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

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Eugene D. Lee, No. 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 Email: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION DAVID F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN, and PETER BRYAN and IRWIN HARRIS in their individual and official capacities, Defendants. Case No. 1:07-cv-00026 OWW TAG PLAINTIFF’S REPLY TO OPPOSITION TO MOTION FOR PARTIAL OR FULL SUMMARY JUDGMENT DATE: TIME: CTRM: TRIAL: January 12, 2008 10:00 a.m. U.S. District Court, Ctrm. 3 2500 Tulare St., Fresno, CA March 24, 2008 January 6, 2007

Complaint filed:

Plaintiff respectfully submits his reply to Defendants’ Opposition (“Opposition”) (Doc. 276) to Plaintiff’s Motion for Partial or Full Summary Judgment against Defendants. (Doc. 263).

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I. ADVERSE EMPLOYMENT ACTIONS A. “Totality of the Circumstances” Contrary to what Defendants contend, Plaintiff’s Complaint asserts the “totality of the circumstances” approach under Yanowitz v. L’Oreal 36 Cal.4th 1028, 1055. Plaintiff’s complaint several times alleges Defendants’ creation of a “hostile work environment”. (e.g., Second Amended Complaint, Doc. 241 ¶¶ 19, 44, 110, 136, etc.). And the record establishes that, over a number of years, Defendants targeted Plaintiff with a smear campaign of disparate treatment, heightened scrutiny, retaliatory peer review and baseless accusations. [DMF 69-190]. Defendants’ decisions to 1) place letters of reprimand into Plaintiff’s credentials file in October 2005 for a minor time overrun at a monthly Cancer Conference (“Credential Threat”), 2) force Plaintiff from part-time onto full-time medical leave in April 2006 (“Forced FT Leave”), 3) remove Plaintiff from Pathology department chair (“Demotion”) in July 2006 and reduce his base pay by over $100,000 in October 2006 (“Paycut”), 4) place Plaintiff on administrative leave in December 2006 for almost a year, denying him professional fee income and restricting him to his home during work hours (“Admin Leave’), and 5) not renew his contract which expired in October 2007 (“Nonrenewal”), must all be considered collectively under Yanowitz as part of a series of subtle – and not-so-subtle – damaging injuries to Plaintiff motivated by illegal retaliation and discrimination. B. Discrete Adverse Employment Actions

However, caselaw also establishes that each of the foregoing stands on its own as a discrete adverse employment action. The California Supreme Court has held that an adverse employment action must materially affect the terms, conditions or privileges of employment. Yanowitz v. L’Oreal 36 Cal.4th 1028, 1036. In so doing, the court rejected the arguably broader federal “deterrence” standard. Ibid. However, the court further emphasized that the phrase “‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide,” Id. at 1138, and that “adverse treatment that is reasonably likely to impair a reasonable employee’s job performance” also constitutes an adverse employment action. Id. at 1055-1056. The court further clarified that it was taking a “middle path between making actionable any

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conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury”. Id. at 1053 (emphasis added). 1. Credential Threat. Here, the evidence incontrovertibly establishes that the Credential Threat did cause Plaintiff a tangible psychological injury, and that it impaired his job performance so greatly that he had to request reduced work schedule medical leave in January 2006. [PMF 75].1 When Former Medical Staff President Scott Ragland (“Ragland”) was asked “Is that a serious thing, for a physician at Kern Medical Center, to have a letter of reprimand or dissatisfaction entered into their medical staff file?” he responded “Of course”. (Ragland Depo., 8/22/08, 264:25-265:4). Plaintiff’s expert, Lawrence Weiss, Chair of Pathology at City of Hope National Medical Center, observed of the Credential Threat: “I have never seen a physician’s privileges threatened for such an insignificant and patently unwarranted reason.” [DMF 106]. Worse yet, Defendants have admitted they were on notice since 2003 that Plaintiff suffered from depression.2 [DMF 62, 63, 64, 65]. Former Medical Staff President and psychiatrist Eugene Kercher (“Kercher”) testified as PMK representative on behalf of Defendant County that he was familiar with the symptoms of depression and had formed the opinion that Dr. Jadwin was depressed over the course of years of observing and working with him. [PMF 136]. Yet, Defendants engaged in a course of conduct that was calculated to wreak maximum havoc on Plaintiff’s disability. First, on October 17, 2005, days after the monthly 1-hour cancer conference held on October 12, 2005 (“October Conference”) – at which Plaintiff had reported his patient care concerns to medical staff officers, doctors and residents regarding a radical hysterectomy that had been conducted based on deficient outside pathology reports, as well as the need for systematic, confirmatory review of outside pathology reports prior to undertaking surgery [PMF 89] – the medical staff officers retaliated by calling Plaintiff into a meeting where they humiliated him for making his “political statements” [DMF 114],
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Note, a reprimand is an adverse action sufficient to trigger a Skelly hearing. See 2 Cal. C. Regs. § 51.1. There is no legal requirement that Plaintiff notify each and every officer at KMC of his disability. In Kimbro v. Atlantic Richfield Co. 889 F.2d 869 (9th Cir., 1989), the court held that notice to Plaintiff’s supervisor was imputed to the person(s) who made the final decisions regarding the adverse action. See also California Fair Employment and Housing Commission v. Gemini Aluminum Corp. 122 Cal.App.4th 1004 (2004) (notice to ANY supervisor of plaintiff’s limitations is sufficient to trigger the accommodation duty). It is undisputed that Plaintiff told his former supervisor, Marvin Kolb, in 2003 of his depression disability and was thereafter permitted to go on reduced work schedule medical leave.

