Pinter-Brown v. The Regents of the University of Cal.

Filed 4/23/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LAUREN PINTER-BROWN, B290086
Plaintiff and Respondent,
(Los Angeles County
v.
Super. Ct. No. BC624838)
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael Linfield, Judge. Reversed.
Morgan, Lewis & Bockius, Barbara A. Fitzgerald, Kathryn
T. McGuigan, Jason S. Mills; Orrick, Herrington & Sutcliffe and
Eric A. Shumsky, Jeremy Peterman, Jessica Perry, Elizabeth
Moulton and Evan Rose for Defendant and Appellant.
Shegerian & Associates, Carney R. Shegerian and Jill P.
McDonell for Plaintiff and Respondent.
_________________________
INTRODUCTION
Dr. Lauren Pinter-Brown sued The Regents of the
University of California for gender discrimination based on a
series of events that took place while she was a Professor of
Medicine at the University of California at Los Angeles (UCLA).
The jury found in favor of Dr. Pinter-Brown and awarded her
upward of $13 million in economic and noneconomic damages.
Unfortunately, the trial court committed a series of grave
errors that significantly prejudiced The Regents’ right to a fair
trial by an impartial judge.
First, the court delivered a presentation to the jury
highlighting major figures in the civil rights movement, and told
the jury their duty was to stand in the shoes of Dr. Martin Luther
King and bend the arc of the moral universe toward justice.
Second, the court allowed the jury to hear about and view a long
list of discrimination complaints from across the entire
University of California system that were not properly connected
to Dr. Pinter-Brown’s circumstances or her theory of the case.
Third, the court allowed the jury to learn of the contents and
conclusions of the Moreno Report, which documented racial
discrimination occurring throughout the entire UCLA campus.
Finally, the court allowed Dr. Pinter-Brown to resurrect a
retaliation claim after the close of evidence despite having
summarily adjudicated that very claim prior to trial.
These errors were cumulative and highly prejudicial. They
evidence the trial court’s inability to remain impartial and
created the impression that the court was partial to Dr. Pinter-
Brown’s claims.
We must reverse.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. The Complaint, Summary Adjudication, Motion in
Limine, and Dr. Pinter-Brown’s Theories of Liability
On June 22, 2016, Dr. Pinter-Brown filed a complaint
against UCLA, The Regents of the University of California, Dr.
Sven de Vos, and Does 1 to 100 alleging: (1) discrimination on
the basis of gender in violation of the Fair Employment and
Housing Act (FEHA); (2) harassment on the basis of gender in
violation of FEHA; (3) retaliation for complaints of discrimination
and/or harassment on the basis of gender in violation of FEHA;
(4) discrimination on the basis of age in violation of FEHA;
(5) harassment on the basis of age in violation of FEHA;
(6) violation of Labor Code section 1102.5; (7) violation of the
Equal Pay Act; (8) intentional infliction of emotional distress; and
(9) defamation.
On September 21, 2016, Dr. Pinter-Brown dismissed the
eighth cause of action for intentional infliction of emotional
distress. On June 12, 2017, the parties stipulated to dismissal of
the seventh cause of action for violation of the Equal Pay Act. On
August 7, 2017, Dr. Pinter-Brown dismissed Dr. de Vos from the
action without prejudice.
On August 17, 2017, the trial court granted UCLA’s1
motion for summary adjudication of the second, third, sixth, and
ninth causes of action (harassment on the basis of gender;
1 The record and appellate briefing refer to defendants and
appellant as UCLA and The Regents. We refer to them as UCLA
throughout this opinion, as Dr. Pinter-Brown was employed by
UCLA and the acts of discrimination she alleged all occurred at
UCLA.
3
retaliation for complaints of discrimination; violation of Labor
Code section 1102.5; and defamation). Jury trial therefore
proceeded on the remaining three causes of action for
discrimination on the basis of gender, discrimination on the basis
of age, and harassment on the basis of age. The jury found in
favor of UCLA on the age discrimination claims and Dr. Pinter-
Brown does not appeal these verdicts. Accordingly, we omit
discussion of the facts underlying these claims and the theories
upon which both parties argued them.
Dr. Pinter-Brown proceeded on two theories with respect to
her gender discrimination claim. She argued she was subjected
to an adverse employment action and/or constructively
discharged. Under both theories, she was required to prove she
was employed by UCLA; her gender was a substantial motivating
reason for the constructive discharge and/or the adverse
employment action; she was harmed; and UCLA’s conduct was a
substantial factor in causing her harm. To prove she was
subjected to an adverse employment action, Dr. Pinter-Brown
had to prove UCLA took an action or engaged in a course or
pattern of conduct that, taken as a whole, materially and
adversely affected the terms, conditions, or privileges of her
employment. To prove constructive discharge, Dr. Pinter-Brown
had to prove UCLA, through its officers, directors, managing
agents or supervisory employees, intentionally created or
knowingly permitted working conditions so intolerable a
reasonable person in her position would have no reasonable
alternative except to resign.
On December 19, 2017, UCLA filed a motion in limine
seeking to exclude “me too” evidence, that is, evidence, testimony,
or reference to alleged mistreatment of employees other than Dr.
4
Pinter-Brown by UCLA, “including evidence and testimony
referencing other claims, lawsuits, investigations, complaints, or
grievances” involving UCLA or its employees. The court denied
the motion on January 16, 2018.
II. The Court’s Remarks to the Prospective Jurors
Jury trial commenced on January 29, 2018. As the
prospective jurors sat in the courtroom, the trial court stated:
“The arc of the moral universe is long. Dr. Martin Luther King
said these words in 1965. The arc of the moral universe is long,
but it bends toward justice.” The court welcomed the jurors,
saying, “[i]f you are selected as a juror in this case, your job will
be to help bend that arc toward justice.” He then told the jurors
Martin Luther King stood on the steps of the Lincoln Memorial in
1963 and gave his famous “I Have a Dream” speech. “In there,”
the court continued, “he spoke of his dream that someday we
would live in a society where people were judged by the content of
their character and not by the color of their skins.” The court
then proceeded to play a video (not part of the record on appeal)
and continued to give the prospective jurors a presentation about
various noted civil rights leaders standing up for justice
throughout history. A verbatim transcript of the court’s remarks
is attached to this opinion as Appendix A, starting on page 70.
What follows here is a summary of the court’s remarks.
The court discussed segregation, people being denied the
right to vote, and the tens of thousands of people who
demonstrated for equal rights for African-Americans in the
march from Selma to Montgomery, Alabama during the civil
rights movement. The court discussed Rosa Parks and her arrest
and conviction for sitting in the front of a bus, which led to a
widespread community response in protest. The court told the
5
jury that Parks’s attorneys filed a lawsuit that went up to the
United States Supreme Court, which held segregation on buses
illegal.
The court talked about Elizabeth Jennings, who refused to
disembark a trolley in New York City in 1854 after the driver
told her to wait for a car for non-white people. The court told the
jurors that her attorney took her case to an all-white jury, which
found the trolley car company had mistreated Jennings and
awarded her one year’s salary. The court then informed the jury
that the young attorney who represented Jennings went on to
become the President of the United States 27 years later.
The court told the jury how Susan B. Anthony voted in a
national election before women won suffrage, was arrested, and
then acquitted and ordered to pay a $100 fine. “So she stood up
in court and said she would never pay a penny of that unjust fine,
and she died 25 years later. She still hadn’t paid the fine, but
women still didn’t have the right to vote.” The court then
mentioned the first woman elected to Congress, Jeannette
Rankin, and the first demonstration in front of the White House
for women’s suffrage. “[F]inally, 1920, the next year,” the court
continued, “Congress passed the 19th Amendment. It was
ratified by the States and women gained the right to vote. That
arc is long, it does bend toward justice.”
The court then told the jury about Japanese internment
camps during World War II and Fred Korematsu, convicted for
resisting internment. The court discussed the Supreme Court’s
initial affirmance of his conviction, the eventual reversal of that
conviction, Congress’s decision to award reparations to interned
Japanese-Americans, and Ronald Reagan’s proclamation
6
apologizing for the internment. Again, the court stated, “[t]hat
arc is long, it does bend toward justice.”
The court told the jury about Dolores Huerta and Cesar
Chavez who, the court stated, “appeared . . . directly in this court
many times” and brought attention to “the plight of the poorest of
the poor here in California, the Mexican-American and Filipino-
American farm workers who were being denied their basic rights
under the law.” The court told the jury that Huerta and Chavez
sometimes appeared as plaintiffs and sometimes as defendants,
“each time seeking justice for people just like you sitting here on
a jury.”
The court told the jury about Harvey Milk, the first openly
gay public official in the United States, and his assassination by
a member of the San Francisco Board of Supervisors. “He didn’t
get to see that just . . . two and a half years ago, our Supreme
Court ruled that discrimination against gays and lesbians was
unconstitutional, that gays and lesbians, like everyone else, had
the right to marry and raise a family.”
The judge told the jury he was honored to sit before “the
people who are going to be bending that arc.” The court then
clarified: “Now, why do I talk to you about Dr. King and bending
the arc? Is the plaintiff in this case a Dr. King or a Rosa Parks or
Elizabeth Jennings? No. Is the defendant in this case a Dr. King
or Susan B. Anthony or Cesar Chavez? No. But you as jurors in
this case are going to become Dr. King. It’s going to be your job to
help bend that arc toward justice by rendering a verdict based on
the law and the evidence that you are going to be hearing in this
case.”
7
The court then concluded its presentation by reciting a
passage from Harper Lee’s To Kill a Mockingbird in which
attorney Atticus Finch tells the jury, “a court is only as sound as
its jury, and a jury is only as sound as the men and women who
make it up.” The court then swore in the members of the jury
panel. Attorneys for each party then briefly introduced
themselves to the panel and jury selection began.
After a break, UCLA requested a mistrial, noting the
court’s presentation “lauded this country’s struggle with
discrimination on the basis of a number of protected bases,
including gender, through the highlight of individuals who stood
up for themselves against others including governments and
institutions.” UCLA expressed its concern that the presentation
created a “great risk” that the prospective jurors were
“preconditioned” to a determination of the facts. “I think the
suggestion of an arc of justice,” UCLA argued, “in this particular
case, [is] not appropriate for [an] individual who’s going to argue
that she stood up against an institution and a bunch of men and
somehow she was harmed and wronged and this is her day on the
bus or in the suffragette movement, what have you.” UCLA
stated it did not believe any admonition could cure the problem,
and asked the court to pull another jury panel.
The court denied the motion. The judge stated he gives the
presentation before all the trials in his courtroom, and that
“sometimes justice is done by the jurors ruling on behalf of the
plaintiffs,” and “sometimes justice is done by the jurors ruling on
behalf of the defendants.” The judge said his presentation was a
correct statement of the law and that he did not believe the
presentation prejudiced the jury.
8
III. The Trial
Dr. Pinter-Brown argued UCLA discriminated against her
based on her gender from 2008 to 2015. During those years, she
argued, one of her colleagues continually harassed, disrespected,
and intimidated her, obstructed her ability to do clinical research,
and physically intimidated her. She argued the people to whom
she went for help behaved as sexists, refused to investigate her
complaints, and denied any of her problems were due to her
gender. Instead, she alleged, these powerful doctors framed the
issue as an interpersonal conflict between two colleagues. Dr.
Pinter-Brown argued that after she complained about the
discrimination, her superiors began to nitpick and insult her
before they ultimately suspended her research privileges,
obstructed her research trials, blamed her for mistakes that were
not her fault, removed her as Director of UCLA’s Lymphoma
Program, and then gave that title to the very man who had
harassed and intimidated her for years.
We provide an overview of the testimony and evidence
provided by both parties at trial.
A. Dr. Pinter-Brown Encounters Problems with Dr. de
Vos and Her Supervisors Do Not Help.
In June 2005, Dr. Pinter-Brown was hired by the UCLA
School of Medicine as Clinical Professor of Medicine and Director
of the Lymphoma Program in the Division of Hematology-
Oncology. At the time of her appointment to UCLA, Dr. Pinter-
Brown had built an international reputation as an expert in T-
cell lymphoma. There were two other doctors in the Lymphoma
Program: Dr. Sven de Vos and Dr. John Timmerman. Dr.
Herbert Eradat joined the Program one year later.
9
1. Dr. Pinter-Brown’s Testimony
According to Dr. Pinter-Brown, Dr. de Vos frequently called
her and came to her clinic during her first three months directing
the Lymphoma Program. Eventually, she had to tell Dr. de Vos
she was busy and did not “have time for that.” Dr. Pinter-
Brown’s relationship with Dr. de Vos then became “acrimonious.”
Dr. de Vos became “oppositional,” “disrespectful,” and disruptive
at meetings, even screaming at her a few times. Dr. de Vos
would refuse to make eye contact with Dr. Pinter-Brown, talk
over her, and interrupt her to the point where she could not
finish a sentence. At some meetings, Dr. de Vos would tap his
foot rapidly, keep looking at the clock, and stare at his phone
“like [Dr. Pinter-Brown] was wasting his time.” At one meeting,
Dr. de Vos turned his chair around so that Dr. Pinter-Brown
faced his back across the table.
Dr. de Vos would not follow the instructions Dr. Pinter-
Brown gave to the Lymphoma Program doctors to prepare for
meetings. And, although all the doctors were supposed to vote on
which clinical trials to undertake, Dr. de Vos would commit to
doing trials without clearing it with the other doctors.
