Motion,Ex Parte: A. Sameh El Kharbawy vs. Board of Trustees of California State of University

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Liebert Cassidy Whitmore
A Professional Law Corporation

$250 North

C0 Om NIN DA BR YW NY Ke

oOo nN DAH BF WN

NbN YN YN NR NN
oI DA A KF YB NH F S

Jesse J. Maddox, Bar No. 219091

jmaddox@lewlegal.com

Nathan T. Jackson, Bar No. 285620 tiy162021 5-14 PM
njackson@Ilewlegal.com ! . wee
LIEBERT CASSIDY WHITMORE County offresno on
A Professional Law Corporation By: C. York, D

5250 North Palm Ave, Suite 310 y: C. York, Deputy
Fresno, California 93704

Telephone: 559.256.7800

Facsimile: 559.449.4535

Attorneys for Defendants BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY and XUANNING FU

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO

A. SAMEH EL KHARBAWY, Case No.: 21CECG02214

Plaintiff, [ASSIGNED FOR ALL PURPOSES TO
KIMBERLY GAAB, DEPT. 503]

Vv.
Complaint Filed: October 23, 2020

BOARD OF TRUSTEES OF

CALIFORNIA STATE UNIVERSITY; REQUEST FOR JUDICIAL NOTICE IN
DARRYL L. HAMM, an individual; SUPPORT OF DEFENDANT XUANNING
LYNNETTE ZELEZNY, an individual; FU’S DEMURRER TO PLAINTIFF A. SAMEH

JOSEPH I. CASTRO, an individual;
SAUL JIMENEZ-SANDOVAL, an
individual; XUANNING FU, an

EL KHARBAWY’S COMPLAINT
(PART 1 OF 2)

individual; AND DOES 1 through 50, Date: April 19, 2022
Time: 3:30 pm
Defendants. Dept.: 503

(*Exempt from filing fees pursuant to Gov.
Code, § 6103.)

Defendant Dr. Xuanning Fu (“Dr. Fu”) respectfully asks the Court to take judicial notice,
pursuant to Evidence Code §§ 452 and 453, of the following documents in support of his
Demurrer to Plaintiff A. Sameh El Kharbawy’s (‘Plaintiff’) Complaint.

A true and correct copy of excerpts from Defendant Board of Trustees of
California State University’s (“CSU”) Special Interrogatories, Set One, propounded to Plaintiff

on May 20, 2021 (Interrogatory No. 10 specifically), and Plaintiff's verified response to CSU’s

Special Interrogatory, No. 10, dated July 21, 2021, a true and correct copy of which is combined

and attached hereto as Exhibit A. (Weil & Brown, Cal. Prac. Guide: Civil Procedure Before
1

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer to Plaintiff's Complaint
9831413.1 FROO7-003Liebett Cassidy Whitmore
A Professional Law Corporation
Fresno, California 93704

5250 North Palm Ave, Suite 310

o nn nu fF WwW NY FB

EF eP eB BP BP BP BP eB Be
on naw PrP wn er Oo

19

Trial (Rutter Group 2021) at 7:16.5 [“a court may take judicial notice of plaintiff's own affidavits
and unequivocal discovery responses based on plaintiff's personal knowledge, even if they
contradict the complaint’); Bockrath v. Aldrich Chem Co. (1999) 21 Cal.4th 71, 83 [court can
take judicial notice of a plaintiff’ s discovery responses].)

2. Plaintiff’ s Govemment Claim form dated August 2, 2018, and received by CSU on
August 3, 2018. A true and correct copy of the Govemment Claim form described in this
paragraph is attached hereto as Exhibit B. (Evid. Code, § 452(c), (g)-(h); Gong v. City of
Rosemead (2014) 226 Cal.App.4th 363, 369 [The court may take judicial notice of the filing and
contents of a govemment claim]; Lowry v. Port San Luis Harbor Dist. (2020) 56 Cal.App.5th.
211, 270 [“The trial court took judicial notice of an application Lowry faxed the District on
March 10, 2017, within a year of the incident” - action not disturbed on appeal].)

3. A letter from Zachary Gifford with CSU’s Office of the Chancellor (with proof of
service) to Plaintiff’ s counsel, Altshuler Berzon, LLP, dated October 25, 2018, rejecting
Plaintiff’ s August 2, 2018, tort claim. A true and correct copy of the rejection letter sent by CSU
to Plaintiff described in this paragraph is attached hereto as Exhibit C. (Evid. Code, § 452(c),
(g)-(h); Gong, supra, 226 Cal.App.4th at 369; Lowry, supra, 56 Cal.App.5th at 270; Glaski v.
Bank of Am (2013) 218 Cal.App.4th 1079, 1090 [public records subject to judicial notice].)

4, A copy of Plaintiffs Govemment Claim form dated June 28, 2019, and received
by CSU onJuly 1, 2019. A true and comect copy of the Govemment Claim form described in this
paragraph is attached hereto as Exhibit D. (Evid. Code, § 452(c), (g)-(h); Gong, supra, 226
Cal.App.4th at 369; Lowry, supra, 56 Cal.App.5th at 270; Glaski, supra, 218 Cal.App.4th at 1090
[public records subject to judicial notice].) Moreover, this tort claim is referenced in the
complaint. (Complaint at 53; Ascherman v. Gen. Reins. Corp. (1986) 183 Cal.App.3d 307, 310-
311 [noting trial court took properly judicial notice of contract referenced in complaint under
Evidence Code, section 452(h), which was dispositive to the action].)

5. A letter from Zachary Gifford with CSU’s Office of the Chancellor (with proof of
service) to Plaintiff’ s counsel, Altshuler Berzon, LLP, dated August 21, 2019, rejecting Plaintiff’ s

June 29, 2019, tort claim. A true and conect copy of the rejection letter sent by CSU to Plaintiff
2

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer
9831413,1 FROO7-003Liebett Cassidy Whitmore
A Professional Law Corporation
Fresno, California 93704

5250 North Palm Ave, Suite 310

o nn nu fF WwW NY FB

EF eP eB BP BP BP BP eB Be
on naw PrP wn er Oo

19

described in this paragraph is attached hereto as Exhibit E. (Evid. Code, § 452(c), (g)-(h); Gong,
supra, 226 Cal.App.4th at 369; Lowry, supra, 56 Cal.App.5th at 270; Glaski, supra, 218
Cal.App.4th at 1090 [public records subject to judicial notice].)