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then told him of their decision to place three letters of reprimand solicited from conference attendees into Plaintiff’s credentials file. 3 A formal joint letter of reprimand they delivered to Plaintiff at the meeting memorialized this decision and further threatened to “subject [Plaintiff] to disciplinary action by the medical staff”4 if he were to again 1) run over time – despite the fact that Plaintiff had spoken at most for only 15 minutes of the allotted 1 hour, that conferences at KMC run over “all the time” [PMF 106], that the first presentation of that morning had run over by 5 minutes without incident [DMF 106], and that the subsequent November cancer conference ran over by 8 minutes [DMF 115] without incident, 2) ignore the requests of the leader of the conference, Albert McBride, to be brief – despite the fact that McBride later testified that “No, I was not upset with Dr. Jadwin. I have always had a lot of professional respect for Dr. Jadwin. Frankly, I think he is a very good pathologist” (McBride Depo., 8/15/08, 34:1-3), “I was not unhappy with [Plaintiff’s] presentation. He had a lot of good material to present” [DMF 106], and that “I did not want to write this letter [of reprimand]” but did so at the “direction really” of former Chief Medical Officer Irwin Harris (“Harris”) (McBride Depo., 8/26/08, 30:6-7), or 3) use a public forum for “making political statements” – direct evidence of retaliatory motive with respect to the content of Plaintiff’s October Conference presentation, i.e., a complaint about patient care. Defendants further contend Plaintiff ruined the educational mission of the October Conference, 5 but the majority of attendee feedback forms collected at the end of the conference gave There is no question that this was a complaint “relating to the care, services, or conditions” of [a health facility]” within the meaning of Health & Safety C. § 1278.5(b)(1). Defendants’ own Opposition admits that Plaintiff’s presentation criticized outside pathology reports “of both the University of Southern California and Stanford University”. (Opposition, Doc. 276, 4:12-13) and took issue with the clinician’s, William Roy’s, handling “over a specific case”. (Id., at 4:13-14). When McBride was asked in deposition, “Would you say it would almost be medically irresponsible to conduct a hysterectomy on a patient based upon poor histology?”, he responded “It’s a tough question, but the answer is, obviously, yes. I mean, you want to do the right operation for the right pathology…on anything.” (McBride Depo., 8/15/08, 52:3-12). 4 Defendants argue the Credential Threat does not fall within the scope of Health & Safety C. § 1278.5(d), but that section expressly prohibits “discriminatory treatment of an employee . . . which includes . . . discharge, demotion, suspension. . . or the threat of any of these actions.” (emphasis added). Here, the Credential Threat was expressly threatening “disciplinary action”. 5 Defendants depend almost exclusively on Bill Taylor for his testimony about how the Cancer Conference should be run and the inappropriateness of Plaintiff’s conduct; however, Taylor also testified that his statements were just his “opinion” as a long-time attendee and that he was not in charge of the Cancer Conference. “And I have to say I don’t run this conference. I never have. And my statement to you is my opinion of what I think that conference is for.” (Taylor depo., 12/5/07, 16:25-17:3). In contrast, McBride was the moderator in charge of running the Cancer Conferences. (McBride Depo., 8/15/08,15:16).
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Plaintiff high marks for his presentation and included such praise as “V. good speaker” and “Great”. [DMF 109]. To make matters worse, when Plaintiff then requested to see the letters of reprimand, Defendants refused. It was only when Plaintiff’s attorney sent a letter to Defendant County that, on January 6, 2006, Defendants finally provided Plaintiff with copies of the letters in redacted form. (Second Amended Complaint, ¶ 69 (Doc. 241)) [DMF 32 (Tort Claims Act Complaint at Section 3.C, second paragraph)]. Defendants resort to arguing “no harm, no foul” based on the fact that they ultimately decided not to put the letters into Plaintiff’s credentials file. Yet, Harris testified they also chose not to tell this fact to Plaintiff, intentionally keeping him in the dark despite his many anxious inquiries about the letters being entered into his credentials file. (Harris Depo., 8/13/08, 167:3-8). Harris testified: “Dr. Jadwin was repeatedly obsessed with whether or not the letter was in his file…But I think he continued to believe that [the letters of reprimand] was.” (Harris Depo., 8/13/08, 168:14-27). There is no question that, not only was the Credential Threat a serious threat to Plaintiff’s credentials, but that Defendants were acting maliciously in retaliation for his whistleblowing and that they succeeded in willfully causing Plaintiff tangible psychological injury by re-igniting his major depressive disorder, of which they had been on notice.6 2. Forced FT Leave. Defendants rely heavily on Swonke v. Sprint, Inc. (N.D. Cal. 2004) 327 F.Supp.2d 1128 in support of the notion that an employer is permitted to place an employee “on a leave the employee did not request”. (Opposition, Doc. 276, 5:23-24). However, Swonke is distinguishable. There, plaintiff’s medical providers had told the employer that plaintiff was unable to work at all, even with modifications. Swonke v Sprint, Inc., 327 F.Supp.2d 1128, 1133. The court thus found nothing wrong with the fact that Plaintiff’s “managers told him to stay home and recuperate”. Swonke v Sprint, Inc., 327 F.Supp.2d 1128, 1138. Here, Plaintiff’s medical leave certification made it abundantly clear that Plaintiff could work on a reduced work schedule. [DMF 14]. Moreover, Defendant Bryan did not tell Plaintiff to go onto full-time leave so he could recuperate; rather, it was to burn up Plaintiff’s

