Khoiny v. Dignity Health

Filed 3/16/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

NOUSHIN KHOINY, B301486

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC575230)
v.

DIGNITY HEALTH,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen J. Czuleger, Judge. Reversed.

Makovoz Law Group and Ilana Makovoz for Plaintiff and
Appellant.

Ballard Rosenberg Golper & Savitt, Linda Miller Savitt,
Eric C. Schwettmann and John J. Manier for Defendants and
Respondents.

_________________________
 INTRODUCTION
This case presents an issue of first impression under
California law: whether a medical resident’s claim that she was
dismissed from her residency program due to gender
discrimination and in retaliation for complaints about
discrimination and workplace safety is subject to the rule of
academic deference. We hold the predominant relationship
between a medical resident and a hospital residency program is
an employee-employer relationship, and so academic deference
does not apply to the jury’s determination whether the resident
was terminated for discriminatory or retaliatory reasons. The
jury in this case returned a verdict in favor of respondent Dignity
Health, doing business as St. Mary Medical Center (SMMC),
after being improperly instructed that SMMC’s decision to
terminate Dr. Noushin Khoiny (appellant) was entitled to
academic deference in the first instance. Dr. Khoiny presented
credible evidence of gender discrimination and retaliation by
SMMC, and there is a reasonable probability that, in the absence
of the erroneous jury instruction, she would have obtained a more
favorable verdict. We reverse the judgment and remand for a
new trial.

BACKGROUND
From June 24, 2012 to August 11, 2014, Dr. Khoiny was a
paid resident in the internal medicine program at SMMC in Long
Beach, California. After completing the second year of the three-
year program, Dr. Khoiny was dismissed from the program. On
March 11, 2015, Dr. Khoiny filed a complaint against SMMC
alleging her dismissal was retaliatory and based on gender
discrimination. On November 5, 2015, she filed the operative
second amended complaint which included causes of action for

2
gender discrimination, retaliation for reporting gender
discrimination, and failure to prevent gender discrimination or
retaliation in violation of Fair Employment and Housing Act
(Gov. Code, § 12940); whistleblower retaliation in violation of
Health and Safety Code section 1278.5; and whistleblower
retaliation for reporting unsafe workplace conditions in violation
of Labor Code section 6310. The complaint included other causes
of action not at issue in this appeal.
Trial by jury began in 2018. The trial court declared a
mistrial after the jury could not reach a verdict.
The second trial began in 2019. The court instructed the
jury with Special Instruction SI 28 (SI 28) which the trial court
described as “dealing with academic deference.” That instruction
read:
“Since St. Mary’s residency program was academic in
nature, St. Mary’s academic judgment should not be overturned
unless it is found to have been arbitrary and capricious, not
based on academic criteria, or motivated by bad faith, or ill will,
or motivated by retaliation or discriminatory reasons unrelated
to her academic performance.
“You must uphold the decision of St. Mary Medical Center
unless you find its decision was a substantial departure from
accepted academic norms as to demonstrate that the person or
committee did not actually exercise professional judgment.”
The court also gave the jury a special verdict form. The
first question, entitled “ACADEMIC DEFERENCE,” asked: “Do
you find that Dignity Health dba St. Mary Medical Center’s
termination of Dr. Khoiny’s employment was arbitrary and
capricious, not based on academic criteria, or motivated by bad
faith or ill will, or motivated by retaliation or discriminatory

3
reasons unrelated to academic performance?” If the jury
answered “No,” it was directed to skip to the end of the 13-page
special verdict form and sign it. The jury answered, “No.”

DISCUSSION

I. The Trial Court Erroneously Applied Academic Deference
to Appellant’s Claims.
We begin by noting the elements of and analysis required
in California for claims of gender discrimination and retaliation
under the Fair Employment and Housing Act (FEHA). (Gov.
Code, § 12900 et seq.) To establish a prima facie case of
retaliation under FEHA a plaintiff must show they engaged in
“protected activity”; the employer subjected the employee to an
adverse employment action; and a causal link existed between
the protected activity and the employer’s action. (Yanowitz v.
L’Oreal, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) To
establish a prima facie case of discrimination under FEHA, a
plaintiff must show they were a member of a protected class; they
were qualified for the position or were performing competently in
the position they held; they suffered an adverse employment
action, such as termination, demotion, or denial of an available
job; and some other circumstance suggested discriminatory
motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355
(Guz).) Once a plaintiff establishes a prima face case, the
employer is required to offer a legitimate, nonretaliatory reason
for the adverse employment action. If the employer produces a
legitimate reason for the adverse employment action, the
presumption of retaliation and discrimination “drops out of the
picture,” and the burden shifts back to the employee to prove
intentional retaliation or discrimination. This is the three-part

4
burden shifting analysis of McDonnell Douglas Corp v. Green
(1973) 411 U.S. 793, 802–805 employed in Title VII cases and
adopted by California for use in FEHA cases. (Yanowitz, at
p 1042; Guz, at pp. 354–356.) This test reflects the principle that
direct evidence of intentional discrimination is rare, and that
such claims must usually be proved circumstantially. Thus, by
successive steps of increasingly narrow focus, the test allows
discrimination to be inferred from facts that create a reasonable
likelihood of bias and are not satisfactorily explained. (Guz, at
pp. 354.)
In contrast to the burden-shifting analysis adopted for
FEHA claims in California is the rule of academic deference,
which the First District Court of Appeal summarized 25 years
ago: “It is well settled that in actions challenging the academic
decision of a private university regarding a student’s
qualifications for a degree, we exercise a highly deferential and
limited standard of review. ‘There is a widely accepted rule of
judicial nonintervention into the academic affairs of schools.’
(Paulsen v. Golden Gate University (1979) 25 Cal.3d 803, 808
[159 Cal.Rptr. 858, 602 P.2d 778] (Paulsen).) We may only
overturn the university’s decision if we find it to be arbitrary and
capricious, not based upon academic criteria, and the result of
irrelevant or discriminatory factors. (Id. at pp. 808–809; accord,
Wong v. Regents of University of California (1971) 15 Cal.App.3d
823, 830 [93 Cal.Rptr. 502].) We must uphold the university’s
decision ‘unless it is such a substantial departure from accepted
academic norms as to demonstrate that the person or committee
responsible did not actually exercise professional judgment.’
(Regents of University of Michigan v. Ewing (1985) 474 U.S.
214, 225 [88 L.Ed.2d 523, 532, 106 S.Ct. 507] (Ewing).)” (Banks

5
v. Dominican College (1995) 35 Cal.App.4th 1545, 1551 (Banks).)
It is this doctrine of academic deference which the trial court
erroneously applied to Dr. Khoiny’s claims of gender
discrimination and retaliation.
In their briefing the parties have cited five California cases
and one United States Supreme Court case involving academic
deference: Banks, supra, 35 Cal.App.4th 1545; Paulsen, supra,
25 Cal.3d 803; Wong v. Regents of University of California, supra,
15 Cal.App.3d 823; Shuffer v. Board of Trustees (1977)
67 Cal.App.3d 208; Lachtman v. Regents of University of
California (2007) 158 Cal.App.4th 187; and Ewing, supra,
474 U.S. 214. Plaintiffs in these cases were all students enrolled
in traditional academic institutions: colleges, universities or
graduate schools. Nothing in these opinions suggests any
student received financial compensation for services rendered in
connection with the academic programs. No student brought a
FEHA claim, which has as a “ ‘fundamental foundation for
liability’ . . . ‘ “existence of an employment relationship” ’ between
the parties.” (McCoy v. Pacific Maritime Assn. (2013)
216 Cal.App.4th 283, 301.)
Several of these cases, and other federal cases as well,
apply the academic deference rule to medical students
participating in clinical rotations, but a medical student is not
similarly situated to a medical resident. On a very broad level,
medical students are very similar to traditional students: they
are enrolled in and pay tuition to a university or college for the
purpose of obtaining an academic medical degree while receiving
limited hands-on clinical experience.
On the other hand, medical residents have graduated from
medical school and are being paid ordinary taxable income to

