[00:00:00] Speaker 04: So I'll let your co-counsel, your friend on the other side, get seated. [00:00:09] Speaker 04: Are you ready? [00:00:11] Speaker 04: Okay. [00:00:12] Speaker 04: All right. [00:00:12] Speaker 04: We're ready to hear your argument. [00:00:15] Speaker 00: Good morning, Your Honors. [00:00:16] Speaker 00: May it please the Court? [00:00:17] Speaker 00: My name is Dow Patten. [00:00:19] Speaker 00: I represent Dr. Jordan Spatz. [00:00:21] Speaker 04: Spatz? [00:00:22] Speaker 04: Okay. [00:00:22] Speaker 00: Thank you. [00:00:22] Speaker 00: Yes, Your Honor, in this matter. [00:00:24] Speaker 00: And with the Court's permission, I'd like to reserve five minutes for rebuttal. [00:00:30] Speaker 00: Your Honor, the district court below indeed did pay mere lip service to the long-standing standard for assessing summary judgment, to which the evidence must be in the record must be viewed in the light most favorable to the nonmoving party, in this case, Dr. Jordan Spatz. [00:00:52] Speaker 00: As this Court reviews the grant of summary judgment de novo, the record makes clear that the district court simply ignored [00:01:00] Speaker 00: Both direct and circumstantial evidence that create genuine issues of material fact that can only be resolved. [00:01:07] Speaker 04: But aren't you here just on an injunction? [00:01:10] Speaker 00: No, Your Honor. [00:01:11] Speaker 00: We are seeking injunctive relief, yes, Your Honor. [00:01:15] Speaker 04: Right. [00:01:16] Speaker 04: So that's the posture. [00:01:17] Speaker 04: So in order to get to the merits, we have to find pendant jurisdiction, correct? [00:01:24] Speaker 00: Your Honor, this is federal question jurisdiction. [00:01:27] Speaker 00: under forty two u.s. [00:01:28] Speaker 04: well but you're you're you're appealing an injunction uh... no your honor we want you want you want this court to admit him to the ucsf new neurosurgery residency program is that correct uh... your honor we've sought injunctive relief that is one element of injunctive relief however we've also identified other elements that [00:01:54] Speaker 00: of injunctive relief, including advocating for Dr. Spatz in his applications to other residency programs. [00:02:09] Speaker 04: Let me just ask you a question right now. [00:02:13] Speaker 04: He's in a residency program right now in surgery, correct? [00:02:17] Speaker 00: He is not presently in a residency program. [00:02:22] Speaker 04: He's not? [00:02:23] Speaker 04: I don't know. [00:02:24] Speaker 04: I know that's out of the record, but he's not? [00:02:26] Speaker 00: He is not. [00:02:27] Speaker 00: He is still looking for a residency program, Your Honor. [00:02:30] Speaker 04: Okay. [00:02:31] Speaker 04: All right. [00:02:31] Speaker 04: So it's not moot? [00:02:33] Speaker 00: It is not moot, Your Honor. [00:02:34] Speaker 00: He is continuing to cert, and this is particularly important with respect to the injunctive relief. [00:02:40] Speaker 00: Of course, we're going to seek seeking an injunctive relief to have him admitted as a resident in neurosurgery at the institution that engaged in discrimination against him. [00:02:52] Speaker 00: However, [00:02:53] Speaker 00: It's much more than that. [00:02:55] Speaker 00: Giving him credit for his intellectual property and work in patents, identifying him as a member of a particular lab, which they just erased from the internet with no explanation. [00:03:14] Speaker 00: There is no evidence that any other member of any lab has been [00:03:19] Speaker 00: erased from the Internet's description of who does what in these particular labs. [00:03:33] Speaker 04: Well, okay, so he has to bring this under the Age Act, correct? [00:03:37] Speaker 04: That is correct, Your Honor. [00:03:38] Speaker 04: Because he, at the time, he was not over 40. [00:03:40] Speaker 00: That is correct. [00:03:40] Speaker 04: So he can't bring it under the, what is it, the ADA? [00:03:46] Speaker 00: Yeah. [00:03:46] Speaker 00: The ADEA. [00:03:48] Speaker 04: ADEA, yeah. [00:03:49] Speaker 04: So we asked to bring it under. [00:03:51] Speaker 04: So if the Age Act does not apply, then we're done with everything here. [00:03:59] Speaker 04: Is that