In discussing the Credential Threat, Defendants digress into a series of smears against Plaintiff. Besides being irrelevant, gratuitous attacks on Plaintiff’, they are also all incontrovertibly shown to be pretext. [DMF 89-190].

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medical leave entitlement. [DMF 21]. Bryan also suggested it was because Plaintiff’s part-time leave was creating “issues” within the Pathology department. [DMF 21, Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19)]. The Forced FT Leave denied Plaintiff any opportunity to earn professional fees, which ranged between $6,000 to $8,000 per month in the 7 months leading up to April 28, 2006. [PMF 25, Rizzardi Decl., Exh. 1, Table 7; Jadwin Decl. para 14]. Defendants allege Plaintiff violated numerous medical leave protocols when he began his reduced work schedule medical leave on December 16, 2005 and that he unilaterally placed himself on leave. Those allegations are baseless.7 Plaintiff was legally required only to give “reasonable notice” to his employer of his need for medical leave.8 It is undisputed that Plaintiff gave such verbal and written notice to Defendant Bryan in early January 2006, and again in March 2006. [PMF 153; DMF 10, 11, 19, 67]. Although Defendants designated December 16, 2005 as the beginning date of his leave, HR personnel testified that they had simply taken the date when Plaintiff’s condition began as stated on the medical certification of Plaintiff’s therapist, and deemed that Plaintiff’s medical leave had begun on that date. (Nunn Depo., 2/27/08, 84:24-85:25). In fact, a review of Plaintiff’s timesheets proves Plaintiff was working full-time from December 16, 2005 to January 9, 2006, taking 4 sick days off during the Christmas and New Year holidays [DMF 33, Bryan Memo to JCC of 7/10/06 at Bates 1532-1533)], upon conclusion of which Plaintiff timely gave Bryan reasonable notice of his need for medical leave. 3. Demotion. Defendants digress into an analysis of the term “demotion” as it is technically defined by KMC’s bylaws. However, the Yanowitz “materiality” framework, not KMC’s bylaws, is controlling for purposes of adverse employment action analysis. Defendants’ attempt to superimpose their interpretations of KMC Bylaws onto adverse employment action analysis has no support in caselaw. As Defendants well know, Plaintiff use “Demotion” as shorthand for Plaintiff’s “removal”

Defendants rely heavily on former HR Director Sandra Chester’s testimony to establish Plaintiff’s alleged non-compliances with internal leave protocols. However, Chester admitted she was only “recreating what I believe happened” and that she did not actually process Plaintiff’s initial leave request. (Chester Depo., 8/28/08, 32:8-33:4, 47:11-24, 75:15-18). 8 According to Judicial Council of Cal. Civ. Jury Instr. No. 2602, Plaintiff was required only to make KMC aware, verbally or in writing, of 1) his need for medical leave, 2) when the leave will begin, and 3) how long it is expected to last. An employer may not use an employee’s failure to follow internal procedures to deny or delay leave request. 29 CFR § 825.302(d); Cavin v. Honda of America Mfg., Inc. (6th Cir. 2003) 346 F3d 713, 722-725; Mora v. Chem-Tronics, Inc.16 F.Supp.2d 1192, 1217.