6
provide medical services to a hospital or medical center while also
receiving clinical training; much of the service they provide is
indistinguishable from that provided by fully licensed physicians.
A medical residency program within a hospital or medical center
is not a traditional academic institution with predominantly
traditional student activities. The Cambridge Dictionary, for
example, defines “academic” as “relating to schools, colleges, and
universities, or connected with studying and thinking, not with
practical skills.”1
We do not find useful the cases involving medical students.
Dr. Khoiny is a medical resident with a medical degree who
received compensation for providing patient services on behalf of
an institution whose primary purpose is to provide patient care.
She asserted claims dependent upon the existence of an
employment relationship with the defendant medical center.
Some part of the relationship between the two parties involved
learning practical skills and some even smaller part involved
studying to acquire medical knowledge. We will therefore look
outside California for assistance in analyzing whether the
academic deference rule applies to medical residents.

A. Residents Are Predominantly Employees, Not
Students.
A medical residency program involves a mixture of
education and employment. The Accreditation Council for
Graduate Medical Education (ACGME) accredits, monitors, and

1 Cambridge Dictionary Online (2022)
[as of March 11, 2022], archived at
.

7
disciplines residency programs. ACGME requires a minimum of
two-thirds of residents’ time to be spent in patient care.2 There is
no minimum requirement for time spent in didactic sessions. The
California Medical Board describes a medical residency as a “post
graduate training program” (italics added) during which
residents engage in “the practice of medicine . . . in connection
with their duties as a resident.”3 The National Labor Relations
Board (NLRB) has likened medical residents to apprentices, who
are considered employees for collective bargaining purposes.
(Boston Med. Center Corp. (1999) 330 NLRB 152, 161.)
The trial court justified its decision to treat the residency
program as academic by stating that the program was “primarily”
academic. Given that ACGME guidelines require a minimum of
66 percent of a resident’s time to be spent in patient care, the
court could not rationally have based its conclusion on the
amount of time residents actually spent in traditional academic
activities (i.e., didactic sessions). The trial court appears to have
relied on the residents’ goals in participating in the program to
reach its conclusion. The court said: “One cannot progress any
further in one’s career and obtain employment as a board-
certified doctor unless one has complied with all of the
requirements. And the requirements set forth in a nationwide
standard which requires certain subjects to be taught, graded

2 Specifically, ACGME requires at least one-third of the time
to be spent in an ambulatory patient setting and at least one-
third to be spent in an inpatient setting.
3 Medical Board of California Web site (2022)
[as of March 11, 2022], archived at
.

8
and the student must progress.” This was, at best, an incomplete
assessment. An equally important question asks what were the
goals of the residency program itself.
Generally, medical residents have been found to spend
75 percent to 80 percent of their time providing services to the
medical centers or hospitals where their residency programs are
located. (Regents of University of California v. Public
Employment Relations Bd. (1986) 41 Cal.3d 601, 619 (PERB);
Boston Med. Center Corp., supra, 330 NLRB at p. 160.)
Significantly, “the patient care services performed by housestaff
[are] an important part of the hospital’s overall service delivery.”
(PERB, at p. 618 [housestaff refers to interns, medical residents
and fellows].)4 The United States Supreme Court has rejected an
argument that residents are not fully trained and have yet to
begin their working lives, finding instead that these doctors
“ ‘who work long hours, serve as highly skilled professionals, and
typically share some or all of the terms of employment of career
employees’ ” are in fact workers, even if they are also “students of
their craft.” (Mayo Found. for Med. Educ. & Research v. United
States (2011) 562 U.S. 44, 60 (Mayo).)
We find useful the test applied for collective bargaining
purposes, specifically the test formerly used to determine
whether “student employees whose employment is contingent on
their status as students” are employees. (Gov. Code, § 3562,

4 As the evidence in this case shows, there is a national body,
ACGME, which sets standards for and accredits medical
residency programs. Thus, while the programs before the court
in PERB were those related to the University of California
system, the basic structure of all residency programs should be
similar.

9
subd. (e).) This test has been applied to medical residents. As
the California Supreme Court explained in upholding a decision
by the Public Employees Relations Board (Board) that medical
residents are employees, the Board considers not only the
medical residents’ own goals “but also the services they actually
perform, to see if the students’ educational objectives, however
personally important, are nonetheless subordinate to the services
they are required to perform. Thus, even if [the Board] finds that
the students’ motivation for accepting employment was primarily
educational, the inquiry does not end here. [The Board] must
look further— to the services actually performed— to determine
whether the students’ educational objectives take a back seat to
their service obligations.”5 (PERB, supra, 41 Cal.3d at p. 614.)
Essentially, this test asks whether the program views and
treats its residents as primarily students or primarily employees,
an important consideration in evaluating whether a program’s
decision concerning a resident is an academic one. The Board
found that “although housestaff did receive educational benefits
in the course of their programs, this aspect was subordinate to
the services they performed.” (PERB, supra, 41 Cal.3d at p. 618.)
The Board found evidence that in the UC system, “[h]ousestaff
also work very long hours. An 80- or 100-hour week is not
uncommon. More than 75 percent of that time is usually spent in

5 Under Government Code section 3562, former subdivision
(e), “[t]he board may find student employees whose employment
is contingent on their status as students are employees only if the
services they provide are unrelated to their educational
objectives, or, that those educational objectives are subordinate to
the services they perform and that coverage under this chapter
would further the purposes of this chapter.” (Italics added.)

10
direct patient care. [¶] The remaining time is spent in didactic, or
instructional, activities.” (Id. at p. 619.) The Court upheld the
Board’s ruling that medical residents are employees.
At the time the California Supreme Court decided PERB,
the NLRB still treated medical residents as students, not
employees, for purposes of collective bargaining under federal
law. Our Supreme Court expressly disagreed with the reasoning
of the NLRB. (PERB, supra, 41 Cal.3d at pp. 612–613.) Ten
years later, the NLRB repudiated its earlier decisions, and
reached the same conclusion about housestaff, including medical
residents, as our Supreme Court did. (Boston Med. Center Corp.,
supra, 330 NLRB 152, 159–164.)
The NLRB, too, recognized that medical residents spend a
large part of their time rendering services: “Most noteworthy is
the undisputed fact that house staff spend up to 80 percent of
their time at the Hospital engaged in direct patient care. The
advanced training in the specialty the individual receives at the
Hospital is not inconsistent with ‘employee’ status. It
complements, indeed enhances, the considerable services the
Hospital receives from the house staff, and for which house staff
are compensated. That they also obtain educational benefits from
their employment does not detract from this fact.” (Boston Med.
Center Corp., supra, 330 NLRB at pp.160–161, italics added.) As
the Board pointed out: “Members of all professions continue
learning throughout their careers[.]” (Id. at p. 161.)
The United States Supreme Court has also found it logical
to treat medical residents as employees rather than students,
based on the sizeable amount of time residents spend rendering
services. (Mayo, supra, 562 U.S. at pp. 58–60.) While Mayo
involves a student exemption from FICA taxes, the Court’s

