Taswell v. Regents of the Univ. of Cal.

23 Cal.App.5th 343

232 Cal.Rptr.3d 628

Carl TASWELL, M.D., Plaintiff and Appellant,

v.THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.

G053960

Court of Appeal, Fourth District, Division 3, California.

Filed May 14, 2018

Bohm Law Group, Lawrance A. Bohm, Zane E. Hilton, Sacramento, Bradley J. Mancuso and Brandon P. Ortiz for Plaintiff and Appellant.

Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Glendale; Dakessian Law and Zareh Jaltorossian for Defendant and Respondent.

OPINION

FYBEL, J.

INTRODUCTION

Plaintiff Carl Taswell, M.D., who is certified in nuclear medicine, filed a complaint against the Regents of the University of California (the Regents). Taswell alleged he was retaliated against for his whistleblowing activities regarding patient safety at the brain imaging center during his employment by the University of California, Irvine (the University). Taswell appealed from the judgment entered after the trial court granted the Regents' motion for summary judgment and summary adjudication. We reverse.

We hold that, following an administrative hearing, Taswell was not required to exhaust his judicial remedies (by seeking a writ of mandamus) to challenge the University's rejection of his claims of retaliation. We also hold that, after exhausting his administrative remedies, Taswell was statutorily authorized to file this civil action and seek damages based on his statutory whistleblower retaliation claims; the administrative decision has no res judicata or collateral estoppel effect on this action.

Also, a triable issue of material fact exists as to whether the University's decisions to place Taswell on an investigatory leave of absence and to not renew his contract had a causal connection to Taswell's whistleblowing activities. Therefore, summary judgment and/or summary adjudication should not have been granted on the theory that no triable issue of fact existed.

FACTS¹

Taswell is a licensed medical doctor who is board certified in nuclear medicine. In December 2011, Dr. Scott Goodwin, the chair of the radiology department at the University's medical school, offered Taswell the position of nuclear medicine physician or authorized user at the school's brain imaging center, with the "explicit understanding that [he] would be granted a clinical professorship in order to be successful;" Goodwin presented Taswell with a memorandum of understanding memorializing their agreement. Taswell was hired as a non-Senate academic appointee for a six-month period.

Shortly before Taswell began work for the University, Goodwin informed him that he would be starting as a "specialist" before the clinical professorship could be processed. Taswell had reservations about starting work for the University "before the clinical professorship could be implemented," but Goodwin assured Taswell he "had [his] back" and would "protect [him] from any blowback."

On January 2, 2012, Taswell began working in the authorized user position. As an authorized user, Taswell had significant radiation safety responsibilities mandated by state and federal law. That position involved being responsible for and having control over the quality, safety, and technical and medical aspects of the imaging procedures performed at the brain imaging center. The position required working with the campus and hospital radiation safety committees, the campus environment health and safety department, radiation safety officers, and others to ensure the safe operation of the brain imaging center, that the center was "properly documented," and that the center met government standards.

In early February 2012, radiochemist Dr. Farhad Karimi, who had recently joined the brain imaging center, provided information to the University's medical school about potential safety and compliance problems at the brain imaging center. On February 9, the radiochemistry laboratory of the brain imaging center was closed; it remained closed as of the date the motion for summary judgment was filed. On February 16, Karimi provided information about the problems at the brain imaging center to "high-ranking officials" at the University and the medical school.

On February 17, Karimi told Taswell of the potential safety and compliance problems at the brain imaging center. Taswell called Goodwin later that evening and informed him of what he had been told by Karimi. On February 19, Taswell reported the same issues to the UC whistleblower hotline and on February 22, he met with Michael Arias, the University's associate executive vice chancellor and the local designated official responsible for receiving whistleblower complaints. Arias told Taswell that investigations would begin and that Taswell should keep the allegations confidential and not investigate them himself.

