2015-00187010-CU-CR

Robert Paez vs. Regents Of The University of California

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Delventhal, Ivan

** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific issue(s) on which oral argument is sought. **

Defendant Regents of the University of California’s (UC) motion for summary judgment or, in the alternative, summary adjudication of issues is DENIED.

Overview

This case presents an employment dispute. The former employee is Plaintiff Roberto Paez (Paez). In his second amended complaint (SAC), Paez alleges he was a permanent UC employee who most recently served as Chief of Staff in a newly formed office known as DICE–the office of Diversity, Inclusion and Community Engagement. He alleges DICE directly or indirectly served U.C. Davis, the U.C. Davis Health System (UCDHS) and the U.C. Davis School of Medicine. In his view, these entities within the UC system laid him off to retaliate after he reported improper activities (including workplace sexual harassment and financial misconduct) and helped coworkers do the same. He also alleges UC violated his procedural due process rights under the California Constitution.

Among Paez’ allegations are that Dr. Darin Latimore had reason to retaliate against him and was one of the individuals who influenced the decision to lay him off. Paez alleges that in 2011, he reported an aggrieved coworker’s charge of retaliation after complaining about sexual harassment. The report made its way up to Dr. Latimore, who later informed Paez that the charge was found unsubstantiated.

Paez further alleges that he played a role in leveling an internal whistleblower charge that a UC credit card was being misused. According to Paez, an auditor who investigated the charge indicated that the misuse was made possible by Dr. Latimore’s failures to safeguard the credit card’s password and monitor office expenses.

Elsewhere, Paez alleges the decision to lay him off was part of a conspiracy involving several individuals, including Dr. Latimore. Paez alleges that Dr. Fred Meyers was the “architect” of the layoff.

The SAC contains causes of action against UC for (1) Violation of Plaintiff’s Constitutionally Protected Property Right in His Continued Non-Academic U.C.D. Career Employment by Depriving Him of His Right to Due Process-California Constitution, Article I, Sections 7 and 15, and (2) Whistleblower Retaliation and Failed Protection Against It-Government Code § 8547.8(c). UC now moves for summary judgment or, in the alternative, summary adjudication of issues. Paez opposes.

Discussion

Preliminary Considerations

First, the court notes that Paez filed evidentiary objections that contain several blanks where the objectionable evidence should appear. The court will not speculate about the evidence that should have appeared in the blanks and thus disregards the associated objections. (See CRC 3.1354(b).)

The court also notes Paez’ objection that UC’s moving papers do not conform to CRC 3.1350. Subdivisions (b) and (d) of that rule require the movant to identify in the Notice of Motion the causes of action or other issues to be adjudicated, and to repeat those causes of action/issues verbatim in the separate statement. UC’s separate statement is not divided into causes of action or issues for adjudication. Nor does the separate statement mirror the Notice of Motion. Instead, UC’s separate statement contains a single set of facts grouped by subject matter. Paez objects that UC’s organization of its separate statement thwarts efforts to determine whether any material fact is intended to support summary adjudication of one cause of action, the other cause of action, or both. Paez asks the court to deny the motion given UC’s noncompliance with CRC 3.1350.

UC did not comply with CRC 3.1350. The court will not deny the motion as a result, though, because Paez was able to mount a complete opposition. The court discerns no prejudice warranting a denial. Consequently, the court reaches the merits. In the future, however, UC’s counsel should comply with all applicable Rules of Court and procedural statutes. Failure to do so could result in adverse rulings.

The Second Cause of Action for Violation of The Whistleblower Protection Act (WPA), Government Code §§ 8547 et Seq.

Summary adjudication is DENIED.

Labor Code § 8547.10 protects UC employees who disclose UC’s unlawful activities and then suffer retaliation. In terms of the burdens governing a civil action under this section, subdivision (e) provides, in relevant part:

In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of the evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order.

Both parties apply the McDonnell Douglas burden-shifting framework to the second cause of action. (See Arteaga v. Brink’s, Inc. (2009) 163 Cal.App.4th 327, 342 [discussing in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792].) Consequently, the court does the same.

