25 Pleading - Answer to FSC_070430

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					Case 1:07-cv-00026-OWW-TAG

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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasser@markwasser.com Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: mnations@co.kern.ca.us Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O. Plaintiff, vs. COUNTY OF KERN, et al., Defendants.

) Case No.: 1:07-cv-26 ) ) ANSWER TO FIRST AMENDED ) COMPLAINT ) ) ) ) ) )

Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy answer the First Amended Complaint, together with the allegations in the First Supplemental Complaint, as follow, 1. 2. 3. Defendants deny the allegations contained in paragraphs 1, 2 and 3. Defendants admit the allegations contained in paragraph 4. Defendants deny the allegations contained in paragraph 5.
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4. 5.

Defendants admit the allegations contained in paragraphs 6 and 7. In response to the allegations contained in paragraph 8, Defendants admit that

Peter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California during most of the time alleged in the Complaint. Defendants deny the remaining allegations contained in paragraph 8. 6. 7. 8. Defendants admit the allegations contained in paragraphs 9, 10, 11, 12, 13 and 14. Defendants deny all the allegations contained in paragraph 15. In response to the allegations contained in paragraph 16, Defendants admit that

Plaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining averments in paragraph 16. 9. In response to the allegations contained in paragraph 17, Defendants admit that

Plaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of Chair of the Pathology Department. Defendants deny all remaining allegations contained in paragraph 17. 10. In response to the allegations contained in paragraph 18, Defendants admit that

Plaintiff complained about departmental procedures and policies at Kern Medical Center and interfered with patient care provided by Kern Medical Center and its physicians. Defendants deny all remaining allegations contained in paragraph 18. 11. 12. Defendants deny all the allegations contained in paragraphs 19 and 20. In response to the allegations contained in paragraph 21, Defendants admit that

Plaintiff requested and received multiple leaves of absence and that the terms and conditions of the leaves Plaintiff received are memorialized in writings that speak for themselves. Defendants deny all remaining allegations contained in paragraph 21. 13. In response to the allegations contained in paragraphs 22, 23 and 24, Defendants

admit that Plaintiff requested and received multiple leaves of absence for multiple reasons and was removed from his position as Chair of the Pathology Department because he was neither working full-time nor present in the hospital. Defendants also admit that Plaintiff has complained about the policies and procedures at Kern Medical Center. Defendants are without
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knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in those paragraphs. 14. In response to the allegations contained in paragraph 25, Defendants admit that

Plaintiff has been provided with the information he requested from the computer that was previously assigned to him. Defendants deny all remaining allegations contained in paragraph 25. 15. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 26. 16. In answer to the allegations contained in paragraph 27, Defendants admit that

Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in paragraph 27. 17. In answer to the allegations contained in paragraphs 28 and 29, Defendants admit

that Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position of Chair of the Pathology Department and that he was compensated and provided with certain benefits pursuant to a written employment agreement, the terms of which speaks for themselves. Defendants deny all remaining allegations contained in paragraphs 28 and 29. 18. In response to the allegations contained in paragraph 30, Defendants admit that

Plaintiff was expected to be an effective member of the physicians’ staff at Kern Medical Center and to contribute to the overall improvement of the hospital. Defendants deny all remaining allegations contained in paragraph 30. 19. In response to the allegations contained in paragraphs 31, 32 and 33, Defendants

admit that the alleged documents speak for themselves and their interpretation is a matter of law. Defendants deny all remaining allegations contained in those paragraphs. 20. 21. Defendants admit the allegations contained in paragraph 34. In response to the allegations contained in paragraphs 35, 36 and 37, Defendants

admit that the alleged documents speak for themselves and their interpretation is a matter of law. Defendants deny all remaining allegations contained in those paragraphs.

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22.

Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 38. 23. In response to the allegations contained in paragraph 39, Defendants admit that

Plaintiff complained about policies and procedures at Kern Medical Center and that his actions interfered with patient care. Defendants deny all remaining allegations contained in paragraph 39. 24. In response to the allegations contained in paragraphs 40 and 41, Defendants

admit that Plaintiff’s former attorney sent a letter to Bernard Barmann and that Plaintiff met with Mr. Barmann on or about February 9, 2006. Defendants deny all remaining allegations contained in those paragraphs. 25. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraphs 42 and 43. 26. In response to the allegations contained in paragraphs 44, 45, 46 and 47,

Defendants admit that a disagreement arose between Plaintiff and William Roy regarding the review of pathology reports and that any letters authored by William Roy speak for themselves. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining averments in those paragraphs. 27. In response to the allegations contained in paragraphs 48, 49, 50, 51, 52, 53 and

54, Defendants admit that disputes arose between Plaintiff and other physicians at Kern Medical Center, including some of the Defendants, regarding patient care, the review of pathology reports and hospital policies and procedures. Defendants further admit that any letters authored by Plaintiff or others speak for themselves. Defendants are without knowledge or information sufficient to form a belief as to the remaining averments in those paragraphs. 28. In response to the allegations contained in paragraphs 55, 56, 57, 58 and 59,

Defendants admit that Plaintiff disrupted the October, 2005, Monthly Oncology Conference and prevented appropriate discussion of case management and that other physicians at Kern Medical Center, including some of the Defendants, were concerned about Plaintiff’s conduct and with his interference with patient care. Defendants further admit that any letters authored by William
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Roy or others speak for themselves. Defendants deny all remaining allegations in those paragraphs. 29. 30. Defendants deny all the allegations contained in paragraph 60. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 61. 31. 32. Defendants deny all the allegations contained in paragraphs 62 and 63. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 64. 33. In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71

and 72, Defendants admit that letters were sent and received by Plaintiff and some of the Defendants regarding Plaintiff’s conduct and criticism of Kern Medical Center’s policies and procedures and that all such letters speak for themselves. Defendants deny all remaining allegations contained in those paragraphs. 34. 35. Defendants deny all the allegations contained in paragraph 73. In response to the allegations contained in paragraph 74 and 75, Defendants admit

that Plaintiff’s entitlement to leave under FMLA and CFRA is a question of law. Defendants deny all remaining allegations contained in those paragraphs. 36. In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,

Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions for multiple reasons and that documents authored by Plaintiff and others regarding the reasons for his leaves of absence and the terms of the leaves speak for themselves. 37. In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,

Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others regarding leaves of absence and that the writings speak for themselves. Defendants deny that Plaintiff engaged in any “whistleblowing activity” and that Plaintiff is or ever was a “whistleblower”. Defendants deny all remaining allegations in those paragraphs. 38. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraphs 87 and 88.
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39.

In response to the allegations contained in paragraphs 89, 90, 91 and 92,

Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding leaves of absence that Plaintiff requested and Plaintiff’s tenure as Chair of the Pathology Department at Kern Medical Center. All such writings speak for themselves. Defendants also admit that on or about July 10, 2006, the Joint Conference Committee voted to remove Plaintiff from his position as Chair of the Pathology Department at Kern Medical Center. Defendants deny all remaining allegations contained in those paragraphs. 40. 41. Defendants deny all the allegations contained in paragraph 93. In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,

Defendants admit that Plaintiff’s employment agreement was amended to reduce Plaintiff’s base compensation and that Plaintiff continued to send and receive written communications to others regarding his leaves of absence and that those writings speak for themselves. Defendants deny all remaining allegations contained in those paragraphs. 42. In response to the allegations contained in paragraph 99, Defendants admit that

Plaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all remaining allegations contained in paragraph 99. 43. 44. Defendants deny all the allegations contained in paragraph 100. In response to the allegations contained in paragraphs 101 and 102, Defendants

admit that Plaintiff exchanged written correspondence with David Culberson and that those writings speak for themselves. Defendants deny all remaining allegations contained in those paragraphs. 45. In response to the allegations contained in paragraph 103, Defendants admit that

Plaintiff has been provided with the information he requested from the computer that was previously assigned to him. Defendants deny all remaining allegations contained in paragraph 103. 46. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 104.
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47.

