Jury awards $730K to Mary-Alice Coleman client, UC-Davis Whistleblower

Date:
Original post at Davis Vanguard

In a case that has been ongoing since 2007, a jury late Monday finally ruled in a 9-3 decision in favor of terminated UC Davis employee Janet Keyzer and awarded her $330,000 in lost earnings and $400,000 in noneconomic damages. UC Davis will also have to pay years’ worth of attorney fees for ultimately two attorneys.

Ms. Keyzer sued, alleging that she had been retaliated against and ultimately terminated because she complained to her supervisor and the UC Davis Institutional Review Board (“IRB”) that the COPE project management did not comply with the IRB approval process before implementing human subject research activities on prisoners at San Quentin.

In their verdict form, the jury by a 9-3 vote determined that Ms. Keyzer proved that she suffered a termination of employment and that her protected disclosures regarding the COPE project were a contributing factor to the termination and other adverse employments actions.

Moreover, the Regents failed to prove by clear and convincing evidence that the termination would have occurred for legitimate and independent reasons even if Ms. Keyzer had not engaged in the protected disclosures.

Finally, the jury ruled that the conduct of the Regents was a substantial factor in causing harm to Ms. Keyzer.

It was September, 2009, when the Vanguard first published the account of Janet Keyzer. The Vanguard ran a follow up story this February when Judge Rudolph Loncke denied a motion in Sacramento Superior Court for summary judgment that would allow the case to go to trial in February – however, the trial was further delayed with a 1600-document dump of late discovery and when the Regents made attorney Mary Alice-Coleman a witness, forcing her to bring on Lawrance Bohm to try the case.

Ms. Keyzer’s disclosures in mid-2007 shut down the $5.5 million pain management study, a project in collaboration with UC San Francisco.

After the project was shut down, Ms. Keyzer was forced to file an internal grievance when she was denied placement in otherwise open and available positions. In response to her grievance, Ms. Keyzer was offered a short-term, non-nursing “contract” job which was terminable at will. She was then repeatedly told that she could not have a “career” appointment because it was contrary to policy, but to “trust” that the University would honor her career rights.

Fearing that she was being retaliated against, Ms. Keyzer hired attorney Mary-Alice Coleman, and was informed that she would be required to release all claims against the university to accept the contract position.

Ms. Keyzer indicated that the “contract” appointment failed to adequately satisfy numerous rights and benefits that were covered by her former “career” appointment, such as requiring good cause prior to termination, pension contributions, reduced tuition, and preferential rehire rights in the event of layoff.

Moreover, Ms. Keyzer specifically requested that actions be taken to address the ostracism and prospective retaliation she feared at UC Davis, as well as discipline be taken against the academic and administrative wrongdoers responsible for the non-compliance. After prolonged negotiations regarding the job, the University claimed that Ms. Keyzer’s desire to work away from those responsible for her retaliation was unreasonable.

Ms. Keyzer was terminated on December 21, 2007, retroactive to November 30, 2007. The trial confirmed that UC Davis and specific research leaders intentionally acted to block Ms. Keyzer from ongoing career employment on any of the research projects in the center.

According to a release from her attorneys, “Ms. Keyzer was highly skilled and found work in the private sector within six months of her termination. However, the loss of her University job caused significant emotional and physical distress, including the dissolution of her marriage, the loss of her pension contributions, the loss of her dream career as an academic researcher, and added two years to the completion of her doctoral program.”

As Ms. Coleman explained to the Vanguard, the $730,000, while a substantial verdict, did not begin to cover her real loses.

“Her real loses, in addition to her life being virtually on hold for seven years, as this proceeded,” Ms. Coleman said. “Her marriage dissolved, she lost what had been a dream to have an academic career or at least retain her research nurse position for the rest of her career.”

At that time she sought to complete her PhD., which she has since completed but this drama added two years to that process. Her attorney estimates that her lost future pensions far exceed the award verdict.

“I think we had some overwhelming documentary evidence against the university which very clearly showed a pattern of retaliation against Ms. Keyzer,” Ms. Coleman stated, noting that many of those documents were not produced until they forced the university to produce them through a motion to compel. The university waited until a week before trial to produce the 1600 documents.

These documents proved critical at the trial and memos and emails showed the depths of the concerted effort to retaliate against Ms. Keyzer.

One example Ms. Coleman shared was an email from Dr. Bertakias that said, “They were just trying to placate Janet .” There were other emails saying not to address Ms. Keyzer’s case by email because “email is discoverable.”

A manager wrote, “This is headed in a bad direction as I thought it might. …I feel we’re way out on a limb here. We’re doing what we’ve been asked to do …, but we have no policy and procedures to back us up. Where’s our legal counsel?”

