Amended Complaint Filed No Fee

Cal. Super. - 6th Dist.March 2, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 21CV379038 Smebm-GW NIALL P. MCCARTHY(SBN 160175) nmccarthy@cpmlegal.com TAMARAH P. PREVOST (SBN 3 13422) tprevost@cpmlegal.com BETHANY M. HILL (SBN 326358) bhill@cpmlegal.com COTCHETT, PITRE & MCCARTHY San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 CHRISTOPHER G. BOSCIA (SBN 258271) BOSCIA LEGAL 1960 The Alameda, Ste. 185 San Jose, CA 95 126 Telephone: (408) 753-6224 chris@b0scialegal.com Attorneysfor Plaintifi’Stephen A. 0 ’Brien Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/6/2021 11:12 AM Reviewed By: Y. Chavez Case #21 CV379038 Envelope: 6784032 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA STEPHEN A. O’BRIEN, an individual, Plaintiff, vs. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY; MARIE TUITE, an individual, and DOES 1 through 25, inclusive, Defendants. Case No. 2 1 CV37903 8 AMENDED COMPLAINT 1. Retaliation in Violation of California Whistleblower Protection Act (Gov. Code § 8547.12) 2. Retaliation in Violation of California Labor Code § 1102.5 DEMAND FOR JURY TRIAL AMENDED COMPLAINT; Case N0. 21CV379038 . Shavez 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................... 1 II. JURISDICTION AND VENUE ..........................................................................................3 III. THE PARTIES ..................................................................................................................... 3 A. Plaintiff .................................................................................................................... 3 B. Defendants ...............................................................................................................4 IV. FACTUAL BACKGROUND ..............................................................................................4 A. O’Brien’s Tenure at SJSU Was Marked with Excellence .......................................4 B. O’Brien Opposed and Refilsed to Participate in Conduct He Reasonably Believed Violated the Law, and Strict Rules and Regulations to Which SJSU Was Bound ............................................................................................................... 5 1. O’Brien Opposed Tuite’s Efforts to Stifle and Undermine Legitimate Compliance With Strict Anti-Gambling Mandates ...................................... 7 2. O’Brien Opposed and Reported Tuite’s Retaliatory Actions Taken Against Rasmussen and Hopkins, For Their Legitimate Compliance Activities Related t0 Student-Athlete Drug Use ..........................................9 C. O’Brien Opposed, and Made Known His Opposition t0, SJSU’s Interference With an Active Title IX Investigation .................................................................... 12 D. O’Brien Escalates His Opposition t0 Illegal Conduct and Improper Governmental Activity Up SJSU’S Chain of Command ....................................... 17 E. SJSU Takes Adverse Action Against, and Terminates O’Brien in Response t0 His Opposition ...................................................................................................20 V. CONDITIONS PRECEDENT TO FILING ACTION ......................................................22 VI. CAUSES OF ACTION ......................................................................................................22 FIRST CAUSE OF ACTION (Retaliation in Violation 0f California Whistleblower Protection Act (Gov. Code § 8547. 12)) (Against CSU Defendant and Marie Tuite) ...........................................................................................................22 SECOND CAUSE OF ACTION (Retaliation in Violation 0f California Labor Code § 1102.5) (Against CSU Defendant) ......................................................................26 VII. PRAYER FOR RELIEF ....................................................................................................27 VIII. DEMAND FOR JURY TRIAL .........................................................................................28 AMENDED COMPLAINT; Case N0. 21CV379038 i 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP I. INTRODUCTION 1. Prior to joining San Jose State University (“SJSU”) as its Deputy Director of Athletics, Stephen O’Brien enjoyed over a decade-long career in intercollegiate athletics at top universities, including the Naval Academy Athletic Association of the United States Naval Academy. O’Brien has a passion for athletics and undertook his role at SJSU With great enthusiasm. In his role, O’Brien reported directly t0 Athletics Director and Defendant Marie Tuite. 2. O’Brien’s work for SJSU was excellent by every available measure: the University wrote performance reviews naming him an “exceptional” employee, and lavished him With bonuses, awards, and salary increases. To match his high degree of competence, SJSU empowered O’Brien With increased responsibility and oversight. Tuite herself handwrote him notes of appreciation and recognition. 3. But in the performance 0f his duties, O’Brien began to observe a series of deeply troubling events and learned 0f a culture 0f fear and intimidation perpetuated by Tuite. While undertaking efforts to maintain SJSU’S compliance with legal and regulatory mandates, several employees were threatened, reprimanded, disciplined, or otherwise retaliated against by Marie Tuite. Tuite also indirectly retaliated against employees, by ordering her direct reports to administer discipline to those who opposed her. She aimed t0 stifle legitimate compliance activities or cover up non-compliance Within the Athletic Department. 4. For example, O’Brien observed Tuite undermine her staff s legitimate compliance activities, when they discovered and properly investigated athletes who had violated NCAA bylaws, anti-gambling mandates, and prohibitions on student-athlete drug use. Seeking to avoid blame and reputational harm, Tuite retaliated against compliance staff Who uncovered clear Violations, and enlisted O’Brien to pretextually discipline them on her behalf. 5. Tuite’s directives were motivated by her own retaliatory motives, rather than any legitimate justification. O’Brien reasonably believed that her directives violated the law, compromised SJSU’S NCAA status, or otherwise constituted improper governmental activity. He opposed her requests and began t0 perceive a pattern. AMENDED COMPLAINT; Case N0. 21CV379038 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 6. Before O’Brien began at SJSU, Director of Sports Medicine and Head Athletic Trainer Scott Shaw was accused 0f sexually fondling more than a dozen female athletes. In 2009 the University conducted a small, quiet investigation, and cleared Shaw of all wrongdoing. But approximately eight years later these athletes and others reported t0 Sage Hopkins, SJSU’S women’s swimming and diving coach, that Shaw’s abuse was ongoing, and that the University’s prior investigation was insufficient. 7. Hopkins quickly realized that SJSU’s initial Title IX investigation was critically flawed. He compiled evidence from female athletes and others into a 300-page dossier imploring the University to renew its investigation. Hopkins explicitly called out Marie Tuite’s role in covering up Shaw’s abuse and stifling the first investigation. SJSU agreed t0 re-initiate a new Title IX investigation, partly due to Hopkins’ reports, and at the recommendation of an outside agency. 