The California State University

RISK MANAGEMENT AND PUBLIC SAFETY

 

We. California State University I Of?ce of the Chancellor I Risk Management and 

401 Golden Shore, 5th Floor I Long Beach. CA 90802-4210

{562} 951-4580 I 

Is your claim complete?

MAY 0 3 
CSU Claim Form RISK MANAGEMENT

 

Include a check or money order for $25 payable to ?Trustees of the 

 

Complete all sections relating to this claim and sign the form. Please print or type all information.

 

 

Attach receipts, bills, estimates or other documents that back up your claim.

 

 

 

 

 

 

 

 

 

 

 

Claimant Information
1 Bartko, James 2 Tel: See 7-11 below
Last Name First Name MI 3 Email: See 7-11 below
4 See 7-11 below I
Mailing Address City State Zip
5 Best time and way to reach you: Through my attorneys. See 7-11 below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6 Is the claimant under 18? Yes No If YES, give date of birth:
Attorney or Representative Information MM DD 
7 Dunn. K. Elizabeth 8 Tel: 619-573-4488
Last Name First Name MI 9 Email: 
10 Dunn DeSantis Walt Kendrick, 750 Street, Suite 2620 San Diego CA 92101
Mailing Address City State Zip
11 Relationship to claimant: Attorneys: also. please note attorney Jill E. 
Claim Information
12 Is your claim for a stale-dated warrant (uncashed check)? NIA Yes No
CSU campus that issued the warrant: If NO, continue to Step 13.
Dollar amount of warrant: Date of issue:
Proceed to Step 23 MM DD 
13 Date of Incident: November 6, 2017 (Date of wrongful termination/forced resignation)
Was the incident more than six months ago? Yes No
If YES, did you attach a separate sheet with an explanation for the late ?ling? Yes No
14

 

 

 

CSU campus or CSU employees against whom this claim is ?led: CSU Fresno

 

 

See attachment to Number 14.

 

15

 

Dollar amount of claim:

 

if the amount is more than 510.000, indicate the El Limited civil case ($25.000 or less)
type 0f 03393 Non-limited civil case (over $25,000)

 

 

Explain how you calculated the amount:

 

See attachment to Number 15.

 

16

Location of the incident:

 

 



 

 

 

 

 

17 Describe the speci?c damage or injury:

 

See Attachment A

 

 

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

 

See Attachment A

 

 

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

 

See Attachment A

 

 

20 Does the claim involveacampus vehicle? 1] Yes No

 

If YES. provide the vehicle license number, if known:

 

 

Auto Insurance Information

 

 

21 

 

Name of insurance Carrier

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mailing Address City State Zip

Policy Number: Tel:

Are you the registered owner of the vehicle? Yes No
If NO, state name of owner:

Has a claim been ?led with your insurance carrier. or will it be ?led? Yes No
Have you received any payment for this damage or injury? Yes No

 

If yes, what amount did you receive?
Amount of deductible, if any:
Claimant's Driver's License Number Vehicle License Number:
Make of Vehicle: Model: Year:
Vehicle ID Number

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For Bodily Injury Claims I Only (Pursuant to the Medicare Secondary Payer Act):

 

22 ?t claim for hodilv iniurv is being made'

 

 

 

 

 

Date of Birth: Social Security 

 

MM DD 

 

Notice and Signature

 

 

23 I declare under penalty of perjury under the laws of the State of California that all the information I have
provided is true and correct to the best of my information and belief. I further understand that if I have
provided infor ation that is false. intentionally incomplete, or misleading I may be charged with a crime
punishable p/to opeyear in state prison andlor a ?ne up to $10,000 (Penal Code section 72).

 

 

OW May2.2018

 

 

Signature Claimant or Representative Date

 

 

24 Mail the original completed form and all attachments with the $25 ?ling fee or the Af?davit for
Waiver of Filing Fee" request to: CSU Of?ce of the Chancellor. Risk Management 8. Public Safety. 401
Golden Shore, 5th Floor, Long Beach, CA 90802-4210. Keep a copy for your records.

 

 

 

ATTACHMENT TO CLAIM FORM ITEM NOS. 14- AND 15

14. Parties named in Claim

California State University, Fresno

California State University, Fresno, Athletic Corporation
Joseph I. Castro (President)

Deborah Adishian-Astone (Vice President)

Steve Robertello (Currently Interim Director of Athletics)

15. Claims for Damages

The claims against CSU Fresno and other parties include: wrongful termination, retaliation,
and discrimination on the basis of mental disability/medical condition; failure to
accommodate; failure to engage in a good-faith interactive process; intentional in?iction of
emotional distress; negligent infliction of emotional distress; defamation; breach of contract;
and declaratory relief.

If necessary, claims will be ?led with the appropriate agencies (EEOC and/0r DFEH) in
accordance with applicable law.

