The Calilornia State University RISK MANAGEMENT AND PUBLIC sAFErv The California State University I of the Chancellor I Risk Management and Public Safety 401 Golden Shore, 5th Floor I Long Beach, CA 908024210 (552) 9514580 Immeedulrisk aim; CSU Claim Form Is your claim complete? Include a check or money order for $26 payable to "Trustees of the Complete all sections relating to this claim and sign the form. Please print or type all information. Attach receipts. bills. estimates or other documents that back up your claim. Claimant Information 1 O'Brien Stephen A. 2 Tel: Call Attorney Below Last Name First Name MI 3 Email: - San Jose 5i 2&3404 Address City State Zip 5 Best time and way to reach you: IAny tlme through my attorney below 6 Is the claimant under 18? Yes No If YES. give date oi bl MM DD YWV Attorney or Representative Information Prevost a Tel: i650) 697-6000 Tamaran P. Last Name First Name Email: 10 840 Malcolm Rde Suite 200 940W Mailing Address City State Zip 11 Relationship to claimant: Attorney Clalm Informatlon 12 is your claim tor a staledated mirant (unoashed Yes it No CSU campus that issued the warrant: If NO. continue to Step 13. oouaro'wanam: Proceed to Step 23 MM DD WW 1: Date of Incident IJanuary 31, 2020 through March 2, 2020 Was the incident more than six months ago? Yes [3 No It YES, did you attach a separate sheet with an explanation for the late filing? Cl Yes El No 1' CSU campus or CSU employees against whom this claim is filed: San Jose State Univ Mary A. Fapaz'ian, Marie Tulte, Jeanne Wright, Eileen Daley 15 Dollar amount of claim: lithe amount is more than 310.000, Indicate the Limiled 6359 ($25,000 or 1355) we ofcivil case: Non-limited civil case (over $25,000) Explain how yau calculated the amount: rerallallon and wrongful termination caused Mr. O'Brien lo Incur damages amounting to over $25,000 In last salary alone. 16 Location of the incident: San Jose Stale Attachment A Explanation afltemr 17-19 Stephen 0 'Bnen 'r CSU Claims Information and Claim Form to Sun Jase Stale Umvemzy Per Government Code Section 910 et req and any other applicable provisions, Stephen O'Brien submits the following Government C1aim against the Trustees of the California State University and San Jose State University The name and post nl'fice address of the claimant Stephen A O'Brien San Jose, CA 95128-3404 The post office address to which the person presenting the claim desires notices to he sent Tamarah Prevost Christopher Boscia Cotchett, Fitre McCarthy LLP Boscia Legal 840 Malcolm Ave [960 The Alameda, Suite [85 Burlingame, CA 94010 San Jose, CA 95126 The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. San Jose State University or "the University"), with the participation of Athletic Director Marie Tuite, President Mary Papazian, Senior Associate vice President for Personnel, Joanne Wright, and Senior Associate Athletics Director/SWA Eileen Daley, tenninated and/or engaged in an adverse action against Stephen A O'Brien, an employee of SJSU, on March 2, 2020, because he opposed the uniustified discipline of David Rasmussen and Sage Hopkins as retaliatory acts in violation of law and made known his opposition to such unlawful retaliatory acts Afier making his opposition known to persons in authority over him who could prevent or correct the violation, O'Brien was unlawfully terminated in violation ofthe California Whistlehlower Protection Act (Gov Code 8547 12), California Labor Code 1 102 5, and the California Fair Employment and Housing Act (Gov Code 12940(h) Afier furiher investigation and civil discovery, O'Brien reserves the right to bring additional claims when the full extent ofthe wrongdoing is exposed I O'Brien Came lo SJSU With Excellenl Credentials and Significant Experience immediately before working at San Jose State University, O'Brien spent SIX years as Senior Associate Athletics Director at the United States Naval Academy Before that he was the Associate Athletics Director and Assistant Athletics Director at Santa Clara University and University ofCalifornia at Santa Barbara, respectively O'Brien earned a Juris doctorate from the University of Southern Cal ifornia Gould School of Law and is an active member in good standing with the California State Bar O'Brien was highly commended to SJSU and known within the intercollegiate athletics industry as being guided by strong values II. O Brien s Ten re at SJSU Was Marked ith E cellence. SJSU hired O Brien on August 7, 2017 as a Deputy Athletics Director. O Brien reported to Athletic Director Marie Tuite. O Brien s performance at the University can only be described as exemplary and marked by success. He was appointed b SJSU s President Papazian to serve on the Search Committee for a new Vice President for University Advancement in the Fall of 2019. He assumed oversight of the Athletic Development Staff in January 2020. In each of O Brien s performance re ie s (2017-2018, and 2018-2019), Tuite ga e him the highest o erall rating as an E ceptional employee. The Uni ersit reg larl appla ded O Brien s performance with several bonuses and awards for his excellent work. For example, in both A g st 2018 and 2019, O Brien recei ed a $25,000 bonus for coordinating the Mubadala Silicon Valley Classic, a large professional omen s tennis to rnament. In January 2020, just two months before terminating him, University