8. In the midst of the renewed investigation into Shaw and Tuite, and consistent with her prior pattern, Tuite directed O’Brien, her #2 in the Athletics Department, t0 administer discipline to Hopkins for conduct O’Brien had personally never witnessed. She knew she could not administer such discipline herself as it would be clearly Viewed as retaliatory, so she directed O’Brien t0 d0 it for her. 9. O’Brien believed can'ying out Tuite’s directive would compromise the integrity of the active Title IX investigation, of which she was a subject, 0r worse, constitute unlawfill retaliation. O’Brien lacked personal knowledge 0f the underlying conduct Tuite sought t0 discipline (and the head of SJSU’S Human Resources could not support it), and he pointed out the apparent conflict in What she was asking him t0 d0. O’Brien’s opposition was rebuffed. 10. O’Brien was placed in an untenable position: obey Tuite’s orders and become complicit in her unlawful activities 0r refuse t0 comply and risk appearing insubordinate. 11. Aiming to avoid disobedience, O’Brien participated in a meeting with Hopkins t0 deliver the discipline against him. Nonetheless, O’Brien expressed strong opposition t0 this retaliatory activity and other improper directives administered by Tuite. O’Brien himself became a Whistleblower When he brought this t0 the attention of SJSU administrators Via detailed AMENDED COMPLAINT; Case N0. 21CV379038 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP complaint. After the meeting With Hopkins, With a Tuite loyalist present t0 report back, Tuite ’C‘ expressed displeasure after learning that O’Brien was allegedly on Hopkins side” rather than hers. 12. On March 2, 2020, Defendants terminated O’Brien With striking temporal proximity t0 his Whistleblowing conduct, offering no reason other than his purported “failure t0 fulfill Tuite’s expectations 0f [her] Deputy Director.” 13. Defendants terminated O’Brien for opposing and reporting conduct he reasonably believed to be unlawful, improper, or in Violation of strict regulatory guidelines. With a shining record of well-documented positive performance leading up to his whistleblowing, there is n0 plausible justification for SJSU’s choice t0 terminate O’Brien other than for the unlawful reasons as set forth herein. II. JURISDICTION AND VENUE 14. This Court has jurisdiction over this matter pursuant t0 California Code of Civil Procedure (“CCP”) Sections 71 and 382 by Virtue of the fact that the complained-of acts and practices giving rise to this action took place, in whole 0r in part, in the State 0f California. 15. Venue is proper in the Superior Court for the County of Santa Clara pursuant t0 CCP Section 395 because SJSU is located in, and conducts business Within, the County of Santa Clara, and at all times relevant to this action Plaintiff worked for SJSU within the County 0f Santa Clara. Defendant Tuite also resides in Santa Clara County. 16. The amount in controversy exceeds the jurisdictional minimum of this court. III. THE PARTIES A. Plaintiff 17. Plaintiff Stephen O’Brien is a natural person Who is a resident of California and at all times mentioned in this complaint lived and worked in Santa Clara County. 18. Prior t0 joining SJSU’s ranks, O’Brien enjoyed a successful career in legal and collegiate service. He was the Senior Associate Athletics Director at the United States Naval Academy located in Annapolis, Maryland, for six years. Before that, he was Associate Athletics AMENDED COMPLAINT; Case N0. 21CV379038 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP Director and Assistant Athletics Director at University 0f California at Santa Barbara, and Santa Clara University, respectively. 19. O’Brien earned a juris doctorate from the University of Southern California, Gould School of Law. He is an active member in good standing with the California State Bar. 20. O’Brien has a strong reputation Within the higher education and intercollegiate athletics industry as being values-driven and ethical in his approach t0 work. B. Defendants 21. Defendant the Board of Trustees 0f the California State University (“CSU Defendant”)1 is the State of California acting in its higher education capacity, through the California State University (“CSU”) system. CSU is incorporated as, and governed by, the Board of Trustees 0f the California State University, Which oversees all public universities in the CSU, including San Jose State University. San Jose State University (“SJSU”) is a California public university located in the City of San Jose, Santa Clara County, California. At all times herein alleged in this Complaint, Plaintiff Stephen O’Brien worked 0n SJSU’S campus and was employed by the CSU Defendant, the properly named Defendant in this action. 22. Plaintiff is informed and believes that Defendant Marie Tuite is a natural person Who resides in San Jose, Santa Clara County, California. At all times relevant in this Complaint, this individual was serving as an agent, representative, and/or employee of San Jose State University, in the capacity 0f Athletic Director 0f SJSU. IV. FACTUAL BACKGROUND A. O’Brien’s Tenure at SJSU Was Marked with Excellence 23. SJSU hired O’Brien on August 7, 2017 as a Deputy Athletics Director. O’Brien reported t0 Athletic Director and Defendant Marie Tuite. 24. O’Brien’s performance at SJSU can only be described as exemplary, marked by success, and regularly recognized by the University. In the Fall of 2019, SJSU’S President Papazian appointed him to serve 0n the Search Committee for a new Vice President for 1 The term “CSU Defendant” is used interchangeably herein With “SJSU” for ease 0f comprehension. AMENDED COMPLAINT; Case N0. 21CV379038 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP University Advancement. In January 2020, he assumed oversight of the Athletic Development Staff, an elevated responsibility that was rewarded With a corresponding increase in pay. In each 0f O’Brien’s performance reviews (2017-2018 and 2018-2019), Defendant Tuite gave him the highest overall rating as an “Exceptional” employee. SJSU regularly applauded O’Brien’s performance, lavishing him With several bonuses and awards for his excellent work. For example, in both August 2018 and 2019, O’Brien received a $25,000 bonus for coordinating the Mubadala Silicon Valley Classic, a large professional women’s tennis tournament. In January 2020, just two months before terminating him, University Personnel and Marie Tuite approved a 10% merit increase to O’Brien’s salary on account of additional duties he performed under her direction, including assuming oversight over the Athletic Development Staff. 25. Tuite often specifically applauded O’Brien’s exceptional work. In November 2019, she wrote him a personal note stating: “Your ability t0 evaluate and solve crucial challenges is s0 admirable. I appreciate your ‘collegial’ attitude With your colleagues in and outside the dept.” And in the letter awarding him his $25,000 bonus, Tuite hand-wrote: “Steve, Thank you for your excellent work.” 26. O’Brien’s performance throughout his tenure was excellent by all available measures. It was not until he opposed unjustified and unlawful retaliatory activities by SJSU employees as described herein, that SJSU changed its View of him. The nexus between O’Brien’s Whistleblowing and the dramatic changes t0 his job performance evaluations and ultimate termination is blatant. B. O’Brien Opposed and Refused t0 Participate in Conduct He Reasonably Believed Violated the Law, and Strict Rules and Regulations t0 Which SJSU Was Bound 27. Tuite regularly threatened employees - directly or indirectly - With termination 0r discipline if they failed t0 adhere to her directives, lawful or otherwise. She often told those in her department “Those who make attempts 0n the life of the king aren’t kept in the kingdom very long,” and noted With disdain that non-MPP2 employees were not at-Will and therefore 2 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. AMENDED COMPLAINT; Case N0. 