correct? [00:03:59] Speaker 04: You have to show that the Age Act applies. [00:04:02] Speaker 00: We do have to show that the Age Act applies, and it does, Your Honor, unequivocally, because the conduct that we're talking about here occurred to Dr. Spatz while he was a medical student. [00:04:15] Speaker 00: And these are actions taken by the School of Medicine against one of their own students. [00:04:21] Speaker 03: But you would agree that he wanted to be hired as a medical resident, which would have required him to work 80 hours at the hospital a week. [00:04:30] Speaker 03: He would be taxed as an employee, and he would receive salary and benefits from the hospital, correct? [00:04:36] Speaker 03: If he had been hired as a resident. [00:04:38] Speaker 00: Correct, Your Honor. [00:04:38] Speaker 00: And the Mayo decision does indicate that for FICA purposes, [00:04:43] Speaker 00: medical residents are treated as employees. [00:04:47] Speaker 03: However... So why shouldn't we follow the long line of cases that treat residents as employees? [00:04:56] Speaker 00: Your Honor, we would [00:04:58] Speaker 00: respectfully disagree that there's a long line of cases. [00:05:00] Speaker 00: Mayo decision is the decision that has actually come forward and treated them as employees for FICA purposes. [00:05:09] Speaker 03: Right, but the California Supreme Court said medical residents are employees for collective bargaining under state law. [00:05:15] Speaker 03: The NLRB has reached that same conclusion under federal law. [00:05:18] Speaker 03: The California Court of Appeals [00:05:23] Speaker 03: also found that a decision to dismiss a medical resident from a residency program was not entitled to academic deference because the predominant relationship between a medical resident and a hospital residency program is an employee-employer relationship. [00:05:40] Speaker 00: Indeed, Your Honor. [00:05:41] Speaker 03: That's a lot. [00:05:41] Speaker 03: The State Supreme Court, the U.S. [00:05:43] Speaker 03: Supreme Court, the National Labor Relations Board, the California Court of Appeal. [00:05:47] Speaker 03: Why shouldn't we follow those line of cases? [00:05:49] Speaker 00: The last the last cases your honor referenced in indeed said predominant the predominant nature is that of employment it is also graduate medical Education in addition to being Employment if employment may predominate But it is in a dip it is in addition to being graduate medical education now for the purposes of [00:06:17] Speaker 00: of the injunctive relief, Judge Callahan, that we were seeking injunctive relief that will permit my client to be treated the same as all other graduates of the medical program, which is to receive a correct treatment of his contributions to the science, his contributions [00:06:44] Speaker 00: to publications. [00:06:46] Speaker 00: These are the things that are essential for somebody to be able to have a fair shot at residency. [00:06:53] Speaker 00: In another program, and we believe that the statute is, and we believe it's very clear, that the statute prohibits discrimination while you're a medical student, regardless of whether it's residency. [00:07:07] Speaker 00: And he's still being discriminated against in that education because [00:07:13] Speaker 00: He's the only person who the university has refused to provide the ordinary letters of recommendation for his ongoing applications to residency in other programs that we see. [00:07:25] Speaker 03: Can I ask you, in your reply brief, you rely on legislative history to argue that the Age Act applies to medical schools. [00:07:32] Speaker 03: What were you citing? [00:07:34] Speaker 03: Because there's no citations on page three and four. [00:07:40] Speaker 03: A search of the legislative history didn't pull up these quotes. [00:07:44] Speaker 03: What's your source? [00:07:46] Speaker 00: Your honor the we had cited to on page 3 We had cited to the the sections Whatever is on these pages. [00:08:01] Speaker 03: It didn't show those quotes, so I apologize your honor. [00:08:06] Speaker 00: I'll try to provide those on reply I [00:08:10] Speaker 00: You're not going to get any further reply. [00:08:12] Speaker 03: I don't want any more