6. A copy of Plaintiffs complaint with the Department of Fair Employment &
Housing (“DFEH”) dated February 13, 2018, Case No. 201801-00693707, including the case
closure and right to sue notice for the same case number, a true and correct copy of which is
attached hereto as Exhibit F. (Evid. Code, § 452(c), (g)-(h); Wood v. Superior Ct. of San Diego
Cty. (2020) 46 Cal.App.5th 562, 580 fn 2 [“we granted Crunch's request for judicial notice of
several pages from DFEH's website and other DFEH public statements”); Silvia v. EA Technical
Servs., Inc. (N.D. Cal. 2017) 2017 WL 2377713, at *2 [“Courts routinely take judicial notice of
proceedings in other courts and records of state agencies, including DFEH complaints”); Arce v.
Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [court may take judicial notice
of official acts of state agencies]; Minor v. FedEx Office & Print Servs., Inc. (N.D. Cal. 2015) 78
F.Supp.3d 1021, 1027 [taking judicial notice of DFEH complaint]; Glaski, 218 Cal.App.4th at
090 [public records subject to judicial notice.) Moreover, this DFEH complaint is referenced in
the complaint. (Complaint at 152; Ascherman, supra, 183 Cal.App.3d at 310-311.)

7. A copy of Plaintiff's complaint with, and Right to Sue from, the Department of
Fair Employment & Housing (“DFEH”) dated July 1, 2019, Case No. 201907-06690101, a true
and correct copy of which is attached hereto as Exhibit G. (Evid. Code, § 452(c), (g)-(h). Wood,
46 Cal.App.5th at 580 fn 2 [“we granted Crunch's request forjudicial notice of several pages from
DFEH's website and other DFEH public statements”); Silvia, supra, 2017 WL 2377713, at*2
(“Courts routinely take judicial notice of proceedings in other courts and records of state

agencies, including DFEH complaints”); Arce, supra, 181 Cal.App.4th at 482 [court may take

judicial notice of official acts of state agencies]; Minor, supra, 78 F.Supp.3d at 1027 [taking
judicial notice of DFEH complaint]; Glaski, supra, 218 Cal.App.4th at 1090 [public records
subject to judicial notice.) Moreover, this DFEH complaint is referenced in the complaint.
(Complaint at 152; Ascherman, supra, 183 Cal.App.3d at 310-311 [noting trial court properly

took judicial notice of contract referenced in complaint under Evidence Code, section 452(h)].)
3

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer
9831413,1 FROO7-003Liebett Cassidy Whitmore
A Professional Law Corporation
Fresno, California 93704

5250 North Palm Ave, Suite 310

o nn nu fF WwW NY FB

EF eP eB BP BP BP BP eB Be
on naw PrP wn er Oo

19

8. A true and correct copy of an Executive Order 1058 complaint that Plaintiff lodged
with CSU dated June 5, 2018, a true and correct copy of which is attached hereto as Exhibit H.
(Evid. Code, § 452(c), (g)-(h); Gong, supra, 226 Cal.App.4th at 369; Glaski, supra, 218
Cal.App.4th at 1090 [court can take judicial notice of public records].) Moreover, this Executive
Order 1058 complaint is referenced in the complaint. (Complaint at 51; Ascherman, supra, 183
Cal.App.3d at 310-311 [trial court took judicial notice of contract in complaint].)
9. A true and correct copy of an Executive Order 1058 complaint that Plaintiff lodged
with CSU dated June 14, 2019, and received on by CSU onJune 17, 2019, a true and correct copy
of which is attached hereto as Exhibit I. (Evid. Code, § 452(c), (g)-(h); Gong, supra, 226
Cal.App.4th at 369; Glaski, supra, 218 Cal-App.4th at 1090 [court can take judicial notice of
public records].) Moreover, this Executive Order 1058 complaint is referenced in the complaint.
(Complaint at {51 [referred to as a 1116 complaint]; Ascherman, supra, 183 Cal.App.3d at 310-
311 [trial court took properly judicial notice of contract referenced in complaint].)

10. A trueand correct copy of CSU’s Executive Order 1058 with an effective date of
April 15, 2011, a true and correct copy of which is attached hereto as Exhibit]. (Evid. Code, §
452(), (h); Glaski, supra, 218 Cal.App.4th at 1090 [taking judicial notice of public records].)

11. A trueand correct copy of CSU’s Executive Order 1116, a true and correct copy of
which is attached hereto as Exhibit K and available online to the public at:
https://calstate.policystat.com/policy/6742050/latest/. (Evid. Code, § 452(c), (h); Gong, supra,
226 Cal.App.4th at 369; Glaski, supra, 218 Cal.App.4th at 1090 [court can take judicial notice of
public records].) Moreover, Plaintiff makes reference to this Order in his complaint. (Complaint
at 751; Ascherman, supra, 183 Cal.App.3d at 310-311 [trial court took properly judicial notice of
acontract that was referenced in the complaint when ruling on a demunrer].)

12. A tolling agreement entered into between CSU attomey Monique Shay, Plaintiff,
and Wendy Musell “Attomey for Dr. El Kharbawy,” signed on July 30, 2019, a true and correct
copy of which is attached hereto as Exhibit L. (Evid. Code, § 452(c), (g)-(h); Glaski, supra, 218
Cal.App.4th at 1090 [court can properly take judicial notice of public records].) Moreover,

Plaintiff repeatedly references his tolling agreements with CSU. (Complaint at pp. 16:24-27,
4

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer
9831413,1 FROO7-003YD ws

2

g
ge
BB
= 5

oO
ey
ZA
aa
os
Ee
23
né
<

Fresno, California 93704

5250 North Palm Ave, Suite

17:9-12; Ascherman, supra, 183 Cal.App.3d at 310-311 [trial court properly took judicial notice
of a contract that was referenced in the complaint when ruling on a demurrer].)