21CV379038 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP “harder t0 fire.” Tuite often expressed a strong preference towards at-Will employees Whom she could more easily control, and followed these words With action: several SJSU employees during O’Brien’s tenure who opposed protected activity were reprimanded, disciplined, involuntarily resigned, or were terminated pursuant t0 Tuite’s directives. The culture of silence was perpetually promoted by the retaliatory atmosphere she created. 28. As a member of the NCAA, a “member-led organization dedicated to the well- being and lifelong success of college athletes,” SJSU is bound by strict regulations governing the conduct 0f its student-athletes and athletic department employees, including regulations that address Violations 0f federal, state, and local laws that prohibit drug use, gambling, discrimination 0n the basis of sex, and sexual assault.3 29. O’Brien reasonably believed that retaliatory acts against Athletic Department employees for encouraging NCAA compliance could compromise SJSU’S membership with the NCAA and lead to costly and Wide-reaching consequences for the Athletic Department and University. 30. For several years before and during O’Brien’s employment, SJSU’s Athletic Department has been marred with NCAA compliance issues, resulting in heavy scrutiny by regulators. For example, SJSU’s non-compliance caused the NCAA t0 place the women’s basketball team on probation from 2016-2017. SJSU’S baseball program was placed on NCAA probation from 2018 until after O’Brien’s departure from SJSU. 31. O’Brien was aware of these compliance issues, and received internal reports from multiple sources that Tuite fostered a culture 0f retaliation and regularly threatened employees Who opposed her. This conduct created a chilling effect 0n compliance. In two specific instances as set forth below, O’Brien himself witnessed unjustified adverse actions against employees engaged in compliance that he reasonably believed amounted to unlawful retaliation. When he voiced opposition to those actions, SJSU fired him. /// 3 SJSU separately has its own policies related to disciplining athletes found guilty of any of these activities. AMENDED COMPLAINT; Case N0. 21CV379038 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 1. O’Brien Opposed Tuite’s Efforts to Stifle and Undermine Legitimate Compliance with Strict Anti-Gambling Mandates 32. Student-athletes are prohibited, by state and federal 1aw,4 NCAA bylawss and SJSU internal policies6 from gambling 0n intercollegiate athletics. Students who Violate these rules risk automatic loss of eligibility t0 compete. Violations can also detrimentally impact SJSU’s NCAA membership status. 33. SJSU’S Compliance Department is tasked with investigating potential Violations 0f the NCAA’S gambling prohibitions and is responsible for meting out potential Violations and taking appropriate disciplinary action against a student found, after sufficient investigation, to have engaged in prohibited conduct. SJSU is also required to “self-disclose” any discovered Violations t0 the NCAA so it can determine appropriate action. 34. In October 2019, David Rasmussen, SJSU’s Senior Associate Athletic Director for Compliance, learned that a student-athlete had allegedly participated in over 170 unlawful gambling wagers 0n a variety of collegiate and professional sports. SJSU’s Compliance staff began its customary process beginning With a “self-disclosure” t0 the NCAA. The NCAA deemed the student ineligible to compete in SJSU athletics. The athlete admitted t0 all alleged Violations, but still appealed his ineligibility finding with the NCAA, Which refilsed to reverse it. 35. Tuite originally approved 0f David Rasmussen’s response t0 this student’s conduct. But 0n December 12, 2019, the student’s parents sent a furious email to Tuite, accusing SJSU 0f not sufficiently “supporting” their son, demanding that SJSU handle the matter “in- house,” and threatening t0 elevate their concerns up the SJSU chain of command. 4 California Constitution Article IV. For part of O’Brien’s employment, until May 2018, intercollegiate gambling was also illegal under federal law. See Murphy v. National Collegiate Athletic Ass'n (2018) 138 S.Ct. 1461. 5 NCAA Bylaw 10.3. 6 See San Jose State University Student Athlete Handbook (October 20, 2020 version) p. 15 (available at https ://sjsuspartans.com/documents/ZOZO/ 1 O/6//San_Jos_State_University_Student_Athlete_Han dbook_MKS_FINAL_COPY_Oct_2020 .pdf?id=4873 ). AMENDED COMPLAINT; Case N0. 21CV379038 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 36. In response to pressure from these parents, Tuite changed course, deflected blame t0 Rasmussen, accusing him 0f not being “supportive enough” t0 this student, and calling a meeting with him and O’Brien purportedly t0 “review” the “process” Rasmussen used to arrive at his conclusion that this student had violated NCAA rules. She also asked O’Brien t0 independently investigate Rasmussen’s “process.” O’Brien complied, interviewing several individuals including Rasmussen and other Compliance Department staff members. From everything O’Brien could see, Rasmussen and the compliance staff adhered t0 all governing policies. Rasmussen followed NCAA reporting processes, corroborated his findings with significant documentation, and reached the right conclusion. 170 admitted instances 0f gambling clearly violated brightline NCAA rules, not t0 mention state law. This was not a close call by any measure. 37. On December 14, 2019, only two days after receiving the email from the student’s parents, Tuite also separately asked O’Brien for any documents or emails regarding allegedly “inappropriate” or “condescending” behavior on the part of Rasmussen, Which she wanted included in his next performance evaluation. O’Brien had never personally witnessed such conduct, and Tuite could not corroborate it. However, Tuite persisted in this request for over two months. 38. On February 4, 2020, O’Brien elevated his concerns t0 Senior Associate Vice President for Personnel, Joanne Wright, writing: “I am being directed by Marie [Tuite] to put something in the review that I believe to be factually untrue...this evaluation directive relates t0 a larger issue relating to the handling 0f an NCAA Compliance matter involving a student- athlete Who was declared ineligible 0n account of sports wagering.” 39. In another email from the same day, O’Brien wrote t0 Ms. Wright: “[Tuite]’ s urgency for me to provide her with [Rasmussen]’ s review, where she ls directing me t0 put information in there Which I believe t0 be untrue, is particularly troubling as we are in the throes of an NCAA Drug Testing matter, a separate issue...1 see [Tuite] trying to ‘build a case’ against an employee under false pretenses.” AMENDED COMPLAINT; Case N0. 21CV379038 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 40. Wright ignored the gravity of O’Brien’s concerns. In fact, her response appeared t0 be an admission that opposing Tuite would be a dangerous choice for O’Brien to make: she advised O’Brien 0n how to comply with Tuite’s directives while also shielding his own opposition to them. On February 4, 2020, she wrote: “as your direct supervisor, Marie reviews the evaluation...You may write ‘There have been concerns expressed that ( ..........)’ 0r ‘The Athletic Director has expressed concerns about ( ......... ).’ I hope this is helpful.” Wright did not address O’Brien’s substantive concerns about being forced t0 write an untrue review: her “advice” was aimed at wordsmithing t0 avoid Tuite’s wrath. 