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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 2640 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasserlalmarkwasser.com Bernard C. Barmann, Sr. CA SB #060508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy CA SB #101838 1115 Truxtuu 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, and Irwin Harris

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.
Plaintiff, vs.

Case No.: 1:07-cv-00026-0WW-TAG

COUNTY OF KERN, et ai.,
Defendants.

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIIF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Date: January 12,2009 Time: 10:00 a.m. Place: U.S. District Court, Courtroom 3 2500 Tulare Street, Fresno, CA Date Action Filed: January 6, 2007 Trial Date: March 24, 2009

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DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORlTIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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Defendants submit this memorandum of points and authorities in reply to Plaintiffs opposition to Defendants' motion for summary judgment.
A.

3
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Spoliation

Raising in his opposition an issue he did not raise in his moving papers, Plaintiff alleges three individuals employed by the County destroyed evidence in this case. This is specious. With regard to David Culberson, KMC's interim Chief Executive Officer, the deposition testimony Plaintiff cites ("PMF 242"), when read in its entirety, shows the notes Mr. Culberson destroyed were inconsequential reminders about topics to be discussed at meetings. (Culberson Depo., 8/21/08, pgs. 45: 17-46:11). Mr. Culberson testified it was his usual practice to discard notes of this type. There is no indication his notes had anything to do with this case. (Culberson Depo., 8/21/08, pg. 42:8-17; pgs. 45: 10-46: 11. See also, pg. 47: 10-51 :6). Furthermore, to the extent Mr. Culberson attended meetings where minutes were kept, the minutes would be the best evidence of what transpired at the meetings and the minutes have all been produced. Supervisor Barbara Patrick does not recall whether she took notes at the Joint Conference Committee meeting where the vote was taken to remove Plaintiff as Chair. (PSUF ~234, Patrick Depo., 8/19/08, pgs. 70:8-73:7). She described any notes she might have written on her copies of the agendas as "doodles." Id. Again, the minutes would be the best evidence of topics discussed at the meetings and all the minutes have been produced. Finally, Dr. Ragland testified that his standard and long-standing practice is to delete emails after he reads them. The hard disk on the computer that had been assigned to Plaintiff was both searched and produced and the e-mail exchange Plaintiff inquired about was not on Plaintiffs computer, either. Thus, it is likely the e-mail exchange Plaintiff inquired about occurred before Plaintiff asked the Defendants to preserve e-mails. Further, Plaintiff clearly had control over the information in question because he discussed it during a Medical Executive Committee meeting. (Ragland Depo., 8/22/08, pgs. 90:10-91:17)

B.

Medical Leave

Plaintiff argues that Bachelder v. America West Airlines, Inc., (9 th Cir. 2001) 259 F.3d 1112 is controlling and establishes that Defendants interfered with his right to medical leave and
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retaliated against him for taking medical leave. Bachelder actually supports the Defendants. In Bachelder, the court held the plaintiff/employee's absences were protected by FMLA because they occurred during her 12 workweeks of protected leave. Id. at 1132. The defendant/employer had not specified which of the four "leave year" calculations, described in 29 C.F.R. §825.200, it would use to calculate FMLA leave. Id. at 1129. Consequently, the court calculated the plaintiff/employee's leave under the method that was most advantageous to her.
Id. This was the "calendar year" method and, under that method, the absences for which the

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plaintiff had been terminated occurred within the protected 12-week period. Here, the facts are different. The County had designated a "rolling leave year" for the purpose of calculating FMLA leave. (Bates Nos. 0018974-0018976; 29 C.F.R. §825.200(b)). Plaintiff exhausted his 12 weeks leave by June 14,2006 (DSUF ~~30, 32, and 38) but was not removed as Chair until July 10, after he refused the COlmty's invitation to return to work. (DSUF
~~19,

23, and 33). The relevant language from Bachelder is the court's comment that "it

should be obvious" that FMLA offers no protection for absences that exceed those authorized by the statute. Bachelder, 259 FJd at 1125. Thus, it offers no protection for Plaintiff.

c.