Estimated Damages: $3,000,000 

(Economic Damages) Contractual and non-contractual lost income, bene?ts, and bonuses;
medical expenses

(Non-Economic Damages) Emotional distress; damage to reputation
(Punitive Damages) Malice; conscious disregard for Mr. Bartko?s legal rights
(Attorneys' Fees and Costs)

See, Attachment A.

Page 1 of 1

Attachment A

The following facts apply to all claims asserted by Mr. Jim Bartko:

1. Mr. Bartko became the Director of Athletics for CSU Fresno on January
1, 2015, after entering into a written agreement with California State University,
Fresno (?Letter of Appointment?) and entering into an agreement with the
California State University, Fresno Athletic Corporation (?Consulting Services
Agreement") in December of 2014. The initial term of Mr. Bartko's employment
pursuant to the contractual agreement was ?ve years.

2. Pursuant to the Letter of Appointment, if Mr. Bartko was terminated
?for cause" then he could be terminated with no further entitlement to bene?ts or
compensation. If Mr. Bartko was terminated ?without cause? during the term of his
service, then CSU Fresno was obligated to pay out certain sums to Mr. Bartko,
depending on when in his term he was ?non-retained."

3. Mr. Bartko ?hit the ground? running as Athletics Director and,
according to his August 22, 2015 performance review signed by his supervisor,
President Joseph I. Castro, he did "an exemplary job? in his ?rst year.

4. In his 2015-2016 Performance Evaluation dated September 16, 2016,
President Castro wrote, among other positive comments, that Mr. Bartko ?has
worked tirelessly to strengthen relationships with existing donors and establish
new relationships with new donors. He has also hired a talented senior team and
exemplary coaches. 1 am particularly impressed with our new head coaches for
Softball, Water Polo, and Wrestling.?

5. In late October of 2016, Mr. Bartko announced the termination of
football coach Tim DeRuyter mid-season, during the worst season in the school?s
history The dismissal of Coach DeRuyter, who had been selected by, hired
by, and had his contract extended by President Castro, was not without stress for
Mr. Bartko, but the decision had to be made. At the same time, Mr. Bartko was
suffering from increasing exhaustion, anxiety, and insomnia. The cause of his
would soon be revealed to be PTSD and anxiety related to abuse he
suffered as a child at the hands of a Catholic priest.

6. In November of 2016, Jeff Tedford was hired as the head football
coach. Mr. Bartko was principally involved in the hiring of Coach Tedford, but
President Castro was in the loop at all times and ultimately approved the terms of
the contract offered to Coach Tedford. Vice President Deborah Adishian-Astone was
also directly involved in the process. Regarding the hiring, President Castro stated
on or about November 10, 2016, am pleased to welcome Coach Tedford?a very
special former Bulldog?back home to join our exceptional campus team.
Academics and athletics will continue to rise together and our best days for Bulldog

Page 1 0f13

football, and for Fresno State, lie ahead.? See,

head-football-coach.aspx.

7. In early December of 2016, Mr. Bartko suffered from chest pains and
believed he was having heart issues. He went to the hospital, and after a series of
tests, he was ultimately told that his heart was fine; however, he was diagnosed as
suffering from anxiety, insomnia, and panic attacks. Mr. Bartko was encouraged to
seek immediate treatment for his anxiety and other health issues. Eileen Bartko, Mr.
Bartko's wife, researched options and found a facility in Arizona called "Sierra
Tucson.? She made the necessary arrangements for Mr. Bartko?s treatment.

8. Prior to going to Sierra Tucson, Mr. Bartko told his Deputy Athletics
Director, Steve Robertello, that he would be leaving over the holidays until mid-
]anuary for health-related reasons. He also told Mr. Robertello that it would be
dif?cult but not impossible to reach him; he instructed Mr. Robertello to contact his
wife in the event there was an emergency or other important issue that came up
while he was gone, and she would be able to reach him.

9. Mr. Bartko checked into the facility days after his hospital visit. Mr.
Bartko used his own personal accrued vacation while seeking treatment. While in
Arizona, he was encouraged to speak with a counselor to try and ?gure out what
was causing his sleep and anxiety issues. During his treatment, Mr. Bartko
eventually broke down and told the counselor what he had never told anyone else:
he had been sexually molested as a child by a Catholic priest.

10. Just after realizing and accepting the likely cause of his health issues,
Mr. Bartko wrote an email to President Castro on December 27, 2016. In the email,
he disclosed the abuse and the extent of his suffering to President Castro. Mr.
Bartko also explained that he had read a newspaper article a few months prior to his
?chest pains? incident and the article, which pertained to the priest who abused him,
triggered a worsening of his anxiety; he stated that he also began experiencing
worsening sleep issues and panic attacks. Mr. Bartko apologized to President Castro
for the fact that he had not been himself, and noted that the time spent at the
treatment facility would help him accept and cope with the hurt and shame he had
been repressing for a long timer while seeking treatment for his Mr.
Bartko also told President Castro that he intended to tell his senior staff about the
abuse, and he asked President Castro to tell him if he needed to tell the Cabinet. Mr.
Bartko stated he would leave the treatment facility on Ianuary 9, 2017.