Dr. de Vos started trying to humiliate Dr. Pinter-Brown at
monthly meetings that he ran for approximately 50 to 60 doctors.
Because she had so many patients, Dr. Pinter-Brown testified,
she always arrived late and would come into the meeting with
her food. As she would ascend the stairs to find a seat, Dr. de Vos
would ask, “Lauren, what do you think about this case,” even
though she had been absent during the presentation of the case.
“I’m trying to sit in a seat,” Dr. Pinter-Brown testified, “and
everybody would turn around, and it got to be kind of a running
joke. They would titter and giggle and it was humiliating. I was
10
trying to establish myself in this institution as somebody that
should be respected because I know about lymphomas, and I’m
trying to create a program with my colleagues. It was like I was
the butt of a joke.”
Dr. de Vos called her by her first name at large conferences
with doctors, but referred to male doctors by their doctor title and
last name. Dr. de Vos did not behave with male doctors the way
he behaved with her. Instead, he was “totally engaged” with the
other doctors in the Lymphoma Program, and would look them in
the eye when he spoke with them. Dr. de Vos was “deferential”
and “ingratiating” with Dr. Dennis Slamon, and Dr. John Glaspy,
the Chief and Assistant Chief, respectively, of the Division of
Hematology and Oncology.
Approximately 18 months into her directorship, Dr. Pinter-
Brown complained to Drs. Slamon and Glaspy about Dr. de Vos.
She told them he was harassing her, repeatedly challenging her
authority, and interfering with her ability to lead the Lymphoma
Program. In a meeting with Dr. Glaspy, she offered to resign
from the directorship or to break off from the group and work on
T-cell lymphoma on her own, but he dissuaded her. He also told
her it was not her job to “boss the guys around.” Both Dr. Glaspy
and Dr. Slamon told her if she were a better leader, Dr. de Vos
would not act the way he did.
In early 2011, six years into her directorship, Dr. Pinter-
Brown came into the lymphoma clinic and proceeded to sit at an
open desk to work on some charts. Dr. de Vos, who was sitting
nearby, turned to her and said, “You can’t sit there. I want the
fellow to sit there.” This alarmed Dr. Pinter-Brown because she
was the Director of the Lymphoma Program. This behavior was
“very unusual” because academic medicine is “a little, tiny bit
11
like the military,” in where members are expected to act
according to rank. She could not imagine herself, she testified,
asking an attending physician or faculty member to get up for a
fellow to sit down.
In March 2011, Dr. Pinter-Brown noticed that somebody
was putting her stacks of patient charts, which she placed on a
desk in a small office of the clinic, on the floor in a different order.
Because Dr. Pinter-Brown had back problems, she would have to
ask for help picking up the charts from the floor. After asking
the other doctors whether they moved her charts, Dr. Pinter-
Brown deduced Dr. de Vos had been moving her charts to the
floor. Dr. Pinter-Brown approached Dr. de Vos one day in the
small clinic office and asked why he was moving her charts. He
replied he needed to use the desk where she placed the charts to
set up a printer. Then, Dr. de Vos suddenly whipped around in
his chair, pointed his finger in her face, and aggressively
questioned her about whether she completed a physical exam on
a trial patient. After Dr. de Vos turned his back to her, Dr.
Pinter-Brown decided she wanted to leave the room. She picked
up her purse and tapped Dr. de Vos’s shoulder to let him know
she was leaving. Dr. de Vos then stood up with his mouth and
fists clenched in a “menacing position” and said, “don’t touch me
like that.” Dr. Pinter-Brown then said, “this is the last time you
are going to harass me,” and ran out of the office.
Dr. Pinter-Brown then called Ms. Sherri Simpson, a senior
administrative analyst at the Department of Medicine and asked
for advice on how to handle a situation she found “increasingly
hostile.” Ms. Simpson suggested Dr. Pinter-Brown contact Dr.
Slamon or Dr. Glaspy. Dr. Pinter-Brown spoke with Dr. Glaspy,
who asked her if she wanted to break off from the group and
12
work on T- and B-cell lymphoma on her own. She explained that
option was no longer viable because she had become nationally
known in her field and did not feel she should have to take on a
lesser job because of the situation. Dr. Glaspy referred Dr.
Pinter-Brown to Dr. Jan Tillisch, whom Dr. Glaspy identified as a
Title IX officer. Dr. Tillisch told Dr. Pinter-Brown to stay away
from Dr. de Vos, and he set up a meeting with her for five to six
days later.
In the meantime, Dr. Pinter-Brown wrote a statement
detailing her history with Dr. de Vos and emailed it to Dr.
Tillisch. Dr. Pinter-Brown laid out the above-described
complaints, admitted that sometimes their discussions at
program meetings were “quite heated,” and stated she abruptly
discontinued meetings several times when she thought the
discussion was out of control. Dr. Pinter-Brown concluded the
statement by saying she felt her situation was “pervasive, . . .
chronic, recurring and cumulative, culminating in an episode that
made me feel that I was in an increasingly hostile work
environment and in a situation where I felt fearful and unsafe.”
Dr. Pinter-Brown stated she had to work for six years with a
colleague from whom she perceived “a pattern of intimidation
[and] opposition,” in which she was “demeaned and not treated in
a collegial manner.”
When she arrived at the meeting with Dr. Tillisch, he told
her she had a reputation as an “angry woman.” Dr. Tillisch
related to Dr. Pinter-Brown an incident where they had a patient
in common and Dr. Tillisch had not liked “what [she was] doing”
with the patient. Dr. Tillisch told Dr. Pinter-Brown she did not
acknowledge him, appeared to not know who he was, and treated
him “like a medical student.” Dr. Pinter-Brown clarified that she
13
did know who he was because she lived across the street from
him at some point in the past. She offered some details about
their families, indicating she knew who he was. Dr. Tillisch then
“chang[ed] his tune,” and stated, “[w]ell, you’re right. If you were
a man, we would just say your behavior is assertive.” Dr. Tillisch
then told her his daughter was a physician at UCLA and faced
discrimination there. “He understood that it’s hard to be a
woman.” Dr. Pinter-Brown further testified Dr. Tillisch told her
male doctors referred to his daughter by her first name, but
referred to male physicians by their doctor title.
Dr. Pinter-Brown then asked Dr. Tillisch to put her in
touch with two female physicians if he felt she did not know how
to handle herself, in the hope they could show her how to do “a
better job.” At the end of the meeting, Dr. Tillisch again told Dr.
Pinter-Brown to stay away from Dr. de Vos. When Dr. Pinter-
Brown stated that was not a good idea since they worked
together, Dr. Tillisch told her he would speak more with Dr.
Glaspy and Dr. Slamon and try to develop a better solution. At
some point during the meeting, Dr. Tillisch took Dr. Pinter-
Brown’s written statement, dropped it into the bottom drawer of
his desk, said “no one needs to know about this,” and closed the
drawer.
After 10 days had passed without hearing from Dr. Tillisch,
Dr. Pinter-Brown called him. He did not return her call. She
eventually had two more brief meetings with Dr. Tillisch. He
ultimately told her there was no solution to the situation, and she
should keep avoiding Dr. de Vos. At some point during her
communications with him, Dr. Tillisch told Dr. Pinter-Brown,
“Just because you’re a diva doesn’t mean you can act like one.”
Dr. Pinter-Brown attempted to avoid Dr. de Vos as much as
14
possible from that point on, but he continued to “give [her]
attitude” and “rage” on occasions when they did interact. Dr.
Pinter-Brown stated Dr. de Vos would “parade past [her] area” in
the clinic even though there was a shorter way to get where he
was going and ask her questions while she was in the middle of
seeing patients.
Dr. Tillisch did not do anything to help resolve her
problems with Dr. de Vos. Dr. Pinter-Brown complained again to
Dr. Glaspy and Dr. Slamon, but they “shut [her] down.” At a
salary negotiation meeting, for example, Dr. Pinter-Brown told
Dr. Slamon: “I don’t think you understand. I’ve worked for the
County of Los Angeles for 25 years. I saw murderers in the jail
ward. I know what people look like when they are out of control.
And I am very hard to intimidate. When I tell you that I was
frightened, I really mean it.” Presumably, Dr. Pinter-Brown was
referring to the March 2011 incident in the small office with Dr.
de Vos. Dr. Pinter-Brown tried multiple times to get Dr. Slamon
to take her seriously. During one conversation, Dr. Slamon told
Dr. Pinter-Brown, “I don’t need to hear this story from you. I
already heard it from de Vos. Sometimes I am in meetings where
people don’t like me and I don’t like them and you just have to
suck it up.”
Dr. Pinter-Brown testified that in at least half of her
annual salary negotiation meetings, and in additional individual
meetings, she told both Dr. Glaspy and Dr. Slamon that she felt
harassed by Dr. de Vos. At one of the meetings, Dr. Glaspy told
Dr. Pinter-Brown, “Everyone hates you.” Dr. Slamon told Dr.
Pinter-Brown she was not a team player and, without
investigating the issue first, accused her of not putting patients
on other people’s protocols. When Dr. Pinter-Brown asked Dr.
15
Slamon whether he could substantiate the claim she was not
putting patients on other physicians’ protocols, Dr. Slamon
replied, “No, but we are going to, and if I find out that you are not
putting people in other people’s protocols, I will isolate you.” Dr.
Slamon also criticized Dr. Pinter-Brown’s leadership skills and
told her that if she were a better leader, “Dr. de Vos wouldn’t act
up that way.”2
Having no success with Dr. Slamon or Dr. Glaspy, Chief
and Assistant Chief of her division, Dr. Pinter-Brown approached
Dr. Jonathan Hiatt, Dean of Faculty. The problems were still
occurring with Dr. de Vos and staying away from him was not
tenable for her. When she and Dr. Hiatt met in March 2012, Dr.
Hiatt told her she came to the right person and he would do
everything he could to help her. Dr. Pinter-Brown told Dr. Hiatt
it was ironic Dr. Tillisch, a Title IX investigator, made sexist
comments calling her an angry woman and a diva, and telling her
she would be treated differently if she were a man. Dr. Hiatt
stated the first step was for him to call Dr. Fogelman, Chief of
Medicine. At some point thereafter, Dr. Hiatt told Dr. Pinter-
Brown he had spoken to Dr. Fogelman, who stated he would start
an investigation.
In June 2012, Dr. Tillisch notified Dr. Pinter-Brown he had
scheduled a meeting for her with two female faculty: Dr. Currier
and Dr. Pregler. Dr. Pinter-Brown again sent Dr. Tillisch the
2 Dr. Pinter-Brown provided conflicting testimony about the
date of this interaction with Dr. Slamon. Early in trial, she
testified this interaction took place in the last 18 months before
she left UCLA in December 2015. Toward the end of trial,
however, she testified this occurred during a 2011 salary
negotiation meeting.
16
statement she prepared for her first meeting with him, along
with a follow-up about what had occurred in the meantime, and
asked Dr. Tillisch to pass the statements along to those who
would be at the meeting so they would understand her concerns.
When Dr. Pinter-Brown arrived at the meeting, Dr. Currier and
Dr. Pregler said they had received no statements. Dr. Pregler
suggested Dr. Pinter-Brown contact the ombudsman about her
concerns with Dr. de Vos in part to determine whether the
ombudsman had received similar complaints from others about
Dr. de Vos. Dr. Pinter-Brown replied she would be surprised if
anybody else at UCLA would go through the process of trying to
get help because it was so “demeaning and hurtful.” Dr. Tillisch
told everyone at the meeting not to call the ombudsman. He
asked Dr. Pinter-Brown to leave while he and the other two
doctors discussed the issue. Dr. Pinter-Brown followed up twice
in the coming weeks to inquire about the investigation. Dr.
Tillisch told her if she “really wanted to know, the bottom line”
was Dr. Slamon should have told Dr. Pinter-Brown what her
duties were as the director.
2. Ms. Sherri Simpson’s Testimony
Sherri Simpson worked at the UCLA Medical School for
approximately 40 years and retired in 2013. Ms. Simpson was
the administrator of a fellowship program and handled faculty
salaries. She was present at Dr. Pinter-Brown’s yearly reviews
and salary negotiation meetings. Also present were Dr. Slamon
and Dr. Glaspy. Dr. Pinter-Brown was consistently lauded as an
outstanding doctor. She had earned an international reputation
as a leader in the field of lymphoma.
As the years went by, Ms. Simpson heard Dr. Pinter-Brown
raise concerns in her review and salary negotiation meetings
17
about harassment by Dr. de Vos. Ms. Simpson described her own
early interactions with Dr. de Vos, before Dr. Pinter-Brown joined
UCLA, as unpleasant. He was very forceful and wanted Ms.
Simpson to support his view of how his salary should be handled.
Ms. Simpson felt he was misogynistic and expected women to be
submissive to men. Ms. Simpson heard Dr. Pinter-Brown raise
similar concerns about how Dr. de Vos treated her, specifically
that Dr. de Vos was “ignoring her directives” and her
“supervisory authority,” and was “undermining her work.”
According to Ms. Simpson, Dr. Slamon and Dr. Glaspy told Dr.
Pinter-Brown they would talk to Dr. de Vos and take care of the
problem, but they never did anything. Ultimately, Ms. Simpson
testified, she saw Dr. Glaspy and Dr. Slamon fail Dr. Pinter-
Brown in preventing the discrimination and harassment she
faced.
Ms. Simpson observed Dr. Slamon and Dr. Glaspy
reprimand Dr. de Vos, telling him, “you have to cut out this shit.”
