Petition for Writ of Certiorari — Jordan Spatz, Petitioner v. Regents of the University of California
Supreme Court briefDec 29, 2025
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No. ___________
In the Supreme Court of the United States
__________________
JORDAN SPATZ PH. D., M.D.,
Petitioner,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Respondent.
___________________________________________
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________
APPENDIX
___________________________________________
Dow W. Patten
FORTHRIGHT LAW
50 California St., Ste 1500
San Francisco, CA 94111
(415) 228-6848
dow@forthrightlaw.com
Attorney for Petitioner
December, MMXXV
United States Commercial Printing Company • www.uscpc.us • (202) 866-8558
App-i
APPENDIX
TABLE OF CONTENTS
Appendix A
Opinion [precedential], United States
Court of Appeals for the Ninth Circuit,
Jordan Spatz v. Regents of the
University of California,
No. 24-2997 (Aug. 18, 2025) .................... App-1
Appendix B
Order [rehearing denied], United States
Court of Appeals for the Ninth Circuit,
Jordan Spatz v. Regents of the
University of California,
No. 24-2997 (Sep. 25, 2025) .................. App-18
Appendix C
Order
[summary
judgment
for
respondent granted], United States
District Court for the Northern District
of California, Jordan Spatz v. Regents of
the University of California,
No. 3:21-cv-09605-LB (Apr. 11, 2024) .. App-19
App-ii
Appendix D
Judgment, United States District Court
for the Northern District of California,
Jordan Spatz v. Regents of the
University of California,
No. 3:21-cv-09605-LB (Apr. 12, 2024) .. App-59
App-1
Appendix A
[Filed: Aug. 18, 2025]
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORDAN SPATZ Ph. D., M.D.,
Plaintiff – Appellant,
No. 24-2997
D.C. No.
3:21-cv-09605-LB
v.
REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
OPINION
Defendant – Appellee.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Argued and Submitted June 2, 2025
San Francisco, California
Filed August 18, 2025
Before: Consuelo M. Callahan, Bridget S. Bade, and
Lucy H. Koh, Circuit Judges.
Opinion by Judge Koh
App-2
SUMMARY*
Age Discrimination Act
Affirming the district court’s grant of summary
judgment for the Regents of the University of
California on Jordan Spatz’s claims under the Age
Discrimination Act of 1975, the panel held that the
Age Act did not apply to the University of California
San Francisco’s refusal to admit Spatz to its
neurological surgery residency program.
Spatz alleged that he was denied admission to the
medical residency program due to age-based
discrimination and retaliation. By its terms, the Age
Act exempts from its coverage “any employment
practice of any employer.” Giving the terms
“employer” and “employment practice” their ordinary
common-law meaning, the panel concluded that
ranking medical residents is an employment practice
to which the Age Act does not apply. To the extent
that Spatz’s Age Act claim is not barred, Spatz failed
to demonstrate a genuine issue of material fact.
COUNSEL
Dow W. Patten (argued), Forthright Law PC, San
Francisco, California, for Plaintiff-Appellant.
* This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the
reader.
App-3
Don Willenburg (argued), Gordon Rees Scully
Mansukhani LLP, San Francisco, California; Michael
D. Bruno and Rachel Wintterle, Gordon Rees Scully
Mansukhani LLP, San Francisco, California; for
Defendant-Appellee.
OPINION
KOH, Circuit Judge:
Plaintiff-appellant Jordan Spatz appeals the
district court’s grant of summary judgment for
defendant-appellee the Regents of the University of
California on plaintiff’s claims under the Age Discrimination Act of 1975, 42 U.S.C. § 6101 et seq. (the
“Age Act”). 1 In the district court, plaintiff alleged
that he was improperly denied admission to a medical residency program at the University of California
San Francisco (“UCSF”) due to age-based discrimenation and retaliation. For the reasons set forth below,
we conclude the Age Act does not apply to UCSF’s
refusal to admit plaintiff to its medical residency
program and we accordingly affirm the district court.
I.
Plaintiff Dr. Jordan Spatz graduated from
UCSF’s medical school in 2021. At the time of his
graduation, plaintiff was 36 years old. In 2017 and
2018, while plaintiff was in medical school, plaintiff
Plaintiff does not appeal the dismissal of his non-Age Act
claims, and accordingly we do not address them.
1
App-4
was purportedly subject to two instances of harassment based upon his age.
Plaintiff reported both
incidents to the school, but it declined to investigate.
Plaintiff’s performance in medical school was mixed.
Plaintiff received positive performance evaluations in
many of his classes and clinical internships but
received some negative evaluations as well, particularly in connection with his sub-internships. Although the parties dispute exactly how well plaintiff
performed, plaintiff concedes that, overall, his grades
in medical school were “middle of the pack.”
Medical school graduates must complete a
residency program at a certified institution before
they can become fully licensed doctors.
Medical
students are placed in residency programs through
the National Resident Matching Program (the
“Match”).
As part of this process, medical schools
rank the applicants they would like to accept into
their program, and applicants do the same with
respect to the medical school residency programs
they would like to join. These rankings are then fed
into a centralized algorithm which matches students
with programs based on a variety of factors. There is
no guarantee that every medical student will be
matched with a residency program.
Plaintiff first applied to medical residency programs in the 2020 match year. In that year, plaintiff
ranked 18 neurological surgery programs and listed
UCSF’s neurological surgery program as his first
choice. However, plaintiff was not accepted into any
medical residency program, either at UCSF or elsewhere. Plaintiff applied to residency at UCSF and
elsewhere again in 2021, and he again failed to match with any program. It is undisputed that UCSF did
App-5
not rank plaintiff in either year. Plaintiff claims, and
defendant does not dispute, that had UCSF ranked
plaintiff in either year he would have matched with
its program.
Plaintiff claims that UCSF’s refusal to rank him,
and by extension accept him into UCSF’s neurological surgery residency program, was the product of
age-based discrimination and retaliation. To support
this accusation, plaintiff cites various statements
made by interviewers that are indicative of agebased animus, a written interview evaluation
indicating that plaintiff’s age was an area of concern,
and conversations plaintiff had with UCSF faculty
that suggested to plaintiff that his age was discussed
during the meeting where faculty ranked residency
candidates.
Plaintiff also claims that his non-ranking was in
retaliation for reports of discrimination he had
previously made to the school. First, plaintiff claims
he was retaliated against for reporting the two
instances of age-based harassment in 2017 and 2018.
Second, plaintiff claims he was retaliated against for
filing a formal complaint of discrimination in
February 2020, which alleged that plaintiff’s age,
disability, and birth in the United States was playing
a determinative role in UCSF’s residency selection
process. In response to this 2020 complaint, UCSF
investigated plaintiff’s allegations of disability and
national origin discrimination and found no
wrongdoing. However, UCSF did not investigate the
allegations of age-based discrimination.2
Beyond his non-ranking to UCSF’s medical residency program, plaintiff identifies only two other allegedly discrimina2
App-6
In contrast, defendant claims that plaintiff failed
to match with UCSF’s program because he had
mediocre grades and performed poorly during his
sub-internships. Defendant cites various documents
that corroborate this purportedly poor performance.
Defendant also highlights that UCSF’s neurosurgery
residency program accepts only 3 or 4 residents per
year out of an applicant pool of over 300, amounting
to a 1% acceptance rate. Moreover, defendant put
forward declarations of participants in the match
selection meeting generally stating that plaintiff’s
age was not discussed at the meeting, the declarant
either did not know about or did not consider
plaintiff’s complaints of age discrimination, and, with
one exception, age played no role in their decisionmaking process.
After plaintiff failed to match with UCSF in 2022,
and he was not given an interview by the school,
plaintiff filed the instant lawsuit. Plaintiff’s
complaint asserted seven causes of action: (1) age
discrimination in violation of the Age Act, 42 U.S.C.
tory or retaliatory acts: (1) plaintiff was removed from the website of the laboratory of Dr. Manish Aghi where plaintiff worked
while he was a student at UCSF, and (2) plaintiff was denied
authorship credit on articles that he was purportedly promised
by Dr. Aghi. However, undisputed evidence suggests that neither act was the product of discriminatory or retaliatory animus.
Instead, it is undisputed that plaintiff was removed from the
website as the result of an inadvertent mistake, and was not
given authorship credit on the papers in question because
plaintiff did not meet the preexisting objective criteria for
obtaining such credit.
It is also undisputed that plaintiff was
added back on to the website once the error was pointed out,
and plaintiff was given the opportunity to appear as an author
on other papers where he did meet the authorship criteria.
App-7
§ 6101 et seq.; (2) age discrimination in violation of
California’s Fair Employment and Housing Act
(“FEHA”), Cal. Gov’t Code § 12900 et seq.; (3)
disability discrimination in violation of the FEHA; (4)
harassment in violation of the FEHA; (5) retaliation
in violation of the FEHA; (6) failure to prevent
discrimination and retaliation in violation of the
FEHA; and (7) whistleblower retaliation in violation
of California Health & Safety Code § 1278.5.3 After
discovery, defendant moved for summary judgment
on all of plaintiff’s claims. Plaintiff’s opposition
addressed solely his Age Act claim.
The district court granted defendant’s motion in
its entirety. With respect to plaintiff’s Age Act claim,
the district court concluded that the Age Act does not
apply to the residency selection process because it
constitutes an “employment practice” beyond the
scope of the Act. The district court further found that,
even if the Age Act were applicable, there was no
genuine dispute of material fact as to the merits of
that claim. Finally, the district court concluded that
summary judgment was appropriate on plaintiff’s
remaining claims because he did not oppose
defendant’s motion and had not otherwise presented
While the case was pending, plaintiff moved for a preliminary injunction, seeking an order to either place him in a
neurosurgery residency at UCSF or create a new neurosurgery
residency position for him. The district court denied plaintiff’s
motion and a motions panel of this court affirmed in a memorandum disposition. See Spatz v. Regents of Univ. of Cal., 2023
WL 5453456, at *1 (9th Cir. Aug. 24, 2023). In a footnote, that
order noted that the Age Act may not even apply to plaintiff’s
claim if the residency ranking constituted an “employment
practice,” but ultimately declined to resolve the issue. Id. at *1
n.1.
3
App-8
sufficient evidence to support those claims.
appeal followed.
This
II.
The threshold question we must address is
whether the Age Act applies to the challenged
conduct. By its terms, the Age Act exempts from its
coverage “any employment practice of any employer.”