13. A tolling agreement entered into between Darry Hamm, Plaintiff, and Wendy
Musell “Attorney for Dr. El Kharbawy” signed on November 14, 2019, a true and correct copy of
which is attached hereto as Exhibit M. (Evid. Code, § 452(c), (g)-(h); Glaski, supra, 218
Cal.App.4th at 1090 [court can properly take judicial notice of public records].) Moreover,

Plaintiff repeatedly references his tolling agreements with CSU. (Complaint at pp. 16:24-27,

17:9-12; Ascherman, supra, 183 Cal.App.3d at 310-311 [trial court properly took judicial notice
of a contract that was referenced in the complaint when ruling on a demurrer].)

14. The Collective Bargaining Agreement between CSU and the California Faculty
Association in effect between November 12, 2014, and June 30, 2021, a true and correct copy of
which is attached hereto as Exhibit N, and publicly available online at:
https://www2.calstate.edu/csu-system/faculty-staff/labor-and-employee-
relations/Documents/unit3-cfa/CFA-CBA-2014-17.pdf. (Evid. Code, § 452(c); Bonner v. Cty. of
San Diego (2006) 139 Cal.App.4th 1336, 1342 [taking judicial notice of collective bargaining
agreement pursuant to Evidence Code section 452(c)].)!

15. A copy of a press release from California State University dated October 6, 2021,
titled, “PERB Determines Parties Are At Impasse, Mediator to Be Appointed Soon”, a true and

correct copy of which is attached hereto as Exhibit O, and publicly available online at:

https://www.calstate.edu/csu-system/faculty-staff/labor-and-employee-

relations/Documents/updates/communique_cfa-impasse_a_final-10-6-21.pdf.

16. A copy of the Legislative Counsel’s Digest for Stats. 2019, c. 709 (A.B. 9), § 1,
eff. Jan. 1, 2020, a true and correct copy of which is attached hereto as Exhibit P. (Evid. Code §
452(c); Rubio v. Superior Ct. (2016) 244 Cal.App.4th 459, 476 [“We take 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

! This agreement is still in effect due to impasse negotiations, per Exhibit O.
5

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer
9831413.1 FROO7-0031]| [taking judicial notice of Legislative Counsel’s Digest].)

3|) Dated: November 16, 2021 LIEBERT CASSIDY WHITMORE

By: )

7 Attorneys for Defendants BOARD OF
TRUSTEES OF CALIFORNIA STATE
8 UNIVERSITY and XUANNING FU

6

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer
9831413.1 FROO7-003Liebett Cassidy Whitmore
A Professional Law Corporation
Fresno, California 93704

5250 North Palm Ave, Suite 310

o nn nu fF WwW NY FB

EF eP eB BP BP BP BP eB Be
on naw PrP wn er Oo

19

MEMORANDUM OF POINTS AND AUTHORITIES
L INTRODUCTION

Plaintiff is a professor at Califomia State University (“CSU”), Fresno (“Fresno State”)
who claims he was subjected to harassment, discrimination, and retaliation. Plaintiff's theories
implicate the Fair Employment & Housing Act, Govemment Code sections 12940 et seq.
(“FEHA”), the State Whistleblower Protection Act, Govemment Code section 8547.12 (“WPA”),
and Califomia’s Govemment Claims Act, Govemment Code section 810 et seq. (“GCA”). Each
one of these theories requires administrative exhaustion as a prerequisite to suit. (e.g., Gov.
Code, § 12960 [FEHA]; § 8547.12(a) [WPA], and §§ 905.9 and 910 [GCA].)

To this end, this Request for Judicial Notice (“RJN”) accompanies a demurrer to
Plaintiff’ s Complaint on behalf of Dr. Xuanning Fu. In this case, Dr. Fu maintains that Plaintiff

failed to exhaust his administrative remedies, that some or all of his causes of action are time
barred, and/or that Plaintiff made false representation to the Court, in violation of Code of Civil
Procedure section 128.7, in an effort to pursue a vendetta against Dr. Fu. All records subject to
this request forjudicial notice are public records or otherwise subject to judicial notice because
the document or policy was cited in the Complaint to establish the viability of a claim.
Specifically, Dr. Fu respectfully asks the Court to take judicial notice of the following:
Timeliness of Claims
¢ Tolling agreement between Plaintiff and CSU in 2018 (Complaint at {" 52-53);
¢ Tolling agreement between Plaintiff and CSU in 2019 (Ihid.);
GCA Causes of Action
e A copy of Plaintiff’ s Govemment Claim form dated August 2, 2018, and received.
by CSU on August 3, 2018 (intentionally omitted from Complaint);
e A copy of aletterfrom CSU to Plaintiff's counsel dated October 25, 2018,
rejecting Plaintiff’ s August 2, 2018, tort claim;
e A copy of Plaintiffs Govemment Claim form dated June 28, 2019, and received
by CSU onJuly 1, 2019 (Id. at 153);

e A copy of aletter from CSU to Plaintiff's counsel dated August 21, 2019, rejecting
7

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer
9831413,1 FROO7-003Liebett Cassidy Whitmore
A Professional Law Corporation
Fresno, California 93704

5250 North Palm Ave, Suite 310

o nn nu fF WwW NY FB

EF eP eB BP BP BP BP eB Be
on naw PrP wn er Oo

19

Plaintiff’ s June 28, 2019, tort claim;
FEHA Causes of Action

e Plaintiff's DFEH complaint and right to sue notice from 2018 (Id. at 152);

e Plaintiff's DFEH complaint and right to sue notice from 2019 (Ibid.);

Whistleblower Protection Act
e A copy of Plaintiff’ s Executive Order 1058 Complaint from 2018 (Id. at 151);
e A copy of Plaintiff’ s Executive Order 1058 Complaint from 2019 (Ibid.);
e A copy of Executive Order 1058;
e A copy of Executive Order 1116;
Plaintiff’ s Retaliation Theory
e The Collective Bargaining A greement between CSU and the Califomia Faculty
Association, and a related press release (Id. at 19135, 37, 39).
Il. RELEVANT FACTUAL BACKGROUND

Plaintiff claims Dr. Fu began to harass him in 2016 and 2017 following earlier protected
activities. (Complaint at 22.) To this end, Plaintiff claims Dr. Fu misspelled his name on
“numerous occasions” with “pejorative, offensive insinuations” meant to humiliate him. (Ibid.)

