KAREN G. ANDRES
Hearing Officer



In the Matter of the Grievance and 	)
Whistleblower Retaliation Complaint 	)    
of Dr. X, 	                         )	FINDINGS 
Step III Hearing					)    and 
    								)	RECOMMENDATIONS 
C.S.M.C.S. Case No. ARB-09-0629		)
________		_________________________)

APPEARANCES

Employer:				   Grievant:




INTRODUCTION


On July 1, 2007, Dr. Richard X (“Dr. X”/the ”Grievant”) assumed the position of Staff Physician in the Radiology Oncology Department (the “Department”) of the University of California (the “University”/the ”Employer”) at the Davis Health System (“U.C.D.H.S.”).  On October 1, 2008, the interim Chair of the Department appointed Dr. X to an academic position which provided for expiration on June 30, 2009, with the potential for renewal. 

On January 15, 2009, Dr. X resigned his Clinical Director position, effective April 16, 2009.  On March 24, 2009, Dr. X received notice from Dr. Richard V, the new Department Chair, that his faculty appointment would not be renewed, and that his faculty position would expire as of June 30, 2009.  
On September 3, 2009, Dr. X filed a grievance that claimed that the stated reasons for non-renewal of his faculty position were a pretext and that the decision was made in retaliation for certain conduct and statements which qualify as “protected disclosures” under the University’s Whistleblower Protection Policy.  
The University held an informal Step I hearing and a formal Step II hearing.  This matter is before the Hearing Officer, Karen G. Andres, under Step III of the University’s Grievance Process for Non-Senate Academic Appointees as set out in the Academic Personnel policies.  
The hearing was held on October 19, 20, and 21 at the law offices of Porter Scott, Sacramento, California.  The parties elected to submit closing briefs.  Upon receipt of the briefs on January 24, 2011, the record was closed.

II.	ISSUE
     
     The issue as defined by the Parties is as follows:
Whether the decision not to renew Dr. X’s appointment was arbitrary or capricious
 and adversely affected his then-existing terms of appointment, and/or whether the decision violated applicable University rules, regulations, or Academic Personnel policies and adversely affected the then-existing terms and conditions of his appointment.

If so, what shall be the appropriate remedy?

     The Grievant has the burden of proving this claim by a preponderance of the evidence.  

III. RELEVANT STATUTES, CODES OR POLICIES

The California statutes and University policies that are relevant to this matter are referenced in pertinent part as follows:
GENERAL UNIVERSITY POLICY REGARDING ACADEMIC APPOINTEES (APM–140).  APM–140 covers Non-Senate Academic Appointees/Grievances.  

140-4 a.  A grievance is…a complaint…that alleges: (1) that a specific administrative act was arbitrary or capricious and adversely affected the appointee’s then-existing terms or conditions of employment; and/or (2) a violation of applicable University rules, regulations or Academic Personnel policies which adversely affected the appointee’s then-existing terms or conditions of employment.  

140-33 Step III-Formal Grievance Appeal.

140-80 Conduct of Hearing including Hearing Officer’s Authority (140-80 c., p. 9).

GENERAL UNIVERSITY POLICY REGARDING ACADEMIC APPOINTEES  
(APM-190).  Selected Presidential Policies.  
UNIVERSITY OF CALIFORNIA POLICY ON REPORTING AND INVESTIGATING ALLEGATIONS OF IMPROPER GOVERNMENTAL ACTIVITIES (WHISTLEBLOWER POLICY).

I. Introduction…The University has a responsibility to investigate and report to appropriate parties allegations of suspected improper governmental activities and the actions taken by the University…. [S]erious or substantial violations of University policy may constitute improper governmental activities….

C.  Protected Disclosure
[According to California Government Code Section 8547.2, a protected disclosure is:]
Any good faith communication that discloses or demonstrates an intention to disclose information that may evidence (1) an improper governmental activity or (2) any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition. (APM-190, p. 3).

Illegal Order 
An illegal order is any directive to violate or assist in      violating an applicable federal, state or local law, rule or regulation or any order to work or cause others to work in conditions outside their line of duty that would unreasonably threaten the health or safety of employees or the public. 

E.  Whistleblower
 A person or entity making a protected disclosure is commonly      referred to as a whistleblower….The whistleblower’s role is as a reporting party….[Whistleblowers]are not investigators or finders of fact, nor do they determine the appropriate corrective or remedial action that may be warranted....

III. A. 5.  When a person reports allegations of suspected improper governmental activities to an appropriate authority the report is known as a protected disclosure….