On March 15, 2012, Taswell spoke at the University's radiation safety committee's regular monthly meeting about the allegations. In an e-mail dated the morning of March 16, radiation safety officer Barbara Hamrick informed Goodwin that during the radiation safety committee meeting, Taswell had expressed his concern about the operation of the brain imaging center and that he felt patient safety had been compromised. She stated Taswell "became visibly agitated" at the meeting.

On March 16, Taswell reported his concerns regarding "serious violations" at the brain imaging center to the California Department of Public Health. On March 19, he reported his concerns to the United States Food and Drug Administration, Department of Health and Human Services.

On March 20, Taswell told Goodwin that he had informed state and federal authorities about the problems at the brain imaging center. While Goodwin did not appear to be angry with Taswell, he remarked "this makes me look bad."

On March 22, Taswell, along with three other University employees who had campus radiation-safety responsibilities, entered Dr. Jogeshwar Mukherjee's radiochemistry laboratory near, but not part of, the brain imaging center. Taswell took pictures of what he perceived to be safety violations. A researcher in the laboratory became angry, questioning whether the group, including Taswell, was authorized to enter the laboratory. Taswell believed he was authorized to inspect the laboratory because his job duties included conducting inspections, he had been invited by the radiation safety committee to enter the laboratory, and an inspection was particularly appropriate given that the brain imaging center was scheduled to reopen without remediating the dangerous conditions.

On April 2, Goodwin and another official informed Taswell that he was being placed on a paid leave of absence for entering Mukherjee's laboratory without authorization, pending an investigation. (In May 2012, the University retained a law firm to conduct an independent investigation to determine whether Taswell's entry into the laboratory was authorized. The law firm concluded that because Taswell was with other employees who had authority to enter the laboratory, his entry was not unauthorized.)

Also on April 2, Taswell was informed that his contract as an authorized user would not be renewed as of June 30, 2012. Goodwin testified that while the "straw that broke the camel's back" may have been Taswell's entry into Mukherjee's laboratory (whether or not authorized), Taswell's contract would not have been renewed anyway. Goodwin had been in favor of Taswell's appointment as of March 15, but changed his mind between March 15 and 16. (During that period of time, Goodwin had been informed that Taswell had provided information to the radiation safety committee.) Goodwin stated that the reasons for deciding to "non-renew" Taswell were Taswell's refusal to do his job, interpersonal issues, behavior at the March 15 meeting with the radiation safety committee meeting, and unauthorized entrance into the laboratory.

In April 2012, Taswell filed an internal complaint for whistleblower retaliation, alleging the decisions to place him on investigatory leave and not to renew his contract constituted retaliation for his whistleblowing activities. He also initiated a grievance procedure pursuant to the University's Academic Personnel Manual.

The grievance procedure culminates in a Step III formal grievance appeal hearing. At that hearing, the grievant is represented by counsel and is permitted to present his or her case by oral and documentary evidence. The introduction of rebuttal evidence and the cross-examination of witnesses are permitted, and the hearing is either transcribed or recorded. Following the hearing, the hearing officer is required to provide the parties a written statement of his or her findings and recommendations.

Dr. Kenneth Janda, the University's dean of the school of physical sciences, was the Step III hearing officer for Taswell's grievance proceedings. He concluded the University did not retaliate against Taswell because of his whistleblower activities and that the University would not have renewed Taswell's contract even if he had not engaged in such activities. As reasons for the actions taken by the University, Janda cited what he described as emotional communications by Taswell suggesting he would not approve protocols proposed by a certain faculty member, Taswell's failure to follow Arias's admonition to refrain from investigating the safety allegations himself, and Taswell's "behavior" in the March 15 meeting with the radiation safety committee.

On April 22, 2013, the University's vice-provost for academic personnel approved Janda's decision denying Taswell's grievance (the administrative decision). Taswell did not file a petition seeking a writ of mandamus to challenge the administrative decision, but filed the instant action instead. It is undisputed Taswell exhausted the University's administrative grievance process.

PROCEDURAL HISTORY

At the time the Regents filed their motion for summary judgment, the following four claims contained in Taswell's fourth amended complaint for ...