42 U.S.C. § 6103(c)(1). As set forth more fully below,
we conclude that the decision not to admit plaintiff to
UCSF’s neurological surgery residency program constitutes an “employment practice of an[] employer”
and the Age Act accordingly does not apply to the
conduct challenged by plaintiff. We therefore affirm
the district court’s grant of summary judgment.
A.
The district court’s grant of summary judgment is
reviewed de novo. See Desire, LLC v. Manna Textiles,
Inc., 986 F.3d 1253, 1259 (9th Cir. 2021). “Summary
judgment is appropriate if ‘the movant shows that
there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter
of law.’” S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921,
925 (9th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).
“Viewing the facts in the light most favorable to the
nonmoving party, [the court] must determine whether a genuine issue of material fact exists, and whether the district court applied the law correctly.” Id.
B.
The sole claim at issue on appeal asserts
violations of the Age Act. The Age Act states that “no
App-9
person in the United States shall, on the basis of age,
be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any
program or activity receiving Federal financial assistance.” 42 U.S.C. § 6102. A private cause of action
was added to the Age Act in 1978, permitting “any
interested person” to sue “to enjoin a violation of th[e]
Act by any program or activity receiving Federal
financial assistance” and to recover “reasonable
attorney’s fees.” 42 U.S.C. § 6104(e)(1).
The Age Act stands in contrast to the Age
Discrimination in Employment Act of 1967 (“ADEA”),
which generally prohibits age-based employment discrimination and is only indirectly relevant here. The
ADEA makes it unlawful for an employer to, among
other things, “fail or refuse to hire or to discharge
any individual or otherwise discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a)(1). Unlike
the Age Act, an ADEA plaintiff may also recover
damages for violations of the ADEA. See 29 U.S.C. §
626(c). Significantly, however, the ADEA’s protections are categorically “limited to individuals who
are at least 40 years of age.” 29 U.S.C. § 631(a).
Plaintiff was under 40 at the time of the relevant
conduct and accordingly could not rely on the ADEA
to pursue his claims. Plaintiff instead brought suit
under the Age Act, which has no similar requirement
that the plaintiff be at least 40 years of age for it to
apply. However, the Age Act contains another
limitation that is significant here.
The Age Act provides that “[n]othing in this
chapter shall be construed to authorize action under
App-10
this chapter by any Federal department or agency
with respect to any employment practice of any
employer, employment agency, or labor organization,
or with respect to any labor-management joint
apprenticeship training program.” 42 U.S.C. §
6103(c)(1); see also 45 C.F.R. § 90.3(b)(2) (“The Age
Discrimination Act of 1975 does not apply to . . .
[a]ny employment practice of any employer,
employment agency, labor organization, or any labormanagement joint apprenticeship training program,
except for any program or activity receiving Federal
financial assistance for public service employment
under the Comprehensive Employment and Training
Act of 1974 (CETA), (29 U.S.C. 801 et seq.).”). The
Age Act further provides that “[n]othing in this
chapter shall be construed to amend or modify the
[ADEA] . . . or to affect the rights or responsibilities
of any person or party pursuant to” that act. 42
U.S.C. § 6103(c)(2). Accordingly, insofar as the
conduct challenged by plaintiff constitutes an
“employment practice of any employer,” the Age Act
does not apply.4
Plaintiff does not dispute that the Age Act does not apply to
“employment practice[s] of any employer.” 42 U.S.C. §
6103(c)(1). However, it is worth noting that Section 6103(c)(1),
which exempts “employment practice[s] of any employer” from
the Age Act, is worded such that it arguably only applies to
actions brought by “any Federal department or agency” and not
to suits by private plaintiffs to enforce the Age Act. Id.
Notwithstanding this phrasing, every district court that has
addressed the question has found that Section 6103(c)(1)’s
limitation on the scope of the Age Act applies to suits brought
by private parties as well. See Kamakeeaina v. Armstrong
Produce, Ltd., No. 18-cv-00480, 2019 WL 1320032, at *4 (D.
Haw. Mar. 22, 2019) (“Although this language could be
4
App-11
C.
The central question is whether the decision not
to accept plaintiff into UCSF’s neurological surgery
residency program constitutes an “employment practice of any employer.” 42 U.S.C. § 6103(c)(1). Neither
the Age Act nor its implementing regulations define
the terms “employer” or “employment practice.” See
42 U.S.C. § 6107; 45 C.F.R. § 90.4. Nor do the parties
cite any case construing these terms in the context of
the Age Act. We accordingly give these terms their
ordinary common-law meaning. See Nationwide Mut.
Ins. Co. v. Darden, 503 U.S. 318, 322–23 (1992)
(stating that when “asked to construe the meaning of
‘employee’ where the statute containing the term
does not helpfully define it,” courts typically infer
that Congress intended to incorporate the commonlaw meaning of the term); Cmty. for Creative Non–
construed as limiting only a federal department or agency from
bringing an action against an employer, the Court agrees with,
as far as this Court can tell, every district court to have
addressed the issue that an individual also does not have
authority to bring an action under the Age Discrimination Act
against an employer.” (citation omitted)). We agree.
The language of Section 6103(c)(1) was included in the
original version of the Age Act when it was passed in 1975. See
Older Americans Amendments of 1975, Pub. L. No. 94-135, 89
Stat. 713, 729–30, § 304(c)(1). When the Age Act was first
passed, the Act did not contain a private right of action, and
accordingly it makes sense that Section 6103(c)(1)’s limitation
applied only to the federal agencies, who were its sole enforcers.
When a private right of action was added in 1978, Congress did
not amend Section 6103(c)(1), but there is no indication
Congress thereby intended to permit Age Act suits by private
parties against employers concerning their employment practices. See Comprehensive Older Americans Act Amendments of
1978, Pub. L. No. 95-478, 92 Stat. 1513, 1555–56, § 401(c).
App-12
Violence v. Reid, 490 U.S. 730, 739–40 (1989)
(similar). Adopting the common law definition of
these terms is particularly appropriate given that we
have previously adopted a common-law agency test
in construing the term “employee” under the ADEA.
See Barnhart v. N.Y. Life Ins. Co., 141 F.3d 1310,
1312–13 (9th Cir. 1998). The Age Act picks up where
the ADEA leaves off, governing non-employment age
discrimination by recipients of federal funding. See
42 U.S.C. § 6103(c). The Age Act and ADEA are
accordingly in pari materia and should “be construed
as if they were one law.” California v. Trump, 963
F.3d 926, 947 n.15 (9th Cir. 2020) (quoting
Erlenbaugh v. United States, 409 U.S. 239, 243
(1972)); see id. (“[S]tatutes addressing the same
subject matter should be construed in pari materia.”
(citation and internal quotation marks omitted)).
At common law, an “employee” is generally
defined as “[s]omeone who works in the service of
another person (the employer) under an express or
implied contract of hire, under which the employer
has the right to control the details of work performance.” Employee, Black’s Law Dictionary (12th ed.
2024); see also Restatement (Second) of Agency §
220(1) (“A servant is a person employed to perform
services in the affairs of another and who with
respect to the physical conduct in the performance of
the services is subject to the other’s control or right
to control.”). An employer is “[a] person, company, or
organization for whom someone works; esp., one who
controls and directs a worker under an express or
implied contract of hire and who pays the worker’s
salary or wages.” Employer, Black’s Law Dictionary
(12th ed. 2024). In the ADEA context, courts consider
App-13
the following factors to determine if an individual is
an employee:
1) the skill required; 2) source of the
instrumentalities and tools; 3) location
of the work; 4) duration of the
relationship between the parties; 5)
whether the hiring party has the right
to assign additional projects to the hired
party; 6) the extent of the hired party’s
discretion over when and how long to
work; 7) the method of payment; 8) the
hired party’s role in hiring and paying
assistants; 9) whether the work is part
of the regular business of the hiring
party; 10) whether the hiring party is in
business; 11) the provision of employee
benefits; and 12) the tax treatment of
the hired party.
Barnhart, 141 F.3d at 1312–13 (quoting Darden, 503
U.S. at 323–24).
Although the record here is not as well developed
as it could be, virtually every one of the factors above
suggests that ranking medical residents is akin to
hiring an employee:
1): residency requires substantial skill, including a degree from a medical school;
2) & 3): the hospital provides both the “instrumentalities” and “location” of work;
4): the “duration” of the residency is long,
lasting upwards of four years;
App-14
5), 6), 9) & 10): medical residents work
extremely long hours—up to 80 hours a
week—and are directly responsible for
providing patient care, which suggests
medical residents are “part of the
regular business of the” hospital and the
hospital has substantial control over the
work residents perform; and
7), 11) & 12): medical residents are paid a
salary, provided with benefits by UCSF,
and are taxed as employees. See Mayo
Found. for Med. Educ. & Rsch. v.
United States, 562 U.S. 44, 48, 60 (2011)
(discussed below).
Precedent likewise reinforces that residency bears
many similarities to employment. The United States
Supreme Court has found that medical residents can
be treated as employees, rather than students, for
purposes of taxation under the Federal Insurance
Contributions Act. See Mayo, 562 U.S. at 60. The
California Supreme Court has found that bargaining
rights under state law. See Regents of Univ. of Cal. v.
Pub. Emp. Rels. Bd., 715 P.2d 590, 593–605 (Cal.
1986) (“[A]lthough [residents] did receive educational
benefits in the course of their programs, this aspect
was subordinate to the services they performed.”).
The NLRB has reached the same conclusion under
federal law. See Bos. Med. Ctr. Corp., 330 N.L.R.B.
152, 160–61 (1999) (“Almost without exception, every
other court, agency, and legal analyst to have
grappled with this issue has concluded that interns,
residents, and fellows are, in large measure,
employees.”). Finally, the California Court of Appeals
App-15
has held that the decision to dismiss a medical
resident from a residency program was not entitled
to academic deference—as would be true if a typical
student were involved—because “the predominant
relationship between a medical resident and a
hospital residency program is an employee-employer
relationship.” Khoiny v. Dignity Health, 76 Cal. App.
5th 390, 396, 399–403 (2022) (noting that residents
are “paid ordinary taxable income,” “much of the
service [residents] provide is indistinguishable from
that provided by fully licensed physicians” and
“residents have been found to spend 75 percent to 80
percent of their time providing services to the
medical centers or hospitals”).
Ultimately, we need not definitively categorize
medical residents as employees or students to resolve
the case before us. Instead, we hold that ranking
medical residents is an employment practice to
which the Age Act does not apply.5
Plaintiff offers two arguments in response,
neither of which is persuasive.