41. On February 5, 2020 Tuite wrote to O’Brien expressing displeasure with Rasmussen, stating: “these parents were ready to g0 to the President’s Office. We must always support our student-athletes. Especially when they don ’t d0 the right thing.” 42. Given the history 0f Tuite’s unfounded investigations into Rasmussen and the close temporal proximity between her requested discipline and Rasmussen’s compliance work, O’Brien reasonably believed that taking unjustified adverse action against Rasmussen at the direction of Tuite, amounted t0 retaliation for Rasmussen’s compliance duties. 2. O’Brien Opposed and Reported Tuite’s Retaliatory Actions Taken Against Rasmussen and Hopkins, For Their Legitimate Compliance Activities Related t0 Student-Athlete Drug Use 43. Concurrent with the foregoing gambling incident, in January 2020, Rasmussen and Sage Hopkins, SJSU’s Head Swimming and Diving Coach, were also instrumental in uncovering other potential NCAA Violations. 44. Both SJSU and the NCAA strictly prohibit student-athlete drug use.7 A Violation 0f these strict rules can result in a range 0f punishments for the transgressing athlete including suspension, ineligibility, and removal from all athletic competition for the remainder 0f 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 t0 submit t0 a drug test. 7 See footnotes 5 and 6, supra. AMENDED COMPLAINT; Case N0. 21CV379038 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 45. Hopkins received a complaint in January 2020 from one 0f his swimmers that an SJSU star football player’s home, shared With swimmers, smelled like marijuana and contained drug paraphernalia. Hopkins relayed the complaint t0 Rasmussen in or around February 2020 for investigation. Rasmussen investigated and found reasonable suspicion t0 subject the athletes involved t0 a drug test, pursuant t0 SJSU’S long-standing policies. This is a customary reaction to such reports. 46. Consistent With her earlier pattern, Tuite initially agreed With Rasmussen. However, When the student’s football coach angrily confronted Tuite about the player’s test and emphasized the negative impact to the athlete should he test positive, she once again, quickly shifted blame to Rasmussen t0 deflect it off herself. Tuite sharply admonished Rasmussen, claiming, “I’m not concerned about the testing itself, I’m concerned about the process.” 47. Tuite, without evidentiary basis, then outrageously accused both Rasmussen and Hopkins 0f racial profiling as the basis for seeking the drug test. Ultimately, the football player and swimmers submitted t0 drug tests. The test results for the swimmers became known, but Tuite, eager to conceal the results of the football player for some unknown reason, told the athletic trainer who administered the tests not t0 share the results of the football player’s test, to inappropriately protect him. She told O’Brien that SJSU had the results, but did not share them with any compliance personnel. 48. On January 31, 2020, O’Brien spoke With Joanne Wright, Senior Associate Vice President for University Personnel, t0 express his Widespread concerns over a culture 0f retaliation against compliance within the Athletics Department, citing these two among many other issues. Prior t0 this exchange, Mr. O’Brien also met With Faculty Athletics Representative Tamar Semerjian, in or around December 2019 0r January 2020, wherein he raised the same issues. Semerjian suggested O’Brien speak with Joanne Wright, which he did, on January 31, 2020. 49. Ms. Wright did not provide substantive guidance to O’Brien about his challenges in the Department. AMENDED COMPLAINT; Case N0. 21CV379038 10 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 50. Meanwhile Tuite would not relent in her retaliatory campaign. During the week 0f February 2, 2020, she demanded O’Brien issue a negative performance review 0f Rasmussen. O’Brien again reasonably believed this discipline was unjustified: as far as he had seen, Rasmussen was performing his job with a high degree 0f integrity and professionalism. He reasonably believed Tuite’s requests amounted t0 unlawful retaliation. 51. O’Brien again sought Wright’s advice for how he should proceed. And again, rather than substantively address his serious broader concerns about the chilling effect that Tuite’s actions were having, Wright suggested “wordsmithing” Rasmussen’s performance review to comply with Tuite’s directive and mentioned offhand that perhaps O’Brien and Tuite had “communication difficulties” that could be addressed in a “mediation.” 52. On February 4, 2020, O’Brien explicitly wrote t0 Wright: “I have Wide-ranging concerns Within our department. . .I need t0 submit a 12- month 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 t0 be factually untrue. . . this evaluation directive relates t0 a larger issue relating t0 the handling of an NCAA Compliance matter involving a student-athlete Who was declared ineligible 0n account 0f sports wagering.” Neither Wright nor SJSU substantively addressed O’Brien’s disclosure. 53. With his concerns unaddressed and feeling that SJSU’s NCAA compliance was seriously compromised by Tuite’s conduct, O’Brien elevated his concern to Lisa Millora, SJSU President’s Chief of Staff. He sent Millora a text message on February 5, 2020 stating: “I believe that our head of compliance is being bullied/intimidated by our Athletics Director over a drug testing matter that I too am troubled by. . . I’m sorry t0 text you, but I am seeing [Tuite]’s communications with [Rasmussen]; I know much of the context of this situation and it is all deeply troubling.” This complaint was again never substantively addressed by SJSU. 54. On February 9, 2020, O’Brien elevated his disclosure in a written complaint to General Counsel for both SJSU and the CSU system, describing Tuite’s attempts t0 solicit O’Brien to retaliate against Rasmussen, related to the foregoing NCAA compliance issues explained above. O’Brien wrote: “I would like to file a formal complaint raising concerns that AMENDED COMPLAINT; Case N0. 21CV379038 11 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP relate t0 Violations of state and/or federal law and efforts t0 discourage appropriate enforcement ofNCAA rules.” 55. SJSU did not substantively respond to O’Brien’s February 9 written complaint, but in a February 25, 2020 staff meeting, Tuite took approximately forty minutes t0 discuss the ways in Which she felt Rasmussen had taken “process missteps” related t0 carrying out his compliance functions. C. O’Brien Opposed, and Made Known His Opposition to, SJSU’s Interference With an Active Title IX Investigation 56. In 2009, SJSU’S Director 0f 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 0f wrongdoing. 57. Various aspects of SJSU’S initial investigation 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. Several swimmers complained that witness statements they earlier submitted t0 SJSU’s Title IX office mysteriously disappeared from the casefile. The casefile was purportedly only 2-pages long, despite encompassing accounts from approximately seventeen women over a period of several years. 58. Despite finding “n0 wrongdoing” at the conclusion of the 2009 investigation, SJSU adopted an unwritten policy prohibiting Shaw from treating female athletes. 59. Hopkins originated the 2009 investigation out 0f serious concern for the health and safety 0f his athletes, and t0 protect his swimmers from What he understood t0 be Shaw’s predatory and unlawful behavior. AMENDED COMPLAINT; Case N0. 21CV379038 12 .b \OOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 60. 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 t0 treat and sexually abuse athletes. 