In 2017, Plaintiff alleges Dr. Fu “manufactured and fomented false complaints against
Plaintiff in an effort to bully and harass him.” (Id. at 923.) He claims Dr. Fu alleged that
students in one of his classes had not received a printed syllabus, but did not alert him to this until
the deadline to post the syllabus had passed. (Ibid.) Dr. Fu would also not provide Plaintiff with
acopy of the complaint, but eventually sent an unsigned document weeks later. (Ibid.) Plaintiff
accessed the metadata and discovered it had been created by Dr. Fu the same day. (Ibid.)
Plaintiff brought this to Dr. Fu’s attention, and the matter was dropped. (Ibid.)

Plaintiff also claims that Dr. Fu and Martin Valencia (department chair), conspired to
make eleventh hour alterations to Plaintiff’ s teaching schedule by cancelling one of Plaintiff’ s
most popular courses, ID 132T. (Id. at 124.) Plaintiff was assigned to another course, ID 113.

(Ibid.) Plaintiff claims this was a set-up for failure, because he either had to prepare for the new

course over the summer, or develop course materials in the fall as the course progressed. (Ihid.)
8

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer
9831413,1 FROO7-003Liebett Cassidy Whitmore
A Professional Law Corporation
Fresno, California 93704

5250 North Palm Ave, Suite 310

o nn nu fF WwW NY FB

EF eP eB BP BP BP BP eB Be
on naw PrP wn er Oo

19

Plaintiff next alleges that a University alumna lodged a grade protest he taught more than
ayeareanier. (Id. at 125.) Plaintiff claims the grade protest was an “anonymous, undated,
unsigned document, which did not even bear the student’s name.” (Ibid.) Plaintiff claims the
petition was improper and violated University policy, he objected to it, and “the University
abruptly suspended the student’ s grade petition and decided not to pursue it.” (Ibid.)

Plaintiff goes on to allege that Dr. Fu and Mr. Valencia again surprised Plaintiff witha
last minute change to his teaching schedule for the Spring 2018 semester. (Id. at 726.) Plaintiff
claims he was assigned to teach ID 116, which required specialized expertise in a highly technical
suite of software applications (and outside of his expertise). (Ibid.) Plaintiff claims the
University provided no justification for its decision, that Dr. Fu knew this course was outside of
his expertise, and he believes the assignment was retaliatory and intended to harass him. (Ibid.)

Plaintiff filed a lawsuit against CSU in Los Angeles Superior Court on October 23, 2020.
(See Exh. 1 to Declaration of Nathan T. Jackson in Support of Anti-SLAPP.) Plaintiff is suing
Dr. Fu for six causes of action: (1) FEHA race harassment (Complaint at 4 66 [Plaintiff asserts

this claim against all Defendants”]), (2) FEHA retaliation (Id. at 179 [Plaintiff asserts this claim
against all Defendants”), (3) failure to prevent FEHA harassment, discrimination, and retaliation
(Id. at 188 [Plaintiff asserts this claim against all Defendants”]), (4) aiding and abetting
purported violations of the FEHA (Id. at {| 97 [“Plaintiff asserts this claim against all
Defendants”]), (5) whistleblower retaliation under the WPA (Id. at p. 27:23-25), and (6)
intentional infliction of emotional distress (Id. at p. 34:24-26).

Plaintiff’ s lawsuit dedicates 1.5 pages to detailing how he allegedly exhausted his
administrative remedies under the FEHA, the WPA, and the GCA. (Id. at 1151-53.) Plaintiff's
claims against Dr. Fu are premised on the existence of a tolling agreement that Plaintiff claims

Dr. Fusigned. (Id. at 9952-53.) Plaintiff claims he was subject to a retaliatory suspension (Id. at
"1 35-50), though his own CBA claims this type of suspension is not disciplinary.

Ml

Ml

Ml
9

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer
9831413,1 FROO7-003Liebett Cassidy Whitmore
A Professional Law Corporation
Fresno, California 93704

5250 North Palm Ave, Suite 310

o nn nu fF WwW NY FB

EF eP eB BP BP BP BP eB Be
on naw PrP wn er Oo

19

Ill. 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 acded].)

Here, the Court can (and courts routinely do) take judicial notice of Plaintiff’ s govemment
tort claims and CSU’s responses to those tort claims. (Evid. Code, § 452(c), (g)-(h); Gong v. City
of Rosemead (2014) 226 Cal.App.4th 363, 369 [‘“The court may take judicial notice of the filing
and contents of a govemment claim’]; Glaski v. Bank of Am (2013) 218 Cal.App.4th 1079, 1090
[public records subject to judicial notice]; Lowry v. Port San Luis Harbor Dist. (2020) 56
Cal.App.5th 211, 270 [“The trial court took judicial notice of an application Lowry faxed the
District on March 10, 2017, within a year of the incident’”].) The same is also true for Plaintiff’ s
DFEH complaints, which are (1) also matters of public record, and (2) referenced in Plaintiff’ s
Complaint. (Wood v. Superior Ct. of San Diego Cty. (2020) 46 Cal.App.5th 562, 580 fn 2 [“we
granted Crunch's request forjudicial notice of several pages from DFEH's website and other
DFEH public statements”); Silvia v. EA Technical Servs., Inc. (N.D. Cal. 2017) 2017 WL
2377713, at *2 (“Courts routinely take judicial notice of proceedings in other courts and records
of state agencies, including DFEH complaints”); Arce v. Kaiser Found. Health Plan, Inc. (2010)
181 Cal.App.4th 471, 482 [court may take judicial notice of official acts of state agencies]

CSU is also state entity and, as such, its collective bargaining agreements (including the
one at issue here) are a matter of public record, publically accessible online, and subject to
judicial notice. (Bonner v. Cty. of San Diego (2006) 139 Cal.App.4th 1336, 1342 [taking judicial
notice of collective bargaining agreement pursuant to Evidence Code section 452(c)].) Taking
judicial notice of Plaintiff’ s Executive Order 1058 complaints are no different than taking judicial
notice of DFEH complaints/tort claims filed. They are all complaints filed with a state entity, and

the policy considerations for reviewing those documents on a demurrer apply equally.
10

