Preview
20LBCV00465
Assigned for all purposes to; Governor George Deukmejian Courthouse, Judicial Officer: Michael Vicencia
Electronically FILED) by SuperiorCourt of California, ‘County of Los Angeles on 10/23/2020 10:10 AM Sherri R. Carter, Executive Officer/Clerk of Court, by J. Ballesteros, Deputy Clerk
Andrew Hillier (State Bar No. 295779)
Hillier Law
600 W. Broadway, Suite 700
San Diego, CA 92101
Telephone: (619) 500-7906
Facsimile: (619) 839-3895
andrew@ahillierlaw.com
Attorney for Plaintiff,
A. Sameh El Kharbawy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
CE cG 02214
A. SAMEH EL KHARBAWY, Case No.: 20LBCV00465
10 Plaintiff, COMPLAINT FOR DAMAGES AND
DECLARATORY AND INJUNCTIVE
11 VS. RELIEF FOR:
12 (1) DISCRIMINATION (Cal. Gov. Code
13
; BOARD OF TRUSTEES OF CALIFORNIA. § 12940(a));
STATE UNIVERSITY; (2) HARASSMENT (Cal Gov. Code §
14 DARRYL L. HAMM, an individual; 12940(j));
LYNNETTE ZELEZNY, an individual; (3) RETALIATION (Cal. Gov. Code§
15 JOSEPH I. CASTRO, an individual; 12940(h));
SAUL JIMENEZ-SANDOVAL, an individual; (4) FAILURE TO PREVENT
16 XUANNING FU, an individual;
DISCRIMINATION,
AND DOES 1 through 50,
17 HARASSMENT AND
Defendants. RETALIATION (Cal. Gov. Code §
18
12940(K));
19 S AIDING AND ABETTING
DISCRIMINATION,
20 HARASSMENT AND
21
RETALIATION (Cal. Gov. Code §
12940);
22 (6) RETALIATION (Cal. Lab. Code §
1102.5);
23
(7) REPRISAL/RETALIATION (Cal.
24 Gov. Code §§ 8457 et seq.);
(8) DEFAMATION
25 (9) VIOLATION OF THE EQUAL PAY
26
ACT (Cal. Lab. Code §§ 432.3,
1197.5); and
27 (10) INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS.
28
DEMAND FOR TRIAL BY JURY
PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL
Page 1
Plaintiff Dr. A. SAMEH EL KHARBAWY (hereinafter “Plaintiff? or “Dr. EI
Kharbawy”), by and through his counsel, alleges as follows:
THE PARTIES
1 Plaintiff is, and at all relevant times mentioned herein was, a resident of the State off
California. Plaintiff is a tenured Full Professor at California State University.
2. Defendant BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY
(hereinafter “CSU”) is a subdivision of the State of California governing and operating the 234
campus California State University system, including the California State University in Fresno
(hereinafter “the University”, “CSU Fresno” or “Fresno State”). CSU is headquartered in the city
10
of Long Beach, county of Los Angeles.
il
3 Plaintiff is informed and believes that Defendant DARRYL HAMM (hereinafter “Mr.
12
Hamm”) is a resident of the city of Los Angeles in California. At all relevant times mentioned
13
herein, Mr. Hamm was an attorney in the Office of General Counsel of California State University
14
located in the city of Long Beach, county of Los Angeles.
is 4 Plaintiff is informed and believes that Defendant LYNNETTE ZELEZNY (hereinafter|
16
“Dr. Zelezny”) is a resident of the State of California. At all relevant times mentioned herein, Dr.
17
Castro served as Provost of CSU Fresno (until May 2018).
18
5 Plaintiff is informed and believes that Defendant JOSEPH I. CASTRO (hereinaftey
19
“Dr. Castro”) is a resident of the State of California. At all relevant times mentioned herein, Dr.
20
Castro served as President and chief executive officer of CSU Fresno.
21
6 Plaintiff is informed and believes that Defendant SAUL JIMENEZ-SANDOVAL
22
(hereinafter “Dr. Jiménez-Sandoval”) is a resident of the State of California. At all relevant times
23
mentioned herein, Dr. Jiménez-Sandoval served as interim Associate Dean (August 2014-January,
24
2016), then Dean (January 2016-July 2019) of the University’s College of Arts and Humanities
25
then Provost of the University (July 2019-Present).
26
7. Plaintiff is informed and believes that Defendant XUANNING FU (hereinafter “Dr.
27
Fu”) is a resident of the State of California. At all relevant times mentioned herein, Dr. Fu served|
28
as Dean of the University’s Undergraduate Studies and Plaintiff's Dean and Chair (May 2015-Jul
PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL
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2019), interim Vice Provost (July 2019-September 2020), then Vice Provost (September 20204
Present).
8 The true names or capacities of Defendants DOE 1 to DOE 50, inclusive, whethey
individual, corporate, associate, subsidiary or otherwise are unknown to PLAINTIFF at this time.
Plaintiff therefore sues such defendants under fictitious names and will amend this Complaint ta
allege their true names and capacities when ascertained. Plaintiff is informed and believes and
thereon alleges that each of the defendants fictitiously designated as DOE is legally responsible,
either intentionally, negligently or in some other actionable manner for the occurrences herein]
alleged, and thereby proximately caused injuries and damages to the Plaintiff as alleged herein.
10 9 CSU, Mr. Hamm, Dr. Castro, Dr. Zelezny, Dr. Jiménez-Sandoval, Dr. Fu, and DOES}
11 1 through 50 are herein collectively referred to as “Defendants.”
12 10. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned
13 herein, the Defendants, and each of them, were the agents, parents, subsidiaries, agents, servants
14 employees, co-venturers, and/or co-conspirators of each of the other defendants and were at alll
15 times mentioned, acting within the scope, purpose, consent, knowledge, . ratification and
16 authorization of such agency, employment, joint venture and conspiracy. All of the acts and/oy
17 conduct of each Defendant alleged in the causes of action into which this paragraph is incorporated
18 by reference were consented to, ratified, approved, and/or authorized by the officers and/or
19 managing agents of other Defendants.
20 JURISDICTION AND VENUE
21 lL. Plaintiff brings this Complaint for violations of the California Civil Code and|
22 California common law. Subject matter jurisdiction in this matter is conferred by California
23 Constitution, Art. VI, §§ 11-12 and Code of Civil Procedure § 410.50. Personal jurisdiction is
24 proper under C.C.P. § 410.10 because the Defendants, and each of them, have maintained!
25 sufficient minimum contacts with the State to make the exercise of personal jurisdiction reasonable
26 and just. Plaintiff is informed and believes that Defendants, and each of them, reside and/oy
27 perform work within the State of California.
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12. Venue in this Court is proper pursuant to California Code of Civil Procedure section)
395 et seq. because the CSU’s is headquartered in the County of Los Angeles and some of the
wrongful actions alleged herein occurred within the County of Los Angeles.
FACTUAL ALLEGATIONS RELEVANT TO ALL CLAIMS
13. Plaintiff is a tenured Full Professor at CSU Fresno where he has been employed since
August 2006.
14, Plaintiff is the most senior member of the faculty and the only tenured Full Professoy
in his academic unit. He is, by formal training, an architect and a critic, historian and theorist of
architecture, art, and design. He has developed an outstanding reputation among his students,
10 peers and in professional circles for his teaching of core and advanced courses in those areas,
11 earning him consistently positive student and peer evaluations. Aside from being a hight
12 respected educator, Plaintiff is a prolific scholar, with scores of publications, keynotes, invited
13 lectures and conference appearances worldwide; extensive government, community, and
14 professional associations in the U.S. and beyond. In 2009, he was awarded early tenure with full
15 professorship for “sustained exceptional performance” in all categories of service to the
16 University.
17 15. Plaintiff has a long history of activism against sexism, racism, and injustice at the
18 University, and has opposed unlawful discrimination, retaliation and harassment of protected
19 individuals (i.e. female students and employees, senior members of the faculty, Middle Eastern]
20 Americans, etc). During his tenure at CSU Fresno, Plaintiff also opposed and reported fraud.
21 corruption, administrative misconduct and other unlawful activities at the University and was
22 targeted by Defendants, as a result, with a campaign of discrimination, harassment, and retaliation)
23 which continues to this day.
24 A. PLAINTIFF OPPOSED AND REPORTED DISCRIMINATION,
25 CORRUPTION AND UNLAWFUL HIRING PRACTICES AT THE
26 UNIVERSITY.
27 16. In 2014 and 2015, Plaintiff served on a search committee for a vacancy within the
28 University’s Department of Art and Design (the “Department”). Upon learning that members of
PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL
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the Department’s part-time faculty members (all women over the age of 60) intended to apply fon
the announced position, administrators altered the application requirements without consulting the
search committee, effectively disqualifying the part-time faculty. When Plaintiff became aware off
this, he submitted (on or about December 22, 2014), a whistleblower complaint to the University,
detailing, and strongly objecting to the administration’s unlawful attempts to bias the search|
process against these senior, female applicants. He specifically recalled a statement that one off
those University administrators had made to a senior, female faculty member during the search|
that the Department needed “fresh blood.”
