Pham v. Board of Regents UCSF

Background

Dr. Hieu Pham had a renewable, part-time appointment with the University at 50% full-time equivalent, or FTE. He worked two days per week in the Department of Oral & Maxillofacial Surgery clinic. The court found that the written description of his duties also included other work, and that Pham was no longer performing some duties listed in the 2001 description.

In January 2016, before Pham complained about Dr. Jennifer Perkins, Dr. Brian Bast learned that Pham was classified at 50% FTE even though he worked two clinic days per week. Bast repeatedly asked Pham either to work an additional half-day or to document other work that would support the additional 10% appointment. Pham did not provide the requested monthly reports and refused to work additional clinic hours. Bast reduced the appointment to 40% FTE effective March 27, 2017. Because benefits were unavailable at 40% FTE, Pham lost benefits and accumulated sick and vacation time.

On May 18, 2016, Pham complained to Bast that Dr. Perkins’s practices endangered patient safety and fell below the standard of care. Bast investigated by consulting University officials, reviewing patient records, and interviewing faculty, staff, and residents. He temporarily closed Perkins’s clinic and delayed her raise, but later found no patient-safety problems, reopened the clinic, and reinstated the raise.

Claims and Trial

Pham asserted retaliation claims under 42 U.S.C. § 1983 against Bast, California Labor Code § 1102.5 against the University, and California Health and Safety Code § 1278.5 against the University. The jury returned a unanimous defense verdict on the section 1983 and section 1102.5 claims. The section 1278.5 claim was tried to the judge rather than the jury.

Under section 1278.5, Pham had to prove that he made a complaint about patient care and that the University retaliated against him for making it. To prove retaliation, he had to show protected activity, an adverse employment action, and a causal connection between them, using the greater-weight-of-the-evidence standard.

Court’s Findings

The court found that Pham made a qualifying patient-care complaint and that his appointment was reduced, but concluded that he did not prove retaliation. Bast discovered the FTE discrepancy before Pham’s complaint and made repeated efforts to resolve it. The court also noted that Bast gave Pham a raise after the complaint and conducted a serious investigation of Perkins’s conduct.

The court rejected Pham’s argument that testimony from Tina Valaris showed a pattern of retaliation. It found that Valaris was terminated because she did not meet Bast’s and the DOMS manager’s expectations, not because of the concerns she reported. The court also found that the University would have reduced Pham’s appointment regardless of his complaint about Perkins.

Ruling

The court found that Pham failed to meet his burden of proof on the California Health and Safety Code section 1278.5 claim and ordered that judgment be entered accordingly. The jury had already returned a defense verdict on the section 1983 and section 1102.5 claims.