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer
9831413,1 FROO7-003The Court can also take judicial notice of the tolling agreements for several reasons. First,
their authenticity cannot be disputed. (Cruz v. Cty. of Los Angeles (1985) 173 Cal.App.3d 1131,
1134; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 375 [taking judicial notice of
documents that are not or cannot be subject to dispute is the best approach].) Second, the Court
can take judicial notice of the agreements (contracts) due to the fact Plaintiff relies on them in his
complaint. (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].) Third, the tolling
agreements are matters of public record (and non-confidential), as CSU is a state entity. (Herrera
v. Deutsche Bank Ntl. Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Finally, the Court can take judicial notice of Plaintiff's verified discovery responses.

(Weil & Brown, Cal. Prac. Guide: Civil Procedure Before Trial (Rutter Group 2021) at 7:16.5 [“a

court may take judicial notice of plaintiff's own affidavits and unequivocal discovery responses
based on plaintiff's personal knowledge, even if they contradict the complaint”); Bockrath v.
Aldrich Chem. Co. (1999) 21 Cal.4th 71, 83 [court took judicial notice of discovery].)
IV. CONCLUSION

Based on the foregoing, the Defendant respectfully requests that the Court take judicial

notice of Exhibits “A” through “P” attached hereto.

Dated: November 16, 2021 LIEBERT CASSIDY WHITMORE

pr

By: L
Jesse J. ean

Nathan T. Jackso:
Attorneys for Defendants BOARD OF
TRUSTEES OF CALIFORNIA STATE
UNIVERSITY and XUANNING FU

ll

Request for Judicial Notice in Support of Defendant Xuanning Fu’s Demurrer
9831413.1 FROO7-003Exhibit ALiebett Cassidy Whitmore
A Professional Law Corporation
Fresno, California 93704

5250 North Palm Ave, Suite 310

o nn nu fF WwW NY FB

EF eP eB BP BP BP BP eB Be
on naw PrP wn er Oo

19

Jesse J. Maddox, Bar No. 219091
jmaddox@Icwlegal.com

Nathan T. Jackson, Bar No. 285620
njackson@lcwlegal.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

Atto: ‘or Defendants BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY, DARRYL L. HAMM,

LY NNETTE ZELEZNY, JOSEPH I. CASTRO, SAUL JIMENEZ-
SANDOVAL, and XUANNING FU

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES
A. SAMFH EL KHARBAWY., Case No.: 20LBCV00465
Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON.

MICHAEL P. VICENCIA, DEPT. S26]

Complaint Filed: October 23, 2020
BOARD OF TRUSTEES OF

CALIFORNIA STATE UNIVERSITY ; DEFENDANT BOARD OF TRUSTEES OF
DARRY L L. HAMM, an individual; CALIFORNIA STATE UNIVERSITY’S
LY NNEITTE ZELEZNY, an individual; SPECIAL INTERROGATORIES TO

Vv.

JOSEPH I. CASTRO, an individual; PLAINTIFF A. SAMEH EL KHARBAWY, SET

SAUL JIMENEZ-SANDOVAL, an ONE
individual; XUANNING FU, an
individual; AND DOES 1 through 50,

Defendants. («Exempt from filing fees pursuant to Gov.
Code, § 6108.)
PROPOUNDING PARTY: DEFENDANT BOARD OF TRUSTEES OF

CALIFORNIA STATE UNIVERSITY
RESPONDING PARTY: PLAINTIFF A. SAMEH EL KHARBAWY
SET NO.: ONE (1)
TO THE PLAINTIFF AND HIS ATTORNEYS OF RECORD:
Defendant BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY

(“Defendant”) hereby serves its Special Interrogatories, Set One to Plaintiff A. SAMEH EL
1

Defendant’s Special Interrogatories to Plaintiff, Set One
9658836.1 FROO7-003SPECIAL INTERROGATORY NO. 53:
IDENTIFY all witnesses whom YOU contend can support YOUR response to Special

Interrogatory No. 51.

Dated: May 20, 2021 LIEBERT CASSIDY WHITMORE

By:

Jésse J. Maddox

Nathan T. Jackso:

Attorneys for Defendants BOARD OF
TRUSTEES OF CALIFORNIA STATE
UNIVERSITY, DARRYL L. HAMM,
LYNNETTE ZELEZNY, JOSEPH I. CASTRO,
SAUL JIMENEZ-SANDOVAL, and
XUANNING FU

10

Defendant’s Special Interrogatories to Plaintiff, Set One
9658836.1 FROO7-003Andrew E. 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

A. SAMEH EL KHARBAWY, an individual,
Plaintiff,

vs.

BOARD OF TRUSTEES OF CALIFORNIA
STATE UNIVERSITY; DARRYL L.
HAMM, an individual; LYNNETTE
ZELEZNY, an individual; JOSEPH I.
CASTRO, an individual; SAUL JIMENEZ-
SANDOVAL, an individual; XUANNING
FU, an individual; and DOES 1 through 50,
inclusive,

Defendants.

PROPOUNDING PARTY:

RESPONDING PARTY:

SET NUMBER: ONE

PLAINTIFF’S RESPONSES TO DEFENDANT BOARD OF TRUSTEES OF CALIFORNIA STATE
UNIVERSITY’S SPECIAL INTERROGATORIES, SET NO. ONE - Page |

Defendant BOARD OF TRUSTEES OF CALIFORNIA
STATE UNIVERSITY
Plaintiff A. SAMEH EL KHARBAWY

Case No.: 20LBCV00465

Hon. Michael P. Vicencia
Dept. $26

PLAINTIFF’S RESPONSE TO
DEFENDANT BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY’S
SPECIAL INTERROGATORIES, SET NO.Objection. The request seeks information protected by the privacy rights under Article 1,
Section 1, of the California Constitution and applicable law.