Personnel and Marie T ite appro ed a 10% merit increase to O Brien s salar on account of additional duties he performed under her direction, including assuming oversight over the Athletic Development Staff. Tuite often personally appla ded O Brien s e cellent performance. In November 2019, she rote O Brien a personal note stating: Yo r abilit to e al ate and sol e cr cial challenges is so admirable. I appreciate your collegial attitude with your colleagues in and outside the dept. On the letter awarding him his $25,000 bonus, Tuite hand- rote: Ste e, Thank o for o r e cellent ork. O Brien s performance thro gho t his ten re as e cellent b all available measures. It was not until he opposed unjustified and unlawful retaliatory activities by SJSU employees that SJSU changes its ie of him. The connection bet een O Brien s whistleblowing and the dramatic changes to his job performance evaluations is blatant. III. O Brien Opposed and Refused to Participate in Conduct He Reasonably Believed Was Unlawful Retaliation Against Fellow Employees for Their Efforts to Comply with Federal, State and Local Laws, and National Collegiate Athletic Association ( NCAA ) R les and Reg lations. Tuite regularly threatened employees directly or indirectly with termination or discipline if they failed to adhere to her directives, lawful or otherwise. She often told those in her department Those who make attempts on the life of the king a e ke i he ki gd very long, and noted with disdain that non-MPP1 employees were not at-will and therefore harder to fire. Tuite often expressed a strong preference towards at-will employees whom she could more easily control. She followed these words with action: several SJSU employees d ring O Brien s ten re ho opposed protected acti it ere reprimanded, disciplined, involuntarily resigned, or were terminated p rs ant to T ite s directi es. As a member of the 1 Management Personnel Plan is a classification of senior level administrators within the California State University System who are at-will, as distinct from other unionized employees with far greater employment protections. 2 NCAA, a member-led organization dedicated to the well-being and lifelong success of college athletes, SJSU is bo nd b strict reg lations go erning the cond ct of its st dent-athletes and athletic department employees, including regulations that address violations of federal, state, and local laws that prohibit drug use, gambling, discrimination on the basis of sex, and sexual assault.2 O Brien belie ed retaliatory acts against Athletic Department employees for participation in NCAA compliance activity could compromise SJSU s membership ith the NCAA and lead to costly and wide-reaching consequences for the Athletic Department and University. When O Brien opposed and refused to participate in T ite s actions, he was fired. SJSU s Athletic Department has programs marked by NCAA compliance issues. The omen s basketball team as on probation from 2016-2017. The baseball program began probation in 2018 which has continued to this day. O Brien as a are of compliance iss es and several internal reports that Tuite fostered a culture of threats and retaliation that had a chilling effect on compliance. In t o specific instances, O Brien witnessed unjustified adverse actions against employees engaged in compliance that could amount to unlawful retaliation. He voiced opposition to those actions and was fired as a result. A. O Brien Voiced His Opposition To T ite s Retaliation Against Athletic Department Employees Who Reported Violations of Federal, State, and Local Law and NCAA Regulations. Federal, state, and local law, as well as NCAA bylaws and SJSU internal policies prohibit student-athletes from gambling on intercollegiate athletics. Violations by students can result in an automatic loss of eligibility to compete. In October 2019, David Rasmussen, Senior Associate Athletic Director for Compliance, learned that a student-athlete allegedly participated in over 170 unlawful gambling wagers on a variety of collegiate and professional sports. SJSU s Compliance staff began its customary process beginning with a self-disclos re to the NCAA. The NCAA deemed the student ineligible to compete in SJSU athletics. The athlete admitted to all alleged violations, but still appealed his ineligibility finding with the NCAA, which refused to reverse it. Tuite originally approved of the Compliance Office s response. But the st dent s parents angrily attacked her, alleging their son was not supported, requesting that SJSU handle the matter in-ho se, and threatening to elevate their concerns up the chain of command. In fact, Tuite rote to O Brien on Febr ar 5, 2020, in reference to the earlier gambling episode: these parents ere read to go to the President s Office . We m st al a s s pport o r st dentathletes. Especiall hen the don t do the right thing. (emphasis added). So she changed course, recanted her earlier approval, and accused Rasm ssen of not being s pporti e eno gh to this particular student. She then called a meeting bet een him and O Brien p rportedl to re ie the process sed b Rasm ssen. She also separatel asked O Brien to ndertake an in estigation, ag el aimed at scr tini ing Rasm ssen s ork on this matter. 2 SJSU separately has its own policies related to disciplining athletes found guilty of any of these activities. 