Judge Denies Motion For Judgment, New Trial in Keyzer Case Against UCD


A Sacramento County judge has denied UC Davis’ motion to set aside a jury verdict in a case of whistleblower retaliation and have a new trial.

Back in August, a jury 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 (Community Oriented Pain-management Exchange) 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.

But UC Davis argued it was entitled to a judgment notwithstanding the verdict (JNOV) on the following grounds:

(1) The evidence at trial establishes the absence of retaliatory intent as a matter of law.

(2) There is no substantial evidence to support the verdict that the alleged actions would not have occurred for legitimate independent reasons.

(3) The verdict undercuts the public policy in favor of internal dispute resolution.

(4) The economic damages award lacks support because plaintiff’s refusal to accept the Analyst VII position bars economic damages.

According to the ruling, the plaintiff countered that the defendant “has set forth only its own evidence and has not addressed all of the material evidence presented.”

The plaintiff contends, according to the ruling, that “there was substantial evidence to support a finding of retaliation including a statement made by one University manager to another admitting that plaintiff had been singled out; the fact that plaintiff had been laid off despite available funds and a moratorium on lay-offs; emails between University management with instructions prohibiting email communication regarding plaintiff because emails are discoverable; and a ‘Victory’ email between University managers on the eve of plaintiff’s termination.

“Plaintiff also contends there were substantial contradictions in the testimony of defendant’s witnesses that would provide the jury with reason to doubt their credibility.”

The judge notes, “Defendant presents a one-sided view of the evidence and the motion for JNOV fails to address any evidence favorable to plaintiff. Plaintiff produced substantial evidence to support her claims of intentional retaliatory conduct because she was a whistleblower.”

He continued, “The jury found that plaintiff suffered an adverse action in retaliation for her protected complaints and awarded her damages after it was properly instructed on the relevant law. Therefore, reviewed in the light most favorable to plaintiff, the evidence is sufficient to support the verdict.”

The judge rules, “Defendant is not persuasive. The Court has weighed the evidence in light of the entire record. As plaintiff points out in her opposition, there was ample evidence to support the verdict. The evidence was sufficient to permit the jury to decide in plaintiff’s favor based on the law explained to them in the jury instructions.”

“Having exercised its independent judgment, the Court is not convinced that the jury clearly should have reached a different verdict. A new trial on this ground is not warranted,” the judge writes. “Similarly, the Court is not persuaded that the verdict was against law. There was substantial evidence to support the verdict. The verdict was not against law.”

Judge also ruled, “The motion on the ground of excessive damages is denied… The Court has independently reviewed all of the evidence presented. As contended by plaintiff, there was sufficient evidence in the record to support the jury’s award. Based on the entire record, including reasonable inferences, there was sufficient admissible evidence to support the jury’s damages award. A new trial is not warranted on this ground.”

For full story on the verdict, see “Jury Awards Janet Keyzer $730,000 From UCD in Whistleblower Retaliation Case.”

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Tia Will

    I see this case as an example of the importance of “self monitoring” and “self enforcement” as one poster had commented might be the best solution to doctor’s who work impaired by drugs or alcohol during the discussion of Proposition 46. It is clear to me that until medical systems voluntarily adhere to their own ethical ( in the case of experiments without IRB approval), safety ( in the case of doctors working while under the influence) and best practice ( doctors not following appropriate guidelines and community standard of care) we will continue to have these extremely painful and costly cases of retaliation against whistleblowers.  Fortunately in the 30 + years that I have been in medicine, there has been a strong movement towards transparency, admitting our mistakes and failures and seeking to improve systems to prevent the inevitable oversights and errors of individuals. I look forward to the day when this occurs spontaneously, not as the result of a $730,000 law suit.

  2. Miwok

    I had a claim like that against the UC Davis system, but they did the same thing to her they did to me. Even with justified grievance procedures and lawyers on both sides, they stand behind their managers and hide any malfeasance from the press.

    Bottom line? The perpetrators continue, with warnings, and the victims get tossed aside instead of changing for the better, facts be damned. It holds the whole system back, IMO.

    1. Tia Will


      I am sorry to hear that you had a similar situation. One problem with the issue of transparency is that we do not “see” the cases that are successfully settled through a collaborative process early after the problem is reported. That occur more commonly than we are aware of because these do not rise to the level that attracts news attention. So the most that we can ever hope for is fewer and fewer cases being called to the attention of the press overtime. This will of course leave those previously injured not knowing whether there has really been improvement, or whether cases are just being more effectively buried.

