Timothy Ryan v. Brant Putnam

Case 2:17-cv-05752-CAS-RAO Document 83 Filed 03/21/22 Page 1of38 Page ID #:3642

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

Present: The Honorable CHRISTINA A. SNYDER

Catherine Jeang Laura Elias N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Kenneth White John Manier

Linda Hurevitz

Proceedings: MOTION OF DEFENDANTS HAL YEE, JR., M.D, ANISH

MAHAJAN, M_D., MITCHELL KATZ, M.D., CHRISTIAN DE

VIRGILIO, M.D., AND ROGER LEWIS, M.D. FOR SUMMARY

JUDGMENT OR PARTIAL SUMMARY JUDGMENT (Dkt. 75,

filed on February 14, 2022)

I. INTRODUCTION

On August 3, 2017, plaintiff Timothy Ryan, M.D., formerly a vascular surgeon at

Harbor-UCLA Medical Center (“Harbor-UCLA”), filed this action against defendants

Brant Putnam, M.D., Janine Vintch, M.D., Anish Mahajan, M.D., Christian De Virgilio,

M.D., Hal F. Yee, M.D, and Does 1-50. Dkt. 1 (“Compl.”). On October 6, 2017, Ryan

filed the operative first amended complaint (“FAC”), which adds Roger Lewis, M.D., and

Mitchell Katz, M.D., as defendants. Dkt. 14 (FAC). Ryan’s FAC alleges that defendants

violated his First Amendment rights by disciplining him for reporting physician

misconduct at Harbor-UCLA to federal, state, and local government agencies. Id.

Ryan’s FAC alleges a single claim for relief, against all defendants: retaliation based on

exercise of right to free speech, in violation of 42 U.S.C. § 1983. Id. The FAC seeks

punitive damages against defendants Putnam, Yee, Lewis, Katz, and de Virgilio. Id.

On October 27, 2017, defendants moved to dismiss plaintiff's FAC. Dkt. 15. On

February 15, 2018, the Hon. Manuel L. Real, now deceased, granted defendants’ motion

to dismiss, finding that defendants were entitled to qualified immunity. Dkt. 22 (“MTD

Order”). On February 23, 2018, Ryan provided notice of his appeal of the MTD Order to

the United States Court of Appeals for the Ninth Circuit. Dkt. 23. On September 18,

2019, the Ninth Circuit reversed and remanded the MTD Order, finding that “qualified

immunity [was] not warranted at [that] stage.” Dkt. 26. Specifically, the Ninth Circuit

stated that “[a]n adverse employment action is [an] action ‘reasonably likely to deter [the

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

plaintiff] from engaging in protected activity under the First Amendment’” (quoting

Coszalter v. City of Salem, 320 F.3d 968, 976 (9th Cir. 2003)), and found that “[s]ince

2002, [the Ninth Circuit has] recognized that an employer’s decision to initiate

disciplinary proceedings against a doctor that threaten to revoke staff privileges, when

combined with a negative effect on employment prospects, is enough to satisfy the

‘adverse employment action’ requirement.” Dkt. 26 at 2-3 (citing Ulrich v. City & Cty.

of San Francisco, 308 F.3d 968, 977 (9th Cir. 2002)). In light of that background, the

Ninth Circuit found Ryan’s allegations “sufficiently similar to Ulnich to satisfy the clearly

established prong of the qualified immunity analysis at [that] early stage.” Dkt. 26 at 3.

On October 15, 2019, the case was randomly reassigned to this Court. Dkt. 28.

On Apmil 17, 2020, defendants submitted their answer to the FAC. Dkt. 36.

On October 29, 2021, defendants Putnam and Vintch filed a motion for summary

judgment or, alternatively, partial summary judgment. Dkt. 61. On January 10, 2022, the

Court denied the motion of defendants Putman and Vintch for summary judgment or

partial summary judgment. Dkt. 70. On February 4, 2022, Putnam and Vintch informed

the Court of their appeal, to the Ninth Circuit, of the Court’s January 10, 2022 summary

judgment order. Dkt. 72.

On February 14, 2022, defendants Yee, Mahajan, Katz, de Virgilio, and Lewis

(‘defendants’) filed the instant motion for summary judgment. Dkt 75-1 (“Mot.”).

Defendants also filed a statement of uncontroverted facts. Dkt. 75-2 (“SUF”). On

February 28, 2022, Ryan submitted his opposition to defendants’ motion for summary

judgment. Dkt. 79 (“Opp.”). Ryan also submitted a statement of genuine disputes of

material fact, which includes additional material facts. Dkt. 79-1 (“GDF”). On March 7,

2022, defendants submitted their reply (Dkt. 80 (“Reply”)) and a response to plaintiff's

statement of genuine disputes of material fact (Dkt. 80-1 (“SUF Reply”)).

The Court held a hearing on March 21, 2022. Having carefully considered the

parties’ arguments and submissions, the Court finds and concludes as follows.

///

///

///

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

II. BACKGROUND

Unless otherwise noted, the Court references only facts that are uncontroverted and

to which evidentiary objections, if any, have been overruled.'

A. The Parties

Ryan was employed by Harbor-UCLA “as a Staff Vascular Surgeon, Physician

Specialist, from October 2013 to October 2018, and first obtained medical staff privileges

in 2013.” SUF No. 9. Harbor-UCLA “is owned by the County of Los Angeles

(“County”) and operated by the County’s Department of Health Services (“DHS”).” Id.

No. 1.

In order to practice as a physician at Harbor-UCLA, physicians must hold a license

issued by the California Medical Board, and separately must hold medical staff privileges

that allow physicians to treat patients at Harbor-UCLA. Id. No. 2. Medical staff

privileges at Harbor-UCLA are granted by the Credentials Committee, a subcommittee of

the Medical Executive Committee (““MEC’”), which, in turn, is part of Harbor-UCLA’s

Professional Staff Association (“PSA”). Id. Medical staff privileges for Harbor-UCLA

must be renewed every two years. Id.

Harbor-UCLA’s PSA functions in accordance with its Bylaws, and “is tasked with

monitoring physicians’ compliance with credentialing requirements, and evaluating all

members and applicants in accordance with peer review criteria, adopted consistent with

the Bylaws and the PSA’s peer review process.” Id. Nos. 3-4. “The PSA’s MEC

includes the PSA’s Officers and the Chair of each PSA Department (e.g., Roger Lewis,

M.D., as Chair of Emergency Medicine from 2013 to 2020), among others, as well as

several ex officio members without voting privileges, including Harbor-UCLA’s Chief

1 “Tn motions for summary judgment with numerous objections, it is often unnecessary

and impractical for a court to methodically scrutinize each objection and give a full

analysis of each argument raised.” Capitol Records, LLC v. BlueBeat, Inc., 765 F. Supp.

2d 1198, 1200 (C_D. Cal. 2010). To the extent that the Court relies on objected-to

evidence, it has considered and OVERRULED the applicable evidentiary objections

because the objected-to-evidence is relevant and admissible. Evidence not considered by

the Court is not addressed.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

Medical Officer (““CMO”)—but did not include Hal Yee, Jr., M.D. after 2013, or Mitchell

Katz, M.D. at any time.” Id. No. 5.

De Virgilio “has been Chair of Harbor-UCLA’s Department of Surgery since

January 2016, after serving one year as Interim Chair, and has been a member of the

MEC as Chair and Interim Chair.” Id. No. 8. Yee “has served as CMO of the County’s

DHS since 2011.” Id. No. 46. Katz “was Director of the County’s DHS from 2010 to

September 2017.” Id. No. 47. Mahajan “has served as Harbor-UCLA’s CMO since

August 2016, at which time he became an ex officio (nonvoting) member of the MEC.”

Id. No 48. Lewis was Chair of Emergency Medicine at Harbor-UCLA from 2013 to

2020, and was part of the MEC during that time period. Id. No. 5.

Putnam “was a member of the MEC from 2011 to 2021, and served as President of

the PSA and Chair of the MEC from July 1, 2015 to June 30, 2018.” Id. No. 6. Vintch

“has been a member of the MEC since 2006; she was Vice President of the PSA and Vice

Chair of the MEC from July 1, 2015 to June 30, 2018, and President of the PSA and

Chair of the PSA from July 1, 2018 to June 30, 2021.” Id, No. 7.

Yee, Mahajan, and Katz did not attend any MEC meetings during which Ryan was

discussed. Id. No. 49.

B. The Best-CLI Trial and Ryan’s Concerns that UCLA-Harbor

Physicians Falsified their Attestations

In 2014, Ryan “became aware of a clinical trial sponsored by the National Institute

of Health (“NIH”) called BEST-CLI, which stands for Best Endovascular vs. Best

Surgical Therapy in Patients with Critical Limb Ischemia.” GDF No. 100. “The clinical

trial was designed to evaluate what procedures on patients with critical limb ischemia led

to the best results, comparing endovascular surgery (which uses catheters and is less

invasive) with open surgery.” Id. The trial required physicians to have completed a set

number of surgeries to qualify for participation. Id. No. 101. Ryan “became concerned

that some [UCLA-Harbor] surgeons—including Dr. Rodney White [| and Dr. Carlos

Donayre [|—had not completed the requisite number of surgeries to qualify for the trial,

and that they had therefore falsified the attestation in their applications in order to

participate.” Id. White has stated that the BEST-CLI trial was “a big national trial [that

cost] over $20 million dollars.” Id. No. 182.

On December 4, 2014, Ryan reported his concerns regarding the possibly falsified

attestations to Dr. Timothy Van Natta, Chief Medical Officer at UCLA-Harbor, and De

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

Virgilio, but based on their responses, Ryan did not believe that “they were seriously

investigating whether Harbor surgeons had falsely inflated their surgical experience in

order to qualify for the BEST-CLI trial.” Id. Nos. 102-103. Accordingly, on December

4, 2014, Ryan “contacted the NIH and reported his concerns, providing his basis for

believing that Dr. White and Dr. Donayre, among others, had falsified their attestations in

their application to participate in the BEST-CLI trial.” Id. No. 105. On approximately

December 9, 2014, Ryan informed Van Natta that he had made a report to the NIH. Id.

No. 106.

On February 12, 2015, the Surgical and Interventional Management Committee

(“SIMC”) for the BEST-CLI Trial found that “no one at [UCLA-Harbor] currently meets

the criteria to serve as an independent endovascular operator” and that until someone on

site met the criteria, “the site should no longer enroll patients in the BEST-CLI Tnial.”

Dkt. 62-5 at Ex. 331. On March 30, 2015, SIMC “found that several members of the

Harbor-UCLA team misrepresented their procedural volume histories to meet the criteria

of independent endovascular operator.” Dkt. 61-7 at Ex. 24. However, despite the

finding that members of the Harbor-UCLA team had engaged in misrepresentation, the

HHS Office of Research Integrity “advised that the falsification of information in this

situation would not constitute research misconduct” and stated that it “will not investigate

this matter further.” Id.

