UC Davis Whistleblower Case About to Go to Trial After More than Four Years

It was September, 2009, when the Vanguard first published the account of Janet Keyzer, who filed suit against the UC Board of Regents alleging that she and her husband were terminated from their employment at UC Davis after Ms. Keyzer reported research violations.

Since then it has been an endless trail of stall tactics, motions to dismiss, motions for summary judgment, a transfer from Alameda to Sacramento County, and an appeal of the granting of the defendants’ anti-SLAPP motion – but last week, Judge Rudolph Loncke denied a motion in Sacramento Superior Court for summary judgment that will allow the case to go to trial next week unless the UC Regents make a reasonable offer.

As the judge notes, this is an employment action for retaliation for whistleblowing activities.  Ms. Keyzer began working for UC Davis in 1998, and Ms. Keyzer began working within the Community Oriented Pain Management Exchange (COPE) in April, 2006, which was created to evaluate pain diagnosis and treatment at California State Prisons. It was a federally-funded collaborative effort between UCD, the California Department of Corrections (CDC), and the Correctional Medicine Network at UC San Francisco (UCSF).

Ms. Keyzer alleges that she was 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 June 1, 2007, Ken Keyzer, Janet Keyzer’s husband at the time, was terminated from the COPE project. The same day, she emailed her supervisor, Ms. Cottoman, stating that she would not continue working for the COPE project, effective immediately. Ms. Keyzer was able to find temporary work on another project. On December 21, 2007, she was notified that her employment with the University was terminated, retroactive to November 30, 2007.

The Board of Regents counters that Ms. Keyzer was terminated because they no longer had funding for her and she declined to accept the position which they offered her.

The defense, in attempting to gain summary judgment, argued: “Plaintiff cannot show a triable issue of material fact and Defendant is entitled to judgment as a matter of law on Plaintiff’s Labor Code §1102.5(b) cause of action because Plaintiff cannot show any adverse action was pretext for unlawful retaliation (including due to lack of evidence [of]retaliatory intent, lack of evidence that any stated legitimate reasons are false, because some adverse actions were taken by persons without knowledge of the protected activity, due to Civil Code section 47, because Plaintiff cannot show a constructive resignation, and because some adverse actions were not material).”

But Judge Loncke slammed that argument, noting that the defendant “has failed to make an intelligible statement of issue and the Court did not attempt to make sense of it.”  He added that the issue as stated is “incomprehensible” and it “conflates two separate and distinct analytical steps.”

The judge notes, “The motion for summary adjudication on both causes of action is DENIED. Plaintiff has demonstrated a triable issue of material fact as to whether her supervisors knew of her complaints to the IRB.”

He followed the chain of evidence, including emails and rules: “Given the above, it is reasonable to infer that members of the COPE project, including Plaintiff’s supervisors, knew of Plaintiff’s complaints to the IRB.”  He also ruled that Ms. Keyzer “has also demonstrated a triable issue of fact regarding retaliatory intent and pretext.”

According to the suit filed on September 18, 2009, as stated above, Ms. Keyzer began working within the Community Oriented Pain Management Exchange (COPE) in April 2006, which was created to evaluate pain diagnosis and treatment at California State Prisons. It was a federally-funded collaborative effort between UCD, the California Department of Corrections (CDC), and the Correctional Medicine Network at UC San Francisco (UCSF).

Ms. Keyzer observed that the COPE project was not in compliance with standard research requirements involving human subjects. Team members also violated laws regarding confidential medical records and protected health information. Ms. Keyzer wrote and spoke with her supervisor on multiple occasions about the improprieties she witnessed. In response, the team was directed to destroy their paperwork and “trust” those in charge.  On her own, Ms. Keyzer contacted UCD’s Institutional Review Board (IRB), which regulates all  campus research involving human subjects. Ms. Keyzer learned that the COPE project had not received the mandatory IRB review and approval. Ms. Keyzer filed a complaint, which triggered an IRB investigation and hearing at which she was invited to speak.