briefing if that's what you're offering. [00:08:16] Speaker 03: Thank you, but no. [00:08:17] Speaker 00: No, I'm rebuttal you. [00:08:18] Speaker 03: OK, thank you. [00:08:19] Speaker 03: That'd be helpful. [00:08:20] Speaker 02: So if I understand your argument, you are parsing between things that occurred when he was a medical student and then his application for a residency program. [00:08:32] Speaker 02: So if we agreed with that and concluded that there was actionable discrimination from when he was a medical student [00:08:40] Speaker 02: How would the remedy be that we would assume some sort of equitable relief ordering the UCSF to admit him into the neurosurgery residency program? [00:08:57] Speaker 02: I mean, that seems like a wholly different entities, right? [00:09:01] Speaker 02: The university, there might be a claim against the university if your assessment of how we parse this is correct, but how does that lead to putting him in the residency program? [00:09:10] Speaker 00: So, Your Honor, the respondent here is the Regents of the University of California. [00:09:16] Speaker 00: Regents are the proper party for litigation. [00:09:21] Speaker 02: But you're arguing that he was discriminated against while seeking employment, or seeking a residency program. [00:09:28] Speaker 02: You want to say it's a hybrid. [00:09:29] Speaker 02: It's maybe educational and employment. [00:09:31] Speaker 02: But as Judge Coe noted, quite a bit of case law that suggests it's really an employment issue. [00:09:36] Speaker 02: So applying for employment seems to fall within employment. [00:09:42] Speaker 00: Certainly, Your Honors. [00:09:44] Speaker 00: However, what we've asked for, and we believe that a remand back to the trial court to have evidentiary hearings on what would be necessary to remedy the discrimination that we've alleged. [00:09:58] Speaker 02: OK, so what if we did that? [00:10:00] Speaker 02: And the court ordered the regents to reinstate his listing as an author on some research and whatever was on the website. [00:10:09] Speaker 02: Still not in the residency program, right? [00:10:12] Speaker 00: That's correct, but it would certainly help remedy some of the harm that has befallen him and continues to befall him because he's not getting credit for the patents that he brought intellectual property to to the School of Medicine. [00:10:27] Speaker 00: He's not getting listed as co-author on the publications that are essential to demonstrating his intellectual prowess and contribution to science. [00:10:38] Speaker 00: He's not getting letters of recommendation that every other student gets when they're applying for residency and other things. [00:10:47] Speaker 00: And perhaps, Your Honor, the most important potential injunctive remedy is that remedy which the regents themselves, which we identified in our opening brief, assured the Department of Health and Human Services it would do, which is change its policy to include [00:11:08] Speaker 00: age as a prohibited basis of discrimination in the university's policies. [00:11:14] Speaker 00: The Department of Health and Human Services Office of Civil Rights left open its complaint, its administrative complaint during the pendency of this litigation and only closed it after summary judgment based upon the assurances of the regents that they would change, that they would remedy the behavior. [00:11:36] Speaker 00: which was to change policy, to include age as a protected class, prohibiting discrimination based upon age and education. [00:11:47] Speaker 00: They have not done so. [00:11:50] Speaker 00: And this court must remand this matter back to the trial court to determine what is the appropriate injunctive relief here to remedy this discrimination. [00:12:00] Speaker 00: It may not be, put him in a residency program. [00:12:04] Speaker 00: It may not be that. [00:12:06] Speaker 00: be holding them to their word, making them change their policy, having them, Dr. Spatz, being treated like every other medical school student and have them not continue to retaliate against him for having brought this matter forward. [00:12:27] Speaker 00: I see mine. [00:12:28] Speaker 03: Would you like to reserve the balance? [00:12:30] Speaker 