17. Three senior, female professors filed separate complaints of discrimination.
10 harassment, and retaliation against the University in the form of internal University grievances and
il formal complaints to the DFEH related to the Department’s faculty search and other acts off
12 discrimination, retaliation and harassment by the University administration at various levels
13 (including many of the Defendants). In their complaints, the female professors complained that
14 discrimination and retaliation were “pervasive at Fresno State” causing a “distress level... so high”
15 that it forced the faculty and students to lodge several complaints against the University,
16 administration. Twice (first in May 2015 and again in February 2016) Plaintiff gave evidence and
17 testimony as a witness in the investigations of these complaints.
18 18. Around this time, Plaintiff received a surprise offer from the University’s Provost (atj
19 the time, Dr. Zelezny, acting on behalf of the President, Dr. Castro) to assume a leadership position!
20 at the University as the inaugural Director of a new University institute (what she called the
21 Institute for “Innovation and Sustainability”). In January 2016, Dr. Zelezny claimed that she was
22 working to finalize the details of the Plaintiff's new position and contract. After Plaintiff's
23 protected activities continued throughout 2016, the University’s offer disappeared. Neither the
24 position nor the alleged institute itself ever materialized.
25 19. In September 2016, the University formed a search committee to appoint professors in
26 its Middle Eastern Studies program. The search continued for months, as the committee considered
27 the academic qualifications and professional experience of numerous applicants. After more than]
28 eight (8) months of careful deliberation, four candidates (all Middle Eastem Americans) were
PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL
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named by the search committee as finalists and invited to campus for interviews set in May 2017]
When University administrators learned the committee had recommended four Middle Eastern]
Americans for the position, the University abruptly—and without any lawful cause—cancelled the
search, citing pretextual procedural irregularities. As reported and confirmed by numerous
sources, the real reason for the cancellation was pressure from outside (Israeli) advocac’
organizations, to which the administration granted an effective veto over any appointment off
professors of Middle Eastern or Arab (Palestinian) descent. The University’s decision, and its
discriminatory underpinnings, triggered a national outcry.
20. PLAINTIFF again refused to let such unlawful racism and discrimination go
10 unaddressed. While he did not serve on the Middle East Studies search committee, Plaintiff was
11 regularly made aware of its efforts, followed its public announcements, learned of the
12 accomplished résumés of the selected finalists, and joined others in protesting the University’s
13 unlawful decision to terminate the search, and the discriminatory, racial animus behind it. He
14 complained about the discriminatory search process to the University’s administration—including
1s Dr. Castro, and the Chancellor of the California State University system, Dr. Timothy White. The
16 position remains unfilled to this day.
17 B FOLLOWING HIS OPPOSITION TO, AND REPORTS OF DISCRIMINATION.
18 UNLAWFUL FRAUD AND CORRUPTION, DEFENDANTS HARASSED AND)
19 RETALIATED AGAINST PLAINTIFF.
20 21. University administrators (including Dr. Castro, Dr. Zelezny, Dr. Fu, Dr. Jiménez-
21 Sandoval, Mr. Hamm, Martin Valencia (Chair of the Department of Art and Design at CSU Fresno.
22 hereinafter “Mr. Valencia”) and other officials!) responded negatively and with hostility ta
23 Plaintiffs efforts to call attention to discrimination and other unlawful wrongdoing within th 1G
24 University, and have since subjected Plaintiff to a sustained, egregious campaign of harassment
25 and retaliation that involved threats, intimidation, administrative bullying and hostility, increased
26 scrutiny, manufactured controversies, trumped-up allegations, defamation, wage disparities
27
28 1 Plaintiff is informed, believes and thereon alleges that these individuals were “supervisors” pursuant to Cal. Gov.
Codesection 12926(0.
es ee
‘PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL
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professional isolation, violations of Plaintiff's rights, and breaches of his privacy. The retaliatory
conduct continues to the present.
22. For example, in 2016 and 2017, following Plaintiff's above-described complaints
regarding discrimination against protected individuals at the University, Dr. Fu started to harass
Plaintiff. On numerous occasions, Dr. Fu purposefully misspelled Plaintiff's name in emailed
(often publicly disseminated) communications, with pejorative, offensive insinuations to demean,
humiliate and insult him. Plaintiff informed Dr. Fu that this practice was abusive and racially
offensive. Dr. Fu did not stop.
23. In 2017, Dr. Fu manufactured and fomented false complaints against Plaintiff in an]
10 effort to bully and harass him. On or about February 6, 2017, Dr. Fu alleged that students in ond
11 of Plaintiff's classes complained to Dr. Fu that they had not received a printed syllabus for the
12 course (though, the syllabus was available online). Dr. Fu opted not to alert Plaintiff to the mattey
13 until the deadline for posting the syllabi had passed (a week later)—at which time he alleged that]
14 the students had filed acomplaint. When Plaintiff requested a copy of the alleged complaint, Dr.
15 Fu dodged the request for several weeks—eventually sending Plaintiff an anonymous untitled,
16 unsigned, and unaddressed document. Plaintiff accessed the metadata of the document and
17 discovered it had been created by Dr. Fu on the same day, minutes before he emailed it to Plaintiff!
18 When Plaintiff brought this to the attention of Dr. Fu, the matter was dropped immediately.
19 24, Around the same time period, in April 2017, Dr. Fu and Mr. Valencia conspired to|
20 make eleventh hour alterations to Plaintiff's teaching schedule for the following semester. In the
21 final days of the Spring 2017 semester, Plaintiff received an email from Dr. Fu notifying him that
22 one of his popular courses (ID 132T: “Design and People”) which had been long planned for Fal
23 2017 was abruptly cancelled. Plaintiff learned that he had been reassigned to teach another course.
24 ID 113—a course he had never previously taught. The University did not provide any explanation]
25 for the last-minute decision to cancel ID 132T, a popular and successful course in previous years.
26 Plaintiff was forced to either prepare for teaching a new course over the University’s summer
27 recess (a workload for which he would not be paid) or develop the new course as it proceeded|
28 during the Fall 2017 semester. It was a set-up for failure.
PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL
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25. In or about October 2017, Dr. Fu alleged that a University alumna had lodged a protest
of a grade she received in a course Plaintiff taught more than a year prior. The alleged complaint
was, again, an anonymous, undated, unsigned document, which did not even bear the student’s
name. At the time, Plaintiff defended his grading procedures generally on their merits. He also|
objécted to the University’s handling of the matter, as the alleged grade petition was submitted
and accepted long after the required due date set forth in the University’s Academic Policy Manual.
clearly in violation of the University’s policies and procedures. Two days after Plaintiff filed his
objections to the administration’s handling of this alleged petition, the University abruptl
suspended the student’s grade petition and decided not to pursue it.
10 26. In the final days of the Fall 2017 semester, Dr. Fu and Mr. Valencia again surprised
a1 Plaintiff with last-minute changes to his teaching schedule for the Spring 2018 semester. Without
12 justification, Plaintiff (a critic, historian, and theorist of art, design, and architecture) was assigned!
13 an advanced course in digital design, animation and multi-media art (ID 116) which required
14 specialized expertise in a highly technical suite of software applications. Dr. Fu and Mr. Valencial
15 knew Plaintiff was not an expert in multi-media art and that he had never taught this specialized]
16 software or used it in his work. This, again, was a set-up for failure. The University provided no,
17 justification for its decision to require Plaintiff to teach a course so far outside his area of expertise]
18 Coming close on the heels of Plaintiff's protected activity and Dr. Fu’s prior efforts to manufacture
19 complaints against Dr. Kharbawy, these last-minute surprises were retaliatory and intended to
20 harass Plaintiff.
21 27. In or around November 2017, Plaintiff learned that other professors of similar rank a!
22 his College (of Arts and Humanities) had been awarded pay equity increases, which he did not
23 receive. In fact, since he started his opposition to Defendants’ unlawful discrimination, corruption
24 and fraud Plaintiff has not received the salary increases awarded to similarly ranked and
25 comparably qualified and experienced faculty in the College of Arts and Humanities, or at similay
26 rates. This disparity continues to the present date.
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1 Cc PLAINTIFF OBSERVED, OPPOSED AND REPORTED ACTS OF FRAUD)
PERPETRATED BY DEFENDANTS IN FACULTY SEARCHES AND IN THE
UNIVERSITY’S ACCREDITATION PROCEDURES.