Dr. de Vos did not seem to take the admonishment seriously and
maintained an attitude that he would do what he wanted. Ms.
Simpson also observed Dr. de Vos behaving obsequiously toward
Dr. Slamon and Dr. Glaspy in salary negotiation meetings, which
she found inappropriate.
Ms. Simpson believed Dr. de Vos’s sexism had something to
do with the fact that he is German. She testified she is German
and some of her male relatives do not think women belong in the
work force and should be submissive to men. Dr. de Vos, she
testified, had a similar manner about him. Ultimately, Ms.
Simpson came to like Dr. de Vos despite her early unpleasant
interactions with him. By the time she left UCLA in 2013, he
had changed his behavior, for which she was grateful.
18
Ms. Simpson described Dr. Slamon as a “very, very nice
man” who “made all of the people in the administration offices
feel like they were part of something.” She also testified she had
a high opinion of Dr. Glaspy, whom she described as very nice.
Ms. Simpson also stated she was on a first-name basis with all
the doctors in the Hematology and Oncology Division.
3. Dr. Glaspy’s Testimony
Dr. Glaspy, Assistant Chief of the Hematology and Oncology
Division, testified that the Lymphoma Program’s directorship
was a responsibility rather than a power. Dr. Glaspy stated the
director’s job is to organize the group’s meetings, oversee the
business of the clinical research, and help the group decide which
clinical protocols to undertake, which requires a consensus
among the group’s doctors.
Dr. Glaspy testified Dr. de Vos and Dr. Pinter-Brown
frequently complained to him about each another. Although
there were periods when everything seemed fine, there were also
times they each complained the other was disrespectful and
hostile. Dr. Glaspy testified Dr. Pinter-Brown complained about
Dr. de Vos looking at his cell phone or turning his chair around at
meetings and Dr. de Vos complained Dr. Pinter-Brown would not
approve his protocols.
Dr. Glaspy testified Dr. Pinter-Brown complained about Dr.
de Vos two to three times between 2008 and 2012. Dr. Glaspy
communicated Dr. Pinter-Brown’s complaints to Dr. de Vos as of
February 2011. Dr. Glaspy stated Dr. Pinter-Brown told him
about the March 2011 incident in which Dr. de Vos yelled at her.
He believed it was Dr. Pinter-Brown who mentioned Title IX. Dr.
Glaspy asked if she wanted to pursue her complaint as a Title IX
issue and referred her to Dr. Tillisch. Dr. Glaspy learned both
19
Dr. de Vos and Dr. Pinter-Brown had been in contact with Dr.
Tillisch, so he did not investigate the issue any further. In his
view, Dr. Pinter-Brown and Dr. de Vos simply did not get along.
Dr. Glaspy testified Dr. Pinter-Brown also complained to
him about two other male faculty members at UCLA. She
complained one of the doctors was disrespectful; when Dr. Glaspy
spoke to the doctor, the doctor stated Dr. Pinter-Brown had been
disrespectful and dismissive of him. Dr. Pinter-Brown also
complained about another male doctor who was “gruff.” The
other doctor said the same about Dr. Pinter-Brown. Dr. Glaspy
stated she and the other doctor did not have a collegial
relationship.
4. Dr. Slamon’s Testimony
Dr. Slamon, Chief of the Division, also testified about the
nature of the directorship of the Lymphoma Program. He stated
Dr. de Vos was not Dr. Pinter-Brown’s subordinate, even though
Dr. Pinter-Brown led the program. Dr. Slamon stated directors
serve the group, the group does not report to them, and directors
do not have the authority to decide the direction of the program.
Nor is the director supposed to give orders to the members of the
group. Rather, the director organizes group meetings, engages
the group, and facilitates group discussions about what direction
the program should take. The director does not have the
authority to tell the group members what to do or give them
orders. “This is not a military organization,” Dr. Slamon
testified; rather, the group was instructed to make decisions by
consensus.
Dr. Slamon testified he did not recall Dr. Pinter-Brown
using the word “harassment” or characterizing her problems with
Dr. de Vos as gender-specific when she complained about Dr. de
20
Vos. Dr. Pinter-Brown and Dr. de Vos had a very poor
relationship and he admonished both of them individually. Dr.
Slamon was very disappointed with their behavior. “I found that
I had two faculty members,” Dr. Slamon testified, “highly-paid,
highly-educated faculty members who were behaving like
preschoolers.” Dr. Slamon stated he confirmed with other
members of the Lymphoma Program that Dr. Pinter-Brown
displayed the same behaviors as Dr. de Vos: she was
argumentative and behaved inappropriately in making program
decisions. After the group would reach a consensus about one of
Dr. de Vos’s proposed trials, for example, she would continue to
argue his ideas were not valid. Other members of the group
approached Dr. Slamon and told him this made them
uncomfortable.
Dr. Slamon also testified he calls all his faculty by their
first name and asks them to call him by his first name.
5. Dr. Timmerman’s Testimony
Dr. Timmerman, a member of the Lymphoma Program,
testified Dr. Pinter-Brown and Dr. de Vos did not get along. He
stated they often bickered and contradicted each other, which
was disruptive to the functioning of the group. Dr. Timmerman
also corroborated Dr. Glaspy’s and Dr. Slamon’s testimony that
the director of the Lymphoma Program is not in a supervisory
position over the other members of the group. Each doctor
functions individually and the director’s role is to facilitate the
administrative details that help the group run smoothly and help
faculty members reach their goals. Being a director is a “loose”
title; there is no hierarchy within the Lymphoma Program. Dr.
Timmerman also noted although Dr. Pinter-Brown was a great
clinician and doctor, the administrative role was not her “forte.”
21
6. Dr. de Vos’s Testimony
Dr. de Vos testified that, about a year into her directorship,
Dr. Pinter-Brown began opposing trials he would try to bring into
the Lymphoma Program. They had heated discussions when
they disagreed, he would become irritated at the tone of the
discussions, and it became known they did not like each other.
Dr. de Vos complained to Dr. Glaspy, Dr. Slamon, and another
doctor that he was irritated with Dr. Pinter-Brown’s efforts to
stop him from doing the trials he wished to undertake.
7. Dr. Hiatt’s Testimony
Dr. Hiatt, Dean of Faculty, testified he met with Dr. Pinter-
Brown once, had several telephone conversations with her, and
had an extended email exchange with her over a period of
months. Over the course of these communications, Dr. Hiatt
stated, she never alleged harassment, discrimination, or
retaliation to him directly. He did acknowledge that according to
his notes from his face-to-face meeting with Dr. Pinter-Brown,
Dr. Pinter-Brown told him Dr. Tillisch had admitted there were
“different standard[s] for a man regarding behavior.” Dr. Hiatt
also testified Dr. Tillisch was not a Title IX officer but became
aware that some people in the Department thought he was.
Dr. Hiatt was asked why he did not refer Dr. Pinter-Brown
to the true Title IX officer, knowing Dr. Tillisch told Dr. Pinter-
Brown there were different standards for men and woman. He
reiterated Dr. Pinter-Brown did not frame her issues as gender-
specific and stated he did not know at the time that Dr. Pinter-
Brown was told Dr. Tillisch was a Title IX officer. Dr. Hiatt
testified Dr. Pinter-Brown’s chief complaint was that she was
being retaliated against for complaining about Dr. de Vos in
2011.
22
8. Dr. Pregler’s Testimony
Dr. Pregler testified Dr. Tillisch reached out to her and
another senior female faculty member, Dr. Currier, to help him
evaluate Dr. Pinter-Brown’s issues. Dr. Pregler stated the
normal procedure would have been for Dr. Tillisch to complete
the investigation himself and move forward with a decision.
Since this issue involved a female faculty member, however, Dr.
Tillisch thought speaking with senior female faculty members
would help Dr. Pinter-Brown express any gender-related
concerns.
Dr. Pregler testified she and Dr. Currier met with Dr.
Pinter-Brown for approximately one hour. Exhibits indicate the
meeting occurred sometime between March 2011 and July 12,
2012. After Dr. Pinter-Brown described her concerns, Dr. Pregler
asked her specifically whether she felt any of it was related to her
gender, and whether she thought her concerns should be taken
outside the department to the ombudsman, who dealt with
gender discrimination issues. Dr. Pregler recalled very clearly
that Dr. Pinter-Brown said she did not feel her issues were
related to gender, things were improving, and she did not feel
that reaching out to the ombudsman “regarding gender issues
was appropriate or something that she wanted to do.” Dr.
Pregler left the meeting believing Dr. Pinter-Brown was not
concerned she was being treated differently because she was a
woman.
Dr. Pregler testified she was aware Dr. Pinter-Brown had
felt physically intimidated by Dr. de Vos, which was why she
pressed Dr. Pinter-Brown on the gender issue to make sure she
did not want to go to the ombudsman. Dr. Pregler also stated
when she went to the meeting, she was “very open to the
23
possibility” that Dr. Pinter-Brown’s complaints could be gender
related because throughout her career she felt strongly about
fighting gender discrimination. Dr. Pregler testified she
respected Dr. Pinter-Brown as a colleague and accepted as true
Dr. Pinter-Brown’s statements that the issues with Dr. de Vos
were not related to her gender.
9. Ms. Venegas’s Testimony
Ms. Yanina Venegas was the Assistant Director of the
Division of Hematology and Oncology, responsible for all
administrative and financial matters. She worked directly under
the Chief Operating Officer of UC Health. Ms. Venegas attended
all of Dr. Pinter-Brown’s salary negotiation meetings, along with
Ms. Simpson. When asked whether Dr. Pinter-Brown ever
claimed that she was being harassed by Dr. de Vos, Ms. Venegas
replied, “Absolutely not.” She recalls discussions about
disagreements the two doctors had about clinical studies, but
never got the impression Dr. Pinter-Brown felt she was a target
of discrimination. Had Dr. Pinter-Brown made such a claim, Ms.
Venegas testified, “that is something that we would have
addressed immediately.”
B. UCLA’s Oversight of Dr. Pinter-Brown’s Research
Most of the meetings and events described above occurred
no later than the end of 2012. Dr. Pinter-Brown argued at trial
that UCLA retaliated against her for complaining about Dr. de
Vos by subjecting her to audits of her clinical trials, which
ultimately led to the temporary suspension of her research
privileges and the loss of her title as Director of the Lymphoma
Program. UCLA countered Dr. Pinter-Brown’s allegation by
presenting evidence of what it considered significant, ongoing
24
problems with Dr. Pinter-Brown’s research and clinical trial
activities.
1. How UCLA Oversees and Monitors Clinical Trials
Before discussing the evidence presented at trial about the
audits of Dr. Pinter-Brown’s clinical trials and the resulting
consequences, an overview of the process by which UCLA
monitors its clinical trials is warranted.
As part of its health campus, UCLA has a Jonsson
Comprehensive Cancer Center (Cancer Center). The doctors at
the Cancer Center conduct clinical trials. A clinical trial is a
research study that explores whether a new medication is safe
and effective for humans. It is led by a “principal investigator”
who is responsible for everything that happens as part of the
study. Clinical trials are closely controlled as they are
experiments, which often involve a treatment that is new and
unproven. For each clinical trial, a “protocol” is established
which must be strictly adhered to. The protocol establishes a
plan for treating participants safely, including exacting detail
about the amount of medication to be administered and
instructions for adjusting the dosage where necessary. If “serious
adverse events” occur, the protocol typically requires the
principal investigator to report the event to the trial sponsor
within 24 hours.
A quality assurance team within the Cancer Center
monitors and audits the Lymphoma Program’s clinical trials.
Monitoring of clinical trials by the quality assurance team
happens in real time; as the trial is progressing, the team looks
at the data, compares it to the research protocol to make sure
everything is on track, and makes sure there are no deficiencies.
Each trial has its own schedule to determine how often the trial
25
is monitored. There should be no significant deviations from the
protocol because the resulting data would be meaningless.
Monitoring reports are generated and given to the principal
investigators of the trials, who are expected to resolve any issues
by the time of the yearly audit.
Audits are a routine part of clinical trial research, and their
purpose is to identify potential mistakes and problems. Audits
occur yearly. The ultimate goals are patient safety and data
integrity. Audits are also conducted to make sure the FDA does
not find significant issues with the conduct of clinical trials
because if it does, it can bar an investigator from doing research.
The FDA can also put a hold on the entire institution and bar the
institution from conducting more trials.
If there are issues identified in monitoring reports that are
not resolved by the time of the yearly audit, a clinical monitor
will sit down with the principal investigator, go through all the
findings, and give the investigator time to resolve the problems.
Anything that is not resolved by the end of the audit then gets
put into an audit report. The report is sent to the principal
investigator, who is expected to address point by point each issue
not resolved by the time of the audit.
UCLA has two committees responsible for oversight of
different aspects of clinical trials. For clinical trials initiated by a
faculty member and not sponsored by a pharmaceutical company
(which sends its own monitors), these monitoring and auditing
activities are overseen by UCLA’s Data and Safety Monitoring
Board (DSMB). The DSMB oversees the data acquisition in
clinical trials with a focus on patient safety. The DSMB meets
regularly to process “adverse event” notifications – the disclosure
that a principal investigator must file for each event (such as a
26
side effect) involving patient safety. It also reviews audit
problems and ensures principal investigators respond to them.
During the period at issue here, the DSMB consisted of about
20 doctors, nurses, statisticians, and administrators. Dr. de Vos
had been Chair of the DSMB since 2007.
