Opinion
F074106
10-29-2018
ANASTASIOS MAVRAKIS, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.
Law Office of Peter Sean Bradley and Peter Sean Bradley for Plaintiff and Appellant. Sedgwick; Duane Morris, Robert D. Eassa, and Delia A. Isvoranu for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CECG00353)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge. Law Office of Peter Sean Bradley and Peter Sean Bradley for Plaintiff and Appellant. Sedgwick; Duane Morris, Robert D. Eassa, and Delia A. Isvoranu for Defendants and Respondents.
-ooOoo-
Physician Anatasios Mavrakis (Mavrakis) was a fellow in The Regents of the University of California's (University) Gastroenterology & Hepatology Fellowship Program (Program). Drs. Mohammad Sheikh, Rabindra Kundu, Jayanta Choudhury, and David Limsui were faculty in the fellowship program, while Dr. Ivy Darden was the director of the University's internal medicine residency program (collectively, the individual defendants).
After Mavrakis was terminated from the Program, he filed this action against the University and the individual defendants (collectively, respondents) alleging eight causes of action: (1) four causes of action against the University for discrimination, retaliation, harassment and failure to keep the workplace free of unlawful harassment, retaliation or discrimination, in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.); and (2) four causes of action against the individual defendants for violation of his due process rights and rights to free speech and association under 42 United States Code section 1983.
Respondents filed a motion for summary judgment or, in the alternative, summary adjudication of each cause of action. Respondents contended, among other things, that the University had a legitimate, nondiscriminatory and nonretaliatory reason for terminating Mavrakis, which disposed of his FEHA claims for discrimination and retaliation, as well as his 42 United States Code section 1983 claims, and he could not establish his harassment claim. The trial court granted the motion for summary judgment and entered judgment in respondents' favor.
On appeal, Mavrakis contends the trial court erred because there are triable issues of fact as to each cause of action. Finding no merit to Mavrakis's contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Summary
Our factual summary is drawn from the parties' separate statements of fact and the evidence they submitted with the motion for summary judgment and opposition.
Respondents submitted additional evidence with their reply, consisting of deposition excerpts, as well as a responsive statement addressing Mavrakis's additional material facts. The trial court refused to consider the additional evidence and responsive statement, citing San Diego Watercrafts v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 312-316 and Code of Civil Procedure section 437c, subdivision (b)(4). While respondents cite some of this evidence in their brief, they do not argue the trial court erred in declining to consider it. Accordingly, we do not consider any of the additional evidence.
A. The Fellowship Program and Mavrakis's Employment
The University's Fresno Medical Education Program provides medical education and training to medical students, residents, and fellows in several specialties. The primary training and medical services sites are Fresno Community Regional Medical Center (CRMC) and Veteran's Administration Central California Health Care System (VA). The Program is a three-year program accredited by the Accreditation Council for Graduate Medical Education. The Program faculty from 2010 through 2012 were Drs. Helen Wong, Devang Prajapati, and Kong Yap at the VA, and Drs. Sheikh, Kundu, Limsui and Choudhury at CRMC.
Mavrakis, a Greek national, was interviewed for the Program by its Director, Sheikh (Chief of Hepatology, Director of Clinical Research, and Professor of Clinical Medicine), Kundu (Director of Endoscopy at CRMC, Associate Clinical Professor of Medicine & Surgery) and Choudhury (Assistant Clinical Professor of Medicine). Mavrakis was selected for the Program on Sheikh's recommendation and began his fellowship in July 2010. As a fellow in the Program, Mavrakis was hired as a University employee, and given work assignments and training in gastroenterology (GI). Mavrakis had an annual contract, which was to be renewed for each of the Program's three years, after which he would be qualified to take the GI board to become a board-certified GI subspecialist.
Sheikh was Mavrakis's primary supervisor from the beginning of Mavrakis's fellowship until March 2012. Several other attending physicians (attendings) also supervised Mavrakis while he performed rotations. Those attendings reported their observations of Mavrakis directly to Sheikh or during regular faculty meetings where the performance of all the fellows was discussed. Sheikh declared that he wanted Mavrakis to succeed, and he attempted to assist him by coaching him and giving him opportunities to develop his skills and experience. When Mavrakis failed his board examination, Sheikh reduced Mavrakis's clinical rotations in 2011 to give Mavrakis more time to prepare to retake the examination. Mavrakis utilized the study time and passed the examination on his second attempt.
B. Complaints about Mavrakis Leading to His February 2012 Probation
The Program included judging a fellow's interactions with faculty, patients, and patients' families. Mavrakis received eight evaluations from faculty doctors between September 2010 and January 2012. Of those evaluations, half scored him above average on professionalism, two scored him very good and excellent, and two scored him as "average and marginal but acceptable." VA nurses Judith Johnson, Eva Murphy, and Shaun Skierka, VA radiologist Dr. William Vlymen III, CRMC hospitalist Dr. Uma Rao, and CRMC nurse Mark Osburn all had positive opinions about Mavrakis and his professionalism.
Between September 2010 and January 2012, Sheikh and Darden received 12 complaints from physicians, staff, and patients about Mavrakis's behavior, noting the following concerns: a lack of professionalism; physically pushing staff and a patient's wife; being rude and having an argumentative tone; a lack of organizational skills, follow through, and process knowledge; and inattention to detail.
In September 2010, an endoscopy staff member, Karina Luna, complained that Mavrakis became upset during a procedure and physically pushed her. Mavrakis claimed he moved Luna away because she moved an anesthetized patient without warning while Mavrakis was performing a colonoscopy, and she put a jar of formaldehyde, which contained a biology specimen, within a few inches of his face. CRMC nurse Osburn had worked with Luna for a long time; he said she was an aggressive person who would cause trouble if she did not like you.
In December 2010, a nurse complained that Mavrakis had been so rude and disrespectful to her during a discussion about a pediatric patient that she began to cry and have palpitations. Mavrakis, however, claimed the nurse was unprofessional and denied that she cried or had palpitations in front of him. Sheikh met with Mavrakis regarding this incident and conveyed the seriousness of the situation. Sheikh told Mavrakis if there were any further incidents, he would be written up and placed on probation.
In May 2011, physician assistant Lisa Moreno, who had taken medical leave, showed Sheikh a text message from Mavrakis scolding her for taking time off. Sheikh was concerned because Moreno had the right to time off for health issues, her absence was approved, and Mavrakis was not Moreno's supervisor. Mavrakis claimed he sent the text in frustration because he was overworked and the attendings were not providing relief.
On May 31, 2011, Dr. Steven Stoltz told Sheikh that Mavrakis rudely interrupted his discussion with another individual. Stoltz believed this showed a "lack of professional courtesy and respect towards his colleagues." Mavrakis apologized to Stoltz and explained he interrupted him because a patient needed urgent care. The next day, a member of the GI department's hospital staff reported that Mavrakis became argumentative and exhibited inappropriate behavior in front of a patient and Kundu, and he had done this more than once.
Sheikh met with Mavrakis on June 8, 2011, to discuss these complaints. Sheikh told Mavrakis his actions reflected poorly on the GI department and the Program. Sheikh conveyed the seriousness of these concerns and the need for immediate improvement. Sheikh claimed he encouraged Mavrakis and provided constructive feedback. Mavrakis, however, denied that Sheikh ever gave him constructive feedback or coaching. Mavrakis said he explained his side of the incidents to Sheikh, but Sheikh ignored his "proof" and focused on whether a complaint was made, no matter how petty or unjustified it was. Mavrakis said Sheikh scolded him and threatened to not sign the renewal of his visa, which would put him at risk of deportation. Mavrakis always listened to Sheikh and attempted to behave in ways that were not offensive.
Sheikh continued to receive complaints. Endoscopy director Lisa Avalos told Sheikh she saw Mavrakis become angry with an endoscopy technician during a patient procedure and raise his arms as if he were going to strike her. The technician felt that if she had not moved out of the way, Mavrakis would have hit her. Sheikh told Mavrakis that incidents of this nature would not be tolerated, and immediate improvement was needed.
Sheikh received negative feedback about Mavrakis from VA attendings Wong, Yap, and Prajapati. They considered Mavrakis's skills to be below expectations and were concerned about his organizational skills, lecture preparation, and presentations, as well as his lack of attention to detail and lack of follow through with patient care. Sheikh met with Mavrakis on July 15, 2011, to discuss these concerns. He reviewed the areas where improvement was needed and warned Mavrakis that he would be placed on probation if he did not improve or meet expectations.
