Filed 3/28/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ARNOLD SCHEER, B303379
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC659170)
v.
THE REGENTS OF THE
UNIVERSITY OF
CALIFORNIA et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Dennis J. Landin, Judge. Reversed and
remanded.
Greene Broillet & Wheeler, Mark T. Quigley, Christian T.F.
Nickerson; Esner, Chang & Boyer, Stuart B. Esner and Kevin K.
Nguyen for Plaintiff and Appellant.
Horvitz & Levy, Bradley S. Pauley, Scott P. Dixler, Eric S.
Boorstin; Munger, Tolles & Olson, Bryan H. Heckenlively,
John B. Major and Samuel H. Allen for Defendants and
Respondents The Regents of the University of California and
Jonathan Braun.
Fisher & Phillips, Karl R. Lindegren and Lizbeth Ochoa for
Defendant and Respondent Scott Binder.
——————————
In this case alleging whistleblower retaliation, plaintiff and
appellant Arnold Scheer, M.D., M.P.H., appeals a judgment
entered pursuant to the grant of a motion for summary judgment
in favor of defendants and respondents The Regents of the
University of California (Regents), Jonathan Braun, M.D., Ph.D.,
and Scott Binder, M.D., (collectively, Defendants).
Scheer brought his whistleblower claims in three causes of
action, alleging violations of three statutes: Labor Code
section 1102.5, Government Code section 8547 et seq., and
Health and Safety Code section 1278.5. In Lawson v. PPG
Architectural Finishes, Inc. (2022) 12 Cal.5th 703 (Lawson), the
California Supreme Court clarified the legal framework that
applies to claims under Labor Code Section 1102.5, such as
Scheer’s claim in this case. While Lawson did not discuss
Government Code section 8547.10, that statute contains nearly
identical language to the language analyzed by our Supreme
Court. We therefore conclude that Lawson’s legal framework
applies to Scheer’s Government Code claim as well. Because
Defendants, in seeking summary adjudication of Scheer’s Labor
and Government Code claims, relied on a legal standard
inconsistent with Lawson, we reverse and remand as to those
claims.
Lawson did not change the legal framework for Scheer’s
third claim under Health and Safety Code section 1278.5. As to
that claim, we conclude that a triable issue of material fact exists
2
as to whether the stated reasons for termination were pretextual.
Therefore, the judgment is reversed, and the matter is remanded
for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Pleadings
On April 26, 2017, Scheer filed this action against his
former employer, the Regents, and two of his former supervisors,
Braun and Binder, alleging he was wrongfully terminated from
his position as Chief Administrative Officer (CAO) of the UCLA
Department of Pathology and Laboratory Medicine (Department)
in retaliation for whistleblowing.
The operative first amended complaint pleaded the
following causes of action: (1) violation of Health and Safety
Code section 1278.5 (first cause of action), against the Regents;
(2) violation of Labor Code section 1102.5 (second cause of action),
against the Regents; and (3) violation of Government Code
section 8547 et seq., the California Whistleblower Protection Act
(third cause of action), against the Regents, Braun, and Binder.
Scheer alleges that “he identified and became aware of
numerous issues, violations, and concerns related to patient
safety, mismanagement, economic waste, fraudulent and/or
illegal conduct, unsafe and/or substandard conditions, and
incompetence at the facilities of the UC REGENTS, including,
but not limited to, recurrent lost patient specimen issues,
mislabeling and mix-up of patient samples resulting in
misdiagnosis, lost specimens used in NIH funded research, and
failure and/or refusal to follow required procedures to investigate,
analyze, and formulate action plans to correct patient safety
issues.” Scheer pleaded that as a result of his attempts to
properly report and correct the violative conduct, he was
3
terminated on June 2, 2016 from his position in the Department,
where he had worked since 2004 and had served as CAO since
2009.
B. The motions for summary judgment
The Regents and Braun jointly filed a motion for summary
judgment or summary adjudication of issues. They argued that
as to all three causes of action, Scheer was terminated for
legitimate, nonretaliatory reasons, as set forth in their June 2,
2016 notice of intent to terminate (NOIT), and that Scheer could
not meet his burden of demonstrating those reasons were
pretextual, as required by McDonnell Douglas Corp. v. Green
(1973) 411 U.S. 792 (McDonnell Douglas).