C. ‘Patient “BH” and Ryan’s Concerns Regarding an Alleged Kickback

Scheme

In December 2013, Ryan “treated a patient “BH’ for an aortic dissection . . . with

medication, which he believed to be the appropriate course.” GDF No. 109. Shortly

after Ryan treated patient BH, “Dr. White’s nurse Rowena Buwalda copied Dr. Ryan on

an email reporting that she had instructed BH to come to the hospital the following day

and to complain of chest pains when she did so.” Id. No. 110. Ryan “further learned that

Dr. White had performed surgery on BH, implanting a stent graft manufactured by

Medtronic,” even though Ryan “firmly believed that BH had responded well to non-

surgical management and that she had no need for the stent graft procedure.” Id. Nos.

112-113. BH “suffered a serious aortic injury as a result of the stent graft surgery,

resulting in a major stroke that impaired her ability to speak.” Id. No. 114.

Ryan believed that “Dr. White had falsified the medical record to justify the stent

graft, describing symptoms inconsistent with what I had observed.” Dkt. 62-4

(Declaration of Plaintiff Timothy Ryan, M.D. (“Ryan Decl.”)) § 6. Moreover, Ryan

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

“concluded that Dr. White, Dr. Donayre, and others were implanting stent grafts

manufactured by Medtronic in patients where they were not medically warranted, and

that they had a financial incentive to do so” because “[t]he device manufacturer

Medtronic was paying them thousands of dollars each time they implanted one of

Medtronic’s stent grafts under the guise that they were conducting a ‘teaching course’ on

how to do so when they implanted the stent graft.” Ryan Decl. 7. Ryan states that he

“knew this because in December 2013 Medtronic offered to pay me to participate” in the

teaching courses. Id. Ryan states that “[b]ased on my direct observation of the

operations associated with these supposed ‘courses,’ I know there were no physicians

present to observe the procedure, so no one to ‘learn’ from the ‘course.”” Id.

Ryan conducted an “investigation,” and came to believe that “the doctors received

several thousand dollars per implant,” and that “Medtronic was paid tens of thousands of

dollars per case where Medtronic devices were implanted.” Id. Ryan “was gravely

concerned by this development, because he believed it represented doctors getting

kickbacks from a device manufacturer for using their product, that it compromised

medical judgment about whether the devices were medically indicated, and that it

threatened the health and safety of patients for whom the stent grafts were not medically

indicated, as in the case of BH.” GDF No. 120.

Accordingly, Ryan submitted a complaint regarding White, and later was able to

confirm that the Harbor-UCLA PSA conducted a Focused Professional Performance

Evaluation (“FPPE”) of White because Ryan was interviewed by the FPEE team. SUF

No. 13; GDF No. 125. In the interview, Ryan told the FPPE team “about his concerns

and conclusions about Dr. White and the Medtronic kickbacks, and provided them with

documentation including BH’s medical records.” GDF No. 125.

By September 2014, Yee was aware of the FPPE against White, that Ryan was

threatening to blow the whistle to federal authorities, and that Ryan felt that White was

retaliating against him. GDF No. 227.

D. Ryan Reports the Alleged Kickback Scheme to Criminal Authorities

Ryan was not satisfied with UCLA-Harbor’s response to his complaint regarding

the alleged Medtronic kickback scheme. GDF No. 126. Accordingly, on approximately

January 12, 2015, Ryan “called the Los Angeles District Attorney’s Office and spoke to a

Deputy District Attorney . . . describing his concerns that Harbor physicians were getting

kickbacks for implanting devices that were not medically indicated.” Id. No. 127. “The

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

Deputy District Attorney told Dr. Ryan that the District Attorney’s Office would

investigate, and later interviewed Dr. Ryan.” Id. Shortly thereafter, Ryan told de

Virgilio that “he had reported his concerns to the District Attorney’s Office and [that]

they would be investigating.” Id. No. 128.

On January 15, 2015, Dr. Yee learned from Dr. Van Natta that Dr. Ryan’s reports

to the District Attorney’s office had resulted in an apparent investigation, and that Dr.

Ryan had made a report to the NIH. GDF No. 229.

Defendants contend that Lewis was not aware that Ryan made any reports to

persons or entities outside of Harbor-UCLA. SUF No. 93. However, it appears that

Lewis was present at a April 25, 2016 MEC meeting during which Yee gave input

regarding whether action by the PSA against Ryan could be seen as retaliation for

whistleblowing, and the participants discussed that one aspect of Ryan’s lawsuit involves

“patient concerns and whistleblowing.” Dkt. 62-5 at Ex. 360.

E. White’s Complaints Regarding Ryan; The MEC’s Response

On January 26, 2015, White emailed Human Resources, Van Natta, and de Virgilio

“to report invasion of personal privacy, and potential federal |] and state (California

Medical Privacy Act) patient privacy violations by Dr. Timothy Ryan.” Dkt. 62-5 at Ex.

341. On February 4, 2015, White submitted an affidavit and several exhibits in support

of his report. Id. White’s affidavit “complained that Dr. Ryan had improperly reviewed

medical records and operative reports and approached [UCLA-Harbor] personnel to

collect information regarding Dr. White and his patients.” GDF No. 133. Moreover,

White’s affidavit “attached a computerized report of surgeries which he claimed Dr.

Ryan had asked an assistant to print for him.”” Id. No. 135. “[A] recognized HIPAA

Compliance Officer review|ed] the case and it was found that no [HIPAA] violation

occurred on the part of Dr. Ryan.” Dkt. 62-5 at Ex. 365.

? The footer at the bottom of the report is dated January 30, 2015, 1.e., after White’s

complaint. See Dkt. 62-5 at Ex. 341. The parties dispute whether this date refers to the

date the report was created or to the date the documented was printed or reprinted. See

GDF No. 136; SUF Reply No. 136.

3 Separately, on July 29, 2015, White filed suit against Ryan. SUF No. 41. The lawsuit

was later dismissed in exchange for Ryan’s dismissal of his own lawsuit against White.

Id. No. 42.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

On August 25, 2015, White made a Request for Corrective Action (“CAR”) to be

taken against Ryan to the PSA. SUF No. 14. White claimed, inter alia, that Ryan

“engaged in conduct detrimental to the delivery of quality patient care,” “invaded his

personal privacy, and violated both the Health Insurance Portability and Accountability

Act (“HIPAA”) and California’s Confidentiality of Medical Information Act, by

accessing confidential patient information in Dr. White’s office.” Id.; GDF Nos. 148-

149. Ryan contends that “Dr. White’s [CAR] described Dr. Ryan’s activities asking for

and reviewing records to make reports to the NIH and District Attorney’s Office.” Ryan

Decl. § 13.

On September 28, 2015, the MEC discussed Dr. White’s CAR. SUF No. 15; GDF

No. 153. The draft meeting minutes noted that “Dr. Ryan considers himself a

whistleblower because he thought this bad thing happened and he wanted to do right.”

Dkt. 62-5 at Ex. 365. They further noted that “[t]o take corrective action beyond the

investigation could be considered retaliation because we feel this issue has been

investigated adequately,” but, “[o]n the other hand, it is not necessarily under the purview

of the whistleblower to do their own investigation and start digging into whatever they

want.” Id. The draft meeting minutes also stated that “[t]he PSA spent months and

worked very diligently on this and ultimately there was no resolution,” “now we are

being asked to investigate this again,” and that “these complaints were taken seriously

and went appropriately to HR Performance Management and the HIPAA compliance

Officer and the difference now is that there are attorneys involved and litigation.” Id.

Finally, they stated that “a recognized HIPAA Compliance Officer review|[ed] the case

and it was found that no HIPAA violation occurred on the part of Dr. Ryan.” Id.

In November or December 2015, White submitted an addendum to his CAR. SUF

No. 16; GDF No. 169. The addendum stated, in part, that:

“On November 19, 2015 I was advised by the County's Intake Specialist Unit that

Dr. Ryan filed a complaint against me. On November 24, 2015, I received another

letter from that same unit, that the complaint had been initially investigated, that

the allegations would not be investigated further and that the matter was

considered closed. Enclosed are copies of both letters. This continuing pattern of

harassment, and unscrupulous conduct by Dr. Ryan, is having a severe adverse

impact on me, as a member of the medical staff, and on my personal and

professional life.”

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

SUF No. 16; GDF No. 169.4 On December 28, 2015, Putnam presided over an

MEC meeting to discuss White’s addendum to his CAR. SUF No. 19; GDF No. 172. At

the meeting, the MEC “noted the next step would be to complete an FPPE on Dr. Ryan

because of the allegations of questionable conduct.” SUF No. 19.° Accordingly, on

December 28, 2015, the MEC directed a FPPE be undertaken by an “Ad Hoc

Committee.” Id. No. 21. The members of the committee were chosen by de Virgilio as

Department Chair; none of the committee members are parties to this litigation. Id.; GDF

No. 174. While defendants contend that the MEC directed the FPPE “[p]|ursuant to the

PSA bylaws,” SUF No. 21, Ryan claims that the FPPE was not directed pursuant to the

PSA bylaws because the MEC “believed it [had] investigated the issue ‘adequately’ and

the previous investigation determined ‘no HIPAA violation occurred on the part of Dr.

Ryan.’” GDF No. 21 (quoting Dkt. 62-5 at Ex. 365 (draft of September 28, 2015 MEC

meeting minutes)).

4 Similarly, on December 31, 2015, White wrote to de Virgilio complaining that Ryan

had violated HIPAA by gathering data “to initiate the Fraud investigation against Harbor

(me) with the trial Steering Committee, and the NIH.” GDF No. 173.

> Whereas Putnam stated in his deposition that “typically when there are concerns

brought forward either from a department chair or independently to the PSA leadership

about unprofessional behavior, our first approach is always to make sure the staff

member’s correct supervisor has been involved, has done the appropriate counseling, and

the department chair would definitely get involved if the initial supervisor counseling had

not improved things” (SUF Reply No. 189), Ryan was not counseled about yelling at

people prior to the imposition of the FPPE. GDF Nos. 191-192. On the other hand, de

Virgilio stated in deposition that he spoke to Ryan about his temper, and about being

more positive and collaborative, but added that speaking to Ryan was difficult because he

was “intimidating.” SUF No. 95; SUF Reply No. 189. The PSA Bylaws state that

“It]hese bylaws encourage| | the use of progressive steps by Association leaders and

Medical Center management, beginning with collegial and educational efforts, to address

questions relating to an Association Member’s clinical practice and/or professional

conduct. The goal of these efforts is to arrive at voluntary, responsive actions by the

individual to resolve questions that have been raised.” GDF No. 190. The PSA Bylaws

also state that “collegial intervention efforts are encouraged but are not mandatory, and

shall be within the discretion of the appropriate Association and Medical Center

management.” SUF Reply No. 190.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

Yee, Mahajan, and Katz had no involvement in the MEC’s decision to direct an

FPPE regarding Ryan. SUF No. 50. Plaintiff contends that “The PSA involved Drs. Yee,

Mahajan, and Katz in its actions against Dr. Ryan throughout its process of retaliation,

including prior to and during the time the PSA ordered the FPPE, and Drs. Yee, Mahajan,

and Katz deliberately participated in the PSA’s responses.” GDF No. 50. However, the

Court reviewed the evidence submitted by plaintiff, and that evidence does not establish

that Yee, Mahajan, or Katz participated in the decision to direct an FPPE regarding Ryan.