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from chair of the Pathology department on July 10, 2006.9 It is undisputed that Defendants had tied a portion of Plaintiff’s base compensation to his chairmanship. [PMF 47, DMF 31, DMF 44]. In short, the Demotion and Paycut went hand-in-hand. Defendants went so far as to condition Plaintiff’s return to work on his agreeing to a concomitant over-$100,000 Paycut amendment to his contract. [DMF 44]. A $100,000 reduction in compensation is clearly a material change in the terms, conditions or privileges of employment under Yanowitz. It is incontrovertible that the Demotion and Paycut was an adverse employment action. 4. Admin Leave. It is undisputed that Plaintiff had to be present at the hospital to process and bill patient cases in order to earn “professional fees”. [PMF 55]. The Admin Leave prevented that. Professional fees historically amounted to over $100,000 per year. Denial of such fees is clearly a material change in the privileges of employment. Also, it is undisputed that Defendants put Plaintiff on Admin Leave pursuant to a County disciplinary policy [DMF 41(a)] which had a requirement of “good cause” and, in cases where the leave exceeds 5 days, of obtaining written authorization from the County Administrative Office. [PMF 258, Lee Opp. Decl., Exh. 19 (Kern County Policy & Administrative Procedures Manual at ¶¶ 139, 139.6, on Bates 0016940-16941)].10 Plaintiff was placed on Admin Leave from December 7, 2006 to October 4, 2007; yet Defendants never obtained such CAO authorization.11 Defendants’ failure to follow their own policies and procedures gives rise to an inference of unlawful motive. Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33; EEOC v. Board of Governors (7th Cir. 1992) 957 F.2d 424. 5. Nonrenewal. Defendants contend: “nothing in the [Daly v. Exxon] opinion holds that nonrenewal of an employment contract is, by itself, an adverse employment action”. (Opposition, Doc. 276, 10:6-7). Defendants cite to Tollefson v. Roman Catholic Bishop (1990) 219 Cal.App.3d 843 to support their contention that nonrenewal cannot be an adverse employment action. There, the Tollefson Merriam-Webster’s Dictionary defines “demotion” as “1: to reduce to a lower grade or rank” and “2: to relegate to a less important position”. In deposition, numerous KMC officers used the term “demotion”, like Plaintiff, to refer to Plaintiff’s removal from chair. (e.g., Culberson Depo., 8/21/08,92:14-93:9, Ragland Depo. 8/22/08, 377:17-19, Martin Depo., 8/27/08, 239:25-240:15). 10 ¶ 139.6 states: “A department head may not order an administrative leave with pay for a period in excess of five assigned workdays within a single pay period without the written authorization of the Employee Relations Officer in the County Administrative Office”. 11 Defendants never disclosed any such authorization in discovery, which has now closed.
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court considered whether non-renewal of a 1-year contract could support various tort and contract breach claims. Id. at 848. It concluded no. The court in Daly v Exxon concurred with the result in Tollefson but distinguished it because “it simply does not speak to the situation here presented, i.e., a claim of nonrenewal of employment in violation of public policy.” Daly v. Exxon (1997) 55 Cal.App.4th 39, 43. The Daly court then considered whether nonrenewal of a fixed-term 1-year “consulting agreement” could constitute 1) a termination supporting a tort claim for wrongful termination in violation of public policy and 2) an adverse employment action supporting a statutory claim for retaliation in violation of a California whistleblower law. Id. at 44. The court said no as to the first, but yes as to the second. Regarding the latter, the court stated: “The word ‘discriminated,’ in [the whistleblower statute], is broad enough to apply to an employer’s decision not to renew a fixed-term employment contract”. Id. at 44. The court then ruled: “[w]here an employer discriminates against the employee and retaliates by not renewing the employment contract, the employee may sue for [whistleblower] statutory damages”. Id., at 46. In short, a nonrenewal may constitute an adverse employment action in the discrimination/retaliation context. Here, then-Chair of the Board of Supervisors Ray Watson’s deposition testimony constitutes direct evidence that retaliation against Plaintiff for medical leave and for opposing conduct prohibited by FEHA and FMLA, was a motivating factor in Defendant County’s decision not to renew Plaintiff’s employment contract: “My understanding was that [Plaintiff] “had - he had been on medical leave, family leave, and had requested even more leave, and that for that reason and the fact that he was suing us, that we decided not to renew his contract” (“Nonrenewal”). [PMF 68, Lee Supp. Decl., Exh. 14 (Watson Depo. at 113:15-114:4)]. 12 Watson’s reference to medical leave establishes beyond question that the medical leave was a negative factor in Defendant County’s Nonrenewal decision. His mention of Plaintiff’s lawsuit is also direct evidence that the Nonrenewal was in retaliation for Plaintiff’s bringing this action to enforce his rights under FEHA and FMLA. Watson’s additional testimony
12

