8ep.l5. lOlB ll:3lAM PDAN SIEGEL, 564cc SIEGEL, YEE a snowman 475 14th Street, Suite 500 Saptember 25, 1 Oakland, California 94612 1 C. I: Telephone: (510) 639?1200 EH 3 '3 Telefax: (510) 4446693 . In? I By? - . CASE NUMBER: DanRISlegel@gmall.com 1 892 2 1 43 Attorneys for Petitionerand Plaintiff NEZAR ALSAYYAD, SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ALAMEDA NEZAR ALSAYYAD, Case No. Petitioner, VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE vs. . MANDAMUS (CCP ?1094.5) AND DAMAGES (CCP 1095) THE REGENTS OF THE UNIVERSITY OF CHANCELLOR, UNIVERSITY OF CALIFORNIA (BERKELEY), Respondents; Petitioner NEZAR ALSAYYAD, petitions this Court for a writ of mandate under Code of Civil Procedure ?1094.5, directed to respondents THE REGENTS OF THE UNIVERSITY OF CALIFORNIA and CHANCELLOR, UNIVERSITY OF CALIFORNIA (BERKELEY), and seeks damages incidental to the writ under Code of Civil Procedure 1095, and by this veri?ed petition alleges as follows: 1. Petitioner Nezar AlSayyad is an emeritus employee of The Regents, having served as a tenured faculty member at the University of California (Berkeley) until his retirement effective uly 31, 2018. Petitioner was subjected to a disciplinary proceeding siegel yee No.305? P. 5 FY 2018 Duty AlSayyud n, Regents of the University of California, Case No. Veri?ed Petition for Writ of Mandate 1 8ep.l5. lOlB ll:37AM cam-ticsiegel yee No.305? P. 6 culminating in an evidentiary hearing resulting in the decision that he should be suspended from his employment for a period of one year. However, the Chancellor of the University of California overruled that decision and suspended Professor AlSayyad for a period of three years. The Chancellor's decision was a ?nal decision on behalf of The Regents such that petitioner is bene?cially interested in and aggrieved by the decision of The Regents, as alleged below. I . 2. Respondent Chancellor, University of California (Berkeley) is authorized by . regulations adopted by respondent The Regents of the University of California, speci?cally Academic Personnel Manual (APM) 016, to authorize evidentiary hearings and to render ?nal decisions in appeals brought by tenured faculty members to contest proposed disciplinary actions against them. Respondent Chancellor instituted a hearing on petitioner AlSayyad's appeal, leading to a decision by the Privilege and Tenure Committee of the Berkeley Division of the Academic Senate on February 23, 2018, Exhibit A, that petitioner should be subjected to a one year suspension without pay. However, on August 13, 2018, respondent Chancellor overruled the decision of the Privilege and Tenure Committee and ordered that petitioner be suspended for three years without pay, Exhibit B. I I 3. Respondent Chancellor's decision, Exhibit B, is invalid Under Code of Civil Procedure 5 1094.5, for the following reasons: Respondent's decision is not supported by the ?ndings, as set forth below; and I There was a clear abuse of discretion by respondent in that the decision to suspend petitioner for three years is not supported by the ?ndings. The penalty is excessive as a matter of law in light of the ?ndings of the Privilege and Tenure Committee that petitioner's culpability was such that a penalty of suspension for one year was appropriate. I 4. The events leading to the hearing and the facts presented at the hearing before the Privilege 8: Tenure Committee include the following: AlSayyod v. Regents of the University of California, Case No. Veri?ed Petition for Writ of Mandate 2 Sandi. 20W siegel &yee .N0.305l P. 1 a) Professor Nezar AlSayyad was accused of violating the Faculty Code of 2 Conduct by engaging in sexual harassment against a former graduate student, Eva 3 Hagberg Fisher, on October 18, 2013, and at other times. 4 b) Speci?cally, the UC Administration accused Professor AlSayyad of placing 5 his hand on Ms. Fisher's thigh while they were in his automobile after having drinks at a 6 restaurant in Berkeley on October 18, 2013, and suggesting that she accompany him on 7 a trip to Las Vegas. The Administration also claimed that Professor AlSayyad "groomed" 8 Ms. Fisher for a romantic or sexual relationship with him by, among other things, 9 making her feel that other faculty members in the Architecture Department were 10 unsupportive of her work and making her overly dependent upon himself. 11 c) Professor AlSayyad denied the accusations against him and speci?cally . 1.2 denied that he touched Ms. Fisher inappropriately on October 18 or at any other time, . 13 that he ever invited her to accompany him to Las Vegas, or that he ever professed any 14 romantic or sexual feelings towards her. ?15 d) Professor AlSayyad testi?ed that he maintained an entirely supportive and 16 appropriate faculty?student mentor'relation with Ms. Fisher from fall 2010 through 17 spring 2014, just as he did with literally scores of other advisees over the course of his 18 30-year career at Berkeley. I 19 I e) Professor AlSayyad was a Distinguished Professor inthe Departments of 20 Architecture 8: City and Regional Planning. He was promoted to Step IX (the highest 21 step) in 2010 and was then classi?ed as "above scale." He has taught at Berkeley since 22 1985, and has also served as the Faculty Director for the Center for Arab Societies and 23 Environments Studies Chair of the Center for Middle Eastern Studies; Program Chair 24 for the International and Area Studies Graduate Program; Associate Dean for 25 International Programs of the College of Environmental Design; and President of the 26 International Association for the Study of Traditional Environments. He receiVed 27 Berkeley's highest honor, the Distinguished Teaching Award, in 2008., 28 AlSuyyad v. Regents of the University of California, Case No. Veri?ed Petition for Writ of Mandate 3 8ep.25. 20l8 ll:38AM Chm-busiegel yee . No.305? P. 8 During his career at Berkeley, Professor AlSayyad graduated more than 40 students for whom he served as advisor and dissertation chair. He developed and maintains close relationshipswith many of them, whom he frequently hosted for meals and drinks and with whom he often traveled to conferences and meetings in the U.S. and internationally. Many of his graduates discuss how he "groomed" them for success as students and academics. The following is a small sampling from the letters that were presented to the Committee at its hearing: Mark Gillem, Professor of Architecture and Landscape Architecture at The University of Oregon, has known Professor AlSayyad forever 20 years. Professor AlSayyad was his doctoral dissertation and major advisor, and they have worked and traveled extensively together in their work for the International Association for the Study of Traditional Environments (IASTE). Professor Gillem "never saw or heard of Professor AlSayyad acting improperly towards his students or colleagues." Professor Gillem also says that it was common for Professor AlSayyad to invite him and other-students for meals, drinks, coffee, and walks on campus. Cecilia Chu, Assistant Professor in the Architecture Faculty at The University of Hong Kong, was Professor AlSayyad's student from 2004 to 2012. She writes, "As a female student, I never experienced any . forms of harassment or inappropriate actions in my interactions with Nezar, nor did I know of any fellow graduate students who had any such experiences. In my opinion, he is an extremely generous and conscientious teacher and advisor who cares deeply about his students' wellbeing. II . Having seeri him working with many different students across a range of contexts, he has always made a strong impression on me with his efforts to do the best for his students and to consistently show them respect, collegiality and goodwill." AlSoyyod v. Regents of the University of California, Case No. __Veri?ed Petition for Writ of Mandate - 4 9 Sep.25. lOlB il:38AM siegel dyee No.305l Athena Hassiotis was Professor AlSayyad's student when she pursued her Masters in Architecture. She recalls frequemly ending their conversations with "a warm friendly hug." She never viewed their conversations or the hugs as having "any sexual overtones." . Heba Ahmed, Assistant Professor in Architecture 8: Urban History at Cairo University, was Professor AlSayyad's Masters and student and has known him for over 25 years. She was part of a cohort of ?ve women "proud to be known as I'Nezar's students,"' who still meet with him every two years for scholarly and social meetings. She says that he "takes care of his students as a gentleman" and "has NEVER attempted to do anything that made me or any other female student uncomfortable." Casondra Sobieralski, Professor AlSayyad's former assistant at the Center for Middle Eastern Studies, is "a Feminist with a Capital F. She worked closely with Professor AlSayyad, often after hours and behind closed doors. He always "treated me with the utmost dignity, respect, and equality. He never, ever did or said anything even remotely inappropriate or anything that made me feel AlSayyad is the only male supervisor I have ever had about whom I can say that unequivocally." g) Professor AlSayyad met Ms. Fisher, then age 31, when she first took a class from him in fall 2010. They developed a friendly, professional relationship and engaged in email correspondence for the next four years. The tone and content of that correspondence negate the conclusion that Professor AlSayyad was seeking any sort of romantic or sexual interaction with Ms. Fisher. Rather, their emails demonstrate Ms. Fisher's eagerness to interact with Professor AlSayyad and his cordial responses, which escalated somewhat in response to her reports of serious illness. 