28. Accreditation is the primary means by which universities are evaluated in the U.S. It
is a reliable authority on academic quality, and the means to hold universities to minimum
standards for curricula, faculty, resources, services, and facilities, and commit them to a culture off
continuous improvement and accountability. Importantly, accreditation also qualifies universities
to receive state and federal funding. Title IV of the Higher Education Act requires institutions of
higher education that receive federal funds and/or provide federal aid to students to, inter alia, be
10 accredited by an agency recognized by the Department of Education. Similarly, most state
11 governments (including California) require accreditation to make state funds available to colleges
12 and universities. For those reasons, lawful, credible accreditations are of paramount importance.”
13 29. Re-accreditation is a significant undertaking—normally spanning multiple years—in]
14 which the institution completes a self-study, updates course offerings, ensures compliance with)
15 enumerated accreditation requirements, and gathers years of data about an academic program’s
16 performance (from students, alumni, faculty, staff, administrators, government, professional and)
17 community partners). It is an important step in the educational process, ensuring that accredited
18 universities continue to provide a high standard of education. It is also an important step in funding
19 the University. The loss of accreditation places in jeopardy tens of millions of dollars in federal
20 and state funds that the University receives.
al 30. CSU Fresno’s Interior Design Program (hereinafter “Interior Design Program” of
22 “Program”) is reviewed for accreditation by the Council for Interior Design Accreditation]
23 (hereinafter “CIDA”) every six or so years. The last such review of CSU Fresno occurred in o7
24 around Fall 2016 (hereinafter “the Review”). During the Review, Plaintiff discovered that
25 Defendants, along with a group of University administrators at various levels, had directed faculty,
26 members to submit to CIDA a fabricated assessment report of the Interior Design Program, which
27
28 2 Multiple government investigations are currently probing corruption and fraud in higher education (including in
admissions, funding, licensing and accreditations).
PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL
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contained mostly false, plagiarized and counterfeit information. The report identified events and
evaluations that never happened, and referenced data never collected, reported, or analyzed.
31. When he learned of the Defendants’ fraud, Plaintiff strenuously objected to it, and to
their deliberate effort to betray the public trust and defraud one of the University’s accreditation
agencies. He sent emails and complaints to University employees and officials opposing the
fraudulent behavior. Equally troubling to Plaintiff was the fact that Defendants involved students
in their unlawful scheme. At the direction of Defendants, other University administrators (at
various levels) and the faculty members involved, students witnessed and participated in the acts
of plagiarism, fraud, hacking and counterfeiting of documents, and academic dishonesty.
10 32. Thereafter, those same University employees and officials defamed Plaintiff in
i1 retaliation. During CIDA’s subsequent visit to the CSU Fresno campus, Defendants and other
12 University employees made materially false allegations about Plaintiff to CIDA’s representatives
13 Those statements were subsequently included in CIDA’s Accreditation Report (hereinaftey
14 “Report”) published by CIDA. The University later republished CIDA’s defamatory Report, and
15 used it as a pre-text for further retaliation against Plaintiff.
16 33. The CIDA Report includes several false and defamatory statements made b:
17 Defendants about Plaintiff, which injured his reputation with respect to his occupation, including,
18 without limitation:
19 (1) That Plaintiff served as “coordinator” of the University’s Interior Design Program|
20 at the time of CIDA’s 2016-2017 Review;
21 (2) That he “chose not to participate in the accreditation process;” and
22 (3) That he withheld “all of his course materials and student work” from CIDA’s
23 Visiting Team.
24 Defendants knew that each of these statements were false.
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PLAINTIFF ”’S COMPLAINT "AND FOR JURY TRIAL
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PLAINTIFF ENGAGED IN PROTECTED ACTIVITY BY OPPOSING AND)
REPORTING DEFENDANTS’ FRAUD, CORRUPTION, DISCRIMINATION,
RETALIATION, HARASSMENT AND OTHER UNLAWFUL CONDUCT AT]
THE UNIVERSITY.
34, During his tenure at CSU Fresno, Plaintiff has opposed and reported Defendants’
discrimination and harassment of protected individuals (on the basis of their age, gender, race.
national origin, etc.) Plaintiff has also opposed and reported fraud, corruption, administrative
misconduct, and other unlawful activities at the University. Plaintiff started by addressing these
legal violations directly with Defendants and other University administrators. When informal
10 correspondence to University officials did not result in substantive change, Plaintiff submitted
11 formal complaints using the University’s internal reporting and grievance processes; he also made
12 several whistleblower disclosures. Plaintiff engaged in years of protected activity, including
13 (without limitation):
14 a. December 22, 2014; January 12, 2015; and January 29, 2015: Plaintiff filed a series
15 of whistleblower complaints with the University protesting the administration’s
16 unlawful attempts to bias a faculty search against older, female applicants and othey
17 legal violations that had compromised the search;
18 May 2015: Plaintiff was identified as a witness in support of discrimination,
19 harassment, and relation claims brought by three older, female members of the
20 faculty at the University;
21 July 29, 2015: Plaintiff was interviewed by DFEH investigators regarding those
22 complaints of discrimination, retaliation, and harassment;
23 February 1, 2016: Plaintiff was again identified as a witness in support of those
24 complaints filed with the DFEH;
25 April 25, 2016; April 26, 2016; and May 12, 2016: Plaintiff submitted
26 whistleblower complaints to the California State University’s Vice Chancellor foy
27 Human Resources reporting fraud and multiple irregularities in the University’s
28 faculty hiring practices. The Plaintiff's complaints detailed legal and polic:
PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL
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violations in a faculty search that had been announced at the time in the University’s
Department of Art of Design;
August-September 2016: Defendants, among a group of University administrators
at various levels, direct members of the faculty to submit to an accreditation agency;
a fabricated assessment report of one of the University’s an academic programs to
fraudulently obtain reaccreditation for said program. Plaintiff strenuously objected
to the fraud.
June 9, 2017 — Plaintiff filed a complaint pursuant to the University’s Executive
Order 1096 (“EO-1096”) concerning discrimination against protected individuals
10 on the campus of CSU Fresno.
il August 18, 2017 — Plaintiff submitted a comprehensive whistleblower complaint to
12 the California State University’s Vice Chancellor for Human Resources, in which
13 he reported unlawful activities at CSU Fresno, including fraud, unlawful hiring}
14 practices, systemic racism, discrimination, unlawful retaliation and harassment, and
15 pervasive administrative misconduct (“the Comprehensive Complaint.”) The
16 document is 54 pages in length, accompanied by another 60 pages of exhibits and
17 supporting documentation. In the Comprehensive Complaint, Plaintiff detailed
18 each of the illegal activities described above and other deviations from University,
19 policy and procedure.
20 August 2017-January 2018: Plaintiff filed a series of addenda to the Comprehensive
21 Complaint.
22 November 21, 2017: Plaintiff filed a contractual grievance requesting an
23 investigation of potential breach of his collective bargaining rights.
24 November 27, 2017: Plaintiff filed a complaint of discrimination, retaliation, and
25 harassment, pursuant to the University’s Executive Order 1096;
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December 13, 2017: Plaintiff formally protested the University’s failure to|
investigation his EO-1096 complaints and formal grievance within the time frames
established by statute and the CBA.?
January 4, 2018: The Office of California State University’s Vice Chancellor foy
Human Resources informed Plaintiff that his August 2017 whistleblower
complaints (and its addenda) were no longer under review and would not be
investigated.
January 30, 2018: Plaintiff objected to the University’s decision to refrain from]
investigating his complaints. He informed the Chancellor’s Office and the
10 University’s Human Resources Department of his intention to seek independen
1l investigations of his whistleblower disclosures by outside agencies (which would
12 include, without limitation, the State Attorney General and the State Auditor).
13 FOLLOWING HIS PROTECTED ACTIVITY—AND BECAUSE OF IT—
14 DEFENDANTS RETALIATED AGAINST PLAINTIFF.
15 35, On February 5, 2018—-six (6) days after Plaintiff notified the University of his intention]
16 to pursue outside investigations of the University’s discriminatory, retaliatory, and illegal
17 activities—the University suspended Plaintiff without cause. The University delivered a letter to
18 Plaintiff (and several of his colleagues) informing him that it was invoking Article 17 of the
19 Collective Bargaining Agreement (“the CBA”) governing Plaintiffs employment with the
20 University. Article 17 provides for a “temporary suspension” (30 days, at most) of a faculty
21 member in extremely limited, extraordinary circumstances, which were not present in Plaintiff's
22 case.4 By and through the February 5, 2018 letter, the University suspended Plaintiff from his
23 position effective immediately.
24
25
26 3 University policy requires an investigation of a complaint of discrimination, retaliation, or harassment to be
launched (with an intake interview of the complainant) within 10 days of receiving it, and that such investigation be
27 concluded within 60 days thereafter: The University has never processed any of Plaintiffs complaints within those
policy timeframes.