61. In 2018, Hopkins notified SJSU leadership of reports he received from over a dozen athletes about Shaw’s ongoing abuse. Hopkins found serious flaws in SJSU’S original 2009 investigation. He alleged that SJSU spoliated evidence in the spring 0f 2018 and that there were other female student athletes Who were Victims of Shaw’s abuse, aside from the one selected for SJSU’S investigation. Hopkins explicitly named Tuite and Eileen Daley as complicit in the alleged cover-up under SJSU. His written complaint to SJSU detailed Tuite’s handling of past and continuing allegations 0f discrimination and sexual abuse. Hopkins documented his findings in a nearly 300-page dossier Which he submitted to SJSU’s campus police, Tuite, and multiple state and federal agencies, including the NCAA, imploring SJSU to re-open its investigation. 62. 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 preventing students from making them. For example, 0n May 21, 2019, over 35 0f SJSU’s Division 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 Tuite.8 SJSU’S newspaper the Spartan Daily publicly reported this issue, as did USA Today, Which reported on February 26, 2021 that an outside investigator found Shaw responsible for claims 0f sexual abuse spanning over a decade.9 8 See Vincente Vera, “Student athletes speak out against athletics culture and leadership at San Jose State,” SJSUNews.com (May 29, 2019) (available at https://sisunews.com/article/student- athletes-speak-out-against-athletics-culture-and-leadership-at-san-iose-state). 9 See Former San Jose State top trainer found responsible for sexual misconduct in state probe, available at https://Www.usatodav.com/storv/news/investigations/ZOZ1/02/26/san-iose-state- athletic-trainer-shaW-responsible-sexual-misconduct/6836034002/; see also Former SJSU sports director found responsible for sexual misconduct, available at https://sisunews.com/article/former-sisu-Sports-director-found-responsible-for-sexual- misconduct AMENDED COMPLAINT; Case N0. 21CV379038 13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 63. Also in May 2019, a former Athletic Department employee noted that three student athletes complained in a meeting to Daley, who told each student Why their complaints were “wrong” and that “for the good 0f SJSU” they should give her the name 0f any additional corroborating student athletes Who have issues With [Tuite.]” The Athletic Department’s reaction t0 such complaints“) has been Widely criticized.“ 64. In response t0 Hopkins’ reports, the NCAA notified SJSU that it took his report very seriously, lacked the resources t0 investigate itself, but strongly recommended that SJSU renew its earlier investigation. In December 2019, SJSU 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 supervise the investigation With the explicit purpose of “avoid[ing] any potential conflicts of interest.” Presumably, this reopened investigation partially sought to uncover whether any wrongdoing occurred 0n behalf 0f SJSU personnel intimately involved in the original investigation, such as Tuite. 65. O’Brien was generally aware of the Title IX investigation and subsequent concerns regarding Shaw, however he became acutely aware of it in early December 2019. At that time Rasmussen brought to O’Brien’s attention that the Title IX investigation was re-Opened in part because of Hopkins’ 300-page submission. Rasmussen provided O’Brien with a copy. O’Brien reviewed the file and discussed it With Hopkins in late December 2019. Without passing judgment on the merits of Hopkins’ accusations, O’Brien became aware that great care must be taken t0 preserve the integrity of any resultant investigation, which involved serious, deeply troubling conduct against SJSU’s female students. 66. O’Brien knew that part 0f preserving the integrity 0f Hopkins’ investigation would be to ensure that t0 the extent any adverse action against Hopkins were necessary, that 10 O’Brien had no knowledge of, nor role in, the Athletic Department’s handling 0f these complaints. 11 See footnotes 8-9, supra. AMENDED COMPLAINT; Case N0. 21CV379038 14 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP such action be justified and well-documented in order to avoid any retaliation, or appearance 0f retaliation, against Hopkins. 67. Notwithstanding this understanding, O’Brien still performed his duties relative to Hopkins and others implicated in the Title IX investigation. For example, in December 2019, Daley asked O’Brien to meet With members 0f the swimming/diving team, out of concerns about Sports Medicine care, related t0 the experience level of a trainer assigned to the team. O’Brien did so and Daley responded by expressing her gratitude for his involvement. 68. In early 2020, Daley again approached O’Brien, relaying to him that she and Hopkins were “not getting along.” O’Brien willingly offered to facilitate a mediation of sorts, to rehabilitate Hopkins” and Daley’s relationship. At the last minute, Daley called the meeting off. 69. 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 investigation contained the same serious flaws as SJSU’S initial investigation. Hopkins’ email explicitly criticized Tuite and Daley as being complicit in covering up Shaw’s abuse 0f female athletes. Hopkins’ presented this information based on firsthand accounts of the student-athletes he coached. 70. Upon learning 0f the email, Tuite summoned O’Brien into her office to cross- examine him about why he failed to immediately “report” Hopkins’ opposition to her. She was angered at What she perceived t0 be an expression of disloyalty. 71. Tuite apparently did not see the danger in soliciting information from a subordinate regarding a department whistleblower such as Hopkins and suggesting that the subordinate be a conduit for “informing” on the Whistleblower. Because Tuite was a key player in Hopkins’ Whistleblowing disclosures, this dynamic was particularly troubling t0 O’Brien. 72. On February 6, 2020, seemingly out of nowhere, Tuite directed O’Brien t0 discipline Hopkins for purported “aggression” against Daley. She told O’Brien a “No Contact Order” would be issued against Hopkins 0n Daley’s behalf due t0 her alleged feelings of “unsafety,” that SJSU sought to change Hopkins’ supervisor, and issue Hopkins a formal Letter 0f Concern. AMENDED COMPLAINT; Case N0. 21CV379038 15 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 73. Oddly, Tuite explained she was precluded from disciplining Hopkins herself, presumably because 0f the active Title IX investigation 0f Which she was a subject initiated by Hopkins. She informed O’Brien that due t0 a conflict of interest, she would not be able to carry out actions against Hopkins. Rather than risk being identified as actively interfering With the investigation against her, she ordered O’Brien to retaliate against Hopkins 0n her behalf. 74. A few days later, Tuite launched attacks against Rasmussen for purportedly siding With Hopkins. Tuite wrote t0 Wright and O’Brien 0n February 10, 2020, annoyed that Rasmussen “did not share” the email from Hopkins with her, noting “Steve [O’Brien] did not believe the information David [Rasmussen] provided rose to the level to alert me. . . It’s imperative that a meeting take place . . . [t0] better understand David’s participation in the emails. .. I must trust his actions and intentions.” (emphasis added). 75. On February 12, 2020, O’Brien responded, stating that he did not share the information with Tuite because he: “felt it would be inappropriate t0 d0 so on account 0f there being an active investigation in Which you are identified as being a participant. I hope you understand my reservations under those circumstances.” 