3 O Brien complied, interviewing several individuals including Rasmussen and other compliance staff members, concluding that Rasmussen and the compliance staff adhered to all governing policies. Rasmussen followed NCAA reporting processes, corroborated his findings with significant documentation, and reached the right conclusion. Under brightline NCAA rules, 170 admitted instances of gambling was not a close call. O Brien reported his findings to T ite. Apparently unsatisfied, on December 14, 2019 Tuite instr cted O Brien to discipline Rasmussen by way of a mid-year performance evaluation, admonishing Rasmussen for his purported condescending tone. Because O Brien had never personally witnessed such conduct, he grew concerned that taking unjustified adverse action against Rasmussen, at the direction of Tuite, could amount to retaliation for Rasm ssen s compliance duties. Concurrent with this incident, in January 2020 Rasmussen and Sage Hopkins, SJSU s Head Swimming and Diving Coach, were also instrumental in uncovering other potential NCAA violations. Both SJSU and the NCAA strictly prohibit student-athlete drug use. Such behavior can result in a range of punishments including suspension, ineligibility, and removal from all athletic competition for the remainder of the athlete s career. SJSU s Athletic Department is empowered to enforce these rules by requiring any student-athlete reasonably suspected of engaging in drug use to submit to a drug test. Hopkins received a complaint in January 2020 from one of his swimmers that an SJSU star football player s home, shared ith s immers, smelled like marij ana and had the presence of drug paraphernalia. Hopkins relayed the complaint to Rasmussen in or around February 2020 to investigate. Rasmussen investigated and found reasonable suspicion to subject the athletes to a drug test. Consistent with her earlier pattern, Tuite initially agreed with Rasmussen. However, when the football coach angrily confronted Tuite abo t the pla er s test, she outright admonished Rasmussen, but claimed I m not concerned abo t the testing itself, I m concerned about the process. T ite, itho t e identiar basis, then accused both Rasmussen and Hopkins of racial profiling as the basis for seeking the drug test. Ultimately, the football player and swimmers took drug tests. The test results for the swimmers became known. Tuite told the athletic trainer who administered the tests not to share the res lts of the football pla er s test, and admitted to O Brien that SJSU had the res lts, b t did not share them. On January 31, 2020, O Brien spoke with Joanne Wright, Senior Associate Vice President for University Personnel, to express his widespread concerns over a culture of retaliation against compliance within the Athletics Department, citing these two among many other concerns.3 And meanwhile Tuite would not relent. During the week of February 2, 2020, she demanded that O Brien issue a negative performance review of Rasmussen. O Brien as concerned that such unjustified discipline amounted to unlawful retaliation. O Brien again 3 Prior to this e change, Mr. O Brien also met with Faculty Athletics Representative Tamar Semerjian, in or around December 2019 or January 2020, wherein he raised the same issues. Semerjian suggested O Brien speak with Joanne Wright, which he did, on January 31, 2020. 4 sought Wright s ad ice for how he should proceed. Rather than substantively address O Brien s serious broader concerns abo t the chilling effect that T ite s actions ere ha ing, Wright suggested wordsmithing Rasm ssen s performance re ie to compl ith T ite s directi e and mentioned offhand that perhaps O Brien and T ite had comm nication diffic lties that co ld be addressed in a mediation. On Febr ar 4, 2020, O Brien explicitly wrote to Wright: I ha e ide-ranging concerns within our department. . .I need to submit a 12month MPP evaluation for a member of my staff [Rasmussen]. As I shared the other day, I am being directed by Marie [Tuite] to put something in the review that I believe to be factually untrue. . . this evaluation directive relates to a larger issue relating to the handling of an NCAA Compliance matter involving a student-athlete ho as declared ineligible on acco nt of sports agering. Neither Wright nor SJSU substantively addressed O Brien s disclos re. With his concerns unaddressed and feeling that SJSU s NCAA compliance as serio sl compromised b T ite s cond ct, O Brien sent Lisa Millora, the University President s Chief of Staff, a text message on February 5, 2020 stating: I belie e that o r head of compliance is being b llied/intimidated b o r Athletics Director o er a dr g testing matter that I too am tro bled b . . . I m sorr to te t o , b t I am seeing Marie s comm nications ith Da id [Rasmussen]; I know much of the context of this situation and it is all deeply tro bling. This complaint was again never substantively addressed by SJSU. On February 9, 2020, O Brien elevated his disclosure in a written complaint to General Counsel for both SJSU and the CSU system, describing T ite s attempts to solicit O Brien, Joanne Wright, and Eileen Daley to retaliate against Rasmussen, related to the foregoing NCAA compliance issues explained above. O Brien s ritten complaint is attached hereto as Exhibit 1, the allegations of which are incorporated herein by reference. SJSU