Preview
Liebert Cassidy Whitmore
A Professional Law Corporation
$250 North
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Jesse J. Maddox, Bar No. 219091
jmaddox@lewlegal.com
Nathan T. Jackson, Bar No. 285620
njackson@lewlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
5250 North Palm Ave, Suite 310
Fresno, California 93704
Telephone: 559.256.7800
Facsimile: 559.449.4535
E-FILED
11/18/2021 12:31 PM
Superior Court of California
County of Fresno
By: Estela Alvarado, Deputy
Attorneys for Defendants BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY, DARRYL L. HAMM, and
XUANNING FU
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO
A. SAMEH EL KHARBAWY,
Plaintiff,
Vv.
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,
Defendant.
I, Darryl Hamm, declare as follows:
Case No.: 21CECG02214
[ASSIGNED FOR ALL PURPOSES TO HON.
KIMBERLY GAAB, DEPT. 503]
Complaint Filed: October 23, 2020
DECLARATION OF DARRYL HAMM IN
SUPPORT OF HIS SPECIAL MOTION TO
STRIKE PLAINTIFF A. SAMEH EL
KHARBAWY’S COMPLAINT
(*Exempt from filing fees pursuant to Gov.
Code, § 6103.)
1. Ihave personal knowledge of each matter stated herein, and if called upon to do so,
I could and would competently testify to each matter set forth herein.
2. Iam currently employed as University Counsel for California State University,
Fresno (“CSU-Fresno”), and I have held this position since 2016. Iam a licensed attorney. In my
role as University Counsel, I am responsible for providing, managing, and coordinating legal
services for CSU-Fresno, and advising its administrators on issues related to anticipated and
pending litigation, including allegations of misconduct made by, or against, faculty. My job
duties also encompass direct negotiations or discussions with legal representatives of faculty
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Declaration of Darryl Hamm in Support of His Special Motion to Strike
9870408.1 FROO7-003310
Liebert Cassidy Whitmore
A Professional Law Corporation
Fresno, California 93704
5250 North Palm Ave, Sui
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members who have raised complaints or grievances against CSU-Fresno.
se Any actions, decisions, conversations, or communications I took part in that
pertained to Plaintiff all pertained to my role as University Counsel for CSU-Fresno.
4. I have never mistreated Plaintiff on the basis of his race, ethnicity, or national
origin, and I never authorized or approved of any person doing so. I have never been Plaintiff's
supervisor. I have never conspired with any person to mistreat Plaintiff on the basis of race,
ethnicity, or national origin, or to discriminate or retaliate against him on account of any
complaint he has ever made that accused CSU, CSU-Fresno (or any of its employees) of
harassment, discrimination, retaliation, or other misconduct. I did not make the decision to place
Plaintiff on paid suspension, and I have never had authority to suspend Plaintiff. I was not
involved in the accreditation effort of CSU-Fresno’s Interior Design program in 2016-2017. Iam
not (and have never been) responsible for Plaintiff's rate of pay at CSU-Fresno.
5t Ihave been involved in direct communications with a number of Plaintiff’s legal
representatives over the years, including attorneys Kevin Schwin, Wendy Musell, Zoe Palitz, and
Plaintiff's current legal representative, Andrew Hillier. The purpose of these communications
pertained to Plaintiff's internal complaints and grievances, CSU-Fresno’s investigations into
Plaintiffs complaints and complaints against him, and settlement discussions.
6. Since at least the summer of 2017, all of my communications with Plaintiff's
attorneys have been in anticipation of imminent litigation. On June 9, 2017, Plaintiff's former
counsel, Kevin Schwin, sent a letter to CSU-Fresno advising that Plaintiff had retained his office
to represent him in employment matters at CSU-Fresno. I reviewed the letter, which stated that
Plaintiff engaged in protected activities and “recently experienced a progressively hostile work
environment, and an unmistakable pattern of harassment and retaliation.” Schwin’s letter also
said that Plaintiff “asked our office to take the legal steps necessary to investigate and adjudicate
his grievances, and to pursue his rights. We have initiated this process.” The same day, Schwin
sent CSU-Fresno an evidence preservation letter, which I reviewed. I understood the purpose of
this letter was to demand that CSU-Fresno preserve potentially relevant evidence, because
Plaintiff was planning to sue CSU.
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Declaration of Darryl Hamm in Support of Special Motion to Strike
9870408.1 FROO7-003oOo ON DH HU PF WY
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Fresno, California 93704
Liebert Cassidy Whitmore
A Professional Law Corporation
5250 North Palm Ave, Suite 310
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De On August 16, 2017, Plaintiff submitted a complaint titled “Unlawful and
Improper Governmental Activities, Administrative Misconduct, Employment & Contractual
Violations at California State University, Fresno.” I have reviewed the complaint, which purports
to be pursuant to CSU Executive Orders 929 and 1058. Executive Order 1058 is CSU’s former
complaint process for reporting improper government activities, and was intended to fulfill the
requirements of Government Code section 8547.12(a) of the California Whistleblower Protection
Act (“WPA”) by establishing a complaint procedure for employees who claim they have
experienced retaliation for having made a protected disclosure. Executive Order 1058 has been
replaced by Executive Order 1116.
8. Linda Hanson, CSU’s former Assistant Vice Chancellor for Human Resources,
was charged with investigating and/or responding to Plaintiff’s Executive Order 929/1058
complaint. Ms. Hanson sent Plaintiff a letter dated August 29, 2017, informing him that that the
Equal Opportunity/Title Ix/Compliance and Whistleblower Unit received his complaint, and that
a thorough review of the information he submitted was ongoing. As University Counsel for
CSU-Fresno, I received a copy of the letter. A true and correct copy of this correspondence is
attached hereto as Exhibit 1.
9. In his August 16, 2017, Executive Order 929/1058 complaint, Plaintiff claims one
of his new female colleagues, Holly Sowles, had fraudulent credentials and was hired improperly.
In September of 2017, I was informed by the Interim AVP of Faculty Affairs, Rudy Sanchez, that
Plaintiff was discussing allegations in his Executive Order 929/1058 complaint with his students.
On September 15, 2017, AVP Sanchez also sent me an email, with a letter attached from
Professor Holly Sowles, which included a description of an incident in which Plaintiff allegedly
brought up subjects that were a part of his whistleblower complaint in at least one of his classes.
A true and correct copy of the email from AVP Sanchez dated September 15, 2017, with the
attached letter from Holly Sowles, dated August 6, 2017 is attached hereto as Exhibit 2.
10. In response to Exhibit 2 and my conversations with AVP Sanchez, I sent a letter to
Schwin dated September 15, 2017, addressing these concerns and to ensure the confidentiality
obligations in Executive Order 1058 were being honored while Plaintiff's claims were being
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Declaration of Darryl Hamm in Support of Special Motion to Strike
9870408.1 FROO7-0030 Oo YN DH RF WHY
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Liebert Cassidy Whitmore
Fresno, California 93704
A Professional Law Corporation
5250 North Palm Ave, Suite 310
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investigated. A true and correct copy of this letter is attached hereto as Exhibit 3.
Le On September 21, 2017, Plaintiff sent CSU an “Addendum” to his August 2017
complaint. It attacked me for my September 15th letter, which he included as an exhibit.
12. In November 2017, I asked Schwin — who had been sending correspondence to
CSU administrators directly — to direct future correspondences to me. J also began a dialogue
with him about Plaintiff's contention that CSU-Fresno’s former Provost, Dr. Lynnette Zelezny,
denied/failed to honor a leadership opportunity in 2016. This is one of the issues that Plaintiff
raised in his August 2017 Executive Order 929/1058 complaint. A true and correct copy of a
letter I sent to Schwin on November 16, 2017, on this topic is attached hereto as Exhibit 4. A true
and correct copy of Schwin’s response to Exhibit 4 is attached hereto as Exhibit 5. I engaged in
this dialogue based on what I understood were Schwin’s threats to sue CSU, and in an effort to
resolve this grievance in lieu of Plaintiff initiating formal legal action.
13. A true and correct copy of a letter I received from Schwin dated November 27,
2017, is attached hereto as Exhibit 6.
14. The decision to suspend Plaintiff was made on or before January 25, 2018. There
were no conversations I took part in where anyone said that Plaintiff was being suspended for a
letter he sent on January 30, 2018, or for any threat he made to investigate CSU/CSU-Fresno.
15. | CSU-Fresno suspended Plaintiff with pay on February 5, 2018, following
allegations of workplace misconduct. I retained Bianca Samuel with the law firm of Wilke
Fleury to perform an independent workplace investigation into allegations that Plaintiff engaged
in workplace misconduct, as set forth in a suspension notice dated February 5, 2018. Martha
Wilson of Municipal Resource Group assisted Ms. Samuel. Ms. Samuel’s completed
investigation report is dated October 25, 2019. Attached as Exhibit 6 to the declaration of Nathan
Jackson is a true and correct copy of Ms. Samuel’s final report, minus any language Mr. Jackson
may have redacted or substituted for privacy reasons.
16. I provided CSU-Fresno with legal advice and services in connection with the
allegations of misconduct against Plaintiff, in anticipation that those allegations would need to be
formally investigated, and I offered legal advice during the ensuing investigation. My services in
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Declaration of Darryl Hamm in Support of Special Motion to Strike
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Fresno, California 93704
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Liebert Cassidy Whitmore
A Professional Law Corporation
5250 North Palm Ave, Suite 310
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this regard were in connection with a pending investigation and, then, an actual investigation.
As reflected in the declaration of Marylou Mendoza-Miller and the accompanying Request for
Judicial Notice, Plaintiff has filed a large number of internal and administrative complaints since
2017. I regularly communicated with his attorneys about his grievances, and during those
discussions I was often told that a failure to resolve his claims would result in legal action. After
Plaintiff was placed on paid suspension, I began corresponding with his new counsel, Zoe Palitz.
Attached hereto as Exhibit 7 is a true and correct copy of correspondence I sent to Ms. Palitz on
March 23, 2018. The purpose of Exhibit 7 was to further settlement discussions and/or mediation
efforts with Ms. Palitz in lieu of what I genuinely understood was pending litigation. In this
letter, I noted that CSU-Fresno was “interested in exploring a global resolution of any and all
claims which would entail Dr. El Kharbawy’s resignation/retirement from the University.”
17. On behalf of CSU, I participated in a mediation process provided by the California
Department of Fair Employment & Housing (“DFEH”) with Plaintiff and his attorneys, Zoe
Palitz and Eve Cervantez, on May 9, 2018. That mediation effort was not successful.
After mediation, I engaged in lengthy and difficult discussions with Mss. Palitz and Cervantez,
over numerous months. I made these efforts in an attempt to resolve the matter in anticipation
that Plaintiff's claims would otherwise end up in litigation. Mss. Palitz and Cervantez would
remind me that if the Parties could not reach a resolution of Plaintiff's alleged grievances, the
alternative was litigation.
18. | Between 2018 and 2019, Plaintiff changed counsel numerous times and I was not
able to discuss his potential litigation claims with stable counsel on the other side.