9/29/2o1o: Soon after her ?rst class in Architecture 231 with Professor AlSayyad: v. Regents of the University of California, Case No. Veri?ed Petition for Writ of Mandate 5 Sep.25. lOlB ll:38AM siegel llyee No.305l Emu-cameoMs. Fisher: "That was super kind of fun today. And so incredibly helpful!" 12 9/ 20 10 At the conclusion of Architecture 2811 Ms. Fisher: really loved. thank you for your dedication, awesome good humor, and encouragement! Professor AISayyad: "It was a pleasure having you in. class. You are a very bright woman and you will go places. I would love to work with you at the level, and I would be happy to have you as a GSR or (381 next year." I 2/ 14/ 2011 Although they have no classes or other academic activities, Ms. Fisher initiates a meeting with Professor AlSayyad: . Ms. Fisher: "I'm so glad you're around campus this semester - AN that you have of?ce hours! Can I come talk to you in the next few weeks? When are you free?" Professor Sayyad: "Yes of course, I can do Monday afternoons and Thursday mornings." I 4/11/2011: Professor AlSayyad: am delighted to inform you that you have been admitted to the Program in look forward to working with you. Congratulations. 11/ 16/ 2011 Ms. Fisher again initiates a meeting with Professor AlSayyad: Ms. Fisher: "would love to come catch up this semester has been epic and amazing in so many ways. what's your schedule like? Professor AlSayyad: 'Good to hear. I can do Monday and Tuesday afternoons but not this coming Tuesday." 3/3/2012: ALS?uyyud u. Regents of the University of California, Case No. [Veri?ed Petition for Writ of Mandate 6 Sep.25. 20W ll:38AM siegel Elyse No.3052 Professor AlSayyad: "Long time, no see. I hope you are doing well. I wanted to alert you to this job opening in case you are interested. (Job description attached.) 3 7/ 2012 - Ms. Fisher suggests meeting with Professor AlSayyad: Ms. Fisher: know! I keep missing you! Or you keep missing to see you soon. I'm the committee rep now (along with Eliana [Aha?Hamdi] so if not before, then there! Professor AlSayyad: . 4/ 3 2012 Ms. Fisher tells Professor AlSayyad that she is leaving the program: Ms. Fisher: "wanted to let you know, in the meantime, as i wanted you to hear this from me (i would haVe much rather told you in person but it appears word is spreading likelwild?re so i wanted to at least catch you over email), that i've decided to leave the program and pursue my writing career." Professor AlSayyad: am really sorry to hear this news but I truly understand. I would love to take you out for coffee or drinks before the end of this semester to wish you goo[d] luck on your future endeavors." Ms. Fisher: "I'm so glad you me know how your schedule is." Professor Al-Sayyad: "Sure, my good days are Tuesday and Wednesday at 5, drinks in the faculty club bar ok?" 4/7/2012 Ms. Fisher gives Professor 'AlSayyad the "good news" . that she has changed her mind about leaving the program. Ms. Fisher: "Well - I hope this comes as good news: come to the that I DO NOT Want to leaVe." Professor AlSayyad: am glad. Let's talk more on Wednesday." AlSuyyod v. Regents of the University of California, Case No. Veri?ed Petition for Writ of Mandate 7 @m?c?hm-h-Sep.l5. lOlB Wig/W siegel Elyse No.305l - 4/11/2012 Ms. Fisher suggests that it would be "fun" to get together with Professor AlSayyad and Ms. Abu?Hamdi: Ms. Fisher: "looking forward to talking more tomorrow. thought it might be fun to invite eliana along. what do you think?" . Professor AlSayyad: "Whatever you like but I want to consul[t] you on your topic ?rst and she can join us at 5:30 to talk about the other stu I 8 27/ 20 12 Ms. Fisher initiates another get together with Professor AlSayyad and Ms. Abu?Hamdi: Ms. Fisher: "Dear Nezar and Eliana, Let's schedule ourselves for a get-together, what say you? How about next Wednesday, the 5th?" Professor AlSayyad: can do that, how about drinks 5 PM Faculty Club Bar." 8/ 30/ 2012 When Ms. Fisher decided to leave Architecture and begin an interdisciplinary program, she asked Professor AlSayyad to continue to advise her and to provide her with a workspace in his department, contrary to her later complaint suggesting that she created I the interdisciplinary program to get away from Professor AlSayyad: Ms. Fisher: "I'm really glad you're willing to be a part of it. I think it's going to be REALLY FUN. (And serious and disciplinary and all that, of course)" I Professor AlSayyad: Remember that you have to package this as neither art history nor architecture history." 10 29/ 2012 Discussing the Draper Fund Lecture Series, Ms. Fisher and Ms. Abu?Hamdi initiate conversations about their problems with a faculty member: Ms. Abu?I?Iamdi: "The meeting with him [Professor Tom Buresh] specifically was uncomfortable. He treated us with disdain and I would say AlSuyyud-v. Regents of the University of California, Case No. Verified Petition for Writ of Mandate 8 819225. lOlB Wig/W siege! &yee . . No.30was even rude at times. Just full of attitude without provocation. I don't upset that easily, and I was upset. Really uncalled for." I Ms. Fisher: i'I'm a reporter and 'can't lie, and he was truly awful especially to Eliana. Dismissive, hostile, mean." I Professor AlSayyad: "How unfortunate." 12/5/2012 Ms. Fisher thanks Professor hlSayyad for supporting her efforts to create an interdisciplinary program: Ms. Fisher: "It's of?cial! I'm approved [for the interdisciplinary program]! We will celebrate this afternoon. Thank you again for all your support! So glad I don't have to leave berkeley!" Professor AlSayyad: "Yes, I have been informed, and-it was a done deal. Congrats. Don't announce it yet to the department." Professor AlSayyad: "Ok, but don't give up your student rep position yet until you and Eliana discuss it with me." . Ms. Fisher: Until Margaret [Crawford] boots me out herself for being undemocratic.- 1/7/2013 Ms. Fisher initiates meeting with Professor'AlSayyad: Ms. Fisher: Happy New Year! you around to talk the epic reading list? I've got nothing buttime and ?exibility, so whatever and whenever works for you." 3/ 3 2013 'Ms. Fisher tells Professor AlSayyad that she has "a mass in my brain" and says she wants to'see him: Ms. Fisher: have sOme medium news I was jost released from the hospital have a mass in my brain..?.I experienced either a hemorrhage or a viral/ bacterial/ fungal Hope you are doing Well! And to see you soon, once I can walk farther than a block." Professor AlSayyad: "This is not medium news and I am very sorry to hear it. But you being you, you have to present it as 'medium?. Please let . - AlSoyynd v. Regents of the University of California, Case No. LVeri?ed Petition for Writ of Mandate Sep.25. IOIB Wig/W siegei dyee No.305l P. 1 me know if I can do anything in the interim. I am con?dent you will be 2 well. 3 4/ 19/2013 Ms. Fisher asks Professor AlSayyad if he would hire '4 her as a part?time GSR in spring 2014 so that she can maintain her 5 enrollment and health insurance. 6 I 5/ 13/2013 Ms: Fisher invites Professor AlSayyad to visit her at 7 her home, the ?rst time such a visit is discussed: 8 Ms. Fisher: "I'm having a brainnthemed gathering in anticipation of 9 Tuesday's brain surgery, tomorrow, from 2?5 in Willard then I 10 towards evening at my spent all day making jello in the shape of 11 brains, Of course this is incredibly late notice but if you're looking for I 12 something to do, would love to see you! Also my philosophy professor 13 mother will be there, very exciting." 14 5/23/2013 Professor AlSayyad responds that he would like to 15 visit Ms. Fisher, and she responds that she would "love 16 Professor AlSayyad: "[Your message] went to my will 17 eagerly await good mm, and you will be in my thoughts until you recover. 13 I You are a wonderful woman and a good friend, and I would be very glad to 19 do anything to help out when I get back." 20 Ms. Fisher: am out of the hospital as of yesterday, the surgery 21 - went very you so much for all your friendship and support!" 22 - Professor AlSayyad: am so glad, I will be back in toWn for two 23 days on May 29th and 30th, any chance I can come and visit you." 24 I - Ms. Fisher: "Yes I would love that! get in touch when you 25 know you'll be free I'm at [phone number]." I 26 6/ 3/ 2013: 27 I Ms Fisher: "It was SO NICE to see you last Thank you so 28 much for taking the feeling more like myself every day, mostly." AlSayyed v. Regents of the University of California, Case No. __Veri?ed Petition for Writ of Mandate 10 3-15 26 27 28 coon-amen: Sep.25. lOlB siegel Elyse. No.305l Professor AlSayyad (writing from Kuwait): am so glad to hear that, and it my real pleasure seeing you. You will get well soon, I am sure of it. Stay in touch.'.' 