Preview
E-FILED
11/18/2021 12:31 PM
Superior Court of California
JesseJ. Maddox, Bar No. 219091 County of Fresno
jmaddox@Icwlegal.com By: Estela Alvarado, Deputy
Nathan T. Jackson, Bar No. 285620
jacksor Lcwl com.
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
5250 North Palm Ave, Suite 310
Fresno, Califomia 93704
Telephone: 559.256.7800
Facsimile: 559.449.4535
Attol for Defendants BOARD OF TRUSTEES OF
CALI IRNIA STATE UNIVERSITY, DARRYL L. HAMM, and
XUANNING FU
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF FRESNO
11
A. SAMEH EL KHARBAWY, Case No.: 21CECG02214
gO 12
gas Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON.
13 KIMBERLY GAAB, DEPT. 503]
Vv.
Bas 14 Complaint Filed: October 23, 2020
see
a8 15
BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY ; REQUEST FOR JUDICIAL NOTICE IN
DARRYL L. HAMM, an individual; SUPPORT OF DEFENDANT DARRYL
tin
16 LY NNEITTE ZELEZNY, an individual; HAMM 'S SPECIAL MOTION TO STRIKE
JOSEPH I. CASTRO, an individual; PLAINTIFFA. SAMEH EL KHARBAWY’S
17 SAUL JIMENEZ-SANDOVAL, an COMPLAINT; MEMORANDUM OF POINTS
individual; XUANNING FU, an AND AUTHORITIES IN SUPPORT THEREOF
18 individual; AND DOES 1 through 50,
Date: December 21, 2021
19 Defendant. Time: 3:30 p.m.
Dept: 503
20
21 from filing fees pursuant to Gov.
Code, § 6108)
23 Defendant Darry L. Hamm (“Defendant” or “Hamm’) respectfully asks the Court to take
judicial notice, pursuant to Evidence Code §§ 452 and 453, of the following documents in support
25 of his Special Motion to Strike Plaintiff’ s Complaint.
26 1 A copy of Plaintiffs complaint with the Department of Fair Employment &
27 Housing (“DFEH”) dated February 13, 2018, Case No. 201801-00693707, and the accompanying
tight
to sue, true and correct copies of which are attached hereto as Exhibit 1. (Evid. Code,§
1
Request for Judicial Notice in Support of Special Motion to Strike Plaintiffs Complaint
9843382.1 FROO7-003
452(c), (h); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369; Glaski v. Bank of Am
(2013) 218 Cal.App.4th 1079, 1090 [court can take judicial notice of public records].) Moreover 5
this DFEH complaint is referenced in the complaint. (Complaint at § 52; Ascherman v. Gen.
Reins. Corp. (1986) 183 Cal.App.3d 307, 310-311 [noting trial court properly took judicial notice
of contract referenced in complaint when ruling on a demurrer].)
2. A copy of Plaintiff's complaint with the Department of Fair Employment &
Housing (“DFEH”) dated July 1, 2019, Case No. 201907-06690101 (and accompanying right to
sue acknowledgment), a true and correct copy of which is attached hereto as Exhibit 2. (Evid.
Code, § 452(c), (h); Gong, supra, 226 Cal.App.4th at 369; Glaski, supra, 218 Cal.App.4th at
10 1090 [court can take judicial notice of public records].) Moreover, this DFEH complaint is
11 referenced in the complaint. (Complaint at 4 52; Ascherman, supra, 183 Cal.App.3d at 310-311
ge 12 [trial court properly took judicial notice of contract referenced in complain.)].)
as 13 3 A copy of the Legislative Counsel’s Digest for Stats. 2019, c. 709 (A.B. 9), § 1
14 eff. Jan. 1, 2020, a true and correct copy of which is attached hereto as Exhibit 3. (Evid. Code §
15 452(c); Rubio v. Superior Ct. (2016) 244 Cal.App.4th 459, 476 [We take judicial notice of
eZ
16 legislative history materials provided by the People as they request, as well as of other legislative
<&4
17 history materials cited herein”); People v. Superior Ct. (2005) 132 Cal.App.4th 1525, 1532
18 [taking judicial notice of Legislative Counsel’s Digest].)
19
Dated: November 18, 2021 LIEBERT CASSIDY WHITMORE
20
21
22
23
Lal Jesse J. ron
Nathan T. Jacksoi
Attorneys for D. 2 BOARD OF
24 TRUSTEES OF CALIFORNIA STATE
UNIVERSITY, DARRYL L. HAMM, and
25 XUANNING FU.
26
27
28
2
Request for Judicial Notice in Support of Special Motion to Strike Plaintiff's Complaint
9843382.1 FROO7-003
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
This Request for Judicial Notice (“RJN”) accompanies a special motion to strike Plaintiff’ s
Complaint on behalf of Defendant Daryl Hamm. As set forth in the accompanying memorandum.
of points and authorities in support of its anti-SLAPP motion, the second prong of the anti-SLAPP
test requires the Court to make a determination about whether Plaintiff has proffered evidence
suggesting a probability of prevailing on the merits. Relevant to the second prong of the anti-
SLAPP test, CSU contends that Plaintiff failed to exhaust his administrative remedies under the
Fair Employment & Housing Act (“FEHA”). The FEHA require administrative exhaustion as a
10 prerequisite
to commencing suit. (e.g., Gov. Code, § 12960.) Courts routinely take judicial notice
11 of FEHA records, including complaints filed with the Department of Fair Employment & Housing
gO 12 (“DFEH”) and accompanying right to sue notices. Authenticity is not a concem here.
2eo
aa
13 Hammis also asking the Court to take judicial notice of the Legislative Counsel’
s Digest to
ga
Ba 14 A.B. 9 (2019, Reyes). The FEHA was amended in 2020, and the statute of limitations to file a
see
es
15 complaint with the DFEH wes expanded from 1 year to 3. Hamm contends this amendment
is not
a8
tid
16 retroactive, and asks the Court to take judicial notice of the Legislative Counsel’s Digest so it can
17 resolve that legal question. Resolving that legal question is necessary to determine whether
18 Plaintiff timely filed a DFEH complaint that named Hamm as a respondent. Hamm contends there
19 is no retroactivity provision in the statute or the Legislative Counsel’s Digest. The Court can take
20 judicial notice of legislative records, under Evidence Code section 452(c).
21 I RELEVANT FACTUAL BACKGROUND
Plaintiff filed a lawsuit against CSU in Los Angeles Superior Court on October 23, 2020.
23 (See Exh. 1 to Declaration of Nathan T. Jackson in Support of Anti-SLAPP.) Plaintiff is suing
Hamm for: (1) FEHA race harassment (Complaint
at 66); (2) FEHA retaliation (Id. at 1179); (3)
25 failure to prevent harassment, discrimination, and retaliation (Id. at | 88); (4) aiding and abetting
26 FEHA violations (Id. at 97); (5) WPA whistleblower retaliation (Id. at p. 27:23-25); and (6)
27 intentional infliction of emotional distress (Id. at p. 34:24-26).
Ml
3
Request for Judicial Notice in Support of Special Motion to Strike Plaintiffs Complaint
9843382.1 FROO7-003
Plaintiff’
s lawsuit dedicates 1.5 pages
to detailing
how he allegedly exhausted his
administrative remedies under FEHA, the WPA, and the GCA. (Id. at pp. 16-17.)
II. LEGAL ANALYSIS
A. JUDICIAL NOTICE IS APPROPRIATE IN THIS CASE
Evidence Code section 453 provides, in pertinent part, that:
The trial court shall take judicial notice of any matters specified in Section
452 if a party requests it and: (a) Gives each adversary party sufficient
notice of the request, through the pleacings or otherwise, to enable such
adverse party to prepare to meet the request; and (b) Fumishes the court
with sufficient information to enable it to take judicial notice of the matter.
(Id. [emphasis added].)
10 Here, the Court can (and state and federal courts routinely do) take judicial notice of
11 DFEH complaints and accompanying right to sue notices (which are also matters of public record,
gO 12 and referenced in Plaintiff’s Complaint). (Wood v. Superior Ct. of San Diego Cty. (2020) 46
28S
aa
13 Cal.App.5th 562, 580 fn 2 [“we granted Crunch's request forjudicial notice of several pages from.
ga
Ba 14 DFEH's website and other DFEH public statements”); Silvia v. EA Technical Servs., Inc. (N.D.
see
es
15 Cal. 2017) 2017 WL 2377713, at*2 [“Courts routinely take judicial notice of proceedings in
a8
tid
16 other courts and records of state agencies, including DFEH complaints”); Arce v. Kaiser Found.