VI. A. 1. Whistleblowers provide initial information related to a reasonable belief that an improper governmental activity has occurred…. 6. Protection of a whistleblower’s identity will be maintained to the extent possible….

APPOINTMENT AND PROMOTION (APM-278)
278-17 An appointment in the Health Sciences Clinical Professor Series shall have a specified ending date.


IV. THE GRIEVANT’S CONTENTIONS

	The Grievant contends that it is more than likely that two protected disclosures were substantial factors in the decision not to renew.  Given the timing, a rebuttable presumption arises that the protected disclosures were a motivating factor.  
Dr. X withdrew a third allegation of a protected disclosure regarding a disagreement over cervical cancer treatment.  However, he maintained that the third incident gave rise to rude and inappropriate conduct and is evidence of animosity by Dr. V toward Dr. X. 
 Dr. V’s stated motives for the non-renewal were a mere pretext to justify his illegal activity.  At a minimum, Dr. X’s protected disclosures constituted a contributing factor in the decision.  Direct evidence of intent is not required as long as improper motive can be inferred from circumstantial evidence. 
Dr. V brought up the subject of Dr. X to Dr. X and held Dr. X responsible for Dr. X leaving.  Dr. X was likely to have channeled information on Dr. X’s complaints to Dr. V.  Dr. V was also likely to have had conversations with Megan Rott about Dr. X during several meetings that took place before Dr. V assumed the position at the University.  Ms. Rott bore animosity toward Dr. X regarding this matter.  
Multiple physicians and personnel considered Dr. X to be a disruptive physician whose conduct posed a potential safety hazard to patients.     
Dr. X’s protected disclosure regarding the gamma knife was a contributing factor in the decision to non-renew, and the retaliation occurred within 120 days.  Dr. X suggested to Dr. V that in light of a shortage of physicians, the gamma knife program should be suspended.  Dr. V not only did not suspend the program but insisted that Dr. X be proctored for gamma knife privileges at the same time as covering his clinic patients.  Dr. X was concerned that doing both at once would be unsafe and illegal.  He was also concerned that, as the physician of record, he would have to send a bill under his name that indicated he was present for the entire procedure. He would also have to bill for the clinic work, and that would amount to double billing, an illegal activity.  To avoid an unsafe, illegal situation, Dr. X resigned his clinical director position, giving the required 90-day notice.
     Dr. X’s actions regarding the gamma knife greatly upset Dr. V.  On February 10, he told his assistant, Megan Rott, to obtain information relative to taking action against X.  
     Dr. V belittled Dr. X’s approach to cancer treatment.  He told Dr. X that he had no protection within the University system, and that he could be terminated any time that Dr. V liked.  Dr. V threatened to disparage Dr. X on a national basis.  Dr. Yee heard how Dr. X was treated but would not testify. Dr. V refused to mediate.  (Letter to Dr. Callahan, UX-GG and testimony.) 
     The close proximity in time between the protected disclosures and non-renewal is evidence that the protected disclosures were substantial factors in the decision not to renew.  The fact that Dr. V hired staff members who were primarily clinicians and that the Department advertisements for staff reflect Dr. X’s qualifications is evidence that the stated reason for the non-renewal was a pretext.

V. THE UNIVERSITY’S CONTENTIONS
       	
     The University contends that the evidence presented at the hearing does not support Dr. X’s claim that the decision not to renew his appointment violated sections 140 or 278 of the Academic Personnel Manual.  The non-renewal was not arbitrary or capricious and was based upon legitimate reasons.
       When Dr. V assumed his post, he was determined to recruit physicians who were both good clinicians and talented researchers.  As soon as he assumed his position, he began to evaluate the qualifications and expertise of the physicians on staff.  This was Dr. V’s prerogative.  
     Dr. X was primarily a clinician.  He did not possess the level of academic excellence that Dr. V sought.  Moreover, Dr. X resigned his position of Clinical Director within three days of Dr. V’s start date at the University.  While this was not the primary factor in Dr. V’s decision not to renew his appointment, it negatively affected Dr. V’s trust in him and it left him only in the academic position. Dr. V began the non-renewal process in early February and drafted the notice to Dr. X several weeks before it was delivered.  
     Dr. V was not aware of Dr. X’s complaint about Dr. X, and Dr. V only met her when he interviewed with the University, at a professional meeting and possibly at a reception.  He heard about her reputation as difficult to work with and was relieved that she had left before he arrived in his position.
     While Drs. V and X disagreed about gamma knife procedures, Dr. V never asked Dr. X to do anything illegal.  Dr. V had no motive or reason to retaliate against Dr. X.  If a presumption arises under the special standard for healthcare workers because of Dr. X’s e-mail of January 14, 2009 and the decision not to renew his appointment in February, 2009, a lack of evidence of retaliatory motive extinguishes the presumption.
     It was not uncommon for physicians to have a difference of opinion on patient treatment.  Dr. V never ordered Dr. X to use a particular method of treatment for a cervical cancer patient.  Dr. X’s advocacy of a particular mode of treatment does not constitute protected activity under the University’s Whistleblower Protection Policy.  
     The decision not to renew Dr. X had been made before the interaction on this matter, and there is no causal connection between the two events and no basis for the presumption under the special standard applicable to healthcare workers.
     The University stipulated that Dr. X’s disclosures about Dr. X and the gamma knife were protected disclosures.