Under the three-part burden-shifting framework laid out in
McDonnell Douglas, the employee must first establish a prima
facie case of unlawful discrimination or retaliation (McDonnell
Douglas, supra, 411 U.S. at p. 802); next, the employer bears the
burden of articulating a legitimate reason for taking the
challenged adverse employment action (ibid.); and finally, the
burden shifts back to the employee to demonstrate that the
employer’s proffered legitimate reason is a pretext for
discrimination or retaliation (id. at p. 804). In arguing that
Scheer could not meet the third prong, the Regents and Braun
asserted that Scheer was terminated not for whistleblowing, but
“because he bullied and intimidated those with whom he worked
and over time became ineffective in his role. . . . The letter from
Department leadership informing Plaintiff of the intent to
terminate him [i.e., the June 2, 2016 NOIT] made that clear,
stating Plaintiff was being terminated because he (1) had an
overly aggressive attitude concerning certain negotiations;
(2) had a harsh and disruptive style at meetings; (3) had become
4
increasingly ineffective as CAO; (4) lack[ed] . . . enthusiasm for
[his] position; and (5) was not an effective leader.”
Binder filed a separate motion for summary judgment,
directed solely at the third cause of action to which he was a
party. Binder similarly contended that Scheer was terminated
for legitimate, nonretaliatory reasons, and Scheer could not meet
his burden under McDonnell Douglas to establish pretext.
C. Scheer’s opposition to summary judgment
In opposition, Scheer contended there were triable issues of
fact as to whether Defendants’ stated reasons for his termination
were pretextual. Among other things, Scheer asserted the
“reasons given for [his] termination in the NOIT are patently
false and are expressly refuted by his having received
outstanding performance on his FYl5 Performance Review, given
by Defendant Dr. Braun in July 2015. Further, Dr. Scheer’s
FY16 goals were developed in consultation with Dr. Braun and
submitted on or about September 11, 2015. The FY16 goals do
not identify any behavioral or other performance
issues. . . . Thus, a triable issue of fact exists whether
defendants’ stated reasons for termination are true. For this
threshold reason the motion should be denied.”
D. Trial court’s ruling
After hearing the matter and taking it under submission,
the trial court issued an order granting Defendants’ motions for
summary judgment. The trial court ruled that the McDonnell
Douglas burden-shifting analysis governed the three
whistleblowing causes of action, and it proceeded to apply that
framework.
On the first step of the analysis, the trial court found that
Scheer met his burden to prove a prima facie case of retaliation
5
by a preponderance of the evidence. The trial court also noted
that Defendants did not contest the sufficiency of Scheer’s prima
facie case of retaliation. Thus, “the burden shifts to Defendant to
offer a legitimate, nondiscriminatory reason for the adverse
employment action.”
On the second step, the trial court found that “Defendants
present sufficient evidence demonstrating that Plaintiff was
terminated for his harsh and aggressive style of work and
increasing ineffectiveness as CAO. . . . Defendants also present
supporting testimony and documentary evidence that there were
multiple complaints and concerns about Plaintiff regarding his
aggressive behavior and that the Human Resources Department
conducted an investigation accordingly. . . . The proffered reason
for termination, whether good or not, is facially unrelated to the
alleged retaliatory motive and, therefore, Defendants meet their
burden of production. . . . [¶] The Court finds that Defendants
properly show legitimate, non-retaliatory reasons to defeat the
presumption of retaliation. The burden shifts back to Plaintiff to
show the proffered reasons were untrue or pretextual.”
On the third and final step, which is the crux of this appeal,
the trial court ruled that Scheer had failed to raise a triable issue
of material fact as to pretext. The trial court stated:
“Plaintiff argues that, while there is no direct evidence of
discriminatory intent, Defendants’ stated reason for his
termination is false because he received satisfactory performance
reviews and even accolades for his outstanding performance until
even after he made complaints about patient safety issues in
2015. . . . Plaintiff asserts that this is sufficient circumstantial
evidence of pretext because his termination can only be explained
by Defendants’ retaliatory motive for his protected activity.