76. Tuite’s demand that O’Brien discipline Hopkins, after Hopkins blew the Whistle against her, constitutes interference with the active investigation 0r retaliation against Hopkins as a Whistleblower, or both. 77. At a minimum, Tuite’s conduct violates SJSU’s own publicly stated policy 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 supervising the investigation at SJSU’S request. To ensure fairness, President Papazian has asked that all parties named as part 0f the original investigation refrain from any actions that could interfere in the review of the accounts from 2009-10. (emphasis added). 78. O’Brien reasonably believed Tuite’s conduct violated the law. AMENDED COMPLAINT; Case N0. 21CV379038 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 79. As was his customary practice, O’Brien sought t0 perform his job t0 the best 0f his ability Which included following his supervisor’s directives. In order t0 carry out the discipline in good faith, O’Brien sought t0 independently verify the grounds for discipline. 80. By phone on February 6 and in person on February 7, O’Brien approached Joanne Wright t0 ask What SJSU’S basis was for disciplining Hopkins. She responded that Hopkins had acted “unprofessionally” 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 refused t0 provide to O’Brien. 81. At that point, O’Brien made clear t0 Wright that he had serious reservations about the request for him t0 discipline Hopkins Without independently-confirmed evidence at the upcoming meeting. Aside from the re-opened Title IX investigation, Hopkins had also recently reported a student athlete’s alleged drug use to SJSU’s compliance department. 82. O’Brien harbored reasonable concerns that any unsupported action he took against Hopkins, at the direction 0f Tuite and Daley, could be construed as unlawful retaliation against a whistleblower. Wright’s sole response was: “are you refusing to do your job as an administrator?” 83. O’Brien immediately understood that SJSU was giving him a “no-Win” choice to either discipline Hopkins on Tuite’s behalf and risk retaliating against a whistleblower, or refuse t0 take Tuite’s directive, and appear insubordinate. D. O’Brien Escalates His Opposition t0 Illegal Conduct and Improper Governmental Activity Up SJSU’s Chain of Command 84. In a good faith effort t0 seek assistance with the foregoing predicament, on February 9, 2020, O’Brien directed a written complaint (described in paragraph 54, above) 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 Tuite’s attempts t0 solicit the help of O’Brien in retaliating against Hopkins, in addition to the incidents involving Rasmussen discussed above. O’Brien never received a substantive response t0 this letter. AMENDED COMPLAINT; Case N0. 21CV379038 17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 85. Notably, despite explicitly voicing opposition t0 Tuite’s and Wright’s directives t0 discipline Hopkins, O’Brien made a good faith effort t0 comply With his marching orders. On February 11, 2020, O’Brien, Wright, Hopkins, and Hopkins’ union representative met for the anticipated purpose 0f having O’Brien discipline Hopkins. O’Brien met with Wright beforehand t0 prepare, and she explained a “N0 Contact Order” had been issued against Hopkins the day before, and that she had “changed her mind” and now preferred not to issue a formal Letter 0f Concern t0 Hopkins. 12 86. The meeting began relatively innocuously. O’Brien told Hopkins about the above- mentioned “performance concerns,” the change to his supervisor, and that a formal Letter 0f Concern would not be issued against him at this time. Hopkins was given the opportunity to ask questions and expressed genuine confusion and concern about What of his actions made Daley and/or Tuite feel unsafe, as that was certainly not his intent. In response, Wright identified an email exchange between him and Daley as the exclusive basis for her feelings. 87. Hopkins asked Whether either O’Brien 0r Wright were aware 0f the re-opened Title IX investigation, or the NCAA drug-testing matter, each 0f which criticized Daley and Tuite directly. He asked Whether the discipline being administered against him was related at all to that protected activity, 0r Whether it could be perceived as retaliatory. O’Brien tried t0 respond honestly, and said that such an interpretation was possible. Upon hearing this response, Wright abruptly ended the meeting, telling Hopkins and O’Brien: “It seems like you guys have spoken t0 one another.” Shortly thereafter, Wright, noticeably irritated, asked O’Brien directly if he had spoken t0 Hopkins before the meeting. O’Brien told her definitively that he had not. 88. At 6:31am the next day, February 12, 2020, Tuite emailed O’Brien asking for his meeting notes from the disciplinary meeting with Hopkins “by 2pm today.” 89. O’Brien responded, offering instead to “Visit and talk it over when I get back to 99 the office tomorrow. This response displeased Tuite. O’Brien reasonably believed that providing her detailed notes from the meeting and complying with Tuite and Daley’s directive t0 12 During his meeting, with Wright, she explained her office would draft the Letter 0f Concern, and O’Brien would be “expected” to sign it. AMENDED COMPLAINT; Case N0. 21CV379038 18 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP discipline Hopkins could amount to retaliation against a Whistleblower. He simply wanted to preserve the integrity 0f the Title IX investigation SJSU initiated. 90. On February 13, 2020, Hopkins wrote a letter to SJSU’s President, explaining his belief that the administrative action SJSU planned t0 take against him was retaliatory and designed t0 undermine Hopkins’ credibility to avoid re-opening the Title IX investigation. That same day, Wright emailed O’Brien in a nearly two-page purported recitation 0f their meeting two days earlier. Wright wrote: “it was evident that you and Coach Hopkins had worked together 0n questions he was going t0 ask you and answers you would give, particularly since you made it a point t0 talk about the Letter of Concern at the beginning of the meeting even though one was not issued and that Coach Hopkins’s prepared questions referenced a Letter 0f Concern . . .” According t0 Wright, because O’Brien called one 0f the union representative’s questions “a good question,” he was “essentially condoning Hopkins’s [alleged] actions towards Daley as appropriate.” She fithher explained 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 t0 the meeting and intended t0 continue discussing that information at the meeting. . .” 91. Finally, Wright closed her email recommending that O’Brien “review” SJSU’s confidentiality policy “and proceed accordingly.” Wright’s admonishment was a thinly veiled effort t0 reprimand O’Brien for her View that he was associating With Hopkins as a Whistleblower. O’Brien did not discuss this meeting With Hopkins prior to the meeting itself. But even if he did, a discussion between Hopkins and O’Brien would not have breached SJSU’S confidentiality policy. Wright was simply castigating anyone she Viewed as trying to expose wrongdoing. She was also laying the groundwork for pretextual adverse action against O’Brien. 92. Aside from O’Brien’s own whistleblowing disclosures, it was clear that SJSU associated Hopkins and O’Brien With each other, such that Hopkins’ continued Whistleblowing triggered a series 0f adverse employment actions against O’Brien. SJSU perceived a similar association between Rasmussen and O’Brien. SJSU’s decision to terminate O’Brien was retaliation against him for his perceived affiliation t0 two employees Who were engaging in AMENDED COMPLAINT; Case N0. 21CV379038 19 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP protected Whistleblowing activity shortly before being unjustifiably disciplined. O’Brien’s actions t0 protect Whistleblowers and the integrity 0f the Title IX investigatory and compliance processes were treated by Tuite and SJSU as acts 0f disloyalty. 