In a case that has been ongoing since 2007, a jury late Monday finally ruled in a 9-3 decision in favor of terminated UC Davis employee Janet Keyzer and awarded her $330,000 in lost earnings and $400,000 in noneconomic damages. UC Davis will also have to pay years’ worth of attorney fees for ultimately two attorneys.
Ms. Keyzer sued, alleging that she had been retaliated against and ultimately terminated because she complained to her supervisor and the UC Davis Institutional Review Board (“IRB”) that the COPE project management did not comply with the IRB approval process before implementing human subject research activities on prisoners at San Quentin.
In their verdict form, the jury by a 9-3 vote determined that Ms. Keyzer proved that she suffered a termination of employment and that her protected disclosures regarding the COPE project were a contributing factor to the termination and other adverse employments actions.
Moreover, the Regents failed to prove by clear and convincing evidence that the termination would have occurred for legitimate and independent reasons even if Ms. Keyzer had not engaged in the protected disclosures.
Finally, the jury ruled that the conduct of the Regents was a substantial factor in causing harm to Ms. Keyzer.
It was September, 2009, when the Vanguard first published the account of Janet Keyzer. The Vanguard ran a follow up story this February when Judge Rudolph Loncke denied a motion in Sacramento Superior Court for summary judgment that would allow the case to go to trial in February – however, the trial was further delayed with a 1600-document dump of late discovery and when the Regents made attorney Mary Alice-Coleman a witness, forcing her to bring on Lawrance Bohm to try the case.
Ms. Keyzer’s disclosures in mid-2007 shut down the $5.5 million pain management study, a project in collaboration with UC San Francisco.
After the project was shut down, Ms. Keyzer was forced to file an internal grievance when she was denied placement in otherwise open and available positions. In response to her grievance, Ms. Keyzer was offered a short-term, non-nursing “contract” job which was terminable at will. She was then repeatedly told that she could not have a “career” appointment because it was contrary to policy, but to “trust” that the University would honor her career rights.
Fearing that she was being retaliated against, Ms. Keyzer hired attorney Mary-Alice Coleman, and was informed that she would be required to release all claims against the university to accept the contract position.
Ms. Keyzer indicated that the “contract” appointment failed to adequately satisfy numerous rights and benefits that were covered by her former “career” appointment, such as requiring good cause prior to termination, pension contributions, reduced tuition, and preferential rehire rights in the event of layoff.
Moreover, Ms. Keyzer specifically requested that actions be taken to address the ostracism and prospective retaliation she feared at UC Davis, as well as discipline be taken against the academic and administrative wrongdoers responsible for the non-compliance. After prolonged negotiations regarding the job, the University claimed that Ms. Keyzer’s desire to work away from those responsible for her retaliation was unreasonable.
Ms. Keyzer was terminated on December 21, 2007, retroactive to November 30, 2007. The trial confirmed that UC Davis and specific research leaders intentionally acted to block Ms. Keyzer from ongoing career employment on any of the research projects in the center.
According to a release from her attorneys, “Ms. Keyzer was highly skilled and found work in the private sector within six months of her termination. However, the loss of her University job caused significant emotional and physical distress, including the dissolution of her marriage, the loss of her pension contributions, the loss of her dream career as an academic researcher, and added two years to the completion of her doctoral program.”
As Ms. Coleman explained to the Vanguard, the $730,000, while a substantial verdict, did not begin to cover her real loses.
“Her real loses, in addition to her life being virtually on hold for seven years, as this proceeded,” Ms. Coleman said. “Her marriage dissolved, she lost what had been a dream to have an academic career or at least retain her research nurse position for the rest of her career.”
At that time she sought to complete her PhD., which she has since completed but this drama added two years to that process. Her attorney estimates that her lost future pensions far exceed the award verdict.