The second committee is the Internal Scientific Peer
Review Committee (ISPRC), set up by a mandate from the
National Institutes of Health to closely review protocols for all
clinical trials funded through a federal cancer center grant. It
approves clinical studies and controls faculty research privileges.
The ISPRC ensures the protocols make sense mathematically and
patient risk is kept to a minimum. The ISPRC has at least
10 members representing various divisions within the
Department of Medicine. It has broad representation from all
the clinical departments that treat cancer. Between 2010 and
2012, it had about 20 members.
Audit reports are sent to the DSMB and the ISPRC; the
reports list where a researcher fell short. There are always
deficiencies and discrepancies found in clinical trial audits. One
of the most important issues is how the principal investigator
responds to the identified issues. When the ISPRC receives audit
reports, it looks for whether there are repeated problems that
were identified in the past but are not resolving. The ISPRC
then decides whether more action is necessary. Sometimes the
ISPRC will assign a proctor to a researcher who is repeatedly
making the same mistakes; other times it may suspend a faculty
member’s research privileges.
27
2. Audits of Dr. Pinter-Brown’s Clinical Trials,
Temporary Suspension of Her Research Privileges,
and Loss of Her Title as Director of the Lymphoma
Program
Dr. Sujna Raval-Fernandes oversaw clinical trials for the
Cancer Center from 2007 to 2017 and conducted numerous audits
of Dr. Pinter-Brown’s trials. She testified there were no concerns
about the audits of Dr. Pinter-Brown’s trials prior to 2010. In
2008, for example, Dr. Raval-Fernandes found significant issues
with one of Dr. Pinter-Brown’s trials, but Dr. Pinter-Brown
adequately addressed the issues.
Dr. Meghan Brennan, Director of Research in the Clinical
Research Unit, testified that in December 2010, UCLA began to
have concerns about Dr. Pinter-Brown’s clinical trials. Dr. Judy
Gasson and Robert Duwors, Director and Deputy Director,
respectively, of the Cancer Center, recommended that the ISPRC
review Dr. Pinter-Brown’s audits. Among the concerns were Dr.
Pinter-Brown was “extraordinarily delayed” in responding to
serious questions about medication dosages, and her response to
their question about a dose reduction was nonsensical. Another
serious concern was that Dr. Pinter-Brown had instructed her
staff not to wait for insurance authorization before seeing a
patient which, as discussed further below, is a serious violation of
UCLA policy.3
3 The record includes an email Dr. Pinter-Brown sent to her
staff on November 10, 2011, which includes the following
sentence: “PLEASE DO NOT WAIT FOR INSURANCE
AUTHORIZATION . . . I will see the patient for free.”
28
On February 1, 2011, the DSMB convened a meeting and
discussed, among other things, Dr. Pinter-Brown’s October 27,
2010 response to an audit of one of her clinical trials. The DSMB
concluded it needed more information about a medication dose
reduction that was done contrary to protocol because Dr. Pinter-
Brown’s initial response was unclear, conflicting, and incomplete.
The DSMB also indicated it wanted Dr. Pinter-Brown to provide
assurances that she reported the violations to UCLA’s
institutional review board.
Dr. Raval-Fernandes was at the DSMB’s February 1, 2011
meeting. She testified she had conducted the audit under review
at the meeting and found treatment delays and drug dose
reductions contrary to protocol. She stated a change in drug
dosage contrary to the study’s protocol is very significant because
it compromises both patient safety and data integrity. Dr. Raval-
Fernandes presented her findings about the September 2010
study to the ISPRC because there were “major issues” with the
clinical trial that Dr. Pinter-Brown did not adequately address.
Dr. de Vos testified he was at the meeting, but would have
recused himself during the discussion of Dr. Pinter-Brown’s
audits. Dr. Glaspy also testified Dr. de Vos would have been
excluded from the room during this discussion because, as a
member of the Lymphoma Program, he would have been
considered a co-investigator or “sub” principal investigator. Dr.
Raval-Fernandes testified she recalled Dr. de Vos was present
throughout the entire meeting.
Terra Hughes, Administrative Director of the Cancer
Center, drafted a letter from the DSMB to Dr. Pinter-Brown
asking her to respond to these concerns and provide additional
information. Her initial draft of the letter included Dr. de Vos’s
29
electronic signature, and she sent it to him for his approval on
February 4, 2011 at 9:22 a.m. At 9:36 a.m., she sent a revised
version of the letter to Dr. Glaspy, which contained his electronic
signature in place of Dr. de Vos’s. In her email to Dr. Glaspy, she
stated she was asking Dr. Glaspy to sign the letter since Dr. de
Vos was “a conflict on the study” and Dr. de Vos felt he should
not sign the letter.
On February 9, 2011, Dr. Robert Elashoff, Chair of the
ISPRC, wrote a letter to Dr. Pinter-Brown informing her it had
convened a meeting on February 1, 2011 and reviewed her
clinical research history, including audit and monitoring reports.
The committee “expressed concern regarding patterns of
violations and missing regulatory documents in [her] clinical
trials” overseen by the DSMB. Dr. Elashoff informed her that
because of these concerns, the ISPRC requested additional audits
of two of her trials not overseen by the DSMB.
On February 11, 2011, Dr. Raval-Fernandes followed up
with Dr. Pinter-Brown about the audit the DSMB discussed at its
February 1, 2011 meeting involving unauthorized drug dose
reductions and inadequate responses. Dr. Raval-Fernandes
testified it took Dr. Pinter-Brown over four months to respond.
And, Dr. Pinter-Brown’s responses to the dose reduction issue
were contradictory and did not make sense. Additionally, Dr.
Pinter-Brown attributed some of the dose reductions to a
misunderstanding on the part of the study coordinator—an
unsatisfactory response because the principal investigator is
expected to take responsibility for patients receiving the study
drugs. Overall, therefore, Dr. Raval-Fernandes found Dr. Pinter-
Brown’s responses unsatisfactory.
30
In July 2011, the ISPRC determined Dr. Pinter-Brown’s
research conduct as a principal investigator was “lacking with
regards to oversight and management.” Specifically, the ISPRC
found continuing problems with informed consent and Dr. Pinter-
Brown’s “incomplete and unclear” responses to the audit findings.
As a result, the ISPRC assigned Dr. Pinter-Brown a mentor to
provide her with guidance, support, and re-training for six
months.
On January 12, 2012, the ISPRC wrote Dr. Pinter-Brown a
letter documenting its concerns about an audit of another one of
her clinical trials. Dr. Pinter-Brown had blamed delayed study
visits and evaluations on “insurance issues.” The ISPRC warned
her it was a “major violation” for a researcher to register a
patient for a study without insurance because doing so could
impede the patient’s “unfettered access to physicians and
treatments for medical problems that arise while on clinical
trials.” The ISPRC also told Dr. Pinter-Brown her responses
regarding another patient were “very concerning” because she
placed blame for a protocol deviation on her subordinate research
staff. “It is a fundamental principle regulating clinical research
that the investigator is ultimately responsible for all study
procedures and adherence to protocol in all its respects,” stated
the letter. The ISPRC further explained attributing a deficiency
to subordinate staff “in effect means that you failed to provide
adequate oversight of study personnel on this patient.” The
ISPRC went on to admonish Dr. Pinter-Brown that: “This
principle of investigator responsibility has been made clear, in
writing to all . . . investigators, including yourself in the past.
This breach of your duty to supervise and your apparent failure
to understand that it is your duty, is especially disconcerting,
31
given that it occurred during a period in which you were already
on probation for prior breaches of investigator duty, with
oversight for consent procedures by another faculty member.”
The ISPRC asked Dr. Pinter-Brown for a “detailed action plan” to
ensure the deficiencies noted during the audit will not recur. “In
crafting your response,” the letter stated, “be aware that the
committee believes that there are safety issues for patients
arising out of these most recent violations and seeks to be
convinced that protocols you supervise will be rigorously
followed.”
Dr. Pinter-Brown was mentored for six months. On
January 24, 2012, about two weeks after the ISPRC letter
requesting a “detailed action plan,” Dr. Pinter-Brown’s assigned
mentor, Dr. Bartoaz Chmielowski, submitted a detailed report to
the ISPRC documenting his oversight of her research activities.
He concluded she proved she would be a “skilled and responsible
principal investigator.” Dr. Chmielowski indicated Dr. Pinter-
Brown went through a thorough consenting process with the
patients, maintained complete notes, regularly communicated
with staff, and addressed problems as they arose. He
recommended the ISPRC allow Dr. Pinter-Brown to research
independently without a mentor.
One month later, in February 2012, ISRPC found an
additional problem with a clinical trial for a pharmaceutical
company. A serious adverse event occurred with one of the
patients in a Pfizer study and Dr. Pinter-Brown failed to report it
within the required 24 hours. On February 24, 2012, Dr. Pinter-
Brown was told she needed to report the adverse event within the
required time-frame; she submitted an incomplete report three
business days later. The full report was not submitted to Pfizer
32
until March 29, 2012. The company therefore “shut down” the
trial.
On April 3, 2012, the ISPRC met with Dr. Pinter-Brown.
She explained she had written up the adverse event form
promptly and took pains to make sure it was accurate. She
stated it had taken three days to finish the report. She stated
she had given the report to her staff to submit and did not know
it had been submitted so late. Dr. Glaspy therefore read the
paragraph from the ISPRC’s January 12, 2012 letter (discussed
above) detailing the importance of a principal investigator being
accountable and taking personal responsibility for protocol
deviations rather than blaming subordinate staff.
Dr. Glaspy then asked Dr. Pinter-Brown whether there had
been significant protocol violations in her studies; she
acknowledged there were, but disagreed any had occurred since
she completed her mentoring. Additionally, the minutes from the
meeting reveal the ISPRC and Dr. Pinter-Brown could not agree
on whether her failure to ascertain whether the adverse event
report had been submitted timely constituted a breach on her
part. Finally, at the April 3, 2012 meeting Dr. Pinter-Brown
stated it was “not clear” from the January 12, 2012 letter that she
was expected to provide the committee with a detailed corrective
action plan. She apparently felt there was “room for reasonable
minds to differ” about the meaning of a paragraph in the letter in
which the following sentence appears: “In your response to this
letter, please provide a detailed action plan for ensuring that the
deficiencies noted during the audit will not recur in the future
and that you understand and accept that you are personally
responsible for the execution of your studies.”
33
Dr. Sara Hurvitz, a breast cancer physician at UCLA, is a
voting member of the ISPRC and was present at the April 3, 2012
meeting. She testified that early in her career, she had a lot of
problems with a clinical trial on which she was the principal
investigator. She discovered multiple protocol deviations and
was called in to the ISPRC. She was expected to explain herself
at the meeting. She asked for guidance from more experienced
physicians, began a clinical research course, changed her
behavior, and was ultimately asked to sit on the ISPRC. She also
began training new physicians and retraining more seasoned
investigators who ran into the types of problems she did.
Dr. Hurvitz testified that, in preparation for the April 3,
2012 meeting, she learned Dr. Pinter-Brown had repeated
mistakes in executing the protocols on her trials and there was
not an action plan to correct the problems. Despite being given
multiple chances—she had at least seven audits and a
mentorship—Dr. Pinter-Brown’s patient care in clinical trials
was still “alarming,” particularly because Dr. Pinter-Brown did
not report the significant adverse event to Pfizer and to UCLA’s
ethics committee in a timely manner.
Dr. Brennan was also present at the April 3, 2012 meeting.
She testified Dr. Pinter-Brown was not honest at the meeting
about what transpired with respect to the adverse event. Dr.
Brennan testified that although Dr. Pinter-Brown told the
committee the adverse event had been reported, Dr. Pinter-
Brown had actually told Dr. Brennan she did not believe the
event needed to be reported so she did not report it. According to
Dr. Brennan, Dr. Pinter-Brown gave a “variety of responses that
were not . . . consistent.”
34
There were eight doctors at the April 3, 2012 meeting, not
including Dr. Pinter-Brown. At the end of the meeting, Dr.
Pinter-Brown was asked to leave the room so the committee could
vote on how to proceed. Dr. Brennan had to leave the meeting at
this point, so she did not cast a vote. The remaining seven
committee members were offered three options: (1) restore Dr.
Pinter-Brown to unsupervised principal investigator status;
(2) provide Dr. Pinter-Brown with six more months of proctoring
and only allow her to be involved as an investigator in clinical
trials; and (3) revoke Dr. Pinter-Brown’s privileges to participate
in any clinical trials for at least one year, allowing her to do
extensive training on research methods and reapply for privileges
in the future. None of the members voted for the first option.
Four members voted for the second option, and three voted for
the third.
Dr. Glaspy prepared the minutes of the meeting and sent
them to Dr. Brennan and other members of the ISPRC. In his
email to Dr. Brennan, he wrote: “Vote was 4 for purgatory, 3 for
hell. Both Bob E [Robert Elashoff, ISPRC Chair] and I voted for
the death penalty. She missed the firing squad by one vote.” In
one of her replies, Dr. Brennan expressed frustration that Dr.
Pinter-Brown was not forthcoming about not reporting the
adverse event and she stated, “I should have stayed and split the
vote!”
Dr. Brennan told Dr. Glaspy she wanted to cast her vote.
Dr. Glaspy, Dr. Gasson, head of the Cancer Center at the time,
and Sandra Binder, a registered nurse and the Director of
Qualify Research at UCLA, allowed Dr. Brennan to vote because
she had been present for the entire meeting. Dr. Brennan asked
Dr. Gasson if additional committee members who were not
35
present at the meeting could vote; the answer was no. Dr.