VI.     FINDINGS OF FACT

     The following Findings of Fact are determined to be relevant to this matter:   
               A Protected Disclosure consists of a “good faith communication that discloses or demonstrates an intention to disclose information that may evidence either (1) an improper governmental activity or (2) any condition that may significantly threaten the health and safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.”  (APM-190.)
If the Grievant establishes by a preponderance of the evidence that the protected disclosures were a contributing factor in the University’s decision not to renew his appointment, the burden of proof set forth in Section V of the Whistleblower Protection Policy would require the University to prove by clear and convincing evidence that the non-renewal decision would have been made notwithstanding the protected disclosures.
If the Grievant establishes that the protected disclosures occurred within 120 days of the claimed retaliatory act (non-renewal) a rebuttable presumption arises under the Special Evidentiary Standard for Health Care Workers set forth in the University’s Whistleblower Protection Policy that the discriminatory action was taken in retaliation. (APM-190, V.B. and Section 1278.5 of the California Health and Safety Code.)
     The objective of the Department within the public University system is to combine a mixture of high quality patient care, teaching, and research and innovation.  It is within the discretion of the Department chair to determine the qualifications of the doctors in the Department.  
At the time that Dr. X was hired, Dr. Sprinivasan Vijayakumar (“Dr. Vijay”) was the Chair of the Department.  Dr. Vijay left the University in November, 2007.  Dr. Ralph de Vere White, the Director of the U.C.D.H.S. Cancer Center, served as Interim Chair of the Department.  
Dr. X was hired as a staff physician.  He did not apply for a position in any academic series.  He became the Department’s leading clinician.  He was a hard worker who performed his job with excellence.  Although he participated in the authorship of research papers, he was not primarily an academic.
In April, 2008, Dr. de Vere White notified Dr. X that he had been recommended for a faculty appointment in the Health Sciences Clinical Professor (“HSCP”) series.
  The renewable appointment was effective October 1, 2008 through June 30, 2009. (Joint Exhibit-JX-4.)  This was not a tenured position, and no one in the Department promised that it would be permanent.  The Department was in a search for a new chair, and the incoming chair would have the discretion to retain the Grievant. 
Dr. Richard V was hired as the permanent Chair of the Department.  He began serving in this position on January 12, 2009.  
     The Department chair has the authority and discretion to make determinations on Department staffing.  When Dr. V assumed his post, he was determined to recruit physicians who were both good clinicians and talented researchers.  It is the Department Chair’s prerogative to staff the Department.  No one employee works in a vacuum at the University, and Dr. de Vere White and Dean Callahan
 agreed with Dr. V’s mission of having a strong research program at the teaching hospital.  
     Shortly after he began his position, Dr. V determined that Dr. X, while an excellent clinician, did not have the academic credentials that he sought.  He and June Parker, then Department CAO, looked into the process for non-renewal of an HSCP series appointment.  On February 18, 2009, they reported to Dean Callahan their intention not to renew Dr. X’s appointment. The notice of non-renewal was drafted in February.
On March 24, 2009, Dr. X received a letter dated March 19, stating that his faculty appointment would not be renewed. (JX-14.) His employment ended on June 30, 2009.     
Shortly after Dr. X’s arrival at the University, he made allegations that Dr. X,
 another physician in the Department, was not functioning adequately in the job and was endangering patients.  Dr. X made a formal complaint to Dr. Allan Siefkin, the Chief Medical Officer for the Health System.  Dr. Siefkin investigated and determined that there was no basis for the claim.  Dr. X left the U.C.D.H.S. voluntarily in 2008.
