There, C alleges that she was trying to meet him at a coffee shop after a game. Hufnagel said he was going to a bar and C met him there. There are disputed facts regarding how they got to his apartment. All parties admit that Hufnagel tried to convince/"trick" C into having sex with him once they got to his apartment. There are other details that the parties do not agree on (which car they were driving, whether Hufnagel had the sole means to open and close the gate to his garage).
I would like to see texts after that time period, because that incident seems like a clear indication that his sexual advances were unwelcome. Even Hufnagel would admit that. Further texts released in the Cal report show additional requests for sex (i.e a threesome with Hufnagel's friend) after that incident. Although the texts released today go to the potential unwelcome-ness of the sexual advances, they are all prior to the January incident. We will have to see what else is out there if slash when they release additional texts.
There is another aspect to this. Why did Hufnagel not provide these to the investigators? In theory, all of this information could have helped him save his job. Instead, he admitted key facts to the investigators and failed to provide what he claims is important and valuable evidence.
Ryan Gorcey, who disputes that he killed Jesus, had this to say:
Asked why Hufnagel did not bring to bear these text messages during the initial investigation by the University's Office for the Prevention of Harassment and Discrimination, Hufnagel's PR crisis manager, Sam Singer (not Cal's point guard) said that University investigators "only asked Yann Hufnagel about three [texts] that they had been provided from the complainant. They never asked him for any additional information."
"The investigators could not be more clear on this point: They explicitly requested any information or materials that Mr. Hufnagel felt were relevant or corroborated his account," University spokesman Dan Moguloff said in an e-mail to BearTerritory. "After initially providing about a dozen text messages, he did follow-up with two additional emails and attachments—that and no more---the week after his interview with an investigator. In other words, there was nothing preventing him from submitting anything that he believed to be relevant and helpful—quite the contrary, he was urged to ... I am also unclear how an investigator could ask about a text exchange that was withheld from the investigation."
I remember spokestud Moguloff in the tree-sitter sitch back in aught seven, so he's still going strong. I can tell you that if I was accused of what Hufnagel was accused of, I'd turn over everything and anything even remotely relevant. To me, it is either a sign of Hufnagel's arrogance or, alternatively, some sort of weird situation where the investigators somehow told him not to worry about it. He states that they never asked him for additional information, but that is different from affirmatively representing something like "Don't worry about providing more evidence, we have enough already to clear you." Unless they stated something akin to the latter, I do not see why Hufnagel failed to turn over all of this evidence.
I am not sufficiently well-versed in Cal bureaucracy to determine whether they can now "un-fire" Hufnagel after termination proceedings have begun. All of this may be irrelevant in trying to save his job (if that was even a possibility). It may be more for clearing his name or prepping for a lawsuit for sweet, sweet money. As a lawyer, I support lawsuits 100%.
Ryan Gorcey, who is always welcome to come to one of my Shabbat dinners, will certainly have more information for us soon. He has put in a request with Hufnagel and his team to get more information and we'll keep our ears to the ground to see what he digs up. My focus in all this is trying to analyze this information in the context of the three elements to see if it would change the eventual result. Some may look at the released texts and feel that it does show that the advances were welcome. Everybody is entitled to their opinion, of course, but I would like to see what texts exist after the January incident before I would make a further judgment here.
What are your thoughts????????? Tell us in the comments! Go Bears!