19. By June 4, 2019, Wendy Musell had established herself as Plaintiff's counsel, and
she sent a letter on this date requesting that CSU preserve all evidence related to Plaintiff. A true
and correct copy of this correspondence is attached hereto as Exhibit 8. This correspondence
indicated to me that even though he had new counsel, Plaintiff was still pursuing potential
litigation claims against CSU.
20. On July 24, 2019, my concerns over litigation from Plaintiff were borne out by
correspondence from Ms. Musell. A true and correct copy of this correspondence is attached
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Declaration of Darryl Hamm in Support of Special Motion to Strike
9870408.1 FROO7-003C0 Om IN DH BF WY
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Fresno, California 93704
Liebert Cassidy Whitmore
A Professional Law Corporation
5250 North Palm Ave, Suite 310
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hereto as Exhibit 9. In this letter, Ms. Musell detailed numerous litigation claims and purported
damages against CSU. She invited CSU to sign a tolling agreement, “Otherwise Dr. El
Kharbawy is prepared to file his civil complaint in Superior Court immediately thereafter.”
21. Given the concerns about attempting to resolve Plaintiff's litigation claims without
having to incur the time and expense entailed if he filed a lawsuit, CSU agreed to enter into a
tolling agreement on July 30, 2019. CSU entered the tolling agreement with the hope and
expectation that a second round of mediation could possibly lead to a resolution of his claims and
prevent the difficulties that ensue when a matter goes to litigation. A true and correct copy of the
Tolling Agreement is attached hereto as Exhibit 10.
22. When I recognized the difficulty of setting up and completing the mediation by the
timeline in the initial tolling agreement, I was willing to extend the tolling agreement when Ms.
Musell sent a second tolling agreement and requested that the University agree to an extension of
the tolling agreement.
23. Attached hereto as Exhibit 11 is a true and correct copy of a tolling agreement I
entered into with Ms. Musell dated November 14, 2019. I entered into this agreement in my
capacity as University Counsel, not in my personal capacity.
24. The parties subsequently experienced some delays in moving forward with the
mediation due to the pandemic, scheduling conflicts, and a change of Plaintiff's counsel from Ms.
Musell to Mr. Hillier, but eventually I agreed to have CSU participate in a second mediation on
October 9, 2020. I participated in this mediation with Mr. Hillier, but we were not able to resolve
Plaintiff's litigation demands. Not long thereafter, Mr. Hillier filed a lawsuit in Los Angeles
County Superior Court naming me as a defendant in my individual capacity. This was a surprise
to me for the reasons stated throughout this declaration, and I believe Plaintiff and Mr. Hillier are
trying to punish me for refusing to agree to their demands.
25. I provided CSU-Fresno with legal advice and services in relation to Plaintiff's
internal complaints, administrative complaints, and threats of legal action (either made by
Plaintiff or his attorneys) since at least June 2017. Ihave also been involved in attorney-client
privileged conversations and communications related to the allegations of misconduct that
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Declaration of Darryl Hamm in Support of Special Motion to Strike
9870408.1 FROO7-003Liebert Cassidy Whitmore
A Professional Law Corporation
5250 North Palm Ave, Suite 310
Fresno, California 93704
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resulted in Plaintiff being placed on paid suspension, attorney-client privileged conversations and
communications about the ensuing workplace investigation, attorney-client privileged
conversations and communications about the outcome of that investigation, attorney-client
privileged conversations and communications about Plaintiff's alleged grievances, and attorney-
client privileged conversations and communications about Plaintiff's suspensions. When I use
the term “attorney-client privilege,” I am referring to legal advice and recommendations.
26. Ihave generated material that reflects my impressions, opinions, and conclusions
in relation to Plaintiff's internal complaints, administrative complaints, threats, his suspension,
workplace investigation, and settlement. I do not waive any work product privilege that may
apply to materials I generated in my capacity as University Counsel.
I declare under penalty of perjury under the laws of the United States and the State of
California that the foregoing is true 1 correct.
Executed this day of _WY rere in Long Beach, California.
am
Pou a
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Declaration of Darryl Hamm in Support of Special Motion to Strike
9870408.1 FR007-003Exhibit 1The California State University
OFFICE OF THE CHANCELLOR
. Linda Hanson
Equal Opportunity and Whistleblower Compliance Assistant Vice Chancellor
401 Golden Shore Tel: (562) 951-5655
Long Beach, CA 90802-4210 E-mail: Ihanson@calsta‘e.edu
www.calstate.edu
August 29, 2017
A. Sameh El Kharbawy, Ph.D, MBA, M. Arch
Department of Art and Design
California State University, Fresno
5225 N. Backer Ave., M/S CA 65
Fresno, CA 93740
Via email: aelkharbawy@csufresno.edu; kevin@schwinlaw.com
Re: Response to Executive Order 929 and 1058 Complaint Submission
Dear Dr. El Kharbawy:
The Equal Opportunity/Title IX/Compliance and Whistleblower Unit has received your letter that
contains the submission of your Executive Order 929 and Executive Order 1058 complaint titled
“Unlawful and Improper Governmental Activities, Administrative Misconduct, Employment &
Contractual Violations at California State University, Fresno. [AMENDED]” on August 21, 2017,
A thorough review of the information you have submitted is ongoing. You will be notified at the
conclusion of this preliminary review whether your submission will be processed under Executive
Order 929 and/or Executive Order 1058.
Sincerely,
Lindé Hanson
Assistant Vice Chancellor
Systemwide Equal Opportunity/Title [X/Compliance
‘Al
Ce: Kevin Schwin, Esq., Schwin Law, PC (Lead Counsel)
CSU Campuses Fresno Monterey Bay San Francisco
Bakersfield Fullerton Narthridge San José
Channel Islands. Humboldt Pomona San Luis Obispo
Chico Long Beach Sacramento San Marcos
Dominguez Hills Los Angeles San Bernardino Sonoma
East Bay Maritime Academy San Diego StanislausExhibit 2From: Rudy J Sanchez
Sent: Friday, September 15, 2017 11:19 AM
To: Hamm, Darryl
Ce: Kirsten Corey
Subject: Re: draft letter requesting compliance with confidentiality obligations 4826-5349-1279 v.3.docx
Hi Darryl,
Kirsten and | have taken a look. This looks great. PY lam also attaching a
letter that Holly sent me in early August. She and | have talked and | can fill you in on that conversation if you want.Essentially, she is fine with the campus. She does want to ensure that she and the faculty and students in Art and Design
Department and the Interior Design Program are successful in the long term.
Thanks,
Rudy
On Thu, Sep 14, 2017 at 5:05 PM, Hamm, Darryl wrote:
HI Rudy,
Here is a draft of a letter that | would send to Dr. El Kharbawy’s attorney. Take a look.
| also need to contact Tina to let her know of my plan to ensure
that | am not interfering with her work.
Darryl
Rudy J. Sanchez, Ph.D.
Interim Associate Vice President for Faculty Affairs 559.278.3027
California State University, Fresno
5200 N. Barton Ave. M/S ML55
Fresno, CA 93740
Confidentiality Notice: This communication with its contents may contain confidential and/or legally privileged
information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use, or
disclosure (including forwarding) is prohibited and may violate applicable laws including the Electronic
Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all
copies of the communication.Dr. Rudy J. Sanchez
Interim Associate Vice President
Office of Faculty Affairs
August 6, 2017
Dear Dr. Sanchez:
lam writing in response to the letter | received from Deborah Adishian-Astone, dated July 5,
2017, regarding Dr. El Knarbawy’s May 2017 complaint written to the Senior Administration
of California State University, Fresno. | would like to express my deep concerns in this letter
about the false allegations he is leveling against me. | have only met Dr. El Kharbawy once. |
attended an Interior Design meeting in mid-September, 2016 which included Prof. Silvana
Polgar. | have had no other personal contact with him. He did not participate in my search
committee or attend my Portfolio Presentation to the faculty during the interviewing
process. He does not attend faculty meetings, committee meetings, or any other instance
where the rest of the department faculty are gathered. He in no way has first-hand
knowledge of me or my professional performance or qualifications. | have corresponded
once with him this past spring at Silvana Polgar’s request regarding the balances of the
Trust Accounts.
During the past year, | have heard from four different sources that on four separate
occasions Dr. El Kharbawy has made erroneous and slanderous statements that harm my
professional reputation. | have outlined these incidences below:
First, | was told by a student in September 2016 that Dr. El Knharbawy instructed
her class that they were not to attend my Portfolio Review during my interview
because he believed it was an illegal search. His statement is in direct disregard that
| was a qualified candidate for the position in which | was interviewing. My
experience and qualifications matched the requirements of that posted position.
Second, | was interviewed by the CIDA team in October 2016 regarding the
appropriateness of my hire. They were told by Dr. El Kharbawy that | did not have
the proper qualifications and that the Search Committee had not followed CIDA
hiring standards. In fact, this is a truly slanderous statement. The recent CIDA
Accreditation Report (Standard 16, p.41) found that | was the only full-time faculty
member to meet the CIDA standards, as | hold two degrees in Interior Design.
Third, in ID 152, November 2016 Dr. El Kharbawy gave his students an exam in
which a question insinuated that the PAR Document had been plagiarized by Silvana
Polgar and myself and what the student’s moral and ethical response would be to
the situation if another plagiarized their work. Two students came to me distressed
that | would do such a thing. | told them the only item | wrote for the PAR was myBiography. | truly feel that this is a slanderous situation that took forethought and is
malicious. | believe that Dr. El Knarbawy has stepped over the line to one that is
against any ethical standard that a professor in this institute should be allowed to
make. This is truly an unethical action.
Lastly, | believe Dr. El Kharbawy’s letter dated June 9", 2017 confirms that he has
repeatedly stated that | have been hired illegally, questioning my qualifications and
legitimacy as a faculty member. This is entirely false, and by his continuing use of
this verbiage it harms not only myself and my professional reputation but degrades
the Department of Art and Design and the area of Interior Design in our efforts to
improve the quality and standards of the program as well as recruitment of future
quality students.
This pattern of behavior from Dr. El Kharbawy has resulted in a hostile work environment
for me. | also believe that his manipulation of the students to repeat his falsehoods is
inexcusable. As the situation persists, | feel verbally attacked, professionally belittled, and
unsure of my tenure status at the University. Consequently, | am requesting that a letter of
cease-and-desist be sent to Dr. El Kharbawy on my behalf.
Thank you for your time, support, and prompt attention to this matter.
Sincerely:
Holly SowlesExhibit 3ANNEX-3
Re) The California State University
OFFICE OF THE CHANCELLOR
Office of General Counsel Dany! L. Hamm
401 Golden Shore, 4th Floor University Couns?
Lang Bsach, CA 90802-4210 ‘Phone No. (562) 951-4500
www. calstate. edu Fax (562) 951-4956 or 4959
dhamméicelstete ody
September 15, 2017
By E-mail (KEVIN@SCHWINLAW,COM) and U.S. Mail
Kevin Schwin, Esq.