17 Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [court may take judicial notice of official acts
18 of state agencies]; Minor v. FedEx Office & Print Servs., Inc. (N.D. Cal. 2015) 78 F.Supp.3d.
19 1021, 1027 [taking judicial notice of DFEH complaint]; Glaski v. Bank of Am (2013) 218
20 Cal.App.4th 1079, 1090 [public records subject to judicial notice]; Ascherman
v. Gen. Reins.
21 Corp. (1986) 183 Cal.App.3d 307, 310-311 [noting trial court properly took judicial notice of
contract referenced in complaint under Evidence Code, section 452(h), which was dispositive to
23 the action].) There is simply not a concem about authenticity in this context. Moreover, Plaintiff
relies on these records in his complaint. (Ascherman v. Gen. Reins. Corp. (1986) 183 Cal.App.3d
25 307, 310-311 [noting trial court properly took judicial notice of contract referenced in complaint
26 under Evidence Code, section 452(h), which was dispositive to the action].)
27 The Court can also take judicial notice of legislative records under Evidence Code section
452 (c). (Evid. Code § 452(c); Rubio v. Superior Ct. (2016) 244 Cal.App.4th 459, 476 [““We take
4
Request for Judicial Notice in Support of Special Motion to Strike Plaintiffs Complaint
9843382.1 FROO7-003
judicial notice of legislative history materials provided by the People as they request, as well as of
other legislative history materials cited herein”]; People v. Superior Ct. (2005) 132 Cal.App.4th
1525, 1532 [taking judicial notice of Legislative Counsel’s Digest].)
IV. CONCLUSION
Based on the foregoing, the Defendant respectfully requests that the Court take judicial
notice of Plaintiff's DFEH complaints and accompanying right to sue notices and of the
Legislative Counsel’s Digest for Stats. 2019, c. 709 (A.B. 9), § 1, eff. Jan. 1, 2020.
Dated: November 18, 2021 LIEBERT CASSIDY WHITMORE
10
11 By: Z
Jesse J. Mad id
ge 12 Nathan T. Jackso
Attorneys for D dants BOARD OF
bag 13 TRUSTEES O ALIFORNIA STATE
5° UNIVERSITY\/ ARRYL L. HAMM, and
a e< 14
Bae XUANNING FU
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BEEZ
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a
17
18
19
20
21
22
24
25
26
27
28
2
Request for Judicial Notice in Support of Special Motion to Strike Plaintiff's Complaint
9843382.1 FROO7-003
Exhibit 1
we
‘STATE OF CALIFORNIA | Business. Consumer Services and Housing Agency GOVERNOR EDMUND G. BROWN.JR.
DIRECTOR KEVIN KISH
ye DEPARTMENT OF FAIR EMPLOYMENT & HOUSING
V By
No \@ 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758
(800) 884-1684 I TDD (800) 700-2320
http:/www.dfeh.ca.gov | email: contact.center@dfeh.ca.gov
wee
February 14, 2018
Via Certified Mail
Agent for Service for Respondent:
Marylou Mendoza-Miller
Associate Vice President for Human Resources
Joyal Administration Building, Room 211
5150 N Maple Ave. M/S JA71
Fresno, CA 93740
Respondent(s):
California State University, Fresno
5200 N Barton
Fresno, CA 93740
Xuanning Fu
5200 N Barton
Fresno, CA 93740
RE: Notice of Filing of Discrimination Complaint - Response Requested
DFEH Matter Number: 201801-00693707
EEOC Number: 37A-2018-01342-C
El Kharbawy / California State University, Fresno et al.
To All Listed Respondent(s):
Enclosed is a copy of a complaint filed with the Department of Fair Employment and
Housing (DFEH). The enclosed complaint, in which you have been named a
Respondent or Co-Respondent, alleges unlawful discrimination pursuant to Government
Code section 12960.
The DFEH serves as an objective fact-finder and represents the state of California
rather than the complaining party. The purpose of our investigation is to determine the
merits of the complaint.
Government Code Section 12940, subdivision (f) or 12955 (f), prohibits any retaliatory
action against a person because he or she has filed a complaint, has opposed any
practices forbidden under the Fair Employment and Housing Act, or has assisted in any
proceeding before the DFEH.
California Government Code section 12946 requires that all employment records (or
union membership and referral records) be retained for a minimum of two (2) years.
Notice of Filing of Discrimination Complaint - Response Requested
February 14, 2018
Page 2 of 6
When a discrimination complaint has been served, the records must be kept until the
DFEH closes its inquiry and until any resulting law suit or appeal has been terminated.
This complaint has also been filed with the U. S. Equal Employment Opportunity
Commission (EEOC). You need not reply to the EEOC unless that agency specifically
requests a response.
You must submit a response to the questions below and on the attached
supplemental sheet within thirty (30) calendar days of the date of this letter.
1 State the legal name of your business and any other name(s) under which you
do or have done business in California.
State your business address. Please note that you are required to notify the
DFEH in writing of any change of address and the effective date of such change
while the complaint is under investigation and throughout any administrative
adjudication. (California Code of Regulations, title 2, sections 7403 and 7411).
State type of legal business entity (i.e., corporation, partnership, limited
partnership, sole proprietorship, etc.).
Does your company have a current contract(s) for the provisions of goods,
services or public works with the State of California or receive federal funds? If
so, name the awarding agency.
Your response must be submitted by mail. in all mailed correspondence, please include
your DFEH number 201801-00693707 and mail it to DFEH, 2218 Kausen Drive, Suite
100, Elk Grove, CA 95758.
If you are interested in discussing a possible settlement of this complaint, please
contact me immediately. All settlement discussions are confidential, and not subject to
disclosure. Evidence or information, which has a bearing on determining the merits of
this complaint will not be considered part of a settlement discussion unless
confidentiality is acknowledged by the DFEH. You would not be required to provide the
information requested above while settlement discussions are underway.
Also, please be advised that the Department offers free mediation services. If you and
the complainant agree to mediate, the complaint will be assigned to a mediator, who will
contact you to schedule the mediation conference. All settlement discussions that
transpire during the mediation process are confidential and not subject to disclosure.
While a complaint is with the mediator, the obligation to submit a response is
temporarily suspended. If the matter does not settle at mediation, you will be required to
submit a response, and will be notified in writing of the new date the response is due. If
you are interested in formal mediation, immediately contact the assigned investigator so
that your response to this complaint temporarily suspended.
Notice of Filing of Discrimination Complaint - Response Requested
February 14, 2018
Page 3 of 6
If you have any questions, please contact me.
Sincerely,
Deborah Dilay
Deborah Dulay
Staff Services Analyst
510-789-1039
deborah.dulay@dfeh.ca.gov
Enclosures
CERTIFIED MAIL: 70112970000429480239
Cc: California State University, Fresno
5200 N Barton
Fresno, CA 93740
Xuanning Fu
5200 N Barton
Fresno, CA 93740
Notice of Filing of Discrimination Complaint - Response Requested
February 14, 2018
Page
4 of 6
SUPPLEMENTAL QUESTIONS
Complainant: A El Kharbawy
Respondent: California State University, Fresno
File Date: February 13, 2018
Identify the person or persons designated to represent the company in this
matter. Provide telephone contact number, email address, and mailing address
for your representative(s).
Provide a statement of the employer's position with regard to the allegations
contained in the complaint. See DFEH complaint.
Provide copies of documents that support the employer's position regarding the
allegations contained in the complaint.
Provide copies of the Complainant's entire personnel file.
Provide copies of personnel files for employees Xuanning Fu, Richard McQuone,
and Vivian Coats for the past two years.
Please provide a copy of the Employee Handbook.
State what information was provided by the Complainant pertaining to the
complaint of race, ancestry and/or national origin harassment and clarify to whom
it was provided and when.
Describe your organization’s policy and procedures for processing employee
complaints. Submit a copy of any written complaint procedures relevant to the
Complainant and the issues raised in the complaint.
Provide copies of all notes and documents compiled by respondent concerning
the alleged harassment, and provide a copy of your final investigative report.
10.Describe in detail all steps taken in the investigation of the Complainant's
harassment allegations, and state what corrective action(s), if any, were taken by
you or your representative as a result of the investigation.