“I think we had some overwhelming documentary evidence against the university which very clearly showed a pattern of retaliation against Ms. Keyzer,” Ms. Coleman stated, noting that many of those documents were not produced until they forced the university to produce them through a motion to compel. The university waited until a week before trial to produce the 1600 documents.
These documents proved critical at the trial and memos and emails showed the depths of the concerted effort to retaliate against Ms. Keyzer.
One example Ms. Coleman shared was an email from Dr. Bertakias that said, “They were just trying to placate Janet .” There were other emails saying not to address Ms. Keyzer’s case by email because “email is discoverable.”
A manager wrote, “This is headed in a bad direction as I thought it might. …I feel we’re way out on a limb here. We’re doing what we’ve been asked to do …, but we have no policy and procedures to back us up. Where’s our legal counsel?”
There was an email from Dr. Romano saying, “I think it will be best to put (Janet) back to work, then lay her off in the usual manner, rather than under the current peculiar (and perhaps questionable) circumstances.”
Former Vice Chancellor Karen Hall for Human Resources was asked what she expected a university employee to do if asked to do something illegal. She responded, “She imagined most employees would keep doing it because of their paycheck.” Ms. Coleman stated, “I found (that) to be shocking.”
Ms. Coleman added that Ms. Hall was asked in a hypothetical what if they were asked to re-use syringes, to which she responded that of course they shouldn’t participate in that.
“That was critical to our case because our client was criticized for having resigned in protest from the project she worked on,” she added. Ms. Keyzer was “belittled even at trial for refusing to continue the work that she knew was illegal and improper.”
These are but a small segment of critical documents and testimony that they had.
“We had so much it was unbelievable,” she said. “You wouldn’t believe that we were forced to go to trial and wait seven years to resolve this case when this evidence existed all this time.”
The university, she said, has “been absolutely steadfast in implying that this case was completely frivolous, that they did nothing wrong, and that my client had no basis for legal action against them.”
Lawrence Bohm, in a phone interview with the Vanguard, said, “There were too many high level leadership people who had no explanation for why things turned out the way they did.”
He explained that the university’s position “ended up being very confused by contradictory statements amongst their own people.”
“They seemed to constantly contradict themselves,” he added.
Both Mary Alice-Coleman and Lawrence Bohm told the Vanguard that, in the end, the jury simply did not find the claims by the university officials to be credible and were not satisfied with their explanations.
Ms. Coleman told the Vanguard that a number of the jurors said that “the key witnesses by the university were not credible and that they were very shocked that high level officials for the university would not know what was going on, not be knowledgeable and aware of key documents and key information that was going on at the time.”
As such, the jury “did not believe what” these officials were saying. In this case, “The jury specifically stated that they found Dr. Patrick Romano and Dr. Lea Bertakias and Attorney Michael Sweeney as lacking credibility.”
“One juror,” he said, “described Dr. Romano as ‘rodent like’ and nervous.”
Andy Fell, a spokesman for UC Davis, told the Vanguard that this case comes out of the health system. Mr. Fell said that they just got the decision yesterday, “our lawyers are looking at that decision and considering what our options are.”
Mr. Fell declined comment on the substance of the ruling, saying that “obviously we litigated this case, we obviously would have preferred a different outcome here. Now we have to look at the decision and see what we do next.”
He said the whistleblower retaliation complaint was “promptly investigated” and “led to the project that she was working on being shut down.”
In a statement from the university, they explained, “Ms. Keyzer filed a whistleblower retaliation complaint under the University of California Whistleblower Protection Policy. The University’s internal investigation was conducted by a UC Davis School of Law faculty member and a member of the Academic Personnel Office, both of whom were unaffiliated with the research project and the Center.”
“The investigation found that Ms. Keyzer was not retaliated against, but found that Ms. Keyzer should have been provided continuing preferential reemployment rights notwithstanding her refusal to accept the Analyst VII position,” the statement noted. “As a remedy, Ms. Keyzer was granted a severance package and preferential reemployment rights for two years. Ms. Keyzer did not pursue preferential reemployment rights. On September 18, 2009, Ms. Keyzer filed a lawsuit alleging whistleblower retaliation.”