Schwin Law, PC
1220 East Olive Avenue
Fresno, CA 93728
Re: Kharbawy Complaints
OGC File No. 17-0787
Dear Mr. Schwin:
1 am University Counsel for California State University, Fresno, and am writing on behalf of the
University. Dr. A. Sameh El Kharbawy has recently filed Whistleblower Complaints pursuant to
Califomia State University (CSU) Executive Orders 929 and 1058. In order to review the merits
and pursue claims in a Whistleblower Investigation, maintaining a level of privacy and
confidentiality are of the utmost importance. In the aforementioned CSU Executive Orders, they
both emphazise the importance of maintaining the “privacy” and “confidentiality” of the
individuals and matters that are the subject of the investigation. Having the cooperation and
privacy of all CSU employees, including Complainants, to respect the need for confidentiality and
privacy are critical to the success of CSU’s Whistleblower Investigations.
We have concems that your client is not respecting and valuing the need for privacy and
confidentiality. We have received reports that Dr. El Kharbawy is openly discussing issues
involved in his Whistleblower Complaints with students and other third parties. In particular, Dr.
El Kharbawy has made allegations regarding Ms. Holly Sowles as part of his Whistleblower
Complaints, and that he is either discussing the subject of these allegations with students or making
reference to them in written materials provided to his students. If true, these discussions and
written references are in direct violation of Dr. El Kharbawy’s obligation to cooperate with
investigators and maintain confidentiality and privacy regarding the subject of his allegations.
The importance of confidentiality in these investigations cannot be overstated. Many
Whistleblower Investigations involve sensitive personnel matters, and therefore privacy and
confidentiality are at a premium. In addition, in the midst of an investigation, the open discussions
of allegations can compromise the ability of the investigator to complete an investigation with an
assurance of fairness. For example, a breach of confidentiality can serve to bias potential
witnesses, and have other negative impacts that impugn the integrity of the investigation.
CSU CAMPUSES Freano Monterey Bay San Francisco
Bakersfield Fulierton Northridge ‘San José
Channel Islands ‘Humboldt Pomona ‘San Luis Obispo
Chico Long Beach ‘Sacramento San Marcos
Dominguez Hits Los Angeles San Bemardino Sonoma
East Bay Marktime San Diego ‘Stanislaus
ram elie requasang comptanca wth confxlenhakty obtg alicns 4826-5349-1279 v 6 docxPAYI| The California State University
OFFICE OF THE CHANCELLOR
Kevin Schwin, Esq.
September 15, 2017
Page 2
Further, in the early stages of his complaint, Dr. El Kharbawy has made allegations that need to
be substantiated through the preliminary inquiry process to determine if they have any merit. Until
such substantiation is complete and publicly released, any discussion of these allegations with
students and other third parties is highly irresponsible. Such discussions are also harmful, as they
could expose the University to defamation and harassment charges.
Asa result of these concems, the University requests that you instruct your client to comply with
his confidentiality ard privacy obligations under CSU Executive Orders 929 and 1058. To satisfy
this obligation, he needs to refrain from having any further discussions about his Whistleblower
allegations, including those regarding Ms. Sowles, with students and other third partics who do
not have a business reason to know. This request is not intended to impede your client's ability to
communicate with his union representatives, legal counsel, the Whistleblower Investigator, or
others who need the information for business purposes to facilitate completion of the CSU
Chancellor’s Office Whistleblower preliminary inquiry to determine whether Dr. El Kharbawy’s
allegations rise to the level of Executive Orders 929 and/or 1058 Complaints.
We thank you in advance for working with your client to address these urgent concerns. J am
hopeful that this notice regarding his possible violations of the CSU Executive Orders and our
reasonable request for remedying the problem will be sufficient to resolve this issue.
Please confirm with me at your earliest convenience your receipt of this letter, and your client’s
willingness to abide by the terms of the University’s request.
Sincerely,
Bent ip —
University CounselExhibit 4The California State University
OFFICE OF THE CHANCELLOR
Office of General Counsel Dany L. Harm
401 Golden Shore, 4th Floor University Counsel
Long Beach, CA 90802-4210 Phone (562) 951-4500
\Wwcalstateedu Fax (562) 951-4956 or 4959
dhamm@ calstate.edu
November 16, 2017
By E-Mail (kevin@ schwinlaw.com)
Schwin Law, PC
1220 E. Olive Ave.
Fresno, CA 93728
Re: — University Offer to Dr. A Sameh El Kharbawy
OGC File No. 17-0787
Thank you for agreeing to direct all of your future comespondence involving University
Management, including the President and Provost, to my office. I would also request that you copy
my office on any correspondence that you send to non-management personnel to the extent it
involves matters related to the employee's official duties. The University’s interest will most
likely be implicated in such matters and as University counsel I need to be informed about them.
With respect to Dr. Zelezny’s original offer to Dr. El Kharbawy, he did indeed reject her offer.
While the written record may show that he wrote Dr. Zelezny back and provided a counter offer,
he did so only after rejecting Dr. Zelezny’s offer. Dr. Zelezny never indicated that she would
accept his counter-offer and never adopted any of its terms to the extent they differed from those
of her original offer.
In this instance, Dr. El Kharbawy has again rejected Dr. Zelezny’ s offer and has instead unearthed
much of his prior counteroffer from last year. In his counteroffer that was included in your
correspondence dated November 10, 2017, he has countered Dr. Zelezny’ s offer of a Directorship
by making it a joint appointment where he would serve as both a Director and retain faculty-
teaching responsibilities. Dr. Zelezny never offered anything other than a full-time Directorship
position. She did not offer a joint appointment at any point in time. She made the offer as a full
faculty buy-out where Dr. El Kharbawy would serve solely in the capacity as a Director. Likewise,
there wes no offer forincreased compensation in the form of additional employment per the terms
of the CFA collective bargaining agreement. Further, there was no agreement to provide a letter
of appointment without a meeting of minds as to the framework of job duties and responsibilities
of the Director position. Dr. El Kharbawy may have raised these issues and wrote his own
interpretation of what he wanted as a counteroffer, but Dr. Zelezny never adopted this
interpretation verbally or in writing.
CSU CAMPUSES Fresno Monterey Bay San Francisco
Bakersfield Fullerton Northridge San] osé
Channel Islands Humboldt Pomona San Luis Obispo
Chico Long Beach Sacramento San Marco
Dominguez Hills Los Angeles San Bernardino Sonoma
East Bay Maritime San Diego StanislausThe California State University
OFFICE OF THE CHANCELLOR
Kevin Schwin
November 16, 2017
Page 2
Regarding his right to a letter of appointment, the Provost would have never agreed to provide Dr.
El Kharbawy with such a letter pending a clear meeting of the minds on the framework of the job
duties and responsibilities as she has done numerous times with other faculty. Hence, the
University will not issue a letter of appointment until the parties reach a mutual understanding on
a framework for the specific job duties, pay level and responsibilities of this Director position.
This is the standard practice used by the Provost and she intends to adhere to her standard approach.
I will again remind you of Dr. Zelezny’s offer to Dr. El Kharbawy:
Develop partnerships with entities in Fresno and the Central Valley to envision an
innovative and sustainable future for Fresno and Califomia’s Central Valley and to
improve:
¢ Urban and Strategic Planning-with an emphasis not only on policy but master
Plans that advance the architecture of cities, neighborhoods and communities in
the Central Valley.
¢ Environment and Energy Policy-examining environmental challenges such as
Natural resource management, and greenhouse gas reduction.
« Access and Use of Technology-including formulation of public policies that
encourage innovation and adoption of new technologies in homes, schools and
businesses in the Central Valley.
This position will be a one-year, full-time 12-month faculty appointment, with the
opportunity to renew annually. The initial term will run from January 3, 2018 to
January 3, 2019. I would also include summer faculty development funds for
conference travel
This offer is slightly modified from the one described in my letter dated November 8, 2017. This
offers provides Dr. El Kharbawy witha full 12-month appointment as opposed to a standard faculty
appointment that is typically a 10-month appointment. By having a 12-month appointment instead
of a 10-month appointment, Dr. El Kharbawy will eam more money than he does in his current
faculty appointment, which is an academic year (10 month) appointment. Otherwise, the terms of
the offer remain the same as set forth in my prior correspondence. The University has never
offered Dr. El Kharbawy a joint appointment and does not do so now. Dr. Zelezny wants the full
energy and focus of Dr. El Kharbawy on advancing the goals and objectives of the new Institute.The California State University
OFFICE OF THE CHANCELLOR
Kevin Schwin
November 16, 2017
Page 3
Dr. Zelezny will still keep this offer open for Dr. El Kharbawy until December 1, 2017. Like other
academic Directors, this position will report to the Vice Provost, Dr. Dennis Nef. If he accepts the
offer, Dr. Zelezny requests that he would start working on January 3, 2018.
ye
University Counsel
EnclosureExhibit 5Kevin Schwin, Esq.
SCHWINLAW, PC
1220 E. OLIVE AVE.
FRESNO, CALIFORNIA 93728,
(559) 715-ATTY (2889) - TEL.
(559) 221-6812 - FAX
KEVIN@SCHWINLAW.COM - EMAIL
November 17, 2017
VIA EMAIL and CERTIFIED MAIL
Daryl L. Hamm
University Counsel
Office of General Counsel
Califomia State University
401 Golden Shore, 4th Floor
Long Beach, CA 90802-4210
dhamm@calstate.edu
Re: Dr. Zelezny’s Offer to Dr. A. Sameh El Kharbawy
1 am in receipt of your letter dated November 16, 2017, with the subject line: University
Offerto Dr. A. Sameh El Kharbawy, OCG File No. 17-0787.
On the matter of Dr. Zelezny’s offer to Dr. El Kharbawy to serve as Director of a new
Univesity institute of innovation, sustainability and urban policy (hereafter “Institute”): You
allege that Dr. El Kharbawy has now twice rejected Dr. Zelezny’s offer. This is false. Dr. El
Kharbawy has already communicated to Dr. Zelezny that he was and remains interested in this
position. On his behalf, I have reiterated his interest inmy November 9, 2017 letterto you. Iam
confirming this for the third time here.
Similady, claims about “counter offers’ by Dr. El Kharbawy are also false. The terms of
Dr. Zdezny’s offer were established in negotiations and communications between Dr. El
Kharbawy and Dr. Zelezny in December 2015 and January 2016. The evidence shows that Dr.
Zelezny and Dr. El Kharbawy agreed that he would serve as the inaugural “Director” of the
Institute while maintaining his position as full professor at the Department of Art and Design.
‘We can also establish that Dr. Zelezny agreed to provide Dr. El Kharbawy with a contract (an
“appointment letter’) “shortly” after her last comrespondence with El Kharbawy on the matter
(on January 26, 2016). And that Dr. Zelezny offered to model Dr. El Kharbawy’s contract on.
the Director of CSU-Fresno’s Lyles Center for Innovation and Entrepreneurship (who
maintained his duties as a professor while also serving as Director). It is dear that Dr. Zdezny
has refused to perform that offer in retaliation for Dr. El Kharbawy’s protected activities. The
Circumstances surrounding Dr. Zelezny’s “offer”; its timing and her failure to perfonm it are
troubling under the circumstances.Danyl Hanm
University Counsel
Califomia State University
November 17, 2017
Page 2.
Despite several requests, Dr. Zelezny still fails to provide any record that shows that this
alleged Institute actually exists, or that it was officially formed (according to the stipulations of
CSU-Fresno’s APM 110 and EO 751). There is no evidence that this Institute exists or ever
existed. It is clear to us today that Dr. El Kharbawy wes offered a “leadership position” in an.