  3. Jerry Waszczuk

    Employee Abuse at UC Davis
    By admin, on March 10th, 2009
    We have all heard about child abuse, spousal abuse, elder abuse and animal abuse. What about employee abuse? What about employers who have unwritten policies that allow supervisors/managers to abuse the employee on a sustained basis?
    What do I mean by abuse? Types of abuse such as harassment of all kinds (sexual, gender, racial, age and just plain harassment), intimidation, retaliation, favoritism, nepotism, health and safety violations, falsification of documentation, and research misconduct are just a few of the abusive activities that are allowed at the University of California at the Davis Campus and Medical Center.
    The Unions file grievances. These grievances are denied most of the time at Steps 1, 2 and 3 before they end up in arbitration. This process can take up to a year or more. Many employees just give up. They quit or retire just to get away from the monumental stress that is put on them by supervisors and management.
    The UC Whistleblower and Research Misconduct complaint systems are a joke. UPTE (University Professional and Technical Employees) has filed several whistleblower complaints a year ago. Nothing is done. Often times the complaints are just forwarded back to Human Resources where the problem was not taken care of to begin with. It is a vicious circle with no end. The Vice Chancellor and Chancellor do nothing. Sometimes there are investigations of sort. More often than not these investigations come up with not enough evidence to do anything. You can have first hand witnesses and documentary evidence to something and this is never good enough. Then many times the witnesses that are listed in the complaint are never contacted. The investigations are often one-sided, management sided. A Research Misconduct complaint was filed recently. The results came back insufficient evidence of wrong doing. The witnesses were never interviewed.
    Many employees are working out of classification. Many employees are working in a classification that does not adequately describe their jobs. Some classifications are dumping grounds for jobs with no specific classification title. These people will never move up in the classification series because they are not doing the job specifications to begin with. Employees in two different classifications are doing the same job and getting paid differently. Often times “favorites” are reclassified upward. Management will reclassify everyone except the un-liked employee, who eventually will be laid off because he/she was the lone person in the classification. The un-liked employee often is the one who complained about a policy violation. Thus, retaliation is often seen in a layoff.
    Workplace environments can be highly hostile. There is a doctor at the Medical Center that harasses, yells and intimidates employees on a daily basis, including in the operating room. The supervising doctor has covered this up for years. Other physicians and nurses refuse to work with him. Some employees quit because they cannot take the stress any longer. Upper management sits on the investigation for months. If this had been a staff employee, he/she would have been terminated long ago. Management who do wrong are NEVER terminated.
    Another doctor at the Medical Center held up time sheets that were to go to the insurance company for disability payments. This was reported to Human Resources and nothing was done. I am told by a DA that this is a crime and should have been reported. While the employee was on disability leave she was laid off. The time sheets were sent to the insurance company immediately after the layoff.
    An employee that works with toxic chemicals in two laboratories does so without air conditioning and extra ventilation. It gets so hot in the labs during the summers that the machines shut down. The supervisor opens containers out in the lab instead of under the hood and throws chemical contaminated ice on the floor (which employee had to clean up) exposing everyone to the chemicals. After an excessive workload that was to be done in a short period of time (the employee was threatened to lose her job if it was not done by the time the supervisor returned from his vacation overseas), this employee is now very sick and it appears that it might be from chemical exposure. My information request to UC has not been forthcoming, which is usual. This is the lab where research falsification occurred and UC found no wrong doing. The witnesses were never interviewed.
    A twenty-five year employee was pushed out of her job by a new employee who had become a favorite of the new director of a facility on campus. Sexual harassment and intimidation were reported by the employee, but the director chose to ignore the problem. This director is new on the job. She was promoted to the position recently even though there were many people in opposition to her becoming the new director. UPTE asked for an investigation giving names of people when were witnesses. The witnesses were not called and the result of the investigation was no wrong doing. Meanwhile the employee took early retirement because the stress was affecting her health.
    And it goes on and on and on. It does not stop. I could describe many, many more cases. And then there are hundreds I have never heard of. There is no accountability for management. Management does as it pleases regardless of laws and policies. UC is incapable of monitoring itself as it will not find fault within their management ranks. Mismanagement and the breaking of the law are covered up on a sustained basis.
    The Whistleblower complaint system needs to be taken away from UC. Congress was wrong to give it to them in the first place. There needs to be an outside agency set up to monitor UC management. UC has too much power and they use this power in an abusive and unaccountable way.
    Susan McCormick
    President, UPTE-CWA Davis Local

  4. Jerry Waszczuk


    Plaintiff JANET FULTON’S (formerly known as JANET KEYZER) Motion for Attorneys’ Fees was set for hearing on January 30, 2015. After full consideration of the moving, opposition, and reply papers, the points and authorities, supporting evidence submitted by counsel, and oral argument of counsel, the Court finds as follows:

    1.      Plaintiffs Motion for Attorneys’ Fees is GRANTED, as ordered in this Court’s April 6, 2015 Affirmation of Tentative Ruling Re Plaintiffs Motion for Attorney Fees. Attached hereto as Exhibit A is a true and correct copy of this Court’s April 6, 2015 Affirmation of Tentative Ruling Re Plaintiff’s Motion for Attorney Fees, which is incorporated by reference herein.
    2.      Defendants REGENTS OF THE UNIVERSITY OF CALIFORNIA are ORDERED to pay the Law Office of Mary-Alice Coleman and the Bohm Law Group attorneys’ fees in the amount of $993,590.30.
    3.      The Clerk of the Court is FURTHER ORDERED to amend the judgment and indicate that that these fees have been awarded, in addition to the original judgment and subsequent award of costs.

    DATED: 4/27/2015

    By: ____________________________________________  


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