ARNOLD SCHEER v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA еt al.
B303379
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Filed 3/28/22
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BC659170)
Greene Broillet & Wheeler, Mark T. Quigley, Christian T.F. Nickerson; Esner, Chang & Boyer, Stuart B. Esner and Kevin K. Nguyen for Plaintiff and Appellant.
Horvitz & Levy, Bradley S. Pauley, Scott P. Dixler, Eric S. Boorstin; Munger, Tolles & Olson, Bryan H. Heckenlively, John B. Major and Samuel H. Allen for Defendants and
Fisher & Phillips, Karl R. Lindegren and Lizbeth Ochoa for Defendant and Respondent Scott Binder.
In this case alleging whistleblower retaliation, plaintiff and appellant Arnold Scheer, M.D., M.P.H., appeals a judgment entered pursuant to the grant of a motion for summary judgment in favor of defendants and resрondents The Regents of the University of California (Regents), Jonathan Braun, M.D., Ph.D., and Scott Binder, M.D., (collectively, Defendants).
Scheer brought his whistleblower claims in three causes of action, alleging violations of three statutes:
Lawson did not change the legal framework for Scheer‘s third claim under
FACTUAL AND PROCEDURAL BACKGROUND
A. Pleadings
On April 26, 2017, Scheer filed this action against his former employer, the Regents, and two of his former supervisors, Braun and Binder, alleging he was wrongfully terminated from his position as Chief Administrative Officer (CAO) of the UCLA Department of Pathology and Laboratory Medicine (Department) in retaliation for whistleblowing.
The operative first amended complaint pleaded the following causes of action: (1) violation of
Scheer alleges that “he identified and became aware of numerous issues, violations, and concerns related to patient safety, mismanagement, economic waste, fraudulent and/or illegal conduct, unsafe and/or substandard conditions, and incompetence at the facilities of the UC REGENTS, including, but not limited to, recurrent lost patient specimen issues, mislabeling and mix-up of patient samples resulting in misdiаgnosis, lost specimens used in NIH funded research, and failure and/or refusal to follow required procedures to investigate, analyze, and formulate action plans to correct patient safety issues.” Scheer pleaded that as a result of his attempts to properly report and correct the violative conduct, he was
B. The motions for summary judgment
The Regents and Braun jointly filed a motion for summary judgment or summary adjudication of issues. They argued that as to all three causes of action, Scheer was terminated for legitimate, nonretaliatory reasons, as set forth in their June 2, 2016 nоtice of intent to terminate (NOIT), and that Scheer could not meet his burden of demonstrating those reasons were pretextual, as required by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas).
Under the three-part burden-shifting framework laid out in McDonnell Douglas, the employee must first establish a prima facie case of unlawful discrimination or retaliation (McDonnell Douglas, supra, 411 U.S. at p. 802); next, the employer bears the burden of articulating a legitimate reason for taking the challenged adverse employment action (ibid.); and finally, the burden shifts back to the employee to demonstrate that the employer‘s proffered legitimate reason is a pretext for discrimination or retaliation (id. at p. 804). In arguing that Scheer could not meet the third prong, the Regents and Braun asserted that Scheer was terminated not for whistleblowing, but “beсause he bullied and intimidated those with whom he worked and over time became ineffective in his role. . . . The letter from Department leadership informing Plaintiff of the intent to terminate him [i.e., the June 2, 2016 NOIT] made that clear, stating Plaintiff was being terminated because he (1) had an overly aggressive attitude concerning certain negotiations; (2) had a harsh and disruptive style at meetings; (3) had become
Binder filed a separate motion for summary judgment, directed solely at the third cause of action to which he was a party. Binder similarly contended that Scheer was terminated for legitimatе, nonretaliatory reasons, and Scheer could not meet his burden under McDonnell Douglas to establish pretext.
C. Scheer‘s opposition to summary judgment
In opposition, Scheer contended there were triable issues of fact as to whether Defendants’ stated reasons for his termination were pretextual. Among other things, Scheer asserted the “reasons given for [his] termination in the NOIT are patently false and are expressly refuted by his having received outstanding performance on his FY15 Performance Review, given by Defendant Dr. Braun in July 2015. Further, Dr. Scheer‘s FY16 goals were developed in consultation with Dr. Braun and submitted on or about September 11, 2015. The FY16 goals do not identify any behavioral or other performance issues. . . . Thus, a triable issue of fact exists whether defendants’ stated reasons for termination are true. For this threshold reason the motion should be denied.”