Objection. The request is premature given the current state of discovery. Defendant has
refused to identify documents related to this matter, failed to produce documents it has identified
as relevant and responsive to Plaintiff's discovery requests, refused to provide information
concerning witnesses (citing third-party privacy concerns), and refused to provide Plaintiff with
access to Defendant’s information systems that contain information related to this matter. Not a
single deposition has been taken and they cannot be taken until Defendant produces relevant
documents and information. Contention interrogatories asking for all facts, documents, and
witnesses related to Plaintiff's various claims are premature when Defendant is not producing
said facts, documents, and witnesses. Plaintiff will agree to supplement this response after
sufficient discovery has been completed.

SPECIAL INTERROGATORY NO. 10:

State the last date YOU (not a representative) directly communicated with Xuanning Fu.
RESPONSE TO SPECIAL INTERROGATORY NO. 10:

Objection. The request seeks information that is neither relevant nor reasonably calculated
to lead to the discovery of admissible evidence.

Objection. The phrase “directly communicated” is vague, ambiguous, and calls for
speculation. A proper response cannot be given until such term is defined or clarified.

Objection. The request is calculated to annoy and harass Plaintiff. (See Code Civ. Proc. §
2030.090, subd. (b); and Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles
County (1968) 263 Cal. App.2d 12, 19.)

Subject to and without waiving the foregoing objections, Plaintiff responds as follows:

As this request lacks clarity and specificity, Plaintiff cannot address it properly until such
terms as “directly” and “communicated” are defined and clarified. However, the most recent
email Plaintiff sent to Xuanning Fu directly was dated November 7, 2017.

SPECIAL INTERROGATORY NO. 11:

State the last date YOU (not a representative) communicated with Joseph Castro.

PLAINTIFF’S RESPONSES TO DEFENDANT BOARD OF TRUSTEES OF CALIFORNIA STATE
UNIVERSITY’S SPECIAL INTERROGATORIES, SET NO. ONE - Page 9Objection. The phrase “can support” is vague, ambiguous, and calls for speculation. A
proper response cannot be given until such term is defined or clarified and limited to witnesses
that “support” Plaintiffs response to Special Interrogatory No. 51.

Objection. This discovery request seeks attorney work product in violation of Code of
Civil Procedure sections 2018.020 and 2018.030.

Objection. The request seeks information subject to the attorney-client privilege. The
attorney-client privilege is broadly construed and extends to factual information and legal advice.
(Mitchell v. Superior Court (1984) 37 Cal.3d 591, 601.)

Objection. The request is premature given the current state of discovery. Defendant has
refused to identify documents related to this matter, failed to produce documents it has identified
as relevant and responsive to Plaintiffs discovery requests, refused to provide information
concerning witnesses (citing third-party privacy concerns), and refused to provide Plaintiff with
access to Defendant’s information systems that contain information related to this matter. Not a
single deposition has been taken and they cannot be taken until Defendant produces relevant
documents and information. Contention interrogatories asking for all facts, documents, and
witnesses related to Plaintiff's various claims are premature when Defendant is not producing
said facts, documents, and witnesses. Plaintiff will agree to supplement this response after

sufficient discovery has been completed.

DATED: July 21, 2021 HILLIER LAW

Ze

Andrew E. ffillier
Attorney for Plaintiff,
A. Sameh El Kharbawy

By:

PLAINTIFF’S RESPONSES TO DEFENDANT BOARD OF TRUSTEES OF CALIFORNIA STATE
UNIVERSITY’S SPECIAL INTERROGATORIES, SET NO. ONE - Page 46VERIFICATION

I, Dr. A. Sameh El Kharbawy, have reviewed, either by reading or through my counsel,
the foregoing document entitled:

PLAINTIFF’S RESPONSE TO DEFENDANT BOARD OF TRUSTEES OF)

CALIFORNIA STATE UNIVERSITY’S SPECIAL INTERROGATORIES, SET]

NO. ONE
dated July 21, 2021 and know its contents. I am a party in this action. The matters stated in the|
foregoing documents are true to my own knowledge except as to those matters which are|
stated on information and belief, and to those matters I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the forgoing]

07/21/2021

is true and correct. Executed on in the city of Los Angeles >

California.

A. Sameh El Kharbawy

VERIFICATIONExhibit BThe California State University
RISK MANAGEMENT AND PUBLIC SAFETY
The California State University / Office of the Chancellor / Risk Management and Public Gale) of OF
401 Golden Shore, 5th Floor / Long Beach, CA 90802-4210
562) 951-4580 / www eme

edu/risk_management/cla AUG = 9 2049
's your claim complete? CSU Claim Form RISK MANAGEMENT
Include a check or money order for $25 payable to “Trustees of the CSU.” ]

Complete all sections relating to this claim and sign the form. Please print or type all information. |
Attach receipts, bills, estimates or other documents that back up your claim. |

Claimant Information

PO B0n5995 [reno ica __ 8755 205

Mailing Address City State Zip

Best time and way to reach you: M-F 9:00 am - 5:00 pm

6 | isthe claimantunder18? (Yes No |if YES, give date of birth
Attorney or Representative Information MM DD YYYY

Altshuler Berzon, LLP c/o Dr. A. Sameh El Kharbawy | 8 | Tel: ftaisyazi-7151
Last Name First Name M! | 9 | Email: ecervantez@altshulerberzon.com

PO Box 5335 [Fresno CA 98755.5335

Mailing Address City State Zip
Relationship to claimant: | attorney

Claim Information

Is your claim for a stale-dated warrant (uncashed check)?| | ti“‘iL:CO J Yes] No
[CSU campus thatissued the warrant] ____—_—=—~—~—~—~—S—S—~*dENO, continue to Step 13._|
[Dollar amountofwarant | _—=—=SCSCSCSC*diat ns

Proceed to Step 23 MM DD YYYY
Date of Incident: | Ongoing; February 5, 2018 to the present time
Was the incident more than six months ago? O Yes §& No
If YES, did you attach a separate sheet with an explanation for the late filing? OH Yes 1 No

CSU campus or CSU employees against whom this claim is filed: |CSU Fresno

Dollar amount of claim:
Os Limited civil case ($25,000 or less)
& —Non-limited civil case (over $25,000)

See Attachment #8: Claimant's damages are ongoing, and are over the jurisdictional amount for non-limited civil case, in|
lexcess of $25,000.