Defendants argue that Watson was referencing “Plaintiff’s long-term unavailability and [that] has nothing to do with punishing Plaintiff for taking leave”. (Opposition, Doc. 276, 23:24.5-25.5). But this is a distinction without a difference. In Bachelder v. Am. W. Airlines, Inc. the 9th Circuit ruled that evidence showing an employer had terminated an employee “because of her continued unavailability” due to medical leave made it “fairly clear in any event that Bachelder would not have been fired had she not taken the protected leave”. 259 F.3d 1112, 1131 (9th Cir. Ariz. 2001) n22.

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establishes his state of mind toward Plaintiff’s oppositional activity: “So why would you want to establish a contractual relationship with somebody who’s suing you.” [DMF 34-36, Watson Depo, 8/25/08, 110:17-19]. Defendants attempt to controvert Watson’s testimony with obfuscation and a sham declaration. First they contend Watson “only remembered a discussion about [Demotion]” (Opposition, Doc. 276, 10:19-20), but that is belied by the foregoing testimony. Watson confirmed the foregoing recollection not once, but three times (the third time volunteering it on his own initiative). [DMF 34-36]. Plaintiff even asked Watson if he was speculating or guessing as to whether retaliation for Plaintiff’s lawsuit was a reason for the Nonrenewal decision: “[A]re you just speculating now, just guessing, or was that a consideration for his nonrenewal?” Watson responded, “Well, I remember it being discussed”. [DMF 34-36, Watson Depo.,8/25/08, 110:23-111:5). Defendants cite to deposition testimony that appears over 200 pages and 2 hours earlier in the deposition transcript regarding a separate line of questioning to point out that Watson couldn’t recall any discussions about termination, resignation or denial of Plaintiff’s privileges. But that proves nothing about whether discussions about Nonrenewal had occurred. [DMF 34-36]. Defendants argue that Watson couldn’t clearly recall whether the JCC or the Board of Supervisors had voted not to renew Plaintiff’s contract, and assert: “In fact, neither the JCC nor the Board of Supervisors decided to let Plaintiff’s contract expire”. (Opposition, Doc. 276, 25:2-4).13 Similarly, Watson submitted a lawyer-drafted declaration stating: “As a county supervisor, I am accustomed to making decisions and I assumed, if Dr. Jadwin’s contract was not renewed, there had been a decision to not renew it; however, there was no such decision.” (Doc. 255, 2:12-14) (emphasis added). These assertions are shams. First, when Watson was asked in deposition, “So you don’t recall a specific vote, but there was a decision not to renew [Plaintiff’s] contract then?”, he unequivocally responded “Yes”. (Watson Depo., 8/25/08, 30:10-13).14 Second, Defendants have judicially admitted

13 14

Defendants cite to DMF 36(a), but that references the Board of Supervisors only, not the JCC. At the beginning of the deposition, Watson was expressly instructed to answer questions only if he understood them and not to engage in guesses or speculation, and after each such instruction, he