03: Can I ask one more question? [00:12:31] Speaker 03: Sorry. [00:12:31] Speaker 03: So under the Age Discrimination and Employment Act, a disparate treatment plaintiff has to show that age was the but for cause of the adverse employment action. [00:12:42] Speaker 03: Do you agree that that's the test here as well? [00:12:44] Speaker 00: The deliberate indifference standard, we believe, applies from Title VI. [00:12:50] Speaker 00: We believe that by demonstrating deliberate indifference, that [00:12:55] Speaker 03: What, deliberate indifference to age? [00:12:57] Speaker 03: I'm a little unclear. [00:12:58] Speaker 00: Yeah, deliberate indifference to age discrimination. [00:13:04] Speaker 03: What's the authority? [00:13:05] Speaker 03: I mean, you know, the ADEA and the Age Act are very similar. [00:13:23] Speaker 03: What's your best support, that it has a different test than the Age Discrimination and Employment Act? [00:13:31] Speaker 00: Your Honor, I believe the district court below and both sides assumed it was the case that the deliberate and different standard applied. [00:13:40] Speaker 00: We addressed that, Your Honor. [00:13:43] Speaker 04: I think she's asking you if it's the but-for test. [00:13:50] Speaker 04: But for causation? [00:13:58] Speaker 00: Yes. [00:13:58] Speaker 00: I believe so, Your Honor, and I believe that there is the direct evidence that we cited in the record, which was... But do you believe that the but for causation is the correct test for the Age Act? [00:14:12] Speaker 00: We believe that the deliberate indifference standard is what applies, and that [00:14:19] Speaker 00: The causation element is but for causation. [00:14:23] Speaker 03: Okay, you do think it's but for causation? [00:14:25] Speaker 03: Yes. [00:14:25] Speaker 03: Okay, thank you. [00:14:25] Speaker 03: Thank you for that clarification. [00:14:27] Speaker 04: Okay, so I'll give you, we asked you a few questions, so I'll give you two minutes for a rebuttal. [00:14:31] Speaker 04: Thank you, Your Honor. [00:14:32] Speaker 04: Thank you. [00:14:33] Speaker 04: All right, we'll hear from UCFF, the regents. [00:14:43] Speaker 01: May it please the court, Don Willenberg of Gordon Reese for, I believe, the regents of the University of California. [00:14:49] Speaker 01: This court should affirm for two reasons. [00:14:52] Speaker 01: First, because the sole claim on appeal is under a statute that does not apply to, quote, any employment practice, unquote. [00:15:02] Speaker 01: Hiring someone to work as a medical resident is an employment practice. [00:15:08] Speaker 01: Second, [00:15:08] Speaker 01: even if the statute applies. [00:15:11] Speaker 03: You don't cite any evidence in the record. [00:15:13] Speaker 03: You just cite a bunch of cases. [00:15:14] Speaker 03: It's a factual question. [00:15:16] Speaker 03: So what evidence do you have in the record that this is an employee? [00:15:20] Speaker 01: Well, there is plenty of evidence that they were working 80-hour weeks, that they'd be doing rounds like a doctor does. [00:15:29] Speaker 01: We do not have evidence in the record for some of the other things that every case that's looked at it decided that residents are [00:15:38] Speaker 01: employees has said, for example, are they subject to FICA? [00:15:43] Speaker 01: Are they subject to other things? [00:15:44] Speaker 01: Council seems to have conceded that at argument just today, and that's been, I would say, not contested either below or in the briefing here. [00:15:56] Speaker 03: So you think it's that they work 80 hours a week and they do rounds like a doctor. [00:16:00] Speaker 03: Is that it? [00:16:01] Speaker 03: What specifically do you have in the record to support that these are employees? [00:16:06] Speaker 01: That's what we have. [00:16:08] Speaker 04: So there doesn't seem to be any dispute that the members of the residency selection panel discussed and made negative comments about Dr. Spatz's age. [00:16:24] Speaker 04: So why shouldn't this case go to a jury to decide whether Dr. Spatz was not accepted into the UCFF's [00:16:32] Speaker 04: program as a result of age discrimination. [00:16:35] Speaker 04: If we assume that the age act applies