11.Provide a list of all persons who worked under the supervision of Xuanning Fu for
last two years. For each person listed state their position(s), date(s) of
employment, whether still employed, and provide their last known address and
home and work telephone numbers.
Notice of Filing of Discrimination Complaint - Response Requested
February 14, 2018
Page 5 of 6
12. Provide copies of any reprimands or warnings issued to Xuanning Fu for the last
three years.
13. State whether Respondent or Respondent's representative had, prior to
Complainant's charge, been informed of any other complaints of harassment by
Xuanning Fu.
14. If any disciplinary action was taken as a result of the Complainant's complaint
and/or your investigation, please describe action taken and provide supporting
documentation.
15. List the job title and provide a copy of any written job description for Xuanning
Fu. If no written job description exists, describe the duties and supervisory
responsibilities.
16. Provide a description of your policy on harassment. Provide a copy of any
written policy, and explain what steps have been taken to implement it.
17.Explain the present status of Xuanning Fu listed in the complaint.
18. Explain any action(s) that have been taken to protect the Complainant from any
further harassment.
19.Explain any action(s) that have been taken or were taken to protect the
Complainant from retaliation for filing the harassment complaint or for objecting
to the alleged harassment.
20.Explain how your organization communicates the policy statement prohibiting
harassment to new employees.
21.Identify employees who worked with the charging party during the relevant
period. Include:
a. Name, position, and race, ancestry, and/or national origin; and
b. Last known address and telephone number.
22. State the reason(s) complainant was suspended.
23.List the names of all persons involved in making the specific decisions to which
the complainant objects. State each person’s job title and responsibility as it
relates to the issues raised by the complainant.
24, Provide all documentation to support your reasons for the suspension, i.e.,
counseling notices, written reprimands, attendance records, etc.
25.Provide a copy of the policy which governed complainant’s suspension.
Notice of Filing of Discrimination Complaint - Response Requested
February 14, 2018
Page 6 of 6
26.Describe your company’s practices regarding discipline and dismissal of
employees in complainant's classification and work unit, including a description
of the disciplinary steps required prior to termination for cause. Provide copies of
any written policies. State how this policy was applied to complainant.
27.Provide a copy of the job description for complainant. If no written description
exists describe the duties and responsibilities.
28. List all employees, including the complainant, who were supervised by the same
person supervising complainant during the past two years. Identify each
person’s race, ancestry, and/or national origin, job classification and provide the
current home address, telephone number and work number. Provide copies of
any reprimands, counseling notices and evaluations for each employee for the
past two years. If evaluations are not available, provide a statement with copies
of substantiating documentation, describing how well each person performed
his/her duties.
29.Complainant asserts that Richard McQuone, and Vivian Coats committed the
same or similar work infractions to those of the complainant but they were not
similarly suspended. Please respond to these allegations and provide
documentation which supports your position.
30.List (by name) all employees who filed an internal or external complaint of
discrimination the past three years and copy of each employee’s complaint. For
each employee listed provide their starting and ending dates of employment. If
employee was terminated, state reasons for termination and date of termination.
31.Provide a copy of all warnings, reprimands, counseling issued to the complainant
and Richard McQuone, and Vivian Coats for the past 3 years.
32. Provide copies of the performance reviews for the complainant and Richard
McQuone, and Vivian Coats for the past two (2) years.
neon, TEO) ORN sum Eoon ployment
é
Qy COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE
| vie
a CALIFORNIA FAIR EMPLOYMENT AND Housinc ACT
re
DFEH NUMBER EEOC NUMBER
37A-2018-01342-C
201801-00693707
COMPLAINANT ADDRESS PHONE
A. Sameh El Kharbawy PO Box 5335 5592784840
Fresno, CA 93755
TYPE OF DISCRIMINATION AND LAW
Government Code 12940
NAMED IS THE EMPLOYER, PERSON, AGENCY, ORGANIZATION OR GOVERNMENT ENTTITY WHO DISCRIMINATED AGAINST ME
RESPONDENT(S) ADDRESS PHONE
California State University, Fresno 5200 N Barton (559) 278-4240
Fresno, CA 93740
Xuanning Fu 5200 N Barton 5592784488
Fresno, CA 93740
NO. OF EMPLOYEES
- Allegation 1 -
| ALLEGE THAT | EXPERIENCED
Harassment
ON OR BEFORE
November 30, 2017
BECAUSE OF MY ACTUAL OR PERCEIVED
Ancestry;Race;National origin (includes language restrictions)
AS A RESULT, | WAS SUBJECTED TO
Denied a work environment free of discrimination and/or retaliation
PARTICULARS
From around February 2017 to November 2017, | was subjected to harassment based on my ancestry, race,
and/or national origin (Middle East) by my supervisor, Xuanning Fu. The harassment was of a verbal nature.
Examples of the harassment include, but are not limited to, Mr. Fu’s purposeful and offensive misspelling my
name, with derogatory insinuations, which he did in private and public communications. This would occur about 5
times. | told Mr. Fu to stop, however, Mr. Fu continued to misspell my name so it would express a derogatory
term.
FORM REV Pending
Page 1 of 4
pnPOrn, ‘STATE
CALIFORNIA
OF | Business. Consumer Services
and Housing Agenc Employment
ye
COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE
vnAY 12 V8
CALIFORNIA FAIR EMPLOYMENT AND HousiNG ACT
SE
ew cain
DFEH NUMBER EEOC NUMBER
201801-00693707 37A-2018-01342-C
- Allegation 2 -
| ALLEGE THAT | EXPERIENCED
Discrimination
ON OR BEFORE
February 5, 2018
BECAUSE OF MY ACTUAL OR PERCEIVED
Ancestry;Race;National origin (includes language restrictions)
AS A RESULT, | WAS SUBJECTED TO
Suspended :
PARTICULARS
In or around February 2018, | believe | was discriminated against based on my ancestry, race, and/or national
origin (Middle East) in that | was suspended, and a notice of the suspension was included in my personnel file.
The purported reason for the suspension was that | restricted student access to my courses, and made changes
to their curricular content, organization and schedule without administrative approval. Those allegations were
untrue. Moreover, | am aware of non-Middle Eastern individuals [names on file with DFEH] who made similar
changes to their courses, and they were not similarly disciplined or suspended by the University.
- Allegation 3 -
| ALLEGE THAT | EXPERIENCED
Retaliation
ON OR BEFORE
February 5, 2018
BECAUSE OF MY ACTUAL OR PERCEIVED
Reported or resisted any form of discrimination or harassment
AS A RESULT, | WAS SUBJECTED TO
Other
PARTICULARS
From around November 2017 to February 2018, | was retaliated against for engaging in a protected activity.
In or around August 2017, | reported possible discrimination in that qualified individuals of Middle Eastern
ancestry, race, and/or national origin were denied hire.
In or around August 2017, | reported possible discrimination in that the University denied women over 60 years of
age equal opportunity for full-time (tenure-track) employment.
From around February 2017 to November 2017, | was subjected to harassment based on my ancestry, race,
and/or national origin (Middle East) by my supervisor, Xuanning Fu. In or around November 2017, | reported the
harassment to Marylou Mendoza-Miller, Associate Vice President for Faculty. To my knowledge, Ms. Mendoza-
Miller has not, to date, investigated my claim, and the alleged harasser, Mr. Fu, was not counseled for his
behavior.
In or around November 2017, shortly after | complained about the possible discrimination and harassment, | was
denied a leadership position at the university; | was denied opportunities for professional advancement at work; |
was denied a salary increase and promotion; | was marginalized and isolated at work; | experienced violations to
my privacy, a hostile work environment, including punitive work assignments, unreasonable workload.
FORM REV Pending
Page 2 of 4
FOr, ess.C ency m meni
Qy COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE
yy
BN CALIFORNIA FAIR EMPLOYMENT AND HousinG ACT
SE
ain
DFEH NUMBER EEOC NUMBER
201801-00693707 37A-2018-01342-C
Most recently, in or around February 2018, | was suspended.
Because of the timing of events, | believe | was retaliated against for engaging in a protected activity.