28 4 Under the plain terms of Article 17, the suspension term must be thirty (30) days or less, subject to renewal onl
where circumstances legitimately warrant.
PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL
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36. The University’s February 5, 2018 letter proffered false, pre-textual reasons for the
suspension — a series of minor, vague, and baseless allegations of alleged wrongdoing. It was clear
that Defendants manufactured these allegations in haste to justify their unlawful decision to
suspend Plaintiff following his protected activity, and to preempt any outside investigations off
their unlawful activities.
37. Defendants, and each of them, made, approved, or otherwise participated in the
University’s decision to suspend Plaintiff's employment under Article 17 of the CBA.
38. Following his suspension, on or about February 13, 2018, Plaintiff filed a complaint off
discrimination, retaliation, and harassment against the University with the DFEH arising out of the
10 same universe of facts alleged in this Complaint.
al 39, Between March and August 2018, the University invoked Article 17 five (5) more
12 times, extending Plaintiffs suspension for another thirty (30) days in each instance. The
13 University’s proffered reasons and rationales for these suspensions were the same baseless, vague,
14 and false allegations contained in the original February 5, 2018 suspension letter.
1s 40. On or about March 13, 2018, the University notified Plaintiff that his November 27.
16 2017 EO-1096 complaint of discrimination, retaliation and harassment would be assigned to an]
17 outside law firm for investigation. At the time, that complaint had been pending for 107 days, and
18 an earlier EO-1096 complaint that Plaintiff had filed on June 9, 2017 had, at the time, been pending
19 for 278 days—both well past the deadlines mandated by University policy to process EO-1096
20 complaints. To date, there has been no resolution to any of Plaintiff's EO-1096 complaints.
21 Al. On or about March 16, 2018, Plaintiff filed an internal grievance protesting his
22 unlawful suspension. The University has not resolved this grievance to date.
23 42. Between May 11, 2018 and May 18, 2018, Plaintiff filed multiple requests with the
24 University for records and evidence per the California Public Records Act, pertaining to his
25 complaints of discrimination, retaliation, and harassment against the University. The University,
26 failed to fulfill any of those requests at the time, and they remain unfulfilled to this day.
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43. On or about June 5, 2018, Plaintiff filed a complaint against the University for its
retaliation against him for his engagement in protected whistleblowing activity (per Executive)
Order EO-1058, later superseded by EO-1116).
44. On August 2, 2018, Plaintiff filed a governmental tort claim against the University. Onl
the same date, he filed a complaint of retaliation against the University (which named several
administrators as respondents) with the Division of Labor Standards Enforcement (DLSE).
45. Less than two weeks later, the University again retaliated against Plaintiff. By lettey
dated August 13, 2018, the University further suspended Plaintiff, citing new allegations (not
previously disclosed to Plaintiff) and revisions to the initial allegations asserted against Plaintiff
10 more than six months prior. The new allegations were just as false, vague, unsourced, and
11 fabricated as the University’s initial allegations.
12 46. Thereafter, the University continued to renew Plaintiff's suspension—placing a ne
13 letter of suspension in his Personnel File every 30 (or so) days. Defendants, and each of them.
14 made, approved, or otherwise participated in the University’s decision to continue to suspend
15 Plaintiff's employment. Although even a rudimentary investigation would have quickly exposed
16 the factually baseless allegations, Defendants opted to keep Plaintiff in “temporary” suspension]
17 for over thirty-two (32) months (as of this filing). To anyone viewing the Plaintiff's Personnel
18 File, it appears that Plaintiff has been continuously violating University policy for thirty-two (32
19 months; though, in reality, he has not set foot in a classroom on campus in almost three years. He
20 remains on “temporary” suspension to this day. The University has consistently refused to provide
21 information to Plaintiff about the factual basis for its allegations, despite multiple requests.
22 47. On or about June 14, 2019, Plaintiff filed an updated complaint of discrimination,
23 retaliation, and harassment for FEHA-related violations (EO-1096) with California State
24 University’s Vice Chancellor for Human Resources. The University has also not resolved this
25 complaint (or any other) to date.
26 48, On or about June 21, 2019, Plaintiff filed an updated complaint of retaliation and
27 harassment for whistleblowing (EO-1058/EO-1116) with California State University’s Vice
28 Chancellor for Human Resources. The University has not resolved this complaint to date.
DEMAND FOR JURY TRIAL
Page 15
49, On July 1, 2019 Plaintiff filed an updated complaint against the University with the
DFEH (related to the illegal behavior described above) and received a “right to sue” letter.
50. On July 1, 2019, Plaintiff filed a governmental, claim against California State
University related to the illegal behavior described above. He received no response to this claim.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
5l. Plaintiff exhausted administrative remedies related to his claims under Cal Gov. Code
§§ 8547 et seg. To file a claim for damages under § 8547, two conditions must be met: (1) Plaintiff
must “first file[] a complaint with [an Appropriate Administrator at the] university;” and (2) the
university must “fail[] to reach a decision regarding that complaint within the time limits
10 established for that purpose by the trustees.” (Cal. Gov. Code § 8547.12(c).) Under the CSU’s
11 EO-1116, the CSU’s “Appropriate Administrator” is the Vice-Chancellor of Human Resources (or
12 a designated employee at each campus) and the time established for reaching a decision 120 days
13 from the University’s receipt of the complaint. Plaintiff submitted complaints in compliance with
14 the University’s EO-1116 procedures on June 5, 2018. He filed an updated EO-1116 complaint
15 on June 21, 2019. The University failed to resolve Plaintiff's complaints within 120 days; in fact.
16 the University has not informed Plaintiff of a final decision with regard to any of his complaints
17 to this day. Therefore, all conditions for a cause of action under §§ 8547 et seq. are met.
18 52. Plaintiff exhausted administrative remedies related to his claims under the Fait]
19 Employment and Housing Act (the “FEHA”), Cal. Gov. Code §§ 12940 et seg. On February 13
20 2018, Plaintiff filed a complaint against Defendants with the DFEH alleging discrimination,
21 retaliation, and harassment as described in this Complaint. He received a right-to-sue letter onl
22 August 16, 2018. On July 1, 2019, Plaintiff filed an updated complaint against Defendants with
23 the DFEH and received a right-to-sue letter based on his claims of discrimination, harassment, and
24 retaliation described in this Complaint. The filing of the instant complaint comes within one (1
25 year of both right-to-sue letters by virtue of tolling agreements entered into between Plaintiff and
26 Defendants on July 24, 2019 and November 12, 2019. The latter tolling agreement remains in|
27 effect to this date.
28
=
‘PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY
Page 16
53. Plaintiff exhausted administrative remedies in regard to his tort claims agains
Defendant CSU. Pursuant to Cal. Gov. Code § 911.2, a Plaintiff who wishes to seek redress for
tortious action perpetrated by a governmental entity must first file a claim with that entity. Pey
Cal. Gov. Code § 912.4, the entity must respond to the claim within forty-five (45) days. Failure
to respond to the claim results in a de facto denial. (/d.) Pursuant to Cal. Gov. Code § 945.6, a
Plaintiff filing statutory tort claims against a California government entity must file suit agains!
the entity within six (6) months or one (1) year of the entity’s rejection of the tort claim. On June
28, 2019, Plaintiff sent a governmental tort claim notice (via U.S. Certified mail) to CSU related
to the facts and causes of action contained in this Complaint. He received no ‘response to this
10 claim. The filing of the instant complaint is timely by virtue of tolling agreements entered into
11 between Plaintiff and Defendant CSU on July 24, 2019 and November 12, 2019. The latter tolling
12 agreement remains in effect to this date.
13
FIRST CAUSE OF ACTION
14 (Wiscrimination in Violation of FEHA, Cal. Gov. Code § 12940(a))
(Against Defendant CSU and Does 1 through 50)
15
54. Plaintiff re-alleges and incorporates herein by reference each and every allegation set
16
forth in this Complaint.
17
55. At all times mentioned herein, the FEHA, Cal. Gov’t Code §§ 12900, et seq., was in|
18
full force and effect and was fully binding upon Defendants. The FEHA protects employees from]
19
tacial discrimination in the workplace. Specifically, Cal. Gov. Code § 12940(a) prohibits
20
employers from discriminating against employees on the basis of, inter alia, “race. ..[and] national]
21
origin.”
22
56. At all times mentioned herein, Plaintiff was an employee of the University within the
23
meaning and scope of the FEHA, Cal. Govt. Code § 12926(c) and, as such, Plaintiff had the right
24
to an employment free of discrimination on the basis of his race, ethnicity and/or national origin.