11. President Castro responded to the email by stating only, ?Thank you
for the update. I am very sorry to hear of the pain you have been experiencing for
such a long time. I wish you the best in your treatment and I look forward to seeing
you in January. Take good care. Joe."

Page 2 of 13

12. On or about January 11, 2017, Mr. Bartko returned to campus, and he
told his colleagues in the athletics department about his abuse and experience at the
treatment facility. He informed his Senior Leadership staff during an in-person
meeting, called the coaches, and then sent an email to the remaining staff. On
January 13, 2017, Mr. Bartko sat down for an interview with the Fresno Bee and
discussed his experience as a victim of abuse. The article was published on January
14, 2017, and has continued to be recognized as impactful and inspiring to the
Fresno community as well as to many others outside of Fresno.

13. Without warning or prior discussion, on February 3, 2017, Mr. Bartko
received a letter from President Castro raising certain concerns. The letter begins, 
was very pleased to appoint you as Athletic Director two years ago. You were my
and the search committee?s ?rst choice candidate and I believed then?and still
believe?that you are the right person for this important leadership position at
Fresno State. Academics and athletics are positioned to rise together with you as
our Athletic Director.? Despite the positive start to the letter, however, President
Castro went on to criticize Mr. Bartko, in particular for the hiring of Coach Tedford.
In the letter, President Castro states, "With respect to personnel and major ?nancial
decisions, you do not have the authority to represent me with outside parties
(including coaches and agents] as it relates to contract negotiations. I am
comfortable with your having preliminary discussions of such matters but then
those discussions must be relayed in a timely way to Vice President Astone [for
personnel and ?nancial matters] and to me.? This statement appears to directly
contradict Mr. Bartko's job description as written in the Letter of Appointment
Moreover, this is the ?rst criticism Mr. Bartko received concerning his role in the
hiring of Coach Tedford, which had occurred three months earlier and was
speci?cally approved by President Castro. In fact, the February 3 letter was the ?rst
ever criticism Mr. Bartko received during his employment at CSU Fresno.

14. Also in the February 3, 2017 letter, President Castro criticized how
Mr. Bartko communicated his leave and stay at the treatment facility. President
Castro states, was provided with unclear and contradictory information from you
and from Steve Robertello about your leave of was provided with almost
no information from Steve other than being told that you could not go to Arizona
with me to a Mountain West realize you were going through a very
dif?cult time and we were all very concerned about you, but as your supervisor, you
should have been in direct communication with me prior to your leave.? These
statements in the letter are stunning, because Mr. Bartko did tell President Castro
where he was and why he was there. And, again, before giving notice to President
Castro, Mr. Bartko told Mr. Robertello that he would be gone and gave him speci?c
information as to how to reach him in the event he was needed. Mr. Bartko was not
required to disclose his medical condition and/or the health-related issues he
sought treatment for during his ?vacation,? even though he did so.

Page 3 of 13

15. Mr. Bartko asserts that the February 3, 2017 letter is pretextual and
an act of discrimination. Among other issues with the letter, President Castro's
direction concerning Mr. Bartko?s authority with respect to the hiring of coaches
contradicts Mr. Bartko?s express job duties. As Athletics Director, Mr. Bartko was
expressly tasked with recruiting and hiring coaches, as is con?rmed in the contents
of his September 16, 2016 performance evaluation. President Castro?s sudden
criticism of Mr. Bartko regarding the hiring of Coach Tedford in November of 2016
is starkly inconsistent with President Castro?s contemporaneous and celebratory
statements about the hire. President Castro?s comments and criticisms of Mr.
Bartko?s communications while seeking treatment for his medical condition are also
contrived. Mr. Bartko reasonably communicated with both Mr. Robertello and
President Castro as he sought treatment for his health issues and related conditions.

16. Throughout February and into March 2016, and despite continuing to
suffer from anxiety and PTSD, Mr. Bartko continued doing his job. He was active in
the community and did an excellent job engaging fans, alumni, and boosters. Mr.
Bartko also continued to have weekly one-on-one meetings with President Castro.
During these meetings, the alleged ?performance issues? set forth in the February 3
letter were not discussed, nor were any additional performance concerns.