FORM REV Pending
Page 3 of 4
jn Org ‘STATE OF CALIFORNIA | Business. Consumer Services and Housing Agency Emplayment
fio
yy COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE
aN,\ VY; CALIFORNIA FAIR EMPLOYMENT AND HousiING AcT
Be
"eoen
DFEH NUMBER EEOC NUMBER
37A-2018-01342-C
201801-00693707
SIGNED UNDER PENALTY OF PERJURY
By submitting this complaint | am declaring under penalty of perjury under the laws of the State of California that
the foregoing is true and correct of my own knowledge, except as to matters stated on my information and belief,
and as to those matters | believe them to be true.
SIGNATURE OF COMPLAINANT OR COMPLAINANT'S LEGAL REPRESENTATIVE: DATE:
9. — Feb 13, 2018
mach ih bt
FORM REV Pending
Page 4 of 4
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PERSON FILING CHARGE
=
A EI Kharbawy:
|
AEl Kharbawy: THIS PERSON (CHECK ONE)
Claims to be aggrieved
California State University, Fresno Is filing on behalf of other person(s)
DATE OF ALLEGED VIOLATION
February I, 2017 to
February 5, 2018
PLACE OF ALLEGED VIOLATION
California, County of Fresno —$
L _ EEOC CHARGE NUMBER
37A-2018-01342-C
FEPA CHARGE NUMBER (if known)
201801-00693707
NOTICE OF CHARGE OF DISCRIMINATION IN JURISDICTIONS WHERE AN FEP AGENCY WILL INITIALLY PROCESS
(See EEOC "Rules and Regulations" for additional information)
YOU ARE HEREBY NOTIFIED THAT A CHARGE OF EMPLOYMENT DISCRIMINATION UNDER.
a Title Vii of the Civil Rights Act of 1964
a The Age Discrimination in Employment Act of 1967 (ADEA)
Oo The Americans with Disabilities Act of 1990 (ADA)
HAS BEEN RECEIVED BY
o ‘The EEOC and sent for initial processing to
(FEP Agency)
The F FAI and sent to the EEOC for dual filing purposes.
While EEOC has jurisdiction (upon the expiration of any deferral requirement ifthis is a Title VII charge) to investigate this charge, EEOC may refrain from beginning an
investigation and await the issuance of the Agency's final findings and orders. These final findings and orders will be given weight by EEOC in making its own
determination as to whether or not reasonable cause exists to believe that the allegations made in the charge are true.
You are therefore encouraged to cooperate fully with the Agency. Alll facts and evidence provided by you to the Agency in the course of its proceedings will be considered
by the Commission when it reviews the Agency's final findings and orders. many instances the Commission will take no further action, thereby avoiding the necessity of
an investigation by both the Agency and the Commission. This likelihood increased by your active cooperation with the Agency.
a As a party to the charge, you may request that EEOC review the final decision and order of the above named Agency. For such a request to be honored, you must
notify the Commission in writing within 15 days of your receipt of the Agency's final decision and order. If the Agency terminates its proceedings without
issuing a final finding and order, you will be contacted further by the Commission. Regardless of whether the Agency or the Commission processes the charge,
the Recordkeeping and Non-Retaliation provision of Title VII and the ADEA as explained on the reverse side of this form apply.
For further correspondence on this matter, please use the charge number(s) shown.
o ‘An Equal Pay Act investigation (29 U.S.C. 209(d)) will be conducted by the Commission concurrently with the Agency's investigation of the charge.
a Enclosure: Copy of the Charge
BASIS OF DISCRIMINATION:
RACE OICOLOR OOSEX ORELIGION @ NATIONAL ORIGIN CAGE @ OTHER
O DISABILITY @ RETALIATION
CIRCUMSTANCES OF ALLEGED VIOLATION:
See attached complaint.
DATE TYPED NAME/TITLE OF AUTHORIZED EEOC OFFICIAL. SIGNATURE
February 13, 2018 William R. Tamayo 4}
44 })
oo
EEOC FORM 131-A, é
INFORMATION SHEET ON CHARGES OF DISCRIMINATION
EEOC RULES AND REGULATIONS
Section 1601.15 EEOC's Procedural Regulations provides that persons charged with employment discrimination, such as yourself,
may submit a statement of position or evidence with respect to the allegations contained in this charge.
The Commission's Recordkeeping and Reporting Requirements are set forth in Title 29, Code of Federal Regulations (CFR), Part
1602 (see particularly Section 1602.14 below) for the Title VII and the ADA; 29 CFR Part 1620 for the EPA; and 29 CFR Part
1627, for the ADEA. These regulations generally require respondents to preserve payroll and personnel records relevant to a charge
of discrimination until disposition of the charge or litigation relating to the charge (for ADEA charges, this notice constitutes the
written request set out in Part 1627 for respondents to preserve records relevant to the charge -- the records to be retained are as
described in Section 1602.14, as cited below, and should be kept for the periods described in that section), Parts 1602, 1620 and
1627 also prescribe record retention periods -- generally, three years for basic payroll records and one year for personnel records.
Questions regarding retention periods and the types of records to be retained should be resolved by reference to the regulations.
Section 1602.14 Preservation of records made or kept . .. Where a charge of discrimination has been filed, or an action brought by
the Commission or the Attorney General, against an employer under Title VII or the ADA, the employer shall preserve all personnel
records relevant to the charge or the action. The term "personnel records relevant to the charge," for example, would include
personnel or employment records relating to the aggrieved person and to all other aggrieved employees holding positions similar
to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by
all other candidates for the same position as that for which the aggrieved person applied and was rejected. The date of “final
disposition of the charge or the action" means the date of expiration of the statutory period within which the aggrieved person may
bring an action in a U.S. District Court, or where an action is brought against an employer either by the aggrieved person, the
Commission, or by the Attorney General, the date on which such litigation was terminated.
NOTICE OF NON-RETALIATION REQUIREMENT
Section 704(a) of Title VIL, Section 4(d) of the ADEA, and Section 503(a) of the ADA provide that it shall be an unlawful
employment practice for an employer to discriminate against any of his/her employees or applicants for employment, for an
employment agency to discriminate against any individual, or for a labor organization to dis¢ iminate against any member thereof
or applicant for membership, because s/he has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this title. The Equal Pay Act of 1963 contains similar provisions. Additionally, Section 503(b) of
the ADA prohibits coercion, intimidation, threats, or interference with any person because s/he has exercised or enjoyed, or aided
or encouraged others in their exercise of employment, or rights under the Act.
Persons filing charges of discrimination are advised of these Non-Retaliation Requirements and are instructed to notify EEOC if
any attempt at retaliation is made, Note that the Civil Rights Act of 1991 provides substantial additional monetary provisions to
remedy instances of retaliation or other discrimination, including for example, to remedy the emotional harm caused by on-the-job
harassment.
NOTICE REGARDING PRESENTATION BY ATTORNEYS.
Although it is not necessary that you be represented by an attorney while we handle this charge, you have a right, and may wish to
retain an attorney to represent you. If you are represented by an attorney we request that you provide the Commission with your
attorney's name, address, and telephone number, and that you ask your attorney to write to the Commission confirming such
representation.
Reverse side of EEOC Form 131/131-A (Test 10/94)
Page
2 of 2
anton,
STATE
OF CALIFORNIA | Business, Consumer Services and Housing Agency GOVERNOR EDMUND G. BROWN JR.
X DEPARTMENT OF FAIR EMPLOYMENT & HOUSING
Ya 2218 Kausen Drive, Suite 100 J Elk Grove | CA 195758
(800) 884-1684 | TDD (800) 700-2320
St http:/www.dfeh.ca.gov | email: contact,center@dfeh.ca.gov
Se cain”
August 17, 2018
Via Certified Mail
A. Sameh El Kharbawy
PO Box 5335
Fresno, CA 93755
RE: Notice of Case Closure and Right to Sue
Case Number: 201801-00693707
EEOC Number: 37A-2018-01342-C
Case Name: El Kharbawy / California State University, Fresno et al.
Dear A. Sameh El Kharbawy:
The Department of Fair Employment and Housing (DFEH) has closed your case for the
following reason: Complaint Elected Court Action.
This is your Right to Sue Notice. According to Government Code section 12966, subdivision
(b), a civil action may be brought under the provisions of the Fair Employment and Housing Act
against the person, employer, labor organization or employment agency named in the above-
referenced complaint. This is also applicable to DFEH complaints that are filed under, and
allege a violation of, Government Code section 12948, which incorporates Civil Code sections
51, 51.7, and 54. The civil action must be filed within one year from the date of this letter.
However, if your civil complaint alleges a violation of Civil Code section 51, 51.7, or 54, you
should consult an attorney about the applicable statutes of limitation.