On September 21, 2011, Sheikh, Limsui, Wong, Prajapati, and Yap met with Mavrakis to discuss his VA evaluation. According to Sheikh, Mavrakis was defensive during the meeting and refused to accept any responsibility for the negative perceptions of his behavior and performance. Mavrakis believed the criticisms of his work were incorrect and when he said that Prajapati was wrong, Prajapati "burst into tears and stormed out of the room." The next day, Prajapati emailed Sheikh about the meeting, stating, in part: "Dr. Mavrakis believes he is a stellar gastroenterologist beyond reproach; as such I have nothing further to offer him from a training point of view." That same day, Mavrakis apologized for any misperceptions about his attitude because Sheikh told him his fellowship was in danger if he did not do so. At Sheikh's urging, Prajapati agreed to give Mavrakis another opportunity. Sheikh emailed Prajapati, Wong, Yap, and Limsui on September 23, 2011, confirming that Prajapati had agreed to have Mavrakis continue his rotation at the VA, and expressing appreciation for Prajapati's patience and understanding in the matter. Sheikh was hopeful Mavrakis would do a satisfactory job and asked that Mavrakis be evaluated with an open mind. Sheikh claimed he gave Mavrakis detailed advice, suggestions, and examples of how he could improve his organizational skills, medical knowledge, patient care, interpersonal skills, and professionalism.
In December 2011, Dr. Jacob Cohen, an internal medicine resident, complained about Mavrakis's unprofessional treatment of him during an incident when Mavrakis argued with him. Cohen asked to be removed from the GI rotation so he would not be scheduled to work with Mavrakis, although he would continue to have periodic interactions with Mavrakis on consults. Darden informed Sheikh about Cohen's request. Darden rescheduled Cohen to another rotation, but she did not pursue the matter further because Cohen would not put the complaint in writing. Eventually Cohen put his concerns in writing after several requests to do so. According to Sheikh, this was a serious issue raised by another program director, Darden, and the complaint was brought to the dean's attention. Sheikh counseled Mavrakis about this issue and stressed the importance of acting appropriately toward others. Mavrakis asserted he was not rude to Cohen and did not know what the problem was.
On January 10, 2012, VA physician Dr. Reimarie Pineda emailed Sheikh, Wong, and Darden complaining about Mavrakis's "unprofessionalism." Pineda reported that Mavrakis hung up on her, raised his voice at the nurses' station, and refused to listen to her input. She stated: "I was never and am not a complainer but this fellow's behavior is so unbecoming, unprofessional and demeaning.... (This is not the first time that this fellow has been abrasive. The first time was in his first year but it seems that nothing has changed or maybe he does not think something was wrong with his behavior.)" Darden agreed Mavrakis's behavior was "unacceptable" and since it was a "pattern," she forwarded the email to Sheikh. Wong also responded, stating this had been "an area of difficulty" for the VA GI department and attendings for some time. Mavrakis claimed Pineda wanted to shift her work onto him and she felt disrespected when he expressed his opinion about the appropriate course of action. He did not consider his behavior to be inappropriate. About three weeks later, Wong told Sheikh that things were not going well with Mavrakis's rotations at the VA and asked that Mavrakis be taken off the VA call schedule.
Subsequent references to dates are to dates in 2012.
On February 2, Sheikh, Darden, and Wong received a complaint about Mavrakis from a patient. A veteran and his wife complained that Mavrakis came up behind them as they were checking in, physically "shoved" the veteran's wife aside into her husband's wheelchair, loudly "ream[ed]" the staff, and then stormed off. When Mavrakis returned, the wife told Mavrakis she did not appreciate the way he spoke to the staff. Mavrakis rudely explained he had been double booked. The wife responded there was no excuse for how he treated "the girls," and told him to apologize in public. Mavrakis "stormed off." The veteran and his wife wanted Wong to be aware of Mavrakis's "disgraceful behavior." Mavrakis claimed the wife had a reputation for being a complainer. Mavrakis called the wife at Sheikh's request and apologized. Mavrakis said the wife responded that she "was my mother and would offer to bring me coffee."
As a result of these many incidents and Mavrakis's failure to improve, Darden and Sheikh decided to place Mavrakis on a three-month probation effective February 7. They met with Mavrakis and provided him a written "Notice of Probation," which stated he was being placed on probation "due to multiple incidents of your lack of professionalism despite discussions" with Sheikh to correct his behavior. The notice listed 12 reported incidents or complaints about Mavrakis's behavior, and stated that given these complaints and issues with Mavrakis's professionalism, it was necessary to warn him that his continuation in the fellowship was "in jeopardy[,]" and the "seriousness of the reported incidents is of grave concern." The notice also explained that faculty had twice reported to Sheikh concerns about Mavrakis's organizational skills, lecture preparation and presentations, managed patient care and follow-up, judgment and decision-making, medical knowledge base, and inability to multi-task, prioritize his time, and process data in an orderly and timely fashion. Based on these evaluations, it was felt he was at the level of first year fellowship training.
The notice also stated it had been reported that Mavrakis did not respond to pages on a timely basis, and sometimes not at all. According to Mavrakis, the University knew this was false, as he demonstrated to CRMC's GI department that an incorrect pager number had been listed for him.
In order to help Mavrakis determine what he was doing to cause the many negative perceptions of his performance and conduct, Mavrakis was required to meet with Limsui on a regular basis for self-reflection and feedback on his progress. The notice of probation expressly warned "if any additional issues with behavior or unprofessionalism are reported during this period or at any other time during the remainder of your fellowship training, you will be at risk for further disciplinary action including termination from the fellowship."
According to Mavrakis, on February 23, Sheikh told him not to appeal the probation decision and he would be crazy to go against the University. Sheikh also told Mavrakis not to say anything negative about him or that he had approached Mavrakis. Mavrakis complained to Darden about this incident.
Mavrakis nevertheless appealed the probation decision to the University's ad hoc Clinical Competence Review Committee (CCRC), which was comprised of several physicians who had not supervised Mavrakis. Mavrakis considered the complaints to be petty and overblown. He disputed them as exaggerations, mischaracterizations or misrepresentations of fact. On March 23, following review of documents and witness testimony, including favorable testimony by Choudhury as to Mavrakis's competency, the CCRC upheld Mavrakis's probation.
Darden learned in March that Mavrakis had been praised, apparently by Wong, for being meticulous and diligent in his follow-up of patients. Darden did not share this information at the probation hearing because the hearing's purpose was to determine whether it had been appropriate to place Mavrakis on probation during the first week of February, and what happened in March had no bearing on that decision. Moreover, Darden's job at the hearing was to defend the probation decision.
C. Yap's Treatment of Mavrakis
Mavrakis knew that Yap did not like him—Yap yelled at and insulted Mavrakis on a regular basis when they worked together. Mavrakis believed Yap's dislike for him inhibited his learning.
VA nurses Johnson, Skierka and Murphy confirmed that Yap was rude to Mavrakis and yelled at him. According to Skierka, while Yap was not a very good instructor, when he worked with other fellows, the environment was not hostile like it was when he worked with Mavrakis. It got to the point where Mavrakis would be so uptight and upset when he had to do an endoscopy with Yap that he could not relax enough to perform the procedure.
Johnson believed Yap had a cultural difficulty with Mavrakis, as Mavrakis was "flamboyant in his elocution," while Yap was very sedate, quiet and conservative. Johnson thought Yap showed disdain for Mavrakis based on cultural/national differences. Yap considered Mavrakis to be "European" and called him the "geriatric fellow." Johnson thought this was because Mavrakis dressed conservatively. Murphy remembered an incident where Yap said Mavrakis had "faggy clothes and faggy friends" and he should go back to Greece. Murphy asked Yap if he was saying Mavrakis was gay. Yap responded that Mavrakis "needs to go back and be a geriatric doctor and take care of geriatric patients. He's not cut out for this." It was fairly routine for Yap to make comments to the nurses about Mavrakis's accent, and that he should return to Greece and be a geriatric doctor; Murphy estimated she heard those comments five times. The nurses felt Yap was homophobic. Murphy believed Yap just did not like Mavrakis. Skierka also heard Yap refer to Mavrakis as a geriatric doctor, which Skierka interpreted as meaning that Yap thought Mavrakis should take care of geriatric patients rather than be a gastroenterologist. Yap also said Mavrakis was unprofessional. Early in Mavrakis's fellowship, Skierka saw a letter from Yap addressed to the fellowship staff in which Yap referred to Mavrakis as being gay. The letter conveyed that Mavrakis was not doing well in the fellowship and discussed personal, rather than professional, issues.