9 13 2013 Professor AlSayyad for the first time suggests getting . together for "a drink, coffee, or a meal," and Ms. Fisher indicates that the end of the week would be "great." . Professor AlSayyad: "How are you. I heard you have to do surgery again soon. Can I see you soon, perhaps for a drink, coffee, or a meal?" Ms. Fisher: should be around next week to get together - towards the end of the week would he so much for checking in." I 9 26 2013 Professor AlSayyad follow us up on the meal proposal, and Ms. Fisher accepts and suggests that he pick her up: Ms. Fisher: "Hi friends! I'm so excited that Amazon's Kindle Singles platform just published my piece 'It's All in Your Head.? They called it 'a haunting and beautiful memoir. Highly recommended.? I call it 'The Thing I Did While Getting MRI's and'Brain Surgery and Trying Not to Die."' Professor AlSayyad: "Can I take you out for dinner sometime next week? How about Friday?" . Ms. Fisher: "Friday Oct 4th? Works for me! Professor AlSayyad: "Any special cuisine or needs?" Ms. Fisher: "Nope. I eat everything. Oh but I don't drive, so either somewhere close or bus-able or if you're driving you could pick me up?" Professor AlSayyad: would be happy to pick you up and we can do somewhere close or even the City if you want to cross the bridge. It's a Friday evening. Your choice." Ms. Fisher: "Let's stay in the east bay I?m 30 TIRED all the time, good to stay close to home." 10/ 4/ 2013 Ms. Fisher cancels their meal and asks to reschedule: AlSoyynd v. Regents of the University of California, Case No. Veri?ed Petition for Writ of Mandate - 11 Sep.25. 20W ll:40AM siegel &yee . Ms. Fisher: "I'm typing this from a gurney with an arm with an IV in it. Doctor says I need to go home, I'm wrecked. So sorry to cancel so late, I was looking forward to catching we reschedule?" Professor AlSayyad: Ok, I have not heard from you in relationship to my offer to come over. Let's reschedule when you feel better." Ms. Fisher: "Just got these thanks so much for the offer but I'm useless, lets reschedule." Professor AlSayyad: "ok, let me know when." . 10/ 15/ 13 Ms. Fisher initiates follow?up to reschedule: Ms. Fisher: "Let's try and reschedule our meeting." I Professor AlSayyad: "Are you still up for a dinner next week or is that too tiring for you." I Ms. Fisher says she is too ill for dinner but would like to go out for drinks: Ms. Fisher: "Dinner is too much for me I feel like hell I can do an hour drinks or so and manage, but not dinner." Professor AlSavyad: "how about drinks at Five, at 6 Pm this Friday or would you prefer next week? They had drinks as planned on October 13, 2013, spending over two hours together. Ms. Fisher shared intimate details of her personal life, including her relationships and the "wild" life she previously led. 3/ 3/ 2014 Ms. Fisher continued to seek meetings with Professor AlSayyad and expresses friendly feelings towards him: Ms. Fisher: "Well, I survived heart s?urgeryL..Want to come see you to discuss our ?eld you're well, it's been awhile. 5 /7/2o14 Professor AlSayyad is part of the Committee for Ms. Fisher's qualifying exam. After she admits to being "super nervous" before the exam, he gives her a hug and tells her that she looks good and will be AlSoyyad v. Regents of the University of California, Case No. Veri?ed Petition for Writ of Mandate - 12 8ep.25. lOlB ll:40AM Darn-busiegel yee No.305? P. l7 ?ne. She now claims that he kissed her on the cheek, but Ms. Abu?Hamdi, who was present, did not see a kiss. I 5/8/2014 'Ms. Fisher tells Professor AlSayyad that she would like to work with him over the summer and responds to his invitation for I drinks at the faculty club "fantastic." h) On November 4, 2014, after watching a TED talk by Professor AlSayyad's err-wife, Ananya Roy, Ms. Fisher decided that she wanted to do something about Professor AlSayyad?s "fuckery." i) In March 2016, Ms. Fisher complained for the first time that on October 13, 2013, Professor AlSayyad put his hand on her thigh and suggested that she accompany him and his friends on a trip to Las Vegas j) Following investigations by retained consultants and faculty investigators, on May 3, 2017, the UC Administration advised Professor AlSayyad that it would seek his dismissal from the University. k) Ms. Fisher intentionally de?ed the University's confidentiality rules by sharing the consultant's report on her allegations with a reporter for the San Francisco Chronicle. I 1) On November 2, 3 and 4, 2017, a three-person faculty subcommittee of the Privilege 8r Tenure Committee conducted a disciplinary hearing to determine-whether the Administration's charges against Professor AlSayyad were supported by "clear and convincing evidence." The Committee heard sworn testimony from 19 witnesses. m) The Committee concluded that Professor AlSayyad engaged in "a momentary overstep in a private context" and that his action "create[d] an environment that a reasonable person would find to be intimidating or offensive." The Committee also concluded that Professor AlSayyad?s other statements and conduct towards Ms. Fisher did not "clearly and convincingly rise to the level of sexual harassment" and found that Professor's Alsayyad's actions did not "represent a concerted effort over time on Professor AlSayyad's part to enter into sexual relations or a romantic relationship Al?nyyod v. Regents of the University of California, Case No. Veri?ed Petition for Writ of Mandate - 13 Sep.25. lOlB ll:40AM siegel &yee . No.305l with Ms. Fisher." The Committee also rejected the accusation that Professor AlSayyad utilized his position or powers as a facultymemher to coerce the judgment or conscience of Ms. Fisher for arbitrary or person reasons. 11) The Committee concluded that Professor AlSayyad should be suspended without pay for one year, that a letter of censure be placed in his ?le, and that he undergo sensitivity training. I o) On August 13, 2o18, respondent Chancellor Carol T. Christ overruled the . Committee's determinations and imposed a three year suspension without pay on Professor AlSayyad. She also concluded, contrary to the Committee's decision, that Professor AlSayyad misused his "power for personal gain." Respondent Chancellor made this decision although she was not present at the Committee hearing and did not have the opportunity to observe the testimony or demeanor of the witnesses. Respondent Chancellor determined as well that should Professor AlSayyad choose to retire the normal privileges associated with his emeritus status would be curtailed to correspond with the conditions of suspension, including no teaching for three years; no new graduate Student supervision for three years; no department, campus, or administrative service at any level for three years, including no administration of research centers; no departmental voting rights for three years; loss of principal investigator status on any grants administered through the University for three years; and no access to University property beyond that afforded to the public for three years. I . p) Respondent Chancellor's decision was not supported by the Committee's ?ndings that petitioner engaged only in a "momentary overstep" by touching Ms. Fisher's thigh and that he did not engage in concerted sexual harassment, did not seek a romantic or sexual relationship with Ms. Fisher, and did not utilize his power to coerce I her judgment. q) Respondent Chancellor's imposition of a three?year suspension without pay constimted an abuse of discretion in light of the Committee's factual ?ndings. AlSayyad v. Regents of the University of California, Case No. Veri?ed Petition for Writ of Mandate 14 .Sep. 25. MB ll:4lAM men-AlSayyad retired from the University effective July 31, 2013. because he could not survive without income for three years.As a result he has suffered siegel yee No.305? P. l9 r) Faced with the loss of income and necessary health bene?ts, Professor 5. The University of California is a state agency whose authority is derived from the California Constitution, Article IX, 5 9. Therefore the scope of review is under the substantial evidence test. I I 6. Petitioner has exhausted the available administrative remedies required to be pursued by him in that under the policies and procedures adopted by respondent The Regents, speci?cally APM 016, respondent Chancellor was the final decision maker in this matter. I 7. Petitioner does not have a plain speedy, and adequate remedy in the ordinary course of law. 8. As a result of the respondent Chancellor's action, petitioner has sustained damages as follows; petitioner was forced to retire from the University of California from the loss of income from the date of his retirement until the date of his planned and anticipated retirement and has also lost the value of retirement bene?ts that would hate been due to him had he retired 'when helplanned to do so. Respondent Chancellor's I action caused petitioner to sufferthese damages because of respondents unlawful actions as set forth above. Petitioner is entitled to recover these damages under Code of Civil Procedure 1095. I. I 9. Petitioner is personally obligated to pay his attorney for attorney services to prosecute this action. Petitioner is entitled to recover attorney fees as provided in Government Code 300(a) if he prevails in this case, on the ground that respondent Chancellor's decision was the result of an arbitrary and capricious decision to disregard the ?ndings of the Privilege and Tenure Committee. WHEREFORE, Petitioner prays that: . 