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December 2011

Employment Team Obtains Appellate Victory

Gordon & Rees Partners Mike Bruno and George Acero prevailed on an appeal in Ostovar v. Regents.  In Ostovar, the plaintiff was a medical resident in an internal medicine program with the University of California.  At his hire, the program was concerned the plaintiff was a "flight risk" and made him promise he would commit to the program for all three years, which the plaintiff did.  Just a couple of months later, another resident found an application from the plaintiff to a radiology program which the plaintiff had accidentally left on a fax machine.  The program spoke to the plaintiff about this matter and he told the program he was confused about his career goals.  The program gave the resident two weeks to renew his promise to commit to the program for three years.  At the end of the two week period, the resident still claimed he was too confused to make any decision.  Then, the program told the plaintiff it would start looking for his replacement, but if he recommitted in the meantime, it would consider taking him back.  A month or so later, the program, again, spoke with the plaintiff about this matter and he, again, claimed he was undecided.  The program then made a decision not to renew his contract for the following year.

The resident sued for national origin discrimination, religious discrimination, and sought a writ of mandate declaring the failure to renew his contract was arbitrary and capricious.  Gordon & Rees dismissed the discrimination claims via summary judgment (that ruling was not appealed).  However, the plaintiff prevailed in the writ proceeding because the trial court noted that the program had a resignation deadline and concluded the program could not force the resident to make any level of commitment until the resignation deadline passed.

Gordon & Rees appealed the ruling on the writ of mandate.  The Court of Appeal disagreed with the trial court and reversed the granting of the writ of mandate: 

"The Regents further argue that rule 22c, which requires residents to notify the program director prior to March 15 of their intention to leave, does not create a guarantee that residents have until March 15 to contemplate transferring to other programs. Again, this interpretation of rule 22c is not unreasonable or clearly erroneous. Nothing in rule 22c indicates that, after learning Dr. Ostovar had applied to other residency programs, the University was prohibited from asking Dr. Ostovar to decide, prior to March 15, 2007, whether he was going to recommit to the internal medicine residency or continue to pursue a different program."

In ruling on writs of mandate, courts are typically required to provide deference to the administrative decisions, especially when academic decisions are involved.  The trial court did not give adequate deference to the program's decision.  Fortunately, the appeal mechanism exists to correct these types of errors.

Michael D. Bruno



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