First, plaintiff argues that the “legislative and
regulatory history” of the Age Act “demonstrates its
specific application to Medical Schools.” Plaintiff’s
reply brief seemingly quotes legislative history that
suggests the Age Act was enacted, in part, in
Our holding today follows from the text of the Age Act. We
acknowledge that there are educational aspects of medical residency that may have different ramifications for other statutes.
See, e.g., Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 557 (3d
Cir. 2017) (concluding that plaintiff plausibly alleged medical
residency program constituted “education program or activity”
for purposes of Title IX); Lipsett v. Univ. of P.R., 864 F.2d 881,
897 (1st Cir. 1988) (similar). We express no view on this matter.
5
App-16
response to medical schools refusing to admit older
applicants, but plaintiff does not actually provide
any citations to the documents being quoted. When
asked about the source of these quotes at oral
argument, plaintiff’s counsel was unable to provide
any clarification. Plaintiff’s failure to provide
appropriate citations is sufficient grounds to
disregard this argument. See Fed. R. App. P.
28(a)(8)(A) (stating that an appellate brief “must
contain . . . appellant’s contentions and the reasons
for them, with citations to the authorities and parts
of the record on which the appellant relies”).
Even setting this aside, taken on its own terms
the argument lacks merit. A handful of scattered
citations to legislative history cannot overcome the
clear text of the Age Act. And the language quoted by
plaintiff refers only to “medical schools,” but says
nothing about medical residency programs. So even
if the Age Act applies to the admission of medical
students to medical schools, a question we are not
called on to consider, it does not follow that it also
covers admission to medical residency programs.
Second, plaintiff argues that the relevant
discrimination occurred while he was a student in
UCSF’s medical school,
rather than a medical resident, and so the Age
Act applies to the conduct. This misunderstands the
relevant inquiry. The question is not whether
plaintiff was a student at the time of the relevant
conduct. Rather, the question is whether UCSF’s
refusal to rank (i.e., to hire) plaintiff was an
“employment practice of an employer.” 42 U.S.C. §
6103(c)(1). Insofar as medical residents are
employees, and the hospital is their employer, the
App-17
decision not to select plaintiff for residency at UCSF
constitutes an “employment practice of an employer”
exempt from the Age Act, regardless of plaintiff’s
status as a medical student at the time the conduct
occurred.
To be sure, some of the allegedly discriminatory
conduct identified by plaintiff—such as Dr. Aghi’s
refusal to credit plaintiff for publications or
plaintiff’s removal from Dr. Aghi’s laboratory’s
website—is arguably independent from plaintiff’s
non-admission to medical residency, and so to that
extent could form the basis of a claim for violation of
the Age Act. However, defendants have offered
evidence establishing non-discriminatory and nonretaliatory reasons for this independent conduct that
plaintiff has failed to refute. See supra note 2.
Accordingly, the district court also correctly granted
summary judgment on plaintiff’s claim with respect
to this conduct.
III.
For the reasons discussed above, the district court
correctly granted defendants’ motion for summary
judgment.
AFFIRMED.
App-18
Appendix B
[Filed: Sep. 25, 2025]
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORDAN SPATZ Ph. D., M.D.,
Plaintiff – Appellant,
v.
No. 24-2997
D.C. No.
3:21-cv-09605-LB
ORDER
REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Defendant – Appellee.
Before: CALLAHAN, BADE, and KOH, Circuit
Judges.
The panel unanimously voted to deny the petition
for rehearing en banc, the full court has been advised
of the petition, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P.
40.
The petition for rehearing en banc (Dkt. 35) is
DENIED.
App-19
Appendix C
[Filed: Apr. 11, 2024]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JORDAN SPATZ Ph. D., M.D.,
Plaintiff,
v.
REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Defendant.
Case No. 21-cv09605-LB
ORDER
GRANTING
THE
DEFENDANT
SUMMARY
JUDGMENT
Re: ECF No. 99
INTRODUCTION
The case is about whether the University of
California, San Francisco, wrongly denied Plaintiff
Jordan Spatz a neurosurgery residency at UCSF.
The plaintiff was 38 in 2021, when he graduated
from UCSF medical school. He applied to neurosurgery residency programs in 2020, 2021, and 2022
(including at UCSF) but did not obtain a residency
placement anywhere in the country. The defendant,
the Regents of the University of California, operated
the medical school. The plaintiff claims violations of
federal and state laws: (1) age discrimination under
the federal Age Discrimination Act of 1975; (2) age
discrimination in violation of California’s Fair
App-20
Employment and Housing (FEHA); (3) disability
discrimination in violation of FEHA; (4) harassment
in violation of FEHA; (5) retaliation in violation of
FEHA; (6) failure to prevent discrimination and
retaliation in violation of FEHA; and (7) whistleblower retaliation in violation of Cal. Health &
Safety Code § 1278.5. 1 The defendant moved for
summary judgment on all claims, primarily on the
grounds that the federal Act does not apply to
employees and in any event, the undisputed evidence
establishes that the plaintiff did not match into the
highly competitive USCF neurological-surgery
program on the merits, not because of retaliation or
discrimination.2 For these reasons, the court grants
the defendant summary judgment.
STATEMENT
UCSF’s neurosurgery program is among the best
in the country, is extremely selective, and each year,
accepts three of about three hundred applicants. 3
According to the plaintiff, that is the national trend:
nearly all neurosurgery programs accept three to
four residents per year.4
1 First Am. Compl. – ECF No. 31 at 16–26 (¶¶ 67–143); First
Suppl. Compl. – ECF No. 48 at 7–8 (¶¶ 32–43). Citations refer
to material in the Electronic Case File (ECF); pinpoint citations
are to the ECFgenerated page numbers at the top of documents
(and for depositions, to the page numbers at the bottom).
2 Mot. – ECF No. 99; Reply – ECF No. 102.
3 Berger Decl. – ECF No. 99-9 at 3 (¶ 9); Aghi Decl. – ECF No.
99-12 at 2–3 (¶ 4).
4 Opp’n – ECF No. 101 at 3 (citing Spatz Decl.). In his
declaration, the plaintiff says, “Having applied to
App-21
The
two
sections
recount
(generally
chronologically) the facts identified in the briefs
about (1) the plaintiff’s experiences at UCSF and (2)
his attempts to match to a neurosurgery residency. 5
1. Experiences at UCSF
In October 2017, during the plaintiff’s third-year
rotation, a senior resident told him that he “needed
to be careful given my age, Ph.D., and then
mentioned my . . . speech pattern.”6 The resident had
no input into the match evaluations for neurosurgery
residencies. The plaintiff reported the comment to
the UCSF Office for Prevention of Harassment and
Discrimination. 7 The plaintiff’s opposition says —
without any citation to the fact record — that the
“OPHD refused to formally investigate Dr. Spatz[’s]
age complaint because he ‘was not 40,’ but nevertheless informally intervened with the resident.” 8
The plaintiff has suffered from auditory dyslexia
from childhood, requiring interventions. 9 Beginning
in December 2017, UCSF granted the plaintiff an
numerous Neurosurgery residency programs, I am aware that
nearly all Neurosurgery programs only accept a maximum of 3
to 4 residents per year.” Spatz Decl. – ECF No. 100-2 at 9 (¶ 51).
5 Mot. – ECF No. 99-1 at 10–19; Opp’n – ECF No. 101 at 3–15.
6 Spatz Dep., Ex. A. to Wintterle Decl. – ECF No. 99-2 at 19:9–
20:6 (pp. 20:9–11:6).
7 Decl. – ECF No. 100-2 at 1 (¶ 2) (providing the October date).
8 Opp’n – ECF No. at 101 at 3. The opposition is not evidence:
the court recounts it for context only and because the defendant
did not challenge it in its reply.
9 First Am. Compl. ECF No. 31 at 2 (¶ 6), 4 (¶ 14) (lifelong
learning disability arising from an innerear condition requiring
surgeries, tubes, speech therapy, and accommodations).
App-22
accommodation for his disability. The letter does not
identify the disability.10 UCSF does not tell departments whether students have disabilities or need
accommodations. Instead, students decide whether to
tell departments, clinical rotations, or clerkships
about a need for accommodation. The plaintiff did
not provide the Department of Neurological Surgery
with his letter of accommodation.11
On March 5, 2018, Andre Campbell, M.D., FACS,
FACP, FCCM (and the director of the UCSF Surgical
Critical Care Fellowship and Vice Chair for DEI)
said — to a group of more than twenty medical
students at a third-year clerkship orientation — that
“Jordan is old as shit and won’t be able to take overnight call.” The plaintiff and “multiple other” students reported this to Dean Leon Jones, M.D., the
associate dean of students. Dean Jones advised the
plaintiff not to report it to UCSF’s Office for the Prevention of Harassment and Discrimination because
the plaintiff was interested in neurological surgery
and a report could subject him to retaliation within
the residency-ranking process for surgery-residency
programs in neurological surgery and general
surgery.12
From 2018 to 2019, the plaintiff “extended [his]
education” to participate in a “year-long inquiry into
glioblastoma immunotherapy” with Manish Aghi,
M.D., Ph.D., at UCSF. He “orchestrated intellectual
property and transfer agreements” with MIT and
10 Lucey Dep., Ex. C to Wintterle Decl. – ECF No. 99-2 at 41:6–
7 (p. 52:6–7)
11 Id. at 39:16–41:2 (pp. 50:16–52:2), 41:6–7 (p. 52:6–7)
12 Decl. – ECF No. 100-2 at 2 (¶ 3).
App-23
Beth Israel Deaconess Medical Center and “invented[]
and conducted research” at the Aghi lab. For these
contributions, Dr. Aghi promised co-authorship or
acknowledgement “for any resulting publications,
patents, and manuscripts.” 13 To date, despite citations in patent applications and publications, the
plaintiff has not been credited as “co-first author” or
other authorship or acknowledgement of contribution. 14 According to the defendant, authorship
credit is based on criteria; the plaintiff did not meet
them.15 The person who decided inventorship credit
did not consider the plaintiff’s complaints about age
or disability discrimination. 16 In the complaint, the
plaintiff contends that he was removed from the Aghi
Lab website in retaliation for his complaints.17 UCSF
inadvertently deleted personnel, including the plaintiff, from the website, and the person who did so
would have had no knowledge of the plaintiff’s
protected activities.18
In the complaint, the plaintiff contends that he
was denied a residency because “he reported to
superiors regarding unsafe patient practices arising
from resident scheduling in violation of ACGME
Duty Hour Limits.” 19 The UCSF neurosurgery
faculty who interviewed the plaintiff for a residency
or attended the 2020 or 2021 rank meetings did not
13 Id. (¶ 4).
14 Id. (¶ 5).
15 Aghi Decl. – ECF No. 99-12 at 3–4 (¶ 9).
16 Hinsch Decl. – ECF No. 99-13 at 2 (¶ 2).
17 First Suppl. Compl. – ECF No. 48 at 6, 7 (¶¶ 27, 35–37).
18 Aghi Dep., Ex. B to Wintterle Decl. – ECF No. 99-2 at 31–32
(pp. 62:20–63:19); Aghi Decl. – ECF No. 99-12 at 5 (¶ 13).