1. For a peremptory writ of mandate, under Code of Civil Procedure 1094.5, directed to respondents, compelling them: Veri?ed Petition for Writ of Mandate 15 AlSoyyod v. Regents of the University of California, Case No. Sep.25. 20W ll:4lAM siegel Elyse P. 20 wmu-mm-ereduce the suspension imposed on petitioner from three years to one year; To restore to petitioner all back pay; bene?ts, and privileges of employment that would have been by him but for the suspension from the date . of petitioner's retirement until the date on which the length of his suspension is adjusted; . To pay petitioner interest on the back pay and adjusted pension bene?ts at the full legal rate; To correct petitioner's personnel tile in accordance with this peremptory Writ of mandate; I 2. That petitioner recover his costs in this action; including attorney fees under Government Code 800; 3. That petitioner recover damages according to proof; and 4. That the Court grant such other relief as it deems proper. . Dated: September 21; 2018 SIEGELSiege] . Attorneys for Petitioner NEZAR ALSAYYAD v. Regents of the University ofCulifoi-nio, Case No. Veri?ed Petition for Writ of Mandate 16 Selp.25. 20W ii:4iAM siegei dyes . No.305VERIFICATION I, NEZAR ALSAYYAD, declare as follows: I am the petitioner in the above-titled action. I have read the foregoing Veri?ed Petition for Writ of Mandate and know the contents thereof. The petition is true of my own knowledge, except as to those matters that are alleged on information and belief, and as to those matters I believe it to be true. . I I I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this mat day of September, 2018, at Oakland, California. ?l Nezar AlSayyud v. Regents ofthe Univemity of California, Case No. i Veri?ed Petition for Writ of Mandate 81911.25. 20W il:4lAM siegel Elyse No.305? P. 2? E120 STEPHENS HAIL UNIVERSITY 0F CAUPDRNIA February 23, 2015 PERSONAL Awncawrmam CHANCELLOR CAROL CHRIST Dear Chancellor Christ In. accordance With AcadEmlc Senate Bylaw 336 governing dissiplinary cases, and the P11133113 133 for the Campos, I 3111 forwardmg 1113111111111 of the hearing panel convened by the Committee on inlege and Tenure m- the. disciplinary case against Professor Nezar AlSayyad (Architecture and City and Regional Planning). .. Sincerely, Marianne Constahle Chair Committee on Privilege and Tenure Professor of Rhetoric Encl. Cc: Benjamin Hermalin. Vice Provost for the Faculty Nezar AlSayyad, Professor of Architecture and City and Regional Planning Dan Siegel, Siegel and Yee Donald Margolis, University Counsel, Office of the General Counsel Nan E. Lane, Chair, University Committee on Privilege and Tenure ia Vroom, University Counsel, Of?ce of the General Counsel Exhibit A $1911.25. 2018 siegel Elyse . No.305? P. 320 HALL UNIVERSITY or CALIFDRNIA CONFIDENTIAL elPSiT] hereby submits its ?ndings and - . "action. Ihrought by. the UC Berkeley administration 1. Procedural Background II. Issues to be Decided [11. Factual Background IV. Findings Issue 1. Sexual Harassment [discrimination student) APM 015 II A. 2 Issue 2. Abuse of Power APM 015 II. A. 4 1111111 Issue 3. Sexual Harassment [violation of University po?ciagigoiigrning professional conduct of faculty) APM 015 II. C. 7 Li.? Issue 4-. Unp'rofessional Conduct APM 015 II. [Ethical Pri?fjciples) V. Conclusions Ig-seaual harassment, against a .th 23 8111.25. lOlB siegel llyee No.305l P. 24 1- On March 30, 2016, Eva Hagherg Fisher (Ms. Fisher] formally reported misconduct by Professor Nezar AlSayyad to the Chair of the Department of Architecture at the University of California at Berkeley. The University's Of?ce of Prevention of Harassment and Discrimination hired the Van Dermyden Maddox Law Corporation as an independent contractor to investigate. On October S, 2016, Eve Fichtner (Van Dermyden Maddus] issued a Con?dential Investigative Report, which found by "a preponderance of the evidence? that Professor AlSayyad had engaged in conduct that violated the University of California Policy prohibiting Sexual Harassment and Sexual Violence thereby referring the matter to the UC Berkeley Administration for review under the Faculty Code of Conduct. On-November 23, 2016, Vice Provost for the Faculty Ben Hermalin appointed Professors Dennis Lieu and Ulrike Malmendier as a faculty investigative committee,? to determine Committee on Pr1v11eggandT nure regarding the allegations against Professor AlSayyad. On April 19 $017,1lhefacultyinvestigative report concluded that there was probable cause that alleged ?aetipns by Professor AlSayyad had taken place which violated the Faculty Code of there Was insuf?cient evidence for a1 finding of premeditation. with violations of the Faculty Code ol?Cogd?nct and. Disciplinary Procedures for the Berkeley - Campus as set forth in APM 015 and to rquest?lsmissal On June B, 2017, Vice Provost Ben Hermalin submitted to PBT, the Administratib? charging Professor AlSayyad with violations of the Ethical Principles in the Fabulpy Code of Conduct [Part II, Section A [Teaching and students],- Part II, Section [The langedhty] and Part II, Section [Colleagues] It also charged him with Conduct of Unacceptable Conduct set forth and7and1nhPM015 ll C, 7 The charging document states: . Aim. Speci?cally, Professor AlSayyad conduct violated the ?lmy ?on Sexual Violence and Sexual Harassment and predecessor policies, which are among the policies governing the professional conduct of faculty These policies prohibit unwelcome Sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal, nonverbal or physical conduct of a sexual nature when such conduct is su?icientbr severe or pervasive that it unreasonably denies, adversely limits, or interferes within person 's participation in or bene?t from the education, employment or other programs and services of the University and creates an environment that a reasonable person would ?nd to be intimidating or o?ensive. On November 2-4. 2017, pursuant to Academic Senate Bylaw 33 6, 0.8, a three-person hearing subcommittee of condUcted a disciplinary hearing to determine whether the Administration's charges against Professor AlSayyad were supported by clear and convincing evidence. [We note that the standard of proof for the disciplinary hearing on which we report, "clear and convincing evidence." is higher than that required in the two 81911.25. 20W siegel Elyse No.3052 P. 25 earlier Investigative Reports, "preponderance of the evidence" and "probable cause?) This report is limited to the formal charges brought against Professor AlSayyad. Evidence for the hearin subcommittee?s ?ndings comes solely from hearing exhibits and hearing testimony. ISSUES TO BE DECIDED On July 26 following a pre? hearing conference with then- P?z'l? Chair Vern Paxson University counsel and counsel for Professor AlSayyad agreed to the following Statement of Issues to be decided by FIAT: 1] Does clear and convincing evidence support the charge that Professor Nezar AlSayyad violated the Faculty Code of Conduct Academic Personnel Manual Section 015 Part ILA. by discriminating, incIUding sexual harassment against Eva Hagberg Pisher a student? 2) Does clear and evidence support the charge that Professor AlSayyad violated APM Sect1onl_l.1_5 Part II. A by using his position or powers as a faculty member to coerce the Judgment or conscience of Eva Hagberg Fisher a student for arbitrary or personal reasons? violated APM Section 015 Part II by co111mitting a serious violation of University policies governing the profess1onalconduct of faculty to wit the UC Policy on Sexual colleagues? These charges correspond not only to Ethical Principles but also to the following subsections of the APM [prior to its July 2017 revision] conveyed 113; the Administration to Professor AlSayyad in its May 3. 2017 letter: 1] APM 015. ll. 2] APM 015. 11. 3) APM 015. II. and APM 015.ll. D. .- In short, the Administration charges that Professm AlSayyad sexually harassed Ms. Fisher, used his power and position to coerce her conscience, and failed to show due respect for the Opinions of his colleagues. It argues that Professor AlSayyad engaged in particular incidents of sexual harassment; most notably touching Ms. Fisher on the thigh in his car on the evening of October 13, 2013. The Administration also argues that interactions between Professor AlSayyad and Ms. Fisher, from Fall 2010 to Spring 2014 while she was his student, constituted a "pattern" of sexual harassment. It argues that, in these incidents and others, Professor AlSayyad abused his power so as to foster Ms. Fisher?s dependence on him. Finally, it argues that Professor AlSayyad failed to show due respect to his colleagues in the course of these interactions. 81911.25. 