Levi v. Regents of the Univ. of Cal.

223 Cal. Rptr. 3d 577, 15 Cal. App. 5th 892, 2017 Cal. App. LEXIS 837
CourtCalifornia Court of Appeal, 5th District
DecidedSeptember 26, 2017
DocketD069526
StatusPublished
Cited by2 cases

This text of 223 Cal. Rptr. 3d 577 (Levi v. Regents of the Univ. of Cal.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Levi v. Regents of the Univ. of Cal., 223 Cal. Rptr. 3d 577, 15 Cal. App. 5th 892, 2017 Cal. App. LEXIS 837 (Cal. Ct. App. 2017).

Opinion

DATO, J.

*894Dr. Leah Levi, a neuro-ophthalmologist, appeals from a summary judgment in favor of her former employer, the Regents of the University of California (Regents), and Dr. Robert Weinreb, the chair of the department of ophthalmology at the University of California, San Diego (University). Levi asserted various causes of action against the Regents and Weinreb related to discrimination, harassment, retaliation, and due process violations. The retaliation claims alleged protected conduct under both California's Whistleblower Protection Act ( Gov. Code, § 8547 et seq. (CWPA)) and Fair Employment and Housing Act ( Gov. Code, § 12900 et seq. (FEHA)).

Levi contends the trial court granted summary judgment based on its mistaken application of the law. She argues she raised factual issues as to *895each of her causes of action, including (1) whether she engaged in a protected activity under the FEHA and whether that activity was connected to an adverse employment action; (2) whether she made a protected disclosure of improper governmental activity or a condition threatening the health and safety of the public to support her CWPA retaliation claim; (3) whether the Regents' proffered nondiscriminatory reasons for taking adverse employment actions against *580her were merely a pretext; (4) whether she was subjected to unwelcome conduct due to her gender that was severe enough or sufficiently pervasive to alter the conditions of her employment; (5) whether the Regents took reasonable steps to prevent discrimination, retaliation, and harassment; (6) whether the Regents and Weinreb denied her due process by failing to issue reports on grievances she had filed, failing to provide her notice before reducing her salary and appointment, and failing to provide her an opportunity to cure deficiencies and return to good standing; and (7) whether the Regents and Weinreb interfered with her constitutional and statutory rights by threats, intimidation, or coercion. We conclude Levi raised triable issues of fact sufficient to defeat summary judgment on her second cause of action for retaliation under the CWPA and sixth cause of action for due process violations. Accordingly, we reverse the trial court's order granting summary judgment and direct the court to grant Weinreb and the Regents' alternative motion for summary adjudication on Levi's remaining causes of action for retaliation under the FEHA, gender discrimination, gender harassment, failure to prevent harassment, discrimination, retaliation, and Tom Bane Civil Rights Act ( Civ. Code, § 52.1 (Bane Act)) violations.

FACTUAL AND PROCEDURAL BACKGROUND

Levi's Complaints Against Weinreb

In 1990, Levi joined the department of ophthalmology at the University as an assistant professor in residence. In 2003, she was appointed as the residency program director for the department and earned a stipend for the position. Weinreb had been on the faculty with the department of ophthalmology since 1984. In 2009, Weinreb's wife, Dr. Cristiana Vasile, applied for a resident position in the department. Levi asked Weinreb to recuse himself from the resident selection process to avoid inferences of impropriety.

As a result of Vasile's residency application, the University received an anonymous whistleblower complaint in 2009 alleging Weinreb had a conflict of interest because he was the vice chair of the department at that time. The University conducted an investigation regarding the complaint and Levi participated in that investigation. After the University informed Weinreb about the complaint, he questioned Levi about it. The investigation concluded that the whistleblower's claims were unsubstantiated.

*896Vasile was ultimately accepted into the residency program with a standard condition that she complete a one-year internship prior to starting the ophthalmology program. The University's internal medicine department requested that the ophthalmology department pay for Vasile's internship position. Thus, Weinreb transferred discretionary funds he had control over to the internal medicine department to pay for Vasile's internship at the University.

In 2011, Weinreb was appointed chair of the ophthalmology department. Shortly thereafter he made changes to the residency program, including delaying the orientation schedule and modifying policies pertaining to resident vacations, calls, and patient triaging. These changes benefited Vasile. When Levi told Weinreb that any change in the patient triaging policy had to be structured to ensure resident accountability and patient safety, Weinreb became angry and said, " 'I think I made myself clear.' "

In July 2011, Weinreb met with Levi and informed her that the residency program was " 'awful and embarrassing.' "

*581Levi was surprised to hear Weinreb say that residents and faculty could not work with her. Levi had earned teaching awards and positive evaluations from a majority of the faculty. When Levi challenged Weinreb's characterization of the program and her relationships with colleagues, Weinreb stood up, banged his fist on the table in front of Levi and said, " 'I can remove you as [program director] if you keep fighting me every step of the way.' " Levi felt frightened, intimidated, and threatened by Weinreb. Weinreb calmed down after Levi asked him if he was threatening her and the meeting continued. Weinreb and Levi went on to discuss the appointment of an assistant residency program director.

During the July 2011 meeting, Weinreb and Levi also discussed Levi's clinical practice. At the time, Levi was seeing approximately 16 patients per week at University clinics. Weinreb asked Levi if she could see more patients. Levi knew that unlike most of the department faculty, her clinical practice did not cover her salary. She believed that increasing her patient load would decrease the amount of time she spent with each patient and impact the quality of care she provided. She also thought that Weinreb, as a glaucoma specialist, was not in a position to tell her, a neuro-ophthalmologist, how to practice.

Levi's relationship with Weinreb improved temporarily. Weinreb made positive comments about Levi to others and asked Levi to review important documents.

Around March 2012, the University received two more whistleblower complaints regarding Weinreb. One complaint alleged that Weinreb was *897showing favoritism toward Vasile, and the other alleged that the faculty was afraid to frankly evaluate Vasile because of possible retaliation by Weinreb. Levi did not make the complaints. Weinreb wondered whether Levi had filed the complaints and was furious about them.

In April 2012, Weinreb asked Levi to stay on as resident program director for one more year to continue mentoring Dr. Jeff Lee, who had been appointed assistant program director in August 2011. A month later, Weinreb and another physician met with Levi and told her to step down as program director. However, Levi informed them that she had no intention of stepping down.

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223 Cal. Rptr. 3d 577, 15 Cal. App. 5th 892, 2017 Cal. App. LEXIS 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levi-v-regents-of-the-univ-of-cal-calctapp5d-2017.