Due Process

Plaintiff erroneously asserts Defendants have "expressly recognized" the constitutional right of chairs to not be demoted without due process. (Pltf.'s Opp. to Defts.' Motion for Summary Judgment, pg. 14,
~4).

In "support", he relies on minutes of the Joint Conference

Committee meeting of September 10, 2007 during which someone said, with reference to Dr. Leonard Perez, "Dr. Perez is entitled to a due process hearing." (PSUF
~257).

That was true.

However, Dr. Leonard Perez's employment was terminated for cause. (Id.; JCC Meeting Minutes of 9/1 0/07 at Agenda Item 6 on Bates 0009221). Plaintiff would also have been entitled to a hearing ifhe had been terminated. (See, Plaintiffs employment agreement, DSUF '[6, Section IV, ~3, pg. 14). But, Plaintiff was not terminated. He was simply removed as department chair. Plaintiffs employment was subject to the KMC medical staff bylaws (DSUF ~~4 and 6b) and the Bylaws provide that chairs can be removed without cause on recommendation of the Chief
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Executive Officer. (DSUF ~4, Article IX, Section 9.7-4, pg. 48). Procedures that applied to the termination of Dr. Perez's employment do not apply to Plaintiffs removal as Chair. Other provisions of Plaintiff's contract provided that he was not a classified employee, did not have rights under the County's Civil Service system (DSUF
~6,

Article V,

~IO,

pg. 16),

and was required to comply "with all applicable KMC and County policies and procedures" (Id., Article V,
~7,

pg. 15). Administrative leave is expressly authorized by the County's policies. Id.

On July 10,2006, after Plaintiff had been absent from the hospital on self-imposed exile for 8 months, the Joint Conference Committee, acting on the recommendation of the hospital's chief executive officer and in accordance with the Bylaws, voted to remove Plaintiff as Chair of the Department of Pathology. (DSUF
~33).

Plaintiff had been previously told he had to be

present ifhe wanted to continue to be Chair. (DSUF ~~20 and 22). Plaintiff was not "demoted" as that term is used in the Bylaws. "Demotion" is referenced in Section 12.2 as one of several possible corrective actions. (DSUF
~12.2,

~4,

Article XII,

pg. 71). It means moving a medical staff member to a "lower staff category or

membership status." Id. The categories of medical staff are also defined in the Bylaws (See, Article V, "Categories of Membership," DSUF
~4,

pgs.18-28) and are: Active, Courtesy,

Consulting, Provisional, Honorary, Retired, Advisory, Administrative, and Associate. Id. Plaintiff was always in the "Active" category with full rights of membership and clinical privileges. (KMC Letter to Jadwin, dated 8/14/01 to 9/12/08).
D.

Plaintiff's Alleged Disability.

Plaintiff alleges he is a "disabled physician." He is not. He testified at his deposition that he is not limited in any major life functions. (Jadwin Depo., 1/9/08, pgs. 465:3-467:18). He said he could perform all the essential functions of this job without accommodation. (Jadwin Depo., 1/9/08, pg. 416:6-7). His forensic psychologist was quite emphatic in his deposition testimony that Plaintiff is not disabled within the meaning of either the ADA or FEHA. Dr. Reading testified that it was "unequivocal" that Plaintiff "was asymptomatic when starting work at Kern and so did not bring with him to the job any nascent depressive vulnerability." (PSUF ~134, Reading Decl., pg. 59,
~3).