20W siegei Elyse No.305? P. 26 111. ProfessorAlSayyad is a highly respected, long-time professor of Architecture at UC Berkeley. He has supervised many graduate students. At the hearing and in letters, a number of past and present students attributed their successes in no small part to him. He was serving as chair of the departmental graduate committee when Ms. Fisher Entered the Architecture MS program [Under the name of Eva Hagberg) in Fall 2010. During the years immediately before, during and after Ms. Fisher's enrollment in the MS program, the Architecture Department was in flux and appeared highly politicized. Among other things, faculty disagreed with one another as to whether to change the process in which current MS students applied to and were considered for admission into the Ph. D. . program in a separate pool from outside applicants. Such disagreement was characterized by strong feelings among faculty and procedural confusion among graduate students. The testimony suggested ?feuds" between faculty, rivalry over grad students, misinformation among at least some students as to their standing in the department and' 1n the eyes of particular faculty members for whom or with whom they were working, and generally heightened anxiety and msecurlty among graduate students. In this context, Professor IP14). During her ?rst semester, Ms. Fisher tools? a course with Professor AlSayyad [Fall 2 010]. She then applied to the Architecture Ph. D. program Professor .AlSayyad presented himself [Professor Lovell, History of Art) helped persuade her to change Ph. programs instead of leaving the University. In April 2012, she petitioned Graduate D1v1s1on to transfer into the Interdisciplinary Ph. D. program. She took a second course with Professor AlSayyad' 1n Fall 2012; in October 2012, Professor AlSayyad Wrote a letter supporting Ms. Fisher application to the Interdisciplinary program, indicating that she Was "one of two students in a class of 16 who received the highest grade in the [Fall 2010] class," and expressing his willingness to "serve on her committee.? Ms. Fisher's petition was approved in December 2012. Following her entry into the Interdisciplinary program in January 2013, Ms. Fisher fell seriously ill and required a number of hospitalizations. Her poor health rEsulted in her delaying her qualifying exam date several times. During 2013, the email record and testimony shows a series of contacts with Professor AlSayyad, including a-late May home Visit, which contacts Ms. Fisher alleges constitute sexual harassment. We discuss our ?ndings concerning 2013 contacts in Findings (Section 111.1). Sep.25. ?1811:4901 siegei &yee . No.305? P. 27 On Friday, October 18, 2013, Ms. Fisher and Professor AlSayyad met aroUnd 6:30 at the bar of the restaurant Five in downtown Berkeley. Professor AlSayyad-had a couple of drinks; Ms. Fisher does not and did not at that time drink alcohol. After a couple of hours of conversation, and after having initially turned dourn his offer of a ride to where she was going, Ms. Fisher accepted a ride from ProfessOr AlSayyad becaUse it was raining and she was still recovering from her surgery. In the crux of the sexual harassment allegations against Professor AlSayyad, Ms. Fisher testi?ed that Professor AlSayyad touched her thigh in the car that evening, proposed that they become close friends invited her to Las Vegas with him, and said he her. We discuss our 1? ndings as to the events ofthot evening on Findings (Section IV. 1). During the next ?ve months or so, Ms. Fisher and Professor AlSayyad were not in contact. In mid?March 2014, the two met over lunch to discuss Ms. Fisher's upcoming exams. The two did not meet again until Ms. Fisher took and passed the oral qualifying exam, after Professors Patricia Berger chair (History of Art), Margaretta Lovell [History of Art], David Henkin (History), and=.INamWa11 Serpell (English). Professor AlSayyad hugged Ms. Fisher 1n the presence of others before the exam. Ms. Fisher also testi?ed that he kissed her on the check and said' I hope you feel as good as you look" A week after the exam, May 13, 2014, the MD discussed her exam performance 1n a conversation that Ms. Fisher testi?ed upset her. She then met with Professor Lovell who on May 15, notified Professor Al Sayyad that through Spring 2014 was not what she considered appropriate In response to Ms. Fisher's complaint, the Administration commissioned the Con?dential InVEstigatiVe Report by Eve Fichtner, delivered October 5, 2016, which concluded that the complaint merited further review. In November 2016, by her owa admission frustrated and impatient at not having heard of any measures being taken by the Administration, Ms. Fisher leaked the Con?dential Fichtner report to the San Francisco Chronicle. The Chronicle published a story about the allegations against Professor AlSayyad on November 13, 2016. On April 19, 2017, the faculty inVestigatiVe committee appointed by the Vice Provost determined that there was probable cause for the Administration to file a complaint with FELT. 8111.25. 20W ll:43AM. siegel Elyse No.305l P. 28 NM issue 1: Does clear and convincing evidence charge that Professor Nezar AlSayyad violated the Faculty code of Conduct, Academic Personnel Manual Section 015, Part II. A, by discriminating, including sexual harassment, against Eva Hagberg Fisher a student? A. Incident of October 13, 2013 As explained below, we ?nd there to be clear and convincing evidence that Professor AlSayyad touched Ms. Fisher's thigh in his car on the evening of October 18, 2013. We reached this conclusion by considering testimony and evidence as to the lead up to that contemporaneous phone call from Ms. Fisher describing the event, and the consistency of Ms. Fisher 5 subseqiie11t In the context of? 'the totality of the circumstances in which the conduct occurred Policy SVSH, II. B. 2. we find that Professor AlSayyad engaged in sexual harassment or Unwelcome .conduct of a sexual nature" .sufficiently severe that 11.. .interferes with ii persons participation' 1n. ..educaiion. .and creates an environment that a reasonable person would ?nd to be intimidating or offensive," under UC Policy SVSH, -- 1. Lead up to the . . Since her arrival at Berkeley, Professor AlSayyad and Ms Fisher had developed an ProfeSsor AlSayyad for his teaching and his 1nte1?est. Professor AISayyad supported her academic interests and wrote her a letter of recommendation In February 2013, shortly after Ms. Fisher transferred into the program, she fell seriously ill. Professor AISayyad shared with her a experience of his owo. Her medical problems continued throughout the year and she had major surgery in May, beforelwhich she invited Professor AlSayyad to a pre-operation gathering. Professor AISayyad wrote to Ms- Fisher that her message had gone into his spam so be had come across it late. In his message, Professor AlSayyad wrote that he would be back in town for a coople of days and offered to see her. He also wrote, on May 23, 2013, "You are a wonderful woman and a good friend, and I would be very glad to do anything to help out when I get back." He visited Ms. Fisher . at home while back in toWn. She was bedridden and on pain medication; he brought her ?owers, and hugged her in the presence of her mother when leaving. Ms. Fisher thanked Al Sayyad for his visit on June 3 and AI Sayyad wrote back from Kuwait brie?y, indicating "my real pleasure seeing you. You will get well soon, I am sure of it. Stay in touch." - Sep.25. 20W ll:44AM siegel llyee P. 29 During September and October of 2013, upon his return to Berkeley, Professor AlSayyad wrote several emails over a few weeks offering to meet Ms. Fisher for . drinks or dinner. She testi?ed that she was uncomfortable, but did not say anything to him. Instead, she stalled, pleaded illness, and eventually rescheduled to October 18. On Friday, September 13, Al Sayyad first wrote her: "Eva, How are you. 1 heard you have to do surgery again soon. Can I see you soon, perhaps for a drink, co?ee, or a meal? Nezar." Ms. Fisher responded the same day that "towards the end of next week would be thanks so much for checking in." Professor AlSayyad responded "Let me know if I can help in any way, or if] can take you out for meal or a drink. I would love that On Tuesday, September 24, Ms. Fisher answered "That would be great - let me know how your schedule is?" and mentioned that she was meeting with Professor Margaretta Lovell the next day "to talk about setting an exam date. Professor AlSayyad wrote back on Thursday, September 26, "Eva, Can I take you out to dinner sometime next week. How about Friday? Nezar" and the two with the attention Professor AlSayyad paid to her- She said nothing to him, but wrote to a friend? on Thursday, October 3, that "Now we? re having dinner at Five in the Shattuek Hotel. Weird' .511? they have butterscotch pudding. which I?m obsessed The two rescheduled. On October?illg?, 2013 Professor AlSayyad met Ms. Fisher for drinks and appetizers or dinner at tli'ez?'Harkeley restaurant "FiVe." At this two to two? and? a- -half- hour meeting she discussed personal matters with him. Professor AlSayyad already knew about a previous breakup of hers. Ms. Fisher mentioned her new book and that she was a recovering alcoholic, and told him about someone new she was seeing. She made no bones about the "wdd" life she used to lead. She testi?ed that in response, Professor AlSayyad Joked you don? ?know how bad I can be. Professor AlSayyad offered to give Ms. Fisher a ride to where she was going afterwards and Ms. Fisher accepted. Ma. Fisher describes the conversation in the car as follows: There was some sort of pleasantri es, and then he said, 'Zisten, Eva, "you know, and this is again the host of my memory, he said, "I'm really glad that we are friends. I hope that we can become close fn'ends. I love you very much. Every Thanksgiving I take my close friends to Vegas all expenses paid. I would love to take you to Vegas. "lsaid, Thank you That sounds great" Ms. Fisher testified that she became uncomfortable at that point. She "didn?t take it romantically," she said, when in the restaurant-Professor AlSayyad had told her that he loved her, but that "in the car lwas like 'oh, maybe this love you" is not just like Sep.l5. lOlB ll:44hM siegel hyee No.305l P. 30 1aery poor boundaries on the part of a faculty member?." She testified that, concerned about his stopping with her on a dark street to drop her off, she decided . to ask him to drop her off instead at Whole Foods, so she could lease the car, at which point: He touched my thigh with his Upper thigh..