Please note that if a settlement agreement has been signed resolving the complaint, you may
have waived the right to file a private lawsuit. Should you decide to bring a civil action on your
own behalf in court in the State of California under the provisions of the California Fair
Employment and Housing Act (FEHA) against the person, employer, labor organization or
employment agency named in your complaint, below are resources for this.
Finding an Attorney
To proceed in Superior Court, you should contact an attorney. If you do not already have an
attorney, the organizations listed below may be able to assist you:
. The State Bar of California has a Lawyer Referral Services Program which can be
accessed through its Web site at www.calbar.ca.gov or by calling (866) 442-2529 (within
California) or (415) 538
Preview
E-FILED 11/18/2021 12:31 PM Superior Court of California JesseJ. Maddox, Bar No. 219091 County of Fresno jmaddox@Icwlegal.com By: Estela Alvarado, Deputy Nathan T. Jackson, Bar No. 285620 jacksor Lcwl com. LIEBERT CASSIDY WHITMORE A Professional Law Corporation 5250 North Palm Ave, Suite 310 Fresno, Califomia 93704 Telephone: 559.256.7800 Facsimile: 559.449.4535 Attol for Defendants BOARD OF TRUSTEES OF CALI IRNIA STATE UNIVERSITY, DARRYL L. HAMM, and XUANNING FU SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 A. SAMEH EL KHARBAWY, Case No.: 21CECG02214 gO 12 gas Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON. 13 KIMBERLY GAAB, DEPT. 503] Vv. Bas 14 Complaint Filed: October 23, 2020 see a8 15 BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY ; REQUEST FOR JUDICIAL NOTICE IN DARRYL L. HAMM, an individual; SUPPORT OF DEFENDANT DARRYL tin 16 LY NNEITTE ZELEZNY, an individual; HAMM 'S SPECIAL MOTION TO STRIKE JOSEPH I. CASTRO, an individual; PLAINTIFFA. SAMEH EL KHARBAWY’S 17 SAUL JIMENEZ-SANDOVAL, an COMPLAINT; MEMORANDUM OF POINTS individual; XUANNING FU, an AND AUTHORITIES IN SUPPORT THEREOF 18 individual; AND DOES 1 through 50, Date: December 21, 2021 19 Defendant. Time: 3:30 p.m. Dept: 503 20 21 from filing fees pursuant to Gov. Code, § 6108) 23 Defendant Darry L. Hamm (“Defendant” or “Hamm’) respectfully asks the Court to take judicial notice, pursuant to Evidence Code §§ 452 and 453, of the following documents in support 25 of his Special Motion to Strike Plaintiff’ s Complaint. 26 1 A copy of Plaintiffs complaint with the Department of Fair Employment & 27 Housing (“DFEH”) dated February 13, 2018, Case No. 201801-00693707, and the accompanying tight to sue, true and correct copies of which are attached hereto as Exhibit 1. (Evid. Code,§ 1 Request for Judicial Notice in Support of Special Motion to Strike Plaintiffs Complaint 9843382.1 FROO7-003 452(c), (h); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369; Glaski v. Bank of Am (2013) 218 Cal.App.4th 1079, 1090 [court can take judicial notice of public records].) Moreover 5 this DFEH complaint is referenced in the complaint. (Complaint at § 52; Ascherman v. Gen. Reins. Corp. (1986) 183 Cal.App.3d 307, 310-311 [noting trial court properly took judicial notice of contract referenced in complaint when ruling on a demurrer].) 2. A copy of Plaintiff's complaint with the Department of Fair Employment & Housing (“DFEH”) dated July 1, 2019, Case No. 201907-06690101 (and accompanying right to sue acknowledgment), a true and correct copy of which is attached hereto as Exhibit 2. (Evid. Code, § 452(c), (h); Gong, supra, 226 Cal.App.4th at 369; Glaski, supra, 218 Cal.App.4th at 10 1090 [court can take judicial notice of public records].) Moreover, this DFEH complaint is 11 referenced in the complaint. (Complaint at 4 52; Ascherman, supra, 183 Cal.App.3d at 310-311 ge 12 [trial court properly took judicial notice of contract referenced in complain.)].) as 13 3 A copy of the Legislative Counsel’s Digest for Stats. 2019, c. 709 (A.B. 9), § 1 14 eff. Jan. 1, 2020, a true and correct copy of which is attached hereto as Exhibit 3. (Evid. Code § 15 452(c); Rubio v. Superior Ct. (2016) 244 Cal.App.4th 459, 476 [We take judicial notice of eZ 16 legislative history materials provided by the People as they request, as well as of other legislative <&4 17 history materials cited herein”); People v. Superior Ct. (2005) 132 Cal.App.4th 1525, 1532 18 [taking judicial notice of Legislative Counsel’s Digest].) 19 Dated: November 18, 2021 LIEBERT CASSIDY WHITMORE 20 21 22 23 Lal Jesse J. ron Nathan T. Jacksoi Attorneys for D. 2 BOARD OF 24 TRUSTEES OF CALIFORNIA STATE UNIVERSITY, DARRYL L. HAMM, and 25 XUANNING FU. 26 27 28 2 Request for Judicial Notice in Support of Special Motion to Strike Plaintiff's Complaint 9843382.1 FROO7-003 MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION This Request for Judicial Notice (“RJN”) accompanies a special motion to strike Plaintiff’ s Complaint on behalf of Defendant Daryl Hamm. As set forth in the accompanying memorandum. of points and authorities in support of its anti-SLAPP motion, the second prong of the anti-SLAPP test requires the Court to make a determination about whether Plaintiff has proffered evidence suggesting a probability of prevailing on the merits. Relevant to the second prong of the anti- SLAPP test, CSU contends that Plaintiff failed to exhaust his administrative remedies under the Fair Employment & Housing Act (“FEHA”). The FEHA require administrative exhaustion as a 10 prerequisite to commencing suit. (e.g., Gov. Code, § 12960.) Courts routinely take judicial notice 11 of FEHA records, including complaints filed with the Department of Fair Employment & Housing gO 12 (“DFEH”) and accompanying right to sue notices. Authenticity is not a concem here. 2eo aa 13 Hammis also asking the Court to take judicial notice of the Legislative Counsel’ s Digest to ga Ba 14 A.B. 9 (2019, Reyes). The FEHA was amended in 2020, and the statute of limitations to file a see es 15 complaint with the DFEH wes expanded from 1 year to 3. Hamm contends this amendment is not a8 tid 16 retroactive, and asks the Court to take judicial notice of the Legislative Counsel’s Digest so it can 17 resolve that legal question. Resolving that legal question is necessary to determine whether 18 Plaintiff timely filed a DFEH complaint that named Hamm as a respondent. Hamm contends there 19 is no retroactivity provision in the statute or the Legislative Counsel’s Digest. The Court can take 20 judicial notice of legislative records, under Evidence Code section 452(c). 21 I RELEVANT FACTUAL BACKGROUND Plaintiff filed a lawsuit against CSU in Los Angeles Superior Court on October 23, 2020. 23 (See Exh. 1 to Declaration of Nathan T. Jackson in Support of Anti-SLAPP.) Plaintiff is suing Hamm for: (1) FEHA race harassment (Complaint at 66); (2) FEHA retaliation (Id. at 1179); (3) 25 failure to prevent harassment, discrimination, and retaliation (Id. at | 88); (4) aiding and abetting 26 FEHA violations (Id. at 97); (5) WPA whistleblower retaliation (Id. at p. 27:23-25); and (6) 27 intentional infliction of emotional distress (Id. at p. 34:24-26). Ml 3 Request for Judicial Notice in Support of Special Motion to Strike Plaintiffs Complaint 9843382.1 FROO7-003 Plaintiff’ s lawsuit dedicates 1.5 pages to detailing how he allegedly exhausted his administrative remedies under FEHA, the WPA, and the GCA. (Id. at pp. 16-17.) II. LEGAL ANALYSIS A. JUDICIAL NOTICE IS APPROPRIATE IN THIS CASE Evidence Code section 453 provides, in pertinent part, that: The trial court shall take judicial notice of any matters specified in Section 452 if a party requests it and: (a) Gives each adversary party sufficient notice of the request, through the pleacings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Fumishes the court with sufficient information to enable it to take judicial notice of the matter. (Id. [emphasis added].) 10 Here, the Court can (and state and federal courts routinely do) take judicial notice of 11 DFEH complaints and accompanying right to sue notices (which are also matters of public record, gO 12 and referenced in Plaintiff’s Complaint). (Wood v. Superior Ct. of San Diego Cty. (2020) 46 28S aa 13 Cal.App.5th 562, 580 fn 2 [“we granted Crunch's request forjudicial notice of several pages from. ga Ba 14 DFEH's website and other DFEH public statements”); Silvia v. EA Technical Servs., Inc. (N.D. see es 15 Cal. 2017) 2017 WL 2377713, at*2 [“Courts routinely take judicial notice of proceedings in a8 tid 16 other courts and records of state agencies, including DFEH complaints”); Arce v. Kaiser Found. 17 Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [court may take judicial notice of official acts 18 of state agencies]; Minor v. FedEx Office & Print Servs., Inc. (N.D. Cal. 2015) 78 F.Supp.3d. 19 1021, 1027 [taking judicial notice of DFEH complaint]; Glaski v. Bank of Am (2013) 218 20 Cal.App.4th 1079, 1090 [public records subject to judicial notice]; Ascherman v. Gen. Reins. 