The attorneys for Ms. Keyzer disagree, as they note that she was offered a non-career path position.
Mr. Bohm said, throughout the experience, “People seemed to attempt to look like they were trying to help (Ms. Keyzer), without actually addressing the problems.”
“On the one hand, they said they did everything they could to help her. They had no control over making the position contract versus career,” he would cite as an example. “And then a witness came in and said they could have made it a career any time that they wanted and it wouldn’t have cost them anything extra.”
Lawrence Bohm told the Vanguard, “I think you can say that their whistleblower protection did not work. The reason that it did not work is that in their world they take a person’s word for it.”
If they ask an employee if they did this and the answer is no, that is the end of the discussion, he added.
“I think they appropriately investigated their complaints,” he explained. “They’re not trying to prove she is correct. That’s not their job. Their job is to find out if people on their side are even trying to have a defense.”
“If someone really wants to do something bad to somebody, as long as they never admit it and they make up some other reason, the university itself that’s all they report” is the denial, Mr. Bohm stated. “Therefore there was no evidence to conclude that this thing was improper.”
The difference between the university investigation and the jury trial, Mr. Bohm argued, is that “the jury weighs the credibility of witnesses.” He added, “The jury gets to decide if that was really a truthful denial.”
Andy Fell told the Vanguard, “I think we do take these things very seriously. There is a detailed process both for the original whistleblower complaint and also for their retaliation complaint.”
He added, “We did do a whistleblower investigation as conducted by a faculty member from the School of Law working with academic personnel – that internal investigation concluded that there wasn’t a retaliation.”
“I think one thing we’ll be looking at in general is how the internal investigation came to a different conclusion from the jury,” he added.
“Good governance demands that people stand up to wrong-doing”, stated Mary-Alice Coleman. “In this case, Janet Keyzer stood up to a powerful and influential multi-billion dollar organization – the Regents of the University of California — to protect not only those who are unable to protect themselves, but also to protect the best interests of the UC system, and the integrity of its research efforts.”
This case is one of the first cases to be successfully tried to a verdict on behalf of a University employee under the revised California Whistle Blower Protection Act, Government Code section 8547.10.
“Nobody ever took responsibility,” Lawrence Bohm said. “Nobody was even disciplined because of this incident with the improper research. At least it should have been a mark on somebody’s record.”
The only person disciplined was the lead investigator.
“You have four or five people doing illegal stuff, I’m not saying they all need to be fired, but you need to recognize that four or five people failed, not just one,” Mr. Bohm added.
Ultimately, he believes there will be no consequences for this other than this verdict.
You can watch an interview of Ms. Keyzer with Insider Exclusive, one of America’s leading independent, documentary film producers who came to Davis in early 2014 to do a documentary on the case: click here.
—David M. Greenwald reporting
The following is a time line provided by the University:
April 1998: Plaintiff Janet Keyzer began her employment with UC Davis. She worked as an Administrative Nurse II at the UC Davis Center for Healthcare Policy and Research in Sacramento (“the Center”). At all times Ms. Keyzer’s position was “soft-funded,” which means her position was entirely funded by research grants. When the research ends, the employee’s job ends unless he/she is able to find employment on another research grant.
December 2006: Ms. Keyzer began working on the Community Oriented Pain-Management Exchange Program (“COPE”) research project at the Center. This was research sponsored by the California Department of Corrections and Rehabilitation. Ms. Keyzer worked part-time (50%) while she was simultaneously pursuing her Ph.D. in Human Development at UC Davis.
April 12, 2007: Ms. Keyzer and other members of the research team abstracted data from prisoner medical records. Ms. Keyzer became concerned that this activity technically constituted “human subject research” within the meaning of the applicable Institutional Review Board (IRB) regulations and therefore required IRB approval.