11
analysis of the distinction “between workers who study and
students who work” is useful. The Court rejected two arguments:
1) that “[b]ecause residents’ employment is itself educational, . . .
the hours a resident spends working make him “ ‘more of a
student, not less of one’ ”; and 2) that by focusing on the number
of hours worked, the Treasury Department had “drawn an
arbitrary distinction between ‘hands-on training’ and ‘classroom
instruction.’ ” (Id. at pp. 58–59.) The Supreme Court pointed out
that the Treasury Department had “reasoned that ‘[e]mployees
who are working enough hours to be considered full-time
employees . . . have filled the conventional measure of available
time with work, and not study.’ [Citation.] The Department thus
did not distinguish classroom education from clinical training but
rather education from service.” (Id. at p. 59.)
All the cases discussed above involve residency programs
not before this court. Nevertheless, they have general application
to our analysis of respondent’s programs, because all residency
programs are expected to follow ACGME guidelines. While it is
not determinative of our analysis, we note that the specific
residency program at SMMC was not in compliance with
ACGME’s guidelines concerning the academic aspects of its
program. ACGME placed SMMC’s residency program on
probation as of January 2014 for problems dating back to 2012.
The ACGME investigation was occurring during Dr. Khoiny’s
residency at SMMC. ACGME found that respondent “did not
demonstrate that its core curriculum includes a didactic program
based upon the core knowledge content of internal medicine.”
ACGME also found respondent had failed to demonstrate
compliance with the “scholarly activities” component of a
residency program, and that it “does not appear that the faculty

12
have adequately established and maintained an environment of
inquiry and scholarship for the residents.” SMMC’s probationary
status was based on its violation of two requirements: the
requirement that residents evaluate the program annually, and
the requirement that the program evaluate residents by
providing “objective assessments of competence in patient care,
medical knowledge, practice based learning and improvement,
interpersonal and communication skills, professionalism and
system based practice.” SMMC also assigned residents to more
time in the intensive care unit (ICU) than permitted and
recommended by ACGME. The evidence in this case showed that
the ICU rotation was the most time-intensive of the rotations.
Thus, if anything, SMMC’s residency program before and during
Dr. Khoiny’s tenure was less academic and more service oriented
than an average residency program.
In sum, SMMC is not primarily an academic institution
and treating its residency program as “primarily” an academic
program does not match the realities of medical residency
programs. They are employment programs with an educational
component.

B. The Record Does Not Support Respondent’s Position
that Dr. Khoiny Was Terminated for Academic
Reasons.
Respondent’s position that Dr. Khoiny was terminated for
academic reasons and therefore academic deference should apply
to her dismissal is not supported by the record. In fact, there is
no clear explanation in the record of how or why respondent’s
decision to terminate Dr. Khoiny was an “academic” one. Both in
the trial court and on appeal, respondent refers to Dr. Khoiny’s
performance as marginal or deficient, but evidence of

13
performance deficiencies involved almost exclusively patient care,
that is, her provision of services to patients, or “deficiencies” in
her personality, such as a lack of assertiveness. This is not what
is traditionally meant by “academic” performance. Perhaps this
lack of clarity stems from respondent’s lack of objective
assessment methods for residents in the area of medical
knowledge, a clearly academic area, which ACGME found was a
long-standing unresolved problem in the program.
At the same time, it is clear respondent did assess Dr.
Khoiny on the services she rendered. Patient care indisputably
played a very significant role in respondent’s discussion of and
decision to terminate Dr. Khoiny. Further, in asserting a mixed-
motive same decision affirmative defense, respondent claimed
that even if gender or retaliation were a motivating factor in Dr.
Khoiny’s termination, it would have terminated her anyway for
“poor job performance.” It is not clear why respondent used the
work “job performance” in connection with its affirmative
defense, while using the phrase “academic performance” and
“academic” judgment in SI 28. It is not clear whether respondent
believed that poor “job” performance was the same as poor
“academic” performance, or if respondent was simply hedging its
bets.6

6 Respondent appears to have had difficulty deciding exactly
why it terminated Dr. Khoiny. As we noted in a previous opinion
in this matter, the “gravamen of [respondent’s] answer was that
[Dr. Khoiny] was discharged for cause because she had provided
substandard patient care.” (Khoiny v. Dignity Health (Apr. 2,
2018, B280304) [nonpub. opn.].) Respondent subsequently
refused to comply with the trial court’s order to produce certain
medical records relevant to Dr. Khoiny’s claims. When faced

14
 C. This Case Should Be Tried as a Standard FEHA
Case.
Having determined that a medical residency program is not
primarily an academic program and that the decision to
terminate the employment of a resident cannot be assumed to be
academic, we are left with the question of how a jury in this case
should be instructed to evaluate respondent’s decision to
terminate Dr. Khoiny. Ultimately, we hold that a residency
program’s claim that it terminated a resident for academic
reasons is not entitled to deference. As we set forth in more
detail below, the jury should be instructed to evaluate, without
deference, whether the program terminated the resident for a
genuine academic reason or because of an impermissible reason
such as retaliation or the resident’s gender.
Respondent contends the United States Court of Appeals
for the Fifth Circuit applied academic deference to medical
residencies in Davis v. Mann (5th Cir. 1989) 882 F.2d 967

with discovery sanctions, respondent “then asserted a new
argument that plaintiff had not been terminated from the
program based on ‘standard of care’ but because other employees
said that she was ‘unqualified.’ [Respondent’s] counsel stated
that the real grounds for termination was plaintiff's alleged
refusal to accept responsibility for her errors, not any deficiency
in treatment, and was ‘not based on review of the medical
records,’ which made the records at issue irrelevant.” This
explanation was unconvincing in light of respondent’s earlier
argument that they were entitled to summary judgment because
Dr. Khoiny “had not made a prima facie showing that she was
performing competently, which, [it] argued, could only be
established by medical records.” (Khoiny v. Dignity Health,
supra, B280304.)

15
(Davis). Respondent states: “The Fifth Circuit has held ‘medical
residents should be treated as students[.]’ ” The opinion does not
contain the word “treated,” let alone the phrase “medical
residents should be treated as students.” The plaintiff in Davis
was a dental resident who was participating in a program for
dentists which, the opinion states “operated like a typical medical
residency.” (Id. at p. 969 & fn. 1.)
Respondent attempts to equate Dr. Khoiny’s employment
law claims with those of the dental resident in Davis. The only
claim before the Fifth Circuit was a claim that the program’s
dismissal procedures violated his Fourteenth Amendment rights
to procedural due process. (Davis, supra, 882 F.2d at
pp. 968, 972.) The Fifth Circuit found only “the minimal
protections required for an academic dismissal” applied to this
due process claim. (Id. at p. 974.)
The court in Davis did state, without citation to authority,
that “It is well-known that the primary purpose of a residency
program is not employment or a stipend, but the academic
training and the academic certification for successful completion
of the program.” (Davis, supra, 882 F.2d at p. 974.) We are
unable to evaluate the court’s undocumented claim concerning
what was well-known about residency programs in 1989, or
indeed what the purposes and requirements of a residency
program were in Mississippi at that time, or how Mississippi
viewed medical or dental residents under Mississippi law. We
can say at that time the NLRB still treated medical residents as
students for collective bargaining purposes; perhaps that was the
source of the Fifth Circuit’s knowledge. As we have noted, the