	The University stipulated that the U.C.D.H.S. received Dr. X’s complaint about Dr. X on November 13, 2007.  As the complaint raised an issue of patient safety, it fell into the category of protected disclosure.
Dr. V had little contact with Dr. X and had no reason to be affronted by Dr. X’s condemnation of her.  Conversely, Dr. V was happy not to have to work with Dr. X, as many people characterized her as a difficult person who was particularly problematic for Department chairs.
Dr. X engaged in a second protected disclosure of refusing to obey orders to operate the gamma knife and perform clinical work simultaneously on the basis that these activities posed a risk to patients and were illegal when performed together. 
	The gamma knife is used primarily to treat brain tumors.  It is a complicated device the use of which is governed by State and Federal regulation.  Regulations require that two professionals be present throughout a gamma knife procedure - the physician-in-charge or “authorized user” and a medical physicist.  
	In order to be an authorized user, one must earn a Radiation Use License.  Part of this process involves being proctored on ten cases under an authorized user.  The authorized user is the proctoring physician.  
     The only Department physician who met the authorized user criteria was Dr. Stephen Franklin.  Dr. Franklin had accepted another position and planned to leave the Department.  It was Dr. V’s intention that Dr. X would take over the gamma knife procedures when Dr. Franklin left.  
     Dr. V determined that Dr. X required proctoring in order to qualify to use the device. (JX-5.) The proctored physician does not have to be present during the entire lengthy procedure.  
Dr. X was concerned that he would have to send out a bill for the gamma knife procedure at the same time as billing for his clinic work.  That would amount to double billing.  This situation was circumvented as Dr. Franklin generated the notes which trigger billing for the gamma knife.
     Dr. V did not ask Dr. X to perform two tasks at the same time or to leave a patient alone in the gamma knife room.  Dr. V never asked Dr. X to do anything illegal or against protocol.
Dr. X withdrew a third allegation that a disagreement with Dr. V about a patient’s cancer treatment also fell into the whistleblower category.   
Dr. X’s disclosures were made in good faith and for the purpose of remedying the conditions that he deemed to threaten patient safety.  However, the disclosures did not expose either improper governmental activity or any condition that may significantly threaten the health and safety of employees or the public. 
     Dr. X’s resignation as Clinical Director within three days of Dr. V’s start date at the University left him in an academic position alone without the academic qualifications that Dr. V sought.  While the resignation was not a primary factor in Dr. V’s decision not to renew Dr. X’s appointment, it negatively affected Dr. V’s trust in him. 
    Following the non-renewal action, Dr. X made attempts to engage in mediation with Dr. V and a neutral, Dr. Carol Kirshnit, the new Director of the Academic Staff Assistance Program.  Dean Callahan, who is a clinical psychologist in addition to being the Associate Dean for Academic Personnel, made some attempt to set this up, but no one in Department or University administration took the responsibility of telephoning or visiting Dr. V to ask him directly to participate. (Employer Exhibit-EX-BB and DD.)  
Dr. V is a brilliant physician and researcher, and “(H)e has his heart in the right place”.
  He demonstrates a lack of social graces and is admittedly obtuse and uncommunicative socially.
  Dr. X is primarily a gentleman who is generally polite and did not raise his voice.
 He was upset and hurt by Dr. V’s brusque style.  The two men clashed, and an undesirable working relationship resulted.  Dr. V seemed genuinely shocked that his behavior had had such a devastating impact on Dr. X.
	There was no causal link between Dr. X’s protected disclosures and the adverse employment action of non-renewal.  The protected disclosures were not a contributing a factor in the non-renewal.  The Department Chair acted within the scope of his authority. 
     There was no evidence presented that Dr. V disparaged Dr. X nationally.
     Both Dr. V and Dr. X were credible witnesses who have different memories and perceptions of the events that occurred between them. 