21 Corp. (1986) 183 Cal.App.3d 307, 310-311 [noting trial court properly took judicial notice of contract referenced in complaint under Evidence Code, section 452(h), which was dispositive to 23 the action].) There is simply not a concem about authenticity in this context. Moreover, Plaintiff relies on these records in his complaint. (Ascherman v. Gen. Reins. Corp. (1986) 183 Cal.App.3d 25 307, 310-311 [noting trial court properly took judicial notice of contract referenced in complaint 26 under Evidence Code, section 452(h), which was dispositive to the action].) 27 The Court can also take judicial notice of legislative records under Evidence Code section 452 (c). (Evid. Code § 452(c); Rubio v. Superior Ct. (2016) 244 Cal.App.4th 459, 476 [““We take 4 Request for Judicial Notice in Support of Special Motion to Strike Plaintiffs Complaint 9843382.1 FROO7-003 judicial notice of legislative history materials provided by the People as they request, as well as of other legislative history materials cited herein”]; People v. Superior Ct. (2005) 132 Cal.App.4th 1525, 1532 [taking judicial notice of Legislative Counsel’s Digest].) IV. CONCLUSION Based on the foregoing, the Defendant respectfully requests that the Court take judicial notice of Plaintiff's DFEH complaints and accompanying right to sue notices and of the Legislative Counsel’s Digest for Stats. 2019, c. 709 (A.B. 9), § 1, eff. Jan. 1, 2020. Dated: November 18, 2021 LIEBERT CASSIDY WHITMORE 10 11 By: Z Jesse J. Mad id ge 12 Nathan T. Jackso Attorneys for D dants BOARD OF bag 13 TRUSTEES O ALIFORNIA STATE 5° UNIVERSITY\/ ARRYL L. HAMM, and a e< 14 Bae XUANNING FU a Ss ae 15 BEEZ 3& 16 a 17 18 19 20 21 22 24 25 26 27 28 2 Request for Judicial Notice in Support of Special Motion to Strike Plaintiff's Complaint 9843382.1 FROO7-003 Exhibit 1 we ‘STATE OF CALIFORNIA | Business. Consumer Services and Housing Agency GOVERNOR EDMUND G. BROWN.JR. DIRECTOR KEVIN KISH ye DEPARTMENT OF FAIR EMPLOYMENT & HOUSING V By No \@ 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758 (800) 884-1684 I TDD (800) 700-2320 http:/www.dfeh.ca.gov | email: contact.center@dfeh.ca.gov wee February 14, 2018 Via Certified Mail Agent for Service for Respondent: Marylou Mendoza-Miller Associate Vice President for Human Resources Joyal Administration Building, Room 211 5150 N Maple Ave. M/S JA71 Fresno, CA 93740 Respondent(s): California State University, Fresno 5200 N Barton Fresno, CA 93740 Xuanning Fu 5200 N Barton Fresno, CA 93740 RE: Notice of Filing of Discrimination Complaint - Response Requested DFEH Matter Number: 201801-00693707 EEOC Number: 37A-2018-01342-C El Kharbawy / California State University, Fresno et al. To All Listed Respondent(s): Enclosed is a copy of a complaint filed with the Department of Fair Employment and Housing (DFEH). The enclosed complaint, in which you have been named a Respondent or Co-Respondent, alleges unlawful discrimination pursuant to Government Code section 12960. The DFEH serves as an objective fact-finder and represents the state of California rather than the complaining party. The purpose of our investigation is to determine the merits of the complaint. Government Code Section 12940, subdivision (f) or 12955 (f), prohibits any retaliatory action against a person because he or she has filed a complaint, has opposed any practices forbidden under the Fair Employment and Housing Act, or has assisted in any proceeding before the DFEH. California Government Code section 12946 requires that all employment records (or union membership and referral records) be retained for a minimum of two (2) years. Notice of Filing of Discrimination Complaint - Response Requested February 14, 2018 Page 2 of 6 When a discrimination complaint has been served, the records must be kept until the DFEH closes its inquiry and until any resulting law suit or appeal has been terminated. This complaint has also been filed with the U. S. Equal Employment Opportunity Commission (EEOC). You need not reply to the EEOC unless that agency specifically requests a response. You must submit a response to the questions below and on the attached supplemental sheet within thirty (30) calendar days of the date of this letter. 1 State the legal name of your business and any other name(s) under which you do or have done business in California. State your business address. Please note that you are required to notify the DFEH in writing of any change of address and the effective date of such change while the complaint is under investigation and throughout any administrative adjudication. (California Code of Regulations, title 2, sections 7403 and 7411). State type of legal business entity (i.e., corporation, partnership, limited partnership, sole proprietorship, etc.). Does your company have a current contract(s) for the provisions of goods, services or public works with the State of California or receive federal funds? If so, name the awarding agency. Your response must be submitted by mail. in all mailed correspondence, please include your DFEH number 201801-00693707 and mail it to DFEH, 2218 Kausen Drive, Suite 100, Elk Grove, CA 95758. If you are interested in discussing a possible settlement of this complaint, please contact me immediately. All settlement discussions are confidential, and not subject to disclosure. Evidence or information, which has a bearing on determining the merits of this complaint will not be considered part of a settlement discussion unless confidentiality is acknowledged by the DFEH. You would not be required to provide the information requested above while settlement discussions are underway. Also, please be advised that the Department offers free mediation services. If you and the complainant agree to mediate, the complaint will be assigned to a mediator, who will contact you to schedule the mediation conference. All settlement discussions that transpire during the mediation process are confidential and not subject to disclosure. While a complaint is with the mediator, the obligation to submit a response is temporarily suspended. If the matter does not settle at mediation, you will be required to submit a response, and will be notified in writing of the new date the response is due. If you are interested in formal mediation, immediately contact the assigned investigator so that your response to this complaint temporarily suspended. Notice of Filing of Discrimination Complaint - Response Requested February 14, 2018 Page 3 of 6 If you have any questions, please contact me. Sincerely, Deborah Dilay Deborah Dulay Staff Services Analyst 510-789-1039 deborah.dulay@dfeh.ca.gov Enclosures CERTIFIED MAIL: 70112970000429480239 Cc: California State University, Fresno 5200 N Barton Fresno, CA 93740 Xuanning Fu 5200 N Barton Fresno, CA 93740 Notice of Filing of Discrimination Complaint - Response Requested February 14, 2018 Page 4 of 6 SUPPLEMENTAL QUESTIONS Complainant: A El Kharbawy Respondent: California State University, Fresno File Date: February 13, 2018 Identify the person or persons designated to represent the company in this matter. Provide telephone contact number, email address, and mailing address for your representative(s). Provide a statement of the employer's position with regard to the allegations contained in the complaint. See DFEH complaint. Provide copies of documents that support the employer's position regarding the allegations contained in the complaint. Provide copies of the Complainant's entire personnel file. Provide copies of personnel files for employees Xuanning Fu, Richard McQuone, and Vivian Coats for the past two years. Please provide a copy of the Employee Handbook. State what information was provided by the Complainant pertaining to the complaint of race, ancestry and/or national origin harassment and clarify to whom it was provided and when. Describe your organization’s policy and procedures for processing employee complaints. Submit a copy of any written complaint procedures relevant to the Complainant and the issues raised in the complaint. Provide copies of all notes and documents compiled by respondent concerning the alleged harassment, and provide a copy of your final investigative report. 10.Describe in detail all steps taken in the investigation of the Complainant's harassment allegations, and state what corrective action(s), if any, were taken by you or your representative as a result of the investigation. 11.Provide a list of all persons who worked under the supervision of Xuanning Fu for last two years. For each person listed state their position(s), date(s) of employment, whether still employed, and provide their last known address and home and work telephone numbers. Notice of Filing of Discrimination Complaint - Response Requested February 14, 2018 Page 5 of 6 12. Provide copies of any reprimands or warnings issued to Xuanning Fu for the last three years. 13. State whether Respondent or Respondent's representative had, prior to Complainant's charge, been informed of any other complaints of harassment by Xuanning Fu. 14. If any disciplinary action was taken as a result of the Complainant's complaint and/or your investigation, please describe action taken and provide supporting documentation. 