to residency selection, then would you concede this would have to go to a jury? [00:16:46] Speaker 01: No, not at all, Your Honor, and here's why. [00:16:50] Speaker 04: You need a little training on some of the comments that are made. [00:16:53] Speaker 01: That may be, Your Honor, but let's look at who made the comments [00:16:58] Speaker 01: and what they did. [00:16:59] Speaker 01: We have a particular section in our brief on page 31 that goes through five or six of the things that council talks about, but I would like to focus on two here. [00:17:11] Speaker 01: One is there's a lot of concern or there was concern expressed that one of the members of the committee had noted on the interview form that he was 36 years old. [00:17:25] Speaker 04: That was, but there was some instructor that said he's older than not. [00:17:28] Speaker 04: He didn't say it was older than Methuselah, but I would love to be 36. [00:17:33] Speaker 01: He was that, that doctor, Dr. Callahan was not a member of the selection committee, did not vote on, on the matches in 2020 and 2021. [00:17:44] Speaker 01: The 36 year old. [00:17:47] Speaker 01: And again, this is something that, that, uh, they're saying. [00:17:52] Speaker 01: shows by us, said okay to rank both years, 2020 and 2021. [00:17:57] Speaker 04: Well, Dr. Spatz declared that UCSF had ranked him, quote unquote. [00:18:07] Speaker 04: If they had ranked him, he would have matched with UCSF. [00:18:12] Speaker 04: Do you dispute that? [00:18:14] Speaker 04: And if so, what is your evidence? [00:18:19] Speaker 01: I dispute that. [00:18:20] Speaker 01: No, I don't dispute that. [00:18:21] Speaker 01: Had the members of the selection committee all voted differently than they did, that perhaps he would have matched because he had put UCSF so high. [00:18:31] Speaker 01: But let's go back. [00:18:32] Speaker 04: Is there any... But some people ranked him, right? [00:18:35] Speaker 01: Some people did. [00:18:35] Speaker 04: There were some that ranked him top three. [00:18:37] Speaker 01: Some people did. [00:18:37] Speaker 04: There were some that said he could go ahead, and then there were some that basically seemed to say that he kind of was a little bit lazy or didn't want to work really hard or something. [00:18:49] Speaker 01: Excellent understatement, your honor. [00:18:51] Speaker 01: I'd also point out that even, for example, Dr. Aghi, who was his mentor, who did vote to rank him, is the same person who he's complaining about, well, he took me off his website and he didn't give me credit for authorship, neither of which [00:19:15] Speaker 01: For neither of which is there any evidence in the record that that was based on his age. [00:19:20] Speaker 01: That has to do with other considerations altogether and doesn't form the part, the basis of an age discrimination claim even if he otherwise had one under the law. [00:19:32] Speaker 01: Another doctor that they complain about, well there's a statement about stamina and [00:19:42] Speaker 01: I was asked if I could work 80-hour weeks, and that shows age discrimination. [00:19:46] Speaker 01: Well, that was Dr. Momenanyi, and he voted OK to rank both times. [00:19:52] Speaker 03: So those who's- Why isn't it for a fact question for a jury, since this was a motion for summary judgment, to decide whether stamina, burnout, all these are not code words for age? [00:20:04] Speaker 01: Well, there's plenty of cases, and we've cited some, that say that those are not necessarily about age, and they are directly relevant [00:20:11] Speaker 01: to the job description and the requirements of the job. [00:20:18] Speaker 03: Can I ask you, going back to the first question, so you're saying there's no evidence in the record that medical residents are taxed as employees or that they receive salary and benefits from the hospital other than counsel's concession here at Oral Argument? [00:20:33] Speaker 03: There's nothing else that we can cite to in the record for those two points? [00:20:36] Speaker 01: I believe that that's true. [00:20:39] Speaker 03: So then what is the test for deciding whether a resident is an employee, just whether they work 80 hours a week and they do rounds like a doctor? [00:20:45] Speaker 