Murphy complained to Wong in early 2012 about Yap's demeaning behavior toward Mavrakis and Yap's impatience with all the fellows. This was not the first complaint about Yap—the previous head nurse wrote Wong and complained that Yap was extremely demeaning. Wong told Murphy she would look into it. Murphy did not tell Wong the nurses believed Yap was homophobic.
Mavrakis mentioned to Sheikh that Yap had been mistreating him at the VA. Mavrakis, who did not believe he had done anything wrong, told Sheikh his side of the story, but Sheikh said Mavrakis had to be careful and make sure there were no complaints. Sheikh showed some understanding and sympathy, but Mavrakis understood Sheikh's obligation was to keep the attendings pleased regardless of what was happening to the fellows.
D. Additional Complaints Received During the Probationary Period
Limsui met with Mavrakis five times during February and March. Mavrakis canceled an April 4 meeting, and failed to show up for a May 4 meeting. When the two met, they discussed the incidents that led to Mavrakis's probation. Mavrakis felt he was not responsible for any of the incidents. They discussed the importance of accepting responsibility for negotiating conflict. While Mavrakis said he would make the necessary changes to avoid future problems, when new incidents or complaints arose, he denied responsibility for them. Limsui said he did his best to listen and provide advice, including reassuring Mavrakis that everyone wanted him to succeed. Limsui, however, ultimately concluded there was nothing more he could do to assist Mavrakis because Mavrakis was in significant denial that the incidents were due to his own actions, he was very defensive, and he showed hints of possible paranoia. Limsui reported his concerns, the issues of which he was aware, and the outcome of these meetings to Darden.
During the probationary period, Darden and Sheikh received more complaints about Mavrakis. In March, Luna reported that Mavrakis tried to pressure her into writing a letter of support for his probation hearing since it was "all her fault" he was "going through everything and he might lose his job." Mavrakis also suggested to Cohen it was Cohen's complaint that caused him to be placed on probation. Mavrakis demanded that Cohen write an email stating Cohen did not leave the rotation because of Mavrakis. Cohen declined, although he told Mavrakis he would discuss the matter with his chiefs. In an email to Darden and the chief residents, Cohen stated he hoped he had nothing to do with Mavrakis being placed on probation, he discussed cases with Mavrakis after his rotation without any problems, and he had "no problems continuing to work with [Mavrakis] as consults come up." Darden spoke with Cohen, who said he felt very uncomfortable when Mavrakis contacted him.
Additional concerns others conveyed to Sheikh about Mavrakis's "odd behavior and lack of interpersonal skills" included: (1) calling for an employee while she was in the ladies' room and when she came out, he was standing right outside the door; (2) shouting at staff; and (3) eating others' food (including bananas) from the refrigerator and, when asked to replace with fresh bananas, responding, "How do you like my banana?" There also was an incident where a female patient felt uncomfortable when Mavrakis asked her, while they were alone, whether she had anal sex. Although this was not necessarily an inappropriate question depending on the patient's symptoms, Mavrakis should have asked the question in a way that did not cause the patient to feel so uncomfortable that she complained to Kundu, who reported the incident to Sheikh. Kundu did not mean to communicate to Sheikh that Mavrakis acted inappropriately but was merely relaying the patient's sensitivity.
On March 21, Sheikh met with Mavrakis and discussed these incidents with him. Mavrakis explained his version of events and that he had done nothing wrong. Sheikh urged Mavrakis to use better judgment and improve his behavior.
On March 28, Choudhury failed to attend Mavrakis's core curriculum conference on inflammatory bowel disease. Choudhury blamed Mavrakis for not inviting him, although Mavrakis explained the conference was not by invitation. At the end of March, Mavrakis told Choudhury he had concerns about the Program, including the attendings' demands that fellows bill for the attendings' time even though they did not see patients during rounds, the attendings' failure to be present at core curriculum conferences, and the overwhelming outpatient clinics that resulted in violation of duty hours.
E. The Paboojian Letter and the University's Investigation
Mavrakis retained the services of an attorney, Warren Paboojian, who drafted and delivered a demand letter to Darden, Dr. Michael Peterson (Chief of Medicine and Professor of Medicine at the University), and Dr. Joan Voris (Associate Dean at the University), which they received on March 21. Paboojian stated he had been retained because Mavrakis believed Sheikh had created a hostile work environment and was retaliating against him. Mavrakis asserted Sheikh had been making inappropriate comments concerning Mavrakis's sexuality and religion. Mavrakis claimed that since his fellowship began, Sheikh had been verbally hostile, intimidating, and professionally threatening, and Sheikh had indicated he could destroy Mavrakis's career. Paboojian asked the University to investigate the matter.
The comments Mavrakis claimed Sheikh made about his sexuality included Sheikh saying, "Something is wrong with you. That is why you are unmarried. You are not normal. Change yourself. Change yourself. You are not normal." Sheikh also told Mavrakis to devote his life to his future career and never get married. Sheikh made these comments three times—in the fall of 2011, December 2011, and March 2012. Mavrakis believed the comments related to homosexuality because Sheikh was saying he was abnormal and unmarried. CRMC nurse Osburn once heard Sheikh ask Mavrakis why he had not completed a particular report because he should have had more time than anyone else to do so since he was unmarried and did not have children. Osburn thought that was rude and said Sheikh sounded angry. Osburn did not think Sheikh liked Mavrakis very much.
Mavrakis claimed that Kundu also made comments about his perceived sexual orientation. He said that Kundu stated twice during endoscopies, "Don't tell me you are homosexual[,]" and asked him openly in his office, "Are you homosexual?" When Mavrakis responded, "No," Kundu said, "Oh, I thought." On a different occasion Kundu made what Mavrakis perceived to be flirtatious comments about his appearance. Kundu stuck his face into Mavrakis's face and said, "You look like a Greek god. You are very handsome." Two or three times during endoscopies, Kundu said, "Isn't he handsome? Isn't he handsome?" One day, Kundu told him, "What you have done to me." The comments made Mavrakis uncomfortable. Kundu also made a comment that Mavrakis believed to be about his national origin when Kundu said, "Medicine in Europe sucks."
Mavrakis asserted Sheikh made comments that negatively compared Christianity to Islam. When Sheikh interviewed him, he asked Mavrakis if there were any Muslims in Greece. Once while Mavrakis was on a plane with Sheikh, Sheikh asked Mavrakis his religion, and when Mavrakis answered he is a Christian, Sheikh said affirmatively, "[W]hen Jesus Christ comes back to earth, it is going to be in a mosque." On another occasion, Sheikh came in during an endoscopy and boasted about the Islamic conquest of Pakistan and Bangladesh, and the Arab conquest of the south of Spain. Mavrakis felt very offended, as he perceived the comment as discriminating against him because he is not Muslim; he also thought the comment was inappropriate in a professional environment.
Sheikh was told in late March that Mavrakis complained he made inappropriate comments and, as a result, he would no longer directly supervise Mavrakis. Darden assumed the responsibility for overseeing Mavrakis's performance. Sheikh emailed Limsui, Choudhury, and Kundu in mid-April to stress the need to accommodate Mavrakis since Sheikh could no longer supervise him. According to Sheikh, the three attendings were reluctant to supervise Mavrakis because they were concerned about his professionalism. Sheikh told the attendings he would not be supervising Mavrakis because allegations had been made against him personally, but he did not give them the details of those allegations.
Dean Voris ordered an investigation into the complaints raised in Paboojian's letter. The investigation was conducted by Dr. Lori Weichentahl. According to Mavrakis, during the investigation the fellows expressed their concerns regarding violations in the Program, including the absence of rounds, the attendings' failure to come to the fellows' conferences, the overwhelming clinics and the billing practices. Mavrakis reported his concerns to Katie Hightower, the human resources manager. He asked both Weichentahl and Hightower to interview VA nurse Murphy and CRMC nurse Osburn, but neither were interviewed. Sheikh admitted that Weichentahl interviewed him, but he said the interview lasted only five to 10 minutes and he was not asked about his interactions with Mavrakis.
On May 3, Weichentahl issued a report of the investigation. Weichentahl concluded Mavrakis had issues relating to clinical competence and professionalism, but she did not find any evidence of discrimination. Weichentahl noted there was evidence of possible unprofessional or "belittling" behavior, but it was not based on any protected characteristic.