15. List the job title and provide a copy of any written job description for Xuanning Fu. If no written job description exists, describe the duties and supervisory responsibilities. 16. Provide a description of your policy on harassment. Provide a copy of any written policy, and explain what steps have been taken to implement it. 17.Explain the present status of Xuanning Fu listed in the complaint. 18. Explain any action(s) that have been taken to protect the Complainant from any further harassment. 19.Explain any action(s) that have been taken or were taken to protect the Complainant from retaliation for filing the harassment complaint or for objecting to the alleged harassment. 20.Explain how your organization communicates the policy statement prohibiting harassment to new employees. 21.Identify employees who worked with the charging party during the relevant period. Include: a. Name, position, and race, ancestry, and/or national origin; and b. Last known address and telephone number. 22. State the reason(s) complainant was suspended. 23.List the names of all persons involved in making the specific decisions to which the complainant objects. State each person’s job title and responsibility as it relates to the issues raised by the complainant. 24, Provide all documentation to support your reasons for the suspension, i.e., counseling notices, written reprimands, attendance records, etc. 25.Provide a copy of the policy which governed complainant’s suspension. Notice of Filing of Discrimination Complaint - Response Requested February 14, 2018 Page 6 of 6 26.Describe your company’s practices regarding discipline and dismissal of employees in complainant's classification and work unit, including a description of the disciplinary steps required prior to termination for cause. Provide copies of any written policies. State how this policy was applied to complainant. 27.Provide a copy of the job description for complainant. If no written description exists describe the duties and responsibilities. 28. List all employees, including the complainant, who were supervised by the same person supervising complainant during the past two years. Identify each person’s race, ancestry, and/or national origin, job classification and provide the current home address, telephone number and work number. Provide copies of any reprimands, counseling notices and evaluations for each employee for the past two years. If evaluations are not available, provide a statement with copies of substantiating documentation, describing how well each person performed his/her duties. 29.Complainant asserts that Richard McQuone, and Vivian Coats committed the same or similar work infractions to those of the complainant but they were not similarly suspended. Please respond to these allegations and provide documentation which supports your position. 30.List (by name) all employees who filed an internal or external complaint of discrimination the past three years and copy of each employee’s complaint. For each employee listed provide their starting and ending dates of employment. If employee was terminated, state reasons for termination and date of termination. 31.Provide a copy of all warnings, reprimands, counseling issued to the complainant and Richard McQuone, and Vivian Coats for the past 3 years. 32. Provide copies of the performance reviews for the complainant and Richard McQuone, and Vivian Coats for the past two (2) years. neon, TEO) ORN sum Eoon ployment é Qy COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE | vie a CALIFORNIA FAIR EMPLOYMENT AND Housinc ACT re DFEH NUMBER EEOC NUMBER 37A-2018-01342-C 201801-00693707 COMPLAINANT ADDRESS PHONE A. Sameh El Kharbawy PO Box 5335 5592784840 Fresno, CA 93755 TYPE OF DISCRIMINATION AND LAW Government Code 12940 NAMED IS THE EMPLOYER, PERSON, AGENCY, ORGANIZATION OR GOVERNMENT ENTTITY WHO DISCRIMINATED AGAINST ME RESPONDENT(S) ADDRESS PHONE California State University, Fresno 5200 N Barton (559) 278-4240 Fresno, CA 93740 Xuanning Fu 5200 N Barton 5592784488 Fresno, CA 93740 NO. OF EMPLOYEES - Allegation 1 - | ALLEGE THAT | EXPERIENCED Harassment ON OR BEFORE November 30, 2017 BECAUSE OF MY ACTUAL OR PERCEIVED Ancestry;Race;National origin (includes language restrictions) AS A RESULT, | WAS SUBJECTED TO Denied a work environment free of discrimination and/or retaliation PARTICULARS From around February 2017 to November 2017, | was subjected to harassment based on my ancestry, race, and/or national origin (Middle East) by my supervisor, Xuanning Fu. The harassment was of a verbal nature. Examples of the harassment include, but are not limited to, Mr. Fu’s purposeful and offensive misspelling my name, with derogatory insinuations, which he did in private and public communications. This would occur about 5 times. | told Mr. Fu to stop, however, Mr. Fu continued to misspell my name so it would express a derogatory term. FORM REV Pending Page 1 of 4 pnPOrn, ‘STATE CALIFORNIA OF | Business. Consumer Services and Housing Agenc Employment ye COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE vnAY 12 V8 CALIFORNIA FAIR EMPLOYMENT AND HousiNG ACT SE ew cain DFEH NUMBER EEOC NUMBER 201801-00693707 37A-2018-01342-C - Allegation 2 - | ALLEGE THAT | EXPERIENCED Discrimination ON OR BEFORE February 5, 2018 BECAUSE OF MY ACTUAL OR PERCEIVED Ancestry;Race;National origin (includes language restrictions) AS A RESULT, | WAS SUBJECTED TO Suspended : PARTICULARS In or around February 2018, | believe | was discriminated against based on my ancestry, race, and/or national origin (Middle East) in that | was suspended, and a notice of the suspension was included in my personnel file. The purported reason for the suspension was that | restricted student access to my courses, and made changes to their curricular content, organization and schedule without administrative approval. Those allegations were untrue. Moreover, | am aware of non-Middle Eastern individuals [names on file with DFEH] who made similar changes to their courses, and they were not similarly disciplined or suspended by the University. - Allegation 3 - | ALLEGE THAT | EXPERIENCED Retaliation ON OR BEFORE February 5, 2018 BECAUSE OF MY ACTUAL OR PERCEIVED Reported or resisted any form of discrimination or harassment AS A RESULT, | WAS SUBJECTED TO Other PARTICULARS From around November 2017 to February 2018, | was retaliated against for engaging in a protected activity. In or around August 2017, | reported possible discrimination in that qualified individuals of Middle Eastern ancestry, race, and/or national origin were denied hire. In or around August 2017, | reported possible discrimination in that the University denied women over 60 years of age equal opportunity for full-time (tenure-track) employment. From around February 2017 to November 2017, | was subjected to harassment based on my ancestry, race, and/or national origin (Middle East) by my supervisor, Xuanning Fu. In or around November 2017, | reported the harassment to Marylou Mendoza-Miller, Associate Vice President for Faculty. To my knowledge, Ms. Mendoza- Miller has not, to date, investigated my claim, and the alleged harasser, Mr. Fu, was not counseled for his behavior. In or around November 2017, shortly after | complained about the possible discrimination and harassment, | was denied a leadership position at the university; | was denied opportunities for professional advancement at work; | was denied a salary increase and promotion; | was marginalized and isolated at work; | experienced violations to my privacy, a hostile work environment, including punitive work assignments, unreasonable workload. FORM REV Pending Page 2 of 4 FOr, ess.C ency m meni Qy COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE yy BN CALIFORNIA FAIR EMPLOYMENT AND HousinG ACT SE ain DFEH NUMBER EEOC NUMBER 201801-00693707 37A-2018-01342-C Most recently, in or around February 2018, | was suspended. Because of the timing of events, | believe | was retaliated against for engaging in a protected activity. FORM REV Pending Page 3 of 4 jn Org ‘STATE OF CALIFORNIA | Business. Consumer Services and Housing Agency Emplayment fio yy COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE aN,\ VY; CALIFORNIA FAIR EMPLOYMENT AND HousiING AcT Be "eoen DFEH NUMBER EEOC NUMBER 37A-2018-01342-C 201801-00693707 SIGNED UNDER PENALTY OF PERJURY By submitting this complaint | am declaring under penalty of perjury under the laws of the State of California that the foregoing is true and correct of my own knowledge, except as to matters stated on my information and belief, and as to those matters | believe them to be true. SIGNATURE OF COMPLAINANT OR COMPLAINANT'S LEGAL REPRESENTATIVE: DATE: 9. — Feb 13, 2018 mach ih bt FORM REV Pending Page 4 of 4 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PERSON FILING