June 1, 2007: Ms. Keyzer asked to be removed from the COPE project. Because she was an established, long-term employee, the Center offered Ms. Keyzer “bridge funding” (a temporary funding mechanism) to keep her employed while another position could be found for her. She remained on bridge funding for all of June 2007.
June 12, 2007: The UC Davis Institutional Review Board (IRB) received a complaint alleging that the COPE project was conducting research that had not been appropriately approved by the IRB in compliance with University policies. Ms. Keyzer testified at the trial that she was the complainant.
- June 13, 2007: The IRB conducted a preliminary review and issued a cease and desist order halting the COPE research project pending a complete investigation.
- June 25 – September 10, 2007: The IRB appointed a subcommittee to investigate. The subcommittee consisted of an IRB committee Chair and two IRB members, one of whom was a prisoner representative.
- September 10, 2007: The subcommittee issued its report. The IRB suspended all current studies of the Principal Investigator; suspended Principal Investigator status for one year; required mandatory training for the research team; and referred the matter to the UC Davis Academic Personnel Office.
July 2007: Ms. Keyzer was offered a short-term position on another research grant funded by the Battelle Memorial Institute. The University kept her employed in this position between July 1, 2007 and November 30, 2007.
September-October 2007: The Center began a recruitment for a new research position on the Battelle Project. This position was a part-time (50%) position and was classified as an “Analyst VII.” The position was initially slated as a contract position and was to last until September 30, 2008.
October 25, 2007: Ms. Keyzer filed an internal UC Davis grievance requesting placement in an open position at the Center.
October 31, 2007: Ms. Keyzer was informed that she can apply for the Analyst VII position and will receive preferential rehire rights for this position. Ms. Keyzer did not apply for the Analyst VII position.
November 30, 2007: UC Davis notified Ms. Keyzer that her grievance had been granted and that she was going to be appointed to the Analyst VII position on the Battelle project without having to apply for the position. The appointment continued her career employee status without a break in University service. Ms. Keyzer was also informed that she would have the same rate of pay and benefits.
December 2007: Ms. Keyzer declined the Analyst VII position.
David wrote:
> she lost what had been a dream to have an academic career or at least
> retain her research nurse position for the rest of her career
If anyone asks me about an academic “career” or “researcher” I will try and make sure they are OK with never saying anything bad about the institution and always getting the result that the people who paid for the “research” want. You will have a better chance of a police “career” if you publicly tell the media that a co-worker shot a black guy with his hands up than an academic “career” where you publicly talk about anything that makes the institution look bad (or let anyone know that most “research” is just taking money from people that want a “third party” report to prove their point.
P.S. It sure would be nice to get a check for $730K and not have to make a mortgage payment every month…
“It sure would be nice to get a check for $730K and not have to make a mortgage payment every month…”
she went without a check for seven years and came out behind on what she would have gotten.
No, she was able to get a job elsewhere, but this wasn’t her dream career of a UC researcher.
According to the complaint by her attorney, it was a demotion. But that’s actually immaterial. The question was whether her treatment was due to whistle-blowing activities. I’m surprise you seem willing to shrug that off.
Don’t forget the chunk the attorney takes (unless there is a provision that covers that), and taxes.
you’re still talk about pennies within the uc coffers and most of that will be covered in their insurance.
Ultimately students will pay for this.
that’s now how the accounting works – first of all. second of all – university screwed up. third of all – she would have gotten more money from the university had she stayed. so no.
DP wrote:
> that’s now how the accounting works…
Frankly did not say the students are going to pay for “ALL” of it, but since students and taxpayers pay for “MOST” of every dollar UC spends the students and taxpayers are going to pay for “MOST” of it…
First of all, I’m fairly sure the university is insured. Second, you’re talking less than three-quarters of a million out of a multi-billion budget. That’s like a person who makes $100,000 getting fined $50.