See Dkt. 79-2 (“Supp. White Decl.”), Exs. H-K, L-O, Q-V.

F. The FPPE Investigation and Findings; The Behavioral Agreement

Ryan refused to meet with the Ad Hoc Committee after it rejected his request to be

provided all questions in writing or be allowed to bring in his lawyer. SUF No. 23. Ryan

stated that he feared he would not be treated fairly by the Ad Hoc Committee. GDF No.

23. After engaging in fact-finding and interviewing 13 witnesses, on February 26, 2016,

“the Ad Hoc Committee issued a FPPE report for the MEC’s review, which included

unanimous committee findings and recommendations with respect to Dr. Ryan’s conduct,

which it found to be unprofessional.” SUF No. 24. The FPPE report, generated by the

Ad Hoc Committee, included the following summary:

“The Ad Hoc Committee believes that Dr. Ryan’s behavior is well below expected

standards for professional conduct. Further, the committee believes that Dr.

Ryan’s behavior has had serious adverse impacts on the wellbeing of many health

care professionals including attending physicians, physician trainees, nurses and

other ancillary staff. His unauthorized access of the files of patients enrolled in

studies or under the care of other physicians may constitute a violation of HIPAA.

Finally, it appears that despite Dr. Ryan’s acknowledged technical expertise, he is

adversely impacting patient care through his behavior. The MEC 1s advised that

the Ad Hoc committee believes that disciplinary action is justified to safe guard

Harbor employees, trainees, and patients. We recommend that MEC should

explore possible actions to remedy the underlying chaotic situation in vascular

division created by Dr. Ryan’s unprofessional behavior. Dismissal from the

medical staff or discontinuation of medical privileges are options that can [be]

considered but the committee is not knowledgeable regarding standards or

precedents for such as action based solely on a lack of professionalism. At a

minimum, we believe that Dr. Ryan should receive professional counseling

regarding his behavior, that behavioral limits should be set, and that ongoing

monitoring of his interactions with others should take place until the problem is

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

believed to be resolved. The Department Chair, residency/fellowship program

directors and nursing directors are suggested as the monitoring team for such

action. This report reflects a unanimous consensus among committee members.”

Dkt. 61-7 at Ex. 5. Ryan contends that the FPEE “accused him of accessing and

requesting medical records improperly, but did not discuss or disclose that he was doing

so to gather information to provide to the NIH, even though the MEC had previously

acknowledged this.” GDF No. 179. Moreover, Ryan points out that the FPPE did not

disclose the Ryan’s report to the NIH “had resulted in Dr. White and Dr. Donayre being

disqualified for participation in endovascular procedures in the BEST-CLI trial.” Id. No.

180. According to Donayre’s witness statement in Ryan’s FPPE, “Dr. Donayre felt the

need to constantly look over his shoulders all the time because of Dr. Ryan. . . . For this

reason Dr. Donayre decided to leave Harbor-UCLA.” Id. No. 186. White left Harbor-

UCLA at the end of April 2016, two months after the FPPE report was issued. SUF

Reply No. 180.

In or around April 2016, MEC members met with Yee to discuss whether any

action taken against Dr. Ryan might compromise the County’s own actions, or might

create “a medical-legal action” against the MEC; Dr. Yee suggested the MEC “proceed

with caution because there was concern about whistleblowing,” but stated the PSA was

“within its rights to take action” and “should proceed” as it sees fit. SUF No. 52.

Following the completion of the FPPE report, “[t]he MEC discussed [it] at its

meetings on March 28 and April 25, 2016, rejected issuing a summary suspension of Dr.

Ryan’s privileges at the March 28 meeting, voted unanimously at the April 25 meeting to

inform Dr. Ryan that it was contemplating taking action against him, and asked Dr. Ryan

to appear before the MEC to give his perspective and answer questions.” SUF No. 26.

On July 25, 2016, Ryan attended a MEC meeting with his attorney, and responded

to the FPPE report as follows:

“{Ryan| did not yell at a patient: he may have spoken sternly to fellows because he

expects more from them; he corrected fellows when they did something wrong;

without specific dates he could not answer regarding lack of communication with

other vascular surgeons; he believed he communicated well: he was not

responsible for Dr. White’s retirement or the departure of another vascular surgeon

(Carlos Donayre, M.D.); and he would consider a behavioral or anger management

program.”

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

SUF No. 28. After Ryan and his counsel left the July 25, 2016 meeting, the MEC

deliberated and voted on its next course of action, but de Virgilio left before this vote

took place. SUF No. 29. “[A] majority of the MEC voted to recommend a Behavioral

Contract and proceed with revocation of Dr. Ryan’s privileges and membership only if he

either did not agree to the Behavioral Contract or breached its terms.” Id, No. 30. Yee,

Mahajan, Katz, and de Virgilio did not participate in the MEC’s decisions to ask Ryan to

sign a Behavioral Agreement and recommend a revocation of Ryan’s clinical privileges

upon his refusal to sign the Behavioral Agreement. Id. No. 54.° Pursuant to the PSA

bylaws, the DHS Director (Katz) and CMO (Yee), and the CMO of Harbor-UCLA

(Mahajan), have no role in any MEC determination of medical disciplinary action, except

to be notified of any recommended corrective action, and the Governing Body’s only

roles are to either adopt the MEC’s recommendation or decide any appeal after a hearing

and decision by the JRC. Id. No. 55.

While the MEC has offered behavioral agreements to other Harbor-UCLA

practitioners, the parties dispute whether UCLA-Harbor has offered Behavioral

Agreements with the same terms as Ryan’s to other practitioners. Id. No. 31; GDF No.

31. In any event, on September 6, 2016, Ryan was provided with the behavioral

agreement (the “Agreement” or “Behavioral Agreement”), which:

e “Listed specific behavioral requirements, including that he not access

computers or other documents belonging to other PSA members, faculty, or

others without authorization, or medical records of patients for whom he is

not directly involved in treatment without express permission by his

Department Chair;

e Required Plaintiff to address concerns regarding individuals at Harbor-

UCLA ‘in private to the appropriate supervisor, administrator, faculty or

PSA leader in a courteous manner, or in written reports using the established

Hospital reporting forms and procedures,’ and prohibited ‘unconstructive

criticism’ calculated ‘to intimidate, undermine confidence, belittle or imply

© The Court finds that the evidence submitted by plaintiff does not support a dispute of

this fact, because it does not demonstrate that Yee, Mahajan, Katz, and de Virgilio were

involved in those MEC decision to offer the Behavioral Contract and revoke Ryan’s

privileges if he refused it. See GDF No. 54; SUF Reply No. 54.

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CIVIL MINUTES —- GENERAL ‘O’

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TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

stupidity or incompetence’;

e Required Dr. Ryan to participate in one of two listed anger management

programs;

e Included a waiver of ‘claims’ resulting’ from any actions or communications

“consistent with the terms of this Agreement,’ or regarding the anger

management program:

e Required Dr. Ryan to cooperate with the PSA’s Well-Being Committee as

specified;

e Required Dr. Ryan to ‘consult with a psychologist or psychiatrist’ (or use a

therapist if he is currently engaged with one) ‘for the purposes of discussing

the scope of the evaluation and the therapeutic goals,’ and ‘to undertake

therapy if recommended by the consultant,’ and required any consulted

mental health clinician ‘to provide progress reports’ to the Well-Being

Committee;

e Provided that upon Dr. Ryan’s failure to comply with the Agreement, he

‘shall be subject to corrective action’ as authorized by the PSA Bylaws,

‘subject to any hearing rights provided in Article VII of the Bylaws, or its

successor, for such corrective action,’ provided that a single arbitrator

qualified to serve as a hearing officer under Article VII may serve as trier of

fact in the MEC’s discretion;

7 The wavier of claims stated that Ryan “agrees to hold free and harmless the Hospital,

members of the EC or authorized committees of the Hospital’s Professional Staff, the

Programs, and any and all representatives of any of them, from and against any and all

claims resulting from any and all actions taken, or communications made, consistent with

the terms of this Agreement. Dr. Ryan further acknowledges that there shall be no

monetary liability on the part of, and no cause of action for damages shall arise against,

the EC, members of the EC or authorized committees of the PSA, the Hospital, or any

and all representatives of any of them, for any acts performed or communications made

regarding the subject matter of this Paragraph 3.2(11).” Dkt. 61-7 at Ex. 7.

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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

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TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

e [Provided that] the Agreement may be terminated by either party; and

e [Provided that] entering into the Agreement would ‘not constitute an action

or recommendation taken for a medical disciplinary cause or reason’ and

would not ‘in and of itself . . . require a report to the Medical Board of

California or any other federal or state agency.’”

SUF No. 32 (quoting Dkt. 61-7 at Ex. 7 (Behavioral Agreement as of September 6,

2016)).8 On September 7, 2016, when Putnam informed Ryan that the MEC was

demanding that he accept a Behavioral Contract, union representative Jake Baxter wrote

to DHS officials asserting that the MEC’s actions against Dr. Ryan were retaliatory and

illegal. GDF No. 239. On September 8, 2016, Mahajan responded to Baxter’s email,

asserting that the PSA was independent of DHS, and that DHS had no role in the PSA’s

actions. GDF No. 240. In discussing Baxter’s claims, Mahajan noted to Yee that county

counsel was “involved in earlier aspects of this related to concerns about retaliation vis-a-

vis whisteblow.” Dkt. 79-2 at Ex. S. On September 9, 2016, Yee stated in an email to

Mahajan that “[y]ou may need to help [county counsel] educate the PSA that they are

indeed indemnified by the County for their appropriate and approved work as physicians

at Harbor, and as such are covered for their work on the PSA as medical staff

themselves.” Id., Ex. T.

In any event, Ryan did not sign the Agreement; he believed that he could not sign

it because “it required [him] to admit to things that were not true, that it was illegal in that

it purported to restrict [him] from reporting misconduct to entities outside of Harbor, and

that it was illegal because it forced [him] to waive claims against the MEC and Hospital.”

Ryan Decl. § 21: see also SUF No. 33. Putnam and Vintch could not recall any other

behavioral agreements that included a waiver of claims. GDF No. 208; SUF Reply No.

208. In at least one instance, another UCLA-Harbor physician “was offered a behavioral

contract for unprofessional, intimidating, and disruptive behavior” that “did not include

the waiver of claims or psychiatric counseling they demanded of Dr. Ryan.” GDF No.

209.