93. Indeed, Tuite’s retaliation against Rasmussen for this same factual event appears t0 be ongoing, even after O’Brien’s termination. On information and belief, on April 20, 2020, Tuite wrote t0 Rasmussen: Because I have heard nothing t0 the contrary, I believe Sage [Hopkins] made the false statements he did based upon information you provided t0 him. It was unprofessional, and a lapse 0f judgment, 0n your part to even mention my name (or Eileen [Daley]’s). Or discuss Eileen [Daley] at any 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 culture 0f non-compliance’ were false. Your failure to admit your phone conversation With Sage (until last week) is, again, a sign of a poor decision. E. SJSU Takes Adverse Action Against, and Terminates O’Brien in Response to His Opposition 94. On February 20, 2020, SJSU sent an internal memo placing a “Legal Hold” on certain documents, out of a purported “reason to believe a legal proceeding could result in connection With allegations made by Steve O’Brien, Deputy Director of Athletics.” And 0n February 28, 2020, Tuite removed Rasmussen from O’Brien’s reporting line, stripped him of all 0f his responsibilities outside 0f fundraising, 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 not justified by any legitimate business purpose. 95. On March 2, 2020, SJSU terminated O’Brien,” With striking temporal proximity t0 his Whistleblowing conduct. When asked Why, Tuite did not respond, other than t0 say O’Brien “did not meet [her] expectations 0f her Deputy Director.”14 13 In very close temporal proximity to O’Brien‘s termination, Tracy Tsugawa, SJSU’s Title IX coordinator abruptly resigned from the University “Without explanation” after just over a year 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 With the investigation. AMENDED COMPLAINT; Case N0. 21CV379038 20 .b \OOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 96. The reality is that O’Brien would not participate in Tuite’s cover-ups, and she fired him as a result. 97. On March 19, 2020, O’Brien exercised his reconsideration rights under Section 427728, Title 5, CA Code 0f Regulations, asking SJSU t0 reconsider its decision t0 terminate him. On March 24, 2020, Tuite declined, stating simply: “I do not find a basis for modifying the decision to non-retain you.” O’Brien further appealed this decision t0 SJSU’s President on March 29, 2020, Which the President declined to overturn on April 3, 2020. 98. SJSU directly retaliated against O’Brien for Whistleblowing, making a series of protected disclosures, opposing, and refusing t0 participate in SJSU’S wrongful conduct that reasonably appeared to be unlawful, including as 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. 99. SJSU terminated O’Brien for failing t0 participate in, and otherwise opposing its unlawful or otherwise unethical conduct related t0 NCAA bylaws, and the active Title IX investigation. O’Brien raised a number 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 Tuite’s unlawful, retaliatory conduct. In close temporal proximity t0 his opposition, SJSU stripped O’Brien of material duties, divested him 0f customary privileges associated With his employment, and on March 2, 2020, terminated him. But for O’Brien’s protest regarding retaliation against a whistleblower and a compliance officer, nothing in his personnel file or in Defendants’ behavior toward him justifies terminating him Within a month of his protected activity. 14 Public reporting reflects a sentiment, at least from some, that is consistent with O’Brien’s instincts of SJSU’s wrongdoing. (See e.g., Report: DOJ investigating San Jose State's handling of Title IX complaints, available at https://WWW.sfchronicle.com/collegesports/article/Report- DOJ-investigating-San-Jose-State-s-15837316.php (referring t0 several other “allegations 0f dysfunction and a ‘toxic culture’ under athletic director Marie Tuite.”) AMENDED COMPLAINT; Case N0. 21CV379038 21 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 100. O’Brien has been deprived of wages, has and Will suffer severe professional reputational harm and has suffered emotionally as a direct and legal result 0f Defendants’ wrongful conduct as alleged herein. 101. O’Brien suffered substantial financial loss and continues to suffer substantial financial loss far in excess 0f $25,000. V. CONDITIONS PRECEDENT TO FILING ACTION 102. O’Brien has complied With all required conditions precedent prior t0 filing this action. O’Brien has complied With any and all pre-lawsuit filing requirements, including, but not limited to, the following administrative exhaustion events: a. O’Brien received a Right-to-Sue letter from the California Department of Fair Housing and Employment (“DFEH”) on December 22, 2020. b. O’Brien timely served a claim on the CSU Defendant pursuant t0 the California Tort Claim Act (Gov. Code §§ 910 et seq.). O’Brien’s claim was post-marked on August 27, 2020 and delivered on August 28, 2020. The CSU Defendant did not respond t0 O’Brien’s tort claim. c. O’Brien served a Whistleblower Claim on the CSU Defendant (Via Marie Tuite and Julie Paisant) 0n December 23, 2020, pursuant t0 GOV. Code § 8547.12 et. seq., and CSU Defendant’s Executive Order Number 1116, as found on San Jose State University’s website. VI. CAUSES OF ACTION FIRST CAUSE OF ACTION (Retaliation in Violation 0f California Whistleblower Protection Act (Gov. Code § 8547.12)) (Against CSU Defendant and Marie Tuite) 103. Plaintiff incorporates herein by reference each and every allegation in this complaint as though fully set forth herein. 104. The California Whistleblower Protection Act (“the Act”) protects California State University employees against “acts of reprisal, retaliation, threats, coercion, 0r similar acts” When said employees make “protected disclosures.” Gov. Code § 8547. 12. AMENDED COMPLAINT; Case N0. 21CV379038 22 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 105. A “protected disclosure” is any good faith communication that discloses or demonstrates an intention to disclose information that may evidence an “improper governmental activity” i.e., an activity in Violation of any law or regulation, 0r that is economically wasteful, or involves gross misconduct, incompetency, or inefficiency. Gov. Code § 8547.2(b),(d). 106. O’Brien made several protected disclosures during his tenure at SJSU as alleged above, including but not limited to: a. Rasmussen’s investigations, internal reporting, and opposition to unlawful conduct and NCAA rules related t0 Violations of student gambling prohibitions; Rasmussen and Hopkins’s investigations and internal reporting ofNCAA rules Violations When a student was alleged to have smoked marijuana; Hopkins’ reporting about SJSU’S failure t0 follow proper investigatory processes in its Title IX investigation of Shaw’s alleged sexual abuse; O’Brien’s reporting to Tamar Semerjian, Faculty Athletics Representative, about the culture 0f retaliation at SJSU; O’Brien’s reporting to Joanne Wright, Vice President of Personnel, about Tuite’s directive to make misrepresentations in Rasmussen’s performance review, which he believed (and reported) were specifically tied t0 Rasmussen’s earlier reporting ofNCAA rules Violations and opposition of Tuite’s improper conduct; O’Brien’s reporting to Tuite that he was concerned about disciplinary action taken against Rasmussen or Hopkins t0 be perceived as retaliatory; O’Brien’s opposition to Tuite’s directives that he take adverse employment action against Rasmussen and/or Hopkins, which he reasonably perceived to be retaliatory against them and unlawful; O’Brien’s elevation of his concerns about the culture of retaliation created by Tuite to Lisa Millora, President’s Chief of Staff; AMENDED COMPLAINT; Case N0. 