D. Trial court‘s ruling
After hearing the matter and taking it under submission, the trial court issued an order granting Defendants’ motions for summary judgment. The trial court ruled that the McDonnell Douglas burden-shifting analysis governed the three whistleblowing causes of action, and it proceeded to apply that framework.
On the first step of the analysis, the trial court found that Scheer met his burden to prove a prima facie case of retaliation
On the second step, the trial court found that “Defendants present sufficient evidence demonstrating that Plaintiff was terminated for his harsh and aggressive style of work and increasing ineffectiveness as CAO. . . . Defendants also present supporting testimony and documentary evidence that there were multiple complaints and concerns about Plaintiff regarding his aggressive behavior and that the Human Resources Department conducted an investigation accordingly. . . . The proffered reason for termination, whether good or not, is facially unrelated to the alleged rеtaliatory motive and, therefore, Defendants meet their burden of production. . . . [] The Court finds that Defendants properly show legitimate, non-retaliatory reasons to defeat the presumption of retaliation. The burden shifts back to Plaintiff to show the proffered reasons were untrue or pretextual.”
On the third and final step, which is the crux of this appeal, the trial court ruled that Scheer had failed to raise a triable issue of material fact as to pretext. The trial court stated:
“Plaintiff argues that, while there is no direct evidence of discriminatory intent, Defendants’ stated reason for his termination is false because he received satisfactory performance reviews and even accolades for his outstanding performance until even after he made complaints about patient safety issues in 2015. . . . Plaintiff asserts that this is sufficient circumstantial evidence of pretext because his termination can only be explained by Defendants’ retaliatory motive for his protected activity.
“Lastly, Plaintiff‘s evidence of temporal proximity between Plaintiff‘s reporting of safety issues and his termination is not sufficient to support an inference of pretext. In the third stage of burden to show pretext, temporal proximity alone does not raise a triable issue as to pretext, whereas the same may satisfy the causation requirement at the first step of the burden-shifting process. [Citation.] Standing alone against Defendants’ strongly supported legitimate reason for termination, temporal proximity here does not amount to a showing of discriminatory intent. . . . In fact, the records show that verbаl complaints from
Scheer filed a timely notice of appeal from the December 27, 2019 judgment.
E. The Lawson decision
This court deferred consideration of the appeal pending the California Supreme Court‘s decision in Lawson v. PPG Architectural Finishes, Inc., supra, 12 Cal.5th 703, which would determine whether
On January 27, 2022, the California Supreme Court issued its decision in Lawson v. PPG Architectural Finishes, Inc., supra, 12 Cal.5th 703. Lawson held that Labor Code “[s]ection 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under [Labor Code] section 1102.5.” (Lawson, at p. 718.) Lawson held with clarity that the “plaintiff need not satisfy McDonnell Douglas in order to discharge” the plaintiff‘s burden. (Ibid.)
Following the issuance of Lawson, we requested that the parties file supplemental briefs addressing the impact of Lawson on the issues presented in the appeal. Scheer filed his
DISCUSSION
Scheer contends that the trial court erred in ruling that there were no triable issues of material fact as to his claims. In his supplemental brief, Scheer also contends that Lawson requires reversal as to his retaliation claims under both
I. Standard of appellate review
“We independently review an order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We determine whether the court‘s ruling was correct, not its reasons or rationale. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376.) ‘In practical effect, we assume the role of a trial court аnd apply the same rules and standards which govern a trial court‘s determination of a motion for summary judgment.’ (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.)” (Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499, 504-505.) In performing our de novo
II. Lawson requires reversal as to Scheer‘s second cause of action for violation of Labor Code section 1102.5.
In Lawson, supra, 12 Cal.5th 703, our Supreme Court addressed whether the evidentiary standard set forth in
Here, the Regents moved to summarily adjudicate the second cause of action, violation of
Scheer‘s opposition papers in the trial court also did not invoke
The Regents argue that on this record, we should affirm the trial court‘s ruling with respect to the second cause of action, notwithstanding thаt Lawson revised the analytical framework for resolving claims under
III. Lawson requires reversal as to the Scheer‘s third cause of action for violation of Government Code section 8547.10.
Although Lawson involved
This language in
Guided by Lawson and applying its reasoning, we conclude that
IV. The trial court erred in finding no triable issues of material fact on Scheer‘s first cause of action for violation of Health and Safety Code section 1278.5.