did not substantively respond, but in a February 25, 2020 staff meeting, Tuite took approximately 40 minutes to disc ss the a s in hich she felt Rasm ssen had taken process missteps related to carrying out his compliance functions. B. O Brien Opposed, and Made Known His Opposition to, SJSU s Interference with an Active Title IX Investigation In 2009, SJSU s Director of Sports Medicine and Head Athletic Trainer Scott Shaw was accused of sexual misconduct toward more than a dozen female athletes. Shaw allegedly touched over a dozen female athletes beneath their undergarments, massaging their breasts and pelvic areas when they sought treatment for other parts of their bodies, without explicit consent or the presence of a chaperone. SJSU initiated a Title IX investigation in 2009, which quietly cleared Shaw of wrongdoing. 5 Various aspects of the Uni ersit s initial in estigation have been widely criticized by student-athletes and employees. For example, rather than investigate their accounts individually, SJSU only investigated a formal complaint from one swimmer and treated the other swimmers' claims as witness statements. SJSU has publicly admitted as much. Several swimmers complained that itness statements the earlier s bmitted to SJSU s Title IX office m sterio sl disappeared from the casefile. The casefile was purportedly only 2-pages long, despite purportedly encompassing accounts from approximately seventeen women over a period of several years. Regardless of finding no rongdoing at the concl sion of the 2009 investigation, SJSU adopted an unwritten policy prohibiting Shaw from treating female athletes. Hopkins originated the 2009 investigation out of serious concern for the health and safety of his athletes, and to protect his s immers from Sha s predator and nla f l beha ior. Notwithstanding SJSU s post-investigation order prohibiting Shaw from treating female athletes, Hopkins learned in the intervening decade from his own athletes that Shaw continued to treat and sexually abuse athletes. In 2018 Hopkins notified SJSU leadership of reports he received from over a dozen athletes abo t Sha s ongoing ab se. Hopkins fo nd serio s fla s in SJSU s original 2009 investigation. He alleged that SJSU spoliated evidence in the spring of 2018 and that there were other female st dent athletes ho ere ictims of Sha s ab se, aside from the one selected for the Uni ersit s investigation. Hopkins explicitly named Tuite and Eileen Daley as complicit in the alleged cover- p nder SJSU. His ritten complaint to SJSU detailed T ite s handling of past and continuing allegations of discrimination and sexual abuse. Hopkins documented his findings in a nearly 300-page file which he s bmitted to SJSU s campus police, Tuite, and ultimately multiple state and federal agencies, including the NCAA, imploring the University to re-open its investigation. Hopkins is not the only person to have raised similar concerns. Tuite and the Athletic Department have been widely criticized for either failing to address serious student complaints or pre enting st dents from making them. For e ample, on Ma 21, 2019, 44 of SJSU s Di ision I student-athletes delivered a signed letter to its President, detailing their experiences of injustice, unfair treatment, alleged abuse, and mishandled Title IX complaints, improper treatment by team doctors, and threats from T ite. SJSU s ne spaper the Spartan Daily received dozens of additional complaints after this letter was sent, which it publicly reported. And also in May 2019, a former Athletic Department employee noted that three student athletes complained in a meeting to Daley, who told each st dent h their complaints ere rong and that for the good of SJSU the sho ld gi e her the name of an additional corroborating st dent athletes ho ha e iss es ith [T ite.] The Athletic Department s reaction to s ch complaints has been widely criticized. In response to Hopkins reports, the NCAA notified SJSU that it took his report very seriously, lacked the resources to investigate itself, but strongly recommended that SJSU renew its earlier investigation. In December 2019, the University heeded this recommendation. SJSU s President Mary Papazian issued a public statement in January 2020 announcing it was retaining an outside investigator and the California State University System Title IX coordinator would 6 s per ise the in estigation ith the e plicit p rpose of avoid[ing] any potential conflicts of interest. Pres mabl , this reopened investigation partially sought to uncover whether any wrongdoing occurred on behalf of SJSU personnel intimately involved in the original investigation, such as Tuite. O Brien as generall a are of the Title IX in estigation and s bseq ent concerns regarding Shaw, however he became acutely aware of it in early December 2019. At that time Da id Rasm ssen bro ght to O Brien s attention that the Title IX investigation was re-opened in part because of Hopkins 300-page submission. Rasmussen pro ided O Brien ith a cop . O Brien re ie ed the file and disc ssed it ith Hopkins in late December 2019. Witho t passing j dgment on the merits of Hopkins acc sations, O Brien became a are that great care must be taken to ensure that any adverse actions related to Hopkins must be justified and welldocumented in order to avoid any retaliation, or appearance of retaliation, against