17. On or about March 23, 2017, President Castro and Vice President
Astone met with Mr. Bartko. During the meeting, President Castro addressed
alleged concerns with Mr. Bartko?s job performance that had been ?brought to his
attention? since Mr. Bartko?s return from the treatment facility and public
announcement concerning the abuse he suffered as a child. The President
mentioned that "on occasion" Mr. Bartko had been observed having an alcoholic
beverage. President Castro also mentioned during the meeting [for the ?rst time)
that he smelled alcohol on Mr. Bartko's breath on Valentine?s Day over a month
earlier. President Castro and Vice President Astone talked to Mr. Bartko about
being a representative of CSU Fresno and stated that "there should be very few
instances where any of us are having an alcoholic beverage during business-related
lunch meetings or when we are technically working on behalf of the University." 0n
information and belief, President Castro and other CSU Fresno employees "on
occasion? drink alcoholic beverages themselves, including at University events and
functions. Notably, Mr. Bartko was not accused during the March 23 meeting of
exhibiting any signs of being under the in?uence while on duty or of having any
related performance issues. He was not told that he could not drink alcoholic
beverages; there is no policy or rule that prohibits CSU Fresno employees from
drinking alcoholic beverages.

18. Also during the March 23, 2017 meeting, President Castro and Vice
President Astone raised an issue concerning Mr. Bartko?s membership with the San
Joaquin Country Club There was allegedly an outstanding amount due and
the President had concerns about the failure to pay dues owed. The true facts are
that each month, Mr. Bartko would receive an invoice at his home address, and his
wife would pay directly to SICC any amount of expenses personally incurred by the

Page 4 of 13

Bartko family. Mr. Bartko would then take the invoice to his of?ce and go through
any business-related expenses and the dues with his assistant. A request for
payment would then be processed through the Athletics business of?ce. The
amounts referenced by President Castro and Vice President Astone that were
allegedly ?unpaid? were unpaid through no fault of Mr. Bartko. In fact, Vice
President Astone speci?cally directed the Athletics Business Of?ce not to pay the
SICC invoices until she received and reviewed a complete breakdown of the charges
on the invoices. Mr. Bartko, unaware of Vice President Astone?s direction, asked
every week whether the invoices had been paid, particularly after he received notice
of late payments. Multiple witnesses vouch for the fact that Mr. Bartko had nothing
to do with unpaid SICC notices.

19. President Castro also told Mr. Bartko that there was an issue with Mr.
Bartko?s expense reimbursements. Speci?cally, President Castro was concerned
because Mr. Bartko's requests for reimbursement and supporting documentation
were (allegedly) in some cases inaccurate, incomplete, and submitted later than
President Castro wanted. President Castro told Mr. Bartko that he would be
expected to get his reimbursements turned in within 45 days after the expenses
were incurred. Mr. Bartko was also instructed that he should use a US Bank Card on
a going forward basis for expenses. Using this card, Mr. Bartko would initially need
to personally pay out-of?pocket for University?related expenses, and then he would
have to seek reimbursement for his expenses through the Bulldog Foundation.

20. President Castro further informed Mr. Bartko that he understood that
Mr. Bartko had not been in the of?ce on ?many days" particularly in the afternoon.
President Castro stated his expectation that Mr. Bartko keep an accurate calendar so
that he would know where Mr. Bartko was at all times.

21. Finally, during the March 23, 2017 meeting, President Castro "offered"
Mr. Bartko the opportunity to take a 60-day paid administrative leave. He gave Mr.
Bartko four days to respond, and if Mr. Bartko did not accept President Castro?s
"offer" by March 27, 2017, then he would be ?forced? to place Mr. Bartko on a
"Performance improvement Plan." The four-day deadline imposed by President
Castro was not reasonably possible to meet. Mr. Bartko could not have planned for
and/or arranged a two?month leave in such a short timeframe given his
responsibilities as Athletics Director, his responsibilities to his family, and his
inability to collect resources and gather the information necessary to use any such
leave to seek further treatment for his anxiety, PTSD, and other health-related
issues/conditions.

22. During the meeting, neither President Castro nor Vice President
Astone asked Mr. Bartko if he needed an accommodation or any assistance, and they
did not offer support to him despite the fact that they knew or had reason to believe
he was suffering from protected medical conditions related to the abuse he suffered
as a child.

Page 5 of13

23. After the March 23 meeting, Mr. Bartko continued to perform his job
duties, and he continued to meet with President Castro in weekly one-on-one
meetings. There was no follow-up discussion concerning the issues discussed
during the March 23 meeting. The March 23 meeting was pretextual and an act of
discrimination.

24. April is "Sexual Assault Awareness Month." On April 5, 2017, Mr.
Bartko was a featured speaker at an on-campus CSU Fresno-sponsored event
entitled ?Retaking Our Story: Re-Framing the Sexual Assault Conversation." Vice
President Astone gave a complimentary speech about Mr. Bartko while introducing
him to the attendees. Mr. Bartko also gave other speeches and presentations
concerning his personal experience in the month of April, while continuing to
perform his job duties.