Reading added that the "depressive disorder" Plaintiff experienced
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while working at KMC "would be considered to have been a first occurrence." ld. Reading's opinion is consistent with Plaintiffs admission that he first complained about depression in 2003 to Dr. Marvin Kolb, KMC's Chief Medical Officer at the time. (DSUF ~~65 and 67) Plaintiff bluntly asserts his "disability" was caused by working at KMC. (Second Amended Complaint ~109). (See, e.g., DSUF ~~7, 65, and 67). These facts, undisputed, establish that Plaintiff is not "disabled" within the meaning of any of the applicable statutes. According to his own expert, Plaintiff was just "depressed." He became "depressed" because of his on-the-job experiences at KMC. Because he did not bring "any nascent depressive vulnerability" with him to KMC and his depression developed on the job, it is clearly a work-related injury and his exclusive remedy is under the California Workers Compensation Act. Despite claiming he is not limited in any major life function and able to perform all essential functions of his job, there is one thing he cannot do: He cannot work at KMC. (DSUF
~~7,

65, 67, and 68; Jadwin Depo., 10/21/08, pp. 1051: 11 - 1052:5). This means he cannot

perform the most essential function of the job he had - which is to simply show up to work and do his job. And that means he is not a "qualified individual" under either the ADA or FEHA.
E.

Failure to Accommodate and Discrimination.

Plaintiff put himself on leave beginning in December, 2005. (DSUF ~l 0). Although he told another physician he was going to stay on leave until the hospital's chief executive officer "apologized" to him and asked him to come back to work (DSUF
~7 A),

he has also testified he

put himself on leave because he was too "depressed" to work. He remained out of the hospital for over 10 months, from December 15, 2005 to October 4,2006. (DSUF
~15;

PSUF ~49).

Plaintiff did not tell KMC management he was on leave until January 9, 2006 and he never told the County's Human Resources Department. (DSUF
~~7,

11). Human Resources had

to scramble to bring Plaintiff into compliance with County policy. ld. Plaintiffs physician certification gave an expected return-to-work date of March 16, 2006. ld. However, Plaintiff took no steps after March 16 to either return to work or submit a request for more leave. Human Resources finally notified him, on April 20, 2006, that his leave
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had expired. (DSDP ~18). Plaintiff then requested an extension of his leave of absence until September 16, 2006. (DSDP
~19).

He submitted a certification from his health care provider,

dated April 26, 2006, stating he required "part-time or less to avoid worsening of his serious medical condition." [emphasis added] (DSDP ~14). On April 28, 2006, KMC management met with Plaintiff and gave him a summary of his medical leave history along with policies about medical leave. (DSDF ~20). He was reminded that his responsibilities as Chair required him to be physically present at the hospital. (DSDF
~20).

The meeting was held to "insure that [PlaintiffJ had all information available concerning
~22).

his status and what was possible and not possible according to County policies." (DSDP

Plaintiffs medical certification that he required a "part-time or less" work schedule was a sufficient basis for the County to propose full-time leave to Plaintiff. (DSDP ~~20 and 22). Peter Bryan told Plaintiff he had the option to go on full-time leave (DSDP ~20) and Plaintiff chose to do so - without complaint. (DSDP
~2l).

It is undisputed Plaintiff had exhausted his 12 weeks ofFMLA and CPRA leave by June

14,2006. (DSDP ~~30, 32, and 38). Plaintiff had been told his leave would expire in June, 2006 and that he needed to notify the County of his intention to either return to work or resign. (DSDP (DSDP
~20).
~23).

Plaintiff, again, failed to respond as requested and, instead, asked for more leave. On June 14,2006, the County notified Plaintiff he could have more leave but

could not continue as Chair. (DSDP ~24). By the time Plaintiff finally returned to work on October 4, 2006, he had effectively destroyed his career as a pathologist. He had not practiced in over 10 months and, combined with the personality traits that had destroyed his working relationships with the KMC medical staff, (see discussion below) he could simply no longer do his job. (While he was on leave because he was too "depressed" to work, Plaintiff actively pursued at least six other full-time pathology positions, further showing there was only one place he could not work. (DSDP ~8).) Because Plaintiffs decisions to put himself on leave and choose which duties he would do and which he would not do were made unilaterally and without input from the County (DSDP
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~~12

and 15; Second Amended Complaint ~80), when he returned to work the County reasonabl
~267,

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11

imposed certain on him. (PSUF

Lee Decl., Exh. 22). These were not "discriminatory."