Hopkins. Despite his concerns about avoiding any acts that could be perceived as retaliation against Hopkins, O Brien still performed his duties relative to Hopkins and others implicated in the Title IX investigation. For example, in December 2019, Dale asked O Brien to meet ith members of the swimming/diving team, out of concerns about Sports Medicine care, related to the experience level of a trainer assigned to the team. O Brien did so and Dale responded b expressing her gratitude for his involvement. In early 2020, Daley again approached O Brien, rela ing to him that she and Hopkins ere not getting along. O Brien willingly offered to facilitate a mediation of sorts, to rehabilitate Hopkins and Dale s relationship. At the last minute, she called the meeting off. On February 2, 2020, Hopkins emailed up to ten individuals, including Mountain West Conference Staff, Rasmussen, and members of the NCAA, detailing allegations to support his belief that the re-opened Title IX in estigation contained the same serio s fla s as SJSU s initial investigation. Hopkins email e plicitl critici ed T ite and Dale as being complicit in co ering p Sha s ab se. Upon learning of the email, Tuite summoned O Brien into her office to cross-examine him about h he failed to immediatel report Hopkins opposition to her. O Brien as stunned by the question and concerned that Tuite did not see the danger in soliciting information from a subordinate regarding a department whistleblower such as Hopkins and suggesting that the s bordinate be a cond it for informing on the histleblo er. On Febr ar 6, 2020, T ite directed O Brien to discipline Hopkins for p rported aggression against Dale . She told O Brien a No Contact Order o ld be iss ed against Hopkins on Dale s behalf d e to her alleged feelings of nsafet , that SJSU so ght to change Hopkins supervisor, and issue Hopkins a formal Letter of Concern. Tuite explained she was precluded from disciplining Hopkins herself, presumably because of the active Title IX investigation of which she was a subject, initiated by Hopkins. She informed O Brien that d e to a conflict of interest, she would not be able to carry out actions against Hopkins. She told O Brien to do it for her. 7 A few days later, Tuite launched attacks against Rasmussen for purportedly siding with Hopkins. T ite rote to Wright and O Brien on Febr ar 10, 2020, anno ed that Rasm ssen did not share the email from Hopkins ith her, noting Ste e [O Brien] did not belie e the information Da id [Rasm ssen] pro ided rose to the le el to alert me. . . It s imperati e that a meeting take place . . . [to] better nderstand Da id s participation in the emails I m st tr st his actions and intentions. On Febr ar 12, 2020, O Brien responded, stating that he did not share the information ith T ite beca se he felt it o ld be inappropriate to do so on acco nt of there being an acti e investigation in which you are identified as being a participant. I hope you understand my reservations under those circumstances. T ite s demand that O Brien discipline Hopkins, after Hopkins caused an investigation to be opened up against her, constitutes interference with the active investigation, or retaliation against Hopkins as a histleblo er, or both. At a minim m, T ite s cond ct appears to iolate SJSU s o n p blicl stated polic related to the investigation, which states: To avoid any potential conflicts of interest, an independent investigator has been hired and the California State University systemwide Title IX Coordinator is s per ising the in estigation at the ni ersit s request. To ensure fairness, President Papazian has asked that all parties named as part of the original investigation refrain from any actions that could interfere in the review of the accounts from 2009-10. (emphasis added). As was his customary practice, O Brien sought to perform his job to the best of his ability which included following his s per isor s directi es. In order to carry out the discipline in good faith, O Brien so ght to independentl erif the gro nds for discipline. By phone on February 6 and in person on February 7, O Brien approached Joanne Wright to ask hat SJSU s basis was for disciplining Hopkins. She responded that Hopkins had acted unprofessionall which caused Daley s feelings of unsafety. When asked for examples, Wright could not provide any, aside from a few emails which she quickly flipped through but ref sed to print for O Brien. At that point, O Brien made clear to Wright that he had serious reservations about the request for him to discipline Hopkins without independently-confirmed evidence at the upcoming meeting. Aside from the re-opened Title IX investigation, Hopkins had also recently reported a st dent athlete s alleged dr g se to SJSU s compliance department. O Brien harbored reasonable concerns that any unjustified action he took against Hopkins, at the direction of Tuite and Daley, could be construed as unlawful retaliation against a whistleblower. Wright s sole response as: are o ref sing to do o r job as an administrator? O Brien immediately understood that SJSU was gi ing him a no- in choice to either discipline Hopkins on T ite s behalf and risk retaliating against a whistleblower, or ref se to take T ite s directive, and appear insubordinate. 