There are two specific levels to this allegation that seem of particular interest.  First was the violation of the IRB process by the University.  According to her complaint, the IRB substantiated all of her claims and concluded that serious research improprieties had occurred at both staff and management levels of the project.  According to attorneys representing her, these claims which include the improper use of personal medical data from twenty inmate records, and more concerning the lack of the project undergoing the required UCD Institutional Review Board (IRB) approval, are not in dispute.

The IRB process originated as a safeguard in part to protect human subjects from unethical researchers and clearly the improper use of “prisoner identifier numbers, dates of birth, medical visit dates and details from the inmates’ intake evaluations (including medical and psychiatric histories).”

Moreover, “The Principal Investigator and others on the research team mishandled private medical information even while in the institution, in violation of mandated security and the privacy considerations.”

Ms. Keyzer told the Vanguard during an October 2013 interview that there appeared to be no management oversight over the project.  She would learn that the project was no IRB approved and they never applied.  She sasid that she called IRB and was told to talk the IRB Chair, Anthony Perez.

Mr. Perez was very alarmed and started an internal investigation.  Ms. Keyzer  was really concerned about losing the job from the department, her then husband had already been terminated.  “They think it’s either you or your husband that called the IRB.,”  Mr. Perez told her.

She said,  “I had done the right thing and to this day, I had done the right thing.  It came at a huge cost personally and professionally, but at the end of the day, I did the right thing.”

Ms. Keyzer believes that the decision to terminate her husband was done with the expectation that it “may result in her resignation.”  They fired her husband in order to convince her to resign in retaliation.

The complaint suggests that Ms. Keyzer wrote her supervisor to express her ethical and professional concerns with the project.  “In her response Ms. Cottaman acknowledged that, in fact, COPE was operating outside of University IRB policy and claimed she would follow up on the issue.”

What is in dispute is what happened next.  Ms. Keyzer was offered work on a project scheduled to end in 30 – 90 days, and was told that her employment with UCD would end. Ms. Keyzer filed a grievance, to which 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. Ms. Keyzer rejected the offer, and on December 21, 2007, Ms. Keyzer was notified that she was terminated from her UCD employment, effective November 30, 2007.

According to the court’s ruling, Ms. Keyzer sent an email to Wilhemina Cottman raising concerns about whether the COPE project had IRB approval.  The same day, the COPE project had a meeting in which Ms. Keyzer raised her concerns.  On June 7, 2007, she notified the IRB of her concerns and was interviewed by the IRB director on June 11.

The next day, the IRB issued a “Cease and Desist” order.  During Defendant’s investigation of Plaintiff’s retaliation complaint, the investigator noted the following: “WC [Wilhemina Cottman] talked to then IRB director Tony Perez. During the IRB ‘Investigation’ there was no confidentiality. JK (Janet Keyzer)  – whistleblower protection.” [stet]  She further noted that “according to WC [Wilhemina Cottman], UNFORTUNATELY, it was JK HERSELF who told people she was the WB.”

According to the complaint, “She was asked to relate to the subcommittee her role in the project and what occurred. She was also informed that the University has a whistleblower policy against retaliation and if this happens to her, she should contact him directly.”

“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,” the complaint explained. “In September 2007, Plaintiff was notified that her University employment would terminate when the project concluded, then scheduled for November 2007.”

She was told that “funding for her new research job had run out.” However, Ms. Keyzer, “became aware that the “AHRQ/Battelleproject” was, in fact, continuing and a contract position for the exact research Plaintiff was experienced to conduct existed, from which she was “laid off.”

She was apparently the only one of the team not hired for another project of equal status and responsibility.  She was offered a lower ranking position, but turned it down.

The complaint alleges, “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 30, 2007.”

The whistleblower retaliation complaint was filed with the university in January, 2008.

The university ruled, “After an 18-month investigation, during which UCD granted itself three (3) extensions and violated the Regents’ own timeline for completing such investigations, UCD concluded in July 2009 that Keyzer’s termination was not related to her whistleblowing on the COPE project.”

Barring a last second settlement offer by the defendants or more delay tactics, the case is set to go to trial next Monday in the Sacramento Superior Court.

—David M. Greenwald reporting

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