UC argues first that Paez cannot make out a prima face case of retaliation. In UC’s view, Paez cannot establish that he made a “protected disclosure” under the WPA. The term “protected disclosure” is defined to mean “a good faith communication…that discloses or demonstrates an intention to disclose information that may evidence…an improper governmental activity… .” (Lab. Code § 8547.2(e).) In turn, “improper governmental activity means “an activity…that (1) is in violation of any state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency.” In the SAC, Paez alleges he made protected disclosures when he counseled coworkers claiming workplace sexual harassment and retaliation as well as when he reported those coworkers’ concerns within the UC system. (See SAC, ¶¶ 18, 24, 25.) He also alleges he made protected disclosures when he helped a coworker make her own whistleblower complaint about misuse of a UC credit card. (SAC, ¶ 29-30.)

UC argues Paez merely facilitated or forwarded others’ complaints and, therefore, did not make any protected disclosures himself. UC cites Patten v. Grant Joint Union High School District (App. 3 Dist. 2005) 134 Cal.App.4th 1378 for the proposition that forwarding complaints in the context of internal personnel actions, rather than in the context of legal actions, is not whistleblowing. Patten involved a teacher who forwarded to her superiors reports that a male P.E. teacher had peered into a girls’ locker room. (Patten, p. 1382.) The teacher also reported that a male science teacher had made an off-color remark to a female student. (Id.) The Court of Appeal held that these internal reports were not whistleblowing as matter of law. Other cases have reached similar conclusions. (See Levi v. Regents of Univ. of Calif. (2017) 15 Cal.App.5th 892, 904 [construing the WPA].)

Despite Patten and Levi, the court is not persuaded Paez’ allegations do not describe protected disclosures under the WPA. Unlike the teacher in Patten, Paez alleges that he became involved in part because UC employees resisted applicable, internal grievance processes. (See SAC, 18.) Hence, whether he was forwarding information in the normal course of things is disputable. Furthermore, Patten did not address the misuse of public funds that Paez alleges. UC has not met its initial burden of demonstrating that Paez cannot establish a protected disclosure.

Next, UC argues Paez cannot establish a prima facie case of retaliation because it is undisputed his alleged disclosures did not contribute to (i.e., cause) the decision to lay him off. To support its argument, UC tenders declarations from individuals alleged to have influenced that decision. Each declaration contains an assertion that Paez’ role in facilitating coworkers’ internal grievances had no impact in the decision. (See Callahan Decl., ¶ 10; Chilcott Decl., ¶¶ 14-15, 17; Latimore Decl., ¶ 14, 16; Meyers Decl., ¶¶ 10, 11, 13.) Assuming this evidence demonstrates the nonexistence of any triable issue, Paez’ evidence demonstrates that a triable issue does exist.

Under McDonnell Douglas, little evidence is required to make a prima facie showing of causation. (See Arteaga, p. 353.) Temporal proximity between the disclosure and the employer’s adverse action can be enough. (Id.) Paez has produced evidence that in July 2012, he produced the names of witnesses to sexual harassment that allegedly occurred in an office under Dr. Latimore’s supervision. (AMF 18.) He has also produced evidence that the following month, when he spoke with Dr. Latimore about the sexual harassment grievance, Dr. Latimore made comments which, liberally construed, were meant to threaten Paez’ job:

In or around August 2012, I attended a meeting with Mr. Morfin and Dr. Latimore to discuss Post-Bacc Program. Dr. Morfin left the meeting at one point and I was alone with Dr. Latimore. Dr. Latimore suggested to me that Nimonkar’s sexual harassment claims are not as big a deal as I thought. I responded that sexual harassment was and should be considered to be a big deal. I then pointed out that Dr. Latimore was responsible for the Post-Bacc Program and its students. I explained that if the investigation held that the department was liable, Dr. Latimore would be responsible for the failure. Dr. Latimore responded stating that he was going to land on his feet no matter what, and then stared at me. I understood this to be his attempt to threaten my employment.

(Paez Decl., ¶ 21.) UC objects to the last sentence in the passage as speculative. To the extent the sentence contains Paez’ testimony about Dr. Latimore’s intent, the objection is sustained. Liberally construed, however, the remaining evidence supports an inference that Paez would not “land on his feet” like Dr. Latimore. Furthermore, there is evidence that in the months that followed, Dr. Latimore favored a decision to lay Paez off. (See Paez’ Evid., Exh. N.) That the layoff decision was not formalized until later does not bar an inference that Paez’ disclosures contributed to the layoff. Given that the court must liberally construe Paez’ evidence, and given the minimal burden needed to establish causation in the first McDonnell Douglas step, the court will not grant summary adjudication on grounds Paez cannot establish causation.