16
NLRB subsequently repudiated that position.7 And, as we have
explained, by 1989 the California Supreme Court had already
decided that education was subordinate to the provision of
services and medical residents should be treated as employees for
collective bargaining purposes.
Respondent also points out that some federal courts have
applied academic deference to disability discrimination claims
involving academic institutions. We do not find the analysis in
those cases helpful. While the federal American with Disabilities
Act (ADA) and Rehabilitation Act do not permit discrimination
based on disability, the Acts require only reasonable
accommodations for disabled individuals and expressly do not
require a school to substantially modify or lower its standards to
accommodate disabled students. This raises entirely different
issues than a claim of employment discrimination based on
gender or for retaliatory purposes. (Zukle v. Regents of Univ. of
Cal. (9th Cir. 1999) 166 F.3d 1041, 1046-1047 (Zukle) [noting a
“majority of circuits have extended judicial deference to an
educational institution’s academic decisions in ADA and
Rehabilitation Act cases as the Acts do not require an academic
institution “to make fundamental or substantial modifications to
its programs or standards” to accommodate disabled students.].)
7 “[W]e reach our decision here to overrule Cedars-Sinai
[Medical Center (1976) 223 NLRB 251] and its progeny on the
basis of our experience and understanding of developments in
labor relations in the intervening years since the Board rendered
those decisions. Almost without exception, every other court,
agency, and legal analyst to have grappled with this issue has
concluded that interns, residents, and fellows are, in large
measure, employees. [Citations.]” (Boston Med. Center Corp.,
supra, 330 NLRB at p. 163.)

17
 One case cited in Zukle, but not mentioned by respondent,
Pushkin v. Regents of Univ. of Colo. (10th Cir. 1981) 658 F.2d
1372, does involve a wheelchair-bound medical resident with
multiple sclerosis. (Id. at p. 1376.) As the Ninth Circuit noted,
but respondent does not, the Tenth Circuit expressly declined to
apply academic deference to the claims in Pushkin. (Zukle,
supra, 166 F.3d at p. 1047; see Pushkin, at p. 1383.)
We note at least three federal circuit courts of appeals have
found medical residents are employees for purposes of Title VII
claims. (Doe v. Mercy Catholic Med. Center (3rd Cir. 2017)
850 F.3d 545, 559 [medical resident was employee for purposes of
Title VII claim]; Takele v. Mayo Clinic (8th Cir. 2009) 576 F.3d
834, 838 [treating medical resident as an employee for purposes
of Title VII and applying standard McDonnell Douglas
framework to discrimination claim]; Maynard v. Bd. of Regents of
Universities of Fla. (11th Cir. 2003) 342 F.3d 1281, 1289 [same].)
Title VII cases can be helpful in FEHA cases. “In interpreting
California’s FEHA, California courts often look for guidance to
decisions construing federal antidiscrimination laws, including
title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e
et seq.) (Title VII).” (Chavez v. City of Los Angeles (2010)
47 Cal.4th 970, 984.) While helpful on the issue of whether
medical residents are employees, the Doe, Takele and Maynard
decisions do not, however, address the issue of academic
deference.

D. A Title VII Denial of Tenure Case Provides the Best
Framework for Deciding FEHA Claims by Medical
Residents
We find most useful an opinion by the D.C. Circuit which
considered a Title VII racial discrimination claim involving

18
denial of tenure to a law school professor. (Mawakana v. Bd. of
Trustees of Univ. of the D.C. (D.C. Cir. 2019) 926 F.3d 859
(Mawakana).) The professor was unquestionably an employee of
the law school, and a denial of tenure is clearly an adverse
employment action. The university asserted Mawakana was
denied tenure for deficient scholarship. A finding of deficient
scholarship, of course, would be an academic decision or, put
differently, the product of academic judgment. This mixture is
somewhat similar to the situation of medical residents, whose
employment may be affected by academic issues. The Mawakana
court found, however, that the university was not entitled to
special deference in Title VII tenure claims. As the court
explained, the premise of academic deference is that the decision
was made in good faith and for a genuinely academic reason, but
“a Title VII claim requires a court to evaluate whether a
university’s decision to deny tenure was made in good faith (i.e.,
for academic reasons rather than for an impermissible reason
such as the applicant’s race).” (Id. at p. 865.)
By way of background, the court noted that when
“Congress passed Title VII in 1964, educational institutions were
exempt ‘with respect to the employment of individuals to perform
work connected with the educational activities of such
institutions[s].’ [Citation.] Eight years later, however, in
‘response to the widespread and compelling problem of invidious
discrimination in educational institutions,’ Univ. of Pa. v. EEOC
(Penn), 493 U.S. 182, 190, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990),
the Congress amended Title VII and eliminated that exemption.
[Citation.] The Congress was not persuaded by opponents of the
amendment who ‘claimed that enforcement of Title VII would
weaken institutions of higher education by interfering with

19
decisions to hire and promote faculty members.’ Penn, 493 U.S.
at 190, 110 S.Ct. 577. Ever since the Congress ‘abandoned [Title
VII’s] exemption for educational institutions’ in 1972, their
academic hiring has been subject to Title VII’s restrictions. Id.”
(Mawakana, supra, 926 F.3d at pp. 863–864.) Thirteen years
later, the United States Supreme Court decided Ewing, which, in
the words of the D.C. Circuit, held “that deference to academia is
appropriate in certain circumstances.” (Id. at p. 864.) Ewing
involved a claim by a student against a university which
dismissed him from a combined undergraduate and medical
school program.
The D.C. Circuit then noted that five years after the United
States Supreme Court discussed academic deference in Ewing,
the Court decided Penn. In Penn “the Supreme Court suggested
that, notwithstanding Ewing, the normal Title VII standard
applies to universities. . . . The Court first held that the effect of
the 1972 amendment to Title VII . . . ‘was to expose tenure
determinations to the same enforcement procedures applicable to
other employment decisions.’ Id. at 190, 110 S.Ct. 577. It then
rejected the university’s attempt to invoke academic freedom as a
legitimate ground for refusal to comply with Title VII’s
requirements. Id. at 198, 110 S.Ct. 577 (full enforcement of Title
VII does not infringe academic freedom because it does not
‘prevent[] the [u]niversity from using any criteria it may wish to
use, except those—including race, sex, and national origin—that
are proscribed under Title VII’).”
In accordance with Penn, the Mawakana court did not
overlook Ewing; instead it acknowledged that Ewing’s concept of
academic freedom is appropriate where a court is being asked to
review the substance of a genuinely academic decision, not, as in

20
Title VII claims, whether the decision was made in good faith.
(Mawakana, supra, 926 F.3d at pp. 864–865 [“Title VII claim
requires a court to evaluate whether a university’s decision to
deny tenure was made in good faith (i.e., for academic reasons
rather than for an impermissible reason such as the applicant’s
race).”].)
In declining to apply academic deference to Title VII cases,
the Mawakana court noted that the burden in tenure decisions,
complicated by “specialized multi-factored judgments” involving
numerous decisionmakers, compares to any other employment
decision which involves complex judgments and numerous
decisionmakers. “In other words, the Title VII burden is no more
difficult to meet because the employer is a university. Although
the First Amendment grants a university certain freedoms, the
freedom to discriminate is not among them.” (Mawakana, supra,
926 F.3d at pp. 865–866.) We add that judges and juries are as
equipped as anyone to decide whether an academic institution
acted in good faith or for discriminatory reasons. One does not
have to be an academic to ferret out discrimination or retaliation
in an academic workspace. We hold that there is no such thing
as “academic deference” in a California employment case. Nor
should be there. FEHA is a power tool in the effort to root out
and stop discrimination. There can be no argument that
academics are entitled to special treatment or special exceptions
in this regard. Just as we doubt such an argument could have
been seriously entertained in Brown v. Board of Education (1954)
347 U.S. 483, we doubt it could possibly apply here.
Accordingly, the D.C. Circuit proceeded to analyze the
plaintiff’s Title VII claim, which was before it on summary
judgment, using “the standard three-step burden-shifting