- One to two seconds. Professor AlSayyad recalls the encounter in the car differently: 1 retail telling her something like what you do, there are a lot of people who loreyau. definitelyr made that statement to her; loveyou like all of my other students, you are part of the gang.? I go to Vegas regularly. I have two students who did Ph. D. dissertations on Vegas thatl chaired and yes I have taken people to Vegas. I we never suggested to Elia thatshe should come to Vegas with me. ljustsaid I take people rd Vegas, and my taking people to Vegas doesn' mean I poyfor them or was that was invited. con?rmed key details of Ms. Fisher 5 account. Speci?cally, Ms.Abu-Ha1ndi testi?ed that Ms. Fisher said during this call on October 13 2013. that Professor AlSayyad had just put his hand on her leg. - 3. Consistency over Time Ms. Fisher also described the incident consistently in emails to a redacted recipient roughly one year later [in November 2014), to writer Jessica Knoll [in December 2014), and to Berkeley Graduate Division staff [March 2015]. She reviewed her experience "when the Marcy case went public? (late 2015] and reported her accusations officially to Department Chair Tom Buresh (on March 30, 2016). Ms. Fisher's claim that Professor AlSayyad placed his hand on her thigh has thus been Sep.25. 20W ll:44AM siegel &yee No.305? P. 3i consistent throughout, supporting our conclusion that this particular gesture occurred and that Ms. Fisher found it disturbing at the time- In resolving the "he said, she said" issue as to thigh-touching on the evening of October 13, 2013 then, we eValuated the evidence as follows. lithe incident did not occur, then Ms. Fisher has maintained a consistent deception throughout conversations over four years: a phone call on the night itself; discussions of the incident with others and questioning by investigators and attorneys. Against this we set Professor AlSayyad's claims that he does not remember and his tendency to adjust what he "may" have done or said [as when confronted with emails that show him referring to her as "fabulous"). The evidence supports our finding that a momentary overstep in a private context by a successful person in authority is more believable than a fom'ayear scheme of deception that includes corroboration by others. We ?nd the claim that Professor AlSayyad touched Ms. Fisher?s thigh on October 13, 2013, to be clearly and convincingly supported by the evidence. We find, further, that such gesture, in the context of a professional faculty- graduate student superwsory and mentoring relationship,? 'creates an environment . that a reasonable person Would find to be intimidating or offensive." B. Other lnc1dents" Ms. Fisher involved sexual harassment on his part,? These allegations include invitations to coffee, drinks, or meals; professions of love and invitations to travel and to become a below, we beheve that some of these 1nc1dents occur but we do not find that the evidence clearly and convincingly supports the argument that they represent a broad pattern of sexual harassment or discrimination. -- of harassment appear to annoy her for other reasons Questioned about her hostility to Professor AlSayyad's message, "You will get well soon, I am sure of it," she acknowledged that she did not think it was sexual harassment, but added "I?m Very against positive with regards to illness." Second, the context and details of incidents about which both Ms. Fisher and Professor AlSayyad testi?ed, such as Professor AlSayyad?s invitation to Las Vegas, his reference to their being or becoming "close friends," and his statement that he loved her, remain unclear. That some such events occurred is corroborated in part by others, including the Fichtner investigative report and Professor AlSayyad's own testimony as to what he did say or could have said. We cannot, however, rely completely on Ms. Fisher's recollection that all these utterances occurred in the car in conjunction with the thigh-touching on October 18, 2013, as she claimed. Ms. Fisher's testimony is marred by at least a couple of inaccuracies Sep.25. 20W il:45AM siegel &yee No.305? P. 3? [her testimony as to the type of car Professor AlSayyad drove, her testimony that Professor - AlSayyad told her that his former wife had been the only student besides Ms. Fisher to have received an from him when the for111er wife had never been his student) and by her acknowledged willingness to dissemble [for instance, using the severity of her illness as an excuse]. Once Professor AlSayyad?s utterances are disaggregated, they appear unwise, but they do not clearly and convincingly rise to the level of sexual harassment. In particular: - Professor AlSayyad and his students hays done research and attended meetings in Las Vegas; - Professor AlSayyad continues to refer to his sense that he and Ms. Fisher felt "close" without apparently hearing any charge in the words; he likewise referred to her at the hearing as ?a "bright woman": Professor AlSayyad claims that any statement that he loved Ms. Fisher on October 13, 2013, was intended to boost Ms. Fisher? con?dence. recall telling her very much something like what you do, there are a lot of people who love you. I de?nitely -Finally we note that Ms. Fisher retellected the can be bad too" comment that she attributes to Professor AlSayyad at the restaurant only after l"having had my anybody. Ms. Fisher herself was uncertain whether this eyent had actually occurred. In her testimony at the hearing, she claim ed to be more certain hoWever was clear when I wrote it [in March 2016] and I have since become clear. I didn't fully understand the context of the interview with Eve. I was very tired after many, many hours of investigation?). Ms. Fisher also claims that Professor AlSayyad said hope you feel as good as you look" before the exam. These words are uncorroborated. They are also ambiguous, on the one hand, given his knowledge of her medical conditions and, on the other, the thigh-touching incident on October 18, 2013. We do not doubt that his hugging her before thelexarn, which was corroborated, made her uncomfortable given the incident in the car seven months before, but it is also compatible with the familiar manner in which Professor AlSayyad interacted with some of his students. 10 Sep.25. 20W ii:45AM siegei flyee No.305? P. 33 Finally, the committee was not persuaded by the Administration?s argument that additional conduct about which it heard testimony rises to the level of sexual harassment or discrimination. The committee ?nds testimony as to Professor AlSayyad's conduct, such as his unknowingly inviting a recovering alcoholic to a bar, or regularly hosting of?ce hours with a pitcher of beer without knowing that at least one student was allergic to alcohol, to show obiiviousness. The committee ?nds some of Professor AiSayyad?s conduct, such as offering anecdotal medical advice to Ms. Fisher or telling Ms. Fisher that he or another faculty member "loved? her, to be excessively familiar. it also recognizes that Professor AlSayyad?s references to Ms. Fisher as a "bright woman" and so forth could be taken as chauvinistic and culturally insensitive. In summary, we ?nd that some incidents alleged by Ms. Fisher besides thigh? touching in the car occurred, but the evidence presented does not clearly and convincingly support the charge that these other incidents involved sexual Hd?? discussion with Ms. Fisher of her performance at her May 2014 oral qualifying exam; communications by Professor AISayyad to Ms. Fisher and two other students about other Professors' views regarding the students' admission and entry to the program from the Master?s in Architecture [201042]; advice and interactions with Ms. Fisher and another student regarding their interactions with faculty members as student representatives to the Department (2010411). As explained below, we do not ?nd the Administration's argument persuasive. The 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 Ms. Fisher or other students for arbitrary or personal reasons. 