F. Mavrakis's Probation is Extended
On March 30, Choudhury forwarded a complaint to Darden regarding an incident he had with Mavrakis. Choudhury said Mavrakis "barged into a room" where Choudhury was starting a procedure on a patient who was just being sedated and demanded to be involved in all of Choudhury's outpatient procedures that day. Choudhury said Mavrakis became "very aggressive and demanding in front of the patient and all the staff" and "raised his voice." Choudhury was concerned about Mavrakis's ability to complete his fellowship training, given his "extremely bizarre behavior and attitude," since patient care may be compromised. Darden believed this was a very serious matter.
Darden later received a complaint from Limsui that Mavrakis called him several times on March 30, while Limsui was on vacation at a friend's wedding. When Limsui called him back, Mavrakis complained about his interactions with Choudhury that day and asked Limsui to mediate, which Limsui did. Limsui claimed he told Mavrakis he was on vacation. Mavrakis called Limsui again to request to go home ill. According to Darden, Mavrakis should have used better judgment and spoken to his supervising attending physician about going home, not to Limsui, especially after being informed he was on vacation. Limsui also believed Mavrakis should have spoken with the assigned attending rather than call him. Limsui was concerned about Mavrakis's escalating frustration and anger with the probation process, and thought he should get more counseling. Mavrakis denied that Limsui said he was on vacation and claimed that during their conversation, he complained to Limsui about the attendings' demands that the fellows bill for them even though they had not seen patients, as well as the attendings' failure to attend core curriculum conferences and the overwhelming outpatient clinics.
On April 3, Darden provided Mavrakis with a "Notice of Concern" regarding the March 30 incident involving Choudhury, which she discussed with Mavrakis. Darden tried to help him understand that his conduct was improper and violated the terms of his probation. Mavrakis denied his behavior was aggressive, but admitted it was not appropriate to ask for more practice in front of a patient about to undergo a procedure. Darden did not believe Mavrakis was taking responsibility for his behavior. As a condition of continuing in the fellowship, Darden required Mavrakis to seek help in controlling his behavior, and referred him to meet with a physician on the University's Well-Being Committee.
Mavrakis said that when Darden gave him the notice, she made a gesture with her hands and said, "Are you ready for this? Are you ready for this?" Mavrakis thought Darden was threatening him. He also thought she threatened him after she received Paboojian's letter when she told him, "We will get through this process. We will probably not find anything," and then made a gesture with her hand meaning he was out. Mavrakis said she was angry, upset and irritated.
On April 12, Darden received a memo that fellowship coordinator Rene Nelum sent to Sheikh, which described the incidents Sheikh counseled Mavrakis about on March 21.
As a result of the continued complaints about Mavrakis, Darden extended his probation an additional three months to give him another opportunity to correct his behavior. The April 13 "Notice of Probation Extension," which she gave to Mavrakis, described the additional "lapses in professionalism" that violated the terms of the February probation. The notice warned Mavrakis that he needed to make substantial progress in controlling his behavior and failure to do so could lead to further disciplinary action, including termination from the Program. Around the same time, Mavrakis's appointment was extended into a third year, in the hope he would correct his conduct and complete the Program.
G. Mavrakis's Termination
On April 24, Nelum emailed an updated GI core curriculum conference schedule to Mavrakis and the other doctors in the Program, which showed that Mavrakis would give a presentation on bariatric surgery on May 2. Two days later, Nelum emailed a revised schedule, which showed that Mavrakis's bariatric surgery presentation had been moved to May 9. On May 4, Nelum emailed another revised schedule and stated that Mavrakis would be speaking on bariatric surgery on May 9, and his mentor would be Choudhury.
On May 10, Choudhury advised Darden that Mavrakis's May 9 presentation was below expectations and provided emails Mavrakis sent to him. Mavrakis emailed Choudhury the morning of May 9, saying he planned to send Choudhury his power point presentation earlier, but "the schedule was just changed on 5/4/12, I was on call until 5/5/12 and had little time to prepare my 68 slides." Choudhury responded that he could not review the slides the morning of the day of the presentation, and if Mavrakis wanted his input, he would have to provide the content at least a week in advance. Mavrakis replied the conference schedule changed on May 4 and he was on call until May 5, so he had three days to prepare, and he "was informed of my talk 5 days before the day of the presentation, so it would have been impossible for me to inform you one week ahead of time." Choudhury asked Darden to note how Mavrakis mispresented the facts "to mask his deficiencies." Choudhury attached Nelum's April 24 email confirming the topic that Mavrakis claimed he did not know about until May 4. Choudhury added the presentation was not up to the standards expected of a second-year fellow.
Darden viewed this incident of apparent dishonesty as extremely serious, since it was paramount to proper patient care that physicians be able to trust each other's judgment and information provided. Mavrakis later admitted in his deposition that he knew between April 24 and May 9 that he would be presenting on bariatric surgery, but the dates were moved. Moreover, when he got the April 26 email from Nelum, Mavrakis understood he would be presenting the topic on May 9.
Mavrakis felt he had done a good job on the presentation. He asserted his presentations had received good grades, and other fellows who had given subpar presentations, or not presented at all, were not disciplined. Another fellow who observed Mavrakis's presentations rated them as being in the "middle" of the fellows' presentations. Mavrakis did not send the bariatric presentation to Choudhury sooner because he had to prepare two other presentations prior to the May 9 presentation, he was on call, he did not learn that Choudhury would be the mentor until May 4, and he was confused as to when he would be presenting. Nelum told him on May 2 that he was presenting on bariatric surgery that day, but he corrected her and said it was on May 9. The fellows were confused about the conference schedule, as it had changed so many times, so "we were awaiting the final confirmatory email[,]" which was received on May 4. Mavrakis explained that when he told Choudhury he only had three days to work on the presentation due to his busy schedule, he meant there had been a great deal of confusion among the fellows about who was presenting when, and because of his other work and being on call, his time was limited. Mavrakis did not learn about Choudhury's bad evaluation, or that he called him a liar, until after his dismissal, and no one asked him for his side of the story.
Darden also received information from Kundu concerning safety issues involving Mavrakis. It was determined that Mavrakis did not perform an adequate consultation and assessment on a patient on May 5, which caused Kundu to be unable to rely on Mavrakis's findings or clinical judgment. Darden reviewed the case with Kundu, as well as Mavrakis's summary and explanation of the incident. To ensure a neutral evaluation, Darden had an outside independent medical reviewer review the case, who concluded Mavrakis did not properly document any concern about the patient's critical electrolyte levels, among other issues. Kundu also told Darden about another incident that occurred a month before, where it appeared Mavrakis did not properly prepare for an endoscopy and failed to check or note the patient's international normalized ratio level, as is the usual process and would be expected of someone at Mavrakis's level.
As a result of Mavrakis's lack of veracity and unsatisfactory performance, which was a danger to patient safety, Darden determined there was no option but to terminate his employment in the Program. Darden met with Mavrakis on May 17 and gave him a dismissal letter. Darden stated in the letter that Mavrakis was being dismissed due to "further professionalism issues while on a probation extension for professionalism, as well as serious, repeated acts compromising acceptable standards of patient care in preparing patients for endoscopic procedures." Darden cited the incident concerning Mavrakis's presentation, explaining that Mavrakis had confirmed in an April 24 email to Nelum that he would be presenting on May 2, and had asked Nelum to reschedule the presentation to May 9, but then told Choudhury that he learned about the presentation on May 4 as an excuse for not presenting his slides to Choudhury earlier. Darden stated Mavrakis's emails confirmed to any outside observer that he was not truthful in his communications, which was unacceptable and a clear violation of the terms of his probation, and implicated both professionalism and concerns for patient care. Moreover, all three attendings, Choudhury, Limsui, and Kundu, had voiced concerns about Mavrakis's veracity.
Darden also cited the patient safety issues that had arisen, including the inadequate May 5 GI consult and the other incident Kundu complained about, which occurred on April 9. Darden stated the combination of Mavrakis's lack of veracity and inadequate clinical performance was a danger to patients and could not continue, and it was unlikely any remediation would be successful, since the clinical issues should have been learned early in residency.