During the brief period between October 4, 2006 and December 7, 2006, when he tried to return, Plaintiff usurped the jobs of the lab techs in the pathology laboratory (DSUF ~177), and further isolated himself from the medical staff. (DSUF ~~83, 177, 182, 184, and 186). When he was asked to resume doing the blood bank reviews, he refused. (DSUF ~187). When counseled about his performance, he blamed other staff members and verbally attacked them. (DSUF
~179).

He avoided the interim chair of the Department until he was finally counseled about his
~~183

lack of cooperation and failure to follow Departmental protocol. (DSUF

and 189).

Because he refused to talk with the interim chair about his work, some of Plaintiffs cases were referred to the Peer Review Committee. (DSUF
~189).

Plaintiff responded by complaining he

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was being singled out for special treatment. (DSUF ~190). Plaintiff was sloppy in his work habits. Other members of the pathology department began to notice he was not removing "sharps" (i.e., blades) from the grossing (i.e. working) area. (DSUF ~~82, 85, and 182, l82a, l82b). He mislabeled specimens. (DSUF ~84). After he refused to send one specimen to an outside reviewer, he responded by sending almost all his cases out, thereby taxing the Department's budget. (DSUF ~185). He failed to correctly proctor another staff member who lacked the privileges to do fine needle aspiration. (DSUF ~180). Plaintiffs attitude stressed his co-workers. He interfered in their work. (DSUF He ordered other staff members to perform tasks outside of their job duties. (DSUF retaliated against doctors he did not like. (DSUF least one other physician. (DSUF
~184). ~164). ~177).

~186).

He

He was counseled for being hostile to at

The interim chair of the Department was sufficiently

concerned about Plaintiff s behavior that he met with KMC management about it. (DSUF ~188). The County was concerned that other staff members would file hostile work environment claims because of their mistreatment by Plaintiff. (DSUF ~165). The only responsible thing for the County to do was remove him from the work environment in a way that would do the least damage to him and those around him. (DSUF
~4l).

The County pnt Plaintiff on paid administrative leave and let his employment contract run
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lout. There were no "charges" against Plaintiff and he suffered no stigma. He was just sent home 2
3

and was paid for staying there.
G.

Defendants Had Legitimate Business Reasons For The Actions They Took.

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During his tenure as Chair of the Pathology Department, Plaintiff behaved in an increasingly confrontational and hostile way towards members ofthe KMC medical and nonmedical staff. (DSUF
~~69-190).

As early as 2003, Plaintiff was counseled by the Chief

Medical Officer that his leadership style should be "kinder and gentler." (DSUF '1147). In February, 2005, Plaintiff was told that "he was not acting like a team member." (DSUF ~149). In October 2005, Plaintiff was described as lacking communication skills and failing to "extend basic courtesy to his colleagues." (DSUF ~114). In April, Peter Bryan wrote Plaintiff that he must either improve his relationships with staff or step down as Chair. (DSUF
~160).

Mr. Bryan

told him, "you have made many derogatory comments about some of the staff members." Ibid. From the beginning, Plaintiff exhibited no self-awareness and little sensitivity to the effect his behavior had on others. As early as 2003, Plaintiff wrote that complaints his behavior were "irresponsible attempts by a few inadequate individuals." (DSUF
~147).

He called Dr.

Irwin Harris, the Chief Medical Officer, an "idiot" on several occasions and he questioned Toni Smith's competency as chief nursing officer. (DSUF
~~137

and 139).