There was an email from Dr. Romano saying, “I think it will be best to put (Janet) back to work, then lay her off in the usual manner, rather than under the current peculiar (and perhaps questionable) circumstances.”

Former Vice Chancellor Karen Hall for Human Resources was asked what she expected a university employee to do if asked to do something illegal. She responded, “She imagined most employees would keep doing it because of their paycheck.” Ms. Coleman stated, “I found (that) to be shocking.”

Ms. Coleman added that Ms. Hall was asked in a hypothetical what if they were asked to re-use syringes, to which she responded that of course they shouldn’t participate in that.

“That was critical to our case because our client was criticized for having resigned in protest from the project she worked on,” she added. Ms. Keyzer was “belittled even at trial for refusing to continue the work that she knew was illegal and improper.”

These are but a small segment of critical documents and testimony that they had.

“We had so much it was unbelievable,” she said. “You wouldn’t believe that we were forced to go to trial and wait seven years to resolve this case when this evidence existed all this time.”

The university, she said, has “been absolutely steadfast in implying that this case was completely frivolous, that they did nothing wrong, and that my client had no basis for legal action against them.”

Lawrence Bohm, in a phone interview with the Vanguard, said, “There were too many high level leadership people who had no explanation for why things turned out the way they did.”

He explained that the university’s position “ended up being very confused by contradictory statements amongst their own people.”

“They seemed to constantly contradict themselves,” he added.

Both Mary Alice-Coleman and Lawrence Bohm told the Vanguard that, in the end, the jury simply did not find the claims by the university officials to be credible and were not satisfied with their explanations.

Ms. Coleman told the Vanguard that a number of the jurors said that “the key witnesses by the university were not credible and that they were very shocked that high level officials for the university would not know what was going on, not be knowledgeable and aware of key documents and key information that was going on at the time.”

As such, the jury “did not believe what” these officials were saying. In this case, “The jury specifically stated that they found Dr. Patrick Romano and Dr. Lea Bertakias and Attorney Michael Sweeney as lacking credibility.”

“One juror,” he said, “described Dr. Romano as ‘rodent like’ and nervous.”

Andy Fell, a spokesman for UC Davis, told the Vanguard that this case comes out of the health system. Mr. Fell said that they just got the decision yesterday, “our lawyers are looking at that decision and considering what our options are.”

Mr. Fell declined comment on the substance of the ruling, saying that “obviously we litigated this case, we obviously would have preferred a different outcome here. Now we have to look at the decision and see what we do next.”

He said the whistleblower retaliation complaint was “promptly investigated” and “led to the project that she was working on being shut down.”

In a statement from the university, they explained, “Ms. Keyzer filed a whistleblower retaliation complaint under the University of California Whistleblower Protection Policy. The University’s internal investigation was conducted by a UC Davis School of Law faculty member and a member of the Academic Personnel Office, both of whom were unaffiliated with the research project and the Center.”

“The investigation found that Ms. Keyzer was not retaliated against, but found that Ms. Keyzer should have been provided continuing preferential reemployment rights notwithstanding her refusal to accept the Analyst VII position,” the statement noted. “As a remedy, Ms. Keyzer was granted a severance package and preferential reemployment rights for two years. Ms. Keyzer did not pursue preferential reemployment rights. On September 18, 2009, Ms. Keyzer filed a lawsuit alleging whistleblower retaliation.”

The attorneys for Ms. Keyzer disagree, as they note that she was offered a non-career path position.

Mr. Bohm said, throughout the experience, “People seemed to attempt to look like they were trying to help (Ms. Keyzer), without actually addressing the problems.”

“On the one hand, they said they did everything they could to help her. They had no control over making the position contract versus career,” he would cite as an example. “And then a witness came in and said they could have made it a career any time that they wanted and it wouldn’t have cost them anything extra.”

Lawrence Bohm told the Vanguard, “I think you can say that their whistleblower protection did not work. The reason that it did not work is that in their world they take a person’s word for it.”

If they ask an employee if they did this and the answer is no, that is the end of the discussion, he added.

“I think they appropriately investigated their complaints,” he explained. “They’re not trying to prove she is correct. That’s not their job. Their job is to find out if people on their side are even trying to have a defense.”

“If someone really wants to do something bad to somebody, as long as they never admit it and they make up some other reason, the university itself that’s all they report” is the denial, Mr. Bohm stated. “Therefore there was no evidence to conclude that this thing was improper.”

The difference between the university investigation and the jury trial, Mr. Bohm argued, is that “the jury weighs the credibility of witnesses.” He added, “The jury gets to decide if that was really a truthful denial.”