UC argues next that the second cause of action should be summarily adjudicated because it is undisputed there was a legitimate, non-retaliatory reason for the layoff. (See Arteaga, supra, pp. 342-343 [“[I]f the plaintiff proves the prima facie case, then the burden shifts to the defendant to [articulate a] legitimate nondiscriminatory reason for its employment decision”].) In this regard, UC has produced evidence that it laid Paez off due to “lack of work.” Lack of work was the result of two things. First, Dr. David Acosta–the incoming head of DICE–did not want a Chief of Staff like his predecessor did and wanted to restaff the office from a “clean slate.” (UMF 62-64 [Acosta Decl., ¶¶ 6-7].) Second, even before Dr. Acosta arrived, the DICE office was reorganized and narrowed in scope. (See UMF 68 [Latimore Decl., ¶ 11 and Exh. 2].)

In addition, UC has produced evidence that the reason for Paez’ layoff was not merely a pretext for retaliation. Specifically it has produced declarations, referenced above, of individuals with input into the layoff, each of which contains an assertion that Paez’ role facilitating others’ complaints within UC was not a contributing factor. (See Callahan Decl., ¶ 10; Chilcott Decl., ¶¶ 14-15, 17; Latimore Decl., ¶ 14, 16; Meyers Decl., ¶¶ 10, 11, 13.) This evidence demonstrates the nonexistence of any triable issue whether UC had a genuine, non-retaliatory reason for the layoff. The burden thus shifted to Paez to produce evidence demonstrating the existence of a triable issue.

Some of Paez’ evidence of pretext is inadmissible hearsay evidence in an investigative report (Report) issued after he filed his internal whistleblower complaint with UC. (See Paez’ Evid., Exh. M.) UC commissioned the Report in response to Paez’ internal complaint. (See Paez Decl., ¶ 31; UC’s Evid. Object. 24 [conceding the Report’s authenticity.) Sue Ann Van Dermyden (Van Dermyden) is the Report’s sole signatory. The Report’s Introduction provides that UC “retained Van Dermyden Maddux Law Corporation to conduct an independent investigation” into Paez’ whistleblower complaint.

Paez cites several statements in the Report. (Some of his citations reference the wrong page numbers.) In each statement, Van Dermyden attributes a further statement to a UC interviewee. For example, the following appears on pages 11 and

12 [Bates Nos. D000975 – D000976] of the Report:

Several witnesses described Mr. Paez’ performance this way:

[¶¶]

· “The general assessment of Roberto over the last 10 to 15 years was that he was barely competent.” – Dr. Fred Meyers

· “I was led to believe that he had performance issues and shifted between departments because of it. […] – Dr. David Acosta

Citing other evidence that Dr. Meyers provided input into the decision to lay him off, (Add’l Material Fact (AMF) 55), Paez argues Dr. Meyers’ above-captioned statement discloses a desire to discharge him for reasons unrelated to “lack of work” or DICE’s reorganization. Similarly, Paez cites the statement attributed to Dr. Acosta as proof that Dr. Acosta’s perception of him was tainted by others. For its part, UC objects that the above-captioned statements are hearsay.

UC’s hearsay objections are sustained. The statements above encompass double hearsay. The first layer of hearsay lies in the full statement, which is Van Dermyden’s assertion of how witnesses described Paez. Van Dermyden’s statement is an out-of-court statement offered for its truth and, consequently, is hearsay. (Paez has not qualified the Report as a business record under Evidence Code § 1271.) The second layer of hearsay lies in the quoted statements attributed to Drs. Meyers and Acosta. Each quoted statement is another out-of-court statement offered for its truth. Even if one or both of the quoted statements could be admitted for a nonhearsay purpose, or could be received as admissions or prior inconsistent statements, the first layer of

hearsay would remain. The evidence is thus inadmissible, and the court disregards it.