25. President Castro wrote a second letter to Mr. Bartko on April 26,
2017. The April letter appears to summarize the issues he and Vice President
Astone discussed with Mr. Bartko during the March 23 meeting. The letter also
states:

I offered you the opportunity to take a 60-day paid administrative
leave as I remain concerned about your ability to focus on the job at
hand and that you may need additional leave time in light of these
concerns and your pattern of behavior. I gave you until March 27 to
let me know your decision. You never of?cially responded to my
offer of the paid leave so I am assuming you do not wish to accept the
offer. I offered this Option to you because care about you and I want
to ensure that I am doing everything possible to ensure that you are
able to be successful in your position. As stated very clearly during
our meeting, if you didn?t accept the offer of a leave, you would be
forcing me to place you on a more speci?c performance
improvement plan. I clearly outlined my performance expectations
and the areas needing improvement in my February 3 letter. In the
near future, will be sending you a specific performance
improvement plan which will focus on issues highlighted in this
correspondence as well as my earlier letter.

26. Like the February 3 letter, the April 26 letter is pretextual and an act
of discrimination. They both purportedly identify ?performance issues? when in
reality there were no performance issues. Mr. Bartko was doing his job and doing it
well. His staff had faith in his abilities, and the community at large admired and
respected Mr. Bartko. On information and belief, the alleged ?performance issues?
were invented by President Castro, Vice President Astone, and/or Steve Robertello
in an effort to force Mr. Bartko out as Athletic Director.

Page 6 of 13

27. From April 26, 2017 through June of 2017, Mr. Bartko continued to
perform his job duties, and he continued to meet with President Castro in weekly
one-on-one meetings. There were no follow-up discussions concerning the issues
discussed in the April 26, 2017 letter, and no other performance issues were raised
or addressed during this timeframe.

28. As the school semester was coming to an end, and after thoughtful
planning and coordinated effort, Mr. Bartko chose to take FM LA-protected leave in
June of 2017. On June 8, 2017, he filled out a ?Certi?cation of Health Care Provider
for Employee" form, specifying an intent to take leave from june 15, 2017 until luly
15, 2017. Additionally, Mr. Bartko?s health care provider indicated on the form that
he would need to attend "follow-up treatment or appointments? one time per week
for twelve months. Mr. Bartko had in fact been in treatment/receiving counseling
on a weekly basis for anxiety and PTSD from December 2016. His plan was to
continue to heal and recover.

29. On or about June 15, 2017, Mr. Bartko voluntarily checked into a
facility for the speci?c purpose of obtaining the tools necessary to cope with and
handle the anxiety and PTSD caused by the childhood trauma and abuse, as well as
the apparent lack of a support system on the work and home fronts.

30. While in the facility, Mr. Bartko?s wife ?led for divorce. This created
further anxiety and depression for Mr. Bartko. Eileen Bartko filed an in?ammatory
statement with the court in the divorce proceeding that alleged Mr. Bartko had a
drinking problem.

31. Mr. Bartko checked out of the facility and returned to work on July 17,
2017. Neither the President nor any other member of Human Resources or the
executive team had any discussions with Mr. Bartko to offer support or to determine
the need for accommodation or adjustment to assist Mr. Bartko.

32. Of note, Mr. Bartko?s therapist wrote a letter after he completed
treatment at the facility that states in part, "After diagnosing and assessing [Mr.
Bartko] it is in my professional opinion that [Mr. Bartko] does not have a drinking
problem. [Mr. Bartko] has a hostile, unsupportive lifestyle problem that does not
promote healing or allow [Mr. Bartko] to feel safe." The therapist also states, have
invited [Mr. Bartko] to consider the bene?ts of asserting himself and asking others
for support as he discloses the truth of his abuse. But as this is a slow relearning
process, there may be times when, as he has feared, his disclosure may be met with
retaliation. As [Mr. Bartko] continues to heal, he will need the freedom to tell his
story without fear of retribution.? Mr. Bartko provided this letter to President
Castro.

33. Employees who worked with Mr. Bartko have stated that Mr. Bartko

came back from his FMLA leave with renewed vigor and enthusiasm towards his
job. He was more engaged with all levels of staff, whereas before there were times

Page 7 of 13

due to the trauma he was suffering he was in ?survival mode." His team reported
that Mr. Bartko jumped right back into performing his job duties. Mr. Bartko had
been equipped with the tools he needed to thrive outside of his abuse, including a
support system of friends and professionals he built himself.

34. Without any warning or discussion, however, and just four days after
Mr. Bartko returned to work, President Castro sent Mr. Bartko a third letter on July
21, 2017, purporting to ?nally provide the "speci?c performance improvement plan
that would focus on issues of concern that were contained within [his] letters [to Mr.
Bartko] dated back on February 3, 2017 and April 26, 2017.?