21
framework set forth in [McDonnell Douglas].” (Mawakana,
supra, 926 F.3d at p. 866.) Under the facts of the case, the court
went to the third step, explaining, “the University has proffered a
legitimate, nondiscriminatory reason for denying Mawakana
tenure. It says he was denied tenure because his scholarship was
deficient. Thus, we ask whether, ‘viewing the evidence in the
light most favorable to [Mawakana] and drawing all reasonable
inferences accordingly,” [Citations], a reasonable jury could find
Mawakana was denied tenure because of his race . . . Specifically,
we ask whether a reasonable jury could find that Mawakana's
race was a ‘motivating factor’ in the University's decision to deny
him tenure.” (Ibid.)
The court then concluded that a reasonable jury could find
that race was a motivating factor in the University’s decision to
deny Mawakana tenure. (Mawakana, supra, 926 F.3d at p. 866.)
The court did not give any presumption of good faith or validity to
the decision to deny tenure. It looked at evidence that the
University “treated certain criteria differently when assessing
the scholarship of black tenure candidates as opposed to white
candidates.” (Id. at p. 867.) The court also considered evidence
that the plaintiff’s supervisor changed her position about the
quality of the plaintiff’s work from initially favorable to
unfavorable for purposes of the tenure position, suggesting
pretext. (Ibid.) It also considered evidence that the Dean had
supported all white tenure applicants but only about half of the
black tenure applicants, and that all white applicants for tenure
during the Dean’s employment received tenure, but only five of
the nine eligible black applicants obtained tenure, and one of
those five only received tenure after her Title VII lawsuit

22
survived a motion to dismiss. (Id. at p. 868 [two of the nine did
not apply at all because the Dean told them they had no chance].)
The Mawakana framework is the correct one to apply to
FEHA or similar employment based claims involving medical
residents. Thus, the trial court erred in instructing the jury that
academic deference should be given to respondent’s decision. As
we discuss below, the trial court’s error was prejudicial. For
guidance on remand, Dr. Khoiny is only required to prove that
her gender or retaliation for her complaints was a substantial
motivating factor in her termination. Dr. Khoiny may offer the
same evidence as any other FEHA plaintiff to show that
respondent’s proffered reason was not its true or genuine reason
but a pretext for discrimination. The examples of such evidence
set forth in Mawakana are instructive. To be clear, Dr. Khoiny,
like all FEHA plaintiffs, can prevail on her claim by proving that
gender or retaliation was a substantial motivating factor for her
termination “even though other factors also motivated” the
decision. Thus, she need not disprove that her allegedly poor
academic performance was a factor, or show that her performance
was not poor.8

8 Of course, one way of showing pretext would be to show
that her academic performance compared favorably to other
residents. Another way of showing pretext could be to show that
respondents had relied on inaccurate information about her
academic performance, by claiming, for example, she achieved a
certain score on a national examination when in fact she achieved
a different and better score.

23
 E. The Challenged Instruction Told the Jury That
Respondent Was Entitled to Academic Deference.
To assess prejudice from the trial court’s erroneous ruling,
we first consider whether the instruction told the jury that
respondent’s decision should be given deference, that is, treated
differently than an explanation offered by any ordinary employer.
We conclude it does, and so we next examine the record,
primarily the evidence, to determine whether a different result
could have been reasonably probable in the absence of the
erroneous instruction. We find such a probability.
The doctrine of academic deference is designed to give
deference to an academic institution’s academic decisions, and to
permit only limited review of such decisions. SI 28 created a
presumption that SMMC’s decision was valid and it permitted
the decision to be rejected only if it is “a substantial departure
from accepted academic norms.”
The instruction begins by telling the jury that SMMC is not
an ordinary employer and that it uses a special kind of judgment
in making employment decisions: “Since St. Mary’s residency
program was academic in nature, St. Mary’s academic judgment
. . . .” The instruction then tells the jury that it must accept the
judgment unless the plaintiff proves one of a specified list of
reasons: “St Mary’s academic judgment should not be overturned
unless . . . .” This deference continues in the second paragraph,
which tells the jury that it “must uphold the decision of St.
Mary’s Medical Center unless you find . . . a substantial
departure from academic norms . . . .” The effect of these phrases
is to tell the jury that SMMC’s academic judgment is presumed
valid and must be disproved by Dr. Khoiny.

24
 Respondent contends that this language does not create a
presumption. It is mistaken.
A presumption of correctness is created by the words used
in the instruction. A common meaning of overturn is to
“invalidate”9 or “to destroy the power or validity of.”10 Telling the
jury that it could not invalidate or destroy the validity of SMMC’s
decision indicated that the decision is being treated as valid to
begin with. Similarly, “uphold” means to “to say that a decision
that has already been made . . . is correct.”11 Thus, the choice of
words in the instruction indicates that SMMC’s decision is to be
treated as correct or valid unless Dr. Khoiny proves one or more
specific identified facts.
The phrasing also fits the legal definition of a presumption.
Presumptions are “ ‘conclusions that the law requires to be drawn
(in the absence of a sufficient contrary showing) when some other
fact is proved or otherwise established in the action.’ ” (People v.
McCall (2004) 32 Cal.4th 175, 182.) That is precisely what this
instruction does, with one minor variation. The trial court
actually found the “other fact,” that is, that SMMC is an

9 Merriam-Webster Dictionary Online (2022)
[as of
March 11, 2022], archived at .
10 Disctionary.com
[as of March 11,
2022], archived at .
11 Cambridge Dictionary Online (2022)

[as of March 11, 2022], archived at .

25
academic institution. Thus, the instruction told the jury that
because SMMC is an academic institution, the jury must
conclude that SMMC’s judgment or decision is valid unless Dr.
Khoiny proved one or more specific identified facts (a contrary
showing). Under FEHA, there is no presumption of validity as to
the employer’s proffered reason.
Respondent contends SI 28 instructed the jury as to when
it could “overturn” SMMC’s academic judgment and in doing so,
it comported with CACI Nos. 2500 and 2505, which required Dr.
Khoiny to prove, inter alia, that her gender or discrimination
complaints were “a substantial motivating reason” for
respondent’s adverse employment actions. SI 28 in no way
comports with CACI. The instruction on when the jury could
“overturn” SMMC’s academic judgment required less of
respondent and more of Dr. Khoiny than the law does. In the
terminology of Mawakana, the instruction did not require
respondent to prove that its decision was made in good faith and
was a genuinely academic one; the jury was instructed that the
decision was the product of academic judgment, and further
instructed that the decision was presumed valid. The instruction
also told the jury that Dr. Khoiny had to prove that SMMC’s
“academic judgment” was “motivated by retaliation or
discrimination unrelated to her academic performance” in order
to “overturn” that judgment. That is the point of the academic
deference doctrine: “An essential element of all claims such as
appellant’s, which seek to challenge an academic decision of a
private university, is proof that the decision . . . was not based
upon any discernible legitimate, rational basis.” (Banks, supra,
35 Cal.App.4th at p. 1553.)