In 2013-14, UC Davis brought in $3.8 billion, ironically the Medical Center is 41% of that. Tuition accounts for $755 million (which means the settlement is 1/1000th of that tuition which is not where the money would come from anyway, but demonstrating it for the purpose of argument which would be like a person who makes $100,000 paying a $100 fine).
Except for the bad PR.
Wow! Way to go, Mary-Alice and team! Nice, very nice.
Years ago before I went to law school, I worked as an investigator for some local attorneys, and they had a client who was fired out from UCD Vet Med. He was international, and had his family here, I think a post doc or something. His supervisor was known to be grouchy and vindictive. For whatever reason, she took a dislike to the guy, and accused him of horrible stuff. He was fired. I went in and photographed and measured the rooms where the events allegedly happened (her version), and we were able to prove at trial that her version was fabricated. He got his job back and career saved, and away I went to law school at GWU. For years I got Christmas cards from him, thanking me for saving him and his family from disaster. The attorney was Joan Poulos, and I have never met a nicer, more professional attorney who really cared about her clients and went the extra distance.
Anyway, I was impressed, very very impressed, at how vindictive UCD HR was in those days, porotecting the local PhD over the international student. So reading about Mary-Alice’s big win here brings back memories.
Nice she (sort of) won but when someone else thinks about being a whistleblower and looks at this case, I think they will feel encouraged to keep their mouths shut. Seven years of legal battles with an uncertain outcome is not a path that encourages people to speak up. I’d say the system doesn’t work. Hard to believe researchers just asked their employees questions and accepted the answers as facts without corroboration.
She had a part-time job that was paid by grant money, knowing that when the grant money is used up, she’ll have to find another position/project; she quit the job for whatever reason; she was provided continued employment through money from a non-specific source; she was offered a contract position, which she refused; she can’t find another project (again grant funding) where the lead is willing to hire her; she demands a permanent, full time, career position as a research scientist and then sues when she doesn’t get it. She blames the University for the loss of her marriage. She takes advantage of the bungling of professors who do not have training in HR matters and HR employees that won’t, or feel they can’t, stand up to the faculty. She has a career, but it is not her dream career.
If she really had set her sights on a career in academic research with UC, she should have been smarter about how to change the irregularities that she observed. She was still in Grad School or just finished and there may have been more qualified candidates out there.
“she quite her job for whatever reason.”
you mean because it was discontinued when the project was shut down because they had failed to do an irb for the research?
Yes, you are right. She was not very smart about this. No research project, no position available. She did not have a career position. Her employment was dependent on grant funding. They offered her a comparable position to the one she had, but she clearly wanted a full-time, career position, that was not covered by a contract and not dependent on grant funding. Wouldn’t it have been better to work to correct the error and get IRB approval?
My understanding is that she was not offered a comparable position to the one she had.
“All UCD staff members who worked on the COPE project were transferred to other UCD research projects. Plaintiff was moved to a project scheduled to end in one month. In September 2007, Plaintiff was notified that her University employment would terminate when the project concluded, then scheduled for November 2007. Plaintiff was told that funding for her new research job had run out. However, Plaintiff became aware that the “AHRQ/Battelleproject” was, in fact, continuing and a contract position for the exact research Plaintiff was experienced to conduct existed, and from which she was “laid of£””
And
“UCD offered her a demotion from her Administrative Nurse professional researcher classification to Analyst on another short-term project being managed by the same manager who coordinated the COPE project. Keyzer rejected the offer, and on December 21, 2007, Keyzer was notified that she was terminated from her UCD employment, effective November 3D, 2007.”
The main issue is whether she was terminated due to her whistleblower activities, the university could not come up with a credible explanation for the termination.
” She was not very smart about this. No research project, no position available.”
So your position is that she should have stayed quiet and allowed the university to continue to conduct research on prisoners without a proper IRB?
She did try to correct the problem internally, contacted the appropriate people, to no avail.
As medical patients, we should be very appreciative of her stand on confidentiality of medical records.