6
“Upon review of the records, the Court finds that those
evaluations do not speak to or controvert the proffered reason for
Plaintiff's termination. His performance reviews take the form of
checklists relating to completion of individual tasks, rather than
subjective evaluations of the quality of his work or his style and
manner in completing those tasks. . . . [S]ee Hicks [v. KNTV
Television, Inc. (2008)] 160 Cal.App.4th [994,] at 1009-1010
(While a news anchor had been complimented for various news
casts and his reporting skills in general, that did not directly
controvert evidence that his anchoring style was inadequate in
different aspects.) Plaintiff’s nominations for Staff Appreciation
and Recognition awards also do not create an inference of pretext,
as the nominations were written in 2012 and 2013 before
complaints and concerns about his performance and working
style became an issue for review. . . . Further, contrary to
Plaintiff’s argument, the fact that Plaintiff continued to receive
satisfactory performance review in 2015 in effect shows that his
evaluation was not affected by his protected activity or any
alleged retaliatory motive based on the activity.
“Lastly, Plaintiff’s evidence of temporal proximity between
Plaintiff’s reporting of safety issues and his termination is not
sufficient to support an inference of pretext. In the third stage of
burden to show pretext, temporal proximity alone does not raise a
triable issue as to pretext, whereas the same may satisfy the
causation requirement at the first step of the burden-shifting
process. [Citation.] Standing alone against Defendants’ strongly
supported legitimate reason for termination, temporal proximity
here does not amount to a showing of discriminatory
intent. . . . In fact, the records show that verbal complaints from
7
the faculty regarding Plaintiff’s performance issues started in
2013, before Plaintiff engaged in his first protected activity. . . .
Therefore, the Court finds that Plaintiff fails to meet the
burden to provide specific and substantial responsive evidence
that the employer’s proffered reasons were untrue or pretextual.”
Scheer filed a timely notice of appeal from the
December 27, 2019 judgment.
E. The Lawson decision
This court deferred consideration of the appeal pending the
California Supreme Court’s decision in Lawson v. PPG
Architectural Finishes, Inc., supra, 12 Cal.5th 703, which would
determine whether Labor Code section 1102.6 (discussed in more
detail below), rather than the McDonnell Douglas test, provides
the framework for scrutinizing retaliation claims brought
pursuant to Labor Code section 1102.5.
On January 27, 2022, the California Supreme Court issued
its decision in Lawson v. PPG Architectural Finishes, Inc., supra,
12 Cal.5th 703. Lawson held that Labor Code “[s]ection 1102.6
provides the governing framework for the presentation and
evaluation of whistleblower retaliation claims brought under
[Labor Code] section 1102.5.” (Lawson, at p. 718.) Lawson held
with clarity that the “plaintiff need not satisfy McDonnell
Douglas in order to discharge” the plaintiff’s burden. (Ibid.)
Following the issuance of Lawson, we requested that the
parties file supplemental briefs addressing the impact of Lawson
on the issues presented in the appeal. Scheer filed his
8
supplemental brief on February 7, 2022, and Defendants filed
their briefs on February 17, 2022. 1
DISCUSSION
Scheer contends that the trial court erred in ruling that
there were no triable issues of material fact as to his claims. In
his supplemental brief, Scheer also contends that Lawson
requires reversal as to his retaliation claims under both Labor
Code section 1102.5 and Government Code section 8547.10,
because the McDonnell Douglas burden shifting analysis no
longer applies to those claims.
I. Standard of appellate review
“We independently review an order granting summary
judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 860.) We determine whether the court’s ruling was correct,
not its reasons or rationale. (Salazar v. Southern Cal. Gas Co.
(1997) 54 Cal.App.4th 1370, 1376.) ‘In practical effect, we
assume the role of a trial court and apply the same rules and
standards which govern a trial court’s determination of a motion
for summary judgment.’ (Zavala v. Arce (1997) 58 Cal.App.4th
915, 925.)” (Shugart v. Regents of University of California (2011)
199 Cal.App.4th 499, 504–505.) In performing our de novo
1 Scheer and the Regents addressed in their supplemental
briefs the impact of Lawson on Scheer’s claim under Government
Code section 8547.10, among other issues. On March 3, 2022, we
sent the parties our tentative decision which included a notice
that the court will not entertain further briefing based on the
tentative. At oral argument, the Regents requested further
briefing on the impact of Lawson on Government Code section
8547.10. Because the Regents had an opportunity to brief this
issue and in fact did so, we deny their request for additional
briefing.