Brennan voted to suspend Dr. Pinter-Brown’s privileges. Dr.
Brennan testified she asked to register her vote because she had
been “present for all of this, and [she] had an opinion,” and she
wanted her opinion to be heard. “I was concerned,” she testified.
Because the vote ended in a tie, which had never before
happened in the ISPRC, Dr. Glaspy sent their findings to Dr.
Slamon at the Hematology Division and to the Cancer Center.
The issue was brought to Dr. Fogelman, Chief of Medicine, who
sent the findings to Dr. Michael Roth, the Department of
Medicine’s Compliance Officer, for an independent review. Dr.
Glaspy emailed Dr. Fogelman on April 9, 2012 to let him know he
thought it was an excellent idea to have Dr. Roth review the
matter. Dr. Glaspy testified he thought it was an excellent idea
because it allowed a “fresh set of eyes” to look at the issue and
“give more due process in this tough situation.”
Dr. Roth concluded “corrective actions” would be “more
likely to result in a positive outcome” than the complete
suspension of Dr. Pinter-Brown’s privileges.
On July 3, 2012, the ISPRC met again and voted
unanimously, 9-0, to suspend Dr. Pinter-Brown’s research
privileges for one year due to “problems with the informed
consent process, missing source documentation, dosing errors,
repeated protocol violations, lack of responsiveness to the
Committee (including providing misleading information), and a
general lack of study oversight and management.” Dr. Glaspy
recused himself from the vote on the recommendation of Dr.
Hiatt, Dr. Gasson, and Sandra Binder. The ISPRC informed Dr.
Pinter-Brown she would be able to continue to see subjects
currently enrolled in her trials with the oversight of a mentor,
36
and she was required to undergo additional training through
UCLA’s Clinical Research Unit.
After reviewing the findings from the ISPRC, and the
correspondence between the ISPRC and Dr. Pinter-Brown, Dr.
Slamon wrote Dr. Pinter-Brown notifying her that Dr. Jonathan
Goldman would mentor her during the one-year suspension
period. Dr. Slamon told Dr. Pinter-Brown Dr. Brennan would
assist her in meeting the ISPRC’s expectations and he “st[oo]d
ready” to assist her in meeting their requirements and to
facilitate her coming into compliance with the ISPRC rules and
regulations. Dr. Slamon also informed Dr. Pinter-Brown he
would be naming an Acting Director for the Lymphoma Program
during Dr. Pinter-Brown’s suspension because he felt it would be
a significant challenge for her to “adequately and appropriately
represent the Lymphoma Program in its critical mission of
clinical/translational research with outside sponsors and
regulatory bodies as well as co-operative groups and collaborators
both within UCLA and at outside institutions.” Dr. Slamon
assured this decision would have no impact on her academic
rank, merit actions, or salary.4
4 By contrast, Dr. Pinter-Brown testified she attended a
meeting in which Dr. Slamon threw a book containing all her
ISPRC audits on the table, and said, “we don’t want someone like
you representing the UCLA lymphoma program. From this
moment forward, you are no longer the director.” Dr. Pinter-
Brown’s testimony does not specify the date of this meeting. Dr.
Pinter-Brown also testified this meeting had been set up after
she reached out to speak with the ombudsman. Dr. Pinter-Brown
testified she told the ombudsman she wanted a one-on-one
meeting with Dr. Slamon. The ombudsman told her, “Dennis is
very candid and he only wants to have a meeting about going
37
Dr. Slamon appointed Dr. de Vos Interim Director of the
Lymphoma Program. Dr. Glaspy testified he “didn’t really have a
say-so” in the decision, but he “agreed reluctantly.”
Dr. Pinter-Brown implemented a corrective action plan to
improve her research capabilities. Her assigned mentor, Dr.
Goldman, informed the ISPRC on February 18, 2013 she fulfilled
her informed consent responsibilities, was “generally excellent
regarding timely review of laboratory and radiology results,” and
“promptly identified study deviations.” Dr. Goldman concluded
Dr. Pinter-Brown was an excellent lymphoma doctor,
recommended she continue to participate in clinical trials, and
stated he believed she had the capability to be a principal
investigator.
forward.” Dr. Pinter-Brown testified it made her uncomfortable
when the ombudsman called Dr. Slamon “Dennis” because it
made it sound “like they were buds.” Dr. Pinter-Brown testified
the ombudsman set up the meeting at her request but when she
arrived it was in a room with glass walls on three sides, had been
catered, and included not only Dr. Slamon, but also Dr. Glaspy,
Dr. Brennan, and the ombudsman. She testified she was told she
was not allowed to discuss what happened with Dr. de Vos and
that the meeting was only about her research issues going
forward. Dr. Pinter-Brown testified she had to leave the room
momentarily because she began to cry and had to pull herself
together. At some point after she returned, Dr. Slamon threw the
book on the table and told her she could no longer be the director.
Although Dr. Brennan, Dr. Glaspy, and Dr. Slamon testified at
trial, no testimony was elicited from any of them about this
meeting.
38
On October 30, 2013, the ISPRC returned Dr. Pinter-Brown
to her principal investigator status on a limited number of
studies. Dr. Glaspy testified he was present at the ISPRC
meeting when this decision was made and “everybody agreed” to
the partial restoration of her research privileges.
On April 15, 2014, Dr. Slamon and Dr. Glaspy named Dr.
de Vos Director of the Lymphoma Program. Dr. Glaspy testified
that, at that point, he did not have any reservations about Dr. de
Vos directing the program.
In July 2014, Dr. Pinter-Brown called Sandra Binder and
asked her to review a patient’s chart because she was concerned
about a possible chemotherapy overdose. Ms. Binder looked at
the chart and was “devastated” because the patient received a
dangerously high dose. Dr. Hurvitz was alerted about the
incident. She testified Dr. Pinter-Brown gave the patient
12 weeks of a highly toxic chemotherapy in four consecutive days.
As a result, Dr. Pinter-Brown was asked to complete training on
how to appropriately place patients on chemotherapy orders.
Dr. Pinter-Brown testified she was not responsible for the
chemotherapy overdose. She testified UCLA had put in new
software to write chemotherapy orders and that Sandra Binder,
who “was supposed to be helping us with it,” often did not return
calls because “there was so much going on.” When Dr. Pinter-
Brown’s nurse practitioner asked her if he could write the
chemotherapy order, she testified, she told him he could write it
but not to sign it before showing it to her. When he showed her
the order, Dr. Pinter-Brown saw he had written a very confusing
order. She spent 40 minutes with him and worked on the order
with him until it looked correct. “And then we signed them,” she
testified, “and the patient got his chemotherapy without any
39
problem. It was perfect.” When the next round of chemotherapy
came up for this patient, her nurse practitioner asked her if he
could write the order. She agreed, but only if he copied and
pasted what they wrote in the previous order into the new one.
He agreed to do so, but “for reasons that I do not understand,” Dr.
Pinter-Brown testified, he “wrote different orders.” Dr. Pinter-
Brown also testified she allowed her nurse practitioner to write
the second order because, a year earlier, Dr. Slamon had told her
to stop “micromanaging” her nurse practitioner. When asked
directly whether she signed the order, she replied, “I don’t believe
so. I think [the nurse practitioner] signed it.”
Dr. Pinter-Brown notified Sandra Binder, Dr. Glaspy, and
others about the chemotherapy dose. When her counsel asked if
“the powers that be” attempted to blame her for this incident, Dr.
Pinter-Brown replied, “Yes.” She testified Dr. Slamon convened
an emergency meeting of the Division and began the meeting by
telling everybody about the history of the division, how proud he
was of it, and that “one person in the division would being the
entire division down by making a chemo error.” “It was
humiliating,” Dr. Pinter-Brown testified. Dr. Pinter-Brown
testified she and her nurse practitioner were then required to
take a class on how to write chemotherapy orders.
Despite the chemotherapy overdose, the ISPRC decided on
October 20, 2014 to fully restore Dr. Pinter-Brown to principal
investigator status without limitations. In its letter, the ISPRC
stated it “appreciates the efforts [Dr. Pinter-Brown] made to
further clinical research at UCLA.”
In January 2015, Dr. Hurvitz requested a meeting with Dr.
Pinter-Brown because there was another problem with a patient’s
chemotherapy order. Dr. Hurvitz testified there were issues with
40
Dr. Pinter-Brown’s orders and notes, which “didn’t make sense,”
causing the patient to have to wait 12 hours in the ward being
hospitalized without receiving chemotherapy while the order was
sorted out. At the meeting were Dr. Hurvitz, Sandra Binder, Dr.
Slamon, and Dr. Rosen, the director of the inpatient practice.
According to Dr. Hurvitz, the meeting was cordial. Dr. Pinter-
Brown was offered resources to help her avoid another
“chemotherapy order mishap.”
Dr. Pinter-Brown testified that, overall, she believed the
audits of her clinical trials were initiated in February 2011 in
retaliation for complaining about Dr. de Vos. Although she did
not complain about Dr. de Vos until March, 2011, she notes that
Dr. Glaspy had confirmed he received complaints from her as
early as 2008. She testified there were never any serious
problems with the audits of her clinical trials before 2011. Dr.
Hiatt, Dr. Glaspy, and Dr. Raval-Fernandes, who oversaw clinical
trials for the Cancer Center from 2007 to 2017, confirmed none of
Dr. Pinter-Brown’s audits were problematic before 2011. Dr.
Pinter-Brown testified she was suddenly subjected to “random
audits” in April 2011, and she found it “very odd, the timing of it,”
that she was suddenly being audited one month after
complaining after Dr. de Vos, considering he chaired the DSMB.
Dr. Pinter-Brown testified Dr. Slamon, Chief of
Hematology, failed an FDA audit, a very serious event because it
attracts the government’s attention to the institution, which can
lead to clinical trials being shut down. Yet, he never suffered
adverse consequences. One of Dr. Eradat’s clinical trials was
suspended after an audit in 2011 or 2012, as was one of Dr.
Timmerman’s around the same time. Both are on the Lymphoma
Program team. Yet, they did not suffer adverse consequences.
41
Dr. Pinter-Brown stated she knew of only one man who lost
research privileges because of negative audit findings.
Dr. Glaspy testified at least five male doctors had research
privileges removed by the ISPRC.
Finally, according to Dr. Pinter-Brown, even after her
research privileges were fully restored, she did not have as many
clinical trials. She stated Dr. de Vos continued to prevent her
from talking at meetings and, on several occasions, would not
allow a sponsor to visit the institution, which is a prerequisite for
initiating some clinical trials. She continued to complain to Dr.
Glaspy about Dr. de Vos to no avail.
Dr. Pinter-Brown also testified she had far fewer teaching
fellows assigned to her after Dr. de Vos assumed the directorship.
Dr. Sarah Larson, the Director of the Fellowship Program, joined
the Lymphoma Program in 2013 and is responsible for assigning
fellows to clinics. She testified assignments are made based
entirely on prospective fellows’ requests. She stated neither she
nor anyone else ever decided not to pair a fellow with Dr. Pinter-
Brown. Additionally, Dr. Timmerman testified that, around this
time, there was a shift in how fellows were distributed to clinics.
Many fellows were being sent to rotations in community practices
to experience “bread-and-butter oncology” rather than deal with
the “more esoteric” cases the physicians saw at UCLA. Dr.
Timmerman testified that, as a result, he did not have many
fellows in his clinics even though he won a teaching award; he
also testified all the physicians in their clinics had less support
from fellows.
Dr. Pinter-Brown testified she was still called by her first
name after her privileges were restored whereas male doctors
were addressed as “Doctor.” Dr. Larson testified it was common
42
for doctors in the Lymphoma Program to refer to each other by
first name in “most settings.” In front of patients, she testified,
they would use the title “Doctor.” In other settings, including
some formal settings, they would “usually say ‘Lauren,’ ‘Sven,’
[or] ‘Dennis.’ ”
On November 23, 2015, Dr. Pinter-Brown filed a complaint
with the California Department of Fair Employment and
Housing (DFEH), and resigned from UCLA effective December
31, 2015. She accepted a position at UC Irvine beginning January
1, 2016.
C. Motion to Amend the Complaint, Verdict, Damages
On February 5, 2018, in the middle of trial, Dr. Pinter-
Brown filed a motion for leave to amend her operative complaint
according to proof, asking the court to permit her to add a cause
of action for retaliation. Dr. Pinter-Brown attached a proposed
complaint adding a cause of action for “retaliation for opposing
discrimination and/or harassment on the basis of gender in
violation of FEHA.”
On February 13, 2018, after both sides had presented all
their evidence to the jury, the court heard argument on the
motion. UCLA argued the claim had already been summarily
adjudicated against Dr. Pinter-Brown. Dr. Pinter-Brown argued
the “substance was different” than how she originally pled
retaliation in the complaint and that they were pursuing a
retaliation theory under different subsections of FEHA. UCLA
argued strenuously that Dr. Pinter-Brown was not alleging new
facts or new legal theories beyond what was included in the
original complaint and that allowing her to re-allege retaliation
at this late stage after the court had summarily adjudicated it in
UCLA’s favor caused UCLA undue prejudice.
43
Both complaints assert a cause of action for retaliation
under Government Code sections 12900 et seq. and 12940 et seq.