26
 FEHA does not require Dr. Khoiny to disprove or invalidate
respondent’s stated reasons for termination to prevail on her
claims. A plaintiff need only show that gender or retaliation was
a substantial motivating reason. Thus, Dr. Khoiny could recover
even if her academic performance was poor and that poor
performance was a factor in respondent’s decision (as long as it
was not a substantial motivating factor).12
Similarly, respondent misses the mark when it defends the
reference to “upholding” SMMC’s decision “unless . . . it was a
substantial departure from academic norms.” SMMC argues the
language did not tell the jury to uphold the decision even though
it was a pretext or to give deference to a pretextual decision. We
find the “upholding” paragraph misstates the law because it
expressly told the jury to accept respondent’s decision unless Dr.
Khoiny showed that respondent’s decision was a departure from
academic norms. This is simply not plaintiff’s burden in proving
a claim for employment discrimination or retaliation.
Respondent argues that if a decision were discriminatory or
retaliatory, it would be “a substantial departure from accepted
academic norms” and so the instruction, in effect, correctly told
the jury that it should uphold respondent’s decision unless it
found discrimination or retaliation. Referring to departures from
“accepted academic norms” would be, at best, an incredibly
indirect and wordy way to tell the jury that it had to uphold the
decision unless it found that the decision was discriminatory or
retaliatory. We doubt the jury understood it in that sense. The
use of the modifier “academic” strongly suggests the instruction

12 The jury was instructed on this general concept with CACI
No. 2507, but, as we show, SI 28, the more specific instruction,
conflicts with it.

27
is referring to norms which are unique to academia. In any
event, respondent’s interpretation of the instruction would still
require Dr. Khoiny to prove more than FEHA requires: she would
have to prove that discrimination or retaliation was a substantial
departure from academic norms in that the decisionmaker failed
to actually exercise professional judgment.13

F. It Is Reasonably Probable A Jury Would Have
Believed Appellant’s Evidence If Properly Instructed.
Merely determining that the trial court gave an erroneous
instruction is not sufficient to show prejudicial reversible error.
We must also evaluate the record.
“When the sole contention on appeal concerns a jury
instruction, we do not view the evidence in a light most favorable
to the prevailing party. Rather, to assess the instruction’s
prejudicial impact, we assume the jury might have believed
appellant’s evidence and, if properly instructed, might have
decided in appellant’s favor. [Citation.] ‘Accordingly, we state
the facts most favorably to the party appealing the instructional
error alleged, in accordance with the customary rule of appellate
review. [Citation.]’ ” (Mayes v. Bryan (2006) 139 Cal.App.4th
1075, 1087.)

13 Respondent’s claims on appeal leave us wondering why it
fought so hard for an instruction which it now argues did nothing
more than repeat or restate the requirements of CACI Nos. 2500,
2505 and 2507 and FEHA’s prohibition against discrimination
and retaliation. Does respondent contend it received no benefit
from SI 28? If, in fact, SI 28 does not tell the jury that
respondent’s decision to terminate Dr. Khoiny was entitled to
academic deference, then why is respondent contending the trial
court was correct to find that academic deference applied?

28
 Nonetheless, “ ‘[i]n a civil case an instructional error is
prejudicial reversible error only if it is reasonably probable the
appellant would have received a more favorable result in the
absence of the error.’ ” (Mayes, supra, 139 Cal.App.4th at
pp. 1087–1088.) “[W]hen evaluating the evidence to assess the
likelihood that the trial court’s instructional error prejudicially
affected the verdict, we ‘must also evaluate (1) the state of the
evidence, (2) the effect of other instructions, (3) the effect of
counsel’s arguments, and (4) any indications by the jury itself
that it was misled.’ ” (Id. at p. 1088.)

1. The state of the evidence presented a
probability of discrimination, retaliation, and
pretext.
The evidence in this case was voluminous and detailed. Dr.
Khoiny and respondent presented starkly different views of Dr.
Khoiny’s performance as a resident. Fundamentally, respondent
accused her of patient mismanagement and not being proactive
in taking the lead in treatment decisions.
Residents rotate through internal medicine subspecialties,
including Wards (for in-patient care), the ICU, and cardiology,
oncology, nephrology and pulmonology. They are evaluated on
six “core competencies” identified by ACGME and the American
Board of Internal Medicine. Evaluations are submitted by
faculty, anonymous peers, patients, nurses, other professional
staff, and themselves. A Clinical Competency Committee (CCC)
at SMMC evaluates and counsels residents. Ratings are
unsatisfactory, marginal, satisfactory, and superior. “Marginal”
means “meets some expectations but occasionally falls short.”
A resident who receives two consecutive cumulative ratings of

29
marginal does not receive full credit for the second year of the
three-year residency.
We cannot agree with respondent that there was no
evidence of discrimination or that the evidence was
overwhelming that Dr. Khoiny’s patient care was marginal. Two
experts testified her patient care was not marginal. Residency
expert Dr. Christopher Schaeffer, the former training program
director for all medical residents at SUNY-Buffalo, which had one
of the largest internal medicine residency programs in the
country, opined that “inefficiency” was often seen in first year
residents, Dr. Khoiny’s clinical evaluation scores (“one of the best
tools to evaluate residents”) were satisfactory and superior in
various categories, her national exam scores in her second year of
residency strongly predicted she would pass the boards, and her
response to deficient patient care allegations showed medical
knowledge and appropriate decision making.
Critical care expert Dr. Seth Rivera, after reviewing the
actual patient records in the cases where Dr. Khoiny was accused
of providing inadequate care, opined that Dr. Khoiny’s patient
care was satisfactory and not inadequate or substandard.
Two accusations of patient mismanagement featured
prominently in Dr. Khoiny’s dismissal and showed different
criteria being applied to male and female residents. In the first,
Dr. Khoiny was told to intubate an ICU patient, a procedure for
which she was not yet certified. A male resident, certified to do
the procedure, offered to supervise her. However, when they
entered the patient’s room, the male resident decided the
intubation would be too difficult. He left the room to contact
another doctor for assistance. In the meantime, Dr. Khoiny
called Dr. Maged Tanios, the supervising ICU physician, for

30
assistance. When Dr. Tanios arrived, he reprimanded her for not
doing the procedure. He did not, however, in any way, criticize
the male resident, who had made the actual decision not to
intubate. At trial, Dr. Tanios testified Dr. Khoiny had abandoned
the patient, even though she was present in the room when he
arrived (the other resident was not) and had been the one to
contact him for help. His testimony was shown to be false as Dr.
Khoiny’s rendition of events was corroborated by other staff
members. Nonetheless, Dr. Khoiny was later replaced in the ICU
rotation by the same male resident who had not performed the
procedure either. Although she had been told before the
intubation incident that she would be advanced to the third year
of residency, after the incident she was rated marginal and then
terminated.
In the second patient mismanagement allegation, Dr.
Khoiny was disciplined for “potentially” ordering an incorrect
sodium treatment for a patient. When advised that she would be
disciplined, Dr. Khoiny pointed out that Dr. Winarko had
actually mismanaged a patient’s sodium levels but not been
disciplined for it; Dr. Zhang had not been disciplined for the ICU
intubation incident; and Dr. Mehdizadeh had actually
misdiagnosed a patient a few days earlier. The response was
that these residents, who were male, were being disciplined “[in]
private.”
At least seven other female residents had complained that
Dr. Maghed Tanios, the ICU supervising physician, belittled and
intimated them and held them to a harsher standard than male
residents. They complained he also forced residents to work
excessive hours in the ICU, did not adequately supervise the
residents, and did not respond to pages, all in violation of