01: Is that it? [00:20:46] Speaker 01: Are they more like employees or are they predominantly more like students? [00:20:52] Speaker 01: This is not an undergraduate student getting a job at the cafeteria to make ends meet. [00:20:58] Speaker 01: This is something very different. [00:21:00] Speaker 01: I agree. [00:21:02] Speaker 03: But isn't this a factual question, whether these residents are employees? [00:21:08] Speaker 03: Then what are we to do if there's no evidence in the record that they're taxed as employees and they receive salary and benefits from the hospital? [00:21:14] Speaker 03: Because that's what those cases I cited, they rely on that, right? [00:21:17] Speaker 03: That they're getting taxable income. [00:21:18] Speaker 01: That's right. [00:21:19] Speaker 01: They rely on that, and we rely in large part on the fact that those cases say that. [00:21:24] Speaker 03: Right, but then you have no evidence in the record that your residents are getting salary and taxed as an employee. [00:21:31] Speaker 03: That's the problem. [00:21:32] Speaker 03: You're saying, well, rely on these cases, but my factual record doesn't have those facts. [00:21:36] Speaker 01: Doesn't have all of that. [00:21:37] Speaker 01: That's right. [00:21:38] Speaker 01: It talks about the job, and again, even [00:21:42] Speaker 01: Council has not contested that fact this would be a diff it is possible. [00:21:48] Speaker 01: I suppose that these residencies are different Than the residencies described in every one of the cases So you're saying we can't even assume that their tax as employees or that they receive salary or benefits from the hospital I? [00:22:04] Speaker 01: I'm not saying we can't assume that. [00:22:06] Speaker 01: I'm saying that we can reach that conclusion based on others. [00:22:09] Speaker 01: What does the record say? [00:22:10] Speaker 01: We do not have a declaration that says this is what residents get. [00:22:15] Speaker 01: That is not in this record. [00:22:17] Speaker 02: You just conceded that we couldn't conclude basically as a matter of law that this is what happens in a residency program. [00:22:24] Speaker 02: You're paid, you work, you take care of patients. [00:22:27] Speaker 02: You're trained, but you're basically an employee working 80 hours a week. [00:22:31] Speaker 02: But we can't reach that conclusion just as a matter of law. [00:22:34] Speaker 02: We have to have some facts for it. [00:22:35] Speaker 02: You agreeing with that? [00:22:37] Speaker 01: If you can't reach that conclusion based on this, I say you still affirm. [00:22:43] Speaker 01: And you still affirm because none of the comments about age [00:22:49] Speaker 01: had anything to do with votes on whether or not to rank him. [00:22:55] Speaker 02: So you're saying we could skip past the first argument that the ADA doesn't apply because this is an employment decision. [00:23:05] Speaker 02: We assume it does apply, but then we just say on the facts it fails. [00:23:09] Speaker 01: Either way. [00:23:10] Speaker 01: Either way, Your Honor. [00:23:11] Speaker 01: Yes. [00:23:11] Speaker 01: That's what I said at the beginning. [00:23:13] Speaker 01: There's two ways to get here. [00:23:16] Speaker 04: And your second one's a lot weaker. [00:23:22] Speaker 01: I guess I disagree. [00:23:22] Speaker 03: It's motion for summary judgment. [00:23:23] Speaker 03: Yes. [00:23:24] Speaker 03: We've got to draw the inferences in favor of the non-moving party. [00:23:27] Speaker 03: There are a lot of comments here, like Judge Kellahan said. [00:23:30] Speaker 03: A jury could come out the other way. [00:23:34] Speaker 01: I actually think that if a jury came out the other way, it would be subject to a post-trial motion because the specific comments made are not either in connection with his match or somehow [00:23:49] Speaker 03: There were comments about his interview for a residency match that were certainly age related. [00:23:59] Speaker 01: I guess I'm not sure to what you're referring to there. [00:24:02] Speaker 04: On the interview, most of the interviews said... Why don't they say he was kind of slow or he had some auditory processing or something like that. [00:24:12] Speaker 