9
review, we view the evidence in the light most favorable to
Scheer, as the party opposing summary judgment. (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
II. Lawson requires reversal as to Scheer’s second cause
of action for violation of Labor Code section 1102.5.
Labor Code section 1102.5 prohibits an employer from
preventing an employee’s disclosure of information to a
governmental agency. It is a whistleblower statute, the purpose
of which is to encourage workplace whistleblowers to report
unlawful acts without fearing retaliation. (Soukup v. Law Offices
of Herbert Hafif (2006) 39 Cal.4th 260, 287.) Labor Code section
1102.6 is part of the same statutory scheme. It provides that
once an employee-whistleblower establishes by a preponderance
of the evidence that retaliation was a contributing factor in the
employee's termination, demotion, or other adverse action, the
employer bears the burden of demonstrating by clear and
convincing evidence that it would have taken the same action for
legitimate, independent reasons. (Lab. Code, § 1102.6.) 2
In Lawson, supra, 12 Cal.5th 703, our Supreme Court
addressed whether the evidentiary standard set forth in Labor
Code section 1102.6 replaced McDonnell Douglas as the relevant
2 Labor Code section 1102.6 provides as follows: “In a civil
action or administrative proceeding brought pursuant to Section
1102.5, once it has been demonstrated by a preponderance of the
evidence that an activity proscribed by Section 1102.5 was a
contributing factor in the alleged prohibited action against the
employee, the employer shall have the burden of proof to
demonstrate by clear and convincing evidence that the alleged
action would have occurred for legitimate, independent reasons
even if the employee had not engaged in activities protected by
Section 1102.5.”
10
evidentiary standard for retaliation claims brought pursuant to
Labor Code section 1102.5. Lawson held that Labor Code
section 1102.6, adopted in 2003, provides the governing
framework for analyzing whistleblower retaliation claims
brought under Labor Code section 1102.5. It “places the burden
on the plaintiff to establish, by a preponderance of the evidence,
that retaliation for an employee’s protected activities was a
contributing factor in a contested employment action. The
plaintiff need not satisfy McDonnell Douglas in order to discharge
this burden. Once the plaintiff has made the required showing,
the burden shifts to the employer to demonstrate, by clear and
convincing evidence, that it would have taken the action in
question for legitimate, independent reasons even had the
plaintiff not engaged in protected activity.” (Lawson, at p. 718,
italics added.)
Here, the Regents moved to summarily adjudicate the
second cause of action, violation of Labor Code section 1102.5,
pursuant to the McDonnell Douglas framework, and the trial
court utilized that framework to summarily adjudicate the second
cause of action in favor of the Regents. Because the moving
papers failed to employ the applicable framework prescribed by
Labor Code section 1102.6, the Regents failed to meet their initial
burden in moving to summarily adjudicate the second cause of
action. Their motion as to the second cause of action should
therefore have been denied.
Scheer’s opposition papers in the trial court also did not
invoke Labor Code section 1102.6. This does not preclude our
consideration of the issue. Prior to Lawson, which resolved the
question at the request of the Ninth Circuit, the state of the law
was unsettled. Further, the trial court’s “assessment of whether
11
the moving party has carried its burden—and therefore caused a
shift—occurs before the court’s evaluation of the opposing party’s
papers” to the motion for summary judgment. (Y.K.A. Industries,
Inc. v. Redevelopment Agency of City of San Jose (2009) 174
Cal.App.4th 339, 367, italics added.) On our de novo review, we
apply the same rules and standards which govern a trial court’s
determination of a motion for summary judgment. (Zavala v.
Arce, supra, 58 Cal.App.4th at p. 925.) Because the Regents’
moving papers in the trial court failed to apply the Labor Code
section 1102.6 framework, they failed to meet their threshold
burden. Summary adjudication of the second cause of action
should have been denied.