31
ACGME guidelines and all encompassed in Dr. Khoiny’s own
complaints she voiced about the residency program. Despite
being on notice as to the complaints about Dr. Tanios, no changes
were made.
In addition to the seeming use of different criteria for male
and female residents, evaluators in the residency program
appeared to change oral positive evaluations of Dr. Khoiny to
negative after her complaints about the work schedule or, at the
very least, ignored the positive and relied heavily on the negative
when they decided to terminate her. While a number of
attending physicians in the program rated her satisfactory or
higher; at least as many provided no evaluation at all. The most
negative evaluations were from anonymous peers, several of
whom were shown to have reasons to feel hostility toward her
because she complained about violations of ACGME guidelines.
Indeed Dr. Khoiny had been told she was doing an excellent job
in her Wards rotation; thereafter one peer evaluator wrote a
negative evaluation for the same rotation and filed it only after
Dr. Khoiny had complained about staffing problems.
Another male evaluator told Dr. Khoiny she was “thorough”
in her evaluations of patients upon admission, but she should, in
effect, take an incomplete history of the patient until she had
more time later to fill in the “gaps” when doing so would not
violate ACGME duty hour limitations. This evaluator then
labeled her thoroughness as inefficiency and grounds for
dismissal. This negative characterization occurred after the
evaluator became angry when Dr. Khoiny complained about
ACGME-violative working conditions in the evaluator’s rotation.

32
 Dr. Khoiny further testified that when she began her
rotation in the ICU, Dr. Tanios openly complimented male
residents for their confidence even when they were wrong about
the facts, but was much more harsh and critical of female
residents. A few days into the rotation, Dr. Khoiny received a
call that she should finish her shift but she was going to be
replaced in the ICU rotation with another resident, a male. She
was told the reason for the change could not be disclosed.
Neither can we agree with respondent that there was no
evidence of retaliation or pretext. During Dr. Khoiny’s first year
of residency, she complained that SMMC was violating ACGME
guidelines for number of required work hours. These complaints
were reported to ACGME. She asked on more than one occasion
to have her back-to-back shifts modified to protect patient safety.
Her supervisors declined to intervene. She pointed out that she
had not received ACGME-required written evaluations at the end
of each rotation. When she did receive an evaluation by her
supervising physician, he rated her satisfactory or better in
10 categories, including the six core competencies identified by
ACGME. However, she continued to be scheduled for back-to-
back rotations by the chief resident and received negative peer
evaluations shortly after she complained about the work
schedule.
Dr. Khoiny also protested that the ICU did not have
24-hour supervision of residents, and Dr. Tanios and another
attending physician had not been answering their pages
50 percent of the time. Her objections were met with anger.
In at least one instance, Dr. Khoiny testified a resident
gave her positive oral feedback before her complaint and negative
written feedback afterward. It is clear these negative peer

33
evaluations were part of her marginal ratings on her yearly
evaluations. In another instance, she received satisfactory or
better ratings in 10 categories, but was told she needed to
prioritize “patients’ care over [her] own needs,” possibly a
reference to her complaints about the excessive and ACGME-
violating working hours. As for pretext, among other things, Dr.
Khoiny argued that the outcome of the CCC meeting was
predetermined, as arguably shown by the CCC’s refusal to obtain
and review the actual patient medical records, and its rendering
of a decision in less than 30 minutes.
Statistics showed that less than 1 percent of residents are
terminated nationwide, making termination a rare event.
Although the SMMC residency program was evenly split by
gender, all discretionary terminations appear to have been
100 percent women. Even if the evidence is deemed relatively
balanced and the jury “could reasonably have gone either way . . .
it is quite probable that the jury utilized the tie-breaking tool
necessary to our system of factfinding: When in doubt, find
against the party with the burden of proof.” (Buzgheia v. Leasco
Sierra Grove (1997) 60 Cal.App.4th 374, 394.) That party would
be Dr. Khoiny under the erroneous SI 28 instruction.

2. Other jury instructions did not offset the effect
of SI 28.
Other more general instructions in the case did not offset
the error as they did not specifically address the academic
deference defense. SI 28, as the conflicting, more specific
instruction, effectively trumped the CACI form instructions.

34
 3. Counsel argued the concept of academic
deference.
Respondent correctly points out that it never used the term
“academic deference” in closing argument and did not refer to
SI 28. Respondent’s counsel began closing argument by focusing
on Dr. Khoiny’s academic performance, claiming her counsel
“never argued her academic performance. Her academic
performance was actually abysmal.” Counsel returned to
academic performance near the end of argument, stating: “So the
issue about academic performance, the first question on the
verdict form, did they make the decision to terminate her
arbitrarily and capriciously without regard to academic
performance or in bad faith without regard to academic
performance, of course they did not.” Respondent’s counsel also
told the jury: “This was a well-thought out decision. So if you
answer the first question, was her termination arbitrary and
capricious, not based on academic performance, you sign it ‘No,’
you sign and return the verdict form. You are done.”
Intentionally or not, this was a summary of the academic
deference rule that was even more deferential and limiting than
the version of the rule in SI 28. Counsel ended by urging the jury
to “look at her academic performance.”

4. The jury clearly relied on SI 28
Although this factor typically asks if there is any indication
from the jury itself that it was “misled” by the instruction, we
think the better phrasing in this case is whether the jury’s
behavior indicated it relied on SI 28. There is some evidence of
this.

35
 A question by the jury indicated that they were confused by
the first question on the special verdict, entitled “Academic
Deference.” The jury asked the court: “In relation to Question 1
of the special verdict, Academic Deference, what are the
definition meanings below: [¶] One: arbitrary and capricious; [¶]
Two, bad faith; [¶] Three: ill will?” At this point, the jury did not
have copies of the jury instructions. The court’s response was to
give them a written copy of the jury instruction packet and direct
its attention to SI 28. The court’s response focused the jury on
SI 28, indicated to the jury that SI 28, which was untitled,
involved “academic deference,” and suggested that the jury rely
on SI 28 to answer the first question on the verdict form. The
jury asked no further questions on this topic, suggesting that
they did rely on SI 28 to answer the first (and determinative)
question on the special verdict form.
Viewing the evidence in the light most favorable to Dr.
Khoiny, and considering the analytical factors as a whole, it is
reasonably probable that Dr. Khoiny would have achieved a more
favorable outcome if the jury had not been erroneously instructed
on the concept of academic deference.

II. The Trial Court Did Not Abuse Its Discretion in Excluding
“Me Too” Evidence.
Dr. Khoiny contends the trial court abused its discretion in
excluding a text sent by Dr. Leah Damiani and testimony from
her that Dr. Tanios did not shake hands with women.
The text stated in pertinent part: “I really think women
and minorities do not have a fair shake here and I am really tired
of it. It is too much.” If offered to show that respondent was on
notice of possible gender discrimination, it was very vague and
also cumulative. If offered for the truth of the matter asserted, it

36
was hearsay. According to Dr. Khoiny, a more specific email from
Dr. Damiani to Drs. Chester Choi and Andrew Burg was
admitted.
We agree with the trial court that the reason Dr. Tanios did
not shake hands with women was speculative. There is no
context for this behavior. Perhaps more details would make the
practice clearer, but Dr. Khoiny has not provided such details.