35. The purported ?speci?c improvement plan? is a sham and a pretextual
act of discrimination and/or retaliation. It is not speci?c or objective; rather, it is
subjective and vague?essentially stating "be better" without offering speci?c
guidance. The letter contains allegations of ?performance issues? that simply did
not exist and mischaracterizes other incidents. Among other things, for example,
President Castro alleges in the letter that Mr. Bartko did not meet regularly with his
Senior Leadership Team. in fact, Mr. Bartko did regularly meet with his Senior
Leadership Team, and he also created agendas for the meetings [another purported
criticism). Despite allegations in President Castro's performance improvement plan
to the contrary, Mr. Bartko also met with Head Coaches at least 

36. Other demands in the purported improvement plan were simply
unrealistic or constructed to create tighter controls on Mr. Bartko. For example,
President Castro demanded that Mr. Bartko be physically in the of?ce from daily basis. This is not a job requirement stated in the Letter of
Appointment or anywhere else, and it is patently inconsistent with his stated duties
as Athletic Director. Mr. Bartko was required to be out of the of?ce on campus
attending meetings, checking facilities, meeting with staff, etc. He was also required
to meet with alumni, donors, and others in the Valley. Those who worked with Mr.
Bartko did not have any issues contacting him; Mr. Bartko was in constant
communication with his team.

37. Other unrealistic or fabricated job duties mandated in the purported
performance improvement plan included the requirement that reimbursement
requests be submitted within 30 days of incurring the expense. Apparently,
President Castro decided his previously stated arbitrary 45-day deadline for
submission of reimbursement requests was too long for Mr. Bartko, and he changed
the timeframe to 30 days. The reimbursement issue was pretextual because, again,
Mr. Bartko was required to pay the expenses personally out of his own pocket prior
to seeking reimbursement. Fresno State never incurred unreasonable debt or
suffered ?nancial hardship as a result of Mr. Bartko's actions. Likewise, the
requirement that Mr. Bartko put his whereabouts on calendar at all time was
without business purpose, because Mr. Bartko was never out of touch with his team.
A requirement that Mr. Bartko notify CSU Fresno of his specific whereabouts at all

Page 8 of 13

times via his calendar also violates Mr. Bartko's right to privacy as he continued to
engage in continued treatment and care for his medical condition.

38. Of note, the July 21, 2017 ?performance improvement plan? does not
include any mention of the consumption of alcohol by Mr. Bartko. This is because, as
noted by his treating therapist, there was no ?alcohol? issue with respect to Mr.
Bartko. He was never "drunk on duty,? and he denies that he is or has ever been
addicted to alcohol.

39. The July 21, 2017 promises follow-up from President Castro that
never occurred:

will allow you 90 calendar days from the date of this memorandum to
improve your performance to an acceptable level. I will periodically
discuss with you your progress in attaining acceptable performance
during the PIP period. I will be available whenever you need
assistance and will furnish any appropriate guidance or training you
need in order for you to meet your performance expectations.

At the end of 90 calendar days, I will again evaluate your performance.
This evaluation will include all aspects of your performance as outlined
in your PIP. Additionally, your performance must show sustained
improvement for all core criteria in the PIP.

My intention is to provide you the opportunity to improve your
performance.

40. These statements and what happened in the 90 days following the
receipt of the "performance improvement plan? reveal the untruth of President
Castro?s ?nal statement that his intention was to provide Mr. Bartko with the
opportunity to improve his performance. President Castro did not meet with Mr.
Bartko periodically to discuss his progress with respect to the issues addressed in
the President Castro did not, at any time after sending the July 21 letter, offer
Mr. Bartko ?appropriate guidance or training.? President Castro did not provide any
further evaluation to Mr. Bartko as promised 90 days after the July 21, 2017 letter.

41. In August of 2017, Mr. Bartko prepared a self-evaluation that detailed
his own assessment concerning his successes, challenges, and goals for the next
year. A few days later, and without mention of the self-assessment he wrote or any
discussion at all, Mr. Bartko received his performance evaluation from President
Castro. He was told that the evaluation was signed and on President Castro?s
secretary's desk. Mr. Bartko was told to review the evaluation and to sign it, and
then he would receive a copy for his own records. Where previous evaluations were
letters written by President Castro, this particular evaluation was a ?form.? The
evaluation period is stated as 7/1/16 to 6/30/17. Each and every category in the

Page 9 of 13

performance evaluation includes simply a reference to the "Performance
Improvement Plan.?