8 In a good faith effort to seek assistance in the difficulty of this predicament, on February 10, 2020, O Brien, with the assistance of counsel, sent a ritten complaint to CSU s Office of General Counsel, which laid out specific instances of retaliation, disregard for legal compliance and student safety, interference with an active Title IX investigation, and included T ite s attempts to solicit the help of O Brien, Joanne Wright, Eileen Dale in retaliating against Hopkins, in addition to the incidents involving Rasmussen discussed above. O Brien ne er received a substantive response to this letter. Despite explicitly voicing opposition to Tuite s and Wright s directi es to discipline Hopkins, O Brien made a good faith effort to comply with his marching orders. On February 11, 2020, O Brien, Wright, Hopkins, and his union representative met for O Brien to discipline Hopkins. O Brien met ith Wright beforehand to prepare, and she e plained a No Contact Order as iss ed against Hopkins the da before and that she had changed her mind and now preferred not to issue a formal Letter of Concern. The meeting began relati el innoc o sl . O Brien told Hopkins abo t the abo ementioned performance concerns, the change to his s per isor, and that a formal Letter of Concern would not be issued against him at this time. Hopkins was given the opportunity to ask questions and expressed genuine concern and confusion about what of his actions made Daley and/or Tuite feel unsafe. In response, Wright identified an email exchange between him and Dale as the e cl si e basis for her feelings. He asked hether either O Brien or Wright ere aware of the re-opened Title IX investigation, or the NCAA drug-testing matter, each of which criticized Daley and Tuite directly. He asked whether the discipline being administered against him co ld be percei ed as retaliator . O Brien tried to respond honestl , and said that s ch an interpretation was possible. Upon hearing this response, Wright abruptly ended the meeting, telling Hopkins and O Brien: It seems like o g s ha e spoken to one another. Immediately after this meeting, Wright asked O Brien if he had spoken to Hopkins before the meeting. O Brien told her definiti ely: no. At 6:31am the next day, February 12, 2020, T ite emailed O Brien asking for his meeting notes b 2pm toda . O Brien offered to isit and talk it o er hen I get back to the office tomorro , a response that appeared to displease Tuite. O Brien reasonably believed that providing her detailed notes from the meeting and complying with Tuite and Dale s directi e to discipline Hopkins could amount to retaliation against a whistleblower. On Febr ar 13, 2020, Hopkins rote a letter to SJSU s President, explaining his belief that the administrative action SJSU planned to take against him was retaliatory and designed to undermine Hopkins credibility to avoid re-opening the Title IX investigation. That same day, Wright emailed O Brien in a nearl t o-page purported recitation of their meeting two days earlier. Wright wrote: it as e ident that o and Coach Hopkins had orked together on questions he was going to ask you and answers you would give, particularly since you made it a point to talk about the Letter of Concern at the beginning of the meeting even 9 tho gh one as not iss ed and that Coach Hopkins s prepared q estions referenced a Letter of Concern. . . . According to Wright, beca se O Brien called one of the nion representati e s q estions a good q estion, he as essentiall condoning Hopkins s actions to ards Dale as appropriate. She f rther e plained she ended the meeting as it was clear that you and Hopkins were working in tandem and that you had shared confidential personnel information with Hopkins and his representative prior to the meeting and intended to continue discussing that information at the meeting Finall , Wright closed her email recommending that O Brien re ie SJSU s confidentialit polic and proceed accordingly. (emphasis added). Wright s admonishment was a thinl eiled effort to reprimand O Brien for her ie that he as associating ith Hopkins as a histleblo er. O Brien did not disc ss this meeting ith Hopkins prior to the meeting itself. B t e en if he did, it is nclear h a disc ssion ith O Brien prior to their meeting o ld breach SJSU s confidentiality policy. Rather, Wright was simply castigating anyone she viewed as trying to expose wrongdoing. Aside from O Brien s o n histleblo ing disclos res, it as clear that SJSU associated Hopkins and O Brien ith each other, s ch that Hopkins contin ed histleblo ing triggered a series of ad erse emplo ment actions against O Brien. SJSU perceived a similar association bet een Rasm ssen and O Brien. Indeed, T ite s indirect retaliation against Rasm ssen for this same fact al e ent appears to be ongoing, e en after O Brien s termination. On information and belief, on April 20, 2020, Tuite wrote to Rasmussen: Beca se I ha e heard nothing to the contrar , I belie e Sage [Hopkins] made the false statements he did based upon information you provided to him. It was unprofessional, and a lapse of judgment, on your part to even mention my name (or Eileen [Dale ] s). Or disc ss Eileen [Dale ] at an time . . . Upon receipt of several emails from [Hopkins], and in support of the truth, you should have immediately put in writing that his statements regarding Eileen and I were creating a c lt re of non-compliance ere false. Yo r fail re to admit o r phone conversation with Sage (until last week) is, again, a sign of a poor decision. On February 20, 2020, SJSU sent an internal memo placing a Legal Hold on certain doc ments, o t of a p rported reason to belie e a legal proceeding co ld res lt in connection ith allegations made b Ste e O Brien, Dep t Director of Athletics. And on Febr ar 28, 2020, T ite remo ed Rasm ssen from O Brien s reporting line, and prohibited O Brien from attending the Mountain West Tournament that upcoming weekend. As the WBB Sport Administrator and Primary Basketball Administrator for the MW Tournament, this is unquestionably a punitive measure, and unwarranted under normal circumstances. 