Richard Jennelle vs. The Regents of the UC

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

Filed By: Mola, Katherine L.M.

Defendant Richard Valicenti’s motion for summary judgment, or in the alternative,
summary adjudication, is UNOPPOSED and is GRANTED.

This litigation arises out of the non-renewal of Plaintiff Richard Jennelle’s appointment
as a Health Service Associate Clinical Professor at U.C. Davis Department of
Radiation Oncology. Plaintiff alleges that Defendant, Richard Valicenti, Chairman of
the Department of Radiation Oncology, decided not to renew the appointment in
retaliation for Plaintiff’s complaints about another physician whose conduct and
activities created a danger to patient safety and for Plaintiff’s refusal to participate in
proctoring on the use of a Gamma Knife while also taking care of his clinical
obligations. Plaintiff’s employment ended
June 30, 2009. The University is not a defendant in this action.

Plaintiff alleges one cause of action which includes the following claims: (1) Violation of
Government Code § 8547.10, (2) Violation of Health & Safety Code § 1278.5, (3)
Violation of 42 USC § 1983, and (4) Violation of Business and Professions Code §
2056. The Court granted summary adjudication of Plaintiff’s Violation of Gov’t Code
§8547.10 in favor of Defendant on 8/27/2012.

42 USC §1983

In §1983 cases, retaliatory motive may be proved by showing that the employer knew
of his speech or complaint, and produced evidence of at least one of the following: (1)
“proximity in time between the protected action and the allegedly retaliatory
employment decision was one in which a jury logically could infer [that the plaintiff] was
terminated in retaliation for his speech,” (2) the employer expressed opposition to his
speech or complaint, either to him or to others, or (3) his employer’s proffered
explanations for the adverse employment action were false and pretextual. (Keyser v.
Sacramento City Unified Sch. Dist. (9th Cir. 2001) 265 F.3d 741, 744.)

Defendant moves for summary adjudication of this claim on the grounds that Plaintiff
cannot show that his “protected speech” was a substantial or motivating factor in
Defendant’s decision not to renew his appointment. Defendant also moves for
summary adjudication on the grounds that Defendant would not have renewed
Plaintiff’s appointment even in the absence of alleged protected speech (i.e. legitimate,
non-retaliatory reason).

Defendant’s separate statement includes the following. As the new Chairman,
Defendant’s mission was to improve the quality of research being done in the
Department. (Defendant’s separate statement (“UMF”), 47.) Defendant wanted to
staff the Department with doctors who are physician-scientists with excellent research
skills, along with quality clinical skills. (Id.) Within his first eighteen months as
Chairman, Defendant hired three physicians, who in his opinion, had excellent
research and clinical skills. (Id. 49-52.) Defendant assessed Plaintiff’s qualifications
and determined that he did not want to renew Plaintiff’s appointment. (Id. 55.) While
Defendant believed Plaintiff was a good clinician, he did not believe Plaintiff possessed
the strong research background and academic credentials he desired for physicians in his Department. (Id. 55-61.) Plaintiff’s decision to resign as Clinical Director three
days after Defendant started work negatively affected Defendant’s trust in him. (Id.
83.) Defendant also had concerns about Plaintiff’s ability to communicate effectively
with him. (Id. 84.)

The Court finds that Defendant has satisfied his initial burden to demonstrate that no
triable issue of material fact exists with respect to having a legitimate, non-retaliatory
reason for not renewing Plaintiff’s appointment. By failing to oppose the motion,
Plaintiff cannot meet his burden. Accordingly, the motion for summary adjudication on
the §1983 claim is GRANTED.

H&S Code §1278.5

Health & Safety Code §1278.5 prohibits discrimination or retaliation against an
employee or patient who “presents a grievance, complaint, or report” to the facility, its
accrediting agency, the medical staff, or to any other governmental entity.

Defendant moves for summary adjudication on the grounds that Plaintiff cannot
establish a prima facie case of retaliation and that Defendant had a legitimate, non-
retaliatory reason for not renewing Plaintiff’s appointment.

As noted above, the Court finds that Defendant has satisfied his initial burden to
demonstrate that no triable issue of material fact exists with respect to having a
legitimate, non-retaliatory reason for not renewing Plaintiff’s appointment. By failing to
oppose the motion, Plaintiff cannot meet his burden. Accordingly, the motion for
summary adjudication on the H&S Code §1278.5 claim is GRANTED for the same
reasons set forth above.

B&P Code §2056

Business and Professions Code §2056 provides that terminating an employment or
other contractual relationship with, or otherwise penalizing, a doctor for advocating for
medically appropriate health care violates the public policy of this state. To “advocate
for medical appropriate health care” means to “appeal a payor’s decision to deny
payment for a service . . ., or to protest a decision, policy, or practice that the
physician, consistent with that degree of learning and skill ordinarily possessed by
reputable physicians practicing according to the applicable legal standard of care,
reasonably believes impairs the physician’s ability to provide medically appropriate
health care to his or her patients.” (B&P Code §2056.)

Defendant moves for summary adjudication on this cause of action on the grounds that
Plaintiff cannot show that the decision not to renew his appointment was principally
related to any activity protected by Section 2056.

Defendant further argues that to the extent this claim is based on Plaintiff’s 2007
complaint regarding inappropriate behavior by another physician, such complaint is not
a “decision, policy or practice.” (B&P Code §2506.) Additionally, Defendant did not
work at the University at the time the complaint was made (UMF 2, 6), therefore, he
cannot be held responsible for the outcome.

Defendant lastly argues that with respect to Plaintiff’s claim that he was retaliated
against for refusing to participate in proctoring on the use of a Gamma Knife while also taking care of his clinical obligations, and for having a different approach to cancer
treatments there was no “decision, policy or practice” that impaired Plaintiff’s ability to
provide health care to his patients. Both parties agree that the law requires a medical
physicist and radiation oncologist to be present through the Gamma Knife procedure.
(UMF 94.) Defendant never instructed Plaintiff to leave a patient unattended in the
Gamma Knife room during the course of treatment and Plaintiff never left a Gamma
Knife patient unattended. (Id. 35.) Defendant expected Plaintiff to fit in the Gamma
Knife proctoring into his clinical schedule. (Id. 36, 43.) Moreover, both parties agree
that the others’ approach to cancer treatment is medically appropriate (Id. 66-69, 85-
86, 89-91), and that is regular practice in the Department for physicians to discuss
different treatments. (Id. 87.)

The Court finds that Defendant has satisfied his initial burden to demonstrate that no
triable issue of material fact exists with respect to the B&P §2605 claim. By failing to
oppose the motion, Plaintiff cannot meet his burden. Accordingly, the motion for
summary adjudication is GRANTED.

Having granted summary adjudication on all of Plaintiff’s claims, Defendant’s motion
for summary judgment is GRANTED.

Defendant shall prepare a formal order and judgment pursuant to CCP 437c(g) and
CRC 3.1312.