19 FAC – ECF No. 31 at 25 (¶¶ 138–39).
App-24
know that the plaintiff reported a duty-hour
violation. 20 Complaints about duty-hour violations
are anonymous.21
During their fourth year, medical students
participate in sub-internships, called sub-Is, where
they learn in a clinical setting. These occur at their
home institution or elsewhere. “[T]he number one
determining factor in someone’s acceptance into
residency is their performance on the rotation.” 22
The plaintiff had internships at Stanford,
Harvard/Massachusetts General, and UCSF. In an
October 8, 2019, evaluation from Stanford, the
plaintiff had six 3s out of 4 (“At Expected Competency”), and some 2s (“Near Expected Competency”)
and 2–3s. He had no 4s (“Above Expected Competency/Outstanding”). The “Summary Comments” said,
“Seems to have a genuine interest in neurosurgery,
although his attendance, effort, enthusiasm, and
overall performance were fair at best.” The “Cons20 Aghi Decl. – ECF No. 99-12 at 3 (¶ 8); Auguste Decl. – ECF
No. 99-4 at 3 (¶ 5); Berger Decl. – ECF No. 99-9 at 3 (¶ 7);
Chang Decl. – ECF No. 99-17 at 3 (¶ 7); Gupta Decl. – ECF No.
99-14 at 3 (¶ 5); Hervey-Jumper Decl. – ECF No. 99-20 at 3 (¶
4); Lim Decl. – ECF No. 99-16 at 3 (¶ 5); Manley Decl. – ECF
No. 99-15 at 3 (¶ 5); Morshed Decl. – ECF No. 99-5 at 4 (¶ 8);
Mummaneni Decl. – ECF No. 99- 15 at 3 (¶ 5); Raygor Decl. –
ECF No. 99-11 at 3 (¶ 8); Scheer Decl. – ECF No. 99-6 at 2 (¶ 5);
Starr Decl. – ECF No. 99-3 at 2–3 (¶ 6); Tarapore Decl. – ECF
No. 99-18 at 2 (¶ 4); Theodosopoulos Decl. – ECF No. 99-10 at 4
(¶ 7); Wang Decl. – ECF No. 99-19 at 3 (¶ 7).
21 Aghi Decl. – ECF No. 99-12 at 3 (¶ 8); Berger Decl. – ECF No.
99-9 at 3 (¶ 7).
22 Aghi Dep., Ex. B to Wintterle Decl. – ECF No. 99-2 at 35:11–
16 (p. 70:11:16); see Mot – ECF No. 99-1 at 11–12 (citing many
declarations).
App-25
tructive Comments” said the following: (1) “Awful
body language and attitude;” (2) “Kind of a passenger,
not looking for ways to shine;” (3) “snappy with
interns;” (3) “If he lacks the fortitude/stamina to
endure these hours without breaks, he probably
won’t survive residency;” (4) “Only presented on
rounds once because it was the only day he showed
up on time;” (5) “Outstanding research talk based on
his laboratory work at UCSF [with] Dr. Aghi; and (6)
“Will make significant scientific contributions to the
field. Not sure if neurosurgery a path best for him to
accomplish his goals as a brilliant scientist.” 23 According to the plaintiff, the evaluation was revised to all
3s and 4s because the derogatory remarks were from
a Stanford intern who was removed from his job.24
At Harvard/Mass General, the plaintiff had a
neurosurgery clerkship from September 30, 2019, to
October 27, 2019, and received seven ratings of
“Consistently above appropriate level” and three
ratings of “Most often above appropriate level.” The
comments said the following: (1) “Excellent rotation.
Remarkable depth of knowledge as it pertains to
neurooncology which did not go unnoticed. Faculty
and residents had very positive comments. Their
only advice for improvement (not to be quoted in
Dean’s letter) is to focus on deepening involvement
with patient care and with surgery/procedural skills
whenever the opportunity arises. Otherwise no
specific suggestions[;]” and (2) “Excellent rotation.
23 Evaluation Form, Ex. D to Wintterle Decl. – ECF No. 99-2 at
45–48).
24 Spatz. Decl. – ECF No. 100-2 at 10 (¶ 54) (citing Email Chain,
Ex. P to id. – ECF No. 100-2 at 153–56). The plaintiff did not
provide the revised evaluation.
App-26
Jordan Spatz was able to participate in a wide range
of surgeries and gain exposure to a wide variety of
diagnoses. He is absolutely passionate about neurooncology and has already amassed an impressive
fund of knowledge that rivals that of experts in the
field. We anticipate he will succeed in an academic
environment if he continues along this trajectory.”
His final grade was H (Honors). 25
At UCSF, the plaintiff had a research elective
from December 16, 2019, to December 22, 2019, in
research in neurosurgery. He scored 4 (the highest
score) for all ten categories. The comments said that
“Jordan did great work on his research elective and
will make a great neurosurgeon-scientist. He was a
team player and helped others with their projects in
addition to leading his own project.”26
From October 26, 2020, to November 22, 2020,
the plaintiff took a neurosurgery course called
Advanced Inpatient Clerkship 2 with Dr. Aghi. He
received 4s (the highest mark) for all ten categories.
The “Summary Comments” said, “Jordan did a good
job on the four week rotation, spending time on our
pediatric service as well as our adult services at
Moffitt and SFGH.” The “Specific Comments” said,
“Takes initiative, good at doing clear sub-I tasks
such as generating HPIs, taking imaging down, etc.,”
and “Overall appropriate interactions with staff and
residents. Has put in adequate effort so far on rotation. Tries to be helpful.” The “Constructive Comments” said, “Areas for Jordan to improve at are
suggested below[;] most of these involve improving
25 Evaluation, Ex. O to Spatz Decl. – ECF No. 100-2 at 151.
26 Student Summary, Ex. K to id. – ECF No. 100-2 at 60.
App-27
knowledge base so that he can anticipate next steps
in patient care and perform tasks in a way that is as
helpful as possible.” “Does not always follow direct
instructions. For example, told him exactly how to
present ICU patients in abbreviated way due to time
constraints but he presented with a prolonged format
despite this instruction.” “Can work on neurosurgical
knowledge, including learning many common grading systems for common neurosurgical problems such
as spetzler-martin or supplemental school for AVMs,
TLICs for traumatic fractures.” “Jordan can also
work on timeliness per comments provided by the
team.” “These are skills to continue to work at as he
transitions from being a medical student into being a
resident.”27
The plaintiff submitted other positive performance evaluations: (1) a rotation in May and June
2018 in Clinical Neurosurgery (all 4s in ten categories and a reflection of “amazing job” and “a great
future as a neurosurgeon;” (2) a rotation in July 2019
in Advanced Neurosurgery Clerkship (eight 3.5s and
two 4s); (3) a rotation in July and August 2019 in the
University of Colorado (all 4s and “exemplary job on
his Neurosurgery sub-I rotation at CU”); (4) a
rotation in December 2019 in Research in Neurosurgery (all 4s and a reflection of “great work;” (5) a
rotation in March 2020 in Acting Internship in Medicine (all 3.5s); (6) a rotation in August and September 2020 in Advanced Clinical Clerkship (six 3.5s
and four 4s and good comments); (7) a rotation in
September and October 2020 in Advanced General
27 Student Summary, Ex. K to Spatz Decl. – ECF No. 100-2 at
87–88.
App-28
Surgery (all 3.5s and generally positive comments);
(8) a rotation in June 2021 in Advanced Neurocritical
Care and Emergency Neurology (five 3s, two 3.5s,
and three 4s); and (9) a rotation in June and July
2021 in Advanced Trauma & General Surgery (all 4s
and positive comments, including “exemplary”).28
2. The 2020, 2021, and 2022 Residency Matches
During their last year of medical school, students
participate in a “Match” through the National
Resident Matching Program. “The NRMP uses a
mathematical algorithm to place applicants into
residency and fellowship positions. Research on the
algorithm was the basis for awarding the 2012 Nobel
Prize in Economic Sciences.”29 Students who do not
match can try to match through a second-round
process called the Supplemental Offer and
Acceptance Program (SOAP).30 The plaintiff applied
for residencies in 2020, 2021, and 2022. 31 As
discussed in the next sections, he did not match with
any neurosurgery residency. His expert opines that
he had a greater than ninety-percent chance of
matching into a neurosurgery residency in 2020 and
28 Evaluations, Ex. K to Spatz Decl. – ECF No. 100-2 at 59–94.
NRMP | National Resident Matching Program,
https://www.nrmp.org/.
30 2024 Main Residency Match Applicants Calendar | NRMP,
https://www.nrmp.org/matchcalendars/main-residencyapplicants/.
31 Spatz Decl. – ECF No. 100-2 at 2 (¶ 6).
29
App-29
his not matching in 2020 and 2021 is aberrant. After
two failed matches, the chance of matching is low.32
2.1 The 2020 Match
For Match year 2020, the plaintiff applied to
eighteen programs and ranked UCSF first, which
means that if UCSF ranked him, they would
match.33 Dr. Aghi provided a letter of Spatz Decl. –
ECF No. 100-2 at 2 (¶ 7) & Rank List, Ex. A to id. –
ECF No. 100-2 at 12–13.recommendation.34
On August 16, 2019, a resident at USCF
interviewed the plaintiff for a position as a resident
at the department of Neurosurgery at USCF, ranked
him as a “Low” performer, said, “Difficult
attitude/abrasive with other team members.” 35 He
identified as an area of concern “clinical performance
during subinternship” based on “generally negative
resident feedback” when he collected resident
evaluations of subinterns for the neurosurgery
residency.36
In January 2020, UCSF solicited rankings from
neurosurgery residents for sixteen neurosurgery
32 Miller Decl. – ECF No. 57 at 3–5 (¶¶ 13–19). The defendant
objects to this evidence on the ground that there is no evidence
of the declarant’s expertise, the basis for her conclusions, or the
relevance to a challenge to a decision allegedly based on
impermissible reasons. Reply – ECF No. 102 at 2–3. The court
weighs the evidence accordingly. It in any event does not
change the outcome.