10 On March 2, 2020, SJSU terminated O Brien,4 with striking temporal proximity to his whistleblowing conduct. When asked why, Tuite did not respond, other than to sa O Brien did not meet [her] expectations of her Dep t Director. The realit is that O Brien o ld not participate in T ite s co er-ups, and she fired him as a result. On March 19, 2020, O Brien exercised his reconsideration rights under Section 427728, Title 5, CA Code of Regulations, asking SJSU to reconsider its decision to terminate him. On March 24, 2020, Tuite declined, stating simpl : I do not find a basis for modif ing the decision to non-retain o . O Brien f rther appealed this decision to SJSU s President on March 29, 2020, which she declined to overturn on April 3, 2020. In s m, SJSU directl retaliated against O Brien for histleblo ing, making a series of protected disclosures, opposing, and refusing to participate in the Uni ersit s rongf l conduct that reasonably appeared to be retaliation against other whistleblowers or individuals responsible for compliance. SJSU also indirectly retaliated against him by perceiving his association with Hopkins and/or Rasmussen as whistleblowers in their own right. SJSU terminated O Brien for failing to participate in, and other ise opposing its unlawful or otherwise unethical conduct related to NCAA bylaws, and the active Title IX investigation. O Brien raised a n mber of protected complaints to Joanne Wright, Lisa Millora, Stephen Silver, Faculty Athletics Representative Tamar Semerjian, Athletic Director Marie Tuite, and SJSU President Mary A. Papazian between January 31 and February 10, 2020 regarding Athletic Director Marie T ite s nla f l, retaliator cond ct. In close temporal pro imit to his opposition, SJSU stripped O Brien of material duties, divested him of customary privileges associated with his employment, and on March 2, 2020, terminated him. There was a blatant connection bet een O Brien s histleblo ing cond ct and his termination. O Brien has been depri ed of ages, has and will suffer severe professional reputational harm and has s ffered emotionall as a direct and legal res lt of Defendants wrongful conduct as alleged herein. A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. O Brien s ffered s bstantial financial loss and contin es to s ffer s bstantial financial loss far in e cess of $25,000. O Brien, therefore, is not req ired to state an e act amo nt of damages, as those damages will be proved (and provided to the University) after discovery and expert testimony about his financial loss. This case will be an unlimited civil action. Present Causes of Action 4 In very close temporal proximity to O Brien s termination, Trac Ts ga a, SJSU s Title IX coordinator abruptly resigned from the Uni ersit itho t e planation after j st o er a ear on the job. A 20-year veteran of civil rights investigations, Tsugawa played a key role in the new probe as the official who reconnected with and interviewed the 2009-10 swimmers. Tsugawa gave no reasons for her departure, other than that complications arose ith the in estigation. 11 (1) Retaliatory discharge for engaging in protected activity in violation of Cal. Gov. Code Section 12940(h) and other applicable provisions; (2) Retaliatory discharge for engaging in protected activity in violation of 42 U.S.C. Section 2000e-3(a) and other applicable provisions; (3) Retaliatory discharge in violation of Cal. Lab. Code Section 1102.5; (4) Retaliatory discharge in violation of California Government Code Section 8547 et seq. (5) Intentional infliction of emotional distress; and (6) Other causes of action arising out of the same incidents, occurrences, events, or common nucleus of operative facts. O Brien reser es the right to incl de additional ca ses of action based on contin ed investigation and the facts giving rise to this dispute. The name or names of the public employee or employees causing the injury, damage, or loss, if known. San Jose State University California State Universities Marie Tuite Eileen Daley Joanne Wright Mary Papazian 12 EXHIBIT 1 February 9, 2020 To Whom it May Concern: As an attorney, licensed in the State of California, who has sworn to uphold the law, I would like to file a formal complaint raising concerns that relate to violations of state and/or federal law and efforts to discourage appropriate enforcement of NCAA rules. My first complaint relates to the Director of Athletics (Marie Tuite) response to the handling of two compliance/enforcement matters: 1. In a case involving a baseball student-athlete who lost his eligibility on account of making over 170 wagers on college and pro-sports (including on San Jose