25
57. At all times mentioned herein, California Government Code § 12940 et seq., was in ful
26
force and effect, and was binding upon all Defendants. Said sections expressly bar Defendants
27
from discriminating against employees of the University on the
Preview
20LBCV00465 Assigned for all purposes to; Governor George Deukmejian Courthouse, Judicial Officer: Michael Vicencia Electronically FILED) by SuperiorCourt of California, ‘County of Los Angeles on 10/23/2020 10:10 AM Sherri R. Carter, Executive Officer/Clerk of Court, by J. Ballesteros, Deputy Clerk Andrew Hillier (State Bar No. 295779) Hillier Law 600 W. Broadway, Suite 700 San Diego, CA 92101 Telephone: (619) 500-7906 Facsimile: (619) 839-3895 andrew@ahillierlaw.com Attorney for Plaintiff, A. Sameh El Kharbawy SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES CE cG 02214 A. SAMEH EL KHARBAWY, Case No.: 20LBCV00465 10 Plaintiff, COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE 11 VS. RELIEF FOR: 12 (1) DISCRIMINATION (Cal. Gov. Code 13 ; BOARD OF TRUSTEES OF CALIFORNIA. § 12940(a)); STATE UNIVERSITY; (2) HARASSMENT (Cal Gov. Code § 14 DARRYL L. HAMM, an individual; 12940(j)); LYNNETTE ZELEZNY, an individual; (3) RETALIATION (Cal. Gov. Code§ 15 JOSEPH I. CASTRO, an individual; 12940(h)); SAUL JIMENEZ-SANDOVAL, an individual; (4) FAILURE TO PREVENT 16 XUANNING FU, an individual; DISCRIMINATION, AND DOES 1 through 50, 17 HARASSMENT AND Defendants. RETALIATION (Cal. Gov. Code § 18 12940(K)); 19 S AIDING AND ABETTING DISCRIMINATION, 20 HARASSMENT AND 21 RETALIATION (Cal. Gov. Code § 12940); 22 (6) RETALIATION (Cal. Lab. Code § 1102.5); 23 (7) REPRISAL/RETALIATION (Cal. 24 Gov. Code §§ 8457 et seq.); (8) DEFAMATION 25 (9) VIOLATION OF THE EQUAL PAY 26 ACT (Cal. Lab. Code §§ 432.3, 1197.5); and 27 (10) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. 28 DEMAND FOR TRIAL BY JURY PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL Page 1 Plaintiff Dr. A. SAMEH EL KHARBAWY (hereinafter “Plaintiff? or “Dr. EI Kharbawy”), by and through his counsel, alleges as follows: THE PARTIES 1 Plaintiff is, and at all relevant times mentioned herein was, a resident of the State off California. Plaintiff is a tenured Full Professor at California State University. 2. Defendant BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY (hereinafter “CSU”) is a subdivision of the State of California governing and operating the 234 campus California State University system, including the California State University in Fresno (hereinafter “the University”, “CSU Fresno” or “Fresno State”). CSU is headquartered in the city 10 of Long Beach, county of Los Angeles. il 3 Plaintiff is informed and believes that Defendant DARRYL HAMM (hereinafter “Mr. 12 Hamm”) is a resident of the city of Los Angeles in California. At all relevant times mentioned 13 herein, Mr. Hamm was an attorney in the Office of General Counsel of California State University 14 located in the city of Long Beach, county of Los Angeles. is 4 Plaintiff is informed and believes that Defendant LYNNETTE ZELEZNY (hereinafter| 16 “Dr. Zelezny”) is a resident of the State of California. At all relevant times mentioned herein, Dr. 17 Castro served as Provost of CSU Fresno (until May 2018). 18 5 Plaintiff is informed and believes that Defendant JOSEPH I. CASTRO (hereinaftey 19 “Dr. Castro”) is a resident of the State of California. At all relevant times mentioned herein, Dr. 20 Castro served as President and chief executive officer of CSU Fresno. 21 6 Plaintiff is informed and believes that Defendant SAUL JIMENEZ-SANDOVAL 22 (hereinafter “Dr. Jiménez-Sandoval”) is a resident of the State of California. At all relevant times 23 mentioned herein, Dr. Jiménez-Sandoval served as interim Associate Dean (August 2014-January, 24 2016), then Dean (January 2016-July 2019) of the University’s College of Arts and Humanities 25 then Provost of the University (July 2019-Present). 26 7. Plaintiff is informed and believes that Defendant XUANNING FU (hereinafter “Dr. 27 Fu”) is a resident of the State of California. At all relevant times mentioned herein, Dr. Fu served| 28 as Dean of the University’s Undergraduate Studies and Plaintiff's Dean and Chair (May 2015-Jul PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL Page 2 2019), interim Vice Provost (July 2019-September 2020), then Vice Provost (September 20204 Present). 8 The true names or capacities of Defendants DOE 1 to DOE 50, inclusive, whethey individual, corporate, associate, subsidiary or otherwise are unknown to PLAINTIFF at this time. Plaintiff therefore sues such defendants under fictitious names and will amend this Complaint ta allege their true names and capacities when ascertained. Plaintiff is informed and believes and thereon alleges that each of the defendants fictitiously designated as DOE is legally responsible, either intentionally, negligently or in some other actionable manner for the occurrences herein] alleged, and thereby proximately caused injuries and damages to the Plaintiff as alleged herein. 10 9 CSU, Mr. Hamm, Dr. Castro, Dr. Zelezny, Dr. Jiménez-Sandoval, Dr. Fu, and DOES} 11 1 through 50 are herein collectively referred to as “Defendants.” 12 10. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned 13 herein, the Defendants, and each of them, were the agents, parents, subsidiaries, agents, servants 14 employees, co-venturers, and/or co-conspirators of each of the other defendants and were at alll 15 times mentioned, acting within the scope, purpose, consent, knowledge, . ratification and 16 authorization of such agency, employment, joint venture and conspiracy. All of the acts and/oy 17 conduct of each Defendant alleged in the causes of action into which this paragraph is incorporated 18 by reference were consented to, ratified, approved, and/or authorized by the officers and/or 19 managing agents of other Defendants. 20 JURISDICTION AND VENUE 21 lL. Plaintiff brings this Complaint for violations of the California Civil Code and| 22 California common law. Subject matter jurisdiction in this matter is conferred by California 23 Constitution, Art. VI, §§ 11-12 and Code of Civil Procedure § 410.50. Personal jurisdiction is 24 proper under C.C.P. § 410.10 because the Defendants, and each of them, have maintained! 25 sufficient minimum contacts with the State to make the exercise of personal jurisdiction reasonable 26 and just. Plaintiff is informed and believes that Defendants, and each of them, reside and/oy 27 perform work within the State of California. 28 MW "S MAND Ft ‘YY TRIAL Page 3 12. Venue in this Court is proper pursuant to California Code of Civil Procedure section) 395 et seq. because the CSU’s is headquartered in the County of Los Angeles and some of the wrongful actions alleged herein occurred within the County of Los Angeles. FACTUAL ALLEGATIONS RELEVANT TO ALL CLAIMS 13. Plaintiff is a tenured Full Professor at CSU Fresno where he has been employed since August 2006. 14, Plaintiff is the most senior member of the faculty and the only tenured Full Professoy in his academic unit. He is, by formal training, an architect and a critic, historian and theorist of architecture, art, and design. He has developed an outstanding reputation among his students, 10 peers and in professional circles for his teaching of core and advanced courses in those areas, 11 earning him consistently positive student and peer evaluations. Aside from being a hight 12 respected educator, Plaintiff is a prolific scholar, with scores of publications, keynotes, invited 13 lectures and conference appearances worldwide; extensive government, community, and 14 professional associations in the U.S. and beyond. In 2009, he was awarded early tenure with full 15 professorship for “sustained exceptional performance” in all categories of service to the 16 University. 17 15. Plaintiff has a long history of activism against sexism, racism, and injustice at the 18 University, and has opposed unlawful discrimination, retaliation and harassment of protected 19 individuals (i.e. female students and employees, senior members of the faculty, Middle Eastern] 20 Americans, etc). During his tenure at CSU Fresno, Plaintiff also opposed and reported fraud. 21 corruption, administrative misconduct and other unlawful activities at the University and was 22 targeted by Defendants, as a result, with a campaign of discrimination, harassment, and retaliation) 23 which continues to this day. 24 A. PLAINTIFF OPPOSED AND REPORTED DISCRIMINATION, 25 CORRUPTION AND UNLAWFUL HIRING PRACTICES AT THE 26 UNIVERSITY. 27 16. In 2014 and 2015, Plaintiff served on a search committee for a vacancy within the 28 University’s Department of Art and Design (the “Department”). Upon learning that members of PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL Page 4 the Department’s part-time faculty members (all women over the age of 60) intended to apply fon the announced position, administrators altered the application requirements without consulting the search committee, effectively disqualifying the part-time faculty. When Plaintiff became aware off this, he submitted (on or about December 22, 2014), a whistleblower complaint to the University, detailing, and strongly objecting to the administration’s unlawful attempts to bias the search| process against these senior, female applicants. He specifically recalled a statement that one off those University administrators had made to a senior, female faculty member during the search| that the Department needed “fresh blood.” 17. Three senior, female professors filed separate complaints of discrimination. 