Darden believed the incidents leading to Mavrakis's probation, probation extension, and dismissal occurred as reported to her and warranted the discipline imposed. She had no information suggesting any of the episodes were false, exaggerated, or inaccurate. Kundu, Choudhury and Limsui declared they honestly reported their concerns, and the incidents of which they were aware, to Sheikh and Darden. They did not attempt to provide misleading information or exaggerate either their concerns or the complaints about Mavrakis they received from others. Sheikh, Kundu, Choudhury and Limsui were not involved in the decisions to extend Mavrakis's probation or terminate his employment.
Mavrakis appealed the termination decision to the University's CCRC. Darden submitted a June 5 letter further describing why she decided to dismiss Mavrakis from the Program: "The totally inadequate performance of Dr. Mavrakis, coupled with his lack of professionalism makes it impossible to supervise him and give him the appropriate autonomy required for a PGY5 fellow and guarantee safety to the patients he attends. [¶] Veracity is, in fact, an issue of professionalism.... [¶] Throughout this process, Dr. Mavrakis did not appear to indicate that he found anything on which he could improve. A person who has no insight into their deficiencies is not likely to ever correct those deficiencies. His file is filled with example of inappropriate behavior, including multiple examples after he was placed on probation. Thus, he was dismissed." Following testimony and review, the CCRC upheld Mavrakis's termination.
All of the individual defendants declared they were not aware Mavrakis had complained about what he considered to be fraudulent billing practices. They also declared that neither they, nor the individuals who expressed concerns about Mavrakis, bore any ill-will or bias toward Mavrakis, and they did not consider his national origin, religion, marital status, or perceived sexual orientation during their dealings with him.
In August 2012, while vacationing in Hawaii, CRMC nurse Osburn received a call from Sheikh about Mavrakis. Osburn believed Sheikh was "coaching" him to say only nice things about Sheikh should anyone interview him. Osburn was shocked that Sheikh was trying to influence him. Sheikh told Osburn not to talk to Mavrakis because Mavrakis had "weird thought processes."
II. Procedural Background
A. The Operative Complaint
Mavrakis's operative pleading contained eight causes of action. The first through fourth causes of action were alleged against the University for violations of FEHA: discrimination and harassment based on Mavrakis's national origin, religion, marital status and perceived sexual orientation; retaliation for Mavrakis's complaints about Sheikh harassing him, discriminating against him, and making derogatory comments about him; and failure to keep the workplace free of unlawful harassment, retaliation or discrimination.
The remaining four causes of action, labeled the sixth through ninth causes of action, were alleged against the individual defendants for deprivation of civil rights, in violation of 42 United States Code section 1983 (the section 1983 claims). Mavrakis alleged he (1) suffered retaliation for exercising his constitutional rights on matters of public concern, including complaining about "billing fraud"; (2) suffered injury to his reputation by being labeled a "liar" and "a danger to his patients" as part of his retaliatory termination; (3) was terminated to prevent him from associating with other fellows, and to deter him and others from opposing the billing fraud; and (4) was terminated in retaliation for his retaining legal counsel.
B. The Summary Judgment Motion
Respondents filed a motion for summary judgment or, in the alternative, summary adjudication, arguing all of Mavrakis's causes of action lacked merit. As pertinent here, respondents contended Mavrakis's FEHA claims for discrimination and retaliation, as well as his section 1983 claims, lacked merit because the University had a legitimate, nondiscriminatory reason to terminate him. Respondents also claimed Mavrakis could not establish a prima facie section 1983 retaliation claim because the individual defendants were unaware of Mavrakis's alleged complaint about improper billing practices. Regarding the harassment claim, the University contended the alleged conduct was not based on Mavrakis's protected characteristics and was not so severe or pervasive to constitute actionable harassment. Lastly, since Mavrakis's discrimination, retaliation and harassment claims lacked merit, Mavrakis's claim for failure to prevent discrimination, retaliation and harassment was also meritless.
Respondents also contended the entire action was barred because Mavrakis failed to exhaust judicial remedies. The trial court denied the motion on this issue. The merits of this ruling are not before us.
C. The Opposition to the Motion
Mavrakis contended he submitted sufficient evidence to create triable issues of fact that precluded summary judgment. Regarding the discrimination and retaliation claims, Mavrakis contended respondents failed to shift the burden of proof because (1) they did not provide any non-hearsay evidence the complaints were true or happened in the way they claimed; (2) they failed to explain how a doctor who received virtually nothing but satisfactory evaluations could suddenly be dismissed for lying and being a danger to patient safety when those concerns were raised only after Mavrakis hired an attorney and made claims against the attendings; and (3) they did not rebut the inference of bias and retaliation. Mavrakis argued respondents misconstrued the seventh cause of action for injury to reputation. Mavrakis also argued the evidence showed he was harassed by Yap, and since there was underlying harassment and retaliation, the University's failure to comply with FEHA was actionable. Mavrakis filed evidentiary objections to respondents' evidence, as well as disputed material facts in support of his opposition.
D. The Reply
In reply, respondents argued Mavrakis had not met his burden of producing substantial admissible evidence of pretext to support any of his claims. Specifically, respondents asserted the favorable opinions of the nurses and others at the VA were immaterial, as the only material opinion was that of the decisionmaker, Darden; Mavrakis's denials of the incidents are insufficient as a matter of law to create a triable issue of fact, as Mavrakis must show not that the University's decision was wrong, but that Darden did not actually believe his conduct warranted discipline; and Mavrakis's focus on Yap was immaterial, as he was not a decisionmaker, his alleged statements were stray comments unrelated to the University's decisions, and there were more than 20 complaints from others that led Darden to believe termination was warranted. Respondents filed written objections to Mavrakis's evidence.
E. The Trial Court's Decision
The trial court issued a tentative ruling granting respondents' summary judgment motion. After oral argument on the motion, the trial court adopted the tentative ruling as its order. The trial court overruled both parties' evidentiary objections.
The trial court granted the motion for summary adjudication of the first, third, fourth, and sixth through eighth causes of action. The court found respondents met their burden of showing the University had a legitimate, nondiscriminatory reason for terminating Mavrakis, as the undisputed facts showed Sheikh and Darden were aware of at least 23 complaints about Mavrakis from a wide range of individuals which raised serious and consistent concerns about Mavrakis's lack of professionalism, tone, dishonesty, patient care, and his physically and verbally inappropriate conduct.
As Mavrakis points out, while the trial court's rulings did not address the ninth cause of action, which was brought against the individual defendants under 42 United States Code section 1983, judgment was granted as to the entire case. Mavrakis does not dispute that if the trial court was correct in ruling that respondents had a legitimate, nondiscriminatory and nonretaliatory reason for terminating him, judgment was properly entered for the individual defendants on the ninth cause of action.
The court acknowledged that Mavrakis disputed some of respondents' factual assertions, but determined his disputations were not substantial responsive evidence that the University's showing was untrue or pretextual. Mavrakis's favorable impressions of himself, his performance, and his qualifications were irrelevant, as were the opinions of the VA nurses and doctor, as they did not supervise Mavrakis, were not faculty, and were not tasked with assessing his performance as a fellow. While the opposition focused on Yap, Sheikh, Kundu, and Choudhury, it did not present any evidence that the decisionmaker, Darden, bore any discriminatory or retaliatory animus. Moreover, Mavrakis could not create a triable issue of material fact by denying the incidents or suggesting they were minor, or by comparing his conduct with others' conduct.
The court also granted the motion for summary adjudication of the sixth through eighth causes of action, as respondents' evidence demonstrated none of the individual defendants knew Mavrakis had reported the improper billing practices, which was the basis of all the section 1983 claims.
Finally, the court granted the motion for summary adjudication as to the second and fourth causes of action, as the handful of innocuous comments did not rise to the level of actionable harassment, they were not based on Mavrakis's protected characteristics, and the conduct was not sufficiently severe or pervasive. Because adjudication of the individual causes of action disposed of the entire action, the trial court stated that a judgment should be submitted. Judgment was entered in respondents' favor on May 31, 2016.
DISCUSSION
I. Standard of Review
The standards governing summary judgment motions and appellate review of them are well established. Summary judgment is proper if there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's ruling on a summary judgment motion de novo and independently determine whether the moving party is entitled to judgment as a matter of law. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.) We consider all of the evidence set forth in the moving and opposing papers, except that as to which objections have been made and sustained. (Code Civ. Proc., § 437c, subd. (c).) We liberally construe the evidence in favor of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (Hampton v. County of San Diego, supra, at p. 347.) "We must affirm a summary judgment if it is correct on any of the grounds asserted in the trial court, regardless of the trial court's stated reasons." (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181.)