Institute that does not yet exist, and that Dr. Zelezny’ s offer was never bona fide. CSU-Fresno,
as you know, is a publicly funded institution. It would be a waste of public funds for CSU-
Fresno to appoint Dr. El Kharbawy as Director of an Institute that has not been officially fommed.
per Univesity policy.
Further, although Dr. El Kharbawy has have given Dr. Zelezny the benefit of every doubt,
nothing assures us that her offer (in its original or “slightly modified” versions) are bona fide
employment offers. At a minimum, Dr. Zelezny should have been able to provide us with the
following information:
1. The Institute's official title and description;
2. The temms of Dr. El Kharbawy’s appointment and his compensation;
3. The Institute’ s charge and objectives;
4. The Institute's projected budget and funding sources;
4, The Institute’ s allocated aciministrative support and resources;
5. The Institute’ s regulatory frameworks (legal, accounting, etc.)
Dr. Zedezny’s unwillingness to provide the most basic information about her alleged
Institute to Dr. El Kharbawy is telling. She has, so far, refused to tell Dr. El Kharbawy what the
Institute is officially called; where it is placed at the University; the composition of its advisory
committee; its budget and funding sources; the job description of the Institute’s Director (and.
any other personnel assigned to assist him); the specifics of the Director's compensation
package, etc.
Dr. Zdlezny’s “slightly modified’ offeris too vague and lacks the material terms necessary
to constitute avalidjob offer. The letter states things suchas, “Dr. El Kharbawy will eam more
money than he does in his current employment’, and that Dr. Zelezny “would also include
summer faculty development funds for conference travel.” No reasonable employee would.
constue this as constituting a serious offer without also knowing the job duties, job description,
exactly how much pay is being offered, etc.
Dr. Zedezny understands that University positions are State jobs that must be created and
filled lawfully. University positions should have clear descriptions, classifications, budgets and
funding lines, code numbers, responsibilities, clearly defined supervisory, reporting and
evaluation structures, etc. Communicating those details to Dr. El Kharbawy is not only
necessary; it is imperative. Similady, Dr. El Kharbawy’s contract should be specific and
detailed.Danyl Hanm
University Counsel
Califomia State University
November 17, 2017
Page3,
T had hoped that Dr. Zelezny could be persuaded to follow through on her agreement with
Dr. El Kharbawy. Instead, Dr. Zelezny refutes the facts by alleging first that Dr. El Kharbawy
has rejected her offer(s) - which he never has - and then that he made counter offers - which he
also never has. He has repeatedly indicated his interest and is simply waiting for the letter of
appointment, job description, and additional information that Dr. Zelezny previously agreed to
provide. Without evidence of the Institute's existence, and a bona fide letter of appointment
from the University, we have no reason to believe Dr. Zelezny intends to perform on her
agreement. We intend to initiate legal action against Dr. Zelezny and the University over this
and other issues. We will take additional steps (as we deem necessary) to pursue Dr. El
Khatbawy’s rights and adequate remedies for his damages in this and other matters.
This letter is not intended by us, and should not be construed by you, as a waiver or
relinquishment of any other rights and remedies that our client may have against the University
in this or any other matter. Dr. El Kharbawy specifically reserves all such rights and remedies
whether at law or in equity, under applicable laws.
Sincerely,
SchwinLaw, PC
Ko debo
Kevin Schwin
Attomey at Law
- A. Sameh El Kharbawy, Ph.D
Professor of Art and Design
Califomia State University, FresnoExhibit 6Kevin Schwin, Esq.
SCHWINLAW, PC
1220 E. OLIVE AVE.
FRESNO, CALIFORNIA 93728,
(559) 715-ATTY (2889) - TEL.
(559) 221-6812 - FAX
KEVIN@SCHWINLAW.COM - EMAIL
November 27, 2017
VIA EMAIL and CERTIFIED MAIL
Danyl L. Hamm
Office of General Counsel
Califomia State University
401 Golden Shore, 4th Floor
Long Beach, CA 90802-4210
dhamm@calstate.edu
Re: Dr. A. Sameh E] Kharbawy
As you know I represent Dr. El Kharbawy in connection with his pending disputes with
CSU and CSU Fresno, which remain unresolved. To summarize, the disputes involve (but are
not limited to) the following:
e CSU-Fresno’s unlawful hiring practices as evident, for example, in the search and
selection process that resulted in the appointment Ms. Holly Sowles to the Department
of Art and Design in 2016.
e Ms. Sowles’s résun¥ fraud in obtaining a teaching position at CSU-Fresno, and CSU-
Fresno’s subsequent appointment of Sowles into a “Coordinator” position that does
not exist in the University’s various job classifications.
e Dr. Lynnette Zedlemny’s sham offer - in December 2015/January 2016— to Dr. El
Kharbawy to a leadership position at CSU- Fresno, ina non-existent Institute, while a
Witness in complaints against her and other administrators
e Dr Lynmetie Zelemny’s sham (re)-offer - in November 2017— to Dr. El Kharbawy
to aleadeship position at CSU-Fresno, again inanon-existent Institute, following his
complaints and protected disclosures against her and other administrators at CSU-
Fresno.Danyl Hanm
University Counsel
Califomia State University
November 27, 2017
Page 2.
Dr. Lynette Zelezny’s failure to fulfill her agreement to appoint Dr. El Kharbawy as
an Institute Director under a joint appointment at CSU-Fresno.
Harassing, discriminatory, retaliatory conduct at CSU-Fresno, which has targeted Dr.
El Kharbawy.
Acts of moral turpitude, abuses of administrative authority and ongoing misconduct
by members of the University’s administration (Dr. Xuanning Fu and others).
Willful and Negligent misrepresentation, plagiarism and falsification of official
reports and records, including University and accreditation reports, as evident in the
cese of the 2016 Accreditation Report submitted to the Council for Interior Design.
Accreditation.
Breach of Dr. El Kharbawy’s December 17, 2012 settlement agreement with CSU-
Fresno, and CSU-Fresno’s commitment (under that agreement) to pemmanently enjoin.
the Chair of the Department of Art and Design, the Dean of the College of Arts and
Humanities (among other individuals) from having any role in, or involvement with
inDr. El Kharbawy’s employment, including his instructional assignments, workload,
evaluations, etc.
CSU-Fresno’s violations of various requirements of the Bagley-Keene Act, as evident
in Dr. Jiménez-Sandoval’s “Council of Chairs” meetings, Mr. Martin Valencia’s
Department meetings, among other University meetings.
CSU-Fresno’s failure to comply with CPRA requests.
The failure of the University’s administration to prevent harassment, retaliation,
discrimination and hostility in Dr. El Kharbawy’s work environment or to investigate
and remedy those abuses when reported.
Dr. El Kharbawy raises serious questions about the administration of CSU-Fresno, and we
have strong evidence supporting his complaints. We have filed complaints with the Department
of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity
Commission (EEOC), and we are taking additional legal steps to protect Dr. El Kharbawy’s
Tights and prosecute his grievances against CSU-Fresno, and against the above named members
of the administration (induding, but not limited to, Dr. Lynnette Zelezny, Dr. Jiménez-
Sandoval, Dr. Xuanning Fu, and Mr. Martin Valencia).Danyl Hanm
University Counsel
Califomia State University
November 27, 2017
Page3,
Wewould like to exhaust all avenues to an informal resolution before escalating this matter
legally. And to those ends, I would like to invite you to a telephone conversation to explore
whether we can discuss and resolve some or all of the above issues. If you are open to this
invitation, please advise of your availahility on or after December 6, 2017.
Sincerely,
SchwinLaw, PC
Kevin Schwin
Attomey at Law
- A. Sameh El Kharbawy, Ph.D
Professor of Art and Design
Califomia State University, FresnoExhibit 7The California State University
OFFICE OF THE CHANCELLOR
Office of General Counsel Darryl L. Hamm
401 Golden Shore, 4th Floor University Counsel
Long Beach, CA 90802-4210 Phone No. (562) 951-4500
www.calstate.edu Fax (562) 951-4956
dhamm@calstate.edu
March 23, 2018
By E-Mail (zpalitz@altshulerberzon.com) and U.S. Mail
Zoe Palitz
Altshuler Berzon LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Re: Dr. El Kharbawy Discrimination and Retaliation Complaint
OGC File No. 17-0787
Dear Zoe:
I am responding to your letter dated March 16, 2018, requesting a confirmation as to California
State University, Fresno’s (“the University” and “Fresno State”) interest in pursuing an informal
resolution of Dr. El Kharbawy’s pending claims.
The University is definitely interested in considering an informal resolution, which addresses the
mutual long-term interests of both parties. Although the University certainly understands Dr. El
Kharbawy’s goals to continue his teaching and scholarship work at Fresno State, the University is
interested in exploring a global resolution of any and all claims which would entail Dr. El
Kharbawy’s resignation/retirement from the University.
If Dr. El Kharbawy has an interest in this type of a resolution, the University is willing to engage
in discussions with you regarding the terms of his resignation/retirement. Should these discussions
fail to lead to a full resolution of all claims, the University administration has expressed an interest
in identifying a mutually agreed upon mediator, and initiating a mediation within the next 30 to 60
days.
In the intervening time, the University will continue both of its investigations related to Dr. El
Kharbawy. As a showing of good faith, and as we move forward in informal discussions or a
potential mediation, if those discussions are unsuccessful, the University respectfully requests that
Dr. El Kharbawy continue to cooperate fully and meet with University investigators for any
interviews, and provide them with all pertinent documents that they may ask him to produce. Dr.
El Kharbawy is currently on paid administrative leave, and under the specific terms of such a leave,
he is obligated to be available for any meetings with the University when requested by University
administration or those working on behalf of the University. His leave is fully paid, and he should
not be using his leave as an excuse for not meeting with University investigators.
CSU CAMPUSES Fresno Monterey Bay San Francisco
Bakersfield Fullerton Northridge San José
Channel Islands Humboldt Pomona San Luis Obispo
Chico Long Beach Sacramento San Marcos
Dominguez Hills Los Angeles San Bernardino Sonoma
East Bay Maritime San Diego Stanislaus
Response to PalitzThe California State University
OFFICE OF THE CHANCELLOR
Zoe Palitz
March 23, 2018
Page 2
Please respond to me by March 30, 2018 to confirm your interest in initiating discussions
regarding potential terms for Dr. El Kharbawy’s resignation/retirement, and a possible follow-up
mediation session, should these initial negotiations not lead to a full resolution.
Additionally, I would ask that you also respond and confirm by March 30, 2018 your client’s
willingness to meet with the University’s investigators while he is on paid administrative leave.
Sincerely,
Det ie-—
University Counsel
ec: Lynnette ZeleznyExhibit 8ELISA J, STEWART*
le STEWART & MUSELL, LLP
ATTORNEYS AT LAW
2200 Powell Street, Suite 440
Emeryville, California 94608
June 4, 2019
VIA EMAIL AND FED EX OVERNIGHT
Marsha Baum, J.D.