[16 | Location of the incident:

Fresno, California and other locations

If the amount is more than $10.000, indicate the
type of civil case:

Explain how you calculated the amount:Describe the specific damage or injury:

See Attachment #C

18 | Explain the circumstances that led to the damage or injury:

See Attachment #D

19 | Explain why you believe the CSU is responsible for the damage or injury:

See Attachment #E

Does the claim involve a campus vehicle?
If YES, provide the vehicle license number, if known:

Auto Insurance Information

Pa >

Name of Insurance Carrier

Mailing Address City State Zip
[Policy Number [~SSSCS~*d
Are you the registered owner of the vehicle?
lf NO, state name of owner:
Has a claim been filed with your insurance carrier, or will it be filed? O Yes O) No
Have you received any payment for this damage or injury? O Yes C1 No
If yes, what amount did you receive?
Amount of deductible, if any:

Claimant's Driver's License Number | ss Vehicle License Number:
Make of Venlo] [odes] Year
Vehicle ID Number

a cla
ate of

| declare under penalty of perjury under the laws of the State of California that all the information | have
provided is true and correct to the best of my information and belief. | further understand that if | have
provided information that is false, intentionally incomplete, or misleading | may be charged with a crime

August 2, 2018
Signature of Claimant 6r Representative Date

Mail the original completed form and all attachments with the $25 filing fee or the “CSU Affidavit for
Waiver of Filing Fee" request to: CSU Office of the Chancellor, Risk Management & Public Safety, 401
Golden Shore, 5th Floor, Long Beach, CA 90802-4210. Keep a copy for your records.ATTACHMENT #A

Question #14:
CSU campus or CSU employees against whom this claim is filed

This claim is filed against:

1. California State University
2. California State University, Fresno

And the following employees of California State University, Fresno
(among others):

Joseph Castro
Xuanning Fu

Rudolph Sanchez

Saul Jiménez-Sandoval
Martin Valencia

Holly Sowles

SAH orp oo

And the following employees of California State University (among
others):

9. Lynnette Zelezny
10. Darryl HammATTACHMENT #B

Question #15:
Explain how you calculated the amount [of Claim

Dr. El Kharbawy (“Claimant”) has suffered significant financial losses
and damages as a result of the unlawful actions and conduct of California
State University, California State University, Fresno (“University”) and their
employees named in Attachment #A.

Claimant’s damages are ongoing, and are over the jurisdictional
amount for unlimited civil case, in excess of $25,000. Claimant's damages are
in accordance with the California Government Claims Act, in an amount to be
determined at trial.

Claimant’s damages include, but are not limited to:

1.

om wo

Out of pocket, unreimbursed expenses arising from or associated
with Claimant’s work assignments, including, for example, the
specialized training that Claimant was forced to procure to
perform teaching assignments outside of his field of expertise, etc.
Salary loss due to the disparity between Claimant’s salary since
2014 and the salaries of similarly ranked faculty with tenure.
Past and future legal expenses.

Past and future medical expenses.

Damages associated with the interruption, cancellation and/or
delay of Claimant’s scholarly work, including planned conferences
and publications, due to his unduly protracted suspension.
Damages for Claimant’s emotional distress.

Damages for the reputational harm inflicted upon Claimant by
the University and its employees named in this Claim.

Damages for loss of economic opportunity and prospective
economic advantage.

Damages for lost employment and employment opportunities,
future earning capacity, promotion and professional advancement.
Damages for defamation.

Damages for invasion and breach of privacy.

Damages for negligent or intentional interference with
contractual relations and prospective economic advantage.ATTACHMENT #C

Question #17:
Describe the specific damage or injury

Claimant’s damages are in accordance with the California Government
Claims Act, in an amount to be determined at trial. Claimant's damages
include, but are not limited to:

1. Financial losses and economic damages including, but not limited to:

Out of pocket, unreimbursed expenses arising from or associated
with Claimant’s work assignments (e.g. specialized training that
Claimant was forced to procure to perform teaching assignments
outside of his field of expertise).

Damages or associated with the interruption, cancellation
and/or delay of Claimant’s scholarly work, including planned
conferences and publications, due to his unduly protracted
suspension.

Loss of employment and employment opportunities, future
earning capacity, promotion and professional advancement.

Loss of economic opportunity and prospective economic
advantage.

Interference with contractual obligations and prospective
economic advantage.

Salary loss and owed back pay.

Past and future medical expenses.

Past and future legal expenses.

And other economic damages. Cal. Civ. Code § 1431.2(6)(1).

2. Damages to the Claimant's reputation, good name and standing in the
community. Cal. Civ. Code § 1431.2(b)(2).

83. Damages for Claimant’s pain and suffering, emotional distress,
professional isolation and humiliation. Cal. Civ. Code § 1481.2(b)(2).ATTACHMENT #D

Question #18:
Explain the Circumstances that lead to the damage or injury

Dr. El Kharbawy (“Claimant”) has a well-documented history of
activism by which he seeks to ensure that California State University and
California State University, Fresno (“University”) and their employees and
officials comply with the law and required procedures with regard to faculty
hiring decisions, proper administrative conduct, management of public
resources and monies, and ethical reporting of University data (e.g. in
accreditation proceedings, etc.) Claimant has written extensively to the
University regarding these issues, including in formal and whistleblower
complaints, and his protected activity is well-known to the University.

In the months prior to the actions that resulted in this claim, Claimant
was active in protesting the University’s handling of two faculty searches (in
the Interior Design program and the Middle Eastern Studies program), which
he believed resulted in unlawful discrimination on a number of protected
bases. Claimant filed formal complaints with the University, and served as a
witness in Department of Fair Employment and Housing (“DFEH”)
proceedings on behalf of discrimination victims, among other protected
activities. See Cal. Gov't Code§ 12940; Cal. Code Regs. tit. 2, § 11021.

Additionally, Claimant engaged in whistleblower activity, including by
filing formal complaints, in which he reported violations of law, improper
governmental activities, administrative misconduct and other employment
abuses at the University. See Cal. Labor Code§ 1102.5.

