Dixon v. Regents of the University of Cal., B161390.
| Decision Date | 23 October 2003 |
| Docket Number | No. B161390.,B161390. |
| Court | California Court of Appeals Court of Appeals |
| Parties | David M. DIXON, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants and Respondents. |
Melanie E. Lomax & Associates and Melanie E. Lomax, Los Angeles, for Appellant.
Lewis Brisbois Bisgaard & Smith, Alan R. Zuckerman, Los Angeles, and Keri Lynn Bush, Costa Mesa, for Respondents.
Appellant, David M. Dixon, M.D., brought this action against the Regents of the University of California (the Regents) for wrongful termination under the Fair Employment and Housing Act (FEHA)1 based upon employment discrimination and harassment. Dixon had been employed in the UCLA School of Medicine Residency Training Program, a three-year program with reappointments made each year. At the end of Dixon's first year, he was informed he would not be rehired for a second year because of allegedly poor performance. Dixon, feeling he was the victim of racial discrimination, initially obtained a right to sue letter from the Department of Fair Employment and Housing (DFEH) and then elected to pursue the internal administrative hearing process provided by UCLA. After more than two years of hearings, Dixon notified UCLA he was abandoning the administrative hearing process, because there did not appear to be any end in sight, and would instead file his lawsuit in a court of law. The trial court granted the Regents' motion for summary judgment based on Dixon's failure to exhaust the internal remedies available to him. We reverse and remand the case for trial.
On June 24, 1993, Dixon began his employment at the UCLA School of Medicine's Department of Family Medicine Training Program. Even though the program was for three years, the appointments were for a year at a time. After less than a year, Dixon was informed he had not satisfactorily completed his first year of residency and would not be offered an opportunity to continue for a second year.
Dixon thereafter appealed the decision within the Department of Medicine claiming he was a victim of racial discrimination. After an adhoc committee recommended the decision be upheld, appellant's counsel, Melanie Lomax, on August 15, 1994, wrote to Dr. Fogelman, Chairman of UCLA's Department of Medicine, requesting a review and threatening legal action if Dixon was not reinstated to the residency program. Counsel further indicated Dixon had filed a complaint with FEHA and had requested an immediate right to sue letter. On August 26, 1994, an attorney from the Office of General Counsel for the Regents wrote to Dixon and informed him he had a right to have his complaint reviewed pursuant to the UCLA Campus Appeal Procedure 140, a copy of which was enclosed.
On September 20, 1994, Dixon's counsel forwarded to Chancellor Charles E. Young, Dixon's request for an investigation of Dixon's termination in addition to alleged disparate and discriminatory treatment. On December 8, 1994, Patricia Jasper (Jasper), Campus Counsel for UCLA, wrote a letter to Dixon asking for a copy of correspondence which UCLA did not have and further stated, "In this regard I would urge forbearance in the filing of any action since [Dixon] has not yet exhausted his administrative remedies, and any such lawsuit would be subject to dismissal."
On December 20, 1994, Jasper, responding for Chancellor Young, replied to Dixon's August 152 letter to Chancellor Young which requested a hearing, and enclosed the university's response. On January 18, 1995, Dixon's counsel wrote to Chancellor Young and requested a hearing before a Hearing Committee composed of three officers pursuant to Procedure 140. Under Procedure 140 Dixon had been given the option of choosing between having the Chancellor appoint a single hearing officer, having the Chancellor appoint a hearing committee composed of three officers, or choosing an outside hearing officer.
The hearing was scheduled to start on July 28, 1995, but was cancelled because Dixon's counsel was in trial. Thereafter, over the next two years there were 11 days3 of hearings, although 26 days had been scheduled. Of the cancellations, Dixon's counsel had cancelled five times because of her trial conflicts, once because she had suffered a broken leg and once because counsel was ill. The University had cancelled hearings on four occasions and the committee had cancelled the hearing twice. Additionally there had been one cancellation due to a family emergency of a doctor and one cancellation was for unknown reasons. Of the 11 days of hearings, Dixon had presented evidence on 10 of those days and the university on one day.