There are no different or additional subsections pled in the
amended complaint. The trial court allowed Dr. Pinter-Brown to
add the retaliation claim. It did not state its reasoning for
resurrecting a cause of action it had already adjudicated other
than to say, “I . . . don’t think it makes a particular amount of
difference. I would indicate a couple of things: if the jury comes
back with a finding for the plaintiff on all of the causes of action,
I am not sure the amendment makes any difference at all. If they
find for discrimination and harassment and also retaliation, it
becomes superfluous because the jury will be instructed they
can’t award duplicative damages. [¶] If the jury were only to
come back on the retaliation claim as opposed in any of the other
claims, I assume there will be a motion for J.N.O.V. and the court
will consider that issue. So I am not sure that it’s dispositive one
way or the other at this point.”
The jury was given a general verdict form. On February
15, 2018, the jury returned verdicts in favor of Dr. Pinter-Brown
on the discrimination and retaliation claims. The court then
polled the jury, which had voted 10 to 2 on each claim.
On March 22, 2018, the jury awarded Dr. Pinter-Brown a
total of $13,011,671 in damages: $635,612 in past economic loss,
$2,376,059 in future economic loss, $7 million in past non-
economic loss, and $3 million in future non-economic loss.
D. Appeal and Motion to Strike
UCLA timely appealed, alleging: (1) Dr. Pinter-Brown did
not prove she suffered an adverse employment action within the
statute of limitations; (2) judgment should be entered for UCLA
as a matter of law because neither discrimination nor retaliation
44
was a substantial motivating reason for any adverse action; (3) a
new trial is warranted because the court framed the case in
grossly prejudicial terms, then admitted allegations of unrelated
discrimination; (4) the court improperly submitted Dr. Pinter-
Brown’s retaliation claim to the jury months after summarily
adjudicating that claim in UCLA’s favor.
During the pendency of this appeal, Dr. Pinter-Brown filed
a motion to strike portions of UCLA’s opening brief. She first
asks that we strike a paragraph that cites factual assertions in
websites that were never admitted or seen by the trial court.
After reviewing the record, we have determined the trial court
record does not include the material on these websites.
Accordingly, we strike the paragraph of UCLA’s brief referring to
these websites. “[A]ppellate review is limited to the record that
was before the trial court.” (Preserve Poway v. City of Poway
(2016) 245 Cal. App. 4th 560, 567, fn. 2; See also C.J.A. Corp. v.
Trans-Action Financial Corp. (2001) 86 Cal. App. 4th 664, 673.)
Dr. Pinter-Brown also asks us to strike references to parts
of Exhibit 69, which is a 233-page exhibit documenting UCLA’s
audits and oversight of Dr. Pinter-Brown’s clinical research. Dr.
Pinter-Brown alleges the exhibit was not admitted in its entirety
and UCLA relied on portions of the exhibit that were “never
published or discussed with the jury.” We find no evidence to
support this assertion.
Before trial, the parties stipulated to admitting Exhibit 69;
Dr. Pinter-Brown did not ask for any limitation on the
document’s admissibility. On January 30, 2018, the court
entered Exhibit 69 into evidence without limitation or exception.
On February 1, 2018, UCLA first presented the exhibit to the
jury; the transcript reflects the exhibit was admitted into
45
evidence. Finally, the record reflects the full exhibit was marked
as admitted. At no point did the court indicate only portions of
Exhibit 69 had been admitted. We therefore decline to strike any
portions of UCLA’s brief referring to or relying on Exhibit 69.
DISCUSSION
We conclude the court erred by framing the case at the
outset in prejudicial terms, allowing the jury to hear evidence of
racial discrimination at UCLA, allowing into evidence a list of all
types of discrimination complaints against the entire University
of California system and its ten campuses, and allowing Dr.
Pinter-Brown to re-allege a cause of action for retaliation despite
summarily adjudicating the same issue prior to trial. These
errors were cumulative and highly prejudicial.
Accordingly, we reverse. Because we reverse on these
bases, we do not address UCLA’s allegations that Dr. Pinter-
Brown did not suffer an adverse employment action or
constructive discharge; that neither discrimination nor
retaliation were substantial motivating factors for UCLA’s
actions; that all claims are barred by the applicable statute of
limitations; and that the trial court erred in instructing the jury.
I. Trial Court Comments
“Trial judges ‘should be exceedingly discreet in what they
say and do in the presence of a jury lest they seem to lean toward
or lend their influence to one side or the other.’ ” (People v.
Sturm (2006) 37 Cal. 4th 1218, 1237–1238.) A judge’s conduct
must “ ‘ “ ‘ “accord with recognized principles of judicial decorum
consistent with the presentation of a case in an atmosphere of
fairness and impartiality,” ’ ” ’ ” and “ ‘ “[t]he trial of a case should
not only be fair in fact, . . . it should also appear to be fair.” ’ ”
46
(Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal. App. 4th
994, 1002.) “Jurors rely with great confidence on the fairness of
judges, and upon the correctness of their views expressed during
trials. For this reason, and too strong emphasis cannot be laid on
the admonition, a judge should be careful not to throw the weight
of his judicial position into a case, either for or against the
defendant.” (People v. Mahoney (1927) 201 Cal. 618, 626–627.)
Indeed, the third canon of our Judicial Code of Ethics
admonishes us to “perform judicial duties without bias or
prejudice,” and to refrain from engaging in speech that would
reasonably be perceived as bias or prejudice. (Cal. Code Jud.
Ethics, canon 3B(5).) Additionally, standard 10.20 of the
California Rules of Court’s Standards of Judicial Administration
instructs us to “preserve the integrity and impartiality of the
judicial system” by ensuring courtroom proceedings “are
conducted in a manner that is fair and impartial to all of the
participants.” (Cal. Stds. Jud. Admin., std. 10.20(a) & (a)(1).)
Here, the trial court’s remarks to the jury violated these
principles and gave the appearance that the court was partial to
Dr. Pinter-Brown’s causes of action. (The court’s remarks are
attached to this opinion as Appendix A, post, starting on page 70.)
In conjunction with the other errors discussed below, the court’s
introductory presentation rendered the trial fundamentally
unfair to UCLA.
The court framed this case as part of a centuries-long fight
against discrimination and inequality. The court not only
invoked the words of Dr. Martin Luther King, one of our nation’s
most respected and revered civil rights leaders, it also quoted one
of the most well-known lines from Dr. King’s famous and
venerated “I Have a Dream” speech. At the apogee of the civil
47
rights movement, Dr. King told the world that the “arc of the
moral universe bends toward justice.” Here, the judge told the
jury it was their job to be Dr. King and to help bend that arc.
When UCLA objected to the court’s lengthy recitation of our
country’s history of fighting discrimination and its description of
the heroism of the individuals who led those efforts, the court
insisted its presentation was not improper or prejudicial because
the prospective jurors were told that the lauded civil rights
figures were sometimes plaintiffs and sometimes defendants. We
are not persuaded. Regardless of whether Rosa Parks, Elizabeth
Jennings, Delores Huerta, or any of the other civil rights icons
highlighted in the court’s presentation were plaintiffs or
defendants, the message was clear: each of them was fighting to
right the grave and historic wrong of discrimination. By telling
the jurors they were Dr. King, the court told them they were also
there to right a wrong. Each case cited by the court was another
step in the right direction: toward equality and away from
discrimination. The court’s message was clear: the jury’s job was
to continue in that great, noble, and moral tradition of pushing
society toward equality.
We appreciate the difficulties faced by trial courts in
putting together juries of 12 impartial and willing people. The
difficulties are compounded by prospective jurors who are openly
loathe to serve not because they cannot be impartial, but because
jury service otherwise interferes with their lives. It is
exceedingly difficult to be gracious to those potential jurors who
enjoy the benefits of living in our free society of, by, and for the
People, but who won’t embrace the civic responsibility, one of
only a few, that underpins our democracy. It is remarkable that
our trial courts, in the face of such daily recalcitrance to serve,
48
not only remain gracious, but enthusiastically promote the
opportunity to serve by touting to prospective jurors the
importance of the court’s call to duty.
However, the remarks of the trial court here were not an
impartial call to duty; they were a resolute and stirring call to
action which stacked the deck against UCLA. It was a grave
error for the court to begin a gender discrimination trial with a
presentation highlighting the great achievements our nation’s
civil rights leaders have made toward creating a world free of
discrimination and telling the prospective jurors they were
carrying on that quest. Although particularly prejudicial in a
discrimination case, we believe the court’s comments and call to
action are inappropriate in any case. This error was but one of a
series of errors that prejudiced UCLA and rendered the trial
fundamentally unfair.
II. “Me Too” Evidence
Throughout trial, the court allowed Dr. Pinter-Brown to
present the jury with unrelated claims of discrimination at
UCLA. First, it allowed Dr. Pinter-Brown to introduce evidence,
through witnesses, of a report detailing the findings of a 2012
investigation into incidents of racial discrimination at UCLA.
The court also admitted into evidence a list of all DFEH
complaints against the entire University of California system
from July 1, 2012 to August 17, 2017.
This type of evidence—evidence that an employer waged
the same type of discrimination against other employees as is it
did against a plaintiff—is called “me too” evidence. As discussed
below, “me too” evidence can be admissible only to prove intent
and motive, among other things, with respect to the plaintiff’s
own protected class. Additionally, the admissibility of “me too”
49
evidence hinges on how closely related the evidence is to the
plaintiff’s circumstances and theory of the case. “Me too”
evidence is never admissible to prove an employer’s propensity to
harass. Yet, that is exactly what the court allowed Dr. Pinter-
Brown to do.
A. The Moreno Report
On October 15, 2013, retired California Supreme Court
Justice Carlos Moreno submitted to UCLA a report entitled,
“Independent Investigative Report on Acts of Bias and
Discrimination Involving Faculty at the University of California,
Los Angeles.” The Executive Summary makes clear the report is
the culmination of an investigation into “racial and ethnic bias
and/or discrimination” at UCLA, not gender discrimination or
bias. The report concluded UCLA’s policies and procedures for
responding to incidents of racial and ethnic bias, discrimination,
and intolerance were inadequate, and provided recommendations
for improvement.
Although the court did not allow the report into evidence, it
permitted Dr. Pinter-Brown to ask multiple witnesses about the
report and impermissibly allowed the contents of the otherwise-
inadmissible report to come in through these testifying witnesses.
During Dr. Glaspy’s testimony on February 7, 2018, Dr.
Pinter-Brown asked, “[a]re you familiar with a public report
published in late 2013 investigation, in particular, UCLA’s bad
policies involving antidiscrimination claims that they sweep
under the rug and deeming these interpersonal conflict?” The
court sustained UCLA’s objection to the question. Dr. Pinter-
Brown then asked, “[a]re you familiar with the fact that there
was an independent investigation done about [UCLA] in
particular, of all the [UC] schools, in 2013 about how it handles
50
discrimination claims?” The court sustained UCLA’s objection as
assuming facts not in evidence and stated, “[y]ou can certainly
ask him if he’s familiar with the Moreno report.” Dr. Pinter-
Brown asked Dr. Glaspy, “[a]re you familiar with an
investigation that occurred at [UCLA] in to [sic] how the
University handled discrimination issues,” to which Dr. Glaspy
replied, “No.”
Then Dr. Hiatt, Dean of Faculty, was asked about the
report during his testimony on February 7, 2018. Dr. Hiatt
admitted familiarity with the Moreno report. Dr. Pinter-Brown
asked him whether, in the report, “the policies that were applied
to Dr. Pinter-Brown by [UCLA] were condemned as ineffective.”
UCLA objected under Evidence Code section 352 and on hearsay
grounds; the court sustained UCLA’s hearsay objection.5 Dr.
Pinter-Brown moved to have the report admitted into evidence,
UCLA objected, again on section 352 and hearsay grounds. The
court replied, “not under [section] 352, but as to hearsay, the
court will sustain the objection.” Dr. Pinter-Brown then
prompted Dr. Hiatt to state the Moreno report was prepared by a
retired justice from the California Supreme Court.
Proceeding apace, Dr. Pinter-Brown then asked Dr. Hiatt,
“the findings of this report were very damning to the
discrimination going on at [UCLA]; correct?” Dr. Hiatt replied,
“[w]ell, it certainly identified opportunities for improvement.”
5 Under Evidence Code section 352, the court may exclude
evidence if its “probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
51
Dr. Pinter-Brown then stated, “[f]irst of all, it concluded that
‘UCLA’s nondiscrimination,” at which point UCLA interrupted
with an objection to Dr. Pinter-Brown reading from the
document. The court sustained the objection.
Shortly thereafter, Dr. Pinter-Brown started to ask, “the
report concluded that [UCLA] was labeling discrimination and
bias as interpersonal conflicts,” at which point UCLA objected as
leading and hearsay. The court overruled the objections. “The
very language we heard from Dr. Glaspy,” Dr. Pinter-Brown
continued, “that they were labeling discrimination and
harassment and retaliation as interpersonal conflicts; correct?”
Dr. Hiatt replied he did not remember that level of detail. Dr.
Pinter-Brown then attempted to get a paragraph of the Moreno
report in as a party admission; the court denied the request. Dr.
Pinter-Brown therefore paraphrased the paragraph by stating,
not in the form of a question, “[i]t identifies a tendency to treat
reports as interpersonal conflicts, and other things that it lists.”
UCLA objected again to Dr. Pinter-Brown reading from the
document. “Sustained,” the trial court replied, “if you’re reading
from the document.” Dr. Pinter-Brown then said, “I’m not
reading from the document.” The court replied, “Okay.”