Associate Vice President of Faculty Affairs
Henry Madden Library, 4" Floor
Haak Administrative Center
5200 N. Barton Ave., M/S ML55
Fresno, CA 93740
baum@mail.fresnostate.edu
Marylou Mendoza-Miller
Associate Vice President of Human Resources
California State University, Fresno
Joyal Administration Building
Room 211 5150 N. Maple Avenue M/S JA41
Fresno, CA 93740
maryloum@esufresno,edu
Esther Gonzalez
Confidential Administrative Analyst
Preview
Liebert Cassidy Whitmore A Professional Law Corporation $250 North oO YN DA RB BW NY eS NN YN YN NN KY Bee we ee Be Be ee oI DA A KF BH F SO eH AY DAH FB BH SF DS Jesse J. Maddox, Bar No. 219091 jmaddox@lewlegal.com Nathan T. Jackson, Bar No. 285620 njackson@lewlegal.com LIEBERT CASSIDY WHITMORE A Professional Law Corporation 5250 North Palm Ave, Suite 310 Fresno, California 93704 Telephone: 559.256.7800 Facsimile: 559.449.4535 E-FILED 11/18/2021 12:31 PM Superior Court of California County of Fresno By: Estela Alvarado, Deputy Attorneys for Defendants BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY, DARRYL L. HAMM, and XUANNING FU SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO A. SAMEH EL KHARBAWY, Plaintiff, Vv. 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, Defendant. I, Darryl Hamm, declare as follows: Case No.: 21CECG02214 [ASSIGNED FOR ALL PURPOSES TO HON. KIMBERLY GAAB, DEPT. 503] Complaint Filed: October 23, 2020 DECLARATION OF DARRYL HAMM IN SUPPORT OF HIS SPECIAL MOTION TO STRIKE PLAINTIFF A. SAMEH EL KHARBAWY’S COMPLAINT (*Exempt from filing fees pursuant to Gov. Code, § 6103.) 1. Ihave personal knowledge of each matter stated herein, and if called upon to do so, I could and would competently testify to each matter set forth herein. 2. Iam currently employed as University Counsel for California State University, Fresno (“CSU-Fresno”), and I have held this position since 2016. Iam a licensed attorney. In my role as University Counsel, I am responsible for providing, managing, and coordinating legal services for CSU-Fresno, and advising its administrators on issues related to anticipated and pending litigation, including allegations of misconduct made by, or against, faculty. My job duties also encompass direct negotiations or discussions with legal representatives of faculty 1 Declaration of Darryl Hamm in Support of His Special Motion to Strike 9870408.1 FROO7-003310 Liebert Cassidy Whitmore A Professional Law Corporation Fresno, California 93704 5250 North Palm Ave, Sui Dn unk WN 10 ll 12 13: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 members who have raised complaints or grievances against CSU-Fresno. se Any actions, decisions, conversations, or communications I took part in that pertained to Plaintiff all pertained to my role as University Counsel for CSU-Fresno. 4. I have never mistreated Plaintiff on the basis of his race, ethnicity, or national origin, and I never authorized or approved of any person doing so. I have never been Plaintiff's supervisor. I have never conspired with any person to mistreat Plaintiff on the basis of race, ethnicity, or national origin, or to discriminate or retaliate against him on account of any complaint he has ever made that accused CSU, CSU-Fresno (or any of its employees) of harassment, discrimination, retaliation, or other misconduct. I did not make the decision to place Plaintiff on paid suspension, and I have never had authority to suspend Plaintiff. I was not involved in the accreditation effort of CSU-Fresno’s Interior Design program in 2016-2017. Iam not (and have never been) responsible for Plaintiff's rate of pay at CSU-Fresno. 5t Ihave been involved in direct communications with a number of Plaintiff’s legal representatives over the years, including attorneys Kevin Schwin, Wendy Musell, Zoe Palitz, and Plaintiff's current legal representative, Andrew Hillier. The purpose of these communications pertained to Plaintiff's internal complaints and grievances, CSU-Fresno’s investigations into Plaintiffs complaints and complaints against him, and settlement discussions. 6. Since at least the summer of 2017, all of my communications with Plaintiff's attorneys have been in anticipation of imminent litigation. On June 9, 2017, Plaintiff's former counsel, Kevin Schwin, sent a letter to CSU-Fresno advising that Plaintiff had retained his office to represent him in employment matters at CSU-Fresno. I reviewed the letter, which stated that Plaintiff engaged in protected activities and “recently experienced a progressively hostile work environment, and an unmistakable pattern of harassment and retaliation.” Schwin’s letter also said that Plaintiff “asked our office to take the legal steps necessary to investigate and adjudicate his grievances, and to pursue his rights. We have initiated this process.” The same day, Schwin sent CSU-Fresno an evidence preservation letter, which I reviewed. I understood the purpose of this letter was to demand that CSU-Fresno preserve potentially relevant evidence, because Plaintiff was planning to sue CSU. 2 Declaration of Darryl Hamm in Support of Special Motion to Strike 9870408.1 FROO7-003oOo ON DH HU PF WY ee Uk Bw NHN SF Oo Fresno, California 93704 Liebert Cassidy Whitmore A Professional Law Corporation 5250 North Palm Ave, Suite 310 ben YY YN YN YN NR YN Y= eK oN A A FF BHF FO wH AKA De On August 16, 2017, Plaintiff submitted a complaint titled “Unlawful and Improper Governmental Activities, Administrative Misconduct, Employment & Contractual Violations at California State University, Fresno.” I have reviewed the complaint, which purports to be pursuant to CSU Executive Orders 929 and 1058. Executive Order 1058 is CSU’s former complaint process for reporting improper government activities, and was intended to fulfill the requirements of Government Code section 8547.12(a) of the California Whistleblower Protection Act (“WPA”) by establishing a complaint procedure for employees who claim they have experienced retaliation for having made a protected disclosure. Executive Order 1058 has been replaced by Executive Order 1116. 8. Linda Hanson, CSU’s former Assistant Vice Chancellor for Human Resources, was charged with investigating and/or responding to Plaintiff’s Executive Order 929/1058 complaint. Ms. Hanson sent Plaintiff a letter dated August 29, 2017, informing him that that the Equal Opportunity/Title Ix/Compliance and Whistleblower Unit received his complaint, and that a thorough review of the information he submitted was ongoing. As University Counsel for CSU-Fresno, I received a copy of the letter. A true and correct copy of this correspondence is attached hereto as Exhibit 1. 9. In his August 16, 2017, Executive Order 929/1058 complaint, Plaintiff claims one of his new female colleagues, Holly Sowles, had fraudulent credentials and was hired improperly. In September of 2017, I was informed by the Interim AVP of Faculty Affairs, Rudy Sanchez, that Plaintiff was discussing allegations in his Executive Order 929/1058 complaint with his students. On September 15, 2017, AVP Sanchez also sent me an email, with a letter attached from Professor Holly Sowles, which included a description of an incident in which Plaintiff allegedly brought up subjects that were a part of his whistleblower complaint in at least one of his classes. A true and correct copy of the email from AVP Sanchez dated September 15, 2017, with the attached letter from Holly Sowles, dated August 6, 2017 is attached hereto as Exhibit 2. 10. In response to Exhibit 2 and my conversations with AVP Sanchez, I sent a letter to Schwin dated September 15, 2017, addressing these concerns and to ensure the confidentiality obligations in Executive Order 1058 were being honored while Plaintiff's claims were being 3 Declaration of Darryl Hamm in Support of Special Motion to Strike 9870408.1 FROO7-0030 Oo YN DH RF WHY Soe Se ee un F&F Ww NY KF SO Liebert Cassidy Whitmore Fresno, California 93704 A Professional Law Corporation 5250 North Palm Ave, Suite 310 bN YY YN YP NY NN Yee Se eS oI A A FB BN KF FG OD we AID investigated. A true and correct copy of this letter is attached hereto as Exhibit 3. Le On September 21, 2017, Plaintiff sent CSU an “Addendum” to his August 2017 complaint. It attacked me for my September 15th letter, which he included as an exhibit. 12. In November 2017, I asked Schwin — who had been sending correspondence to CSU administrators directly — to direct future correspondences to me. J also began a dialogue with him about Plaintiff's contention that CSU-Fresno’s former Provost, Dr. Lynnette Zelezny, denied/failed to honor a leadership opportunity in 2016. This is one of the issues that Plaintiff raised in his August 2017 Executive Order 929/1058 complaint. A true and correct copy of a letter I sent to Schwin on November 16, 2017, on this topic is attached hereto as Exhibit 4. A true and correct copy of Schwin’s response to Exhibit 4 is attached hereto as Exhibit 5. I engaged in this dialogue based on what I understood were Schwin’s threats to sue CSU, and in an effort to resolve this grievance in lieu of Plaintiff initiating formal legal action. 13. A true and correct copy of a letter I received from Schwin dated November 27, 2017, is attached hereto as Exhibit 6. 14. The decision to suspend Plaintiff was made on or before January 25, 2018. There were no conversations I took part in where anyone said that Plaintiff was being suspended for a letter he sent on January 30, 2018, or for any threat he made to investigate CSU/CSU-Fresno. 15. | CSU-Fresno suspended Plaintiff with pay on February 5, 2018, following allegations of workplace misconduct. I retained Bianca Samuel with the law firm of Wilke Fleury to perform an independent workplace investigation into allegations that Plaintiff engaged in workplace misconduct, as set forth in a suspension notice dated February 5, 2018. Martha Wilson of Municipal Resource Group assisted Ms. Samuel. Ms. Samuel’s completed investigation report is dated October 25, 2019. Attached as Exhibit 6 to the declaration of Nathan Jackson is a true and correct copy of Ms. Samuel’s final report, minus any language Mr. Jackson may have redacted or substituted for privacy reasons. 16. I provided CSU-Fresno with legal advice and services in connection with the allegations of misconduct against Plaintiff, in anticipation that those allegations would need to be formally investigated, and I offered legal advice during the ensuing investigation. My services in 4 Declaration of Darryl Hamm in Support of Special Motion to Strike 9870408.1 FROO7-003oOo ND KH BF WY BRB GN FS Fresno, California 93704 a Liebert Cassidy Whitmore A Professional Law Corporation 5250 North Palm Ave, Suite 310 NbN NN NY N N NY DY Ee Ye KS oN A A KR Bw NH F&F SG ODO wHw AD this regard were in connection with a pending investigation and, then, an actual investigation. As reflected in the declaration of Marylou Mendoza-Miller and the accompanying Request for Judicial Notice, Plaintiff has filed a large number of internal and administrative complaints since 2017. I regularly communicated with his attorneys about his grievances, and during those discussions I was often told that a failure to resolve his claims would result in legal action. After Plaintiff was placed on paid suspension, I began corresponding with his new counsel, Zoe Palitz. Attached hereto as Exhibit 7 is a true and correct copy of correspondence I sent to Ms. Palitz on March 23, 2018. The purpose of Exhibit 7 was to further settlement discussions and/or mediation efforts with Ms. Palitz in lieu of what I genuinely understood was pending litigation. In this letter, I noted that CSU-Fresno was “interested in exploring a global resolution of any and all claims which would entail Dr. El Kharbawy’s resignation/retirement from the University.” 17. On behalf of CSU, I participated in a mediation process provided by the California Department of Fair Employment & Housing (“DFEH”) with Plaintiff and his attorneys, Zoe Palitz and Eve Cervantez, on May 9, 2018. That mediation effort was not successful. After mediation, I engaged in lengthy and difficult discussions with Mss. Palitz and Cervantez, over numerous months. I made these efforts in an attempt to resolve the matter in anticipation that Plaintiff's claims would otherwise end up in litigation. Mss. Palitz and Cervantez would remind me that if the Parties could not reach a resolution of Plaintiff's alleged grievances, the alternative was litigation. 