CHARGE = A EI Kharbawy: | AEl Kharbawy: THIS PERSON (CHECK ONE) Claims to be aggrieved California State University, Fresno Is filing on behalf of other person(s) DATE OF ALLEGED VIOLATION February I, 2017 to February 5, 2018 PLACE OF ALLEGED VIOLATION California, County of Fresno —$ L _ EEOC CHARGE NUMBER 37A-2018-01342-C FEPA CHARGE NUMBER (if known) 201801-00693707 NOTICE OF CHARGE OF DISCRIMINATION IN JURISDICTIONS WHERE AN FEP AGENCY WILL INITIALLY PROCESS (See EEOC "Rules and Regulations" for additional information) YOU ARE HEREBY NOTIFIED THAT A CHARGE OF EMPLOYMENT DISCRIMINATION UNDER. a Title Vii of the Civil Rights Act of 1964 a The Age Discrimination in Employment Act of 1967 (ADEA) Oo The Americans with Disabilities Act of 1990 (ADA) HAS BEEN RECEIVED BY o ‘The EEOC and sent for initial processing to (FEP Agency) The F FAI and sent to the EEOC for dual filing purposes. While EEOC has jurisdiction (upon the expiration of any deferral requirement ifthis is a Title VII charge) to investigate this charge, EEOC may refrain from beginning an investigation and await the issuance of the Agency's final findings and orders. These final findings and orders will be given weight by EEOC in making its own determination as to whether or not reasonable cause exists to believe that the allegations made in the charge are true. You are therefore encouraged to cooperate fully with the Agency. Alll facts and evidence provided by you to the Agency in the course of its proceedings will be considered by the Commission when it reviews the Agency's final findings and orders. many instances the Commission will take no further action, thereby avoiding the necessity of an investigation by both the Agency and the Commission. This likelihood increased by your active cooperation with the Agency. a As a party to the charge, you may request that EEOC review the final decision and order of the above named Agency. For such a request to be honored, you must notify the Commission in writing within 15 days of your receipt of the Agency's final decision and order. If the Agency terminates its proceedings without issuing a final finding and order, you will be contacted further by the Commission. Regardless of whether the Agency or the Commission processes the charge, the Recordkeeping and Non-Retaliation provision of Title VII and the ADEA as explained on the reverse side of this form apply. For further correspondence on this matter, please use the charge number(s) shown. o ‘An Equal Pay Act investigation (29 U.S.C. 209(d)) will be conducted by the Commission concurrently with the Agency's investigation of the charge. a Enclosure: Copy of the Charge BASIS OF DISCRIMINATION: RACE OICOLOR OOSEX ORELIGION @ NATIONAL ORIGIN CAGE @ OTHER O DISABILITY @ RETALIATION CIRCUMSTANCES OF ALLEGED VIOLATION: See attached complaint. DATE TYPED NAME/TITLE OF AUTHORIZED EEOC OFFICIAL. SIGNATURE February 13, 2018 William R. Tamayo 4} 44 }) oo EEOC FORM 131-A, é INFORMATION SHEET ON CHARGES OF DISCRIMINATION EEOC RULES AND REGULATIONS Section 1601.15 EEOC's Procedural Regulations provides that persons charged with employment discrimination, such as yourself, may submit a statement of position or evidence with respect to the allegations contained in this charge. The Commission's Recordkeeping and Reporting Requirements are set forth in Title 29, Code of Federal Regulations (CFR), Part 1602 (see particularly Section 1602.14 below) for the Title VII and the ADA; 29 CFR Part 1620 for the EPA; and 29 CFR Part 1627, for the ADEA. These regulations generally require respondents to preserve payroll and personnel records relevant to a charge of discrimination until disposition of the charge or litigation relating to the charge (for ADEA charges, this notice constitutes the written request set out in Part 1627 for respondents to preserve records relevant to the charge -- the records to be retained are as described in Section 1602.14, as cited below, and should be kept for the periods described in that section), Parts 1602, 1620 and 1627 also prescribe record retention periods -- generally, three years for basic payroll records and one year for personnel records. Questions regarding retention periods and the types of records to be retained should be resolved by reference to the regulations. Section 1602.14 Preservation of records made or kept . .. Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General, against an employer under Title VII or the ADA, the employer shall preserve all personnel records relevant to the charge or the action. The term "personnel records relevant to the charge," for example, would include personnel or employment records relating to the aggrieved person and to all other aggrieved employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected. The date of “final disposition of the charge or the action" means the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court, or where an action is brought against an employer either by the aggrieved person, the Commission, or by the Attorney General, the date on which such litigation was terminated. NOTICE OF NON-RETALIATION REQUIREMENT Section 704(a) of Title VIL, Section 4(d) of the ADEA, and Section 503(a) of the ADA provide that it shall be an unlawful employment practice for an employer to discriminate against any of his/her employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to dis¢ iminate against any member thereof or applicant for membership, because s/he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title. The Equal Pay Act of 1963 contains similar provisions. Additionally, Section 503(b) of the ADA prohibits coercion, intimidation, threats, or interference with any person because s/he has exercised or enjoyed, or aided or encouraged others in their exercise of employment, or rights under the Act. Persons filing charges of discrimination are advised of these Non-Retaliation Requirements and are instructed to notify EEOC if any attempt at retaliation is made, Note that the Civil Rights Act of 1991 provides substantial additional monetary provisions to remedy instances of retaliation or other discrimination, including for example, to remedy the emotional harm caused by on-the-job harassment. NOTICE REGARDING PRESENTATION BY ATTORNEYS. Although it is not necessary that you be represented by an attorney while we handle this charge, you have a right, and may wish to retain an attorney to represent you. If you are represented by an attorney we request that you provide the Commission with your attorney's name, address, and telephone number, and that you ask your attorney to write to the Commission confirming such representation. Reverse side of EEOC Form 131/131-A (Test 10/94) Page 2 of 2 anton, STATE OF CALIFORNIA | Business, Consumer Services and Housing Agency GOVERNOR EDMUND G. BROWN JR. X DEPARTMENT OF FAIR EMPLOYMENT & HOUSING Ya 2218 Kausen Drive, Suite 100 J Elk Grove | CA 195758 (800) 884-1684 | TDD (800) 700-2320 St http:/www.dfeh.ca.gov | email: contact,center@dfeh.ca.gov Se cain” August 17, 2018 Via Certified Mail A. Sameh El Kharbawy PO Box 5335 Fresno, CA 93755 RE: Notice of Case Closure and Right to Sue Case Number: 201801-00693707 EEOC Number: 37A-2018-01342-C Case Name: El Kharbawy / California State University, Fresno et al. Dear A. Sameh El Kharbawy: The Department of Fair Employment and Housing (DFEH) has closed your case for the following reason: Complaint Elected Court Action. This is your Right to Sue Notice. According to Government Code section 12966, subdivision (b), a civil action may be brought under the provisions of the Fair Employment and Housing Act against the person, employer, labor organization or employment agency named in the above- referenced complaint. This is also applicable to DFEH complaints that are filed under, and allege a violation of, Government Code section 12948, which incorporates Civil Code sections 51, 51.7, and 54. The civil action must be filed within one year from the date of this letter. However, if your civil complaint alleges a violation of Civil Code section 51, 51.7, or 54, you should consult an attorney about the applicable statutes of limitation. Please note that if a settlement agreement has been signed resolving the complaint, you may have waived the right to file a private lawsuit. Should you decide to bring a civil action on your own behalf in court in the State of California under the provisions of the California Fair Employment and Housing Act (FEHA) against the person, employer, labor organization or employment agency named in your complaint, below are resources for this. Finding an Attorney To proceed in Superior Court, you should contact an attorney. If you do not already have an attorney, the organizations listed below may be able to assist you: . The State Bar of California has a Lawyer Referral Services Program which can be accessed through its Web site at www.calbar.ca.gov or by calling (866) 442-2529 (within California) or (415) 538