Dr. Pinter-Brown continued, “[i]t lists two things. It says,
in essence, [UCLA] is misclassifying discrimination, harassment,
retaliation as, number one, interpersonal conflicts; or, number
two, some issue with regards to promotion and career
advancement; correct?” Dr. Hiatt replied, “It says that.” “And
what we see in here,” Dr. Pinter-Brown continued, “has been
what UCLA’s playbook defensive mode has been in these lawsuits
over the years; correct?” Dr. Hiatt replied, “I can’t comment on
lawsuits over the years.”
52
Later in Dr. Hiatt’s testimony, Dr. Pinter-Brown asked,
“So, sir, the conclusions of that investigation – and this was an
actual independent investigation report on acts of bias and
discrimination involving faculty at the University of California
Los Angeles. [¶] That was undertaken by [UCLA’s] attorneys
and retired Justice Carlos Moreno, among other people; correct?”
Dr. Hiatt replied, “Back to the Moreno report?” to which Dr.
Pinter-Brown replied, “Yes. The Moreno Report.” Dr. Pinter-
Brown stated, “[a]nd that Moreno Report highly criticized the
written policies at [UCLA]; correct?” Dr. Hiatt replied, “Correct.”
“It said that they failed to define discriminatory conduct;
correct?” Dr. Hiatt replied, “I would have to look at it in detail,
but I accept your reading of it.” Dr. Pinter-Brown continued,
“[t]ake a look at page 16. There are eight bullet points there.
After the words ‘specifically, the review team concludes that,’ and
there [are] eight bullet points. [¶] Do you see that?” Dr. Hiatt
replied that he did. “Okay. Second-to-last bullet point says
‘[UCLA]’ ” at which point UCLA objected to Dr. Pinter-Brown
reading from the document. Dr. Pinter-Brown replied, “[i]t’s
cross-examination, your Honor.” The court replied, “It is cross-
examination, but the document has not been admitted into
evidence.” Dr. Pinter-Brown continued, “[t]his report criticized
the investigations allegedly done by [UCLA] into complaints of
discrimination, harassment, retaliation; correct?” Dr. Hiatt
replied, “Correct.” Dr. Pinter-Brown asked, “[t]his report
criticized how [UCLA] swept under the rug complaints of
discrimination, harassment, retaliation; correct? [¶] We can use
the exact words to quote it, but that’s what they’re saying, in
essence; correct?” Dr. Hiatt replied, “I agree with that.”
53
Dr. Pinter-Brown asked, “[t]his report criticized [UCLA’s]
commitment to diversity in the workplace basically saying, yeah,
you have these words and these policies at this great university,
but you don’t mean them, faculty; right, Dr. Hiatt? And I’ll try
not to quote the report, but that’s what they’re saying to
everybody.” Dr. Hiatt replied, “You know what? That’s a rebuke,
and I accept the fact that the report was a stern rebuke.” Dr.
Pinter Brown continued, “[a]nd that rebuke most significantly
included sweeping under the rug real discrimination and
harassment that occurred in the workplace; correct?” UCLA
objected as asked and answered; the court overruled the
objection. Dr. Hiatt replied, “I think that’s correct.”
Dr. Pinter-Brown then went on to paraphrase portions of
the Moreno Report that she characterized as indicating UCLA
was protective of doctors and professors who brought in large
amounts of grant money and would look the other way if they
were accused of harassment. More than once during this line of
questioning, Dr. Pinter-Brown emphasized that the Moreno
report was authored by a retired Supreme Court justice.
On February 8, 2018, Dr. Pinter-Brown filed a motion
asking the court to take judicial notice of the Moreno Report. The
court denied the motion, stating it was not going to take judicial
notice of the report or allow it into evidence. The court did say,
however, it would “allow defendant to argue it, but . . . I think it’s
hearsay. I think you certainly could have or might have been
able to designate former Justice Moreno as an expert witness on
this, but he wasn’t and he is not here to testify. I don’t believe
the report would be proper to admit into evidence, although I will
indicate I am not sure it matters to either side. There has been
enough discussion as to what the general direction of the report
54
was, which is in evidence, and either side can argue it.” UCLA
then stated, “just for the record . . . the Moreno Report talks
about or arises out of incidents of perceived bias, discrimination,
intolerance at [UCLA] involving faculty of color, not gender.” The
court replied, “[w]e don’t need to argue it. I am not allowing it
into evidence.”
On February 13, 2018, Dr. Pinter-Brown filed an amended
trial brief seeking to admit the Moreno Report into evidence. She
argued the report was admissible as an adoptive admission, an
admissible party admission, an authorized admission, and for the
non-hearsay purpose of “proving defendant’s state of mind.” The
record before us does not provide the court’s ruling on this
request. Our review of the transcript does not reveal any oral
argument or ruling on Dr. Pinter-Brown’s attempt to put the
Moreno Report before the jury via a trial brief, nor have the
parties submitted any orders by the court ruling on the
arguments raised in the trial brief. We also note that in her
respondent’s brief on appeal, Dr. Pinter Brown does not argue the
Moreno Report is an exception to the hearsay rule because it
could have been properly admitted as evidence of Dr. Hiatt’s state
of mind. We therefore treat as controlling the court’s February 8,
2018 ruling declaring the Moreno Report inadmissible hearsay.
B. DFEH Complaints
Before Dr. Hiatt’s testimony, UCLA informed the court it
anticipated Dr. Pinter-Brown would seek to introduce evidence of
gender discrimination in UCLA’s Neurology Department. UCLA
argued it was an entirely different department, was not in the
School of Medicine, was on a different campus, and operated
under entirely different leadership than Dr. Pinter-Brown’s
department. UCLA asked the court to exclude this evidence. Dr.
55
Pinter-Brown stated she did wish to bring in this evidence. She
stated Dr. Hiatt was quoted as saying publicly that this type of
environment compromised research, teaching, and patient care.
She argued this evidence was directly probative to her
constructive termination because it showed how this working
environment affected her. The trial court noted that “me too”
evidence is admissible, but the issue was how far “me too”
evidence extended. “I think that bringing in me too evidence,
that is going on at, you know, U.C. Davis because it’s still the
Regents of the University, is too far afield in this case if we are
talking about people who are in the medical department at
[UCLA], even though it’s a different facility.” UCLA reiterated
that the Neurology Department is not within the Department of
Medicine. The court stated it would not bar the evidence but
would entertain objections if UCLA believed it went too far afield.
On direct examination, Dr. Pinter-Brown asked Dr. Hiatt,
“I presume you are concerned with gender discrimination that at
times has raised its head at [UCLA] over the years, correct?” Dr.
Hiatt replied, “I wouldn’t necessarily concede [it has] raised its
head at [UCLA] over the years, but I am absolutely concerned
about it.” Dr. Pinter-Brown replied, “Not only has it raised its
head,” at UCLA, “you have had approximately 50 some-odd
department complaints against [UCLA] based on gender
discrimination; isn’t that true?” Dr. Hiatt replied, “I am not
aware of those numbers.”
Later in Dr. Hiatt’s testimony, Dr. Pinter-Brown marked
for identification a list of discrimination complaints filed with the
DFEH against the University of California system as a whole.
Dr. Pinter-Brown then asked, “[I]t shows that gender complaints
had been rampant in particular with defendant?” UCLA objected
56
as argumentative, lack of foundation, and hearsay. The court
overruled the objection. Dr. Pinter-Brown then asked, “You can
see . . . 198 complaints filed” with the DFEH, “89 of them against
defendant having to do with gender; right, sir?” UCLA objected
again and the court sustained the objection “as to counsel
testifying.” The court then told Dr. Pinter-Brown she was
welcome to ask Dr. Hiatt if the list refreshes his recollection “or
other questions based upon it.”
On cross-examination, UCLA asked Dr. Hiatt how many of
the 198 charges identified in the DFEH disclosure involved the
UCLA campus, to which Dr. Hiatt replied, “13.” UCLA elicited
testimony from Dr. Hiatt that the list contained only four
complaints involving gender, the list did not distinguish whether
the complainant was faculty or staff, and the list did not indicate
whether the complaints had any merit.
On redirect, Dr. Pinter-Brown asked Dr. Hiatt, “198 people
came forward and said, ‘I was discriminated, harassed and/or
retaliated against’ based upon various protected activities,
correct?” Dr. Hiatt replied, “I believe that is correct, yes.” Dr.
Pinter-Brown than asked, “And there are 89 . . . that list out
gender discrimination, harassment and/or retaliation?” UCLA
objected for lack of foundation and assuming facts not in
evidence. The court overruled the objection. Dr. Pinter-Brown
then moved to admit the entire list of DFEH complaints into
evidence. UCLA objected on “hearsay and also [Evidence Code
section] 352” grounds. The court replied, “There’s been enough
testimony about it from both sides. I will allow it into evidence.”
Dr. Pinter-Brown went on to challenge Dr. Hiatt in eight
pages of the transcript as to how Dr. Hiatt concluded there were
only four complaints of gender harassment at UCLA, prodding
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him to admit that there were a total of 89 complaints against the
entire University of California system based on selected portions
of the exhibit. On re-cross, UCLA had Dr. Hiatt clarify that only
13 complaints took place in Los Angeles and, of those 13, only
four involved gender.
C. It Was Error for the Court to Permit the Jury to Hear
Evidence of The Moreno Report and DFEH
Complaints
On appeal, Dr. Pinter-Brown argues UCLA did not properly
object to the testimony about the Moreno Report and that the
Moreno Report did in fact address gender discrimination. She
also argues UCLA “opened the door” to the admission of the
DFEH complaints. We disagree.
As for the contention UCLA did not sufficiently object to
the admission of testimony about the Moreno Report, we have
listed above the multiple objections UCLA lodged. Furthermore,
UCLA filed a motion in limine to exclude evidence of
mistreatment by other employees at UCLA. The court denied the
motion. Generally, once a motion in limine is denied, no more is
needed to preserve the record on appeal. (People v. Morris (1991)
53 Cal. 3d 152, 190, disapproved of on other grounds in People v.
Stansbury (1995) 9 Cal. 4th 824, 830 fn. 1.) Accordingly, we find
UCLA properly preserved the issue on appeal.
Additionally, Dr. Pinter-Brown’s contention the Moreno
Report addressed gender discrimination at UCLA does not alter
our analysis. She cites to four sentences within a 25-page report
that briefly mention incidents of gender discrimination but which
are not included in the ultimate analysis and findings.
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Finally, at oral argument, Dr. Pinter-Brown argued she
used the Moreno Report not for the truth of the matter asserted
or as propensity evidence, but for the non-hearsay purpose of
proving Dr. Hiatt’s state of mind. She argued she submitted a
motion specifically asking the court to allow the Moreno Report
into evidence to prove Dr. Hiatt’s state of mind. We presume she
is referring to the February 13, 2018 trial brief she submitted, in
which she argued in part that the Moreno Report be admitted to
show the defendant’s state of mind. Yet, as indicated above, she
provides us with no record that the court ever ruled on the issue.
Furthermore, Dr. Pinter-Brown did not sufficiently raise
this argument in her respondent’s brief. She referenced her
request to have the Moreno Report admitted only in a brief
footnote, in which she complains UCLA excluded from its
appendix the trial brief “regarding the Report’s admissibility as
an authorized admission,” not as evidence of the defendant’s state
of mind. Dr. Pinter-Brown provided no legal argument or
authority in her brief addressing whether the Moreno Report was
admissible to prove Dr. Hiatt’s state of mind. Nor did she furnish
us with a record or a citation to the record indicating whether or
how the court ruled on her request to admit the Moreno Report as
non-hearsay evidence to prove Dr. Hiatt’s state of mind. As
stated above, the court’s ruling that the Moreno Report was
inadmissible hearsay is therefore controlling on this issue.
In any event, Dr. Pinter-Brown cannot raise this issue for
the first time at oral argument. In their briefing, parties to an
appeal must support their points with argument, case authority,
and citations to the record. (Cal. Rules of Court, rule
8.204(a)(1)(B) & (C).) When legal argument is not supported by
citation to legal authority on a particular point, “we may treat the
59
point as forfeited and pass it without consideration.” (Allen v.
City of Sacramento (2015) 234 Cal. App. 4th 41, 52.) And, when a
party does not tell us if or how the court ruled on an issue, the
party has forfeited appellate consideration of the issue. (Atempa
v. Pedrazzani (2018) 27 Cal. App. 5th 809, 831.) Dr. Pinter-Brown
has therefore forfeited review of her assertion that the contents of
the Moreno Report were admissible to prove Dr. Hiatt’s state of
mind.
UCLA did not open the door to the DFEH complaints. As
discussed above, Dr. Pinter-Brown initiated the subject by
marking the list of DFEH complaints for identification and then
asking Dr. Hiatt if he was familiar with any of the complaints.
After the jury learned about the 198 DFEH complaints, it was
entirely appropriate for UCLA to use the list to clarify that only
four of those complaints involved gender discrimination at UCLA.
In any event, the reports should not have been admitted.
“[E]vidence of a person’s character or a trait of his or her
character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct)
is inadmissible when offered to prove his or her conduct on a
specified occasion.” (Evid. Code, § 1101, subd. (a). Evidence of a
crime, civil wrong, or other act is not prohibited, however, when
relevant to prove some other fact such as motive, intent,
knowledge, absent of mistake, and the like. (Id., subd. (b).)