33 Spatz Decl. – ECF No. 100-2 at 2 (¶ 7) & Rank List, Ex. A to
id. – ECF No. 100-2 at 12–13.
34 Spatz Decl. – ECF No. 100-2 at 3 (¶ 8).
35 Email, Ex. B to Morshed Decl. – ECF No. 99-5 at 6.
36 Morshed Decl. – ECF No. 99-5 at 3 (¶ 6).
App-30
residency candidates and the plaintiff. For the other
candidates, the residents ranked them in three tiers
(one, two, and three) but they “uniformly did not
want to rank” the plaintiff.37 The section about the
plaintiff begins, “DO NOT RANK!” It then says the
following:
- “not good on too many dimensions to
enumerate”
- “left early, and arrived late, so bad”
- “went home while at SFGH multiple
times, was the only sub-I who went
home at night”
- “no way!”
- “would be a disaster, not a single
positive comment from anyone who
worked with him?”38
In January 2020, the plaintiff interviewed with
members of UCSF’s faculty. Praveen Mummaneni,
M.D., the vice-chair of the UCSF Neurological
Surgery Department, told the plaintiff that he was
“an older applicant” and asked him to “justify why
you won’t burn out in 3–4 years and go into
investment banking.”39 Dr. Aghi told him “it’s going
to be a tough year for M.D.–Ph.D. Applicants”
because Dr. Theodosopoulos (the program director)
“doesn’t want to train M.D.–Ph.D.s”. 40 Mitchel
37 Email, Ex. 3 to Theodosopolous Decl. – ECF No. 99-10 at 13–
17.
38 Id. at 16–17.
39 Spatz Decl. – ECF No. 100-2 at 3 (¶ 9(a)).
40 Id. (¶ 9(b)).
App-31
Berger, M.D., said “Well, you’re only going to have a
25-year career in neurosurgery.” 41
The UCSF doctors who participated in the 2020
Match completed evaluation forms with written
comments. They said that no one perceived the
plaintiff to be 40 or older at the relevant times or
considered his age when evaluating his application.
Instead, they considered the plaintiff’s performance
and evaluations during his sub-internships.42 By his
own account, the plaintiff’s grades were middle of the
pack.43 According to Dr. Berger, no one thought the
plaintiff did well on his clinical duties: “all comments
about him were entirely negative. I did not hear one
positive comment from any of the faculty or residents
about his potential to be a resident in our
program.” 44 Another doctor initially supported the
plaintiff until he heard residents’ assessments of the
plaintiff, including that he did not work hard: “I was
disappointed to learn that the residents who worked
41 Id. (¶ 9(c)).
42 Aghi Decl. – ECF No. 99-12 at
3 (¶¶ 5–7); Auguste Decl. –
ECF No. 99-4 at 2 (¶¶ 2–4); Berger Decl. – ECF No. 99-9 at 3,
3–4 (¶¶ 5–6, 10 ); Chang Decl. – ECF No. 99-17 at 2–3 (¶¶ 4–5);
Gupta Decl. – ECF No. 99-14 at 2 (¶¶ 2–4); Hervey-Jumper
Decl. – ECF No. 99-20 at 2 (¶ 3); Lim Decl. – ECF No. 99-16 at
2–3 (¶¶ 3–4); Manley Decl. – ECF No. 99-15 at 2–3 (¶¶ 3–4);
Morshed Decl. – ECF No. 99-5 at 2–3 (¶¶ 4–5); Mummaneni
Decl. – ECF No. 99-7 at 2, 3 (¶¶ 3, 6); Raygor Decl. – ECF No.
99-11 at 2 (¶¶ 3–5); Scheer Decl. – ECF No. 99-6 at 2 (¶¶ 3–4);
Starr Decl. – ECF No. 99-3 at 2,3 (¶¶ 4, 8); Tarapore Decl. –
ECF No. 99-18 at 2 (¶ 2–3); Theodosopoulos Decl. – ECF No. 9910 at 3–4 (¶ 5); Wang Decl. – ECF No. 99-19 at 3 (¶¶ 5–6).
43 Spatz Dep., Ex. A to Wintterle Decl. – ECF No. 99-2 at 9:3–10
(p. 77:3–10).
44 Berger Decl. – ECF No. 99-9 at 3–4 (¶ 8)
App-32
with Dr. Spatz observed that he did not work hard,
and was often not present when there was work to be
done or cases to assist on.”45 Dr. Mummaneni based
his decision on the plaintiff’s stamina:
I did ask Dr. Spatz what he thought of
the 80-hour workweek. This is something that I ask almost every applicant I
interview. In all my years of interviewing potential residents and asking this
same question, Dr. Spatz is the only
applicant who ever said they recommend working “far less hours” and wondered if the program could be made
easier. This raised a red flag because
neurosurgery is an intense, hands-on
profession. The neurosurgery national
Residency Review Committee has
provided guidance for residencies to
utilize the 80-hour workweek for residents to learn to take care of the sickest
patients and learn the nuances of surgical technique. To be successful, an applicant needs drive and desire, otherwise
patients suffer. This is the basis for my
comment that I was “not sure if [Dr.
Spatz] has enough stamina for NS
residency.” It had nothing to do with his
age, but rather whether he had the grit
and drive to be a neurosurgery resident.
Not everyone does, and I routinely ad-
45 Starr Decl. – ECF No. 99-3 at 3 (¶ 8).
App-33
vise students to be sure this challenging
career is the one they wish to pursue.46
Philip Theodosospolous, M.D., the program
director for neurological surgery training at UCSF,
ranked the plaintiff to “match,” saying he was an
outstanding candidate, very mature, humble” and, as
to areas of concern, “engineering to medicine
transition.” He ranked him two of ten applicants and
checked the boxes for “Yes! Top 3! Rank to Match!”
and “Yes, okay to rank.” 47 He also said that the
plaintiff “has characteristics which have been
observed by several evaluators during his rotations
in our department which raised red flags, including
his attitude, his at-best lackluster fervor for clinical
care, and his quiet and aloof demeanor.”48
Another doctor said:
What stood out was Dr. Spatz asking if
there was a way to make residency easier. This was an unusual question and
why I noted it on the evaluation form. It
is also why I rated “Applicant’s motivation to be in the program” as “fair.” If
he was asking if residency can be easier,
I had to wonder why he wanted to do
neurosurgery. . . . I recall that Dr. Spatz
was academically strong in terms of
research productivity but the reports of
his clinical performance were almost all
46 Mummaneni Decl. – ECF No. 99-7 at 2–3 (¶ 4).
Theodosopolous Decl. – ECF No. 99-10 at 3 (¶ 4) &
Evaluation, Ex. 1 to id. – ECF No. 99-10 at 6.
48 Theodosopolous Decl. – ECF No. 99-10 at 4 (¶ 6).
47
App-34
negative. That is why I wrote on the
evaluation “not sure that he would be a
good fit.”49
Dr. Aghi observed, “The most important
consideration for an applicant is performance on the
clinical sub-internship. A poor performance on the
rotation makes our program unlikely to consider a
candidate further. Dr. Spatz’s sub-internship
evaluations revealed to me that he had the poorest
performance of nearly 30 rotating students during
summer of 2019. . . . In both years, I indicated it was
ok to rank him, though he was not a top three
candidate.”50 Another doctor said, “While I did note
Dr. Spatz’s age on my 2020 interview evaluation
form (and clearly did not perceive him to be 40 years
of age or older), it was one data point among many
and not a determinative factor in the residency
selection process. Indeed, I indicated that it was ok
to rank Dr. Spatz for both the 2020 Match and 2021
Match.” (She listed as an “area of concern” “36 y/o”
on her form.) 51 Another doctor listed the plaintiff’s
competencies as good, and another said it was “okay
to rank” him.52
On February 6, 2020, Sigurd Berven, M.D., told
the plaintiff that “he spoke with Dr. Mummaneni
about me and discussed my age, ‘burn out,’ and my
statements about the ‘maximum 80-hour’ work
49 Raygor Decl. – ECF No. 99-11 at 2–3 (¶ 6–7).
50 Aghi Decl. – ECF No. 99-12 at 2–3 (¶¶ 3–5).
51 Gupta Decl. – ECF No. 99-14 at 2 (¶ 2) & Evaluation, Ex. 1 to
id. – ECF No. 99-14 at 5.
52 Lim Decl. – ECF No. 99-16 at 2 (¶ 2) & Evaluation, Ex. 1 to id.
– ECF No. 99-16 at 5; Hervey-Jumper Decl. – ECF No. 99-20 at
2 (¶ 2) & Evaluation, Ex. 1 to id. – ECF No. 99-20 at 5,
App-35
week.”53 Dr. Aghi told the plaintiff “that my age was
openly discussed and formally considered at the
UCSF Neurological Surgery residency rank selection
meeting.”54
On February 9, 2020, Dr. Aghi sent him a text
message: “So they discussed the age of this kid nate
from Pitt but everyone felt like he was a bundle of
energy and no concerns that he would be too old, in
your case there were concerns that you might not
have the stomach for the pace of our program. It is
pretty brutal and the good subIs are constantly on
the move without stopping.”55
On February 14, 2020, ‘”Dr. Aghi reiterated that
my age and ‘slowness,’ which was in regard to my
disability that Dr. Aghi was aware of at this time,
were discussed during the UCSF Neurological Surgery residency rank selection meeting.”56 On February 20, 2020, Dr. Berven told him that “they had also
discussed ‘concerns about you burning out of
residency’ and that they had observed that ‘as an
older applicant, you have a more laid back personality.’” 57 On February 21, 2020, in the operating
room, Andrew Chan (the chief resident) and Sanjay
Dhall (a professor) had this conversation:
Dhall:
Have either of you seen
Forrest Gump?
Plaintiff: I’ve seen it.
Chan:
You know [Plaintiff] is 40.
53 Spatz Decl. – ECF No. 100-2 at 3 (¶ 10(a)).
54 Id. (¶ 10(b)).
55 Id. (¶ 11) & Text Message, Ex. B to id. – ECF No. 100-2 at 15.
56 Spatz Decl. – ECF No. 100-2 at 3 (¶ 12(a)).
57 Id. at 4 (¶ 12(b)).
App-36
Plaintiff: I’m 36.
Chan:
Like it makes any difference.
Dhall: So, when you are done with
residency, they can roll you
right into the nursing home.58
In January 2020, after he learned that his age
was discussed during the Rank List meeting, the
plaintiff emailed Dean Jones to discuss age discrimination, and on February 9, 2020, he filed a complaint with the Office for the Prevention of Harassment and Discrimination alleging age discrimination.