"There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) "Thus, a party 'cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.' " (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145.)
II. The Discrimination and Retaliation Claims
A. The FEHA Claims
Mavrakis's first and third causes of action are against the University for discrimination and retaliation under FEHA. FEHA prohibits an employer from terminating or otherwise discriminating against any employee on enumerated grounds, including national origin, religious creed, marital status and sexual orientation. (Gov. Code, § 12940, subd. (a).) "Disparate treatment," the form of discrimination at issue here, "is intentional discrimination against one or more persons on prohibited grounds." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 (Guz).) FEHA also "makes it unlawful for an employer or other person to 'discharge ... or otherwise discriminate against any person because the person has opposed any practices forbidden under this part.' [Citation.] A violation of this prohibition occurs when the employer takes harmful action against an employee in retaliation for the latter's engaging in a protected activity." (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 987.) The elements of such a claim are substantially the same as those for disparate treatment, except instead of showing the action was motivated by animus toward the plaintiff as a member of a protected class, the plaintiff must show the motive was retaliatory animus. (Id. at pp. 987-988.)
Because direct evidence of discriminatory motive is ordinarily unavailable, California courts have adopted a "three-stage burden-shifting test established by the United Stated Supreme Court for trying claims of discrimination ... based on a theory of disparate treatment." (Guz, supra, 24 Cal.4th at p. 354, citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas).) Under the McDonnell Douglas test, (1) the plaintiff employee must set forth sufficient evidence to establish a prima facie case of discrimination; (2) the defendant employer must then articulate a legitimate, nondiscriminatory reason for the adverse employment action; and (3) the plaintiff employee then has the opportunity to show the employer's articulated reason is pretextual. (Guz, supra, 24 Cal.4th at pp. 354-355.) The McDonnell Douglas test also applies to FEHA retaliation claims. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109.)
An employment discrimination plaintiff raises a presumption of liability by "provid[ing] evidence that (1) he was a member of a protected class, (2) he was ... performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Guz, supra, 24 Cal.4th at p. 355.) A satisfactory showing to this effect gives rise to a presumption of discrimination which, if unanswered by the employer, requires judgment for the plaintiff. (Ibid.)
Notwithstanding the McDonnell Douglas test, "like all other defendants, the employer who seeks to resolve the matter by summary judgment must bear the initial burden of showing the action has no merit." (Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058; Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156.) A defendant satisfies this burden by showing one or more of plaintiff's prima facie elements is lacking, the adverse employment action was based on legitimate, nondiscriminatory factors, or there is a complete defense to the cause of action. (Aguilar, supra, 25 Cal.4th at p. 850; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) " 'Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto.' " (Aguilar, at p. 849.)
In seeking summary adjudication, respondents sought to demonstrate the existence of a legitimate, nondiscriminatory and nonretaliatory reason for terminating Mavrakis's employment, namely, Mavrakis's inappropriate behavior and misconduct. The University received numerous complaints about Mavrakis's behavior from supervisors, physicians, staff and patients, which led to Sheikh and Darden placing him on probation. Thereafter, the University received even more complaints. Instead of dismissing Mavrakis, Darden extended his probation to give him additional time to improve and Mavrakis's participation in the Program was extended for a third year. When Mavrakis suggested to Choudhury that he learned about his presentation only five days before and Kundu raised concerns regarding patient safety, Darden felt she had no option but to dismiss Mavrakis from the Program and terminate his employment.
This evidence satisfied the University's initial burden of showing a legitimate, nondiscriminatory and nonretaliatory reason for terminating Mavrakis's employment, that is, a reason that is facially unrelated to prohibited bias or retaliation. (Code Civ. Proc., § 437c, subd. (p)(2); Guz, supra, 24 Cal.4th at pp. 354-355; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1732-1733.) Contrary to Mavrakis's assertion that the University was required to provide evidence the complaints against him actually occurred to satisfy its initial burden of proof, it does not matter whether Mavrakis actually committed any of the acts as long as the University honestly believed he did. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) According to the University's evidence, the decisionmaker, Darden, entertained an honest belief that Mavrakis engaged in the inappropriate conduct that led to his termination.
Mavrakis also asserts the University was required to "provide a context to justify the conclusion that any or all of the prior 'coachings' justified the adverse actions" against him, rather than " 'merely assert[ing]' " that his performance was less than satisfactory, citing Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 743 (Cheal). Mavrakis's reliance on Cheal, however, is misplaced. The court in Cheal did not hold that an employer seeking to show it had a legitimate, nondiscriminatory reason for taking an adverse employment action must do something more than show the justification that supported the employer's decision. As the court explained, the question is "[n]ot whether a nondiscriminatory ground for discharge existed in fact, but whether defendant discharged plaintiff on the basis of a genuine belief that such a justification existed." (Cheal, at pp. 754-755.) Here, as we have explained, the University's evidence established the decisionmaker genuinely believed Mavrakis engaged in inappropriate conduct that justified his termination.
Finally, Mavrakis contends an employer moving for summary judgment must show that illegitimate reasons were not a substantial motivating factor in the adverse employment decision, citing Harris v. City of Santa Monica (2013) 56 Cal.4th 203. Harris holds that in a "mixed motive" case, where the adverse employment decision was motivated by more than one reason, only one of which was discriminatory, the applicable test for causation is whether the discriminatory motive was a "substantial factor" in the employer's decision. (Id. at pp. 211, 215, 232, 241.) Proof sufficient to meet this test warrants a finding of liability under FEHA, but if the employer can prove the same adverse decision would have been made independently of the discrimination, the available remedies are limited. (Id. at p. 241.) While declaratory relief, injunctive relief and attorney fees remain available to the plaintiff, make-whole relief—damages, backpay, and reinstatement—is not, since it would constitute a windfall to the plaintiff. (Ibid.) This is not a "mixed motive" case. The University brought the motion on the ground that Mavrakis was discharged because he was dishonest and a danger to patient safety, not because a mix of discriminatory and legitimate reasons motivated the decision to discharge him.
Since the University satisfied its burden of showing Mavrakis was terminated for a legitimate, nondiscriminatory and nonretaliatory reason, the burden shifted to Mavrakis 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." (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) In other words, the University is entitled to summary judgment if, considering the University's innocent explanation for its actions, "the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory." (Guz, supra, 24 Cal.4th at p. 361, fn. omitted.)
" 'To avoid summary judgment, [plaintiff] "must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses." [Citation.] ... [Citation.]' [Citation.] [A]n issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture." (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.) Nor is it sufficient to show the employer's decision was wrong or mistaken, since the factual dispute at issue is whether the discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) Rather, the employee must produce evidence of " 'such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence," [citation], and hence infer "that the employer did not act for the [asserted] non-discriminatory reasons." ' " (Ibid.)
Mavrakis raises myriad circumstantial evidence which he asserts shows his discharge was the result of unlawful discrimination and retaliation. First, he contends there is substantial evidence of retaliatory animus because he was discharged after he engaged in protected activities, namely, after his attorney sent a letter to the University complaining about Sheikh and he complained to Choudhury and Limsui about billing fraud, based on complaints that had not been raised previously. While timing alone may be sufficient to establish Mavrakis's prima facie case of retaliation, it is insufficient in and of itself to establish retaliatory pretext. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389; Stegall v. Citadel Broadcasting Co. (9th Cir. 2003) 350 F.3d 1061, 1070 [timing should be considered in a pretext analysis, but "timing, standing alone, may be insufficient to raise a genuine issue with respect to pretext"].) Although Mavrakis was terminated within two months of the University's receipt of Paboojian's letter, in our view, that timing is not sufficient in and of itself to establish pretext. Instead, we look to the other evidence Mavrakis argues shows the University's justification is unworthy of credence.
Moreover, the significance of temporal proximity is undercut where there is evidence the employer was concerned about a problem before the employee engaged in protected activity. (Smith v. Allen Health Systems, Inc. (8th Cir. 2002) 302 F.3d 827, 834.) Here, multiple concerns were expressed about Mavrakis's professionalism over the two-year period before the University received Paboojian's letter.