III. Dr. Khoiny Did Not Forfeit Her Objections, Much Less
Commit Invited Error.

A. Dr. Khoiny Objected to the Instruction on Academic
Deference.
Dr. Khoiny contends instruction SI 28 is erroneous as
given, which does not require an objection. “It is well settled that
there is no waiver for failure to object. Code of Civil Procedure
section 647 provides, in pertinent part, that the trial court’s
‘giving an instruction, refusing to give an instruction, or
modifying an instruction requested . . . [are] deemed to have been
excepted to.’ [Citation.] As we have stated, ‘when a trial court
gives a jury instruction which is prejudicially erroneous as given,
i.e., which is an incorrect statement of law, the party harmed by
that instruction need not have objected to the instruction or
proposed a correct instruction of his own in order to preserve the
right to complain of the erroneous instruction on appeal.
[Citation.]’ [Citation.]” (Huffman v. Interstate Brands Corp.
(2004) 121 Cal.App.4th 679, 705–706; Maureen K. v. Tuschka
(2013) 215 Cal.App.4th 519, 530 [“in a civil case, a party is
deemed to have objected to an erroneous jury instruction; there is
no waiver for failure to object.”].)

37
 Assuming an objection was required, Dr. Khoiny clearly
objected to SI 28 as given at the first trial, which ended in a
mistrial. The court asked Dr. Khoiny’s counsel if she was in
agreement with an instruction on academic deference, and
counsel replied: “We are not.” Her counsel pointed out that the
issue of academic deference had been argued in connection with
summary judgment. Counsel repeated Dr. Khoiny’s contention
that academic deference “doesn’t apply where there’s any kind of
discrimination.” Co-counsel added that the cases cited by defense
counsel were “student cases. This is an employment [case].” The
trial court decided to give the instruction.
About a month before the second trial of this matter, the
trial court observed: “I know what this case looks like. I’ve heard
the witnesses. My rulings are not going to change unless
somebody has something new that I’m not aware of.” The court
specifically stated: “I don’t need more jury instructions. I don’t
need a verdict form.” The court indicated it did not want any new
filings as “I’ve heard every issue that possibly exists in this case.”
Given the trial court’s remarks, we certainly cannot fault Dr.
Khoiny’s counsel if they followed the court’s directives and did
not object to the instructions or special verdict form during the
second trial.
Nevertheless, the record shows Dr. Khoiny’s counsel did, in
fact, register a continuing objection to the instruction and the
special verdict form. Near the end of the second trial, the trial
court stated: “We will go through the three instructions that are
objected to by the [plaintiff].” The court and the parties then
discussed CACI No. 2430, Special Instruction 29 and SI 28.
When the discussion turned to SI 28, the trial court said: “I
thought you had an objection to the second paragraph.” Dr.

38
Khoiny’s counsel replied: “Well, yes, I—Defense counsel
interjected: “The first paragraph, he has an objection to.” Dr.
Khoiny’s counsel agreed, but clarified that he did not object to the
third paragraph, which added a definition of “arbitrary and
capricious.” He added that he also had no objection to adding the
phrase “Based on the court’s finding” to the first paragraph “if
the court is making that finding.” The trial court and defense
counsel could have had no doubt that Dr. Khoiny was objecting to
the first two paragraphs of SI 28 which involve academic
deference.
In discussing the special verdict form, defense counsel
argued that the first question on the verdict form should ask if
SMMC acted in a manner that was “arbitrary and capricious or
motivated by ill will, unrelated to academic performance.”
Counsel pointed out that if the jury answered no to the question,
“it’s over.” Only if they answered yes would they reach the
questions about gender discrimination or retaliation. (which
defense counsel viewed as simply forms of “bad faith” or “ill will.”)
Dr. Khoiny’s counsel objected that academic deference is
“basically in the nature of an affirmative defense” and the verdict
should start with the questions about gender discrimination and
retaliation, not with questions focused on an affirmative defense.
Dr. Khoiny preserved her objections.

B. Dr. Khoiny Did Not Invite Error.
Respondent contends Dr. Khoiny “partially drafted” SI 28
and explicitly approved the special verdict form and so the
doctrine of invited error applies. The doctrine of invited error
requires some form of active advocacy for the decision now
claimed as error on appeal. There was no such advocacy here;
the doctrine does not apply.

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 An error is invited when a party purposefully induces the
commission of error. (Norgart v. Upjohn Co. (1999) 21 Cal.4th
383, 403.) The doctrine of invited error bars review on appeal
based on the principle of estoppel. (Ibid.) The doctrine is
intended to prevent a party from leading a trial court to make a
particular ruling, and then profiting from the ruling in the
appellate court. (Ibid.) Accordingly, the doctrine of invited error
contemplates “ ‘affirmative conduct demonstrating a deliberate
tactical choice on the part of the challenging party.’ ” (Velasquez
v. Centrome, Inc. (2015) 233 Cal.App.4th 1191, 1210.)
The doctrine has not been extended to situations wherein a
party may be deemed to have induced the commission of error,
but did not in fact mislead the trial court in any way—as where a
party “ ‘ “ ‘endeavor[s] to make the best of a bad situation for
which [it] was not responsible.’ ” ’ ” (Norgart v. Upjohn Co.,
supra, 21 Cal.4th at p. 403.)
Dr. Khoiny’s draft of SI 28 involved the insertion of the
words “or motivated by retaliation or discriminatory reasons” into
the instruction on academic deference respondent proposed.14 As
Dr. Khoiny reminded the trial court, the court had already agreed
during the previous trial that the terms “ill will or bad faith” as
used in the definition of academic deference could include
retaliatory and discriminatory reasons. The trial court had
already ruled in connection with the current trial that academic

14 The first paragraph proposed by respondents read: “Since
St. Mary’s residency program was academic in nature, St. Mary’s
academic judgment should not be overturned unless it is found to
have been arbitrary and capricious, not based on academic
criteria, or motivated by bad faith or ill will unrelated to her
academic performance.”

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deference applied, and thus counsel was making the best of a bad
situation by trying to indicate to the jury that discrimination and
retaliation were reasons to “overturn” respondent’s academic
judgment. As we discuss in more detail below, inserting those
two words did not make the instruction correct. Dr. Khoiny
certainly did not argue to the court that the instruction was
correct with these modifications, or perhaps more significantly in
terms of invited error, does not now argue that inclusion of the
words she suggested made the instruction incorrect.
The special verdict form was almost entirely drafted by
respondent. Dr. Khoiny’s counsel initially objected to a special
verdict form where the first question addressed the issue of
academic deference; counsel asserted academic deference was an
affirmative defense more properly addressed after the issues of
discrimination and retaliation. Respondent correctly points out
Dr. Khoiny shifted positions the next day. Her counsel stated:
“[W]e are fine with having that as the first question.” At most,
Dr. Khoiny agreed to the verdict form proposed by respondent.
She in no way advocated for it, as is required to properly apply
the doctrine of invited error. There was no invited error.

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 DISPOSITION
The judgment is reversed and the matter is remanded for a
new trial. Costs are awarded to appellant.

CERTIFIED FOR PUBLICATION

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.

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