The Regents argue that on this record, we should affirm the
trial court’s ruling with respect to the second cause of action,
notwithstanding that Lawson revised the analytical framework
for resolving claims under Labor Code section 1102.5. We
disagree. Our role as an appellate court is to review the trial
court’s order on the motion the Regents actually made in the trial
court, not to rule in the first instance on whether the Regents are
entitled to summary adjudication on the second cause of action in
light of the Labor Code section 1102.6 framework. Now that
Lawson has clarified the law, the Regents are not precluded on
remand from moving for summary adjudication of the second
cause of action in accordance with the Labor Code section 1102.6
framework.
III. Lawson requires reversal as to the Scheer’s third
cause of action for violation of Government Code
section 8547.10.
Although Lawson involved Labor Code section 1102.6, it
informs our analysis of the third cause of action that alleged a
12
violation of Government Code section 8547.10 by the Regents,
Braun and Binder.
Government Code section 8547.10, which pertains to
University of California employees, authorizes a civil action for
damages on a complaint for retaliation. (Taswell v. Regents of
University of California (2018) 23 Cal.App.5th 343, 355–356
(Taswell).) The statute provides in relevant part at
subdivision (e): “In any civil action or administrative proceeding,
once it has been demonstrated by a preponderance of the
evidence that an activity protected by this article was a
contributing factor in the alleged retaliation against a former,
current, or prospective employee, the burden of proof shall be on
the supervisor, manager, or appointing power to demonstrate by
clear and convincing evidence that the alleged action would have
occurred for legitimate, independent reasons even if the employee
had not engaged in protected disclosures or refused an illegal
order.” (Gov. Code, § 8547.10, subd. (e), italics added.)
This language in Government Code section 8547.10 mirrors
the language of Labor Code section 1102.6, which states that
“once it has been demonstrated by a preponderance of the
evidence that an activity proscribed by Section 1102.5 was a
contributing factor in the alleged prohibited action against the
employee, the employer shall have the burden of proof to
demonstrate by clear and convincing evidence that the alleged
action would have occurred for legitimate, independent reasons
even if the employee had not engaged in activities protected by
Section 1102.5.” (Italics added.)
Guided by Lawson and applying its reasoning, we conclude
that Government Code section 8547.10, subdivision (e), rather
than McDonnell Douglas, provides the relevant framework for
13
analyzing claims under Government Code section 8547.10.
Because Defendants incorrectly relied upon the McDonnell
Douglas framework in moving for summary adjudication on this
cause of action, the trial court likewise erred in summarily
adjudicating the third cause of action in favor of Defendants. On
remand, Defendants are not precluded from moving for summary
adjudication of the third cause of action in accordance with the
proper framework as set forth in Government Code
section 8547.10, subdivision (e).
IV. The trial court erred in finding no triable issues of
material fact on Scheer’s first cause of action for
violation of Health and Safety Code section 1278.5.
A. Lawson did not alter the legal framework for
claims asserting a violation of Health and
Safety Code section 1278.5.
The final issue on review is the first cause of action, which
alleged a violation by the Regents of Health and Safety Code
section 1278.5. The statute prohibits retaliation against any
employee of a health facility who complains to an employer or
government agency about unsafe patient care. (Fahlen v. Sutter
Central Valley Hospitals (2014) 58 Cal.4th 655, 660–661.) The
statute also provides a “rebuttable presumption that
discriminatory action was taken by the health facility, or by the
entity that owns or operates that health facility” if responsible
staff had knowledge of the employee’s complaint “and the
discriminatory action occurs within 120 days of the filing of the
grievance or complaint by the employee.” (Health & Saf. Code,
§ 1278.5, subd. (d)(1).) Discriminatory action includes discharge
of the employee. (Id., subd. (d)(2).)
14
California courts have applied the McDonnell Douglas
framework to a cause of action alleging a violation of Health and
Safety Code section 1278.5. (Armin v. Riverside Community
Hospital (2016) 5 Cal.App.5th 810, 830; see Taswell, supra,
23 Cal.App.5th at pp. 350, 365–366 [applying burden shifting test
consistent with McDonnell Douglas in evaluating summary
judgment on retaliation claims under Health & Saf. Code
§ 1278.5 and other whistleblower statutes].) The Lawson
decision has no direct bearing on the interpretation of Health and
Safety Code section 1278.5, which is structured differently from
the Labor Code provision that was construed in Lawson.