42. After receiving his evaluation, Mr. Bartko continued to perform his job
duties with success. He was not given any further notice of performance issues, or
problems associated with his work. He continued to attend one-on-one meetings
with President Castro, who did not offer him guidance, criticism, or any other
feedback concerning the issues raised in the purported ?Performance Improvement
Plan.? The expired with no further discussion or criticism or extension.

43. On Monday, November 6, 2017, Mr. Bartko attended a Cabinet
meeting. During the meeting, there were congratulations and discussions about the
success of the football team; after their win on November 4, 2017, the Bulldogs were
going to a Bowl game, and they had essentially accomplished a complete turnaround
from the prior season. After lunch, Mr. Bartko was scheduled to have his one-on-
one meeting with President Castro. When he showed up for the meeting looking
forward to positive discussion, he was told that Vice President Astone had been
asked to be present at the meeting. Mr. Bartko was also told by President Castro
that the meeting was not going to be a good meeting. Minutes later, Mr. Bartko was
presented with a true ?Hobson?s Choice.? He was told that he could either be ?red
?for cause,? or he could resign and receive a minimal severance.

44. Mr. Bartko believed that if he did not ?voluntarily? resign, he would
face the public release of the ?facts? of his termination for cause. The ?facts? were
purportedly written in a ?ve-page ?termination letter? that essentially (and falsely)
branded him an incompetent alcoholic. Termination for the trumped up ?cause?
meant embarrassment for his family?his children in particular. Moreover,
termination for the purported reasons set forth in the termination letter would
leave a blight on what had, up until that day, been an untarnished 33-year
reputation and career. Termination for ?cause? meant immediate ?nancial
consequences and a very public and humiliating end to his employment.
Resignation, on the other hand, saved Mr. Bartko from the humiliation of being
branded an incompetent alcoholic, but it carried other consequences, including an
abrupt end at a time when things were going very well for the community, the
school, athletics, and fundraising.

45. Mr. Bartko was not given time to fully read the documents placed
before him. He asked several times in the few minutes he was given to consider his
options if he could speak with an attorney. He was told ?no? initially, then he was
given about ?ve minutes to try to call someone from a phone in a nearby conference
room. Mr. Bartko was told he could not take any of the documents that had been
brie?y displayed in front of him into the conference room with him. Mr. Bartko
tried and failed to reach his wife. Then Mr. Bartko called his assistant, but she had
already been confronted by a Human Resources employee for CSU Fresno and was
allegedly ?too upset? to talk to Mr. Bartko. Then, Vice President Astone knocked on
the door and told Mr. Bartko ?Time?s up, you have to make a decision.? Apparently,

Page 10 of13

President Castro had already scheduled a meeting with the senior staff for 1:30 pm.
At 2:15 all other staff were to be informed of Mr. Bartko?s departure. A little
while after the staff was noti?ed, a prepared press release was announced to the
media and the public. 

46. After he signed a brief statement of resignation placed in front of him,
Mr. Bartko was directed to sign a document, also placed in front of him, called a
?Settlement Agreement and Release? that included a waiver "of any right [he] may
have under law or regulation to seek reconsideration or to revoke his resignation.?
The ?Settlement Agreement and Release? also included a purported release and
waiver of any and all claims pertaining to Mr. Bartko?s employment.

47. The release and waiver Mr. Bartko signed is invalid and unenforceable
as a matter of law. For a release and waiver to be enforceable, the release and
waiver of claims must be ?knowing and voluntary.? Courts look at the ?totality of
the circumstances? to determine whether a release and waiver is enforceable,
including analysis of the following seven factors: (1) whether the release was
written in a manner that was clear and specific enough for the employee to
understand based on his education and business experience; whether it was
induced by fraud, duress, undue in?uence, or other improper conduct by the
employer; (3) whether the employee had enough time to read and think about the
advantages and disadvantages of the agreement before signing it; (4) whether the
employee consulted with an attorney or was encouraged or discouraged by the
employer from doing so; (5) whether the employee had any input in negotiating the
terms of the agreement; and whether the employer offered the employee
consideration severance pay, additional bene?ts] that exceeded what the
employee already was entitled to by law or contract and the employee accepted the
offered consideration. The release and waiver procured on November 6, 2017 was
not ?knowing and voluntary," Mr. Bartko was not given a reasonable opportunity to
read it, he was not permitted the advice of counsel, and it was induced by fraud,
duress, undue in?uence, or other improper conduct by his employer.

48. The release and waiver Mr. Bartko signed under duress is also
unenforceable and/or invalid because its content fails to meet legal requirements
under the ADEA.

49. in shock and under extreme duress, Mr. Bartko signed the "letter of
resignation? and signed the "Settlement Agreement and Release.? Minutes later, he
was escorted out of President Castro?s office by a Human Resources employee. Mr.
Bartko's phone was taken from him, and he was told he would need to go to his
of?ce to collect his things. Mr. Bartko, still in shock and angry about how he had
been forced to end his own career as Athletics Director, declined to return to his
of?ce and went home. At 6:30 am. on November 7, 2017, Mr. Bartko?s wife and
daughter were woken up to the sound of CSU Fresno employees pounding on the
door to collect Mr. Bartko?s courtesy vehicle.