18. | Between 2018 and 2019, Plaintiff changed counsel numerous times and I was not able to discuss his potential litigation claims with stable counsel on the other side. 19. By June 4, 2019, Wendy Musell had established herself as Plaintiff's counsel, and she sent a letter on this date requesting that CSU preserve all evidence related to Plaintiff. A true and correct copy of this correspondence is attached hereto as Exhibit 8. This correspondence indicated to me that even though he had new counsel, Plaintiff was still pursuing potential litigation claims against CSU. 20. On July 24, 2019, my concerns over litigation from Plaintiff were borne out by correspondence from Ms. Musell. A true and correct copy of this correspondence is attached 5 Declaration of Darryl Hamm in Support of Special Motion to Strike 9870408.1 FROO7-003C0 Om IN DH BF WY Se UB YW NY SF Oo Fresno, California 93704 Liebert Cassidy Whitmore A Professional Law Corporation 5250 North Palm Ave, Suite 310 NbN Ye NY YW YN NR NY DY ee S&S CoQ DAA BF BNH F&F GO wA AD hereto as Exhibit 9. In this letter, Ms. Musell detailed numerous litigation claims and purported damages against CSU. She invited CSU to sign a tolling agreement, “Otherwise Dr. El Kharbawy is prepared to file his civil complaint in Superior Court immediately thereafter.” 21. Given the concerns about attempting to resolve Plaintiff's litigation claims without having to incur the time and expense entailed if he filed a lawsuit, CSU agreed to enter into a tolling agreement on July 30, 2019. CSU entered the tolling agreement with the hope and expectation that a second round of mediation could possibly lead to a resolution of his claims and prevent the difficulties that ensue when a matter goes to litigation. A true and correct copy of the Tolling Agreement is attached hereto as Exhibit 10. 22. When I recognized the difficulty of setting up and completing the mediation by the timeline in the initial tolling agreement, I was willing to extend the tolling agreement when Ms. Musell sent a second tolling agreement and requested that the University agree to an extension of the tolling agreement. 23. Attached hereto as Exhibit 11 is a true and correct copy of a tolling agreement I entered into with Ms. Musell dated November 14, 2019. I entered into this agreement in my capacity as University Counsel, not in my personal capacity. 24. The parties subsequently experienced some delays in moving forward with the mediation due to the pandemic, scheduling conflicts, and a change of Plaintiff's counsel from Ms. Musell to Mr. Hillier, but eventually I agreed to have CSU participate in a second mediation on October 9, 2020. I participated in this mediation with Mr. Hillier, but we were not able to resolve Plaintiff's litigation demands. Not long thereafter, Mr. Hillier filed a lawsuit in Los Angeles County Superior Court naming me as a defendant in my individual capacity. This was a surprise to me for the reasons stated throughout this declaration, and I believe Plaintiff and Mr. Hillier are trying to punish me for refusing to agree to their demands. 25. I provided CSU-Fresno with legal advice and services in relation to Plaintiff's internal complaints, administrative complaints, and threats of legal action (either made by Plaintiff or his attorneys) since at least June 2017. Ihave also been involved in attorney-client privileged conversations and communications related to the allegations of misconduct that 6 Declaration of Darryl Hamm in Support of Special Motion to Strike 9870408.1 FROO7-003Liebert Cassidy Whitmore A Professional Law Corporation 5250 North Palm Ave, Suite 310 Fresno, California 93704 YA Dun FF WwW WN 10 ip 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 resulted in Plaintiff being placed on paid suspension, attorney-client privileged conversations and communications about the ensuing workplace investigation, attorney-client privileged conversations and communications about the outcome of that investigation, attorney-client privileged conversations and communications about Plaintiff's alleged grievances, and attorney- client privileged conversations and communications about Plaintiff's suspensions. When I use the term “attorney-client privilege,” I am referring to legal advice and recommendations. 26. Ihave generated material that reflects my impressions, opinions, and conclusions in relation to Plaintiff's internal complaints, administrative complaints, threats, his suspension, workplace investigation, and settlement. I do not waive any work product privilege that may apply to materials I generated in my capacity as University Counsel. I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true 1 correct. Executed this day of _WY rere in Long Beach, California. am Pou a i Declaration of Darryl Hamm in Support of Special Motion to Strike 9870408.1 FR007-003Exhibit 1The California State University OFFICE OF THE CHANCELLOR . Linda Hanson Equal Opportunity and Whistleblower Compliance Assistant Vice Chancellor 401 Golden Shore Tel: (562) 951-5655 Long Beach, CA 90802-4210 E-mail: Ihanson@calsta‘e.edu www.calstate.edu August 29, 2017 A. Sameh El Kharbawy, Ph.D, MBA, M. Arch Department of Art and Design California State University, Fresno 5225 N. Backer Ave., M/S CA 65 Fresno, CA 93740 Via email: aelkharbawy@csufresno.edu; kevin@schwinlaw.com Re: Response to Executive Order 929 and 1058 Complaint Submission Dear Dr. El Kharbawy: The Equal Opportunity/Title IX/Compliance and Whistleblower Unit has received your letter that contains the submission of your Executive Order 929 and Executive Order 1058 complaint titled “Unlawful and Improper Governmental Activities, Administrative Misconduct, Employment & Contractual Violations at California State University, Fresno. [AMENDED]” on August 21, 2017, A thorough review of the information you have submitted is ongoing. You will be notified at the conclusion of this preliminary review whether your submission will be processed under Executive Order 929 and/or Executive Order 1058. Sincerely, Lindé Hanson Assistant Vice Chancellor Systemwide Equal Opportunity/Title [X/Compliance ‘Al Ce: Kevin Schwin, Esq., Schwin Law, PC (Lead Counsel) CSU Campuses Fresno Monterey Bay San Francisco Bakersfield Fullerton Narthridge San José Channel Islands. Humboldt Pomona San Luis Obispo Chico Long Beach Sacramento San Marcos Dominguez Hills Los Angeles San Bernardino Sonoma East Bay Maritime Academy San Diego StanislausExhibit 2From: Rudy J Sanchez Sent: Friday, September 15, 2017 11:19 AM To: Hamm, Darryl Ce: Kirsten Corey Subject: Re: draft letter requesting compliance with confidentiality obligations 4826-5349-1279 v.3.docx Hi Darryl, Kirsten and | have taken a look. This looks great. PY lam also attaching a letter that Holly sent me in early August. She and | have talked and | can fill you in on that conversation if you want.Essentially, she is fine with the campus. She does want to ensure that she and the faculty and students in Art and Design Department and the Interior Design Program are successful in the long term. Thanks, Rudy On Thu, Sep 14, 2017 at 5:05 PM, Hamm, Darryl wrote: HI Rudy, Here is a draft of a letter that | would send to Dr. El Kharbawy’s attorney. Take a look. | also need to contact Tina to let her know of my plan to ensure that | am not interfering with her work. Darryl Rudy J. Sanchez, Ph.D. Interim Associate Vice President for Faculty Affairs 559.278.3027 California State University, Fresno 5200 N. Barton Ave. M/S ML55 Fresno, CA 93740 Confidentiality Notice: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use, or disclosure (including forwarding) is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.Dr. Rudy J. Sanchez Interim Associate Vice President Office of Faculty Affairs August 6, 2017 Dear Dr. Sanchez: lam writing in response to the letter | received from Deborah Adishian-Astone, dated July 5, 2017, regarding Dr. El Knarbawy’s May 2017 complaint written to the Senior Administration of California State University, Fresno. | would like to express my deep concerns in this letter about the false allegations he is leveling against me. | have only met Dr. El Kharbawy once. | attended an Interior Design meeting in mid-September, 2016 which included Prof. Silvana Polgar. | have had no other personal contact with him. He did not participate in my search committee or attend my Portfolio Presentation to the faculty during the interviewing process. He does not attend faculty meetings, committee meetings, or any other instance where the rest of the department faculty are gathered. He in no way has first-hand knowledge of me or my professional performance or qualifications. | have corresponded once with him this past spring at Silvana Polgar’s request regarding the balances of the Trust Accounts. During the past year, | have heard from four different sources that on four separate occasions Dr. El Kharbawy has made erroneous and slanderous statements that harm my professional reputation. | have outlined these incidences below: First, | was told by a student in September 2016 that Dr. El Knharbawy instructed her class that they were not to attend my Portfolio Review during my interview because he believed it was an illegal search. His statement is in direct disregard that | was a qualified candidate for the position in which | was interviewing. My experience and qualifications matched the requirements of that posted position. Second, | was interviewed by the CIDA team in October 2016 regarding the appropriateness of my hire. They were told by Dr. El Kharbawy that | did not have the proper qualifications and that the Search Committee had not followed CIDA hiring standards. In fact, this is a truly slanderous statement. The recent CIDA Accreditation Report (Standard 16, p.41) found that | was the only full-time faculty member to meet the CIDA standards, as | hold two degrees in Interior Design. Third, in ID 152, November 2016 Dr. El Kharbawy gave his students an exam in which a question insinuated that the PAR Document had been plagiarized by Silvana Polgar and myself and what the student’s moral and ethical response would be to the situation if another plagiarized their work. Two students came to me distressed that | would do such a thing. | told them the only item | wrote for the PAR was myBiography. | truly feel that this is a slanderous situation that took forethought and is malicious. | believe that Dr. El Knarbawy has stepped over the line to one that is against any ethical standard that a professor in this institute should be allowed to make. This is truly an unethical action. Lastly, | believe Dr. El Kharbawy’s letter dated June 9", 2017 confirms that he has repeatedly stated that | have been hired illegally, questioning my qualifications and legitimacy as a faculty member. This is entirely false, and by his continuing use of this verbiage it harms not only myself and my professional reputation but degrades the Department of Art and Design and the area of Interior Design in our efforts to improve the quality and standards of the program as well as recruitment of future quality students. This pattern of behavior from Dr. El Kharbawy has resulted in a hostile work environment for me. | also believe that his manipulation of the students to repeat his falsehoods is inexcusable. As the situation persists, | feel verbally attacked, professionally belittled, and unsure of my tenure status at the University. Consequently, | am requesting that a letter of cease-and-desist be sent to Dr. El Kharbawy on my behalf. Thank you for your time, support, and prompt attention to this matter. Sincerely: Holly SowlesExhibit 3ANNEX-3 Re) The California State University OFFICE OF THE CHANCELLOR Office of General Counsel Dany! L. Hamm 401 Golden Shore, 4th Floor University Couns? Lang Bsach, CA 90802-4210 ‘Phone No. (562) 951-4500 www. calstate. edu Fax (562) 951-4956 or 4959 dhamméicelstete ody September 15, 2017 By E-mail (KEVIN@SCHWINLAW,COM) and U.S. Mail Kevin Schwin, Esq. Schwin Law, PC 1220 East Olive Avenue Fresno, CA 93728 Re: Kharbawy Complaints OGC File No. 17-0787 Dear Mr. Schwin: 1 am University Counsel for