In March 2020, Grant Abernathy called the plaintiff
to let him know that the Office for the Prevention of
Harassment and Discrimination would investigate
some of the claims filed in February 2020 but not the
claims about age discrimination.59
In March 2020, the plaintiff learned that he did
not match with any neurological surgery residency in
2020. He participated in the second-round process
(SOAP) and was not selected for any residency
training.60
On March 17, 2020, the plaintiff “spoke with Dr.
Campbell, who asked me to state my age; when I
answered, he responded, ‘well, that’s a problem
because they got to believe you’ll make it through 6–
7 years of the hard grind.’”61
58 Id. (¶ 13) (cleaned up) & Note, Ex. C to id. – ECF No. 100-2 at
17–18.
59 Spatz Decl. – ECF No. 100-2 at 4–5 (¶¶ 18–20); Notices, Exs.
D–E to id. – ECF No. 100-2 at 20–29.
60 Spatz Decl. – ECF No. 100-2 at 4 (¶¶ 15–16).
61 Id at 4 (¶ 17)
App-37
2.2 The 2021 Match
The plaintiff applied for, and was not selected for,
neurosurgery residencies in 2021, and he applied
again through SOAP but was not selected for a
residency. He again ranked UCSF first. 62 Dr. Aghi
provided him a letter of recommendation “but did not
provide other, essential advocacy for my candidacy in
2021 or thereafter.”63
A November 7, 2020, email with a survey from
residents had the following about the plaintiff:
•
•
•
•
Currently on rotation and about
2 weeks in. Some concerns regarding performance on rotation.
“Takes initiative, good at doing clear
sub-I tasks such as generating HPIs,
taking imaging down, etc”
“Does not always follow direct
instructions. For example, told him
exactly how to present ICU patients
in abbreviated way due to time
constraints but he presented with a
prolonged format
despite
this
instruction.”
“Did not show up to rounds on time.
Did not come prepared to rounds.
Did not have a list. Did not know the
patients. Did not have supplies. Did
not supplement rounds, slowed down
rounds. On headpager call, did not
write down H&Ps or offer to help.
62 Id. at 5 (¶¶ 23–25)
63 Id. at 5 (¶¶ 23–25)
App-38
•
•
•
Had to be asked to perform certain
tasks. Did not complete assigned
tasks on time (calling Micro lab/uploading images). Left call early.”
“Initially very passive role player on
service and had to be asked to help
out but progressed back to being
slightly more engaged by asking
“how can I help.” Still remained
somewhat aloof and never progressed to the point of being able to
anticipate needs/needs step in work
despite being explicitly encouraged
to pay attention to common logistics
issues of the service or what the oncall resident may need.” Displayed
poor interpersonal skills and tact
(made comments such that he had
suggested interventions prior to
them being carried out, implying
that such actions were his idea and
he was right all along).”
“Lack of situational awareness
(asking questions during critical
moments of a procedure, humming
aloud in common spaces where multiple people in the room were quietly
and intently working, never seemed
to understand when things were urgent/emergent or when others were
stressed or overburdened by work)”
“Appropriate fund of knowledge with
regard to basic neurology and physical exam correlates but poor neuro-
App-39
surgical knowledge - did not know
many common grading systems for
common neurosurgical problems
such as spetzler-martin or supplemental score for AVMs, TLICS for
traumatic fractures.”64
Dr. Theodosopolous and others “considered this
feedback in evaluating Dr. Spatz’s fitness to become
a neurosurgery resident. . . .” in 2021.65
The plaintiff submitted text messages exchanged
during this internship to show that he was performing tasks as requested and that two doctors thanked
him for his work.66
The interviews were in December 2020. The participating doctors all said that age was not a factor
and relied on the plaintiff’s performance and evaluations during his sub-internships. Representative comments include the following.
• I did not think that UCSF should
rank him in the 2021 because of the
difficulties he had working with
residents and the ability to blend
and work well with the residents is
very important to a cohesive resident
cohort and the most important
consideration for an applicant.67
64 Email, Ex. 2 to Theodosopolous Decl. – ECF No. 99-10 at 10–
11.
65 Theodosopolous Decl. – ECF No. 99-10 at 4 (¶ 6)
66 Spatz Decl. – ECF No. 100-2 at 8 (¶¶ 43–44) & Text Messages,
Exs. L–M to id. – ECF Nos. 100-2 at 96–146 (texts include
thank yous for the plaintiff’s help).
67 Auguste Decl. – ECF No. 99-4 at 2 (¶ 2).
App-40
•
•
•
•
On my evaluation form I noted “clinical performance during the subinternship” as an area of concern. This
was based on the generally negative
resident feedback I reviewed when I
was asked to collected resident evaluations of subinterns for the
neurosurgery residency program
director.68
As indicated on my evaluation form,
Dr. Spatz did not do well on his
subinternship and was not a good fit
with the residents. His poor sub-internship performance was the determinative factor in why I indicated
UCSF should not rank Dr. Spatz.69
While I thought Dr. Spatz had some
outstanding qualities, I ultimately
decided that he was not a good fit for
UCSF. In my opinion, fit is both
extremely important and hard to
define. Certainly the negative evaluations of the neurosurgery residents showed Dr. Spatz would not have
been a good fit.70
I indicated that it was ok to rank
him for the 2021 Match, though he
was not a top three candidate. The
most important considerations when
68 Morshed Decl. – ECF No. 99-5 at 3 (¶ 6).
69 Scheer Decl. – ECF NO. 99-6 at 2 (¶ 2).
70 Manley Decl. – ECF No. 99-15 at 2 (¶ 2).
App-41
•
•
•
assessing an applicant is the opinion
of the residents.71
I indicated that he should not be
ranked based on his strange social
interactions and reference letters
which were mediocre and raised
issues from his neurosurgery rotation. An applicant’s clinical performance on the neurosurgery rotation
is the key factor in deciding whether
to rank an applicant to Match. This
designation in my evaluations is
usually reserved for the absolute
worst candidates.72
As indicated on my evaluations form,
Dr. Spatz had poor sub-internship
performance and did not work well
with the team. These were the determining factors in why I indicated we
should not rank Dr. Spatz to
match.73
I rated him poor or fair in all
categories. As but one example of his
poor “Interpersonal Skills” (one of
the categories on the evaluation
form), throughout the interview he
referred to me as “Doris” and Manish
Aghi as “Dr. Aghi.” . . . Dr. Spatz was
one of the worst clinical performers
71 Lim Decl. – ECF No. 99-16 at 2 (¶ 2).
72 Chang Decl. – ECF No. 99-17 at 2 (¶ 2).
73 Terapore Decl. – ECF No. 99-18 at 2 (¶ 2).
App-42
and that is the reason he did not
match.74
Two other doctors said that the plaintiff was
“okay to rank.”75
In March 2021, Dr. Starr told the plaintiff that he
refused to select him because “you have a higher risk
of killing a patient than others” and “your capacity to
work long hours is not good enough to be a
resident.” 76 Dean Lucey, who had spoken to Drs.
Chang and Starr, “related concerns about my
‘durability for a neurosurgery residency.’” 77
On April 13, 2021, Dean Lucey sent the plaintiff a
letter saying that UCSF “will not submit past or new
letters in support of your candidacy, now or in the
future.”78
On April 19, 2021, the plaintiff met with Dr. Aghi
to discuss a potential postdoctoral position in his
laboratory. Dr. Aghi told him that “he did not
advocate for me at external institutions because
internal UCSF investigations caused Dr. Aghi
‘frustration,’ ‘to hate his job,’ and ‘made his life hell.’
He went on to say ‘I am the Neurosurgery
Department and did not advocate for you.”79 Dr. Aghi
said in his declaration, “I did not take Dr. Spatz’s
74 Wang Decl. – ECF No. 99-19 at 2 (¶ 2–3).
75 Gupta Decl. – ECF No. 99-14 at 2 (¶ 2); Ex. 1 to id. – ECF No.
99-14 at 6; Hervey-Jumper Decl. – ECF No. 99-20 at 2 (¶ 2); Ex.
1 to id. – ECF No. 99-20 at 6.
76 Spatz Decl. – ECF No. 100-2 at 5–6 (¶ 26).
77 Id. at 6 (¶ 27).
78 Id. at 6 (¶ 28) (cleaned up) & Letter, Ex. H to id. – ECF No
100-2 at 45–46.
79 Spatz Decl. – ECF No. 100-2 at 6 (¶ 29).
App-43
complaints related to discrimination or retaliation
into consideration when assessing him for a
residency position.”80
2.3 The 2022 Match
In Match year 2022, the plaintiff again applied to
UCSF’s Neurological Surgery residency program,
ranked it second (which would have resulted in a
match had UCSF ranked him), was not selected for
an interview, did not match with any neurologicalsurgery residencies, and matched with a one-year
non-categorical preliminary surgery residency at
Oregon Health & Science University.81
3. Relevant Procedural History
The complaint has seven claims: (1) age
discrimination under the federal Age Discrimination
Act of 1975; (2) age discrimination in violation of
California’s Fair Employment and Housing (FEHA);
(3) disability discrimination in violation of FEHA; (4)
harassment in violation of FEHA; (5) retaliation in
violation of FEHA; (6) failure to prevent discrimination and retaliation in violation of FEHA; and (7)
whistleblower retaliation in violation of Cal. Health
& Safety Code § 1278.5.82 The defendant moved for
summary judgment.83 The court has federal-question
jurisdiction under the Age Discrimination Act of
80 Aghi Decl. – ECF No. 99-12 at 3 (¶ 7).
81 Spatz Decl. – ECF No. 100-2 at 6 (¶¶ 30–31) & Rank List, Ex.
I to id. – ECF No. 100-2 at 47–50.
82 First Am. Compl. – ECF No. 31 at 16–26 (¶¶ 67–143); First
Suppl. Compl. – ECF No. 48 at 7–8 (¶¶ 32–43).
83 Mot. – ECF No. 99.
App-44
1975 and supplemental jurisdiction over the state
claims under 28 U.S.C. § 1367(a). All parties consented to magistrate-judge jurisdiction.84 28 U.S.C. §
636(c)(1). The court held a hearing on April 4, 2024.
STANDARD OF REVIEW
The court must grant summary judgment where
there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
Material facts are those that may affect the outcome
of the case. Id. at 248. A dispute about a material
fact is genuine if there is sufficient evidence for a
reasonable jury to return a verdict for the nonmoving
party. Id. at 248–49.