8 Lewis has never provided input into the contents of a behavioral contract, other than to

vote on whether to offer such a contract, and has not been involved in discussion of any

waiver provision in such an agreement. SUF No. 96.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

G. The MEC’s Proposed Action to Revoke Ryan’s Staff Membership and

Privileges

“Based on Dr. Ryan’s refusal to sign a Behavioral Agreement, and in accordance

with the MEC’s decision at the July 25, 2016 meeting, the PSA issued Dr. Ryan the

MEC’s Notice of Proposed Action and Hearing Rights, dated October 5, 2016, which

stated, in part, that:

e “The FPPE report found Dr. Ryan ‘acted aggressively’ and was ‘verbally

abusive to other practitioners, nurses, fellows, and in some instances,

patients,’ that he created ‘a hostile work environment’ where some people

“felt threatened’ and ‘intimidated’ to the point where they desired to leave

“the vascular work team’ or their jobs, and that he publicly criticized ‘the

patient management of other members of the team,’ which adversely

affected well-being of other healthcare officials:

e The FPPE report found Dr. Ryan’s behavior was ‘well below expected

standards for professional conduct’ and violated the PSA Bylaws (§§ 2.2-

2.2, 2.4-2,2.4-3,2.4-7, 2.5-2, and 2.5-2.4), and that disciplinary action was

justified to safeguard employees, trainees, and patients:

e Because Dr. Ryan did not sign and return the Behavioral Agreement, the

MEC proceeded with the final proposed action to revoke Dr. Ryan’s

professional staff membership and privileges at Harbor-UCLA pursuant to

Article VI of the PSA Bylaws;

e This action would not become final until Dr. Ryan exhausted or waived his

hearing and appeal rights under Article VII of the Bylaws, and that his

membership and privileges would remain in place until the action became

final: and

e Ifthe action became final, California Business & Professions Code § 805

would require the filing of a report with the Medical Board of California,

and a report also would be filed with the National Practitioner Data Bank

(“NPDB’”) pursuant to 42 U.S.C. § 11101 et seq.”

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

SUF No. 34. Ryan “exercised his appeal rights in October 2016 and requested a

hearing before a Judicial Review Committee (“JRC”) on the recommendation to revoke

his privileges.” Id. No. 35. On November 10, 2016, PSA sent Ryan a “Notice of

Charges” outlining the PSA’s accusations against him. Id. No. 36; GDF No. 214. The

Notice of Charges accused Ryan of “[o]penly threatening] to call external agencies to

conduct investigations,” and included other accusations related to Ryan’s allegedly

unprofessional and “angry manner,” but did not reference any HIPAA violations. SUF

No. 36; GDF No. 214. The Notice of Charges also stated that Ryan made “unfounded

accusations in an angry manner,” but at deposition Putnam could not remember any

unfounded accusations made by Ryan. SUF No. 36; GDF Nos. 168, 214-215; SUF Reply

No. 215. On February 27, 2017, Putnam sent Ryan a First Amended Notice of Charges

that deleted the accusations related to threatening to call external agencies and making

unfounded accusations in an angry manner. GDF No. 217.

On June 20, 2018, counsel for Ryan and the PSA “jointly submitted a letter . . .

which requested dismissal of the JRC hearing on Dr. Ryan’s appeal without

determination of the merits, and stated that the matter became moot because Dr. Ryan’s

PSA membership and privileges had lapsed.” SUF No. 39. After deeming Dr. Ryan’s

privileges and membership to have lapsed, the PSA did not file a report regarding Dr.

Ryan with the California Medical Board, and did not file such a report with the NPDB

until 2020 after determining it was required to do so.” SUF No. 40.

Ryan contends that he has been unable to secure a surgeon position ever since the

PSA’s proceedings against him, despite dozens of applications, at least in part because

the applications “require him to disclose whether he [has] ever been investigated by a

Professional Staff Association.” GDF No. 221. Ryan believes that “hospitals and

practices will not hire surgeons who are the subject of peer review investigations

regarding their privileges.” Id. No. 222.

H. DHS Investigations into Ryan for Privacy Violations and

Professional Discourtesy

White’s privacy complaint against Ryan to DHS in January and February of 2015

(Case # HU15004) accused Ryan of invading his personal privacy and potentially

violating HIPAA and state privacy laws. SUF No. 59. Initially, Harbor-UCLA’s privacy

coordinator determined that the allegation of unauthorized access in Dr. White’s privacy

complaint to DHS (Case # HU15004) was not substantiated, because DHS policy permits

physicians to obtain de-identified information for research purposes. Id. No. 61.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

However, Harbor-UCLA’s Privacy Coordinator was instructed to reopen the

investigation of Case # HU15004 on January 19, 2016. Id. No. 65. Thereafter, the

privacy coordinator determined that Dr. Ryan inappropriately requested and received PHI

on patients for whom he had no authority, without obtaining prior approval of the Internal

Review Board as required by DHS policy. Id. No. 66. While Ryan acknowledges that

this was the conclusion, he contends that it was legally incorrect because the report did

not address that Ryan was gathering the information to make a report of misconduct.

GDF No. 66.

Additionally, three registered nurses (“RNs”) alleged that Dr. Ryan engaged in

discourteous conduct towards them before July 7, 2015. Id. No. 58. Accordingly, on

July 7, 2015, Joi Williams, then the Chair of DHS’s Performance Management (“PM”)

Unit, sent an email stating that “PM will review issues related to . . . discourtesy by Dr.

Ryan, and allegations of inappropriate comments by Dr. Ryan related to Dr. White.” Id.

No. 57. Dr. Ryan and one of his attorneys, Mark Quigley, met with two PM

Investigators, Cathy Yoo and Nairi Gevorki, on January 26, 2017, for an administrative

interview; Dr. Ryan was given the opportunity to provide an affidavit, but he did not do

so. Id. No. 68. Several other witnesses were interviewed, and several affidavits obtained.

Id. No. 69. After completing its investigation, the PM team drafted a Notice of Intent to

Suspend for Dr. Ryan for Dr. Mahajan’s review, which proposed suspending Plaintiff for

25 calendar days. Id, No. 70. Dr. Mahajan reviewed the draft Notice of Intent to

Suspend to Dr. Ryan, and approved it without making any changes. Id. No. 71. Mahajan

issued the Notice of Intent to Suspend, dated April 4, 2017, to Dr. Ryan on or about April

7, 2017. Id. No. 73. It cited, inter alia, disruptive behavior, ethical conflicts, and misuse

of confidential patient information. Id.; see also SUF No. 74 (investigative evidence

cited in support of the Notice of Intent to Suspend, including evidence of professional

discourtesy, false statements during the investigation, and inappropriate access of

personal health information). The Notice of Intent to Suspect made the following

conclusion:

“Dr. Ryan, your unauthorized access to a list of surgical procedures that included

procedures conducted by other surgeons with protected patient information was

unnecessary and not related to a legitimate business reason. In addition to

reflecting poor judgment, this unauthorized access was a violation of departmental

guidelines and policies meant to safeguard the private medical information of

patients who place their trust in the County. You then continued to show a

disregard for Department policy by provide false information to the Department

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

during an administrative investigation and completely denying receiving

information contained in the report that you requested. Your conduct caused

concern to the Department due to actions and your lack of accountability. Also,

your angry behavior and threatening body language not only violates the

Department’s written policy and procedures but also creates a disruptive

environment and is not conducive in creating a healthy, professional workplace.

Due to your unauthorized access of PHI and your discourteous behavior, the

Department intends to suspend you for twenty-five (25) calendar days from your

permanent position of Physician Specialist.”

SUF No. 77. Ryan and Mahajan first met fact-to-face in April 2017, when

Mahajan issued the Notice of Intent to Suspend to Ryan. Id. No. 79. On April 12, 2017,

Ryan submitted a response to the Notice of Intent to Suspend, in order to “refute [its]

findings and object to any proposed suspension.” Id. No. 81. Therein, Ryan stated, in

part:

“T have been and continue to be the victim of a pattern of harassment ever since I

reported the practices of Dr’s White and Donayre, and your proposed action

continues this harassment. Your review of my use of confidential information

ignores the law. California’s Confidentiality of Medical Information Act

specifically allows a provider of healthcare to disclose information without consent

in a number of circumstances. . . . [including] public agencies]. ]

SUF No. 81. Mahajan and the PM team received, reviewed, and discussed Dr.

Ryan’s response to the Notice of Intent to Suspend, and agreed there was no merit to

Ryan’s response. Id. No. 82. On August 14, 2017, Mahajan issued Ryan a Notice of

Suspension, which stated that Ryan was being suspended for 25 calendar days, from

September 1 through September 25, 2017. Id. No. 83. Ryan’s suspension was not

reported to the California Medical Board. Id. No. 84: GDF No. 84.

In his briefing before the Ninth Circuit, Ryan stated that “Dr. Ryan’s section 1983

claim does not rely on the PSA Bylaws nor the Suspension Notice. The only references

to the PSA Bylaws are in setting out the series of events leading to Defendants’

retaliatory actions underlying this action.” GDF No. 92.

Il LEGAL STANDARD

Summary judgment is appropriate where “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

56(a). The moving party bears the initial burden of identifying relevant portions of the

record that demonstrate the absence of a fact or facts necessary for one or more essential

elements of each claim upon which the moving party seeks judgment. See Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party meets its initial burden, the opposing party must then set out

“specific facts showing a genuine issue for trial” in order to defeat the motion. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c), (e). The

nonmoving party must not simply rely on the pleadings and must do more than make

“conclusory allegations [in] an affidavit.” Lujan v. Nat’] Wildlife Fed’n, 497 U.S. 871,

888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for the

moving party if the nonmoving party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Id. at 322; see also Abromson v. Am. Pac. Corp., 114 F.3d 898,

902 (9th Cir. 1997).

In light of the facts presented by the nonmoving party, along with any undisputed

facts, the Court must decide whether the moving party is entitled to judgment as a matter

of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 &

n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the inferences to be

drawn from the underlying facts . . . must be viewed in the light most favorable to the party

opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (citation omitted); Valley Nat’] Bank of Ariz. v. ALE. Rouse & Co., 121 F.3d

1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper when a

rational trier of fact would not be able to find for the nonmoving party on the claims at

issue. See Matsushita, 475 U.S. at 587.

IV. DISCUSSION

Drs. Yee, Katz, Mahajan, de Virgilio and Lewis (“defendants”) move for summary

judgment or partial summary judgment as to the retaliation claim set forth by Dr. Ryan

(“plaintiff”) in the FAC. Mot. at 9. Defendants argue Yee, Katz, and Mahajan “were not

voting members of the MEC at the relevant time, and never participated in MEC votes or

actions regarding plaintiff.” Id. With respect to Mahajan, defendants point out that

plaintiff's Section 1983 claim is not based on Mahajan’s decision to suspend Ryan, and

that the FAC does not mention the suspension. Id. at 10. Finally, defendants argue that

de Virgilio’s involvement in directing the FPPE was not an adverse employment action,

and that although Lewis participated in relevant the MEC vote to offer the Behavioral

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

Agreement in lieu of suspending Ryan’s privileges, Lewis was not aware of plaintiffs

reports to the NIH or law enforcement and therefore did not harbor any retaliatory

motive. Id. at 10-11. Finally, defendants argue that they are entitled to qualified

immunity. Id. at 9-11.

The Court addresses defendants’ arguments in turn.

A. First Amendment Retaliation

The framework set forth in Eng v. Cooley governs First Amendment retaliation

claims. See Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 822 (9th Cir. 2017) (citing

Eng, 552 F.3d at 1070-72 (9th Cir. 2009). To overcome summary judgment on his

retaliation claim, Ryan must demonstrate that there is a triable issue of material fact that

(1) he spoke on a matter of public concern; (2) he spoke as a private citizen rather than as

a public employee: and (3) the relevant speech was a substantial or motivating factor in

the adverse employment action(s). See Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d

1255, 1259 (9th Cir. 2016) (citing Eng, 552 F.3d at 1070-71).