Andy Fell told the Vanguard, “I think we do take these things very seriously. There is a detailed process both for the original whistleblower complaint and also for their retaliation complaint.”

He added, “We did do a whistleblower investigation as conducted by a faculty member from the School of Law working with academic personnel – that internal investigation concluded that there wasn’t a retaliation.”

“I think one thing we’ll be looking at in general is how the internal investigation came to a different conclusion from the jury,” he added.

“Good governance demands that people stand up to wrong-doing”, stated Mary-Alice Coleman. “In this case, Janet Keyzer stood up to a powerful and influential multi-billion dollar organization – the Regents of the University of California — to protect not only those who are unable to protect themselves, but also to protect the best interests of the UC system, and the integrity of its research efforts.”

This case is one of the first cases to be successfully tried to a verdict on behalf of a University employee under the revised California Whistle Blower Protection Act, Government Code section 8547.10.

“Nobody ever took responsibility,” Lawrence Bohm said. “Nobody was even disciplined because of this incident with the improper research. At least it should have been a mark on somebody’s record.”

The only person disciplined was the lead investigator.

“You have four or five people doing illegal stuff, I’m not saying they all need to be fired, but you need to recognize that four or five people failed, not just one,” Mr. Bohm added.

Ultimately, he believes there will be no consequences for this other than this verdict.

You can watch an interview of Ms. Keyzer with Insider Exclusive, one of America’s leading independent, documentary film producers who came to Davis in early 2014 to do a documentary on the case: click here.

—David M. Greenwald reporting

The following is a time line provided by the University:

April 1998: Plaintiff Janet Keyzer began her employment with UC Davis. She worked as an Administrative Nurse II at the UC Davis Center for Healthcare Policy and Research in Sacramento (“the Center”). At all times Ms. Keyzer’s position was “soft-funded,” which means her position was entirely funded by research grants. When the research ends, the employee’s job ends unless he/she is able to find employment on another research grant.

December 2006: Ms. Keyzer began working on the Community Oriented Pain-Management Exchange Program (“COPE”) research project at the Center. This was research sponsored by the California Department of Corrections and Rehabilitation. Ms. Keyzer worked part-time (50%) while she was simultaneously pursuing her Ph.D. in Human Development at UC Davis.

April 12, 2007: Ms. Keyzer and other members of the research team abstracted data from prisoner medical records. Ms. Keyzer became concerned that this activity technically constituted “human subject research” within the meaning of the applicable Institutional Review Board (IRB) regulations and therefore required IRB approval.

June 1, 2007: Ms. Keyzer asked to be removed from the COPE project. Because she was an established, long-term employee, the Center offered Ms. Keyzer “bridge funding” (a temporary funding mechanism) to keep her employed while another position could be found for her. She remained on bridge funding for all of June 2007.

June 12, 2007: The UC Davis Institutional Review Board (IRB) received a complaint alleging that the COPE project was conducting research that had not been appropriately approved by the IRB in compliance with University policies. Ms. Keyzer testified at the trial that she was the complainant.

  • June 13, 2007: The IRB conducted a preliminary review and issued a cease and desist order halting the COPE research project pending a complete investigation.
  • June 25 – September 10, 2007: The IRB appointed a subcommittee to investigate. The subcommittee consisted of an IRB committee Chair and two IRB members, one of whom was a prisoner representative.
  • September 10, 2007: The subcommittee issued its report. The IRB suspended all current studies of the Principal Investigator; suspended Principal Investigator status for one year; required mandatory training for the research team; and referred the matter to the UC Davis Academic Personnel Office.

July 2007: Ms. Keyzer was offered a short-term position on another research grant funded by the Battelle Memorial Institute. The University kept her employed in this position between July 1, 2007 and November 30, 2007.

September-October 2007: The Center began a recruitment for a new research position on the Battelle Project. This position was a part-time (50%) position and was classified as an “Analyst VII.” The position was initially slated as a contract position and was to last until September 30, 2008.

October 25, 2007: Ms. Keyzer filed an internal UC Davis grievance requesting placement in an open position at the Center.

October 31, 2007: Ms. Keyzer was informed that she can apply for the Analyst VII position and will receive preferential rehire rights for this position. Ms. Keyzer did not apply for the Analyst VII position.

November 30, 2007: UC Davis notified Ms. Keyzer that her grievance had been granted and that she was going to be appointed to the Analyst VII position on the Battelle project without having to apply for the position. The appointment continued her career employee status without a break in University service. Ms. Keyzer was also informed that she would have the same rate of pay and benefits.

December 2007: Ms. Keyzer declined the Analyst VII position.

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