In an unpublished opinion dated May 27, 2011, the United States Court of Appeals for the Ninth Circuit remanded to the federal trial court a California physician’s (Dr. Van A. Pena) claim that his whistleblowing activities led defendants Sonoma Development Center (SDC), SDC Executive Director Timothy Meeker, and SDC Medical Director Judith Bjorndal to terminate his employment.  According to the Ninth Circuit, Pena presented sufficient evidence to allow the question of the retaliatory discharge to go to the jury.

Pena claimed that he was fired in retaliation for a confidential complaint he submitted to the California Department of Health Services (DHS) regarding removal of patient photographs from files at SDC.  As a result of Pena’s DHS complaint, DHS issued a Statement of Deficiencies to SDC and required SDC Executive Director Timothy Meeker to implement a Plan of Correction modifying SDC policies for removal of patient photographs.  According to the court, Pena presented evidence that, exactly one week after SDC implemented its Plan of Correction, Pena’s habit of taking patient photographs was raised as a “big issue” at a meeting attended by Bjorndal and Meeker.  Pena also presented evidence that he had a reputation among his superiors at SDC “as a repeat whistleblower whose complaints of patient mistreatment threatened to subject SDC to legal liability.”

In granting summary judgment in defendants’ favor, the district court concluded that Pena failed to raise a genuine issue of material fact as to whether Bjorndal knew he was the individual responsible for the DHS complaint.  The Ninth Circuit disagreed.  “That SDC supervisory personnel viewed Pena as a troublesome whistleblower and that his taking of patient photographs was raised at both an executive committee meeting and in a meeting between Bjorndal and Pena only one week after the SDC had been compelled by DHS to implement a Plan of Correction on the subject of patient photographs provides strong circumstantial evidence from which a reasonable factfinder could infer that SDC leadership, including Bjorndal, suspected Pena of having filed the DHS complaint and retaliated against him on that basis.”

The Ninth Circuit also held that the district court, at Pena’s first trial, improperly excluded testimony from Ed Contreras, SDC police chief, that Meeker ordered him to “find dirt” on Pena.  “Because a retaliation suit ‘requires a showing of an employer’s improper motive. . . retaliation cases often turn upon circumstantial evidence.  Here, the fact that SDC leaders, including Bjorndal’s direct superior, desired Pena’s termination so strongly that they were willing to engage the SDC Police Chief in a cloak-and-dagger investigation of Pena would allow a jury to infer that those leaders would have communicated that desire to Bjorndal.”  This evidence, the Ninth Circuit said, was highly probative and any possible prejudice could be addressed by the defendants’ testimony.

Finally, Pena also appealed the district court’s grant of summary judgment to defendants on Pena’s claim that he was discharged in retaliation for exercising his First Amendment rights by complaining to Bjorndal of mistreatment of patients at SDC.  The Ninth Circuit affirmed the district court’s ruling, holding that Pena’s reporting of mistreatment to an SDC superior “fell squarely within his official duties as an SDC physician, [and therefore] he was not entitled to First Amendment protection for that action . . .”  

A copy of the Ninth Circuit’s opinion is available here.