California State University, Fresno, and am writing on behalf of the University. Dr. A. Sameh El Kharbawy has recently filed Whistleblower Complaints pursuant to Califomia State University (CSU) Executive Orders 929 and 1058. In order to review the merits and pursue claims in a Whistleblower Investigation, maintaining a level of privacy and confidentiality are of the utmost importance. In the aforementioned CSU Executive Orders, they both emphazise the importance of maintaining the “privacy” and “confidentiality” of the individuals and matters that are the subject of the investigation. Having the cooperation and privacy of all CSU employees, including Complainants, to respect the need for confidentiality and privacy are critical to the success of CSU’s Whistleblower Investigations. We have concems that your client is not respecting and valuing the need for privacy and confidentiality. We have received reports that Dr. El Kharbawy is openly discussing issues involved in his Whistleblower Complaints with students and other third parties. In particular, Dr. El Kharbawy has made allegations regarding Ms. Holly Sowles as part of his Whistleblower Complaints, and that he is either discussing the subject of these allegations with students or making reference to them in written materials provided to his students. If true, these discussions and written references are in direct violation of Dr. El Kharbawy’s obligation to cooperate with investigators and maintain confidentiality and privacy regarding the subject of his allegations. The importance of confidentiality in these investigations cannot be overstated. Many Whistleblower Investigations involve sensitive personnel matters, and therefore privacy and confidentiality are at a premium. In addition, in the midst of an investigation, the open discussions of allegations can compromise the ability of the investigator to complete an investigation with an assurance of fairness. For example, a breach of confidentiality can serve to bias potential witnesses, and have other negative impacts that impugn the integrity of the investigation. CSU CAMPUSES Freano Monterey Bay San Francisco Bakersfield Fulierton Northridge ‘San José Channel Islands ‘Humboldt Pomona ‘San Luis Obispo Chico Long Beach ‘Sacramento San Marcos Dominguez Hits Los Angeles San Bemardino Sonoma East Bay Marktime San Diego ‘Stanislaus ram elie requasang comptanca wth confxlenhakty obtg alicns 4826-5349-1279 v 6 docxPAYI| The California State University OFFICE OF THE CHANCELLOR Kevin Schwin, Esq. September 15, 2017 Page 2 Further, in the early stages of his complaint, Dr. El Kharbawy has made allegations that need to be substantiated through the preliminary inquiry process to determine if they have any merit. Until such substantiation is complete and publicly released, any discussion of these allegations with students and other third parties is highly irresponsible. Such discussions are also harmful, as they could expose the University to defamation and harassment charges. Asa result of these concems, the University requests that you instruct your client to comply with his confidentiality ard privacy obligations under CSU Executive Orders 929 and 1058. To satisfy this obligation, he needs to refrain from having any further discussions about his Whistleblower allegations, including those regarding Ms. Sowles, with students and other third partics who do not have a business reason to know. This request is not intended to impede your client's ability to communicate with his union representatives, legal counsel, the Whistleblower Investigator, or others who need the information for business purposes to facilitate completion of the CSU Chancellor’s Office Whistleblower preliminary inquiry to determine whether Dr. El Kharbawy’s allegations rise to the level of Executive Orders 929 and/or 1058 Complaints. We thank you in advance for working with your client to address these urgent concerns. J am hopeful that this notice regarding his possible violations of the CSU Executive Orders and our reasonable request for remedying the problem will be sufficient to resolve this issue. Please confirm with me at your earliest convenience your receipt of this letter, and your client’s willingness to abide by the terms of the University’s request. Sincerely, Bent ip — University CounselExhibit 4The California State University OFFICE OF THE CHANCELLOR Office of General Counsel Dany L. Harm 401 Golden Shore, 4th Floor University Counsel Long Beach, CA 90802-4210 Phone (562) 951-4500 \Wwcalstateedu Fax (562) 951-4956 or 4959 dhamm@ calstate.edu November 16, 2017 By E-Mail (kevin@ schwinlaw.com) Schwin Law, PC 1220 E. Olive Ave. Fresno, CA 93728 Re: — University Offer to Dr. A Sameh El Kharbawy OGC File No. 17-0787 Thank you for agreeing to direct all of your future comespondence involving University Management, including the President and Provost, to my office. I would also request that you copy my office on any correspondence that you send to non-management personnel to the extent it involves matters related to the employee's official duties. The University’s interest will most likely be implicated in such matters and as University counsel I need to be informed about them. With respect to Dr. Zelezny’s original offer to Dr. El Kharbawy, he did indeed reject her offer. While the written record may show that he wrote Dr. Zelezny back and provided a counter offer, he did so only after rejecting Dr. Zelezny’s offer. Dr. Zelezny never indicated that she would accept his counter-offer and never adopted any of its terms to the extent they differed from those of her original offer. In this instance, Dr. El Kharbawy has again rejected Dr. Zelezny’ s offer and has instead unearthed much of his prior counteroffer from last year. In his counteroffer that was included in your correspondence dated November 10, 2017, he has countered Dr. Zelezny’ s offer of a Directorship by making it a joint appointment where he would serve as both a Director and retain faculty- teaching responsibilities. Dr. Zelezny never offered anything other than a full-time Directorship position. She did not offer a joint appointment at any point in time. She made the offer as a full faculty buy-out where Dr. El Kharbawy would serve solely in the capacity as a Director. Likewise, there wes no offer forincreased compensation in the form of additional employment per the terms of the CFA collective bargaining agreement. Further, there was no agreement to provide a letter of appointment without a meeting of minds as to the framework of job duties and responsibilities of the Director position. Dr. El Kharbawy may have raised these issues and wrote his own interpretation of what he wanted as a counteroffer, but Dr. Zelezny never adopted this interpretation verbally or in writing. CSU CAMPUSES Fresno Monterey Bay San Francisco Bakersfield Fullerton Northridge San] osé Channel Islands Humboldt Pomona San Luis Obispo Chico Long Beach Sacramento San Marco Dominguez Hills Los Angeles San Bernardino Sonoma East Bay Maritime San Diego StanislausThe California State University OFFICE OF THE CHANCELLOR Kevin Schwin November 16, 2017 Page 2 Regarding his right to a letter of appointment, the Provost would have never agreed to provide Dr. El Kharbawy with such a letter pending a clear meeting of the minds on the framework of the job duties and responsibilities as she has done numerous times with other faculty. Hence, the University will not issue a letter of appointment until the parties reach a mutual understanding on a framework for the specific job duties, pay level and responsibilities of this Director position. This is the standard practice used by the Provost and she intends to adhere to her standard approach. I will again remind you of Dr. Zelezny’s offer to Dr. El Kharbawy: Develop partnerships with entities in Fresno and the Central Valley to envision an innovative and sustainable future for Fresno and Califomia’s Central Valley and to improve: ¢ Urban and Strategic Planning-with an emphasis not only on policy but master Plans that advance the architecture of cities, neighborhoods and communities in the Central Valley. ¢ Environment and Energy Policy-examining environmental challenges such as Natural resource management, and greenhouse gas reduction. « Access and Use of Technology-including formulation of public policies that encourage innovation and adoption of new technologies in homes, schools and businesses in the Central Valley. This position will be a one-year, full-time 12-month faculty appointment, with the opportunity to renew annually. The initial term will run from January 3, 2018 to January 3, 2019. I would also include summer faculty development funds for conference travel This offer is slightly modified from the one described in my letter dated November 8, 2017. This offers provides Dr. El Kharbawy witha full 12-month appointment as opposed to a standard faculty appointment that is typically a 10-month appointment. By having a 12-month appointment instead of a 10-month appointment, Dr. El Kharbawy will eam more money than he does in his current faculty appointment, which is an academic year (10 month) appointment. Otherwise, the terms of the offer remain the same as set forth in my prior correspondence. The University has never offered Dr. El Kharbawy a joint appointment and does not do so now. Dr. Zelezny wants the full energy and focus of Dr. El Kharbawy on advancing the goals and objectives of the new Institute.The California State University OFFICE OF THE CHANCELLOR Kevin Schwin November 16, 2017 Page 3 Dr. Zelezny will still keep this offer open for Dr. El Kharbawy until December 1, 2017. Like other academic Directors, this position will report to the Vice Provost, Dr. Dennis Nef. If he accepts the offer, Dr. Zelezny requests that he would start working on January 3, 2018. ye University Counsel EnclosureExhibit 5Kevin Schwin, Esq. SCHWINLAW, PC 1220 E. OLIVE AVE. FRESNO, CALIFORNIA 93728, (559) 715-ATTY (2889) - TEL. (559) 221-6812 - FAX KEVIN@SCHWINLAW.COM - EMAIL November 17, 2017 VIA EMAIL and CERTIFIED MAIL Daryl L. Hamm University Counsel Office of General Counsel Califomia State University 401 Golden Shore, 4th Floor Long Beach, CA 90802-4210 dhamm@calstate.edu Re: Dr. Zelezny’s Offer to Dr. A. Sameh El Kharbawy 1 am in receipt of your letter dated November 16, 2017, with the subject line: University Offerto Dr. A. Sameh El Kharbawy, OCG File No. 17-0787. On the matter of Dr. Zelezny’s offer to Dr. El Kharbawy to serve as Director of a new Univesity institute of innovation, sustainability and urban policy (hereafter “Institute”): You allege that Dr. El Kharbawy has now twice rejected Dr. Zelezny’s offer. This is false. Dr. El Kharbawy has already communicated to Dr. Zelezny that he was and remains interested in this position. On his behalf, I have reiterated his interest inmy November 9, 2017 letterto you. Iam confirming this for the third time here. Similady, claims about “counter offers’ by Dr. El Kharbawy are also false. The terms of Dr. Zdezny’s offer were established in negotiations and communications between Dr. El Kharbawy and Dr. Zelezny in December 2015 and January 2016. The evidence shows that Dr. Zelezny and Dr. El Kharbawy agreed that he would serve as the inaugural “Director” of the Institute while maintaining his position as full professor at the Department of Art and Design. ‘We can also establish that Dr. Zelezny agreed to provide Dr. El Kharbawy with a contract (an “appointment letter’) “shortly” after her last comrespondence with El Kharbawy on the matter (on January 26, 2016). And that Dr. Zelezny offered to model Dr. El Kharbawy’s contract on. the Director of CSU-Fresno’s Lyles Center for Innovation and Entrepreneurship (who maintained his duties as a professor while also serving as Director). It is dear that Dr. Zdezny has refused to perform that offer in retaliation for Dr. El Kharbawy’s protected activities. The Circumstances surrounding Dr. Zelezny’s “offer”; its timing and her failure to perfonm it are troubling under the circumstances.Danyl Hanm University Counsel Califomia State University November 17, 2017 Page 2. Despite several requests, Dr. Zelezny still fails to provide any record that shows that this alleged Institute actually exists, or that