Plaintiff wrote an e-mail accusing Dr. Abraham, the former medical staff president, of no being "honest, objective or impartial." (DSUF ~148). In a later e-mail, he accused Dr. Abraham of having an "inappropriate personality defect." (DSUF ~154). In another e-mail, he called Dr. Abraham and Dr. Ragland "disgruntled, vindictive individuals." (DSUF ~158). In a letter to Dr. Perticucci, Plaintiff called him "dishonest." (DSUF
~153).
~142).

He called Dr. Epstein's independent, outside diagnoses "cavalier." (DSUF called the radiologists at KMC "incompetent." (DSUF
~143c).

He

Plaintiff publicly criticized the

pathology staff at the University of Southern California and Stanford University medical schools at an Oncology Conference in October, 2005. (DSUF '(111). In one particularly egregious incident, Plaintiff accused Dr. Ragland of being an "impaired physician" with a "level of intellectual functioning well below the high school
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graduate level" and mental processes that are "chaotic and almost incoherent." He alleged that Dr. Ragland might have a substance abuse, emotional and/or cognitive function disorder. He suggested that Dr. Ragland be drug tested and his patient care duties monitored. (DSUF ~152). This was all because Dr. Ragland sent Plaintiff an e-mail that contained spelling and grammatical mistakes. ld. Plaintiff contacted the licensing board with these same accusations, and he turned Dr. Ragland's e-mail over to KMC's psychiatry department. (DSUF
~152a).

Dr. Ragland was, in fact, not "impaired" and Plaintiff later wrote a letter of apology to him. (DSUF
~152b).

(Ironically, Plaintiffs letter of apology contains spelling and grammatical

mistakes, including the phrase: " ... and I have never treated you and your patients exceptionally well ... " [italics added] ld. Once, Plaintiff became angry because he missed an inspection of his department and the laboratory manager reported Plaintiff as saying, "If he had a gun-a gun he would have shot someone." (DSUF ~163). In 2003, Plaintiff became so enraged at a radiologist, Dr. Lau, that he grabbed him by his tie and pulled him out ofa room at KMC. (DSUF
~~90-93).

Plaintiff

blamed Dr. Lau for the incident, saying Dr. Lan was afraid of "data" Plaintiff was going to show him. (DSUF ~91a). Plaintiff was found to have violated the County's Workplace Violence Policy and was given a written reprimand. (DSUF ~91c and 92). Plaintiff was unable to work cooperatively with the Radiology Department. There had been relatively few complaints about the radiologists before Plaintiff arrived at KMC. (DSUF
~95).

An independent outside consultant, Dr. Lieu, was brought in to study the problem and

recommend a resolution. Plaintiff rejected Dr. Lieu's recommendation (DSUF ~98) and called Dr. Lieu, "unjustifiably pompous." (DSUF
~98).

Plaintiff had a penchant for demanding apologies from others. He demanded an apology from the Radiology Department and specified it had to occur at a staff meeting, with Dr. Amin, Dr. Abraham, Dr. Munoz, and Dr. Naderi standing at the podium while he received the apology. (DSUF ~~99 and 150). He demanded an apology from Dr. Perticucci for pointing out mistakes the Pathology Department had made. (DSUF ~153). He demanded an apology from Dr. Abraham, again to occur at a staff meeting, because he found her behavior objectionable.
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(DSUF ~155). He demanded an apology "meeting [his] specifications" from Dr. Roy for not providing documentary evidence of deficiencies in the Pathology Department by a deadline Plaintiff imposed. (DSUF
~156).