Mavrakis claims he presented sufficient evidence from which a jury could determine the University's explanation for his termination, namely, that he lacked veracity and was a danger to patient safety, was knowingly false. We disagree that he made such a showing. With respect to the Choudhury incident, the finding of lack of veracity was based, not on whether Mavrakis lied "about not having seven days to get his presentation to Choudhury," as Mavrakis claims, but rather on Mavrakis's representation that he only learned he had to give the presentation five days earlier. Mavrakis's emails confirm he knew the topic of his presentation as early as April 24, but he told Choudhury he only learned about the presentation on May 4. Mavrakis's explanation that he was confused about the changing schedule does not show the lack of veracity charge was knowingly false.
Neither does Mavrakis's dispute of the factual basis for Kundu's charge that he was a danger to patient safety show the charge was knowingly false. With respect to the May 5 incident, after Darden reviewed the case with Kundu, as well as Mavrakis's summary of the incident, she had an independent medical reviewer from outside the GI department review the case. It was the reviewer who determined Mavrakis did not perform an adequate consultation and assessment. There is simply no evidence anyone at the University knew the charge was false. Mavrakis also asserts Kundu's month-long delay in reporting the April 9 incident casts doubt on whether the incident actually involved an issue of patient safety. The delay, however, merely showed, at worst, that Kundu did not feel compelled to report the incident until the May 5 incident occurred. It does not render the University's justification unworthy of credence.
Mavrakis next points out that he disputed the claims against him in detail by providing testimony from himself and others that the complaints were either false, misstated or wrong. Mavrakis asserts this evidence raised a dispute about the events underlying the negative characterizations of him, such that a jury could conclude respondents did not honestly believe the characterizations. But even if the complaining staff, doctors, and patients were lying, the issue is whether the decisionmaker, Darden, believed the complaints and, if so, whether this belief was behind Mavrakis's discharge. (Elrod v. Sears, Roebuck and Co. (11th Cir. 1991) 939 F.2d 1466, 1470.) Courts " 'do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, the [anti-discrimination law] does not interfere. Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior.' " (Ibid.)
Here, there is nothing to suggest that Darden did not honestly believe the complaints against Mavrakis and honestly rely on the information relayed to her by others. Neither is there evidence to show that Darden relied on information she knew was untrue or believed any of the reports of Mavrakis's inappropriate behavior was tinged with bias.
Mavrakis argues Darden's lack of knowledge of the falsity of the complaints is not a defense, as she (1) failed to investigate the complaints, and (2) relied on reports by individuals who were tainted by prejudice. Mavrakis, however, does not cite any authority that the University was required to investigate the staff, patient and physician complaints against him, or that the election not to investigate is evidence of pretext. To the contrary, if an employer's belief supporting its adverse employment action is reasonable, an employer need not investigate further. (Waters v. Churchill (1994) 511 U.S. 661, 680.) The cases Mavrakis relies on, Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, are inapposite. In both cases, the employer elected to investigate, but there was evidence of a shoddy and biased investigation. The employer, however, still used the investigation's results as a basis for discharging the plaintiff. (Nazir v. United Airlines, Inc., supra, at pp. 278-283; Mendoza v. Western Medical Center Santa Ana, supra, at pp. 1344-1345.)
Here, the lack of an investigation into the complaints received from staff, patients and physicians does not cast doubt on the reasons for Mavrakis's discharge, as the University reasonably relied on the reports from these various individuals. Darden did in fact investigate Kundu's allegation that Mavrakis acted inappropriately in the May 5 incident, as she spoke with Kundu, reviewed Mavrakis's version of the event, and had an independent person review the case. With respect to Mavrakis's May 9 presentation, the emails spoke for themselves.
Mavrakis asserts pretext may be inferred from the University's failure to investigate the VA nurses' complaints regarding Yap and its inadequate investigation of the claims raised in Paboojian's letter. Mavrakis, however, did not present sufficient evidence to conclude the investigation was inadequate. His evidence shows only that he asked the investigator to interview Osburn, who witnessed one incident involving Sheikh, and VA nurse Murphy, who he told about the incident, yet for some reason unknown to Mavrakis, they were not interviewed. In addition, he points to Sheikh's deposition testimony that while he spoke with the investigator, he was not asked about his interactions with Mavrakis. This evidence does not show that the University did not take Mavrakis's complaint seriously or that the investigation was inadequate. With respect to the VA nurses' complaints to Wong about Yap, there is no evidence the complaints were ever conveyed to Darden.
Mavrakis contends there is a triable issue of fact as to whether Darden acted from retaliatory animus, as she knew his CRMC supervisors harbored retaliatory animus toward him, yet she relied on their complaints to terminate him without investigating them. In support, Mavrakis cites DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 551, which states "showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus." Other than the timing of Choudhury's, Limsui's, and Kundu's complaints about Mavrakis in relation to the University's receipt of Paboojian's letter, however, there is no evidence that these doctors had retaliatory animus toward Mavrakis or that Darden knew of such animus. Darden's purported statement—"Are you ready for this?"—when giving him the "Notice of Concern" on April 3 is too ambiguous to show retaliatory animus. There is no evidence that Darden controlled the investigation into Mavrakis's claims against Sheikh that were raised in Paboojian's letter, and therefore, her purported statement that they would probably not find anything does not infer retaliatory animus.
While Mavrakis asserted that Sheikh and Kundu made comments concerning his perceived sexual orientation, nationality and religion, such stray remarks, by themselves, are not sufficient to create a triable issue of discrimination or retaliation. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541-542.) At best, their remarks raise a weak suspicion discrimination or retaliation was the basis for Mavrakis's discharge, which may be sufficient to establish a prima facie case of discrimination or retaliation, but does not amount to substantial evidence of discrimination or retaliatory animus necessary to defeat a summary judgment motion. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 867-868.)
Mavrakis contends there are evidentiary discrepancies and contradictions that show the University's justification for his termination is unworthy of credence. He asserts the attendings only started complaining about his professionalism after the University received Paboojian's letter. There were numerous reports of Mavrakis's misconduct, however, well before he ostensibly engaged in protected activity. Mavrakis was informed about the complaints as they occurred, counseled about his deficient performance, and repeatedly given the opportunity to correct his behavior. (See Juarez v. Ameritech Mobile Communications, Inc. (7th Cir. 1992) 957 F.2d 317, 321 [no factual issues to pretext where employer fully informed employee of deficiencies in performance, enabling her to take corrective action].)
Moreover, the record does not support Mavrakis's claimed inconsistencies. For example, Limsui's complaint about Mavrakis's March 30 phone call was not that Mavrakis called him while he was on vacation, but that Mavrakis should have spoken with the assigned attending instead. Moreover, Limsui, who had been counseling Mavrakis and recognized that Mavrakis was very defensive and in denial about the incidents, was concerned about Mavrakis's escalating frustration with the probation process. Kundu's concern about Mavrakis's interaction with the female patient was not that Mavrakis had acted inappropriately, but rather that he was not sensitive to the patient. That Kundu testified he did not feel "threatened to work" with Mavrakis, while Sheikh believed Kundu and the other attendings were reluctant to work with him, does not cast doubt on the reasons why the University terminated Mavrakis.
Mavrakis simply has not presented substantial responsive evidence that the University's showing was untrue or pretextual. Put another way, he has failed to present "evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions." (Guz, supra, 24 Cal.4th at p. 361.) As the trial court explained, "[t]he [U]niversity has discretion to determine if a fellow receives a passing grade and certifying that the fellow has the requisite skills and judgment to work as a GI specialist with other physicians and the public in a competent and professional manner." (Madden v. Independence Bank (C.D.Cal. 1991) 771 F.Supp. 1514, 1517 ["A court may not reevaluate such business decisions made in good faith nor second guess an employer's business judgment in an effort to find some possible violation of law."].) Mavrakis has therefore failed to raise a triable issue of material fact that the University discriminated or retaliated against him, and the trial court properly granted summary adjudication on the FEHA discrimination and retaliation claims.
B. The Section 1983 Claims
Mavrakis brought the sixth through ninth causes of action against the individual defendants under 42 United States Code section 1983. The sixth, eighth, and ninth causes of action allege Mavrakis was discharged in retaliation for exercising his First Amendment rights to free speech and association to deter him from reporting billing fraud and prevent him from associating with the other fellows and his attorney. The seventh cause of action alleges that in terminating Mavrakis for opposing billing fraud, the individual defendants allowed documents to be placed in his personnel file which contained false and derogatory statements that were harmful to his professional and personal reputation without providing a name-clearing hearing, and but for the individual defendants' retaliatory animus, the false and derogatory statements would have been removed from his personnel file.
