Song v. The Regents of the University of California

Background

Dennis Song, DDS, MD, had served as a volunteer clinical professor in the University of California, San Francisco School of Dentistry’s Department of Oral and Maxillofacial Surgery from 2007 through 2017. He supervised dental students one half-day each week. In May 2016 and April 2017, Dr. Song sent communications to department and University officials raising concerns about patient care, student preparation, medical records, and the department’s nitrous oxide and oxygen systems. In April 2017, he also stated that he wanted to take a leave from the department beginning July 1, 2017, while saying that he would like to return.

Brian Bast, the department chair, understood Dr. Song’s April 2017 communication to mean that Dr. Song would not volunteer during the next academic year. University policy did not allow volunteer professors to take a leave while maintaining their appointments. On May 27, 2017, Dr. Bast told Dr. Song that his volunteer faculty appointment would not be renewed for the 2017–2018 academic year. Dr. Song later clarified that he had not intended to resign and sought an appointment in the Department of Orofacial Sciences’ Pediatrics division. Caroline Shiboski, the decisionmaker for the Pediatrics appointment, declined to offer him a position. She testified that the primary reason was that Dr. Song no longer had a primary appointment elsewhere, meaning a Pediatrics appointment would incur considerable human-resources costs; student complaints about Dr. Song’s statements and conduct were an additional factor.

Claims and summary-judgment standard

Dr. Song asserted seven causes of action. The first three were claims under 42 U.S.C. § 1983 against Bast and Featherstone, alleging First Amendment retaliation and related constitutional violations. The fourth and fifth alleged retaliation under California Labor Code section 1102.5 and California Health and Safety Code section 1278.5. The sixth alleged intentional infliction of emotional distress against Bast and Featherstone, and the seventh alleged negligence against the Regents under California Government Code section 815.2.

The court explained that summary judgment is proper when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. Defendants did not dispute that Dr. Song engaged in protected speech or experienced an adverse employment action. They argued that he could not show that his protected speech was a substantial or motivating factor in either employment decision, and that they would have taken the same actions without the protected speech.

Federal retaliation claims

The court held that Dr. Song did not present sufficient evidence of retaliatory motive concerning the non-renewal of his appointment in Oral and Maxillofacial Surgery. The timing did not support an inference of retaliation because Dr. Song had first notified Bast that he intended to stop teaching as of July 1, 2017, and the non-renewal followed the University’s policy that volunteer faculty could not maintain appointments while not teaching. The court also noted that Dr. Song had raised his concerns about a year before the challenged action and that University personnel responded by discussing the concerns and developing an action plan. The court found no evidence that the University had reacted negatively to those complaints.

The court also rejected Dr. Song’s arguments that the University’s stated reason was pretextual, meaning a false reason hiding retaliation. The court found that his April communications reasonably indicated that he would not teach during the 2017–2018 academic year, even though he might wish to return later. The court found no sufficient evidence that Bast acted dishonestly, that his consultation with human resources showed retaliatory intent, or that his reference to a “plan” not to renew Dr. Song’s appointment revealed a retaliatory scheme.

The court considered student complaints that Dr. Song had criticized UCSF and its faculty in front of students. It held that the complaints could be considered to show what University officials believed, rather than to prove that Dr. Song actually engaged in misconduct. The court also concluded that the statements, as described, were not speech on a matter of public concern and therefore were not protected speech. But the court stated that Defendants did not rely on the complaints as the basis for the non-renewal; instead, they relied on Dr. Song’s notice that he would stop teaching and the University’s leave policy.

As to the Pediatrics appointment, the court found that Shiboski—not Bast—was the ultimate decisionmaker. Dr. Song acknowledged that Shiboski had that authority but argued that Bast had influenced her. The court found no evidence that Bast blocked the appointment or attempted to influence Shiboski’s decision beyond informing her about the student complaints. It also found that Dr. Song did not show that Shiboski’s stated primary reason—the cost of creating a primary appointment—was pretextual. The court therefore granted summary judgment on the first through third causes of action.

State retaliation claims

The court analyzed the California Labor Code section 1102.5 and Health and Safety Code section 1278.5 retaliation claims under essentially the same framework. Because Dr. Song failed to show that his protected complaints caused the challenged actions, the court granted Defendants’ motion for summary judgment on the fourth and fifth causes of action.

Other claims

The court granted summary judgment on the intentional-infliction-of-emotional-distress claim because Dr. Song had not presented evidence of retaliation or conduct sufficiently extreme to meet the legal standard for outrageous conduct.

The court also granted summary judgment on the negligence claim against the Regents under Government Code section 815.2. It explained that section 815.2 provides a rule for an entity’s responsibility for an employee’s torts but does not itself create a separate substantive claim. Because Dr. Song had not prevailed on the underlying retaliation theory, the court granted summary judgment on the seventh cause of action as well.

Disposition

Judge Aundra Brown Armstrong granted Defendants’ Motion for Summary Judgment. The court ordered that judgment be entered in favor of Defendants and stated that the order terminated Docket 28.