A. Lawson did not alter the legal framework for claims asserting a violation of Health and Safety Code section 1278.5.
The final issue on review is the first cause of action, which alleged a violation by the Regents of
B. A triable issue of material fact exists as to whether the stated reasons for termination were pretextual.
Scheer argues that, under the third prong of the McDonnell Douglas framework, triable issues of fact exist as to whether his firing was pretextual. We agree.
In their moving papers in the trial court, the Regents asserted that Scheer was terminated for legitimate, nonretaliatory reasons. Specifically, the Regents asserted that Scheer “bullied and intimidated those with whom he worked and over time became ineffective in his role. . . . The letter from Department leadership [i.e., the June 2, 2016 NOIT signed by
If the employer meets its initial burden on summary judgment to show that the adverse employment action was based upon legitimate, nondiscriminatory factors, “the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer‘s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.‘” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.) Both “direct and circumstantial evidence can be used to show an employer‘s intent to retaliate. ‘Direct evidence of retaliation may consist of remarks made by decisionmakers displaying a retaliatory motive. [Citation.]’ [Citation.] Circumstantial evidence typically relates to such factors as the plaintiff‘s job performance, the timing of events, and how the plaintiff was treated in comparison to other workers.” (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.) Here, Scheеr relied on circumstantial evidence to show a retaliatory motive.
Evidence “that the employer‘s claimed reason is false—such as that it conflicts with other evidence, or appears to have been contrived after the fact—will tend to suggest that the employer seeks to conceal the real reason for its actions, and this in turn
The NOIT, in the first paragraph, advised Scheer of the intent to dismiss him from his position as CAO “because the needs of the department and your poor performance and conduct no longer support your appointment.” Josh Samuels, the employee relations manager, drafted the NOIT. When questioned at his deposition about “the needs of the department,” Samuels stated, “I would refer basically to the rest of the letter. And also, part of that language I think is also a reference to the termination language in the person[nel] policies for staff members.” Thus, a trier of fact could draw the inference that the statement in the NOIT about the needs of the department was merely boilerplate language drawn from a personnel manual.
As for the statement in the NOIT that Scheer was being terminated for “poor performance,” that fact was strongly disputed by Scheer. In his opposing separate statement, Scheer proffered as an additional disputed fact the following: “From the beginning of his tenure at UCLA in 2004 through the date of his constructive termination in February 2016, Dr. Scheer continued to receive accolades, positive feedback, promotions, and additional assignments and responsibilities frоm upper management, including from Defendants Dr. Braun and
The Regents did not dispute this fact. In their responsive papers, they merely stated, “Immaterial. Plaintiff‘s receipt of unspecified accolades, positive feedback, promotions, and additional assignments does not rebut that Defendants had a non-retaliatory reason for terminating Plaintiff, i.e., Plaintiff‘s unprofessional demeanor and ineffective performance as CAO in specific ways later in his career, and that Defendants in fact terminated Plaintiff for that reason.”
In fact, Scheer presented evidence that he received his performance evaluation for fiscal year 2014-2015 around the end of July 2015, just three months before his termination was initiated. Like his earlier performance evaluations, his most recent evaluation contained no criticisms or negative feedback concerning his work product or performance from June 2014 to June 2015. Scheer also worked with Braun and Binder on his performance goals and objectives for fiscal year 2015-2016, which were completed and submitted in September 2015. Scheer‘s performance goals and objectives for 2015-2016 did not indicate any areas of his work product or performance that were deficient and needed improvement.
Again, this fact was undisputed by the Regents. The Regents merely responded, “Immaterial. The fact that Plaintiff was not informed of his performance issues does not rebut that those issues in fact existed and that, accordingly, Defendants had a non-retaliatory reason for terminating Plaintiff, i.e., Plaintiff‘s unprofessional demeanor and ineffective performance as CAO in specific ways later in his career, and that Defendants in fact terminated Plaintiff for that reason. These facts therefore do not establish pretext.”