10 harassment, and retaliation against the University in the form of internal University grievances and il formal complaints to the DFEH related to the Department’s faculty search and other acts off 12 discrimination, retaliation and harassment by the University administration at various levels 13 (including many of the Defendants). In their complaints, the female professors complained that 14 discrimination and retaliation were “pervasive at Fresno State” causing a “distress level... so high” 15 that it forced the faculty and students to lodge several complaints against the University, 16 administration. Twice (first in May 2015 and again in February 2016) Plaintiff gave evidence and 17 testimony as a witness in the investigations of these complaints. 18 18. Around this time, Plaintiff received a surprise offer from the University’s Provost (atj 19 the time, Dr. Zelezny, acting on behalf of the President, Dr. Castro) to assume a leadership position! 20 at the University as the inaugural Director of a new University institute (what she called the 21 Institute for “Innovation and Sustainability”). In January 2016, Dr. Zelezny claimed that she was 22 working to finalize the details of the Plaintiff's new position and contract. After Plaintiff's 23 protected activities continued throughout 2016, the University’s offer disappeared. Neither the 24 position nor the alleged institute itself ever materialized. 25 19. In September 2016, the University formed a search committee to appoint professors in 26 its Middle Eastern Studies program. The search continued for months, as the committee considered 27 the academic qualifications and professional experience of numerous applicants. After more than] 28 eight (8) months of careful deliberation, four candidates (all Middle Eastem Americans) were PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL Page 5 named by the search committee as finalists and invited to campus for interviews set in May 2017] When University administrators learned the committee had recommended four Middle Eastern] Americans for the position, the University abruptly—and without any lawful cause—cancelled the search, citing pretextual procedural irregularities. As reported and confirmed by numerous sources, the real reason for the cancellation was pressure from outside (Israeli) advocac’ organizations, to which the administration granted an effective veto over any appointment off professors of Middle Eastern or Arab (Palestinian) descent. The University’s decision, and its discriminatory underpinnings, triggered a national outcry. 20. PLAINTIFF again refused to let such unlawful racism and discrimination go 10 unaddressed. While he did not serve on the Middle East Studies search committee, Plaintiff was 11 regularly made aware of its efforts, followed its public announcements, learned of the 12 accomplished résumés of the selected finalists, and joined others in protesting the University’s 13 unlawful decision to terminate the search, and the discriminatory, racial animus behind it. He 14 complained about the discriminatory search process to the University’s administration—including 1s Dr. Castro, and the Chancellor of the California State University system, Dr. Timothy White. The 16 position remains unfilled to this day. 17 B FOLLOWING HIS OPPOSITION TO, AND REPORTS OF DISCRIMINATION. 18 UNLAWFUL FRAUD AND CORRUPTION, DEFENDANTS HARASSED AND) 19 RETALIATED AGAINST PLAINTIFF. 20 21. University administrators (including Dr. Castro, Dr. Zelezny, Dr. Fu, Dr. Jiménez- 21 Sandoval, Mr. Hamm, Martin Valencia (Chair of the Department of Art and Design at CSU Fresno. 22 hereinafter “Mr. Valencia”) and other officials!) responded negatively and with hostility ta 23 Plaintiffs efforts to call attention to discrimination and other unlawful wrongdoing within th 1G 24 University, and have since subjected Plaintiff to a sustained, egregious campaign of harassment 25 and retaliation that involved threats, intimidation, administrative bullying and hostility, increased 26 scrutiny, manufactured controversies, trumped-up allegations, defamation, wage disparities 27 28 1 Plaintiff is informed, believes and thereon alleges that these individuals were “supervisors” pursuant to Cal. Gov. Codesection 12926(0. es ee ‘PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL Page 6 professional isolation, violations of Plaintiff's rights, and breaches of his privacy. The retaliatory conduct continues to the present. 22. For example, in 2016 and 2017, following Plaintiff's above-described complaints regarding discrimination against protected individuals at the University, Dr. Fu started to harass Plaintiff. On numerous occasions, Dr. Fu purposefully misspelled Plaintiff's name in emailed (often publicly disseminated) communications, with pejorative, offensive insinuations to demean, humiliate and insult him. Plaintiff informed Dr. Fu that this practice was abusive and racially offensive. Dr. Fu did not stop. 23. In 2017, Dr. Fu manufactured and fomented false complaints against Plaintiff in an] 10 effort to bully and harass him. On or about February 6, 2017, Dr. Fu alleged that students in ond 11 of Plaintiff's classes complained to Dr. Fu that they had not received a printed syllabus for the 12 course (though, the syllabus was available online). Dr. Fu opted not to alert Plaintiff to the mattey 13 until the deadline for posting the syllabi had passed (a week later)—at which time he alleged that] 14 the students had filed acomplaint. When Plaintiff requested a copy of the alleged complaint, Dr. 15 Fu dodged the request for several weeks—eventually sending Plaintiff an anonymous untitled, 16 unsigned, and unaddressed document. Plaintiff accessed the metadata of the document and 17 discovered it had been created by Dr. Fu on the same day, minutes before he emailed it to Plaintiff! 18 When Plaintiff brought this to the attention of Dr. Fu, the matter was dropped immediately. 19 24, Around the same time period, in April 2017, Dr. Fu and Mr. Valencia conspired to| 20 make eleventh hour alterations to Plaintiff's teaching schedule for the following semester. In the 21 final days of the Spring 2017 semester, Plaintiff received an email from Dr. Fu notifying him that 22 one of his popular courses (ID 132T: “Design and People”) which had been long planned for Fal 23 2017 was abruptly cancelled. Plaintiff learned that he had been reassigned to teach another course. 24 ID 113—a course he had never previously taught. The University did not provide any explanation] 25 for the last-minute decision to cancel ID 132T, a popular and successful course in previous years. 26 Plaintiff was forced to either prepare for teaching a new course over the University’s summer 27 recess (a workload for which he would not be paid) or develop the new course as it proceeded| 28 during the Fall 2017 semester. It was a set-up for failure. PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL Page7 25. In or about October 2017, Dr. Fu alleged that a University alumna had lodged a protest of a grade she received in a course Plaintiff taught more than a year prior. The alleged complaint was, again, an anonymous, undated, unsigned document, which did not even bear the student’s name. At the time, Plaintiff defended his grading procedures generally on their merits. He also| objécted to the University’s handling of the matter, as the alleged grade petition was submitted and accepted long after the required due date set forth in the University’s Academic Policy Manual. clearly in violation of the University’s policies and procedures. Two days after Plaintiff filed his objections to the administration’s handling of this alleged petition, the University abruptl suspended the student’s grade petition and decided not to pursue it. 10 26. In the final days of the Fall 2017 semester, Dr. Fu and Mr. Valencia again surprised a1 Plaintiff with last-minute changes to his teaching schedule for the Spring 2018 semester. Without 12 justification, Plaintiff (a critic, historian, and theorist of art, design, and architecture) was assigned! 13 an advanced course in digital design, animation and multi-media art (ID 116) which required 14 specialized expertise in a highly technical suite of software applications. Dr. Fu and Mr. Valencial 15 knew Plaintiff was not an expert in multi-media art and that he had never taught this specialized] 16 software or used it in his work. This, again, was a set-up for failure. The University provided no, 17 justification for its decision to require Plaintiff to teach a course so far outside his area of expertise] 18 Coming close on the heels of Plaintiff's protected activity and Dr. Fu’s prior efforts to manufacture 19 complaints against Dr. Kharbawy, these last-minute surprises were retaliatory and intended to 20 harass Plaintiff. 21 27. In or around November 2017, Plaintiff learned that other professors of similar rank a! 22 his College (of Arts and Humanities) had been awarded pay equity increases, which he did not 23 receive. In fact, since he started his opposition to Defendants’ unlawful discrimination, corruption 24 and fraud Plaintiff has not received the salary increases awarded to similarly ranked and 25 comparably qualified and experienced faculty in the College of Arts and Humanities, or at similay 26 rates. This disparity continues to the present date. 27 Ml 28 MW a cx PLAINTIFF'S COMP LAINT AND ND DEMAND FOR 7 U RY TRIA Page 8 1 Cc PLAINTIFF OBSERVED, OPPOSED AND REPORTED ACTS OF FRAUD) PERPETRATED BY DEFENDANTS IN FACULTY SEARCHES AND IN THE UNIVERSITY’S ACCREDITATION PROCEDURES. 28. Accreditation is the primary means by which universities are evaluated in the U.S. It is a reliable authority on academic quality, and the means to hold universities to minimum standards for curricula, faculty, resources, services, and facilities, and commit them to a culture off continuous improvement and accountability. Importantly, accreditation also qualifies universities to receive state and federal funding. Title IV of the Higher Education Act requires institutions of higher education that receive federal funds and/or provide federal aid to students to, inter alia, be 10 accredited by an agency recognized by the Department of Education. Similarly, most state 11 governments (including California) require accreditation to make state funds available to colleges 12 and universities. For those reasons, lawful, credible accreditations are of paramount importance.” 