□□□ □□ the plaintiff has passed the first three steps, the burden shifts to the

government to show that “under the balancing test established by [Pickering], the [state]’s

legitimate administrative interests outweigh the employee’s First Amendment rights.’”

Eng, 552 F.3d at 1071 (quoting Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir.

2004)). “[F]inally, if the government fails the Pickering balancing test, it alternatively

bears the burden of demonstrating that it ‘would have reached the same [adverse

employment] decision even in the absence of the [employee’s] protected conduct.’” Eng,

552 F.3d at 1072 (quoting Thomas, 379 F.3d at 808).

1. Yee and Katz

a. Adverse Employment Action

Defendants argue that Yee and Katz never took any adverse employment action

against Ryan, 1.e., any “action that was ‘reasonably likely to deter employees from

engaging in protected activity.”” Mot. at 22 (quoting Dahlia v. Rodriguez, 735 F.3d

1060, 1078 (9th Cir. 2013)). Defendants point out that the only adverse employment

action specifically alleged in the FAC was the vote to revoke plaintiff's PSA membership

and privileges, but Yee and Katz never attended the MEC meetings at which votes related

to Ryan were taken. Mot. at 23. Moreover, they note that, under the PSA’s Bylaws, Yee

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

(CMO of the County’s DHS) and Katz (Director of the Country’s DHS) have “no role in

any MEC determination of medical disciplinary action, except to be notified of

recommendations.” Id. at 23-24. Accordingly, defendants argue that “Yee and Katz

cannot be liable for an ‘adverse employment action’ as a matter of law, and are entitled to

summary judgment.” Id. at 24.

In opposition, plaintiff argues that he has presented sufficient evidence to create a

genuine dispute of material fact “about whether Dr. Yee and Dr. Katz approved and

endorsed adverse employment actions against him.” Opp. at 15. Plaintiff argues that

Yee “approved” the MEC’s adverse employment action of investigating Ryan and

threatening to suspend his privileges on the basis of evidence the plaintiff contends

suggests that “MEC members consistently sought Dr. Yee’s input about their ongoing

efforts to investigate Dr. Ryan.” Opp. at 15-16. This evidence includes Yee’s April 2016

statement that the MEC should “proceed with caution” in taking action against Ryan

“because there was concern about whistleblowing,” but is “within its rights to take

action.” Dkt. 62-5 at Ex. 362. Plaintiff also points to Yee’s suggestions that County

Counsel reassure PSA members that they are indemnified for their work on the PSA.

Opp. at 17. With respect to Katz, plaintiff argues that because Katz was aware of Ryan’s

external reports and complaints, the Court may infer that “Dr. Katz joined Dr. Yee in

endorsing the MEC’s adverse employment actions.” Id. at 17-18.

In reply, defendants argue that “Plaintiff offers no evidence Dr. Katz had

contemporaneous knowledge of the MEC’s votes, let alone that he was actively

involved,” and that, in any event, “inaction and tacit encouragement have not been upheld

as bases for [Section 1983] liability.” Reply at 9-10. In sum, defendants claim that

“Tb]ecause Plaintiff offers no evidence that Dr. Katz initiated ‘disciplinary proceedings,’

“threatened to revoke’ Plaintiff's staff privileges, or acted with ‘a negative effect on

employment prospects’—the pleading bases for the earlier Ninth Circuit decision—Dr.

Katz is entitled to summary judgment.” Id. at 10 (quoting Ryan v. Putnam, 777 F. App’x

245, 246 (9th Cir. 2019)). With respect to Yee, defendants reiterate that the evidence

fails to suggest that Yee participated in any adverse employment action, and note that

“the PSA Bylaws require the MEC to coordinate and cooperate with Drs. Yee, Mahajan,

and Katz regarding matters of ‘mutual concern’—which naturally included Plaintiff,

given his ongoing litigation against the County—but otherwise give DHS no role in any

MEC medical disciplinary action.” Reply at 17. In sum, with respect to Yee, defendants

argue that “Plaintiff lacks any evidence that Dr. Yee ‘initiated disciplinary proceedings’

or took other action that threatened Plaintiff's privileges or negatively impacted his

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

employment prospects, so Dr. Yee can’t be liable under § 1983.” Id. at 18 (quoting

Ryan, 777 F. App’x at 246).

The Court finds that summary judgment as to Yee and Katz 1s appropriate, as

neither took any adverse employment action reasonably likely to deter Ryan from

engaging in protected activity under the First Amendment. Coszalter, 320 F.3d at 976. It

is undisputed that Yee and Katz did not participate in the MEC votes to initiate the FPPE,

or offer the Behavioral Agreement, or revoke plaintiff's PSA privileges, as Yee and Katz

were not members of the MEC during those votes. See SUF No. 5. Pursuant to the

PSA’s Bylaws, Yee and Katz “have no role in any MEC determination of medical

disciplinary action, except to be notified of any recommended corrective action.” Id. No.

55. Given this undisputed evidence, plaintiff argues that Yee and Katz “approved” the

MEC’s adverse employment actions of investigating Ryan and threatening to suspend his

privileges. Opp. at 15-16. While affirmative approval of a retaliatory adverse

employment action can give rise to Section 1983 liability, Freitag v. Ayers, 468 F.3d 528,

543 (9th Cir. 2006), Yee and Katz had no authority to “approve” the adverse employment

actions against Ryan.

Plaintiff principally relies upon evidence that, at an MEC meeting in April 2016,

Yee suggested the PSA “proceed with caution [with respect to Ryan| because there was

concern about whistleblowing,” and added the PSA was “within its rights to take action”

and “should proceed” as it sees fit. SUF No. 52. These statements fail to raise any

genuine dispute of material fact that Yee approved any particular course of action, and

plaintiff points to no authority suggesting the imposition of liability on Yee based on his

deference to the MEC is appropriate. The same is true for Yee’s suggestions that County

Counsel reassure PSA members that they are indemnified for their work on the PSA,

which does not constitute “approval” of the MEC’s adverse employment actions. In sum,

the evidence fails to suggest that Yee participated in or approved the MEC’s adverse

employment actions against Ryan. See Freitag, 468 F.3d at 543, n.8 (reversing judgment

as to official who did not contribute to, and was not responsible for, adverse employment

actions).

With respect to Katz, plaintiff argues that because Katz was aware of Ryan’s

external reports and complaints about White’s retaliation, the Court may infer that “Dr.

Katz joined Dr. Yee in endorsing the MEC’s adverse employment actions.” Opp. at 17-

18. This argument fails to raise a triable issue that Katz approved or participated in the

MEC’s adverse employment actions, and plaintiff points to no authority suggesting that

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

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TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

unofficial endorsement of an adverse employment action is a basis for Section 1983

liability.

Accordingly, the Court GRANTS summary judgment to Yee and Katz on the basis

that they took no adverse employment actions against Ryan, and need not address the

parties’ other arguments with respect to Yee and Katz.

2. Mahajan

a. Adverse Employment Action

Defendants note that “Plaintiff declared in his reply brief to the Ninth Circuit that

his § 1983 claim ‘does not rely on . . . the Suspension Notice’ which Dr. Mahajan

issued,” and that “the FAC does not even mention the [| Notice of Suspension.” Mot. at

31 (citing SUF No. 92). Accordingly, defendants argue that “Dr. Mahajan’s undisputed

lack of involvement in the MEC’s vote on Plaintiffs clinical privileges [ |—the only

adverse employment action alleged in the FAC | |—is a sufficient basis for granting

summary judgment for Dr. Mahajan under § 1983.” Mot. at 31.

In opposition, plaintiff argues that defendants’ focus on the Notice of Suspension 1s

a “red herring,” as “Dr. Ryan has presented evidence that Dr. [Mahajan], like Dr. Yee and

Dr. Katz, approved and endorsed the MEC’s retaliatory investigation of him.” Opp. at

23-24. Plaintiff points to evidence that “[w]hen a union representative protested that the

MEC was retaliating against Dr. Ryan by demanding he sign a Behavioral Contract, Dr.

Mahajan responded, claiming that the MEC’s actions were independent of DHS — yet Dr.

Mahajan also forwarded the complaint to Dr. Yee.” Id. at 24 (citing GDF Nos. 240-41).

Plaintiff also argues that Mahajan and Yee “discussed the claims of retaliation, and Dr.

Mahajan acknowledged that they had previously discussed concerns about retaliation

with counsel.” Opp. at 24.

In reply, defendants contend that plaintiff's argument that Mahajan approved and

endorsed the adverse employment actions is frivolous given that “[t|he earliest email on

which Plaintiff relies which Dr. Mahajan received or sent was dated September 7, 2016—

more than six weeks after the MEC voted to offer Plaintiff a Behavioral Agreement and

recommend revoking his clinical privileges if he rejected that Agreement, and more than

one month after Dr. Mahajan became CMO of Harbor-UCLA.” Reply at 12.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

The Court finds that summary judgment as to Mahajan is appropriate, as he did not

take any adverse employment action reasonably likely to deter Ryan from engaging in

protected activity under the First Amendment. Coszalter, 320 F.3d at 976. Plaintiff does

not contend that the Mahajan’s decision to suspend Ryan was an adverse employment

action resulting in injury in this case, and it is undisputed that Mahajan did not participate

in the MEC’s adverse employment actions. Accordingly, plaintiff argues that Mahajan

“approved and endorsed” the MEC’s adverse employment actions. Opp. at 23-24.

However, the only evidence upon which plaintiff relies to show that Mahajan approved

and endorsed the MEC’s adverse employment actions is a series of September 2016

emails in which Mahajan responded to union representative Jake Baxter’s allegations that

the MEC’s actions against Ryan were retaliatory. In response to Baxter, Mahajan stated:

“Thank you for your message. I am the new CMO at Harbor. We haven’t had an

opportunity to meet yet. I look forward to doing so and working with you.

Re the matter below, as I understand it (admittedly, I am new, so please correct

me if I am wrong), the PSA 1s a body independent of hospital/medical

administration and is authorized by the Joint Commission to be the sole arbiter

of a physician’s peer review and clinical privileges. As you know, the PSA is

governed by the physician staff themselves, most of whom are your members.

Harbor/DHS Medical Administration including myself and the Associate Medical

Directors explicitly do not participate in PSA voting and decision-making to honor

the PSA’s independence in these matters. You may want to speak directly with

your membership at Harbor and/or PSA President Dr. Brant Putnam regarding

the decision the PSA arrived at re Dr. Ryan. Please let me know if I can be of

further assistance.”

Dkt. 79-2 at Ex. S. Mahajan then forwarded Baxter’s email to Yee, and stated that

county counsel should participate in a meeting regarding how to handle Baxter’s email,

given that county counsel “was involved in earlier aspects of this related to concerns

about retaliation vis-a-vis whisteblow.” Id. This evidence does not raise a triable issue

of material fact as to whether Mahajan approved or endorsed the MEC’s adverse

employment actions. Rather, in his response to Baxter, Mahajan makes clear that

“Harbor/DHS Medical Administration including myself and the Associate Medical

Directors explicitly do not participate in PSA voting and decision-making to honor the

PSA’s independence in these matters.” Id. Plaintiff submits no authority suggesting that

Mahajan’s deference to the PSA/MEC is a valid basis for Section 1983 liability.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

Accordingly, the Court GRANTS summary judgment to Mahajan on the basis that

he took no adverse employment actions against Ryan, and need not address the parties’

other arguments with respect to Mahajan.