The Regents’ characterization of Scheer‘s evidentiary showing as “immaterial” is not well taken. Scheer‘s undisputed evidence showed that he unfailingly received excellent evaluations over a 12-year period, and no one ever advised him of any shortcomings or deficiencies that were asserted in the NOIT. Scheer‘s evidence put in issue the NOIT‘s statement that he was being terminated for “poor performance and conduct.”
The NOIT also stated that Scheer had become “a problematic presence within the Department.” However, Binder, one of the signatories of the NOIT, stated at his deposition “a problemаtic presence within the department, I don‘t agree with
The NOIT also stated that Defendants had taken a very serious adverse personnel action against Scheer: “Specifically, in February, 2015, we expressed concerns about your interactions with Shannon O‘Kelley, Chief Operating Officer, and Laura Yost, Executive Director, Clinical Services for UCLA Health. Over the following months, concerns were expressed to you about your overly aggressive attitude concerning negotiations with thе Hospital regarding memoranda of understanding as well as your style at meetings that was deemed to be harsh and disruptive. As a result of these concerns, we took the significant step of removing all of your Hospital responsibilities, and your duties were thereafter limited to the School of Medicine.” (Italics added.)
However, Scheer‘s opposing declaration stated that prior to the NOIT, he was never advised that he had been stripped of his hospital responsibilities or that he had been restricted in his duties to the medical school. Scheer‘s declaration also stated that his fiscal year 2016 objectives, approved by Braun in September 2015, specifically identifiеd his goals for clinical lab oversight. Thus, Scheer successfully controverted the statement in the NOIT that he had previously been relieved of his hospital responsibilities
The NOIT also criticized Scheer‘s “overly aggressive attitude concerning negotiations with the Hospital regarding memoranda of understanding.” However, Scheer previously received commendation for his work in the negotiations. On
The NOIT also criticized Scheer‘s involvement in the opening of a new laboratory in China, stating, “In spite of one visit to the Chinese laboratory you never followed through with the issues there.” However, Scheer‘s fiscal year 2015 performance evaluation, sent July 31, 2015, stated, “100% of goal was obtained by implementing other revenue enhancement opportunities such as . . . opening of joint venture with CTI in Shanghai, China, and taking on new sites and testing.”
Based on all the above, the trier of fact could determine that the Regents’ stаted reasons, as set forth in the NOIT, were untrue and were a pretext for retaliation. As we have stated, liability cannot be imposed merely because the employer‘s stated
The trial court found that Scheer‘s excellent evaluations “do not speak to or controvert the proffered reason for Plaintiff‘s termination. His performance reviews take the form of checklists relating to completion of individual tasks, rather than subjective evaluations of the quality of his work or his style and manner in completing those tasks.” The trial court‘s view of the evaluations as mere “checklists” is incorrect because the evaluation forms included a field for comments to be entered. Moreover, it is undisputed that Scheer‘s evaluations were unfailingly excellent and that there were no adverse comments. Therefore, it is for the trier of fact to determine whether, as stated in the NOIT, Scheer was terminated for his “poor performance and conduct” or whether those stated reasons were pretextual.
In finding that Scheer‘s evaluations failed to raise a triable issue as to pretext, the trial court also cited Hicks v. KNTV Television, Inc., supra, 160 Cal.App.4th 994 for the proposition that although plaintiff may have been complimented for various newscasts and for his reporting skills in general, that did not controvert evidence that his anchoring style was inadequate in
The trial court also ruled that Scheer‘s “evidence of temporal proximity between [his] reporting of safety issues and his termination is not sufficient to support an inference of pretext.” However, as detailed above, Scheer‘s evidence of pretext went far beyond a showing of temporal proximity between his reporting and his termination—he raised a triable issue of material fact by other facts including evidence that the stated reasons in the NOIT were a рretext for a retaliatory discharge.
In sum, the trial court erred in summarily adjudicating the first cause of action in favor of the Regents.
DISPOSITION
The judgment is reversed, and the matter is remanded for further proceedings consistent with this opinion. Arnold Scheer is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION.
LIPNER, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.