Further, neither Scheer nor the Regents contend that Lawson
altered California law concerning the application of the
McDonnell Douglas framework to a cause of action brought under
Health and Safety Code section 1278.5. Accordingly, in reviewing
the trial court’s decision, we will do so under the McDonnell
Douglas framework on which the Regents based their motion,
and which formed the basis for the trial court’s ruling.
B. A triable issue of material fact exists as to
whether the stated reasons for termination were
pretextual.
Scheer argues that, under the third prong of the McDonnell
Douglas framework, triable issues of fact exist as to whether his
firing was pretextual. We agree.
In their moving papers in the trial court, the Regents
asserted that Scheer was terminated for legitimate,
nonretaliatory reasons. Specifically, the Regents asserted that
Scheer “bullied and intimidated those with whom he worked and
over time became ineffective in his role. . . . The letter from
Department leadership [i.e., the June 2, 2016 NOIT signed by
15
Braun and Binder] informing Plaintiff of the intent to terminate
him made that clear, stating Plaintiff was being terminated
because he (1) had an overly aggressive attitude concerning
certain negotiations; (2) had a harsh and disruptive style at
meetings; (3) had become increasingly ineffective as CAO;
(4) lack[ed] . . . enthusiasm for [his] position; and (5) was not an
effective leader.”
If the employer meets its initial burden on summary
judgment to show that the adverse employment action was based
upon legitimate, nondiscriminatory factors, “the burden shifts to
the employee to ‘demonstrate a triable issue by producing
substantial evidence that the employer’s stated reasons were
untrue or pretextual, or that the employer acted with a
discriminatory animus, such that a reasonable trier of fact could
conclude that the employer engaged in intentional discrimination
or other unlawful action.’ ” (Serri v. Santa Clara University
(2014) 226 Cal.App.4th 830, 861.) Both “direct and
circumstantial evidence can be used to show an employer’s intent
to retaliate. ‘Direct evidence of retaliation may consist of
remarks made by decisionmakers displaying a retaliatory motive.
[Citation.]’ [Citation.] Circumstantial evidence typically relates
to such factors as the plaintiff's job performance, the timing of
events, and how the plaintiff was treated in comparison to other
workers.” (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142,
1153.) Here, Scheer relied on circumstantial evidence to show a
retaliatory motive.
Evidence “that the employer’s claimed reason is false—such
as that it conflicts with other evidence, or appears to have been
contrived after the fact—will tend to suggest that the employer
seeks to conceal the real reason for its actions, and this in turn
16
may support an inference that the real reason was unlawful.
This does not mean that the factfinder can examine the
employer’s stated reasons and impose liability solely because they
are found wanting. But it can take account of manifest
weaknesses in the cited reasons in considering whether those
reasons constituted the real motive for the employer’s actions, or
have instead been asserted to mask a more sinister reality.”
(Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686,
715 (Mamou).)
The NOIT, in the first paragraph, advised Scheer of the
intent to dismiss him from his position as CAO “because the
needs of the department and your poor performance and conduct
no longer support your appointment.” Josh Samuels, the
employee relations manager, drafted the NOIT. When
questioned at his deposition about “the needs of the department,”
Samuels stated, “I would refer basically to the rest of the letter.
And also, part of that language I think is also a reference to the
termination language in the person[nel] policies for staff
members.” Thus, a trier of fact could draw the inference that the
statement in the NOIT about the needs of the department was
merely boilerplate language drawn from a personnel manual.
As for the statement in the NOIT that Scheer was being
terminated for “poor performance,” that fact was strongly
disputed by Scheer. In his opposing separate statement, Scheer
proffered as an additional disputed fact the following: “From the
beginning of his tenure at UCLA in 2004 through the date of his
constructive termination in February 2016, Dr. Scheer continued
to receive accolades, positive feedback, promotions, and
additional assignments and responsibilities from upper
management, including from Defendants Dr. Braun and
17
Dr. Binder. Each year he was rewarded with a maximum merit
increase in salary and near maximum incentive awards. At no
time was Dr. Scheer made aware of any alleged shortcomings or
deficiencies in the performance of his job duties. Indeed, the
reviews and evaluations mentioned above clearly indicate that
his work and performance were exemplary during that time
frame. Notably, Dr. Scheer was consistently being given
additional responsibilities and oversight until the date of his
termination.”