11 Sep.25. 20W ll:46AM siegel dyee . No.305? P. 34 A. Ms. Fisher?s Oral Qualifying Exam [May 7, 2014] Professor Patricia Berger chaired Ms. Fisher?s oral Qualifying exam committee. She took notes during the exam and at the end of the exam while Ms. Fisher was out of the room and committee members deliberated. Berger's notes, introdu ced into evidence, show that all four committee members stated that Ms. Fisher had passed. although all four expressed some criticism, of varying sorts. The notes show the first faculty member beginning "Fine w/ it. Being very much herself,? after which the faculty member assessed Ms. Fisher in general terms, including "glib," and noted that she had done better on Professor AlSayyad's section and less well on the second professor's section. The second faculty member offered a more rigorous critique of Ms. Fisher's performance, mentioning speci?c themes and theorists and what was "wrong," "mixed up? or had "problems." Professor AlSayyad commented third. Professor Berger's notes state: "Nezar: Pass. Encouraged her to pursue Interdisc. Program. Is glib not so well- informed as she Sh??llfiff?llid be. But self?presentation is imp. for scholars. Part of it is . don? it continue to doubt yourself. Professor Lovell went last, with a few comments that concluded with "Strong pass 13, the two discussed the in which Ms Fisher had said she was interested, and Professor AlSayyad gave Ms. Fisher feedback about the exam. Ms. Fisher testi?ed that Professor AlSayyad said that he and Professor Lovell "loved" her and had "fought for her? on the orals against the other two faculty members She testified that she was upset by his feedback. Ms. Fisher testified that she "felt like there were two options. One, [AlSayyad] Was lying; one, he was telling the truth Either way, I was no longer able to tolerate it. Like our meeting and him denigrating my performance in these exams not' 1n contact with me. Early the next day, May 14, after a followup email from Professor AlSayyad about the terms of the she emalled that "Unfortunately it not going to work out l'm still totally sick. The same day, she spoke with Professor Lovell who told her that "90 percent of the exam was in credibly professional and really, really well done, and you know about the other 10 percent, so we don need to go into it." On May 15, Professor Lovell wrote to Professor AlSayyad thanking him for "excellent service" on the committee and informing him that" it would be best to reconstitute her dissertation committee to encompass the widest possible spread of disciplinary and methodological approaches have urged her to continue to confer with you [and with Pat Berger] as this dissertation develops." Professor AlSayyad wrote the same day to Ms. Fisher that he did not mind not being on the committee "But I am surprised that you did not mention that to me when we metl"Ms. Fisher replied, did not yet know! Only met with MML [Professor Lovell] yesterday.? Their exchange concludes With Professor AlSayyad's "But why did David 12' Sep.25. lOlfl ll:46AM siegel flyee . No.305? P. 35 [Professor Henkin, who was retained on the committee] say he is not interested and felt irrelevant. Anyway, case closed. The evidence of communications between Professor AlSayyad and Ms. Fisher around the exam does not clearly and convincingly show that Professor AlSayyad made false comments to Ms. Fisher after the exam. His comments on May 13 appear to align with committee members? assessments of her performance. In faculty discussion immediately after the exam [as attested to in Berger?s notes], Professor AlSayyad had acknowledged to other faculty, seemingly in response to the first two faculty members' comments, that Ms. Fisher was "glib" and "not so well-informed? before he Went on to praise her. His comments to Ms. Fisher after the exam may have been indiscreet and do seem to have upset her, but they appear to be as truthful as Professor Lovell's claim to Ms. Fisher, repeated at the hearing, that 90 percent of the exam was "really, really well done." In addition, Professor AlSayyad's ?nal comment to Ms. Fisher about Professor Henldn, who did not testify, is open to various interpretations. Evidence does not clearly support a charge that Professor AlSayyad used his powers to coerce Ms. Fisher' judgement for arbitrary or personal reasons. B. Admission from MS to Program in the years immediately before, - during aiitl after Ms. Fisher enrollment in the MS program, the Architecture Department Was flux and was highly politicized. Among other things, faculty disagreed with one another as to whether to change the process by which current MS students applied and were considered for admission into the program Three MS students, including Ms. Fisher and Ms. Abu-Hamtii accuse Professor AlSayyad of falsely telling them that particular faculty, including Professor Crawford, were against their admission. information which soured their Professor communicating about it with both faculty and prospective students He did not want the admission process for MS students, who had been transferring internally into the program, to change. His colleague, Professor Crawford, came to Berkeley in 2009. She believed that current MS students should apply to the program and be considered through the same process and in the same pool as external applicants. Professor AlSayyad claims that the three students misuuderstood his communications to them about their applications and the process. He testified that he did not say that Professor Crawford was against any particular student?s admission, which would have been a lie, but that he said she was against their entering according to the current process that the Department had been following. AlthDUgh it may have been indiscreet of Professor AlSayyad to reveal faculty discussions about admissions policy to students, it is also possible that some already anxious and insecure students in the midst of a confusing situation may have misinterpreted Professor AlSayyad's remarks. 13 81911.25. 20W ll:46AM siegel Elyse No.305? P. 36 C. Advising Student RepresentatiVes The Administration argues that Professor AlSayyad falsely convinced Ms. Fisher that Professor Shanken had orchestrated a scheme to deny Ms- Fisher and Ms. Ahu- Hamdi a voice as student representatives. The evidence does not clearly and convincingly support the argument that Professor AlSayyad was solely responsible for Ms. Fisher and Ms. Abua Hamdi holding this view. In the context of evidence as to tensions and miscommunications in the Department, evidence shows that in at least some email communication with Ms. Fisher and Ms. Abu?Hamdi, Professor AlSayyad encouraged them to speak directly and frankly with the Department Chair about their concerns, as would have been proper for a graduate adviser to do. I issue Sexual?arassmenrfv" -. Does clear and romancing evidence support the charge that Professor AlSayyad violated APM, Section 015 Part Ii- C- by committing a serious violation of University policies governing the professional conduct of faculty, to wit, the UC Policy on Sexual Violence and Sexual Harassment? Please refer to this report's discussion of; the lirst.? 1ssue of Sexual Harassment' to IV. 1. above.- Discussion there refers directly to the limitersny Policy on Sexual Violence and Sexual Harassment, which was explicitly incorporated Into the Faculty Code of Conduct or APM 15 Does clear and convincing evidence support the charge that Professor AlSayyad violated APM, Section 015, Part by failing to show due respect for the opinions of his colleagues and failing to strive to be objective in his professional judgment of colleagues? . 'As noted above, during the period in which Ms. Fisher was an MS and student in Architecture, eVidence shoWs that relations among faculty in the Department were acrimonious. Testimony described a "feud" among the faculty. Evidence showed not only unproductive relations between faculty and students who might have worked together, but also inadequate communication even among Some of those working together. Clear and convincing evidence of Professor AlSayyad?s unprofessional conduct tov'vard his I colleagues comes in the form of an email message that he wrote to Ms. Fisher in all 2012 14 Sep.25. 20W siegel Elyse No.305? P. 37 when she asked him for a letter of support for her transfer into the Interdisciplinary program. Professor AlSayyad agreed to write for her. He added: don?t think iwill say anything about protecting you from the two vultures in the architecture program who have target it [sic] you. I hepe your formal move to the interdisciplinary program will end this nonsense." Ms. Fisher testi?ed that she had not known that anyone was "out to destroy as she put it in an email to someone else the same day. Professor AlSayyad does not deny that he sent the message to Ms. Fisher, nor that by "two vultures? he was referring to Professors Crawford and Shanken. Professors Crawford and Shanken both deny having had any animus toward Ms. Fisher. V. 1. The subcommittee ?nds clear and convincing evidence to support the charge that Professor the Faculty Code of Conduct APM 015 [lit by overstepping methounds of proper teacher-student relations with Eva Hagberg convincing evidence to support the chargetbat Professor Al?ayyad violated APM 015 IIC by seriously violating Umversit?idlihes governing the professional conduct of faculty, to wit the UC Policy on Sexuall?iole??gg and Setual Harassment by overstepping the bounds of proper teacher-smenggelations with Eva Hagberg Fisher on the eyening of October 18 2013 thigh for one to two seconds while 111 a car. ?gs nag 4. The subcommittee ?nds clear and convincing ev1dence that Professor Al?ayyad's violated APM 015 II by failing to show due respect for the? opinions of his colleagues. Recommendations: 1. 