Page 11 of13

50. In the press release issued by President Castro shortly after he and
Ms. Astone met with Mr. Bartko, President Castro represented to the public, without
any notice to or approval from Mr. Bartko, that Mr. Bartko had voluntarily resigned
for "personal reasons." The statement was false. Mr. Bartko did not resign for
?personal reasons.? Mr. Bartko did not voluntarily resign at all. The statement also
immediately caused rumors and negative inferences that harmed and continue to
harm Mr. Bartko's reputation. Of note, the ?resignation? letter prepared by CSU
Fresno for Mr. Bartko's signature does not state that he is resigning for ?personal
reasons."

51. A few days later, Mr. Bartko returned to campus to receive his final
paycheck and his personal belongings. Thereafter, he was provided for the ?rst
time with a copy of the purported termination letter and the documents he signed
that resulted in his ?resignation? on November 6, 2017. The purported termination
letter contains allegations that are provably false.

52. On information and belief, President Castro and/or Steve Robertello
and/or Vice President Astone engaged in a ?whisper campaign" by telling donors
and other prominent members of the Valley community in the days leading up to
Mr. Bartko's forced resignation that Mr. Bartko was going to be ?red because he was
an alcoholic and he wasn?t doing his job. Like a stone thrown into a pond, the
"whisper campaign? caused a ripple-effect that continues to cause damage to Mr.
Bartko?s reputation.

53. Mr. Bartko was more than competent as Athletics Director for Fresno
State; he was a successful Athletics Director. Mr. Bartko performed his essential job
duties and more for CSU Fresno, all the while battling anxiety and PTSD suffered as
a result of traumatic childhood abuse by a Catholic priest. During his job interview,
President Castro told Mr. Bartko that there were several critical elements to the AD
job at the time, including: turning the football program around; re-engaging the
?Red Wave?; no NCAA infractions; no arrests; bring up athlete add two sports;
stabilize ticket revenue; increase donations; and keep APR at a high level. All of
these goals were achieved during Mr. Bartko's term as Athletics Director. In
addition to meeting these goals, Mr. Bartko also achieved all of the goals outlined in
his ?ve-year plan and vision for CSU Fresno within 2.5 years. Mr. Bartko?s efforts as
Fresno State?s Athletic Director were signi?cant; they also were openly appreciated
and respected by alumni and others throughout the Valley given the outpouring of
support that Mr. Bartko received throughout his tenure and that he continues to
receive.

54. President Castro and others also praised Mr. Bartko publicly for the
following accomplishments during his term as Athletics Director:

0 In June 60% of the 425 student athletes posted a GPA above 3.0, including
120 student athletes who held a GPA above 3.5 and 41 who had a perfect 4.0

Page 12 of13

0 Five men?s and women?s sports earned NCAA public recognition awards for
academic excellence achieving the highest possible Academic Progress Rate
score with a perfect mark of 1,000 in May.

0 Men?s basketball won the 2016 Mountain West tournament championship
advancing to ?rst NCAA tournament since 2001.

- Expanded Fresno State?s NCAA Division 1-sanctioned sports through the
reinstatement of men?s wrestling and the addition of women?s water polo.

Hired several distinguished head coaches, including: Jeff Tedford (football),
Troy Steiner (wrestling). Natalie Benson [women's water polo) and Linda
Garza (softball) and Paluka Shields [men?s tennis).

55. From the time of Mr. Bartko's announcement concerning the
traumatic abuse and resulting medical conditions he was suffering from, President
Castro and others at CSU Fresno treated him differently and discriminated against
him. They failed and/or refused to offer true support or assistance to him. Rather,
Mr. Bartko's bravery and desire for treatment and recovery from anxiety, insomnia,
PTSD and other were met with unwarranted criticism, false allegations,
invented or petty ?performance issues,? discrimination, retaliation, humiliation, and
disdain. From the time Mr. Bartko checked out of ?Sierra Tucson? in January of
2016, he was re?victimized by CSU Fresno, and he was ultimately branded
incompetent (despite a clear record of success) and an alcoholic (based on
biased/unknown/unidenti?ed witnesses and evidence that was never disclosed or
presented to him). As a result of CSU Fresno?s actions, including the actions of
individual employees and representatives of CSU Fresno, Mr. Bartko has suffered
not only ?nancial harm, but harm to his body, mind, spirit and reputation.

Page 13 of 13

Dunn, DeSantls, Walt Kendrick. LLP Operating Account 3 3 3 4

Trustees of CSU
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