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that “The county decided not to renew Dr. Jadwin’s contract, which expired on October 4, 2007…Admit”. (PMF 29 of Defendants’ Response to Plaintiff’s Statement of Undisputed Facts, Doc. 278, 7:3-4). Third, a contemporaneous email establishes that Defendant County had decided not to renew Plaintiff’s contract as early as May 1, 2007. In an email to Plaintiff’s counsel, carbon copied to Kern County counsel Mark Nations and Karen Barnes more than 5 months before Plaintiff’s contract was due to expire, defense counsel wrote: “If we cannot buyout [Plaintiff’s] contract then the best [the County] can do is lift the [home] restrictions on [Plaintiff’s] leave and let the contract run out”; “The County’s initial thought was that it could cash Dr. Jadwin out of his remaining contract in return for a discounted lump sum payment. This would offer the mutual benefits of freeing him from administrative leave and getting on with his career and freeing the County from his contract.” [PMF 63, Lee Supp. Decl., Exh. 6 (Wasser Email to Lee of 5/1/07 at DFJ01705)].15 In response, Plaintiff’s counsel sent a fax to defense counsel protesting “KMC’s decision not to renew Dr. Jadwin’s contract”. [PMF 63, Lee Supp. Decl., Exh. 7 (Lee Fax to Wasser of 5/1/07 at DFJ1702, 1703)]. Defendants never responded to the fax. Defendant County ended up running Plaintiff’s contract out as it had said it would. It simply flies in the face of logic for Defendant County and Chairman Watson to now posit that there were no discussions or decisions regarding the expiration and nonrenewal of Plaintiff’s contract. The County was anxious as early as May 1, 2007 to “free” itself from Plaintiff’s contract. Watson’s repeated admissions against interest establish retaliatory motives for the Nonrenewal. Defendants should not now be permitted to create an issue of fact where there is none through sham declarations and lies. II. COUNTS Regarding skull flaps, Plaintiff’s suspicions of unlicensed tissue storage in violation of Health & Safety C. § 1635.1 was reasonable. Plaintiff’s successor, Philip Dutt testified that he later disposed of the up to 15 to 20 skull flaps being stored in an unlicensed freezer because he “didn’t want to take the affirmed that he understood. (Watson Depo., 8/25/08, 7:10-23). After the deposition, Watson submitted no corrections to the transcript within the statutory 30-day review period provided for by FRCP 30. 15 Defendants argue in their response to PMF 63 that this email was an attempt to “negotiate a settlement”, but the email expressly states: “I told you then that any such [buyout] deal would be without prejudice to the parties’ claims and positions in the case”. [PMF 63, Lee Supp. Decl., Exh. 6 (Wasser Email to Lee of 5/1/07 at DFJ01705) (emphasis added)].

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chance that some might be reimplanted into a patient” and run afoul of regulators – precisely his predecessor’s concern. (Dutt Depo., 8/20/08, 247:13-249:6). Prior to October 2006, Plaintiff had thought the skull flap issue resolved. (Martinez Depo., 4/16/08, 19:11-20:8). Regarding FMLA/CFRA, Defendants state that Neisendorf v. Levi Strauss & Co. stands for the proposition that “Once the 12 weeks of [protected medical] leave have been taken, an employee’s rights under FMLA expire”. (Opposition, Doc. 276, 17:11-12), 143 Cal.App.4th 509, 518. Defendants then argue in various places throughout their Opposition that all of Plaintiff’s rights under FMLA/CFRA expired upon the end of his leave. This is wrong. Neisendorf established only that an employee’s right to reinstatement expires upon exhaustion of his 12 weeks of medical leave. 143 Cal.App.4th 509, 517518. 16 Neisendorf did not establish that an employer could, for instance, retaliate with impunity against an employee for medical leave once his protected 12 weeks were ended. Regarding disability discrimination,17 it is undisputed that Defendants approved Plaintiff’s reduced work schedule medical leave from December 16, 2005 to April 28, 2006 whereby he worked – and was only paid for – 1 to 2 workdays per week [PMF 121, 226], yet the Pathology department continued to function well during that time. [PMF 123, 227; DMF 160]. Thus, there is no question that Plaintiff was otherwise qualified to perform the essential functions of his job with a reduced work schedule accommodation and that the accommodation was reasonable. Yet, when Plaintiff timely requested an extension of his accommodation [PMF 14], Defendant Bryan refused to engage in the interactive process18 and instead forced Plaintiff onto Forced FT Leave. Regarding due process, several KMC doctors testified to their understanding that their positions at KMC were permanent barring cause. Shertukde Depo, 202:24-206:13; Naderi Depo., 17:10-18:5.
16

Defendants also cite to the wrong jury instruction, CACI 2600 (failure to reinstate). Timeliness of notice is not an element under the correct instruction, CACI 2620. The elements to establish medical leave retaliation under CFRA and FMLA are essentially the same. 17 As was made clear in Plaintiff’s Opposition, FEHA expressly rejects several of the ADA’s stricter provisions, such as its definition of a “disability”. Yet Defendants continue to misapply the ADA. 18 California Legislature has approved use of EEOC’s Guidelines on interactive process in FEHA cases. (Gov’t C. § 12926.1(e); see also Dept. of Fair Employment and Housing’s “Case Analysis Manual” at Chap. 5, § H at pp. 65-77). California courts have relied on the 9th Circuit’s description of the interactive process as requiring “communication and good-faith exploration of possible accommodations between employers and individual employees with the goal of ‘identify[ing] an accommodation that allowed the employee to perform the job effectively.’” Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261, (citing Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105).