3. Virgilio and Lewis

a. Adverse Employment Action

Defendants argue that de Virgilio “did not participate in the only adverse

employment action alleged in the FAC—the MEC’s vote to recommend revoking

Plaintiffs PSA membership and privileges,” and that “Plaintiff's failure to identify any

adverse employment action by Dr. de Virgilio is a sufficient basis, by itself, to grant

summary judgment in his favor.” Mot. at 34. While defendants acknowledge that de

Virgilio participated in initiating the FPPE process, they claim that it “was not

predestined to result in discipline, and instead was designed to evaluate Plaintiffs

behavior and develop a recommended course of action.” Id. at 35. Moreover, defendants

argue that the initiation of the FPPE process was not “sufficiently final” to constitute an

adverse employment action, and that de Virgilio was not involved in any subsequent

disciplinary proceedings or actions that had a negative effect on Ryan’s employment

prospects. Id. (quoting Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000)).

In opposition, plaintiff argues that de Virgilio “supervised the FPPE process

himself,” and that “[t]his Court has already found that the FPPA itself was an adverse

employment action.” Opp. at 26. Plaintiff also notes that de Virgilio “participated in

subsequent MEC meetings at which the MEC decided to revoke Dr. Ryan’s privileges

when he did not accept the Behavioral Contract.” Id. Plaintiff claims that “[t|his is more

than enough to create a genuine dispute of material fact about whether Dr. de Virgilio

took an adverse employment action.” Id.

In reply, defendants contend that the Court’s prior summary judgment order never

found that the FPPE was an adverse employment action, because “Dr. Vintch was absent

for that vote, and she and Dr. Putnam both attended the ultimate vote on the Agreement

and privilege revocation.” Reply at 25. In other words, de Virgilio “is the only

Defendant who Plaintiff seeks to hold liable” for the FPPE itself, which de Virgilio did

not supervise, although he appointed the Committee that undertook the investigation. Id.

Based on this evidence, and de Virgilio’s lack of involvement in the vote to revoke

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

plaintiffs privileges upon his rejection of the Behavioral Agreement, defendants contend

that plaintiffs retaliation claim against de Virgilio fails given that “retaliation liability

cannot be premised on allegedly adverse actions that are not ‘sufficiently final.’” Id. at

26 (quoting Brooks, 229 F.3d at 930).

The Court finds that de Virgilio’s participation in the initiation of the FPPE

represents an adverse employment action. In this case, the Ninth Circuit has stated that

“Ts]ince 2002, [it has] recognized that an employer’s decision to initiate disciplinary

proceedings against a doctor that threaten to revoke staff privileges, when combined with

a negative effect on employment prospects, is enough to satisfy the ‘adverse employment

action’ requirement.” Dkt. 26 at 2-3 (citing Ulrich, 308 F.3d at 977). Here, the FPPE is a

disciplinary proceeding that “threatens” (Ulrich, 308 F.3d at 977) to revoke staff

privileges, as evidenced by the fact that Ryan’s FPPE report stated the following:

“We recommend that MEC should explore possible actions to remedy the

underlying chaotic situation in vascular division created by Dr. Ryan’s

unprofessional behavior. Dismissal from the medical staff or discontinuation of

medical privileges are options that can [be] considered but the committee is not

knowledgeable regarding standards or precedents for such as action based solely

on a lack of professionalism.”

Dkt. 61-7 at Ex. 5.° Although defendants cite Brooks in support of an argument

that the initiation of the FPPE was not “sufficiently final” to constitute an adverse

employment action, the Court finds that Brooks is distinguishable. In Brooks, which was

a Title VII case, the evaluation at issue “was not an adverse employment action because it

was subject to modification by the city” and “the evaluation could well have been

changed on appeal.” Brooks, 229 F.3d at 930 (9th Cir. 2000). Here, the Ninth Circuit

has confirmed that an “employer’s decision to initiate disciplinary proceedings against a

° At oral argument, counsel for defendants claimed that the FPPE, as defined in the PSA

Bylaws, is not considered an investigation, and that the results of any FPPE are not

preordained. See Dkt. 61-7 at Ex. 301 (PSA Bylaws), § 6.1-3 (“FPPE is not considered

an investigation as defined in these Bylaws”). Despite this argument, the Court finds

that, at a minimum, the evidence raises a triable issue of material fact as to whether the

FPPE against Ryan “threatened to revoke his clinical privileges.” Ulrich, 308 F.3d at

977. This conclusion in supported by the fact that the PSA Bylaws themselves note that a

possible outcome of an FPPE 1s “recommending corrective action under these bylaws.”

Dkt. 61-7 at Ex. 301 (PSA Bylaws), § 6.1-5.1-e.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

doctor,” when privileges and employment prospects are threatened, is enough to satisfy

the adverse employment action requirement. Moreover, defendants present no evidence

that suggests the decision to initiate the FPPE could have been appealed or was subject to

modification.

Accordingly, the Court finds that summary judgment on the basis that de Virgilio

did not participate in an adverse employment action would be inappropriate.

b. Retaliatory Motive

Defendants also argue that retaliatory motive cannot be imputed as to de Virgilio

or Lewis. Mot. at 35. Defendants claim that Lewis had no knowledge that Ryan made

any external reports of alleged misconduct, and accordingly cannot be liable for

retaliation. Id. Moreover, defendants contend that de Virgilio’s participation in directing

the FPPE “only three months after he made a decision favorable to Plaintiff—approving

his application for renewal of his medical staff privileges—even though Dr. de Virgilio

allegedly knew all along of Plaintiff's protected speech. . . . raises “the same-actor

inference’—“a strong inference’ that Dr. de Virgilio did not act out of retaliatory motive.”

Id. at 36-37 (citing Schechner v. KPIX-TV, 686 F.3d 1018, 1026 (9th Cir. 2012)).

Otherwise, defendants argue that the timing raises no inference of retaliation, that de

Virgilio and Lewis never opposed protected speech, and that plaintiff lacks specific,

substantial evidence of pretext as to de Virgilio and Lewis. Mot. at 36-39.

In opposition, plaintiff notes that whether Lewis knew Ryan had reported

misconduct to outside authorities is disputed, because Lewis was present at multiple

MEC meetings at which Ryan’s reports to outside authorities were discussed. Opp. at 27.

Additionally, plaintiff argues that the proximity in time between “Dr. White demanding

that the MEC punish Dr. Ryan’s protected speech, and the [MEC’s actions] (including

Dr. Lewis and Dr. de Virgilio) [] was only a few months, short enough to support an

inference of retaliation.” Id. Additionally, plaintiff argues that de Virgilio and Lewis

have opposed Ryan’s protected speech, and that there is sufficient evidence of pretext to

overcome summary judgment. Id. at 27-29.

In reply, with respect to Lewis, defendants claim that the “[u|ndisputed evidence

shows Dr. Lewis did not attend the meetings when the MEC voted to convene the FPPE

or when the FPPE Report was read aloud (and that Report didn’t mention outside reports

in any event), and that Plaintiffs outside reports were not discussed at the few meetings

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

Dr. Lewis did attend.” Reply at 23. Moreover, defendants argue that even if is assumed

that Lewis was present at MEC meetings where plaintiff's external reports were

discussed, the time period between the allegedly protected activity and the MEC’s July

2015 vote are too great to support an inference of causality without other evidence of

retaliatory motive. Id. at 23-24. Finally, defendants claim that no evidence of pretext,

causality, or retaliatory motive exists, because the evidence of pretext the Court cited

with respect to Putnam and Vintch do not apply to Lewis, and that therefore summary

judgment is appropriate. Id. at 24-25.

With respect to de Virgilio, defendants point out that plaintiff failed to

acknowledge their “same-actor inference” argument. Reply at 26. Otherwise, defendants

reiterate that there isn’t sufficient evidence to support causation, given that de Virgilio

“was not allegedly involved in any of the events on which this Court found a triable issue

of pretext as to Drs. Vintch and Putnam—more favorable treatment for allegedly

similarly-situated persons, deviation from usual MEC practices on discipline, or the

Notice of Charges.” Id. at 27.

As the party opposing summary judgment, Ryan must demonstrate a triable issue

of material fact as to one of three methods of showing that the protected speech was a

substantial or motivating factor in the adverse employment decision, namely proximity in

time, employer opposition to the speech, and pretextual justification associated with the

adverse employment action. See Coszalter, 320 F.3d at 977. This analysis is “purely a

question of fact.” Eng, 552 F.3d at 1071. Evidence of pretext may be “direct or

circumstantial” because “[d]efendants who articulate a nondiscriminatory explanation for

a challenged employment decision may have been careful to construct an explanation that

is not contradicted by known direct evidence.” Davis v. Team Elec. Co., 520 F.3d 1080,

1091 (9th Cir. 2008) (citations and quotation marks omitted). Accordingly, Ryan may

show pretext “either directly by persuading the court that a discriminatory reason more

likely motivated the employer or indirectly by showing that the employer’s proffered

explanation is unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450

248, 256 (1981). “Where evidence of pretext is circumstantial, rather than direct,

the plaintiff must produce ‘specific’ and ‘substantial’ facts to create a triable issue of

pretext.” Earl, 658 F.3d at 1113. However, “a plaintiff's burden to raise a triable issue of

pretext is ‘hardly an onerous one.’” Id. (quoting Noyes v. Kelly Servs., 488 F.3d 1163,

1170 (9th Cir. 2007).

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

The Court finds that, as to De Virgilio and Lewis, plaintiff has met his burden on

summary judgment of raising a triable issue of material fact regarding defendants’

motives in taking the adverse employment actions against Ryan. See Mabey v. Reagan,

537 F.2d 1036, 1045 (9th Cir. 1976) (“Since questions of motive predominate in the

inquiry about how big a role the protected behavior played in the decision, summary

judgment will usually not be appropriate.”).

With respect to Lewis, the evidence raises a triable issue of fact regarding whether

he was aware of Ryan’s external reports, because Lewis was present at the April 25, 2016

MEC meeting in which Yee gave input regarding whether any action by the PSA against

Ryan might be seen as potential retaliation for whistleblowing. Dkt. 62-5 at Ex. 360.