The party moving for summary judgment has the
initial burden of informing the court of the basis for
the motion and identifying portions of the pleadings,
depositions, answers to interrogatories, admissions,
or affidavits that demonstrate the absence of a
triable issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986). To meet its burden, “the
moving party must either produce evidence negating
an essential element of the nonmoving party’s claim
or defense or show that the nonmoving party does
not have enough evidence of an essential element to
carry its ultimate burden of persuasion at trial.”
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d
1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey,
263 F.3d 1070, 1076 (9th Cir. 2001) (“When the
84 Consents – ECF Nos 12, 13.
App-45
nonmoving party has the burden of proof at trial, the
moving party need only point out ‘that there is an
absence of evidence to support the nonmoving party’s
case.’”) (quoting Celotex, 477 U.S. at 325). “Where the
moving party will have the burden of proof on an
issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other
than for the moving party.” Soremekun v. Thrifty
Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
If the moving party meets its initial burden, then
the burden shifts to the nonmoving party to produce
evidence supporting its claims or defenses. Nissan,
210 F.3d at 1103. “Once the moving party carries its
initial burden, the adverse party may not rest upon
the mere allegations or denials of the adverse party’s
pleading, but must provide affidavits or other sources of evidence that set forth specific facts showing
that there is a genuine issue for trial.”) Devereaux,
263 F.3d at 1076 (cleaned up). If the non-moving
party does not produce evidence to show a genuine
issue of material fact, the moving party is entitled to
summary judgment. Celotex, 477 U.S. at 322–23.
In ruling on a motion for summary judgment, the
court does not make credibility determinations or
weigh conflicting evidence. Instead, it views the
evidence in the light most favorable to the nonmoving party and draws all factual inferences in the
non-moving party’s favor. E.g., Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587–88 (1986); Ting v. United States, 927 F.2d 1504,
1509 (9th Cir. 1991).
In ruling on a summary-judgment motion, the
court “need only consider the cited materials.” Fed. R.
Civ. P. 56(c)(3). A “district court need not examine
App-46
the entire file for evidence establishing a genuine
issue of fact, where the evidence is not set forth in
the opposing papers with adequate references so that
it could conveniently be found.” Carmen v. San
Francisco Unified Sch. Dist., 237 F.3d 1026, 1031
(9th Cir. 2001). In other words, “whatever establishes a genuine issue of fact must both be in the
district court file and set forth in the response.” Id.
at 1029; see Keenan v. Allan, 91 F.3d 1275, 1279 (9th
Cir. 1996) (“[I]t is not our task, or that of the district
court, to scour the record in search of a genuine issue
of triable fact. We rely on the nonmoving party to
identify with reasonable particularity the evidence
that precludes summary judgment.”).
ANALYSIS
The plaintiff’s opposition analyzes only age
discrimination under the federal Age Discrimination
Act of 1975 (claim one) and retaliation in the form of
Dr. Aghi’s failure to advocate for the plaintiff and
give authorship credit, which he casts a claim under
the 1975 Act too (and not as a FEHA claim for
retaliation, which is claim five). 85 There are no
material issues of fact about the Age Discrimination
Act because it does not apply to employees, and in
any event, the plaintiff has not established age
discrimination or retaliation in violation of the Act.
The failure to address the remaining claims is a
concession of them. Lansdown v. Bayview Loan
Servicing, LLC, No. 22-cv-00763-TSH, 2023 WL
Opp’n – ECF No. 101 at 15–21; see id. at 18:15–27
(retaliation).
85
App-47
2934932, at *4 (N.D. Cal. Apr. 12, 2023) (a failure to
oppose an argument is waiver and abandonment and
thus “cedes the argument”); Azpetia v. Tesoro Ref &
Mktg. co. LLC, No. 17-cv-00123-JST, 2017 U.S. Dist.
LEXIS 1 14210, at *27 (N.D. Cal. July 21, 2017)
(same); GN Resound A/S v. Callpod, Inc., No. C 1104673 SBA, 2013 WL 1190651, at *5 (N.D. Cal. Mar.
21, 2013) (construing a failure to oppose an
argument as a concession); Rosenfeld v. U.S. DOJ,
903 F. Supp. 2d 859, 862 (N.D. Cal. 2012) ("In most
circumstances, failure to respond in an opposition
brief to an argument put forward in an opening brief
constitutes waiver or abandonment in regard to the
uncontested issue."). The plaintiff nonetheless said
at the hearing that he preserved the other claims —
age discrimination in violation of California’s Fair
Employment and Housing (FEHA) (claim two),
disability discrimination in violation of FEHA (claim
three), harassment in violation of FEHA (claim four),
retaliation in violation of FEHA (claim five), failure
to prevent discrimination and retaliation in violation
of FEHA (claim six), and whistleblower retaliation in
violation of Cal. Health & Safety Code § 1278.5
(claim seven) — by recounting facts about them in
the “disputed facts” section of the opposition. The
citation of facts (summarized in the Statement) does
not mitigate a failure to analyze the claims. The
court nonetheless addresses the claims below and
concludes that the fact allegations do not establish
material disputes of fact that preclude summary
judgment.
App-48
1. Age Discrimination Act of 1975 — Claim One
The Act provides that “no person in the United
States shall, on the basis of age, be excluded from
participation in, be denied the benefits of, or be
subjected to discrimination under, any program or
activity receiving Federal financial assistance.” 42
U.S.C. § 6102. The Act excludes from coverage an
action that “reasonably takes into account age as a
factor necessary to the normal operation or achievement of any statutory objective” of a recipient or
actions that are based on “reasonable factors other
than age.” Id. § 6103(b). The Act does not “authorize
action under this chapter by any Federal department
or agency with respect to any employment practice of
any employer, employment agency, or labor organization, or with respect to any labor-management
joint apprenticeship training program.” Id. §
6103(c)(1). The Act does not “amend or modify the
Age Discrimination in Employment Act of 1967 (29
U.S.C. 621–634), as amended, or [] affect the rights
or responsibilities of any person or party pursuant to
such Act.” Id. § 6103(c)(2). The Act authorizes a
private right of action for injunctive relief. Id. §
6104(e)(1).
When the Ninth Circuit denied the plaintiff’s
appeal of this court’s denial of a preliminary
injunction, it said that the Act does not apply to
employment practices of any employer:
The regulations promulgated under the
ADA state that the ADA does not apply
to “employment practice[s].” See 45
C.F.R. § 90.3(b)(2) (“The Age Discrimi-
App-49
nation Act of 1975 does not apply to ...
[a]ny employment practice of any
employer.”); 42 U.S.C. § 6103(c); see also
Mayo Found. for Med. Educ. & Rsch. v.
United States, 562 U.S. 44, 60 (2011);
Stretten v. Wadsworth Veterans Hosp.,
537 F.2d 361, 363, 366–67 (9th Cir.
1976). However, UCSF did not raise this
issue, and the district court did not address it. For these reasons and because
it is not necessary to decide this issue to
resolve the appeal, we do not reach it.
Spatz v. Regents of Univ. of Cal., No. 23-15064, 2023
WL 5453456, at *1 n.1 (9th Cir. Aug. 24, 2023)
(affirming denial of preliminary injunction because
the facts did not clearly favor the plaintiff’s position
of a discriminatory decision based on age or a retaliatory decision based on complaints, UCSF would
experience substantial hardship by an injunction,
relief could be accorded after resolution on the merits,
and the public interest favors high standards in medical training); see Tyrell v. City of Scranton, 134 F.
Supp. 2d 373, 383 (M.D. Pa. 2001) (Act was created
to protect persons from age discrimination in the
provision of services by government-funded programs,
not to combat age discrimination in their employment practices, which already is illegal under the
ADEA).
Medical residents are employees.86 Mayo Found.
for Med. Educ. & Rsch. v. U.S., 562 U.S. 44, 60 (2011)
86 Mot. – ECF No. 99-1 at 20–21; Opp’n – ECF No. 100 at 16–17
(analyzing only the standards for discrimination, not whether a
resident is an employee exempt from the Act).
App-50
(medical residents are subject to FICA taxes under
the full-time employee rule); Khoiny v. Dignity
Health, 76 Cal. App. 5th 390, 399 (2002) (medical
residents are employees and thus can assert FEHA
claims); Stretten, 537 F.2d at 363, 365–69 (due-process and property-rights challenge to termination of
residency, which the court characterized as employment); Regents of Univ. of Cal. v. Pub. Empl. Rel. Bd.,
41 Cal. 3d 601, 618 (1986) (confirming PERB ruling
that medical residents are employees); Bos. Med. Ctr.
Corp., 330 NLRB 152, 199 (1999) (NLRB held that
house staff, including medical residents, are employees). No cases address whether medical residents are
subject to the Act. The authority in this paragraph
suggests that the decision not to accept the plaintiff
for a neurosurgery residency was an employment
decision not covered by the Act. The court follows
that authority as persuasive.
At the hearing, the plaintiff pointed to the dual
purpose of a residency: education and employment.
He cited Mares v. Miami Valley Hosp., which
involved the termination of a resident following
complaints and escalating discipline for her
unprofessional behavior. --- F.4th ---, No. 23- 3475,
2024 WL 1209122, at *1 (6th Cir. 2024). The resident
sued for violations of her procedural and substantive
due-process rights, her equal-protection rights, and
Ohio contract law. The district court granted
summary judgment for the defendants. The Sixth
Circuit affirmed. Id. at *3. In analyzing the
procedural due-process argument, the Sixth Circuit
rejected the argument that the resident should be
treated as an employee and instead held that
“medical residency is more akin to an educational
App-51
program than full employment and that [the
resident’s] claim should be evaluated as such.” Id. at
*4 (collecting cases). Students receive only “minimal
due-process protections.” Id. (collecting cases and
holding that students were entitled only to notice of
unsatisfactory academic performance and a “careful
and deliberate” decision regarding their punishment);
cf. Stretten, 537 F.2d at 363, 366–69 (characterized a
medical residency as employment).
This case does not involve a due-process challenge
to a termination of a residency. It’s about an agebased challenge to the very different decision to reject the plaintiff’s application for a neurosurgery
residency, which is an employment practice excluded
under the Act. And even by analogy, Mares does not
cut the plaintiff’s way: even if one could shoehorn a
decision not to accept a medical student for a residency into a claim under the Act (and no case supports that conclusion), the Act — which allows only
injunctive relief — embodies other policy considerations that might eliminate any claim here: reasonable consideration of age or factors other than age,
42 U.S.C § 6103(c)(1), or a concern about services
(not employment practices), as discussed above. (The
parties did not discuss these issues. The court does
not reach them.)