In Retaliation for his Protected Activities, the University Suspended
Claimant on False Pretexts.

On February 5, 2018, the University placed Claimant on suspension.
The University took this action without warning, investigation or due process,
pursuant to Article 17 of the collective bargaining agreement covering his
employment. Claimant did not even receive a courtesy phone call or an email
from his supervisor or any University official prior to his suspension. Because
Article 17 involves suspension of faculty without any finding of wrongdoing,
it is limited to the urgent and rare cases in which "there exists strong and
compelling evidence ... related to (a) the safety of persons or property, (b) the
disruption of programs and/or operations, or (c) investigation for formal
notice of disciplinary action.” The allegations on which the University based
Claimant’s suspensions, while demonstrably false, clearly do not rise to that
level. It was, in fact, the suspension of Claimant that has disrupted

PAGE | 1 of 5University programs and operations by preventing him from teaching, and
disrupting his academic work and professional activities, which he would
have and should be pursuing on behalf of the University and its students.

Although even the most cursory pre-suspension investigation would
have revealed that the allegations against Claimant were petty and
unfounded, and that his suspension was neither justified nor defensible, the
University failed (or refused) to investigate the matter or even discuss it with
Claimant. On February 9, 2018, Claimant, however, relayed the facts to the
University’s President (Joseph Castro), and requested a meeting with him or
an appropriate administrator to discuss his suspension, and present evidence
that rebuts any allegations against him. Although Claimant is entitled to
such a meeting according to the University’s policies and procedures, his
request was not honored. Instead, a record of the Claimant’s suspension was
prematurely placed in his Personnel Action File, with suspicious haste,
damaging his otherwise unblemished employment record.

Claimant’s suspension inflicted great undue harm upon his good name
and reputation. It also greatly impacted his well being, both physical and
emotional. By failing to promptly investigate the allegations against
Claimant during the first 30 days of his suspension (which lead to several
extensions of it over several months), the University made Claimant an easy
target to malicious rumors and misinformation, and damaged his career,
disrupted his work, sabotaged his prospects for professional advancement,
ostracized him socially and professionally, and caused him substantial
economic harm.

Since his initial suspension on February 5, 2018, the University has
indefensibly extended Claimant's temporary suspension at least three times,
on March 6 2018, April 5, 2018, and May 4, 2018. And on July 27, 2018
Claimant was informed that he would be suspended again for the fall 2018
semester beginning August 20, 2018. During all those months, the
University (and its investigators) never contacted Claimant to interview him
regarding the purported basis for the suspension, or to ascertain the facts.
The University’s failure to promptly investigate the matter and its decision to
repeatedly extend Claimant’s suspension has multiplied his injuries.

Further, the University acted with evident malice toward Claimant; its
officials’ actions exhibit unmistakable animus toward him. For example,
while the University directed Claimant “not to be on campus during [his]
temporary suspension”, it deliberately sent notices of his February 2018
suspension and all subsequent extensions of it to his department, where they
were placed in a publicly accessible mail drop, which it knew was neither

PAGE [2a0f5private nor secure, and is susceptible to unauthorized access.: The intentional
exposure of Complainant’s suspension (a confidential personnel matter that
the University has not even investigated to date) was designed to humiliate
him among his peers and students, and to ruin his reputation as a respected,
accomplished senior Professor and a recognized expert in his field.

Claimant’s Suspension was Premeditated by University Administrators
to Punish Claimant for His Protected Activities, Harass Him and
Damage His Reputation and Career.

To set Claimant up for suspension, a group of University employees
and administrators (including Xuanning Fu, Martin Valencia, Saul Jiménez-
Sandoval, Holly Sowles and others) conspired to assign him courses outside
his field of expertise. The timing of this adverse action is troubling.
Immediately following his protected, whistleblower disclosures (August 2017
thru January 2018), Claimant received surprise, last minute changes to his
teaching schedule in spring 2018, which assigned him a course for which he is
not trained or qualified to teach.

Claimant, who is the most senior faculty in his program, and the only
full tenured Professor in that program, is, by formal training, a historian and
theorist of art, architecture and design. For twelve years, Claimant’s teaching
assignments have (except in rare cases) fallen within his area of expertise. He
has developed an outstanding reputation among students for his teaching of
core courses in that area of expertise in his program (ID 70, ID 113, ID 120,
ID 132T, ID 150, and ID 152) earning him consistently positive student
evaluations for over a decade. Aside from his prolific teaching and research
career, tens of professional associations, hundreds of publications and
conference presentations, several awards, grants and honors all testify to
Claimant’s expertise in the field of history and theory of art, architecture and
design.

In spring 2018, however, Claimant was abruptly and without any
justification (and certainly no legitimate reason) assigned an upper-division
course in digital design and multi-media art (ID 116: Design Graphics IV);,
which requires expertise in a specialized suite of software applications,
namely multi-media and animation software, BIM software (Revit), and
visual lighting software. Claimant is not an expert in multimedia art, and
does not use Revit or any of the other software in his work. In a letter to his
supervisor, Xuanning Fu the day after he received his spring 2018 teaching
assignments, Claimant explained that ID 116 is “a specialized, technical

1 On several occasions, Claimant asked the University not to send any
confidential or sensitive documents to his department’s mailbox due to
security and privacy concerns. The University is aware of those concerns.

PAGE | 3 ofSgraphics course” in “an entirely different field” from his area of expertise.
Claimant further explained that it was “neither reasonable ... nor responsible”
for the University to inform him at the last minute that he would be teaching
a new, technical course. Indeed, to prepare himself to adequately teach ID

116, Complainant was forced to seek, at his own expense, digital design
training in San Francisco (on weekends).

The University provided no justification for the decision to require
Claimant to teach a course so far outside his area of expertise. And it failed to
address Claimant’s legitimate concerns about his ability to effectively teach
ID 116. Coming close on the heels of Claimant’s protected activity, there is
strong reason to believe that the assignment was retaliatory, and intended to
set Claimant for suspension—which took place almost two weeks after the
beginning of the spring 2018 semester.

Claimant’s Susp