21CV379038 23 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP i. O’Brien’s elevation 0f these same concerns to the Office 0f the General Counsel 0f California State University; j. Hopkins’ own reports, which he elevated to SJSU’s President, that SJSU’S administrative action against him was retaliatory and motivated by his Whistleblowing regarding Shaw, and/or the attendant Title IX investigation; k. O’Brien’s reporting t0 each of the General Counsel and President 0f his concerns that retaliatory actions were being taken against him for his support of Rasmussen and Hopkins. 107. O’Brien’s communications constituted protected disclosures under Gov. Code § 8547.12. 108. Retaliation can be direct or indirect. Direct retaliation occurs when someone engages in protected activity and suffers an adverse employment decision because of his or her protected activity. Indirect retaliation occurs When someone engages in protected activity and another person suffers an adverse employment decision because of his or her close relationship t0 the person that engaged in protected activity. 109. SJSU directly retaliated against O’Brien for whistleblowing, making a series of protected disclosures, opposing, and refusing t0 participate in SJSU’S wrongful conduct that reasonably appeared t0 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. 110. O’Brien made the foregoing alleged disclosures in good faith for the purpose 0f remediating the improper governmental activity(s). 111. Defendants SJSU and Ms. Tuite took retaliatory action against O’Brien, up to and including his termination. 112. O’Brien’s communication was a contributing factor in Defendants SJSU and Tuite’s decisions to take adverse employment action against, and ultimately terminate O’Brien. 113. O’Brien was harmed by Defendants’ retaliatory actions. AMENDED COMPLAINT; Case N0. 21CV379038 24 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 114. Defendants’ conduct was a substantial factor in causing Mr. O’Brien’s harm. 115. Defendants’ conduct was malicious. Defendants acted With intent t0 cause injury, was despicable, and/or was done with a willful and knowing disregard of O’Brien’s rights and the safety of other students, athletes, employees, and the public at large. 116. A defendant acts With knowing disregard When the defendant is aware of the probable dangerous consequences of the defendant’s conduct and deliberately fails t0 avoid those consequences. 117. As alleged herein, Defendants acted repeatedly t0 ignore O’Brien’s protected disclosures related t0 student athlete drug use and wagering, which Defendants failed to substantively address. Defendants’ conduct reflected a pattern of threatening or retaliating against employees Who raised significant compliance concerns Within the Athletic Department, like O’Brien. Defendants’ conduct was intentional and deceptive: for example, Defendant Marie Tuite sought t0 direct her reporting employees t0 unlawfully retaliate against other employees, rather than face any consequences attendant t0 her disciplining those employees herself. 118. Defendants’ conduct compromised O’Brien’s rights, and the rights and safety 0f the public. O’Brien made several reports about the retaliatory conduct he witnessed in the Athletic Department, and rather than substantively address them, Defendants terminated him instead. 119. The compliance systems in the Athletic Department related t0 SJSU’S NCAA membership, student athlete drug use, and sports wagering are designed for the safety 0f students, student athletes, and employees. 120. As alleged herein, Defendants’ conduct also risked the integrity of an active Title IX investigation into sexual assault allegations from several female students. When O’Brien raised concerns that Defendants’ conduct could compromise the efficacy of the Title IX investigation, Defendants terminated him and took other adverse action against him. Defendants’ conduct therefore evince an indifference to 0r a reckless disregard 0f the health 0r safety of others; including those female student Victims who reported Shaw’s conduct, and potential future Victims of Shaw’s alleged abuse. AMENDED COMPLAINT; Case N0. 21CV379038 25 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® LAW OFFICES COTCHETT, PITRE & MCCARTHY, LLP 121. Defendants attempted to hide the illegal reason for their decisions (including O’Brien’s termination) With a false explanation. Defendants therefore acted willfully and in conscious disregard 0f O’Brien’s rights. 122. Defendants’ malicious conduct entitles O’Brien t0 punitive damages for this cause of action. SECOND CAUSE OF ACTION (Retaliation in Violation 0f California Labor Code § 1102.5) (Against CSU Defendant) 123. Plaintiff incorporates herein by reference each and every allegation in this complaint as though fully set forth herein. 124. Labor Code § 1102.5 prohibits an employer from retaliating against an employee for his or her disclosure of information related t0, or refusal t0 participate in, unlawful acts 0r acts the employee reasonably considered t0 be unlawful. 125. The CSU Defendant, Via his employment at SJSU, was O’Brien’s employer. 126. O’Brien made many disclosures as described fully in this Complaint, including but not limited t0 disclosures t0 Ms. Tuite, a person with authority over O’Brien and an employee With authority t0 investigate, discover, 0r correct legal noncompliance, that certain actions taken against his colleagues might be unlawful. 127. O’Brien had reasonable cause to believe that the information disclosed a Violation of state and federal statutes against retaliation, and that O’Brien’s participation in disciplinary activities against his colleagues would result in Violation of state and federal statutes against retaliation. 128. Defendants discharged O’Brien. 129. O’Brien’s disclosure of information and refusal to participate in disciplinary actions against his colleagues was a contributing factor in SJSU’s decision t0 discharge O’Brien. 130. O’Brien was harmed by his termination. 13 1. SJSU’S conduct was a substantial factor in causing O’Brien’s harm. AMENDED COMPLAINT; Case N0. 21CV379038 26 \OOONmUI-kwNfl NNNNNNNNr-p-Iflflflr-nr-tt-fip-up- flQM-PUJN-‘OWOOVQMAWN-‘O 28 a LAW OFFICES COTCHETY. PITRE 8L MCCARTHY. LLP VII. PRAYER FOR RELIEF WHEREFORE, Mr. O’Brien prays forjudgment against Defendants as follows: l. For economic and non-economic damages according to proof; 2. For pre-judgment and post-judgment interest at the maximum amount; 3. Reasonable attorneys’ fees and costs as authorized by law, including but not limited to pursuant to Lab. Code § 1102.5 and/or Gov. Code § 8547.12(c); 4. Appropriate injunctive and declaratory relief; 5. Costs of suit herein; 6. Punitive damages on the first cause of action as provided for in Gov. Code § 8547.12(c); and 7. For such further relief as the Court or finder of fact may deem just and proper. Dated: July 6, 2021 NIALL P. MCCARTHY TAMARAH P. PREVOST BETHANY M. HILL COTCHETT, PITRE & MCCARTHY LLP CHRISTOPHER BOSCIA BOSCIA LEGAL Attorneysfor Plaintifi’Stephen A. 0 ’Brien AMENDED COMPLAINT; Case No. 21CV379038 ‘ 27 1 VIII. DEMAND FOR JURY TRIAL 2 Plaintiff requests a trial by jury as to all causes of action. 3 Dated: July 6, 2021 COTCHETT, PITRE & - ‘ RTHY, LLP 4 By. M _ A 6 \’NIALL RMCC ‘i' ‘ v TAMARAH P. PREVOST 7 BETHANY M. HILL 8 COTCHETT, PITRE & MCCARTHY LLP 9 . . (wm/ 10 BWWW (WWy. 11 C RISTOP R BOSCIA 12 BOSCIA LEGAL l3 Attorneysfor PlaintiffStephen A. 0 ’Brz'en 14 15 16 17 18 l9 20 21 22 23 24 25 26 27 28 C LAW3mg AMENDED COMPLAINT; Case No. 21CV379038 28 OTCHETF.PITRE& MCCARTHY,LLP