Keep quiet? Not at all. I’m just saying that she is educated and should have found a better way to handle this so she could pursue her dream job. She found an alternate career, but her chief complaint was that she wanted a permanent career as a researcher. If she wanted that kind of job, then she should have figured out how to effect change to get the project in compliance and not blow it up and have it shut down, leaving her without a research job.
Ryan
“I’m just saying that she is educated and should have found a better way to handle this so she could pursue her dream job”
“She takes advantage of the bungling of professors who do not have training in HR matters and HR employees that won’t, or feel they can’t, stand up to the faculty. ”
I see this a little differently. There seems to be an inconsistency here. You feel that she was not very smart about how she handled the situation, but seem willing to exonerate the professors who clearly did not handle the situation in a very smart manner either. To me none of this matters. Either the experiment was being done in an ethical and lawful manner following all the necessary steps, or it was not. This is the central issue. Everything else is secondary. From my point of view, when an individual involved in a medical situation in which they become aware that there are ethical lapses, they have the responsibility to continue up the chain of command until the situation is remedied. It does not matter if you ( lacking the training to know the best way to proceed) follow the best practices or not, it remains your professional responsibility to see it through. And you should be free of the the potential for retaliation. Each of the individuals involved in this should have disciplinary steps applied to them.
Anyway in a supervisorial capacity who knew about this and shoe to cover it up or retaliate should be included.
I am not really understanding what the controversy is here. This is people’s health and well being that it is at risk.
This is why we have restrictions on experiments. I am very confused and troubled by the discussion that seems to imply that she did the “wrong thing”.
Something just doesn’t add up. Her focus seemed to be more about a dream career. She should be happy – the study was shut down, the lead investigator severely disciplined, she won a sizable amount of money. Yet she is complaining.
The study was shut down. This is a positive.
The lead investigator was severely disciplined. This is probably a positive.
But the “winning” of a sizable amount of money should never have been necessary. A court case should never have been necessary. Because there never should have been any retaliation. My feelings that had this been handled appropriately by HR, where it belonged, there would have been no need for any of the rest that ensued. She has won money. What she can never win back is the time and opportunity lost. There are many people who do not hold money as our highest standard. She may be one of them.
Although not germane to the suit/settlement story, it would be interesting to know what happened to the larger study with UCSF: was the entire study stopped; did UCSF gain proper IRB approval? What was it that was inappropriate at UCD, only lack of IRB approval or informed consent, or ??. With prisoners there needs to be more caution in informed consent, etc.
I find it disheartening that her concern and whistleblowing was met with retaliation. I find it more concerning that the principle investigators did not use the proper channels of IRB etc.
She asked to be removed from a job, then files a complaint. She is kept on the payroll in the interim and then offered another position. She refuses. They tell her that she can apply for a position as a preferential rehire. She complains. They offer her the position without needing to apply – the job is hers. She refuses the job and sues for money, not a position. She goes and secures a well-paying job outside of the University. She wins the lawsuit. And gets money. She is still complaining.
Don’t assume that because she won her lawsuit, she is on the side of righteousness. I believe that the retaliation cuts both ways.
she didn’t ask to be removed from the job, she filed a complaint that the research was improper, that shut down the job. she was then offered a lower job. the university could not explain how that wasn’t as the result of retaliation. i don’t understand your need to vilify the plaintiff here when the university is the one who screwed up.
June 1, 2007: Ms. Keyzer asked to be removed from the COPE project. Because she was an established, long-term employee, the Center offered Ms. Keyzer “bridge funding” (a temporary funding mechanism) to keep her employed while another position could be found for her. She remained on bridge funding for all of June 2007.
June 12, 2007: The UC Davis Institutional Review Board (IRB) received a complaint alleging that the COPE project was conducting research that had not been appropriately approved by the IRB in compliance with University policies. Ms. Keyzer testified at the trial that she was the complainant.
according to the previous article – those are facts in dispute and the timeline you’re using is from the university.