Otherwise, at least some of the evidence indicative of pretext that applied to Putnam and

Vintch applies to Lewis, including the “comparative evidence” that “similarly situated

employees,” including Putnam, were treated “more favorably” than plaintiff (see Earl,

658 F.3d at 1113) for unprofessional conduct such as yelling, and the fact that the

evidence from Putnam and Vintch’s depositions suggests that no other Behavioral

Agreement has included a waiver of claims. Additionally, Lewis was present at the

September 28, 2015 MEC meeting where the minutes reflect that, to the extent the issues

with Ryan were associated with HIPAA violations, “a recognized HIPAA Compliance

Officer review|ed] the case and it was found that no HIPAA violation occurred on the

part of Dr. Ryan.” Dkt. 62-5 at Ex. 365. The minutes from the same meeting state that

“Itlo take a corrective action beyond the investigation could be considered retaliation

because we feel this issue has been investigated adequately.” Id. Nonetheless, Lewis

proceeded to vote in favor of the Behavioral Agreement, and condition Ryan’s privileges

on his acceptance of that Agreement. Accordingly, the Court finds that there 1s a triable

issue of fact regarding whether the adverse employment actions directed at Ryan by

Lewis were based solely on his “unprofessional conduct,” or whether in fact Ryan’s

external reports were a substantial factor in those actions. See Ulrich, 308 F.3d at 977

(“Although these [adverse employment] decisions by the hospital could have been taken

for a number of reasons, if they were in retaliation for his protected speech activity then

the First Amendment was violated.”).

With respect to de Virgilio, the evidence raises a triable issue of material fact that

de Virgilio expressed opposition to Ryan’s speech. For example, de Virgilio was

interviewed as part of the FPPE into Ryan. Dkt. 62-5 at Ex. 356. Therein, de Virgilio

stated that “Dr. Ryan accused Dr. White without evidence of wrongdoing;” that “Dr.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

Ryan looked at private patient information that belonged to Drs. White, Donayre and de

Virgilio for the purpose of finding information to shut down the [BEST-CLI] study at

Harbor-UCLA,” but “[t]he NIH subsequently investigated Dr. Ryan’s complaint and

determined that it was unfounded;” and that “according to many people . . . files have

gone missing from their desks and they feel Dr. Ryan ‘snoops around’ looking and taking

things away.” Id. These statements suggest opposition to Ryan’s external reports. For

example, although de Virgilio contends that Ryan acted “without evidence of

wrongdoing” and harbored a purpose “of finding information to shut down the [BEST-

CLI] study,” Ryan external reports were partially vindicated when, on February 12, 2015,

the Surgical and Interventional Management Committee (“SIMC”) for the BEST-CLI

Trial found that “no one at [UCLA-Harbor] currently meets the criteria to serve as an

independent endovascular operator,” and that until someone on site met the criteria, “the

site should no longer enroll patients in the BEST-CLI Trial.” Dkt. 62-5 at Ex. 331.

Additionally, on March 30, 2015, SIMC “found that several members of the Harbor-

UCLA team misrepresented their procedural volume histories to meet the criteria of

independent endovascular operator.” Dkt. 61-7 at Ex. 24. This suggests that, contrary to

de Virgilio’s statements, Ryan acted with some evidence of wrongdoing.

Additionally, de Virgilio participated in the December 28, 2015 MEC decision to

direct an FPPE against Ryan, even though the HIPAA compliance officer had previously

“determined there was no HIPAA violation,” Dkt. 61-7 at Ex. 12, and even though, as

previously discussed, “comparative evidence” suggests that “similarly situated

employees” were were treated “more favorably” than plaintiff for unprofessional

conduct. See Earl, 658 F.3d at 1113. This raises a triable issue of material fact regarding

whether the initiation of the FPPE was pretextual. Moreover, the December 28, 2015

MEC meeting minutes explicitly state that “we have completed an FPPE on Dr. White, so

our next step would be to complete an FPPE on Dr. Ryan because the conduct that was

implied by his search for negative information on Dr. White is questionable.” Dkt. 61-7

at Ex. 12. This suggests that the initiation of the FPPE may have been based, in part, on

Ryan’s external reports.

Defendants argue that de Virgilio is entitled to the ““the same-actor inference’

strong inference’ that Dr. de Virgilio did not act out of retaliatory motive,” based on the

fact that de Virgilio approved plaintiff's application for renewal of medical staff

privileges only three months before de Virgilio participated in the initiation of the FPPE.

The Court is not convinced. See Mot. at 36-37. In Schencher, the case relied upon by

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘Oo’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

defendants, the Ninth Circuit noted that “‘[w]here the same actor is responsible for both

the hiring and the firing of a discrimination plaintiff, and both actions occur within a

short period of time, a strong inference arises that there was no discriminatory motive.’”

Schechner, 686 F.3d at 1026 (emphasis added) (quoting Bradley v. Harcourt, Brace &

Co., 104 F.3d 267, 270-71 (9th Cir.1996)). The same-actor doctrine reflects the belief

that “‘[a]n individual who is willing to hire and promote a person of a certain class is

unlikely to fire them simply because they are a member of that class.”” Bradley, 104

F.3d at 271 (quoting Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 464 (6th Cir.

1995)). Even assuming that the same actor-doctrine is relevant in first amendment

retaliation cases, the evidence of opposition and pretext discussed herein rebut the same-

actor inference, which “may be weakened by other evidence and 1s ‘insufficient to

warrant summary judgment for the defendant if the employee has otherwise raised a

genuine issue of material fact.”” Tumbling v. Merced Irrigation Dist., No. CV F 08-1801

LJO DLB, 2010 WL 11450406, at *11 (E.D. Cal. Sept. 27, 2010) (quoting Wexler v.

White's Fine Furniture, Inc., 317 F.3d 564, 573-574 (6th Cir. 2003)).

Finally, to the extent defendants argue that the length in time between Ryan’s

speech and the adverse actions is too great to support an inference of causality, “[t]here is

no set time beyond which acts cannot support an inference of retaliation, and there is no

set time within which acts necessarily support an inference of retaliation.” Coszalter, 320

F.3d at 978.

In sum, given the evidence of pretext and opposition to protected speech offered by

Ryan, summary judgment on this “purely fact[ual]” element (see Eng, 552 F.3d at 1071)

would be inappropriate.

c. Adequate Justification

Defendants argue that de Virgilio and Lewis had adequate justification in that even

though “Plaintiff's disruptive behavior at Harbor-UCLA was found by the neutral Ad

Hoc Committee to have created a hostile work environment and to have a negative

impact on patient care,” “[o|nly when Plaintiff rejected [the Behavioral] Agreement,

without explanation or discussion, did the MEC vote to propose revoking Plaintiffs

privileges.” Mot. at 39. Defendants argue that these actions “were reasonably calculated

to promote the efficiency and effectiveness of the provision of healthcare services to

Harbor-UCLA patients,” and “clearly outweigh plaintiff's asserted free speech interest.”

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

Id. Accordingly, defendants claim that “Pickering balancing weighs in favor of Drs. de

Virgilio and Lewis, and further supports summary judgment.” Id. at 40.

In opposition, plaintiff argues that there is a genuine dispute of fact as to adequate

justification, and therefore summary judgment 1s inappropriate. Opp. at 29.

The Court finds that, in this case, the adequate justification inquiry implicates

“underlying factual disputes” that are inappropriate for resolution on summary judgment.

Eng, 552 F.3d at 1071. Defendants fail to explain how their proffered interest of

“promot[ing] the efficiency and effectiveness of the provision of healthcare services to

Harbor-UCLA patients” could not have been served by intermediate steps such as

counseling intended to address Ryan’s unprofessional behavior. Additionally,

defendants’ argument that “|b]oth the minutes explaining the convening of the FPPE and

the PSA’s initial Notice of Charges make clear on their face that it was the loud and

disruptive nature of Plaintiff's threats and other workplace conduct—not the substance of

Plaintiff's actual reports outside of work to external agencies—which caused the MEC to

act,” Mot. at 39, is inherently factual, and implicates the same evidence of pretext and

opposition that the Court previously discussed. Accordingly, the Court finds that

summary judgment on this basis is inappropriate.

d. Inevitability

Finally, defendants contend that the undisputed facts establish that defendants

would have initiated the FPPE, asked Ryan to sign the Behavioral Agreement, and moved

to revoke Ryan’s privileges if he rejected the Agreement, “regardless of whether or not

Plaintiff engaged in any protected speech.” Mot. at 40. In sum, defendants contend that

“Plaintiff has no evidence—tet alone enough evidence to raise a triable issue of material

fact—that Drs. de Virgilio and Lewis would not have taken their respective measures but

for his allegedly protected speech,” and that therefore “[s]ummary judgment is compelled

on this additional basis.” Id.

In opposition, plaintiff argues that there is a genuine dispute of fact as to

inevitability, and therefore summary judgment is inappropriate. Opp. at 29.

The Ninth Circuit has stated the inevitability inquiry is “purely a question of fact.”

Eng, 552 F.3d at 1072. For the same reasons articulated above, the Court finds that there

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CIVIL MINUTES —- GENERAL ‘O’

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TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

is a triable dispute of material fact regarding whether de Virgilio and Lewis would have

taken the adverse employment actions described herein absent Ryan’s reports to the NIH

and the District Attorney’s Office. Accordingly, granting summary judgment on this

basis would be inappropriate.

B. Qualified Immunity

Generally, courts follow a two-step inquiry in determining whether a government

official is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001).

“First, a court must decide whether the facts that a plaintiff has alleged... or shown...

make out a violation of a constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232

(2009). Second, “the court must decide whether the night at issue was ‘clearly

established’ at the time of defendant's alleged misconduct.” Id.

“To be ‘clearly established, the contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing violates that right.’” Acosta

v. City of Costa Mesa, 718 F.3d 800, 824 (9th Cir. 2013) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). “Defendants are entitled to qualified immunity,

even if they violated [plaintiff's] First Amendment rights, if they reasonably could have

believed that their conduct was lawful ‘in light of clearly established law and the

information [that they] possessed.’” Demers v. Austin, 746 F.3d 402, 417 (9th Cir. 2014)

(quoting Cohen v. San Bernardino Valley Coll., 92 F.3d 968, 973 (9th Cir.1996)).

A “case directly on point” is not required, “but existing precedent must have

placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011). The determination of whether the law was clearly established

“must be undertaken in light of the specific context of the case.” Saucier, 533 U.S. at

201. The qualified immunity standard “provides ample protection to all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,

341 (1986). In other words, the law must provide officials with “fair warning” that their

conduct is unconstitutional. Hope v. Pelzer, 536 U.S. 730 (2002). “Qualified immunity

is applicable unless the official’s conduct violated a clearly established constitutional

right.” Pearson, 555 U.S. at 232.

1. De Virgilio and Lewis

Defendants contend that de Virgilio and Lewis are entitled to qualified immunity

because there is no clearly established law suggesting that they committed any adverse

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

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TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

employment action. Mot. at 41. With respect to de Virgilio, defendants claim that

“Plaintiff has offered no authority—let alone clearly established law—holding that

convening an FPPE committee to conduct fact-finding and issue a report is ‘sufficiently

final’ to constitute an adverse employment action.” Id. (citing Brooks, 229 F.3d at 929-

30). With respect to Lewis, defendants contend that there is no clearly established law

providing that “individual committee members’ alleged votes regarding an FPPE,

behavioral contract, or even revocation of privileges, may constitute actionable adverse

employment actions.” Mot. at 41. Additionally, defendants argue that there is no clearly

established law on temporal nexus, and that there is no other evidence that would raise a

triable issue on causation. Mot. at 41-42. Finally, defendants argue that there is no

clearly established law on adequate justification, as “[n]o clearly established law provides

a quasi-judicial body such as the MEC cannot evaluate the results of a fact-finding

committee, vote on proposed remedial action, or attempt to administratively regulate a

disruptive physician’s conduct.” Id, at 42.