VII. OPINION

	The Hearing Officer’s mandate is to determine if the Employer violated policies or laws. I am charged with the task of determining if the whistleblower complaint has merit and if the non-renewal was made for legitimate reasons.  
     It is not the Hearing Officer’s mandate to evaluate staff qualifications. Dr. X’s biography, including his academic qualifications, appears impressive to me.  It is not within my purview, however, to second guess Dr. V on his evaluation of Dr. X’s academic qualifications as compared to those of any other physician. 
    In order for the whistleblower statute to engage, the complaining employee must reveal improper governmental activity or a condition that may significantly threaten health or safety within the meaning of APM-190.  If the activity complained about is neither improper nor unsafe, there is no protected disclosure.  
     The testimony regarding the Dr. X matter is often one man’s word against the other.  Since I have determined that both men are credible, I can only speculate that Dr. X misheard or misinterpreted comments that Dr. V made.
     I do not conclude, as the Grievant contends, that the circumstantial evidence shows that Dr. V blamed Dr. X for Dr. X’s departure and thus retaliated against him.  Multiple physicians and personnel considered Dr. X to be difficult to work with, particularly for the chair of the Department. While an investigation did not find that her conduct posed a potential safety danger to patients, it is logical that Dr. V should have been happy that she left.  Even if Dr. X’s complaints about Dr. X had led to her leaving - and the findings herein do not demonstrate that - the evidence leads to the conclusion that Dr. V was relieved that he did not have to deal with her.  
	In regard to the gamma knife incident, Dr. X seemed to genuinely believe that Dr. V had asked him to perform his job in an unsafe and illegal manner.  The University stipulated that Dr. X’s complaint was a protected disclosure.
     The evidence shows that Dr. V was operating within the bounds of appropriate procedure to ask Dr. X to be proctored on the gamma knife while performing his clinical functions.  While Dr. V was not pleased with Dr. X’s refusal to follow his directions, the evidence does not show that this disagreement was the foundation for the non-renewal.  
     I do not conclude that improper motive is to be inferred from circumstantial evidence in this case.  The matter of Dr. X’s report of Dr. X does not seem to have affected Dr. V at all.  The matter of the gamma knife may have been an annoyance to Dr. V and it probably did not help to endear Dr. X to him, but it was not a basis for the non-renewal.

     I suspect that while these incidents were very important to Dr. X, Dr. V was not concentrating on them.  He was getting settled and learning his new job.  The evidence shows that he demonstrates a tendency to focus intently without the distraction of interpersonal issues.
	It is customary for an incoming department chair to “clean house” and hire people he wishes to work with if this is permissible within the confines of existing contracts.  Except for special circumstances such as the whistleblower allegations, it was Dr. V’s prerogative not to renew Dr. X’s contract for almost any reason. The personality conflict that arose between the two men was likely to have contributed to the decision not to renew Dr. X’s academic appointment. However, it is my reasoned judgment that there was not a causal link between Dr. X’s protected activity and the University’s non-renewal of his academic position. 
     It is extremely unfortunate that the University did not make a greater effort to bring Drs. X and V to the table in face-to-face mediation.  Mediation is voluntary. The e-mail exchange between Drs. X and V on this subject was destined to go nowhere, and no one in University administration made a concerted effort to approach Dr. V directly and ask him to sit down with Dr. X and a professional neutral mediator. 
     My impression is that Dr. V and Dr. X are both men of good will.  It is my belief that if the University had hired a qualified mediator at the onset of Dr. X’s complaints, this matter would have been resolved without the enormous heartache and expense that has been incurred.  
     Dr. X’s whistleblower allegations were troubling and required thorough investigation.  The University proceeded with this investigation.  The outcome was that while Dr. X’s complaints were made in good faith and for the purpose of remedying conditions, there were no conditions to remedy within the meaning of APM-190.II.C.  By the same token, there were no illegal orders within the meaning of APM-190.II.D.  
     As the Grievant did not prove by a preponderance of the evidence that protected disclosures were a contributing factor in the decision not to renew his appointment, the rebuttable presumption under the Special Evidentiary Standard for Health Care Workers is eliminated. (APM-190, V.B. and Section 1278.5 of the California Health and Safety Code).  
	There was no evidence that Dr. V disparaged Dr. X nationally. 
     The decision not to renew Dr. X’s appointment was not arbitrary or capricious. The decision did not violate University rules, regulations, or Academic Personnel policies.  While the decision not to renew Dr. X’s appointment inevitably adversely affected his then-existing terms of appointment, it was made with reasoned judgment.  
     The Grievant did not meet his burden of proving that there was a causal link between protected disclosures and the Department Chair’s decision not to renew Dr. X’s HSCP appointment.  The Department Chair acted within the scope of his authority.


VIII. RECOMMENDED DECISION
    
      For all of the reasons above and based upon the record in its entirety, the Hearing Officer recommends to the Chancellor that the grievance be denied.



Respectfully submitted:


______________________________        DATED:	MARCH 2, 2011
KAREN G. ANDRES, HEARING OFFICER