Court spurns UC Davis harassment suit defense that cites First Amendment rights

Emergency department at UC Davis Medical Center.
Emergency department at UC Davis Medical Center. rpench@sacbee.com

On paper at least, Dr. Un Hui Nam appeared to be an unlikely candidate for expulsion from UC Davis Medical Center residency program.

Before joining the center’s anesthesia department, she distinguished herself as a general surgery intern at the UCLA Medical Center. She graduated from the Indiana University School of Medicine’s surgical honors program. She held a doctorate in pharmacy from Purdue University.

Yet, in January 2012, she was deemed a disruptive, unruly and unpleasant person and dismissed from the UCD program.

The native of Korea, now 39, sued the UC Board of Regents in January 2013, claiming she had been subjected to discrimination, sexual harassment and retaliation, and sought unspecified monetary damages.

The university’s attorneys maintained that their client was insulated from legal attack by its rights under the First Amendment to the U.S. Constitution to petition government and to speak freely.

The document filed by the attorneys is called an anti-SLAPP motion. SLAPP stands for “strategic lawsuit against public participation,” and a California statute enacted in 1992 outlaws such an action.

When the state Legislature passed the anti-SLAPP statute, it pointed to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”

(It would) become fatal for most harassment, discrimination and retaliation actions against public employers if we were to accept the (university’s) misguided reading of the anti-SLAPP law.

3rd District Court of Appeal panel, in July 29 ruling

Now, however, there is a growing concern within the judiciary that the “remedy has become the disease,” as one court put it.

The Sacramento-based 3rd District Court of Appeal saw UC Davis’ maneuver against Nam as part of that trend, as did the lower court. In a 20-page published opinion issued July 29, the appellate panel sent the case back to Superior Court.

“The anti-SLAPP law was designed to ferret out meritless lawsuits intended to quell the free exercise of First Amendment rights, not to burden victims of discrimination and retaliation with an earlier and heavier burden of proof than other civil litigants and dissuade the exercise of their right to petition for fear of an onerous attorney fee award,” the justices declared. When a defendant prevails on an anti-SLAPP motion, the plaintiff is generally on the hook for the defendant’s attorney fees.

The three justices said it would “become fatal for most harassment, discrimination and retaliation actions against public employers if we were to accept the (university’s) misguided reading of the anti-SLAPP law.”

The opinion was authored by Presiding Justice Vance W. Raye, with Associate Justices George Nicholson and M. Kathleen Butz concurring.

The California anti-SLAPP statute also has come under criticism from a panel of justices at the 1st District Court of Appeal for its potential for abuse.

In the Nam case, the record is replete with both complaints and praise about Nam’s performance at UCD.

A paper trail was built with warnings of unprofessional conduct and an inability to get along with other doctors. Many of the accusations were not substantiated by a series of internal investigations, and reports generated by investigators criticized the anesthesiology department for what it did, and did not do, in carrying out its obligation to teach Nam the clinical and interpersonal skills needed to succeed as a resident.

According to court papers filed on behalf of Nam, she traces the genesis of the friction to two events.

The first was an email she drafted on Sept. 1, 2009, two months after her arrival, expressing her disagreement with any policy compelling residents in an emergency to wait for the on-call team rather than intubating a patient immediately.

The email followed by one week an evaluation of her performance that contained remarks like “Impressed the way Dr. Nam worked at level of training.” Strengths mentioned in the evaluation included “attentive to patient needs” and “receptive to feedback.”

Nam copied all of the residents with her email, some of whom warned her that she should expect retaliation.

She never received a reply to her email from any of those overseeing the residents’ work. Instead, she received a letter three weeks later from Dr. Brian Pitts, then residency program director, with a litany of criticisms of her. They included her use of a cellphone in an operating room, wearing personal clothing in an operating room, resistance to relieving an overnight anesthesia provider in an operating room and disrespect for an attending physician.

Nam’s program mentor, Dr. Michael Hof, was so incensed by Pitts’ letter that he wrote back, saying among other things: “We must ensure absolutely that Dr. Nam is not being singled out nor that she has been or will be the victim of bullying, harassment or retaliation.”

The second seminal event in Nam’s mind, which is described in court papers, was an alleged encounter between Nam and Dr. Amrik Singh, who had by then succeeded Pitts as head of the residency program, at a holiday party in December 2009.

While walking toward the women’s restroom, Nam said she was stopped by Singh, who “proceeded to tell me how beautiful I looked. As he spoke, he stared directly at my chest rather than my face.”

“Near the end of this conversation, Dr. Singh proceeded to walk towards the men’s restroom and opened the door in a manner that suggested that I join him in the restroom,” Nam said. “I pretended that I did not understand what Dr. Singh meant and proceeded to the women’s restroom.”

Five months later, Singh wrote Nam a letter chronicling examples of what he said was her unprofessional conduct, including tardiness, an inability to get along with some other residents and irresponsibility in handling controlled substances.

But, following her 14-day leave ordered by Singh, investigators concluded there was no evidence of any defects in Nam’s clinical performance.

In a 16-page sworn court declaration dated May 16, 2013, Singh refuted Nam’s allegations and he detailed Nam’s purported transgressions.

According to UC Davis Health System spokeswoman Tricia Tomiyoshi “the sexual harassment allegations the plaintiff made against Dr. Amrik Singh were fully investigated by an independent investigator and were found to be unsubstantiated.”

The independent investigator was Jamie Ross, a clinical professor at the Medical Center’s Department of Internal Medicine.

A copy of Ross’ report says Ross interviewed Singh, but it gives no inkling as to what Singh said. The report says Nam “provided no evidence to support” her sexual harassment claim against Singh.

The attorneys for the university did not return calls for comment.

The university may seek review of its anti-SLAPP motion’s fate at the California Supreme Court, or abandon the anti-SLAPP strategy and return to Superior Court.

Denny Walsh: 916-321-1189