State), Marie Tuite s communications demonstrated a greater concern for the irate parents (who felt SJSU didn t do enough- it should be noted that in a meeting with the parents, the father asked, Couldn t you just handle this in-house? ) and whether the student-athlete felt supported rather than with the compliance staff carrying-out their official duties. I was directed by Marie Tuite to put a negative note in the Senior Associate AD- Compliance, David Rasmussen s, 12-month MPP review because Marie believed that the student-athlete didn t feel supported enough by David. I questioned this directive with Joanne Wright, who said my only option was to effectively wordsmith it, so that the criticism was not necessarily mine. The timing of Marie s directive is concerning as it was during the same period of time where she was critical of David Rasmussen s involvement in the drug-testing matter below. 2. In a case involving drug-testing, initiated by swimming coach, Sage Hopkins and communicated to our athletic trainers by David Rasmussen, head football coach, Brent Brennan was irate that one of his football players was made to take a drug test on account of another coach s reasonable suspicion. That an angry Brent Brennan said to David and myself, I have never heard of another coach initiating a drug test for another coach s student-athlete! and a desperate plea Do you have any idea what s going to happen to this kid?! Where he ll have to go back to?! is troubling. More troubling is that Marie Tuite ordered athletic trainer, Laura Alexander, not to release the results of the football player s drug test. According to the swim coach (Sage Hopkins), the swimmers tests all came back negative. There are a series of probing, bullying and intimidating emails in which Marie grills David Rasmussen under the guise of wanting to learn more about what process was followed , when the subtle message appeared to be a brush-back pitch for having a very talented wide receiver tested. Moreover, I believe that this particular student-athlete has failed one or more drug tests in the past and has boasted about efforts to conceal his drug use, which raises the specter that people knew, or reasonably should ve known, that this particular student-athlete had been using marijuana previously. In general, Marie Tuite s communications in these matters are designed to intimidate and create a chilling effect around how the compliance staff is able to carry-out their job duties and adhere to NCAA rules and regulations. While David Rasmussen received most of her direct criticism, I was routinely placed in a position where I was pressured to validate her false narratives or face my own retribution and retaliation. Marie Tuite s actions and communications show a wanton disregard for maintaining a commitment and culture of NCAA compliance within the department, while attempting to preserve the veneer of such a commitment by resorting to pretext Oh it s not about the sports wagering, it s about supporting the student-athlete. It s not about the drug testing, it s about the process My second complaint relates to administrative actions against Sage Hopkins, prompted by complaints brought by Eileen Daley, that I am being directed to carry-out by Marie Tuite and Joanne Wright, against my reasonable concern that these administrative actions could constitute retaliation on account of Sage Hopkins recently raising concerns about an allegedly mishandled Title IX investigation that has enough substance to have been reopened, one in which Eileen Daley and Marie Tuite are accused of participating. That Eileen Dale and Marie Tuite are both raising similar concerns about Sage Hopkins mental/emotional state and both are e pressing concern for their safet these administrative actions raise additional concerns that this may be a coordinated effort to discredit Sage Hopkins while there is an active investigation pending. This contention if further supported by an email chain between Marie Tuite and Joanne Wright, on which I was also a recipient, but not an active participant. Claims that Sage is mentally or emotionally unstable may give rise to a defamation cause of action on their face. Finally, that I met privately with Joanne Wright on Friday, January 31, 2020, to express widespread concern about a hostile climate and toxic culture inside San Jose State s Department of Intercollegiate Athletics that as being perpetuated b Marie Tuite s reliance on fear intimidation, bullying and retaliation, and occasional complicity by Eileen Daley, to run the department and suppress dissent creates serious concerns about the impartiality of this proceeding and Marie and Joanne s insistence on moving forward with it. On Friday, February 7, 2020, I raised all of these concerns about the pending Administrative Action meeting with Joanne Wright and she curtly inquired, Are you refusing to do your job as an administrator I emphaticall stated No I am NOT refusing to do m job I am raising concerns about a possible conflict of interest My complaints are being brought forth in good faith and can be supported by emails, other communications and/or other witness testimony that would support their veracity. Please do not hesitate to contact me if you have any questions about these complaints. Sincerely, s/Stephen A. O Brien Stephen A. O Brien Deputy Director of Athletics