The Regents did not dispute this fact. In their responsive
papers, they merely stated, “Immaterial. Plaintiff’s receipt of
unspecified accolades, positive feedback, promotions, and
additional assignments does not rebut that Defendants had a
non-retaliatory reason for terminating Plaintiff, i.e., Plaintiff’s
unprofessional demeanor and ineffective performance as CAO in
specific ways later in his career, and that Defendants in fact
terminated Plaintiff for that reason.”
In fact, Scheer presented evidence that he received his
performance evaluation for fiscal year 2014-2015 around the end
of July 2015, just three months before his termination was
initiated. Like his earlier performance evaluations, his most
recent evaluation contained no criticisms or negative feedback
concerning his work product or performance from June 2014 to
June 2015. Scheer also worked with Braun and Binder on his
performance goals and objectives for fiscal year 2015-2016, which
were completed and submitted in September 2015. Scheer’s
performance goals and objectives for 2015-2016 did not indicate
any areas of his work product or performance that were deficient
and needed improvement.
18
Scheer’s opposing separate statement also stated that he
“was never informed of any issues regarding his behavior or
performance. The only time any issue was brought up was in
February of 2015, when he was told by Dr. Braun about the
review by Mr. Samuels that was initiated by the retaliatory
complaints of Mr. Colonna and Ms. Toy. Dr. Braun told
Dr. Scheer that Mr. Samuels did not find any problems but told
Dr. Scheer to be careful of Ms. Yost and Mr. Colonna. Dr. Binder
and Dr. Braun continued to praise Dr. Scheer’s work through
October 2015.”
Again, this fact was undisputed by the Regents. The
Regents merely responded, “Immaterial. The fact that Plaintiff
was not informed of his performance issues does not rebut that
those issues in fact existed and that, accordingly, Defendants had
a non-retaliatory reason for terminating Plaintiff, i.e., Plaintiff’s
unprofessional demeanor and ineffective performance as CAO in
specific ways later in his career, and that Defendants in fact
terminated Plaintiff for that reason. These facts therefore do not
establish pretext.”
The Regents’ characterization of Scheer’s evidentiary
showing as “immaterial” is not well taken. Scheer’s undisputed
evidence showed that he unfailingly received excellent
evaluations over a 12-year period, and no one ever advised him of
any shortcomings or deficiencies that were asserted in the NOIT.
Scheer’s evidence put in issue the NOIT’s statement that he was
being terminated for “poor performance and conduct.”
The NOIT also stated that Scheer had become “a
problematic presence within the Department.” However, Binder,
one of the signatories of the NOIT, stated at his deposition “a
problematic presence within the department, I don’t agree with
19
that. [¶] . . . [¶] . . . I did not think he was a problematic presence
within the Department.” Binder also indicated in his deposition
that he had been reluctant to sign the NOIT because he
disagreed with its content.
The NOIT also stated that Defendants had taken a very
serious adverse personnel action against Scheer: “Specifically, in
February, 2015, we expressed concerns about your interactions
with Shannon O’Kelley, Chief Operating Officer, and Laura Yost,
Executive Director, Clinical Services for UCLA Health. Over the
following months, concerns were expressed to you about your
overly aggressive attitude concerning negotiations with the
Hospital regarding memoranda of understanding as well as your
style at meetings that was deemed to be harsh and disruptive.
As a result of these concerns, we took the significant step of
removing all of your Hospital responsibilities, and your duties
were thereafter limited to the School of Medicine.” (Italics
added.)
However, Scheer’s opposing declaration stated that prior to
the NOIT, he was never advised that he had been stripped of his
hospital responsibilities or that he had been restricted in his
duties to the medical school. Scheer’s declaration also stated that
his fiscal year 2016 objectives, approved by Braun in September
2015, specifically identified his goals for clinical lab oversight.