Also, even if the statute allowed the claim, then
on the merits, the undisputed evidence (recounted in
the Statement) is that no one considered the
plaintiff’s age when considering the application for
the neurosurgery residency. Instead, his clinical
performances and resident evaluations were the
reasons he was not selected. The gist of the plaintiff’s
challenge to the comments by the decisionmakers —
App-52
and the Statement distinguishes between comments
by decisionmakers and comments by others who had
no connection to the selection process — is that they
were proxies for age: stamina, energy, work ethic,
and the like.87 There are almost no cases addressing
this issue (as discussed at oral argument). One case
is Martinez v. Novo Nordisk Inc., where the court
rejected the argument that qualities such as energy,
dynamic, and stamina displayed age-based animus.
992 F.3d 12, 17 (1st Cir. 2017) (described the
qualities for three positions covering a sales territory
previously covered by fourteen people).
As the court said at the hearing, sales positions
are qualitatively different than neurosurgery
residencies. But Martinez’s legal point applies here:
qualities that are accurate about, and relevant to,
the demands of a position are not age-based bias. Id.
The evidence is undisputed that the plaintiff did not
match into residencies based on the evaluations, not
his age. Thus, in the context of this case involving a
competitive process for a demanding position as a
neurosurgery resident, the plaintiff has not
established a genuine issue of material fact that
precludes summary judgment on any claim under
the Act. See also Marques v. Bank of Am., 59 F. Supp.
2d 1005, 1019 (N.D. Cal. 1999) (in addressing Title
VII and ADEA age-discrimination claims, identified
four relevant elements: “(1) whether the comment is
ambiguous as an indicator of discriminatory animus,
(2) whether the comment is uttered by a
decisionmaker (i.e., a person responsible for one of
the adverse employment decisions at issue), (3)
87 Opp’n – ECF No. 101 at 5–8, 11–12, 18.
App-53
whether the comment is related in time and subject
matter to the decisional process[,] and (4) whether
there are multiple comments or only a single
statement.”), aff’d, 5 F. App’x 763 (9th Cir. 2001).
The plaintiff also casts his retaliation claim as a
violation of the Act, citing 45 C.F.R. 91.45(a), which
precludes a recipient’s intimidating or retaliating
against anyone who attempts to assert a right
protected by the Act or its regulations.88 He asserts
that
After
Plaintiff’s
complaints
were
investigated by OPHD, Dr. Aghi
communicated directly to Plaintiff that
the internal investigations “made [his]
life hell.” Consequently, and subsequently, Dr. Aghi refused to advocate
for Plaintiff after the 2020 Match.
Because strong support from one’s home
institution is critical for any reapplicant and even more so in highly
competitive specialties, Dr. Aghi’s lack
of support effectively eliminated Dr.
Spatz’s chance of matching into Neurological Surgery after Match year 2020.
In addition to refusing to advocate for
Plaintiff, Dr. Aghi further retaliated by
withholding previously promised authorship credit from Plaintiff in Patent
applications, draft and submitted manuscripts, and announcements of funding
88 Id. at 18 (citing 45 C.F.R. § 91.45(a)).
App-54
all made by the Aghi Laboratory based
on work performed by Plaintiff.89
Even assuming the Act applies, no disputes of
fact preclude summary judgment. The plaintiff did
not counter the evidence in the Statement about
authorship (the plaintiff did not meet the criteria),
the inadvertent removal of his information from the
website, or inventorship (an outside determination
that did not involve consideration of the
complaints). 90 That leaves the allegations that Dr.
Aghi told the plaintiff — during the meeting on April
19, 2021, for a potential postdoctoral position in Dr.
Aghi’s laboratory — that the USCSF investigations
were frustrating, caused Dr. Aghi to hate his job, and
made his life hell, and Dr. Aghi’s statement that “I
am the Neurosurgery Department and did not
advocate for you.” 91 But those comments do not
suggest discrimination or retaliation against
someone asserting an age-discrimination claim
under the Act, which is what 45 C.F.R. 91.45(a)
forbids. Instead, they reflect frustration (and
perhaps reality). Also, Dr. Aghi was one voice in the
UCSF selection process (and the other selection
processes), submitted a letter of recommendation,
and declared that he “did not take Dr. Spatz’s
complaints related to discrimination or retaliation
89 Id.
90 The
University’s amending its policies in 2020 and 2021 to
address the Age Act does not affect the outcome, for the reasons
advanced by the defendant.
91 Spatz Decl. – ECF No. 100-2 at 6 (¶ 29).
App-55
into consideration when
residency position.”92
*
assessing
*
him
for
a
*
This analysis disposes of the arguments that the
plaintiff opposed. The other unopposed arguments
for summary judgment on the remaining claims thus
are conceded. See supra. But because the FEHA
discrimination and retaliation claims involve the
same facts, the court addresses them.
First, as to the FEHA claim for age
discrimination (claim two), the plaintiff has the
initial burden of establishing a prima facie case. To
state a prima facie case of age discrimination, the
plaintiff must show that he (1) is a member of a
protected class (here, that he was at least 40 years
old or was perceived to be at or over 40 by the
decisionmakers),93 (2) he was qualified for the job, (3)
he suffered an adverse employment action, and (4)
there are circumstances giving rise to an inference of
discrimination. Nesbit v. Pepsico, Inc., 994 F.2d 703,
704 (9th Cir. 1993); Guz v. Bechtel Nat’l, Inc., 24 Cal.
4th 317, 355 (2000).
Under FEHA, “age” means the “chronological age
of any individual who has reached a 40th birthday.”
Cal. Gov’t Code § 12926(b). FEHA covers actual
protected characteristics (like age) and also the
perception that a person has the protected
characteristic. Id. § 12926(o) (“Race, religious creed,
color, national origin, ancestry, physical disability,
92 Aghi Decl. – ECF No. 99-12 at 3 (¶ 7).
93 Mot. – ECF No. 99-1 at 22; Reply – ECF No. 102 at 10.
App-56
mental disability, medical condition, genetic
information, marital status, sex, age, sexual
orientation, or veteran or military status includes a
perception that the person has any of those
characteristics or that the person is associated with a
person who has, or is perceived to have, any of those
characteristics.”).
If the plaintiff states a prima facie case, then the
burden shifts to the defendant to articulate a
legitimate, nonretaliatory reason for its action. If it
does, then the plaintiff must show a triable issue
that the articulated reason is a pretext for
discrimination. Guz, 24 Cal. 4th at 355–356.
As set forth in the Statement, the one time that
the plaintiff arguably was perceived as 40, he
corrected the misapprehension. As set forth above,
no decisionmaker perceived him as 40 or decided not
to select him based on the apprehension that he was.
The defendant offered undisputed evidence that the
decisionmakers did not rank him to match based on
his performance, not his age. No evidence suggests
that this was pretext.
Second, as to FEHA retaliation (claim five), to
establish a prima facie case of retaliation under
FEHA, a plaintiff must show that (1) he engaged in a
protected activity, (2) the employer subjected him to
an adverse employment action, and (3) there was a
causal link between the protected activity and the
employer’s action. See, e.g., Passantino v. Johnson &
Johnson Consumer Prods., Inc., 212 F.3d 493, 506
(9th Cir. 2000); Morgan v. Regents of the Univ. of
Cal., 88 Cal. App. 4th 52, 69 (2000). If the plaintiff
establishes a prima facie case, then the burden of
production shifts to the employer to articulate a
App-57
legitimate, nonretaliatory reason for the action taken.
If it does, then the plaintiff must show “substantial”
evidence that the articulated reason is a “pretext” for
retaliation. Flait v. N. Am. Watch Corp., 3 Cal. App.
4th 467, 475–76, 479 (1992). Again, there are no
material issues of fact that the conduct here was
retaliatory or affected the Match process, the
defendant offered legitimate reasons for its actions,
and no evidence suggests pretext.
2. Other Claims
There are three other FEHA claims: disability
discrimination (claim three); harassment (claim four);
and failure to prevent discrimination and retaliation
(claim six).
First, as to disability discrimination, as set forth
in the Statement, the plaintiff never told the
neurosurgery department about his disability or the
accommodation. Dr. Aghi’s February 14, 2020,
comment about slowness was in the context of
concerns about stamina, not disability, and there is
no evidence to support the plaintiff’s allegation that
Dr. Aghi knew of the disability. Even if the comment
were about disability, it was a nonactionable stray
remark. Phelps v. GSA, No. C 07-01055 JSW, 2010
WL 1610070, at *6 n.3 & 7 n.4 (N.D. Cal. 2012), aff’d,
469 F. App’x 548 (9th Cir. 2012). (At oral argument,
the plaintiff said that this was his weakest claim.)
Second, at the time of the alleged harassment, Dr.
Spatz was a student. FEHA applies to employees.
Cal. Gov’t Code § 12940(j)(1); Khoiny, 76 Cal. App.
5th at 399.
App-58
Third, as to the alleged failure to prevent discrimination and retaliation, the claim is derivative of
the underlying claims and thus fails. Trujillo v. N.
Cnty. Transit Dist., 63 Cal. App. 4th 280, 289 (1998).
The final claim is a claim for a violation of
California Health & Safety Code § 1278.5, which
prohibits discrimination and retaliation for
complaints about unsafe patient practices. As set
forth in the Statement, no one in the selection
process knew about the complaints, which were in
any event anonymous.
CONCLUSION
The court grants the defendant’s motion for
summary judgment: the plaintiff has undisputed
academic ability, but the decision about the medical
residency was an employment practice not covered
by the federal Age Discrimination Act and in any
event, was based on his performance as a clinician.
Even if the Act applied, and even if there was no
waiver of the state claims, there are no disputes of
fact that preclude summary judgment.
This resolves ECF No. 99.
IT IS SO ORDERED.
Dated: April 11, 2024
/s/ Laurel Beeler
LAUREL BEELER
United States
Magistrate Judge
App-59
Appendix D
[Filed: Apr. 12, 2024]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Case No. 21-cv09605-LB
JORDAN SPATZ Ph. D., M.D.,
Plaintiff,
JUDGMENT
v.
REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Defendant.
On April 11, 2024, the court granted defendant’s
motion for summary judgment. Pursuant to Federal
Rule of Civil Procedure 58, the court hereby enters
judgment in favor of the Regents of the University of
California and against Jordan Spatz. The court
directs the Clerk of Court to close the file in this
matter.
IT IS SO ORDERED.
Dated: April 11, 2024
/s/ Laurel Beeler
LAUREL BEELER
United States
Magistrate Judge
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