011 the basis of the ?ndings regarding issues 1 and 3 above, the hearing subcommittee recommends that Professor AISayyad be suspended for one year without pay. Given the speci?cs of the misconduct proven by evidence presented at the hearing, the subcommittee considers termination or dismissal to be unduly punitive and recommends against such measure. 15 Sep.25. 2018 siegei &yee P. 38 2. As to the ?nding regarding Issue 4 the subcommittee recommends that a letter of censure be placed in Professor Al?ayyad?s personnel ?le. 3. The committee also recommends that Professor AlSayyad undergo sensitivity training. It recommends further that members of the Department. including Professor AlSayyad, engage in a process of reconciliation. Respectfully submitted, Marianne Constable Eh ChainCommittee on Professor of Rhetoric Allen Goldsteln Professor of Environmental Science, Policyi?and Management and Civil and Environmental Engineering? Nb :{dwl J'r' . ll' I ?fig-111:" Ian Holmes HE sin . . L?s, "id-1f?" Assoclate Professor of Bioenglneering in. 16 Sep.25. 2018ll:47flM siegel Elyse No.305? P. 39 Carol T. Christ CHANCELLDR Berkeley UNIVERSITY or CALIFORNIA California Hall #tsoo Berkeley, CA payee-15m 5m 54:7464 August 13. 2013 chancellort?tberkelqedo chancellor.berkeley.edu PERSONAL AND CONFIDENTIAL Professor Nezar AlSayyad 260 Caldecott Lane, #209 Oakland. CA 94618 Dear Professor AlSayyad: I have carefully reviewed the February 23, 2013 Report of the Privilege and Tenure Hearing Committee in the Disciplinary Case Against Professor Nezar AlSayyad (?Report?) as well as your March 9, 2017, response to me. In addition, I also examined other documentation associated with the case, including exhibits, brie?ngs by the parties, and the transcript of the hearing. After due consideration, I have accepted some of the Committee's Findings and Recommendations, in reaching a decision on appropriate discipline. Pursuant to the authority granted me under Section 016 of the University of California Academic Personnel Manual have decided to issue you a letter of censure and suspend you from University employment for three (3) academic years effective immediately. Should you decide to retire from the University rather than serve this three? year suspension, I will seek curtailment of your emeritus status, under the same conditions outlined in the suspension. . I ?nd that the disciplinary procedures as outlined in APM 016, the Faculty Code of Conduct and Disciplinary Procedures for the Berkeley campus (?Berkeley Procedures?) and Academic Senate Bylaw 336, have been properly followed. On March 30, 2016, Eva Hagberg Fisher (Ms. Fisher) formally reported misconduct by you to the Chair of the Department of Architecture at the University of Califomia at Berkeley. The University?s Of?ce for the Prevention of Harassment and Discrimination hired an outside ?rm, Van Dermyden Maddox Law Corporation, to investigate. On October 5, 2016, Eve Fichtner, an investigator from Van Dermyden Maddox, issued a confidential investigation report, which found that you engaged in conduct that violated the University of California Policy prohibiting Sexual Harassment and Sexual Violence thereby referring the matter to the ViceProvost for review under the Faculty Code of Conduct. On November 23, 2016, Vice Provost for the Faculty, Benjamin Hermalin appointed a faculty investigative committee to determine whether probable cause existed to ?le a complaint with the Academic Senate on Privilege and Tenure On April 19, 2017, faculty investigators completed their investigation. They concluded that probable cause existed to bring charges forward to PdrT. On May 3, 2017, you were noti?ed that the University intended to seek discipline based on the ?ndings of the faculty investigation. On June 8, 2017, Vice Provost Hermalin-?led a complaint of misconduct seeking dismissal with the Committee on Privilege and Tenure, based on a determination that there was probable cause to believe that you ?engaged in very serious misconduct in violation of the Faculty Code of Conduct.? l_?I Exhibit Senlb. lOiBii:48/31M siegei dyes No.305l P. 40 On November 24, 201?, pursuant to Academic Senate Bylaw 336, D.S, a three-person hearing subcommittee of conducted an evidentiaty hearing, at which you were represented by counsel, to determine Whether the charges against you were supported by clear and cenvincing evidence. The committee essentiallyreviewed whether you sexually harassed Ms. Fisher, used your power and position to coerce her conscience, and failed to show due respect for the opinions of your colleagues. The FELT Committee held that with regard to the charge that you violated the Faculty'Code of Conduct, APM 015, Section 11A, by sexually harassing Ms. Fisher, the claim that you touched her thigh on October 18, 2013 was supported by the evidence, and that such a gestUre in the context of a professional faculty-graduate student relationship created an intimidating or offensive environment. The Pi?cT committee found that other incidents about which Ms. Fisher complained occurred, but did not amount to an intention to ?enter into sexual relations or a romantic relationship? with her. While they did ?nd that your references to Ms. Fisher could be taken as ?chauvinistic,? "culturally insensitive," ?unwise," ?oblivious,? ?indiscreet,? and ?excessively familiar," they did not ?nd you to have engaged in a pattern of sexual harassment. The FELT Committee also found that you violated APM 015 11C by seriously violating the University's policy governing the professional conduct of faculty by engaging in sexual harassment against Ms. Fisher, but did not ?nd that you used your position or powers as a faculty member to coerce Ms. isher's judgement or conscience for arbitrary or personal reasons. Finally, the Committee found that you violated APOM 015 Section by failing to show due respect for your colleagues. With regard to violations of APM-015 Section ILA (sexual harassment of a student) and Section ILC (serious violation of University policies governing the professional conduct of faculty; speci?cally in this case, the UC Policy on Sexual Violence and Sexual Harassment), my comprehensive assessment of the PSLT Committee?s report and the evidence in this case leads me to conclude that these violations of 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. Based on my review of the evidence, I also ?nd that your attempts to isolate the complainant from other faculty members, mischaracterization of what occurred in her oral qualiiying exam, and effort to establish yourself as her most impertant supporter, were examples of using your power for personal gain- In considering the evidence in its totality, including the ?ndings and recommendations of the FELT . Committee, with which I generally concur, I ?nd that your pattern of unwelcome, manipulative and i divisive behavior was harmful to students and other faculty, and your continuing failttre to accept responsibility for the impact of yoUr behavior is troubling. My signi?cant 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 under the terms described in 016 and laid out explicitly below. 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. Sep.25. 20W siegel &yee -N0.3052 P. 4i Terms of suspension: For teaching: no teaching for 3 years For graduate student supervision: no new supervision for 3 years c. For service: no departmental, campus, or administrative service for 3 years, ineluding administration of research centers d. For departmental governance: no voting rights for three years c. For grants: loss of PI status for three years on any grants administered through the University f. Fur access to University property: no access to University property for three years, except as generally afforded to the public Pursuant to APM 016 and the Berkeley Procedures, this decisiOn is ?nal. In addition, under the- University?s SVSH Policy (section V.A.3), this decision will simultaneously be communicated to the student complainant in this matter. As you requested, I also am notifying you that the University plans to issue a public statement regarding the outcome of this process. Sincerely, Carol T- Christ Mr. Dan Siegel Vice Provost Benjamin Hermalin Dean Jonnifer Wolch . Chair Renee Chow, Architecture Chair, Teresa Caldeira, City dc Regional Planning Chair, Privilege and Tenure Committee, Marianne Constable Assistant Vice Provost Heather Archer Director Denise Dldham, Of?ce for the Prevention of Harassment and Discrimination (Title or Of?cer) -