On June 5, 1997, Dixon's counsel wrote to the hearing coordinator complaining the hearing was taking too long because of three problems: (1) the difficulties of coordinating the schedules of seven people, (2) the extraordinary difficulty in scheduling given the availability of witnesses, and (3) the short hearing days of only three hours per day. She then provided the hearing officers with 10 days during the month of July when her schedule was clear. UCLA responded by citing the numerous delays attributable to Dixon's counsel and pointed out two significant facts: (1) the three-hour hearing days could only be lengthened by hearing officers and (2) the hearing officers had indicated they would not be available during the summer months of 1997. Finally, the university also indicated that since Dixon had chosen to have a university hearing committee instead of an inside or outside hearing officer, all delays should be attributable to Dixon.
On June 27, 1997, a hearing was held and the matter was apparently continued until October 10, 1997. On October 6, 1997, Dixon's counsel wrote the hearing office coordinator that the hearing process had gone on for more than two years without any end in sight, and because the hearing officer was refusing to schedule hearings any closer than months apart, the administrative appeal had become an exercise in futility. Therefore, Dixon had elected to file a complaint in a court of law and was not going to participate in any further hearings.
Dixon then filed his complaint in the superior court alleging various torts including employment discrimination, harassment and termination because of race in violation of FEHA as well as intentional infliction of emotional distress, breach of the implied covenant of fair dealing and intentional interference with prospective contract and employment.
The trial court granted the Regents' initial motion for summary judgment. On appeal, in an unpublished opinion, we reversed the grant of summary judgment. (Dixon v. Regents of the University of California (June 6, 2001, B183800 [nonpub. opn.])) We found Dixon had presented sufficient evidence to establish a prime facie case of discrimination under FEHA and held the trial court had improperly weighed the evidence in granting the motion. We further found Dixon had presented the following issues of material fact: (1) Dixon satisfied the requirements for admission into the program; (2) Dixon was only the third African-American physician admitted into the program, and the last African-American resident was admitted over a decade before Dixon's admission; (3) No one connected with the program knew Dixon was African-American until he first appeared on campus for orientation; (4) Dixon's performance reviews were not uniformly poor, as some of the physicians who evaluated Dixon found his performance "good" or "satisfactory" and some of them recommended him for further training at UCLA; (5) Some of the physicians who rated Dixon's performance as "poor" had no basis to evaluate him because they did not see him perform the tasks for which he was being evaluated; (6) At least some of the negative feedback about Dixon was solicited by the program; (7) Despite the fact that the House Staff Manual states interns should be "notified within a reasonable time" if an evaluation for a given rotation indicates an unsatisfactory performance, Dixon did not receive any counseling about his performance, or even any notification of the unsatisfactory ratings placed in his file, until the meeting at which he was placed on probation; (8) A non-African-American intern who was having problems was assigned a mentor/role model to assist him in improving his performance, while at the same time Dixon was given no mentor/role model, was placed on probation, and was ultimately dismissed from the program; and (9) After Dixon was discharged from the residency program, the resulting vacant spot was filled by a White woman. We reversed the judgment and the matter was remanded for further proceedings not inconsistent with the opinion.
On remand the Regents once again moved for summary judgment asserting Dixon's claim was barred by his abandonment of the administrative remedy process and his failure to obtain a writ of mandate overturning the Chancellor's decision. (See Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 99 Cal.Rptr.2d 316, 5 P.3d 874.) Dixon opposed the motion contending (1) the trial court was without jurisdiction to hear the motion because this court had remanded the case for trial, (2) Johnson was not new law and therefore the new motion for summary judgment was really a motion for reconsideration and (3) the futility doctrine applies in this case and Dixon was entitled to proceed directly to court without having to proceed through the writ of mandate procedure.
The trial court again granted the Regent's motion for summary judgment holding essentially that once Dixon started the internal review procedure, he was required to...
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