In answer to the allegations contained in paragraph 105, Defendants admit that

Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in paragraph 105. 48. In response to the allegations contained in paragraph 106, Defendants admit that

Plaintiff requested and received a reduced work schedule. Defendants deny all remaining allegations contained in paragraph 106. 49. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 107. 50. In response to the allegations contained in paragraphs 108, 109 and 110,

Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding Plaintiff’s request for leaves of absence and those writings speak for themselves. Defendants deny all remaining allegations contained in those paragraphs. 51. 52. Defendants deny all the allegations contained in paragraph 111. In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and

117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan regarding his work schedule and requests for leaves of absence and met with Peter Bryan and others to discuss those subjects. All the writings speak for themselves. Defendants deny all remaining allegations contained in those paragraphs. 53. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraphs 118 and 119. 54. In response to the allegations contained in paragraphs 120, 121 and 122,

Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding Plaintiff’s leaves of absence and performance as Chair of the Pathology Department and that those writings speak for themselves. Defendants deny all remaining allegations contained in those paragraphs. 55. Defendants are without knowledge or information sufficient to forma a belief as

to the truth of the averments contained in paragraph 123.

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56.

In answer to the allegations contained in paragraph 124, Defendants admit that

Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in paragraph 124. 57. Defendants deny all the allegations contained in paragraphs 125, 126, 127 and

58. 133 and 134. 59. 60. 61.

Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,

Defendants deny all the allegations contained in paragraph 135. Defendants deny all the allegations contained in paragraph 136. In response to the allegations contained in paragraph 137, Defendants admit that

Plaintiff’s base compensation as a staff pathologist is less than it was when he was Chair of the Pathology Department. Defendants deny all remaining allegations contained in paragraph 137. 62. 142 and 143. 63. In response to the allegations contained in paragraph 144, Defendants admit that Defendants deny all the allegations contained in paragraphs 138, 139, 140, 141,

Plaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected. Defendants deny all remaining allegations contained in paragraph 144. 64. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraphs 145 and 146. 65. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraphs 147, 148, 149, 150 and 151. 66. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 152. 67. inclusive. 68. In response to the allegations contained in paragraph 154, Defendants admit that Defendants incorporate herein, all of their responses to paragraphs 1 through 152,

Health and Safety Code §1278.5 speaks for itself and that its interpretation is a matter of law. Defendants deny all remaining allegations contained in paragraph 154.
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69.

Defendants deny all the allegations contained in paragraphs 155, 156 and 157 and

further deny that Plaintiff has engaged in any “whistleblowing activity” or is a “whistleblower”. 70. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 158. 71. inclusive. 72. In response to the allegations contained in paragraph 160, Defendants admit that Defendants incorporate herein, their responses to paragraphs 1 through 158,

Labor Code §1102.5 speaks for itself and that its interpretation is a matter of law. Defendants deny all remaining allegations contained in paragraph 160. 73. Defendants deny all the allegations contained in paragraphs 161, 162, 163 and

164 and further deny that Plaintiff made any “whistleblowing reports”. 74. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 165. 75. 76. Defendants incorporate herein, their responses to 1 through 165, inclusive. In response to the allegations contained in paragraphs 167, 168 and 169,

Defendants admit that Government Code §12945.2(a)(1) and Title 2 of California Code of Regulations §7297.7(a) and §7297.2(c) speak for themselves and that their interpretation is a matter of law. Defendants deny all remaining allegations contained in those paragraphs. 77. 78. Defendants deny all the allegations contained in paragraphs 170 and 171. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 172. 79. inclusive. 80. In response to the allegations contained in paragraph 174, Defendants admit that Defendants incorporate herein, their responses to paragraphs 1 through 172,

29 U.S.C. §2611(4)(A)(ii)(I) and 29 U.S.C. §2615(a) speak for themselves and that their interpretation is a matter of law. Defendants deny all remaining allegations contained in paragraph 174. 81. Defendants deny all the allegations contained in paragraphs 175, 176 and 177.
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82.

Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 178. 83. inclusive. 84. In response to the allegations contained in paragraphs 180, 181, 182, 183, 184, Defendants incorporate herein, their answers to paragraphs 1 through 178,

185, 186 and 187, Defendants admit that interpretation of the California Family Rights Act is a question of law. Defendants deny all remaining allegations contained in those paragraphs. 85. 86. Defendants deny all the allegations contained in paragraphs 188, 189 and 190. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 191. 87. inclusive. 88. In response to the allegations contained in paragraph 193, Defendants admit that Defendants incorporate herein, their responses to paragraphs 1 through 191,

interpretation of the California Fair Employment and Housing Act is a question law. Defendants deny all remaining allegations remaining in paragraph 193. 89. 90. Defendants deny all the allegations contained in paragraphs 194 and 195. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 196. 91. inclusive. 92. 93. Defendants deny all the allegations contained in paragraph 198. Defendants are without knowledge or information sufficient to form a belief as to Defendants incorporate herein, their responses to paragraphs 1 through 196,

the truth of the averments contained in paragraph 199. 94. inclusive. 95. 96. Defendants deny all the allegations contained in paragraph 201. Defendants are without knowledge or information sufficient to form a belief as to Defendants incorporate herein, their responses to paragraphs 1 through 199,

the truth of the averments contained in paragraph 202.
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97. inclusive. 98.

Defendants incorporate herein, their responses to paragraphs 1 through 202,

In response to the allegations contained in paragraph 204, Defendants admit that

interpretation of the Fourteenth Amendment to the United States Constitution is a question of law. Defendants deny all remaining allegations contained in paragraph 204. 99. Defendants deny all the allegations contained in paragraphs 205, 206, 207, 208,

209, 210, 211, 212 and 213. 100. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 214. 101. inclusive. 102. Defendants deny all the allegations contained in paragraphs 216, 217, 218, 219, Defendants incorporate herein, their responses to paragraphs 1 through 214,

220, 221, 222, 223 and 224. 103. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 225. 104. inclusive. 105. In response to the allegations contained in paragraphs 227 and 228, Defendants Defendants incorporate herein, their responses to paragraphs 1 through 225,

admit that interpretation of the Code of Federal Regulations, including 20C.F.R. §541.118(1) and §541.18(6), is a question of law. Defendants deny all remaining allegations contained in those paragraphs. 106. Defendants deny all the allegations contained in paragraphs 229, 230 and 231.

As and for a first affirmative defense, Defendants allege that Plaintiff’s First Supplemental Complaint and each and every purported claim contained therein fails to state a claim upon relief can be granted. As and for a second affirmative defense, Defendants allege that this Court lacks subject matter jurisdiction over Plaintiff’s alleged claims.

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As and for a third affirmative defense, Defendants allege that Defendants’ actions as alleged in the First Supplemental Complaint were privileged and that Defendants and each of them are, therefore, immune from liability. As and for a fourth affirmative defense, Defendants allege that California Civil Code section 47 immunizes Defendants and each of them from liability for the matters alleged in the First Supplemental Complaint. As and for a fifth affirmative defense, Defendants allege that, during Plaintiff’s employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff believes he sustained. As and for a sixth affirmative defense, Defendants allege that Plaintiff’s injuries, as alleged in the First Supplemental Complaint occurred more than one year before Plaintiff commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of limitations established in California Code of Civil Procedures §340. As and for a seventh affirmative defense, Defendants allege that Plaintiff’s injuries, as alleged in the First Supplemental Complaint occurred more than two years before Plaintiff commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of limitations established in California Code of Civil Procedures §335.1. As and for an eighth affirmative defense, Defendants allege that Plaintiff has available adequate administrative remedies which he failed to exhaust and that his claims are, therefore, barred. As and for a ninth affirmative defense, Defendants allege that the Defendants and each of them have qualified immunity for each and every claim alleged in the First Supplemental Complaint and that Plaintiff’s claim are, therefore, barred. WHEREFORE, Defendants pray that Plaintiff take nothing by way of his First Supplemental Complaint and that judgment thereon be entered in favor of Defendants and

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against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees together with such other and further relief as the Court deems just. Dated, April 30, 2007 LAW OFFICES OF MARK A. WASSER By: /s/ Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.

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DOCUMENT INFO
Description: David F. Jadwin v. Kern County: 1:07-cv-26 in the United Stated District Court for the Eastern District of California, Fresno Division before Judge Oliver W. Wanger. This was a 2009 federal employment lawsuit that went to a bench and jury trial resulting in a unanimous verdict and significant judgment for the plaintiff employee. Issues involved violations of medical leave and disability discrimination laws, as well as 42 U.S.C. 1983 procedural due process violation. Plaintiff was represented by Eugene Lee, a Los Angeles, California employment lawyer.