it was officially formed (according to the stipulations of CSU-Fresno’s APM 110 and EO 751). There is no evidence that this Institute exists or ever existed. It is clear to us today that Dr. El Kharbawy wes offered a “leadership position” in an. Institute that does not yet exist, and that Dr. Zelezny’ s offer was never bona fide. CSU-Fresno, as you know, is a publicly funded institution. It would be a waste of public funds for CSU- Fresno to appoint Dr. El Kharbawy as Director of an Institute that has not been officially fommed. per Univesity policy. Further, although Dr. El Kharbawy has have given Dr. Zelezny the benefit of every doubt, nothing assures us that her offer (in its original or “slightly modified” versions) are bona fide employment offers. At a minimum, Dr. Zelezny should have been able to provide us with the following information: 1. The Institute's official title and description; 2. The temms of Dr. El Kharbawy’s appointment and his compensation; 3. The Institute’ s charge and objectives; 4. The Institute's projected budget and funding sources; 4, The Institute’ s allocated aciministrative support and resources; 5. The Institute’ s regulatory frameworks (legal, accounting, etc.) Dr. Zedezny’s unwillingness to provide the most basic information about her alleged Institute to Dr. El Kharbawy is telling. She has, so far, refused to tell Dr. El Kharbawy what the Institute is officially called; where it is placed at the University; the composition of its advisory committee; its budget and funding sources; the job description of the Institute’s Director (and. any other personnel assigned to assist him); the specifics of the Director's compensation package, etc. Dr. Zdlezny’s “slightly modified’ offeris too vague and lacks the material terms necessary to constitute avalidjob offer. The letter states things suchas, “Dr. El Kharbawy will eam more money than he does in his current employment’, and that Dr. Zelezny “would also include summer faculty development funds for conference travel.” No reasonable employee would. constue this as constituting a serious offer without also knowing the job duties, job description, exactly how much pay is being offered, etc. Dr. Zedezny understands that University positions are State jobs that must be created and filled lawfully. University positions should have clear descriptions, classifications, budgets and funding lines, code numbers, responsibilities, clearly defined supervisory, reporting and evaluation structures, etc. Communicating those details to Dr. El Kharbawy is not only necessary; it is imperative. Similady, Dr. El Kharbawy’s contract should be specific and detailed.Danyl Hanm University Counsel Califomia State University November 17, 2017 Page3, T had hoped that Dr. Zelezny could be persuaded to follow through on her agreement with Dr. El Kharbawy. Instead, Dr. Zelezny refutes the facts by alleging first that Dr. El Kharbawy has rejected her offer(s) - which he never has - and then that he made counter offers - which he also never has. He has repeatedly indicated his interest and is simply waiting for the letter of appointment, job description, and additional information that Dr. Zelezny previously agreed to provide. Without evidence of the Institute's existence, and a bona fide letter of appointment from the University, we have no reason to believe Dr. Zelezny intends to perform on her agreement. We intend to initiate legal action against Dr. Zelezny and the University over this and other issues. We will take additional steps (as we deem necessary) to pursue Dr. El Khatbawy’s rights and adequate remedies for his damages in this and other matters. This letter is not intended by us, and should not be construed by you, as a waiver or relinquishment of any other rights and remedies that our client may have against the University in this or any other matter. Dr. El Kharbawy specifically reserves all such rights and remedies whether at law or in equity, under applicable laws. Sincerely, SchwinLaw, PC Ko debo Kevin Schwin Attomey at Law - A. Sameh El Kharbawy, Ph.D Professor of Art and Design Califomia State University, FresnoExhibit 6Kevin Schwin, Esq. SCHWINLAW, PC 1220 E. OLIVE AVE. FRESNO, CALIFORNIA 93728, (559) 715-ATTY (2889) - TEL. (559) 221-6812 - FAX KEVIN@SCHWINLAW.COM - EMAIL November 27, 2017 VIA EMAIL and CERTIFIED MAIL Danyl L. Hamm Office of General Counsel Califomia State University 401 Golden Shore, 4th Floor Long Beach, CA 90802-4210 dhamm@calstate.edu Re: Dr. A. Sameh E] Kharbawy As you know I represent Dr. El Kharbawy in connection with his pending disputes with CSU and CSU Fresno, which remain unresolved. To summarize, the disputes involve (but are not limited to) the following: e CSU-Fresno’s unlawful hiring practices as evident, for example, in the search and selection process that resulted in the appointment Ms. Holly Sowles to the Department of Art and Design in 2016. e Ms. Sowles’s résun¥ fraud in obtaining a teaching position at CSU-Fresno, and CSU- Fresno’s subsequent appointment of Sowles into a “Coordinator” position that does not exist in the University’s various job classifications. e Dr. Lynnette Zedlemny’s sham offer - in December 2015/January 2016— to Dr. El Kharbawy to a leadership position at CSU- Fresno, ina non-existent Institute, while a Witness in complaints against her and other administrators e Dr Lynmetie Zelemny’s sham (re)-offer - in November 2017— to Dr. El Kharbawy to aleadeship position at CSU-Fresno, again inanon-existent Institute, following his complaints and protected disclosures against her and other administrators at CSU- Fresno.Danyl Hanm University Counsel Califomia State University November 27, 2017 Page 2. Dr. Lynette Zelezny’s failure to fulfill her agreement to appoint Dr. El Kharbawy as an Institute Director under a joint appointment at CSU-Fresno. Harassing, discriminatory, retaliatory conduct at CSU-Fresno, which has targeted Dr. El Kharbawy. Acts of moral turpitude, abuses of administrative authority and ongoing misconduct by members of the University’s administration (Dr. Xuanning Fu and others). Willful and Negligent misrepresentation, plagiarism and falsification of official reports and records, including University and accreditation reports, as evident in the cese of the 2016 Accreditation Report submitted to the Council for Interior Design. Accreditation. Breach of Dr. El Kharbawy’s December 17, 2012 settlement agreement with CSU- Fresno, and CSU-Fresno’s commitment (under that agreement) to pemmanently enjoin. the Chair of the Department of Art and Design, the Dean of the College of Arts and Humanities (among other individuals) from having any role in, or involvement with inDr. El Kharbawy’s employment, including his instructional assignments, workload, evaluations, etc. CSU-Fresno’s violations of various requirements of the Bagley-Keene Act, as evident in Dr. Jiménez-Sandoval’s “Council of Chairs” meetings, Mr. Martin Valencia’s Department meetings, among other University meetings. CSU-Fresno’s failure to comply with CPRA requests. The failure of the University’s administration to prevent harassment, retaliation, discrimination and hostility in Dr. El Kharbawy’s work environment or to investigate and remedy those abuses when reported. Dr. El Kharbawy raises serious questions about the administration of CSU-Fresno, and we have strong evidence supporting his complaints. We have filed complaints with the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC), and we are taking additional legal steps to protect Dr. El Kharbawy’s Tights and prosecute his grievances against CSU-Fresno, and against the above named members of the administration (induding, but not limited to, Dr. Lynnette Zelezny, Dr. Jiménez- Sandoval, Dr. Xuanning Fu, and Mr. Martin Valencia).Danyl Hanm University Counsel Califomia State University November 27, 2017 Page3, Wewould like to exhaust all avenues to an informal resolution before escalating this matter legally. And to those ends, I would like to invite you to a telephone conversation to explore whether we can discuss and resolve some or all of the above issues. If you are open to this invitation, please advise of your availahility on or after December 6, 2017. Sincerely, SchwinLaw, PC Kevin Schwin Attomey at Law - A. Sameh El Kharbawy, Ph.D Professor of Art and Design Califomia State University, FresnoExhibit 7The California State University OFFICE OF THE CHANCELLOR Office of General Counsel Darryl L. Hamm 401 Golden Shore, 4th Floor University Counsel Long Beach, CA 90802-4210 Phone No. (562) 951-4500 www.calstate.edu Fax (562) 951-4956 dhamm@calstate.edu March 23, 2018 By E-Mail (zpalitz@altshulerberzon.com) and U.S. Mail Zoe Palitz Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Re: Dr. El Kharbawy Discrimination and Retaliation Complaint OGC File No. 17-0787 Dear Zoe: I am responding to your letter dated March 16, 2018, requesting a confirmation as to California State University, Fresno’s (“the University” and “Fresno State”) interest in pursuing an informal resolution of Dr. El Kharbawy’s pending claims. The University is definitely interested in considering an informal resolution, which addresses the mutual long-term interests of both parties. Although the University certainly understands Dr. El Kharbawy’s goals to continue his teaching and scholarship work at Fresno State, the University is interested in exploring a global resolution of any and all claims which would entail Dr. El Kharbawy’s resignation/retirement from the University. If Dr. El Kharbawy has an interest in this type of a resolution, the University is willing to engage in discussions with you regarding the terms of his resignation/retirement. Should these discussions fail to lead to a full resolution of all claims, the University administration has expressed an interest in identifying a mutually agreed upon mediator, and initiating a mediation within the next 30 to 60 days. In the intervening time, the University will continue both of its investigations related to Dr. El Kharbawy. As a showing of good faith, and as we move forward in informal discussions or a potential mediation, if those discussions are unsuccessful, the University respectfully requests that Dr. El Kharbawy continue to cooperate fully and meet with University investigators for any interviews, and provide them with all pertinent documents that they may ask him to produce. Dr. El Kharbawy is currently on paid administrative leave, and under the specific terms of such a leave, he is obligated to be available for any meetings with the University when requested by University administration or those working on behalf of the University. His leave is fully paid, and he should not be using his leave as an excuse for not meeting with University investigators. CSU CAMPUSES Fresno Monterey Bay San Francisco Bakersfield Fullerton Northridge San José Channel Islands Humboldt Pomona San Luis Obispo Chico Long Beach Sacramento San Marcos Dominguez Hills Los Angeles San Bernardino Sonoma East Bay Maritime San Diego Stanislaus Response to PalitzThe California State University OFFICE OF THE CHANCELLOR Zoe Palitz March 23, 2018 Page 2 Please respond to me by March 30, 2018 to confirm your interest in initiating discussions regarding potential terms for Dr. El Kharbawy’s resignation/retirement, and a possible follow-up mediation session, should these initial negotiations not lead to a full resolution. Additionally, I would ask that you also respond and confirm by March 30, 2018 your client’s willingness to meet with the University’s investigators while he is on paid administrative leave. Sincerely, Det ie-— University Counsel ec: Lynnette ZeleznyExhibit 8ELISA J, STEWART* le STEWART & MUSELL, LLP ATTORNEYS AT LAW 2200 Powell Street, Suite 440 Emeryville, California 94608 June 4, 2019 VIA EMAIL AND FED EX OVERNIGHT Marsha Baum, J.D. Associate Vice President of Faculty Affairs Henry Madden Library, 4" Floor Haak Administrative Center 5200 N. Barton Ave., M/S ML55 Fresno, CA 93740 baum@mail.fresnostate.edu Marylou Mendoza-Miller Associate Vice President of Human Resources California State University, Fresno Joyal Administration Building Room 211 5150 N. Maple Avenue M/S JA41 Fresno, CA 93740 maryloum@esufresno,edu Esther Gonzalez Confidential Administrative Analyst