Thus, Scheer successfully controverted the statement in the
NOIT that he had previously been relieved of his hospital
responsibilities
The NOIT also criticized Scheer’s “overly aggressive
attitude concerning negotiations with the Hospital regarding
memoranda of understanding.” However, Scheer previously
received commendation for his work in the negotiations. On
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May 13, 2015, Binder and Braun sent the following email to their
colleagues: “Dear colleagues, [¶] As you know, our department
has been engaged in negotiation with the UCLA Hospital System
on several aspects of our fiscal relationship. One important issue
has been to reach a new valuation of our medical directorship
portfolio. I am pleased to report that we have completed an
agreement that has more than doubled its valuation to $5.2 M.
This change is retroactive for the current fiscal year, and applies
as well to the upcoming fiscal year budget. [¶] I would like to
thank each of you for participating in the effort study several
months ago, which provided key information for the negotiation.
Led by Drs. Binder and Braun, the success of the negotiation
reflects the assiduous work of Arnie Scheer, Mary Alice Mita, and
Chris Hernandez. Let us thank each other and them for this great
outcome, and its benefit for the department mission and the
welfare of our faculty.” (Italics added.) This email calls into
question the veracity of the statement in the NOIT that Scheer’s
conduct in the negotiations was a factor in his termination.
The NOIT also criticized Scheer’s involvement in the
opening of a new laboratory in China, stating, “In spite of one
visit to the Chinese laboratory you never followed through with
the issues there.” However, Scheer’s fiscal year 2015
performance evaluation, sent July 31, 2015, stated, “100% of goal
was obtained by implementing other revenue enhancement
opportunities such as . . . opening of joint venture with CTI in
Shanghai, China, and taking on new sites and testing.”
Based on all the above, the trier of fact could determine
that the Regents’ stated reasons, as set forth in the NOIT, were
untrue and were a pretext for retaliation. As we have stated,
liability cannot be imposed merely because the employer’s stated
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reasons “are found wanting. But [the factfinder] can take
account of manifest weaknesses in the cited reasons in
considering whether those reasons constituted the real motive for
the employer’s actions, or have instead been asserted to mask a
more sinister reality.” (Mamou, supra, 165 Cal.App.4th at
p. 715.) Here, Scheer’s evidence that the Regents’ stated reasons
were untrue, in conjunction with his reports concerning patient
safety, his stellar record up to his date of termination and the
temporal proximity between his protected conduct and the
employer’s adverse action, serve to raise a triable issue of
material fact in this regard.
The trial court found that Scheer’s excellent evaluations
“do not speak to or controvert the proffered reason for Plaintiff's
termination. His performance reviews take the form of checklists
relating to completion of individual tasks, rather than subjective
evaluations of the quality of his work or his style and manner in
completing those tasks.” The trial court’s view of the evaluations
as mere “checklists” is incorrect because the evaluation forms
included a field for comments to be entered. Moreover, it is
undisputed that Scheer’s evaluations were unfailingly excellent
and that there were no adverse comments. Therefore, it is for the
trier of fact to determine whether, as stated in the NOIT, Scheer
was terminated for his “poor performance and conduct” or
whether those stated reasons were pretextual.
In finding that Scheer’s evaluations failed to raise a triable
issue as to pretext, the trial court also cited Hicks v. KNTV
Television, Inc., supra, 160 Cal.App.4th 994 for the proposition
that although plaintiff may have been complimented for various
newscasts and for his reporting skills in general, that did not
controvert evidence that his anchoring style was inadequate in
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other respects. (Id. at pp. 1009–1010.) Hicks is not on point.
Here, Scheer raised a triable issue of material fact by presenting
evidence that the proffered reasons for termination that were set
forth in the NOIT were untrue and thus were a pretext for a
retaliatory discharge.
The trial court also ruled that Scheer’s “evidence of
temporal proximity between [his] reporting of safety issues and
his termination is not sufficient to support an inference of
pretext.” However, as detailed above, Scheer’s evidence of
pretext went far beyond a showing of temporal proximity between
his reporting and his termination—he raised a triable issue of
material fact by other facts including evidence that the stated
reasons in the NOIT were a pretext for a retaliatory discharge.
In sum, the trial court erred in summarily adjudicating the
first cause of action in favor of the Regents.
DISPOSITION
The judgment is reversed, and the matter is remanded for
further proceedings consistent with this opinion. Arnold Scheer
is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION.
LIPNER, J. ∗
We concur:
EDMON, P. J. EGERTON, J.
∗ Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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