13 29. Re-accreditation is a significant undertaking—normally spanning multiple years—in] 14 which the institution completes a self-study, updates course offerings, ensures compliance with) 15 enumerated accreditation requirements, and gathers years of data about an academic program’s 16 performance (from students, alumni, faculty, staff, administrators, government, professional and) 17 community partners). It is an important step in the educational process, ensuring that accredited 18 universities continue to provide a high standard of education. It is also an important step in funding 19 the University. The loss of accreditation places in jeopardy tens of millions of dollars in federal 20 and state funds that the University receives. al 30. CSU Fresno’s Interior Design Program (hereinafter “Interior Design Program” of 22 “Program”) is reviewed for accreditation by the Council for Interior Design Accreditation] 23 (hereinafter “CIDA”) every six or so years. The last such review of CSU Fresno occurred in o7 24 around Fall 2016 (hereinafter “the Review”). During the Review, Plaintiff discovered that 25 Defendants, along with a group of University administrators at various levels, had directed faculty, 26 members to submit to CIDA a fabricated assessment report of the Interior Design Program, which 27 28 2 Multiple government investigations are currently probing corruption and fraud in higher education (including in admissions, funding, licensing and accreditations). PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL Page 9 contained mostly false, plagiarized and counterfeit information. The report identified events and evaluations that never happened, and referenced data never collected, reported, or analyzed. 31. When he learned of the Defendants’ fraud, Plaintiff strenuously objected to it, and to their deliberate effort to betray the public trust and defraud one of the University’s accreditation agencies. He sent emails and complaints to University employees and officials opposing the fraudulent behavior. Equally troubling to Plaintiff was the fact that Defendants involved students in their unlawful scheme. At the direction of Defendants, other University administrators (at various levels) and the faculty members involved, students witnessed and participated in the acts of plagiarism, fraud, hacking and counterfeiting of documents, and academic dishonesty. 10 32. Thereafter, those same University employees and officials defamed Plaintiff in i1 retaliation. During CIDA’s subsequent visit to the CSU Fresno campus, Defendants and other 12 University employees made materially false allegations about Plaintiff to CIDA’s representatives 13 Those statements were subsequently included in CIDA’s Accreditation Report (hereinaftey 14 “Report”) published by CIDA. The University later republished CIDA’s defamatory Report, and 15 used it as a pre-text for further retaliation against Plaintiff. 16 33. The CIDA Report includes several false and defamatory statements made b: 17 Defendants about Plaintiff, which injured his reputation with respect to his occupation, including, 18 without limitation: 19 (1) That Plaintiff served as “coordinator” of the University’s Interior Design Program| 20 at the time of CIDA’s 2016-2017 Review; 21 (2) That he “chose not to participate in the accreditation process;” and 22 (3) That he withheld “all of his course materials and student work” from CIDA’s 23 Visiting Team. 24 Defendants knew that each of these statements were false. 25 Mt 26 Mt 27 Mt 28 Mt PLAINTIFF ”’S COMPLAINT "AND FOR JURY TRIAL Page 10 PLAINTIFF ENGAGED IN PROTECTED ACTIVITY BY OPPOSING AND) REPORTING DEFENDANTS’ FRAUD, CORRUPTION, DISCRIMINATION, RETALIATION, HARASSMENT AND OTHER UNLAWFUL CONDUCT AT] THE UNIVERSITY. 34, During his tenure at CSU Fresno, Plaintiff has opposed and reported Defendants’ discrimination and harassment of protected individuals (on the basis of their age, gender, race. national origin, etc.) Plaintiff has also opposed and reported fraud, corruption, administrative misconduct, and other unlawful activities at the University. Plaintiff started by addressing these legal violations directly with Defendants and other University administrators. When informal 10 correspondence to University officials did not result in substantive change, Plaintiff submitted 11 formal complaints using the University’s internal reporting and grievance processes; he also made 12 several whistleblower disclosures. Plaintiff engaged in years of protected activity, including 13 (without limitation): 14 a. December 22, 2014; January 12, 2015; and January 29, 2015: Plaintiff filed a series 15 of whistleblower complaints with the University protesting the administration’s 16 unlawful attempts to bias a faculty search against older, female applicants and othey 17 legal violations that had compromised the search; 18 May 2015: Plaintiff was identified as a witness in support of discrimination, 19 harassment, and relation claims brought by three older, female members of the 20 faculty at the University; 21 July 29, 2015: Plaintiff was interviewed by DFEH investigators regarding those 22 complaints of discrimination, retaliation, and harassment; 23 February 1, 2016: Plaintiff was again identified as a witness in support of those 24 complaints filed with the DFEH; 25 April 25, 2016; April 26, 2016; and May 12, 2016: Plaintiff submitted 26 whistleblower complaints to the California State University’s Vice Chancellor foy 27 Human Resources reporting fraud and multiple irregularities in the University’s 28 faculty hiring practices. The Plaintiff's complaints detailed legal and polic: PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL Page ll violations in a faculty search that had been announced at the time in the University’s Department of Art of Design; August-September 2016: Defendants, among a group of University administrators at various levels, direct members of the faculty to submit to an accreditation agency; a fabricated assessment report of one of the University’s an academic programs to fraudulently obtain reaccreditation for said program. Plaintiff strenuously objected to the fraud. June 9, 2017 — Plaintiff filed a complaint pursuant to the University’s Executive Order 1096 (“EO-1096”) concerning discrimination against protected individuals 10 on the campus of CSU Fresno. il August 18, 2017 — Plaintiff submitted a comprehensive whistleblower complaint to 12 the California State University’s Vice Chancellor for Human Resources, in which 13 he reported unlawful activities at CSU Fresno, including fraud, unlawful hiring} 14 practices, systemic racism, discrimination, unlawful retaliation and harassment, and 15 pervasive administrative misconduct (“the Comprehensive Complaint.”) The 16 document is 54 pages in length, accompanied by another 60 pages of exhibits and 17 supporting documentation. In the Comprehensive Complaint, Plaintiff detailed 18 each of the illegal activities described above and other deviations from University, 19 policy and procedure. 20 August 2017-January 2018: Plaintiff filed a series of addenda to the Comprehensive 21 Complaint. 22 November 21, 2017: Plaintiff filed a contractual grievance requesting an 23 investigation of potential breach of his collective bargaining rights. 24 November 27, 2017: Plaintiff filed a complaint of discrimination, retaliation, and 25 harassment, pursuant to the University’s Executive Order 1096; 26 Mt 27 M 28 Ml PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL Page 12 December 13, 2017: Plaintiff formally protested the University’s failure to| investigation his EO-1096 complaints and formal grievance within the time frames established by statute and the CBA.? January 4, 2018: The Office of California State University’s Vice Chancellor foy Human Resources informed Plaintiff that his August 2017 whistleblower complaints (and its addenda) were no longer under review and would not be investigated. January 30, 2018: Plaintiff objected to the University’s decision to refrain from] investigating his complaints. He informed the Chancellor’s Office and the 10 University’s Human Resources Department of his intention to seek independen 1l investigations of his whistleblower disclosures by outside agencies (which would 12 include, without limitation, the State Attorney General and the State Auditor). 13 FOLLOWING HIS PROTECTED ACTIVITY—AND BECAUSE OF IT— 14 DEFENDANTS RETALIATED AGAINST PLAINTIFF. 15 35, On February 5, 2018—-six (6) days after Plaintiff notified the University of his intention] 16 to pursue outside investigations of the University’s discriminatory, retaliatory, and illegal 17 activities—the University suspended Plaintiff without cause. The University delivered a letter to 18 Plaintiff (and several of his colleagues) informing him that it was invoking Article 17 of the 19 Collective Bargaining Agreement (“the CBA”) governing Plaintiffs employment with the 20 University. Article 17 provides for a “temporary suspension” (30 days, at most) of a faculty 21 member in extremely limited, extraordinary circumstances, which were not present in Plaintiff's 22 case.4 By and through the February 5, 2018 letter, the University suspended Plaintiff from his 23 position effective immediately. 24 25 26 3 University policy requires an investigation of a complaint of discrimination, retaliation, or harassment to be launched (with an intake interview of the complainant) within 10 days of receiving it, and that such investigation be 27 concluded within 60 days thereafter: The University has never processed any of Plaintiffs complaints within those policy timeframes. 