Even after he put himself on leave, Plaintiff s demands for
~18).

apologies from Dr. Ragland, Dr. Abraham, Dr. Taylor, ffi1d Dr. Roy, did not abate. (DSUF

By 2005, Plaintiff had alienated most members of the medical staff. Jd. Events cmne to head at the October 12, 2005 Oncology Conference. Plaintiffs presentations at these conferences had been problematic before. In 2003, Plaintiff was counseled to prioritize information and present it succinctly. (DSUF ~I 01). In 2004, he was warned that a presentation he wanted to make, consisting of 52 slides, would take more time than was allotted. (DSUF '1l02). In May 2005, he was again requested to observe the time limits. (DSUF ~103). Plaintiffs presentation at the October 12, 2005 oncology conference was inappropriate.
It greatly exceeded the allotted time, contained too many slides, did not conform to the

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instructional purpose of the conference, included unprofessional criticisms of both the University of Southern California and Stanford University, deteriorated into an argument between Plaintiff and Dr. Roy over a specific case and monopolized the conference to such an extent that no one else was able to make their presentations. (Taylor Depo., 12/5/07, pg. 14:19-21; pg. 15:1-4; pg. 27: 16-17; pgs. 31 :17-32:21; pg. 51: 12-25; pg. 55:7-23; pg. 62: 19-25; pg. 63:4-11; pg. 64: 12-19; 68:9-17 and DSUF ~~104, 105, 106 and 111 and PSUF ~89). After Plaintiff finally relinquished the podium and sat down, he continued to argue with Dr. Roy. (DSUF
~112).

Three physicians who attended the conference wrote confidential letters to the Chief Medical Officer about Plaintiff's behavior. (Harris Depo., 8/13/08, pgs. 113:14-16 and 116:4; DSUF ~107; PSUF ~91). The chief of surgery also voiced a complaint. (DSUF ~108). The pastpresident of the medical staff testified she was embarrassed by several things Plaintiff had saidsuch as his criticisms of outside consultffi1tS. (DSUF ~III). Several residents and medical students noted Plaintiff s unprofessional behavior on their evaluations. (DSUF ~I 09). A few days after the conference, the Executive Board of the medical staff presented Plaintiff with a confidential letter that both admonished and counseled him regarding his behavior at the conference. The letter referenced Plaintiff s failure to observe the time limits, his
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failure to cooperate with the conference coordinator's instructions regarding time and his use of 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 the conference as a platform from which to advance his personal agenda. (DSUF
~113).

In a meeting with KMC' s Chief Executive Officer about a week later, Plaintiff made loud, angry and derogatory comments about other members of the medical staff. (DSUF
~116).

When called to a meeting in February 2006 to try and resolve the interpersonal conflicts, Plaintif insulted every other person in the meeting (DSUF
~~166-173)

and refused their conciliatory

efforts to bring resolution to the issue. (DSUF ~~166-174). Plaintiff became increasingly antagonistic and hostile. (DSUF '1~114; 166-174). He told Dr. Abraham she was nothing but a "fat doctor." (DSUF
~166).

He told Dr. Ragland, he was unfit to be president of the medical An attendee later wrote to defendant Peter Bryan that the
~174).

staff. (DSUF ~~13 7, 143a, and 173).

meeting was the "most distasteful event" the attendee had ever participated in. (DSUF
H. Plaintiff Suffered No Retaliation.

Plaintiff sent letters to the California Department of Health Services ("DHS") the College of American Pathologists ("CAP") and the Joint Commission for the Accreditation of Hospital Organizations ("JCAHO") on November 28, 2006 complaining about KMC. (DSUF ~~56a, 56b and 56c). But, he did not inform the County of the letters until December 13, 2006. (DSUF
~58).

Although he claims he told Gilbert Martinez that he intended to "blow the whistle" on KMC (Second Amended Complaint ~20) he actually only told Mr. Martinez to be prepared for an inspection. (DSUF
~55).

Gilbert Martinez had no idea why Plaintiff told him to prepare for

inspection and, in fact, the inspection did not happen until the next year. (DSUF ~55). (The other incidents of "retaliation" that Plaintiff alleges (skull flaps, the oncology conference, the prostatectomy, the "smear campaign") do not warrant further discussion.) The County took no employment action against Plaintiff after he was put on administrative leave on December 7, 2006. It is not possible for the Defendants to have retaliated against him. Respectfully submitted, Dated: December 8, 2008 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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