Paez relies on other hearsay in the Report as well. AMF 34, 50 and 51 read, respectively:

Dr. Latimore alleged that Mr. Paez had performance issues since July 2012, when Paez disclosed the names of witnesses.

Dr. Latimore suspected Paez was assisting the complainants of sexual harassment because Dr. Latimore recognized Paez’s writing style in the complaints.

Dr. Latimore was concerned about Paez’s role in assisting the complainants in his office.

The only evidence to support these facts is the Report. Again, UC objects that the cited portions of the Report are hearsay, and again, the objections are sustained.

Paez cites evidence other than the Report to show UC’s “lack of work” justification was pretextual. As noted above, he tenders testimony that in July 2012, he provided Human Resources and Dr. Latimore with information about a sexual harassment claim in an office under Dr. Latimore’s supervision. (See Paez Decl., ¶¶ 5, 20.) Paez also tenders testimony, cited above, that Dr. Latimore asserted he “would land on his feet” and, by implication, Paez would not. Paez also cites evidence that Dr. Callahan, another individual with input into layoff decision, intimated in September 2012 that Paez would not be around when the U.C. Davis School of Medicine sought its accreditation in 2014. (See Paez Decl., ¶ 22.) Although Dr. Callahan’s statement does not in itself support an inference of a retaliatory motive, it does support an inference that a decision to discharge Paez had been made before UCDHS offered Dr. Acosta the position as head of DICE in April 2013. (See Acosta Decl., ¶ 5.) Taken as a whole, the evidence supports an inference that Dr. Acosta’s arrival and the reorganization of DICE were not the only reasons for the decision to lay off Paez. Because the evidence supports a conclusion UC’s proffered reason for the layoff are not worthy of credence, (see Morgan v. Regents of Univ. of Calif. (2000) 88 Cal.App.4th 52, 68-69), summary adjudication is denied.

The First Cause of Action for Violation of Due Process under the California Constitution

Summary adjudication is DENIED.

Relying on the same evidence it produced to support summary adjudication of the second cause of action, UC argues Paez was not entitled to any process other than that set forth in its internal policies governing layoffs for lack of work. UC cites cases that arguably support its position. (See Moving Memo. at 16:3-17.) At the same time, however, UC does not deny that if Paez was discharged for cause, or out of retaliation, then he would have been entitled to additional process beforehand or afterward. UC thus predicates summary adjudication of the first cause of action on the nonexistence of any triable issue whether Paez was laid off due to lack of work. For reasons discussed in the previous section, whether the “lack of work” justification was pretextual presents a triable issue. As a result, UC’s argument fails.

UC also argues Paez waived any right to further process by failing to request a hearing. For this proposition, UC cites Kardell v. Lane (9th Cir., June 20, 2017) 692 Fed. Appx. 810, 2017 U.S. App. LEXIS 10898, and Franks v. Magnolia Hospital (N.D. Miss. 1995) 888 F. Supp. 1310. Neither case construes the California Constitution, which is the authority for the first cause of action. Furthermore, UC’s argument that Paez was required to request a hearing to contest his layoff is predicated on its position that he was only entitled to the processes set forth in its Policy for Professional and Staff Support (PPSM) 60, which governs layoffs. Because the question whether Paez was laid off involves a triable issue, so does the question whether he was limited to procedures associated with a layoff.

Finally, UC argues in a footnote that the first cause of action is barred as a matter of law to the extent it is predicated on article 1, § 7 of the California Constitution. (See Moving Memo. p. 20, fn. 11.) UC cites cases for the proposition that art. 1, § 7 only affords equitable relief, not the damages Paez seeks. The cited cases, whoever, do not appear to involve the property interest in continued employment that Paez alleges. Furthermore, at least one case holds that damages can be available in circumstances similar to Paez’. (See Roe v. State Personnel Bd. (2004) 120 Cal.App.4th 1029, 1039 [backpay available to civil servant terminated without due process].)

Summary adjudication is denied.

Objections to Evidence

The court need not rule and does not rule on Paez’ objections Nos. 4 and 9. The court disregards the balance of Paez’ objections for reasons stated above.

UC’s objections Nos. 24 through 29 are sustained. The court need not rule and does not rule on the balance of UC’s objections.

Disposition

The motion is denied.