28 4 Under the plain terms of Article 17, the suspension term must be thirty (30) days or less, subject to renewal onl where circumstances legitimately warrant. PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL Page 13 36. The University’s February 5, 2018 letter proffered false, pre-textual reasons for the suspension — a series of minor, vague, and baseless allegations of alleged wrongdoing. It was clear that Defendants manufactured these allegations in haste to justify their unlawful decision to suspend Plaintiff following his protected activity, and to preempt any outside investigations off their unlawful activities. 37. Defendants, and each of them, made, approved, or otherwise participated in the University’s decision to suspend Plaintiff's employment under Article 17 of the CBA. 38. Following his suspension, on or about February 13, 2018, Plaintiff filed a complaint off discrimination, retaliation, and harassment against the University with the DFEH arising out of the 10 same universe of facts alleged in this Complaint. al 39, Between March and August 2018, the University invoked Article 17 five (5) more 12 times, extending Plaintiffs suspension for another thirty (30) days in each instance. The 13 University’s proffered reasons and rationales for these suspensions were the same baseless, vague, 14 and false allegations contained in the original February 5, 2018 suspension letter. 1s 40. On or about March 13, 2018, the University notified Plaintiff that his November 27. 16 2017 EO-1096 complaint of discrimination, retaliation and harassment would be assigned to an] 17 outside law firm for investigation. At the time, that complaint had been pending for 107 days, and 18 an earlier EO-1096 complaint that Plaintiff had filed on June 9, 2017 had, at the time, been pending 19 for 278 days—both well past the deadlines mandated by University policy to process EO-1096 20 complaints. To date, there has been no resolution to any of Plaintiff's EO-1096 complaints. 21 Al. On or about March 16, 2018, Plaintiff filed an internal grievance protesting his 22 unlawful suspension. The University has not resolved this grievance to date. 23 42. Between May 11, 2018 and May 18, 2018, Plaintiff filed multiple requests with the 24 University for records and evidence per the California Public Records Act, pertaining to his 25 complaints of discrimination, retaliation, and harassment against the University. The University, 26 failed to fulfill any of those requests at the time, and they remain unfulfilled to this day. 27 Mf 28 Ml es PL,/AINT] IFF’S COMPLAINT AND DEMAND FOR JURY Page 14 43. On or about June 5, 2018, Plaintiff filed a complaint against the University for its retaliation against him for his engagement in protected whistleblowing activity (per Executive) Order EO-1058, later superseded by EO-1116). 44. On August 2, 2018, Plaintiff filed a governmental tort claim against the University. Onl the same date, he filed a complaint of retaliation against the University (which named several administrators as respondents) with the Division of Labor Standards Enforcement (DLSE). 45. Less than two weeks later, the University again retaliated against Plaintiff. By lettey dated August 13, 2018, the University further suspended Plaintiff, citing new allegations (not previously disclosed to Plaintiff) and revisions to the initial allegations asserted against Plaintiff 10 more than six months prior. The new allegations were just as false, vague, unsourced, and 11 fabricated as the University’s initial allegations. 12 46. Thereafter, the University continued to renew Plaintiff's suspension—placing a ne 13 letter of suspension in his Personnel File every 30 (or so) days. Defendants, and each of them. 14 made, approved, or otherwise participated in the University’s decision to continue to suspend 15 Plaintiff's employment. Although even a rudimentary investigation would have quickly exposed 16 the factually baseless allegations, Defendants opted to keep Plaintiff in “temporary” suspension] 17 for over thirty-two (32) months (as of this filing). To anyone viewing the Plaintiff's Personnel 18 File, it appears that Plaintiff has been continuously violating University policy for thirty-two (32 19 months; though, in reality, he has not set foot in a classroom on campus in almost three years. He 20 remains on “temporary” suspension to this day. The University has consistently refused to provide 21 information to Plaintiff about the factual basis for its allegations, despite multiple requests. 22 47. On or about June 14, 2019, Plaintiff filed an updated complaint of discrimination, 23 retaliation, and harassment for FEHA-related violations (EO-1096) with California State 24 University’s Vice Chancellor for Human Resources. The University has also not resolved this 25 complaint (or any other) to date. 26 48, On or about June 21, 2019, Plaintiff filed an updated complaint of retaliation and 27 harassment for whistleblowing (EO-1058/EO-1116) with California State University’s Vice 28 Chancellor for Human Resources. The University has not resolved this complaint to date. DEMAND FOR JURY TRIAL Page 15 49, On July 1, 2019 Plaintiff filed an updated complaint against the University with the DFEH (related to the illegal behavior described above) and received a “right to sue” letter. 50. On July 1, 2019, Plaintiff filed a governmental, claim against California State University related to the illegal behavior described above. He received no response to this claim. EXHAUSTION OF ADMINISTRATIVE REMEDIES 5l. Plaintiff exhausted administrative remedies related to his claims under Cal Gov. Code §§ 8547 et seg. To file a claim for damages under § 8547, two conditions must be met: (1) Plaintiff must “first file[] a complaint with [an Appropriate Administrator at the] university;” and (2) the university must “fail[] to reach a decision regarding that complaint within the time limits 10 established for that purpose by the trustees.” (Cal. Gov. Code § 8547.12(c).) Under the CSU’s 11 EO-1116, the CSU’s “Appropriate Administrator” is the Vice-Chancellor of Human Resources (or 12 a designated employee at each campus) and the time established for reaching a decision 120 days 13 from the University’s receipt of the complaint. Plaintiff submitted complaints in compliance with 14 the University’s EO-1116 procedures on June 5, 2018. He filed an updated EO-1116 complaint 15 on June 21, 2019. The University failed to resolve Plaintiff's complaints within 120 days; in fact. 16 the University has not informed Plaintiff of a final decision with regard to any of his complaints 17 to this day. Therefore, all conditions for a cause of action under §§ 8547 et seq. are met. 18 52. Plaintiff exhausted administrative remedies related to his claims under the Fait] 19 Employment and Housing Act (the “FEHA”), Cal. Gov. Code §§ 12940 et seg. On February 13 20 2018, Plaintiff filed a complaint against Defendants with the DFEH alleging discrimination, 21 retaliation, and harassment as described in this Complaint. He received a right-to-sue letter onl 22 August 16, 2018. On July 1, 2019, Plaintiff filed an updated complaint against Defendants with 23 the DFEH and received a right-to-sue letter based on his claims of discrimination, harassment, and 24 retaliation described in this Complaint. The filing of the instant complaint comes within one (1 25 year of both right-to-sue letters by virtue of tolling agreements entered into between Plaintiff and 26 Defendants on July 24, 2019 and November 12, 2019. The latter tolling agreement remains in| 27 effect to this date. 28 = ‘PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY Page 16 53. Plaintiff exhausted administrative remedies in regard to his tort claims agains Defendant CSU. Pursuant to Cal. Gov. Code § 911.2, a Plaintiff who wishes to seek redress for tortious action perpetrated by a governmental entity must first file a claim with that entity. Pey Cal. Gov. Code § 912.4, the entity must respond to the claim within forty-five (45) days. Failure to respond to the claim results in a de facto denial. (/d.) Pursuant to Cal. Gov. Code § 945.6, a Plaintiff filing statutory tort claims against a California government entity must file suit agains! the entity within six (6) months or one (1) year of the entity’s rejection of the tort claim. On June 28, 2019, Plaintiff sent a governmental tort claim notice (via U.S. Certified mail) to CSU related to the facts and causes of action contained in this Complaint. He received no ‘response to this 10 claim. The filing of the instant complaint is timely by virtue of tolling agreements entered into 11 between Plaintiff and Defendant CSU on July 24, 2019 and November 12, 2019. The latter tolling 12 agreement remains in effect to this date. 13 FIRST CAUSE OF ACTION 14 (Wiscrimination in Violation of FEHA, Cal. Gov. Code § 12940(a)) (Against Defendant CSU and Does 1 through 50) 15 54. Plaintiff re-alleges and incorporates herein by reference each and every allegation set 16 forth in this Complaint. 17 55. At all times mentioned herein, the FEHA, Cal. Gov’t Code §§ 12900, et seq., was in| 18 full force and effect and was fully binding upon Defendants. The FEHA protects employees from] 19 tacial discrimination in the workplace. Specifically, Cal. Gov. Code § 12940(a) prohibits 20 employers from discriminating against employees on the basis of, inter alia, “race. ..[and] national] 21 origin.” 22 56. At all times mentioned herein, Plaintiff was an employee of the University within the 23 meaning and scope of the FEHA, Cal. Govt. Code § 12926(c) and, as such, Plaintiff had the right 24 to an employment free of discrimination on the basis of his race, ethnicity and/or national origin. 25 57. At all times mentioned herein, California Government Code § 12940 et seq., was in ful 26 force and effect, and was binding upon all Defendants. Said sections expressly bar Defendants 27 from discriminating against employees of the University on the