Courts have sanctioned the use of “me too” evidence, which
is evidence of an employer’s alleged gender bias “in the form of
harassing activity against women employees other than the
plaintiff” in certain circumstances. (Pantoja v. Anton (2011)
198 Cal. App. 4th 87, 92 (Pantoja).) Where evidence of workplace
discrimination is proffered to cast doubt on an employer’s stated
60
justification for an adverse employment action, for example, “me
too” evidence can be admissible to show intent or motive, which
could establish that the employer’s stated reason was a pretext.
(Johnson v. United Cerebral Palsy/Spastic Children’s Foundation
(Johnson) (2009) 173 Cal. App. 4th 740, 760.) The “me-too”
doctrine, however, does not permit a plaintiff to present evidence
of discrimination against employees outside of the plaintiff’s
protected class to show discrimination or harassment against the
plaintiff. (Hatai v. Department of Transportation (2013)
214 Cal. App. 4th 1287, 1297–1298, disapproved of on other
grounds in Williams v. Chino Valley Independent Fire District
(2015) 61 Cal. 4th 97, 115.) Although “me too” evidence can be
admissible to prove intent, motive, and the like with respect to
the plaintiff’s own protected class, it is never admissible to prove
an employer’s propensity to harass. (Pantoja, at p. 111.)
In other words, Dr. Pinter-Brown told the jury that because
the entire UCLA campus – not just the medical school – failed to
protect racial and ethnic minorities from discrimination, the
UCLA medical school failed to protect Dr. Pinter-Brown from
gender discrimination. The Moreno Report served only to
convince the jury that the Medical School had a propensity to
harass, and Dr. Pinter-Brown used it explicitly to tell the jury
that they did the exact same thing to her.
There is no question the court allowed Dr. Pinter-Brown to
use the Moreno Report to paint UCLA as a hotbed of
discrimination and harassment. During closing argument, Dr.
Pinter-Brown quoted “[e]xactly what Justice Carlos Moreno
stated in his 34-page conclusions . . . : ‘We don’t investigate. We
don’t educate. We don’t take seriously antidiscrimination laws
here. And in fact, when we are dealing with a professor or
61
someone who brings a lot of money into [UCLA], we, as a
practice, sweep it under the rug.’ That is what that independent
investigation into discrimination, bias and retaliation at [UCLA]
concluded.” Dr. Pinter-Brown described the Moreno Report as
“the very blueprint[] of what goes on and what has gone on by a
neutral, as it’s phrased, an independent investigation.” Dr.
Pinter-Brown described the report as “condemning how they
operate with regard to this particular issue.”
Toward the end of closing argument, Dr. Pinter-Brown
argued, “The Moreno Report – and you don’t have that in
evidence, but you have testimony about it specifically – in other
words, the document will not be in the jury room, but you have
testimony from a few witnesses, including Dr. Hiatt, about it. [¶]
And what that report concluded was that a major problem we
have here is when there is actual discrimination going on, it gets
just whitewashed as an interpersonal conflict. There is no
investigation – real investigation. H.R. is not involved.
Shocking. Title IX doesn’t get involved. Shocking. Same thing
we had here. And we just call it an ‘interpersonal conflict’ and
sweep it under the rug. That is exactly what the report
concluded and that is exactly what defendants in their play book
[have] tried to portray what this case is about.”
The trial court would not admit the Moreno Report because
it was hearsay. This, however, was wholly insufficient because
Dr. Pinter-Brown was able to coax the content and conclusions of
the Moreno Report out of multiple witnesses. Secondary evidence
of a document that is hearsay is “no more admissible” than the
document itself, “which is to say, not at all.” (Pajaro Valley Water
Management Agency v. McGrath (2005) 128 Cal. App. 4th
1093, 1108.) The court abandoned its duty to ensure UCLA
62
received a fair and impartial trial when it allowed the contents of
the irrelevant and highly prejudicial Moreno Report—which dealt
with discrimination outside of Dr. Pinter-Brown’s protected
class—to come in through a series of leading questions by her
attorney and the answers thereto.
With respect to the DFEH complaints, the question the
court must consider in deciding whether to admit evidence of
discrimination raised by other employees is “ ‘fact based and
depends on many factors, including how closely related the
evidence is to the plaintiff’s circumstances and theory of the
case.’ ” (Johnson, supra, 173 Cal.App.4th at p. 767, citing
Sprint/United Management Co. v. Mendelsohn (2008) 552 U.S.
379, 387.) In Johnson, for example, the plaintiff claimed she was
wrongly terminated for being pregnant. (Johnson, at p. 744.)
The appellate court held the trial court should have admitted
declarations of four employees who worked at the same office and
under the same three supervisors as the plaintiff, and who also
alleged they were fired for being pregnant.. (Id. at pp. 767–768.)
Unlike Johnson, there is no evidence whatsoever about who
the alleged victims were in the list of DFEH complaints, whether
they complained to the medical school, whether the complaints
had merit, whether complainants were supervised or even had
any contact with Dr. Hiatt, Dr. Glaspy, Dr. de Vos, Dr. Slamon,
or any of the other actors Dr. Pinter-Brown claimed had wronged
her. There was simply no evidence establishing the relationship
between these anonymous complaints and Dr. Pinter-Brown’s
circumstances or the theory of her case. The only purpose those
complaints served was to, again, paint UCLA as rife with
unchecked gender discrimination.
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“[Eighty-nine] governmental charges of gender
discrimination against the defendant here in the last five years,
since 2012 to 2017,” Dr. Pinter-Brown told the jury during closing
argument. “[Fifty] of them at [UCLA] in particular.” Later, she
argued, “[t]hese people here . . . these are women who worked for
the Regents and experienced, from their perception, gender
discrimination . . . so on and so on and so on, sex, gender. These
aren’t just a statistic to say, ‘you are messing up, [UCLA].’ These
are people whose lives have been affected, from their perception
at least. [¶] These are women not trying to manipulate any
system, as defense counsel has pointed to my client so many
times in this trial, trying to paint her to be some manipulative
whatever. These are people who just want to work in a fair
environment that wasn’t presented to them, and who obviously
didn’t get [redress] or any remedy within [UCLA] because now
they have gone to the state government and complained. That is
what this is about. [¶] . . . These are women alleging gender
discrimination to the state government saying who they
represent is not fair to women.”
The jury had no information about the factual scenarios
underlying the DFEH complaints submitted to the jury. Nor did
they have any information about which departments employed
the complainants or who their supervisors were. This “me too”
evidence, therefore, was far from the type contemplated in
Johnson and Pantoja, as Dr. Pinter-Brown proffered no evidence
that the DFEH complaints “ ‘set[] out factual scenarios related by
former employees of defendant that [were] sufficiently similar” to
the one Dr. Pinter-Brown presented. (Pantoja, supra,
198 Cal.App.4th at p. 114, quoting Johnson, supra,
173 Cal.App.4th at p. 767.) Instead, the court allowed Dr. Pinter-
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Brown to use this laundry list of anonymous, undefined
allegations of discrimination at UCLA to convince the jury Dr.
Pinter-Brown’s own complaints were legitimate. This is nothing
more than run of the mill propensity evidence, which should have
never been presented to the jury.
III. Retaliation Cause of Action
As discussed above, the trial court allowed Dr. Pinter-
Brown to place a cause of action for retaliation before the jury
even though the claim had been adjudicated against her before
trial. This was an inexplicable error.
Summary adjudication of a cause of action “is a judicial
determination that the issue is not subject to further
controversy.” (Abadjian v. Superior Court (1985) 168 Cal. App. 3d
363, 370.) Summary adjudication of an issue is binding. (Ibid.).
Following a grant of summary adjudication in a defendant’s
favor, the cause of action is deemed “established” and the parties
may not relitigate the issue. (Raghavan v. Boeing Co. (2005)
133 Cal. App. 4th 1120, 1136; St. Paul Mercury Ins. Co. v. Frontier
Pacific Ins. Co. (2003) 111 Cal. App. 4th 1234, 1249.)
Dr. Pinter-Brown argues California liberally allows
amendments to the pleadings to conform to proof at trial. While
this is true, that it is not at all what happened here. The
“amended” cause of action was nothing more than the original
retaliation complaint with the phrase “Retaliation for
Complaining of Gender Discrimination and/or Harassment”
changed to “Retaliation for Opposing Gender Discrimination
and/or Harassment.” (Italics added.) It was not a request for
amendment according to proof, it was plainly an attempt to get a
second bite of the apple.
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As summarized by our Supreme Court, amendments
according to proof “ ‘have been allowed with great liberality “and
no abuse of discretion is shown unless by permitting the
amendment new and substantially different issues are introduced
in the case or the rights of the adverse party prejudiced.” ’ ”
(Garcia v. Roberts (2009) 173 Cal. App. 4th 900, 909, quoting
Trafton v. Youngblood (1968) 69 Cal. 2d 17, 31.) Amendments of
pleadings to conform to proof should not be allowed, however,
“ ‘ “when they raise new issues not included in the original
pleadings and upon which the adverse party had no opportunity
to defend.” ’ ” (Ibid., italics added.)
The court did not state its reasoning for allowing the
retaliation claim to come in at the conclusion of evidence, and we
cannot surmise why it would force UCLA to defend against a
cause of action it disposed of before trial. The court merely stated
reviving the claim would be harmless. We disagree.
The purpose of summary adjudication is to “dispose of one
or more issues before trial so that the parties may focus on the
questions remaining.” (Conway v. Bughouse, Inc. (1980)
105 Cal. App. 3d 194, 202.) When the trial court adjudicated the
retaliation claim, the judgment as to that issue was final and
could not be revived. We can imagine few things more prejudicial
to UCLA than to have that judgment nullified at the close of
evidence, forcing UCLA to argue an issue it could not have
reasonably been expected to defend.
Additionally, retaliation is an egregious offense. It is
entirely separate from the issue of whether there was indeed
discrimination and is proven by different acts and events. It
necessarily implies UCLA sought revenge against Dr. Pinter-
Brown when she complained. To subject an employee to
66
disparate treatment on account of gender is one thing. To punish
her for standing up for herself is quite another – it requires a
certain amount of calculated hostility that a jury could easily find
worthy of very harsh punishment.
The court had already adjudicated the retaliation issue. To
put it before the jury at the eleventh hour constituted an ambush.
Dr. Pinter-Brown took advantage of this ambush when, on
rebuttal, she argued to the jury: “There is no reference by the
defense, one iota, about retaliation claims specifically because
with the retaliation claim, Dr. Pinter-Brown, she doesn’t have to
prove that discrimination actually occurred. She doesn’t have to
prove that harassment actually occurred. She just has to prove
that she reasonably believed that is what was going on and that
she complained about it and that she was retaliated by it.” (Sic.)
It was contrary to law and manifestly unfair to UCLA to
allow Dr. Pinter-Brown to argue retaliation to the jury after the
issue was summarily adjudicated, and then to imply UCLA’s
failure to defend against the retaliation claim during oral
argument was itself evidence of retaliation.
IV. UCLA Was Prejudiced by the Cumulative Errors
“Where mistakes on the part of the trial court abound and
touch not only the charge to the jury but also rulings on evidence,
it cannot be assumed that defendant has had a fair trial and that
no miscarriage of justice has resulted.” (People v. McGee (1947)
31 Cal. 2d 229, 245 (dis. opn. of Carter, J.).)
The errors in this case were cumulative: (1) the court’s
charge to the jury that they stand in the shoes of Dr. King and
bend the arc of the moral universe toward a future free of
discrimination; (2) allowing the contents and conclusions of a
report documenting racial discrimination at UCLA, authored by a
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retired Supreme Court justice, to be used as propensity evidence
to show UCLA’s Medical School discriminated against Dr. Pinter-
Brown on the basis of gender; (3) allowing the jury to view and
hear testimony about a long list of anonymous unadjudicated
discrimination complaints not properly connected to Dr. Pinter-
Brown’s particular circumstances or her theory of the case; and
(4) resurrecting after the close of evidence a retaliation claim
previously adjudicated against Dr. Pinter-Brown.
We conclude this was a reasonably close case. The evidence
suggested Dr. Pinter-Brown was treated poorly by Dr. de Vos and
her supervisors at UCLA. The timing of the audits after five
years of problem-free clinical research could create suspicions
about UCLA’s motives and intent. The immediate reaction that
this was just a personality clash between her and her colleagues
is a common employer theme. Additionally, Dr. Glaspy and Dr.
Slamon, Dr. Pinter-Brown’s immediate supervisors, could have
done more to help her and to take her genuine distress more
seriously.
On the other hand, there was ample evidence there were
legitimate reasons for the audits; Dr. Pinter-Brown did not
sufficiently respond to the audit reports; she received the support
she needed to regain her privileges as a principal researcher
without a loss in pay; and she herself did not feel the harassing
and dismissive actions of her colleagues were gender-based.
Based on the totality of the circumstances, we cannot
conclude the cumulative errors identified here were harmless.
(See Piscitelli v. Friedenberg (2001) 87 Cal. App. 4th 953, 976.)
Because the evidence was closely balanced, with two jurors
finding in favor of UCLA, we believe it is reasonably probable a
result more favorable to UCLA would have been reached in the
68
absence of these errors. (See Menchaca v. Helms Bakeries, Inc.
(1968) 68 Cal. 2d 535, 545.)
The court’s errors constituted a miscarriage of justice and
created an atmosphere in which UCLA did not receive a fair trial.
Accordingly, we reverse the judgment.
DISPOSITION
The judgment is reversed. Costs are awarded to
Appellant Regents of the University of California.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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