01: And how is any of that discrimination against him based on age? [00:24:16] Speaker 01: How can there be a sense of that? [00:24:21] Speaker 03: Dr. Gupta, 36-year-old is an area of concern. [00:24:25] Speaker 01: And Dr. Gupta voted to match him both times. [00:24:30] Speaker 01: Both times. [00:24:31] Speaker 02: But doesn't that, if we view that in the light most favorable to the plaintiff, doesn't that suggest that this was something that was discussed in the process and they were considering his age? [00:24:45] Speaker 01: Not beyond what it says. [00:24:47] Speaker 03: And again, if that Dr. Bervin told Mr. Spatz concerns about you burning out a residency came up during the rank selection meeting and that plaintiff was described as an older applicant. [00:25:00] Speaker 02: Somebody made a comment that he could go straight from his residency to a nursing home. [00:25:05] Speaker 02: Who was that? [00:25:05] Speaker 02: And when did that happen? [00:25:06] Speaker 01: That happened after the match selection process. [00:25:10] Speaker 02: But was that from a person who was involved in the process? [00:25:13] Speaker 01: I'll answer that in just a second. [00:25:16] Speaker 01: I think it was not. [00:25:18] Speaker 01: I think it was by someone who was... Yeah, there's no evidence that Dr. Dahl was involved in the match and he's the one who said that. [00:25:26] Speaker 04: Who said that you're only going to be able to work 25 years? [00:25:33] Speaker 01: I'm also not sure. [00:25:34] Speaker 04: I realize that Dr. Spatz got a PhD from MIT. [00:25:42] Speaker 04: So it wasn't like he was just surfing around the United States or the world while he was getting older. [00:25:52] Speaker 04: But that being said, who was it that seemed to say, you're only going to be able to give 25 years to the profession? [00:26:00] Speaker 01: I don't recall and I don't recall if that was a person who was a match or was one of his other mentors like Dr. Starr who supported him up until Dr. Starr read about the performance reviews on the sub internships which every witness said was the most important thing in determining whether or not to grant him a match and which [00:26:22] Speaker 01: Almost every witness said his performance was suboptimal and terrible. [00:26:28] Speaker 04: That's why you might win in front of a jury if it gets to that point, but that isn't why you necessarily win at summary judgment. [00:26:38] Speaker 04: I think if the Age Act doesn't apply, in my view, it gets harder to win at summary judgment. [00:26:49] Speaker 04: If the age act applies, if he can't, if it doesn't, if he can't get around that, then the rest of it doesn't, it falls away. [00:26:59] Speaker 01: Well, that's right. [00:27:00] Speaker 01: That's right. [00:27:02] Speaker 01: You know, doc, doctors batch didn't match into this program. [00:27:07] Speaker 01: 297 out of 300 applicants every year do not match into this program. [00:27:15] Speaker 01: There's no evidence that he was selected out and didn't make it because he was of his age. [00:27:22] Speaker 01: Council suggested many times, we just want him to be the only person treated this way by the university. [00:27:27] Speaker 01: Well, no. [00:27:29] Speaker 01: There's 297 people every year who try to get into this residency and don't get into it. [00:27:35] Speaker 04: I hope they don't say on all 297. [00:27:38] Speaker 04: of the other people that either you're not getting it because you're a woman, or you're not getting it because you're old, or you're not getting it for this. [00:27:47] Speaker 04: I mean, that's what he has in his. [00:27:49] Speaker 04: If he gets to that point, the question is, does he get past the first point? [00:27:56] Speaker 01: It doesn't have evidence that that's what made the decision here. [00:28:03] Speaker 02: How much discovery was completed before summary judgment in the district court? [00:28:10] Speaker 01: I'm not sure of the answer to that question, Your Honor. [00:28:12] Speaker 01: I know that Dr. Spatz was deposed over two or three other depositions. [00:28:21] Speaker 01: It was not a terrible amount. [00:28:28] Speaker 01: Dr. Spatz not only didn't make it into UCSF's residency program, he didn't