In opposition, plaintiff argues that the Ninth Circuit’s MTD order and the Court’s

order on Putnam and Vintch’s motion for summary judgment counsel against qualified

immunity, and that Ninth Circuit authority makes clear that Ryan “had a First

Amendment right to make reports to government authorities without retaliation.” Opp. at

21-23, 29 (citing Dahlia, 735 F.3d at 1067).

In reply, defendants reiterate that “Plaintiff offers no clearly established law, or

any authority at all, holding that convening an FPPE committee to conduct fact-finding

and issue a report is ‘sufficiently final’ to constitute an adverse employment action.”

Reply at 28. Otherwise, defendants contend that plaintiff “fails to rebut the other reasons

discussed in the moving papers that show both Drs. de Virgilio and Lewis are entitled to

qualified immunity.” Id.

In reversing the grant of defendants’ motion to dismiss in this case, the Ninth

Circuit found that qualified immunity was not warranted because “[s |ince 2002, [it has]

recognized that an employer’s decision to initiate disciplinary proceedings against a

doctor that threaten to revoke staff privileges, when combined with a negative effect on

employment prospects, is enough to satisfy the “adverse employment action’

requirement.” Dkt. 26 at 2-3 (citing Ulrich, 308 F.3d at 977). Here, although defendants

argue that there is no clearly established law holding that “convening an FPPE committee

to conduct fact-finding and issue a report is “sufficiently final” to constitute an adverse

employment action,” Mot. at 41, as discussed, the Court finds that the decision to initiate

the FPPE was a “decision to initiate disciplinary proceedings” that threatened to revoke

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TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

staff privileges, and was combined with a negative effect on employment prospects, as

evidenced by the fact Ryan’s FPPE report stated the following:

“We recommend that MEC should explore possible actions to remedy the

underlying chaotic situation in vascular division created by Dr. Ryan’s

unprofessional behavior. Dismissal from the medical staff or discontinuation of

medical privileges are options that can [be] considered but the committee is not

knowledgeable regarding standards or precedents for such as action based solely

on a lack of professionalism.”

Dkt. 61-7 at Ex. 5. This places the decision to initiate the FPPE squarely within

the Ninth Circuit’s previous ruling that qualified immunity was not warranted in this

case.!°

To the extent that defendants argue that Lewis is entitled to qualified immunity

because he acted in concert with other MEC members, rather than individually,

defendants fail to explain why this fact should exonerate Lewis. Rather, courts apply the

qualified immunity analysis in the same manner to defendants acting in concert, without

examining whether the underlying case that clearly established the right at issue involved

an individual defendant or a group of defendants. See Gaalla v. Brown, 460 F. App’x

469, 479 (Sth Cir. 2012) (finding that “the Board members are not entitled to qualified

immunity, and the district court properly denied them summary judgment on this claim”

because “it is without question clearly established that the Cardiologists have a nght to be

free from racial discrimination’); Strinni v. Mehlville Fire Prot. Dist., 681 F. Supp. 2d

1052, 1082-83 (E.D. Mo. 2010) (denying defendants’ motion for summary judgment

because “genuine issues of fact exist to preclude a finding that Board Member

Defendants are entitled to qualified immunity to the extent Plaintiffs’ First Amendment

10 At oral argument, counsel for defendants attempted to distinguish Ulrich on the basis

that the investigation in that case was a “formal” investigation, whereas, pursuant to the

PSA Bylaws, the FPPE is not an investigation, and is not disciplinary in nature. On this

basis, defendants’ counsel argued that de Virgilio’s initiation of the FPPE cannot be

considered an adverse employment action under clearly established law. The Court finds

that the attempt to distinguish between the “formal” investigation at issue in Ulrich and

the FPPE is unavailing. Even if an FPPE is not defined as an investigation by the PSA’s

Bylaws, Ryan’s FPPE did in fact investigate Ryan’s conduct, and recommended the MEC

“explore . . . [dJismissal from the medical staff or discontinuation of medical privileges.”

Dkt. 61-7 at Ex. 5.

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UNITED STATES DISTRICT COURT

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CIVIL MINUTES —- GENERAL ‘O’

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TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

rights are pursued against these Defendants in their individual capacities”); Waddell v.

Forney, 108 F.3d 889, 895 (8th Cir. 1997) (“[I]n light of the record before us, we affirm

the district court's denial of qualified immunity for each of the named defendants.”).

Notably, on appeal in this case, the Ninth Circuit found plaintiffs allegations

“sufficiently similar to Ulrich to satisfy the clearly established prong of the qualified

immunity analysis,” even though those allegations corresponded to the collective actions

of defendant “doctors.” Dkt. 26 at 3.

Defendants also argue that “|t|he absence of clearly established law on the

temporal nexus issue |] entitles Drs. de Virgilio and Lewis to qualified immunity.” Mot.

at 41-42. As a preliminary matter, this argument this argument frames the qualified

immunity inquiry too narrowly. Ellins, 710 F.3d at 1064. This is because “[t]he question

is not whether an earlier case mirrors the specific facts here. Rather, the relevant

question is whether ‘the state of the law at the time gives officials fair warning that their

conduct is unconstitutional.’” Id. (quoting Bull v. City & Cnty. of San Francisco, 595

F.3d 964, 1003 (9th Cir.2010)); see also White v. Lee, 227 F.3d 1214, 1238 (9th Cir.

2000) (“Closely analogous preexisting case law is not required to show that a right was

clearly established.”). In any event, this argument is premised on defendants’ contention

that “Plaintiff has no other evidence that would raise a triable issue of causation,” Mot. at

42, which the Court has already rejected.

Finally, while defendants argue that there 1s no clearly established law on adequate

justification, Mot. at 42, Ryan’s “right to speak [is] so ‘clearly established’—that is, that

the Pickering balance so clearly weigh|s] in [his] favor—that [defendants] could not have

‘reasonably believed’” (Moran v. State of Wash., 147 F.3d 839, 850 (9th Cir. 1998)) that

their “adequate justification for their respective votes on the FPPE and recommended

treatment of Plaintiff [] outweigh|]| Plaintiff's asserted free speech nights.” Mot. at 42. In

Robinson v. York, the Ninth Circuit stated that “the public’s interest in learning about

illegal conduct by public officials and other matters at the core of First Amendment

protection outweighs a state employer’s interest in avoiding a mere potential disturbance

to the workplace.” 566 F.3d 817, 824 (9th Cir. 2009) (citations and quotations omitted).

Similarly, in Francisco Jose Rivero v. City & Cty. of San Francisco, the Ninth Circuit

stated that “[w]histleblowing is a particular kind of speech on matters of public concern.

It was already the law of this circuit in 1993 that the state's legitimate interest in

“workplace efficiency and avoiding workplace disruption’ does not weigh as heavily

against whistleblowing speech as against other speech on matters of public concern.”

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:17-cv-05752-CAS-RAOx Date March 21, 2022

TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

316 F.3d 857, 866 (9th Cir. 2002) (finding that appellants were not entitled to qualified

immunity).

Accordingly, the Court finds that de Virgilio and Lewis are not entitled to qualified

immunity at this stage.

C. Punitive Damages

Defendants argue that plaintiff's request for punitive damages against de Virgilio,

and Lewis should be summarily dismissed because de Virgilio and Lewis did not act with

malice, or with a conscious disregard for plaintiff's mghts. Mot. at 43.

In opposition, with respect to Lewis, Ryan contends that he has “presented

evidence that even though Dr. Lewis was exposed to repeated statements showing that

Dr. Ryan was being targeted for making reports to outside authorities, he still participated

in the MEC’s actions of initiating the FPPE, demanding that Dr. Ryan sign the

Behavioral Contract, and revoking his privileges when he did not.” Opp. at 30. With

respect to de Virgilio, Ryan argues de Virgilio “led the creation of the FPPE, provided

quotes to the FPPE complaining that Dr. Ryan had made reports to the NIH and falsely

stating that the NIH had found them unfounded, presented the FPPE (complete with its

repeated references to Dr. Ryan’s protected speech) to the MEC, and participated in

subsequent meetings at which the MEC affirmed that Dr. Ryan’s privileges should be

revoked for not accepting the Behavioral Contract.” Id. In sum, Ryan contends that the

evidence creates a genuine dispute of material fact regarding whether defendants were

recklessly indifferent to Ryan’s rights. Id. at 30-31.

In reply, defendants argue that plaintiff's claim for punitive damages is based on

“demonstrably false pretenses,” and asks to Court to “emphatically reject Plaintiffs

deceitful tactics and summarily dismiss all of his punitive damages claims.” Reply at 29.

The law is clear that “a jury may be permitted to assess punitive damages in an

action under § 1983 when the defendant’s conduct is shown to be motivated by evil

motive or intent, or when it involves reckless or callous indifference to the federally

protected nghts of others.”” Smith v. Wade, 461 U.S. 30, 56 (1983); see also Dang v.

Cross, 422 F.3d 800, 807 (9th Cir. 2005) (“The standard for punitive damages under §

1983 mirrors the standard for punitive damages under common law tort cases. .. .

malicious, wanton, or oppressive acts or omissions are within the boundaries of

traditional tort standards for assessing punitive damages and . . . are therefore all proper

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

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TITLE TIMOTHY RYAN V. BRANT PUTNAM; ET AL

predicates for punitive damages under § 1983.”) (internal citations and quotation marks

omitted).

Here, Lewis was present at the September 28, 2015 MEC meeting where the draft

meeting minutes noted that “Dr. Ryan considers himself a whistleblower because he

thought this bad thing happened and he wanted to do right,” and that “|t]o take corrective

action beyond the investigation could be considered retaliation because we feel this issue

has been investigated adequately.” Dkt. 62-5 at Ex. 365. Despite understanding that

taking corrective action could be considered retaliation, Lewis proceeded to vote in favor

the Behavioral Agreement, and to authorize the revocation of Ryan’s privileges if he

refused the Behavioral Agreement. Similarly, de Virgilio was present at the December

28, 2015 MEC executive meeting wherein the minutes reflect that “Dr. Ryan now

believes he is protected as a whistleblower,” but nevertheless participated in the initiation

of the FPPE against Ryan. Dkt. 61-7 at Ex. 12. The text of Ninth Circuit Model Civil

Jury Instruction 5.5 (2017 ed.) specifically notes that “[c]onduct is in reckless disregard

of the plaintiff's rights if, under the circumstances, it reflects complete indifference to the

plaintiff's safety or rights, or if the defendant acts in the face of a perceived risk that its

actions will violate the plaintiff's mghts under federal law.” Accordingly, because a jury

could find that de Virgilio and Lewis’s adverse employment actions against Ryan were

recklessly indifferent to Ryan’s rights, summary judgment on Ryan’s claim for punitive

damages against de Virgilio and Lewis 1s inappropriate.

V. CONCLUSION

In accordance with the foregoing, the Court GRANTS summary judgment to Katz,

Yee, and Mahajan, and DENIES summary judgment to de Virgilio and Lewis.

IT IS SO ORDERED.

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