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For the foregoing reasons, Plaintiff DAVID F. JADWIN, D.O., respectfully requests that his motion for partial or full summary judgment be granted, finding Defendants liable under all Counts, striking all pleaded and unpleaded affirmative defenses, and leaving only damages to be determined by a jury.

RESPECTFULLY SUBMITTED on December 9, 2008.

/s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPENDIX A

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Scott Ragland, D.O. Jennifer Abraham, M.D. Eugene Kercher, M.D. David Culberson Marvin Kolb, M.D. Irwin Harris, M.D. Peter Bryan Bernard Barmann Mark Nations Karen Barnes Ray Watson Kern County Barbara Patrick NAME

CAST OF CHARACTERS – HIERARCHICAL DESCRIPTION Defendant Chair, Board of Supervisors, 2006 Supervisor, 1994 – 2007 Chair, Board of Supervisors, 2006 Supervisor, 2002 – present County Counsel for Kern County Chief Deputy County Counsel for Kern County Chief Deputy County Counsel for Kern County Acute care teaching hospital located in Bakersfield, CA, that is owned and operated by County of Kern. Joint Conference Committee (JCC) Highest decision-making body at KMC, comprised of 2 Supervisors, CEO, President, Immediate Past President, President-elect, CMO, Nurse Executive, etc. Defendant Chief Executive Officer, 1995 - 9/15/06 Interim Chief Executive Officer, 8/25/06 – 5/15/07 Chief Medical Officer, 1999 – 8/3/04 Defendant Chief Medical Officer, 2005 – 9/1/07 Immediate Past President, 7/1/04-7/1/06 President-elect, 7/1/02 – 7/1/04 Medical Staff President, 7/1/04 – 7/1/06 Immediate Past President, 7/1/06 – 7/1/08 President elect, 7/1/04 – 7/1/06 Medical Staff President, 7/1/06 – 7/1/08

Kern Medical Center (KMC)

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NAME Royce Johnson, M.D. Maureen Martin, M.D. Javad Naderi, M.D. Tai Yoo, M.D. Philip Dutt, M.D. Chair, Medicine Chair, Surgery Chair, Radiology Chair, Psychiatry

DESCRIPTION

Pathologist, 6/21/05 – 7/14/06 Acting Chair, Pathology, 7/14/06 - present

David F. Jadwin, D.O., F.C.A.P.

Plaintiff Chair of Pathology, 10/24/00 – 7/10/06 Staff Pathologist, 7/10/06 – 10/4/07

Albert McBride, M.D. Bill Taylor, M.D. Joseph Mansour, M.D. Savita Shertukde, M.D. Chester Lau, M.D. William Roy, M.D. Gilbert Martinez Sandra Chester Steven O’Connor

Moderator, Cancer Conference Surgeon Gynecologist Pathologist, 11/1/05 – present Former Radiologist Former Gynecologist Former Laboratory Manager HR Director, 12/05 – 8/06 HR Director, 6/06 - present

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1 2 3 4 5 6 Peter 7 8 Sandra 9 David 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Marvin Eugene Royce David Philip Irwin Dutt, M.D. Culberson Chester Bryan Jennifer Bernard Karen NAME

CAST OF CHARACTERS – ALPHABETICAL DESCRIPTION Immediate Past President, 7/1/04-7/1/06 County Counsel for Kern County Chief Deputy County Counsel for Kern County Defendant Chief Executive Officer, 1995 - 9/15/06 HR Director, 6/06 - present Interim Chief Executive Officer, 8/25/06 – 5/15/07

Abraham, M.D. Barmann Barnes

Acting Chair, Pathology, 7/14/06 - present Defendant Chief Medical Officer, 2005 – 9/1/07

Harris, M.D.

Jadwin, D.O., F.C.A.P.

Plaintiff Chair of Pathology, 10/24/00 – 7/10/06 Staff Pathologist, 7/10/06 – 10/4/07

Johnson, M.D. Joint Conference Committee (JCC)

Chair, Medicine Highest decision-making body at KMC, comprised of 2 Supervisors, CEO, President, Immediate Past President, President-elect, CMO, Nurse Executive, etc.

Kercher, M.D.

President-elect, 7/1/02 – 7/1/04 Medical Staff President, 7/1/04 – 7/1/06 Immediate Past President, 7/1/06 – 7/1/08

Kern County Kern Medical Center (KMC) Kolb, M.D.