match for any other neurosurgery program anywhere else in the country. [00:28:40] Speaker 01: His reach exceeded his grasp. [00:28:43] Speaker 01: He aimed too high, and he didn't get there. [00:28:47] Speaker 01: That's disappointing, but it's not actionable. [00:28:49] Speaker 01: And there's nothing in this record to show that these people made the decision to not match him because of his age. [00:28:59] Speaker 02: Well, your friend on the other side says that things that happened while he was a medical student, removing him from the website, taking his name off articles, those things damaged his applications in the match program. [00:29:11] Speaker 02: So he's parsing out between things that occurred to him as a medical student and things that occurred in the match process. [00:29:19] Speaker 02: How do you respond to that? [00:29:22] Speaker 01: First, there's no evidence that those other things, the authorship, [00:29:27] Speaker 01: or the inadvertent and temporary removal of him from a website, were motivated by age. [00:29:34] Speaker 01: He just includes those on the laundry list of complaints and says, see, there must be something wrong here. [00:29:40] Speaker 01: Well, those don't have anything to do with the match. [00:29:42] Speaker 01: What is here for now is complaining about that he was denied the opportunity to match because of his age. [00:29:52] Speaker 01: The facts don't show that. [00:29:54] Speaker 01: It's under a statute that doesn't apply. [00:29:59] Speaker 01: So this court should affirm. [00:30:01] Speaker 04: All right. [00:30:04] Speaker 04: Does anyone have further questions? [00:30:05] Speaker 04: All right. [00:30:06] Speaker 04: Your time's expired. [00:30:07] Speaker 04: Thank you for your argument. [00:30:15] Speaker 00: A couple of points, Your Honors. [00:30:17] Speaker 00: First, Dr. Campbell's comment that Jordan is as old as Pejorative [00:30:24] Speaker 00: Dr. Campbell was a decision maker on the supplemental or soap SOAP process if you don't match during the first time around. [00:30:36] Speaker 00: Dr. Spatz also applied for general surgery as to which Dr. Campbell was indeed [00:30:44] Speaker 00: A decision-maker? [00:30:45] Speaker 03: Sorry, we're a little bit short on time. [00:30:46] Speaker 03: Let me just ask, in your briefing, you seem to concede that the residents receive a salary and benefits from the hospital, and that they certainly are working 80 hours a week. [00:30:56] Speaker 03: You concede that in your briefs, correct? [00:30:58] Speaker 00: I do. [00:30:59] Speaker 03: We do, and Your Honor, the... And there seem to be at least two record sites, ER-177 and ER-739, that support that medical residents are paid a salary provided with benefits by UCSF and are taxed as employees, correct? [00:31:14] Speaker 00: That is correct, Your Honor. [00:31:15] Speaker 00: Okay. [00:31:16] Speaker 00: And we would also note that much of the evidence in the record is that sub internships, when you're an intern in a medical school, you're doing much of the same thing that the residents are. [00:31:30] Speaker 00: You are working many hours and indeed that was one of the complaints about Dr. Spatz as they alleged that he wasn't available enough hours. [00:31:42] Speaker 00: You are performing rounds with residents. [00:31:44] Speaker 00: You're taking medical histories just like a resident would. [00:31:51] Speaker 00: So there is an educational component. [00:31:55] Speaker 00: It's not an either or thing. [00:31:57] Speaker 00: There's an educational component to residency. [00:32:00] Speaker 00: Otherwise, why would there be residency? [00:32:02] Speaker 00: Why don't they just go out to a hospital and work for three years? [00:32:06] Speaker 00: They don't. [00:32:07] Speaker 00: It has to be supervised by a medical school. [00:32:11] Speaker 00: It's in a medical school. [00:32:13] Speaker 00: It's not just in a hospital. [00:32:14] Speaker 00: It's a medical school. [00:32:15] Speaker 00: I see my time has expired. [00:32:17] Speaker 00: If there's no further questions. [00:32:19] Speaker 04: They don't appear to be. [00:32:20] Speaker 04: Thank you both for your argument. [00:32:21] Speaker 04: This matter will stand submitted.