In order for a public employee to state a retaliatory discharge claim for the exercise of First Amendment rights under 42 United States Code section 1983, the plaintiff must show the speech or activity is protected, and the speech or activity was a substantial or motivating factor in his discharge. If the plaintiff meets these burdens, the employer may escape liability by showing it would have taken the same action even in the absence of the protected conduct. (Board of Comm'rs, Wabaunsee County v. Umbehr (1996) 518 U.S. 668, 675; Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 214.) The McDonnell Douglas burden-shifting and pretext analysis used in FEHA actions applies to section 1983 claims. (St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 506, fn. 1; Anthoine v. North Central Counties Consortium (9th Cir. 2010) 605 F.3d 740, 753; Schiff v. City and County of San Francisco (N.D. Cal. 2011) 816 F.Supp.2d 798, 814.)
Here, the section 1983 claims fail for the same reason the FEHA discrimination and retaliation claims fail—respondents articulated nonretaliatory reasons for their decisions. Mavrakis asserts the seventh cause of action is different from the other section 1983 claims, as it is based on the deprivation of a "liberty interest" in being falsely labeled a liar and danger to patient safety, rather than on retaliation for complaining about billing fraud. The claim as framed in the complaint is that the individual defendants retaliated against Mavrakis for his complaints of billing fraud by allowing stigmatizing information to remain in his personnel file as part of his termination. Since respondents showed the University terminated Mavrakis for nonretaliatory reasons, the individual defendants are entitled to judgment on the seventh cause of action as well. Mavrakis has not shown otherwise.
The trial court granted summary adjudication of the section 1983 claims on the alternate ground that none of the individual defendants knew Mavrakis reported the improper billing practices. We need not address this ruling, as summary adjudication was properly granted on these claims based on respondents' articulation of a nondiscriminatory and nonretaliatory reason for Mavrakis's discharge.
Name-clearing hearings are mandated by the Fourteenth Amendment to the United States Constitution whenever a government employee is discharged under circumstances likely to so stigmatize the employee's reputation as to impair future job prospects. (Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 346; Board of Regents v. Roth (1972) 408 U.S. 564, 573.) To be entitled to such a hearing, "an employee must show that '1) the accuracy of the charge is contested; 2) there is some public disclosure of the charge; and 3) the charge is made in connection with termination of employment.' [Citation.] If a liberty interest is thereby implicated, the employee must be given an opportunity to refute the stigmatizing charge." (Mustafa v. Clark County School Dist. (9th Cir. 1998) 157 F.3d 1169, 1179.) A name-clearing hearing is not always required to be held before the employee is terminated. "When the sole purpose of an administrative appeal procedure is to afford a discharged government employee an opportunity to clear his name, a hearing 'after the actual dismissal is a sufficient compliance with the requirements with the Due Process Clause.' " (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1808; Murden v. County of Sacramento (1984) 160 Cal.App.3d 302, 310.)
Moreover, we note the evidence shows that Mavrakis received a hearing to challenge his termination when he appealed his termination to the CCRC.
III. The Harassment Claim
In the second cause of action, Mavrakis alleged he was harassed based on his national origin, religion, marital status, and perceived sexual orientation. (Gov. Code, § 12940, subd. (j)(1).) In the fourth cause of action, Mavrakis brought suit under Government Code section 12940, subdivision (k), which provides for liability when the employer fails to take reasonable steps to prevent harassment. To prevail on this claim, the plaintiff must show actual harassment occurred. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)
To prove a claim for harassment under the FEHA, a plaintiff must establish the following: (1) that plaintiff belongs to one of the suspect classifications which the FEHA was enacted to protect; (2) plaintiff was subjected to harassment; (3) the harassment was based on being a member of the group protected by the FEHA; and (4) the harassment was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)
For conduct to constitute actionable harassment, it must be so severe or pervasive that it alters the conditions of the victim's employment and creates an abusive working environment. (Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 446, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) Although a single incident of severe harassment may be sufficient to establish liability, the acts of harassment "must be more than occasional, isolated, sporadic (i.e., [they must be] pervasive), or trivial (i.e., [they must be] severe) ...." (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467.) To establish that the harassment was pervasive, " 'the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.' " (Muller v. Automobile Club of So. California, supra, at p. 446.)
" '[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.' " (Reno v. Baird (1998) 18 Cal.4th 640, 645-646.)
Harassment focuses on situations where the workplace's social environment becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) To be actionable, the environment " 'must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.' " (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 518-519.) If the plaintiff neither witnesses harassing incidents nor knows they occurred, those incidents cannot affect his or her perception of the hostility of the work environment. (Id. at p. 519.) A reasonable person would not perceive a work environment to be objectively hostile or abusive based on conduct of which he is unaware. (Ibid.)
At oral argument, Mavrakis's attorney asked us to consider the Legislature's intent concerning adjudication of FEHA harassment claims as expressed in newly enacted Government Code section 12923, which was added by Senate Bill No. 1300 (2017-2018 Reg. Sess.), approved and filed on September 30, 2018 (Stats. 2018, ch. 955, § 1). Mavrakis's reliance on this section, however, comes too late. While the statute was enacted after briefing in this case concluded, California Rules of Court, rule 8.254, invites a party to inform the Court of Appeal by letter of any "significant new authority, including new legislation," that was not available in time to be included in the party's last brief. Mavrakis, however, did not take advantage of this opportunity, instead mentioning the statute for the first time at oral argument. We are not required to consider a matter raised for the first time at oral argument and we may deem such matters forfeited. (Kinney v. Vaccari (1980) 27 Cal.3d 348, 356-357, fn. 6.) We do so here. Moreover, there is nothing to suggest that the statute applies retroactively to cases that are decided before its effective date of January 1, 2019.
Here, the handful of innocuous comments purportedly made by Sheikh and Kundu do not rise to the level of actionable hostile work environment harassment. First, most of the comments were not directed to Mavrakis because of his traits. Sheikh's comments that "[W]hen Jesus Christ comes back to earth, it is going to be in a mosque," or regarding the Islamic conquests of Pakistan, Bangladesh and Spain, cannot be understood as comments attacking Mavrakis's religion, as much as they are about Sheikh's religious and historical opinions. Kundu's comment that "[m]edicine in Europe sucks" cannot be construed as being directed at Mavrakis because he is Greek. Sheikh's comment that something was wrong with Mavrakis because he was unmarried is too vague to ascribe any proper meaning; Sheikh may have thought Mavrakis was socially awkward or abrasive. (See Ziskie v. Mineta (4th Cir. 2008) 547 F.3d 220, 226 ["harassment due to personality conflicts will not suffice"].) Similarly, Sheikh's threat to not sign the renewal of Mavrakis's visa was not about Mavrakis's national origin.
Second, the comments were not sufficiently severe or pervasive. Mavrakis alleges a total of seven comments by Sheikh and Kundu over a nearly two-year period—two concerning his religion, one regarding his Greek national origin, three about his perceived sexual orientation, and one about his marital status. This conduct hardly constitutes the continuous and regular period of harassment required to establish pervasive conduct. (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at pp. 611-612.) The comments also are insufficiently severe, as they do not rise to the level of a change in the terms and conditions of employment. (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788 [" 'simple teasing' [citation], offhand comments, and isolated incidents (unless extremely serious)" do not create a hostile work environment].)
Mavrakis contends that Yap's mistreatment of him constitutes actionable harassment. Mavrakis admits he was not aware when he worked under Yap of Yap's comments about his "faggy friends" or "faggy clothes," or the comments that led the nurses to believe Yap was homophobic. He nevertheless asserts he can maintain the harassment claim because Yap yelled at him while he was learning endoscopic procedures, insulted him and made demeaning comments to him, and treated him differently than other fellows to the point it made it difficult to learn endoscopic procedures. Mavrakis claims that based on Yap's comments, a jury reasonably could conclude Yap's treatment of him was motivated by homophobia.
Without Mavrakis's knowledge of Yap's purported homophobic beliefs, however, Mavrakis cannot show that Yap's harassment conveyed an offensive message within the meaning of FEHA. The conduct of which Mavrakis was aware was not based on Mavrakis's perceived sexual orientation. As such, the University was entitled to summary judgment on Mavrakis's claims for harassment and failure to take steps to prevent harassment.
IV. Conclusion
In sum, Mavrakis has not carried his appellate burden of showing the trial court erred in granting summary adjudication as to his FEHA or section 1983 claims. Accordingly, we affirm the judgment entered in respondents' favor.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.