Defendant Acute care teaching hospital located in Bakersfield, CA, that is owned and operated by County of Kern. Chief Medical Officer, 1999 – 8/3/04

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mark Steven Savita Bill Maureen Albert Javad Chester Joseph

NAME Lau, M.D. Mansour, M.D. Martin, M.D. McBride, M.D. Naderi, M.D. Nations O'Connor Shertukde, M.D. Taylor, M.D. Former Radiologist Gynecologist Chair, Surgery

DESCRIPTION

Moderator, Cancer Conference Chair, Radiology Chief Deputy County Counsel for Kern County HR Director, 12/05 – 8/06 Pathologist, 11/1/05 – present Surgeon

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPENDIX B

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4/26/2006 4/26/2006 4/20/2006 4/17/2006 4/17/2006 1/13/2006 2/22/2006 3/15/2006 3/16/2006 1/9/2006

CHRONOLOGY DATE 10/24/2000 Start of Plaintiff's employment ?/?/2003 EVENT

Plaintiff tells Kolb of depression, putting County on notice of his depression disability

12/26/2003 Plaintiff's salary increased 10/12/2005 Whistleblowing (hysterectomy): At October Cancer Conference, Plaintiff reports patient care issue re hysterectomy based on poor histology to Harris, Abraham, etc. 10/17/2005 CREDENTIAL THREAT 12/16/2005 Medical leave: HR deemed this to be the date when Plaintiff's reduced work schedule medical leave began Medical leave: Plaintiff puts County on notice of the recurrence of his depression disability and gives reasonable notice of need for medical leave by notifying Bryan. He requests reasonable accommodation in form of reduced work schedule medical leave, which Bryan approves Medical leave: Plaintiff submits medical leave certification from his therapist to HR Harris and Kercher apologize to Plaintiff Medical leave: Plaintiff's initial medical leave expires Medical leave: Plaintiff requests further reasonable accommodation when he notifies Bryan of his need to extend his reduced work schedule medical leave Whistleblowing (PCC): Plaintiff reports PCC regulatory noncompliance to Bryan and requests meeting with Barmann Bryan tells Plaintiff that the Pathology department is functioning well, but threatens to terminate him Medical leave: HR sends Plaintiff notice, by first class mail, that his medical leave has ended and gives him 5 days from mailing date (4/25/06) to submit his leave extension request form Medical leave: Plaintiff submits medical leave extension form to HR Medical leave: Plaintiff submits medical leave certification from his therapist to HR

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DATE 4/28/2006 5/31/2006

EVENT FORCED FT LEAVE Plaintiff asks Bryan if he can get additional time past 6/16/06 deadline to decide whether to resign from his position at KMC

6/14/2006

Bryan preempts Plaintiff and tells him he is initiating demotion procedures "effective June 17, 2006"; Bryan also places Plaintiff on 90-day personal leave

6/16/2006 6/29/2006 7/10/2006 10/3/2006 10/4/2006

Deadline for Plaintiff's decision to return full-time (preempted by Bryan's 6/14/06 letter) Plaintiff's counsel sends letter to Barnes re preservation/no spoliation of evidence DEMOTION PAYCUT Plaintiff returns to work as demoted pathologist

11/23/2006 Whistleblowing: Plaintiff notifies Martinez of intent to blow whistle to outside authorities 11/27/2006 Whistleblowing (tipoff): Harris and Dutt learn Plaintiff intends to blow whistle to outside authorities 11/28/2006 Whistleblowing (skull flaps et al.): Plaintiff blows whistle to DHS, CAP and JCAHO re skull flap regulatory noncompliance, PCC regulatory noncompliance, prostatectomy patient care issue, etc. 12/6/2006 Whistleblowing (prostatectomy): Plaintiff reports patient care issue re radical prostatectomy based on equivocal pathology to Culberson, Dutt, Harris and Barnes and requests Board of Supervisors be notified. 12/7/2006 ADMIN LEAVE

12/13/2006 Whistleblowing: Plaintiff formally notifies County of his whistleblowing report to DHS, CAP and JCAHO 1/6/2007 4/4/2007 Plaintiff files lawsuit Plaintiff sends letter to County requesting explanation for Admin Leave, when it will end, when he will be allowed to return to work 4/30/2007 5/1/2007 County tells Plaintiff he is no longer restricted to his home during work hours County notifies Plaintiff of its decision not to renew his contract

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DATE 10/4/2007

EVENT NONRENEWAL

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPENDIX C

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WORK‐LEAVE CHRONOLOGY

Demotion 7/10/06 12/15/05 4/28/06 6/17/06 10/4/06 12/7/06

Nonrenewal 10/4/07

Reduced Work  Schedule  Medical Leave
Duration Workdays  per week Voluntary  Leave 4 mos 2 days

Forced  FT Leave

Forced Personal Leave
3.5 mos 0 days

Return to  Work  (Demoted)
2 mos 5 days n/a

Admin  Leave

2 mos 0 days

10 mos 0 days


								
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