275 D MSJ - Opposition

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USDC, ED Case No. 1:07-cv-00026 OWW TAG

S OPPOSITION TO s MOTION FOR SUMMARY JUDGMENT 1

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Eugene D. Lee (SB#: 236812)LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected]

Attorney for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

FRESNO DIVISION

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN, et al.,

Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG

PLAINTIFFS OPPOSITION TODEFENDANTS MOTION FOR SUMMARYJUDGMENT[Fed. R. Civ. P. 56(e)]

Date: January 12, 2009Time: 10:00Courtroom: U.S. Dist. Ct., Crtrm. 3

2500 Tulare St., Fresno, CA

Complaint Filed: January 6, 2007Trial Date: March 24, 2009

Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 1 of 29


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Table of ContentsI. EXECUTIVE SUMMARY ................................................................................................................ 1

A. Credential Threat .......................................................................................................................... 1B. Forced Full-Time Leave ............................................................................................................... 1C. Demotion and Paycut ................................................................................................................... 2D. Administrative Leave ................................................................................................................... 2E. Nonrenewal .................................................................................................................................. 3

II. ARGUMENT ...................................................................................................................................... 4A. THRESHOLD ISSUES ................................................................................................................ 4

1. Defendants Spoliation of Evidence Creates an Adverse Inference Avoiding SummaryJudgment ............................................................................................................................................. 42. Defendants Failed to Plead Affirmative Defenses ................................................................... 7

B. Adverse Employment Actions Common to Counts ..................................................................... 7C. COUNTS 1 & 2: Whistleblower Retaliation................................................................................ 8

1. October Conference .................................................................................................................. 82. PCCs ......................................................................................................................................... 93. Radical Prostatectomy .............................................................................................................. 94. Martinez Tipoff......................................................................................................................... 95. Skull Flaps .............................................................................................................................. 106. Smear Campaign..................................................................................................................... 10

D. COUNTS 3 & 4: Medical Leave Retaliation ............................................................................. 10E. COUNTS 4 & 5: Medical Leave Denial/Interference ................................................................ 13F. COUNT 9: Deprivation without Due Process ............................................................................... 14

1. Demotion ................................................................................................................................ 142. Admin Leave .......................................................................................................................... 153. Nonrenewal ............................................................................................................................. 164. Qualified Immunity ................................................................................................................ 175. Stigma ..................................................................................................................................... 18

G. COUNTS 3, 10 AND 11: Oppositional/Participatory Retaliation ............................................. 18H. COUNT 6: Disability Discrimination ........................................................................................ 20I. COUNT 7: Failure to Accommodate ............................................................................................. 23J. COUNT 8: Interactive Process ...................................................................................................... 24III. CONCLUSION .............................................................................................................................. 25



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Table of Authorities

CasesAerel, S.R.L. v. PCC Airfoils, LLC(6th Cir. 2006) 448 F3d 899, 907908 ............................................. 19Ayoob v. Ayoob (1946) 74 Cal.App.2d 236, 250-251 ............................................................................... 15

Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001) ............................... 11, 12Bank of Ill. v. Allied Signal Safety Restraint Systems (7th Cir. 1996) 75 F3d 1162, 1169 ....................... 19Block v. City of Los Angeles (9th Cir. 2001) 253 F3d 410, 419, fn. 2 ...................................................... 19Blumer v. Madden (1932) 128 Cal.App. 22, 24 ........................................................................................ 15Board of Regents v. Roth 408 U.S. 564, 578 n.16 (1972) ........................................................................... 8Bowen v. Missouri Department of Social Services, 311 F.3d 878, 884 (2002) ........................................ 23Brewster v. Bd. of Educ. 149 F.3d 971, 987, fn.9. (9th Cir. 1998) ........................................................... 17Brown v. Sierra Nevada Memorial Hospital 849 F.2d 1186 (9th Cir. 1988) ........................................... 22Byrnie v. Town of Cromwell, Board of Ed. (2nd Cir. 2001) 243 F3d 93, 107 ............................................ 4California Fair Employment and Housing Commission v. Gemini Aluminum Corp. 122 Cal.App.4th

1004 (2004) ............................................................................................................................................. 1City of Moorpark v. Superior Court, 18 Cal. 4th 1143 (1998) ................................................................. 21Colarossi v. Coty USA, Inc. 97 Cal. App. 4th 1142 ................................................................................... 10

Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30 ..................................................................... 23Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33 .................................................................. 3EEOC v. Board of Governors (7th Cir. 1992) 957 F.2d 424 ...................................................................... 3EEOC v. Sears Roebuck Co. (4th Cir. 2001) 243 F.3d 846, 853 .............................................................. 22Humphrey v. Memorial Hosps. Assn. (9 Cir. 2001) 239 F. 3d 1128, 1139-1140 ..................................... 21Kimbro v. Atlantic Richfield Co. 889 F.2d 869 (9th Cir., 1989) ................................................................. 1Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 430 ..................................................................... 16Lujan v. Minagar124 Cal.App.4th 1040, 1045-46 (2005) ......................................................................... 9McDonnell Douglas v. Green, 411 U.S. 792 (1973) ................................................................................ 22Mendiondo v. Centinela Hosp. Medical Center521 F.3d 1097, 1105 (9th Cir. 2008) .............................. 8Mora v. Chem-Tronics Inc., 16 F.Supp. 2d 1192, 1202, 1217 (S.D. Cal. 1998) ...................................... 13Morgan v. U.S. Xpress, Inc., 2006 U.S. Dist. LEXIS 36195 (M.D. Ga. June 2, 2006) .............................. 4OMary v. Mitsubishi Electronics of America, Inc., 59 Cal. App. 4th 563, 574-75 (1997) ..................... 22Payne v. Norwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080 .................................................................. 22Perry v Sindermann 408 U.S. 593, 602 (1972)..................................................................................... 8, 17Richards v. CH2M Hill, Inc. 26 Cal. 4th 798, 803 .................................................................................... 10Roberts v. College of Desert870 F.2d 1411, 1416 (9th Cir. 1988) .................................................... 14, 17Roth v. Veterans Admin. of United States 856 F.2d 1401, 1409 ....................................................... 16, 17Schneider v. TRW, Inc. (9th Cir. 1991) 938 F.2d 986, 990991................................................................. 7Shoemaker v County of Los Angeles (1995 2d. Dist.) 37 Cal.App.4th 618, 630 ...................................... 16Transworld Airlines v. Thurston, 469 U.S. 111, 105 (1985) .................................................................... 22Williams v. Shenango, Inc. 986 F. Supp. 309, 320-21 (W.D. Pa. 1997)................................................... 13Zubulake v. UBS Warburg LLC(SD NY 2004) 229 FRD 422, 432 ........................................................... 4

Statutes29 U.S.C. 2615(b) .................................................................................................................................. 18Cal. Govt C. 12945.2 ............................................................................................................................ 13

Cal. Govt Code 12926.1(c) ................................................................................................................. 21Cal. Govt. C. 12940(h) ......................................................................................................................... 18Cal. Govt. C. 12900 to 12996 ............................................................................................................. 18Cal. Gov't. Code 12926(i)(1)(B) ............................................................................................................... 21Cal. Health & Safety Code 1278.5........................................................................................................... 8Cal. Health & Safety Code 1278.5(b)(1)(A) ............................................................................................ 8Cal. Health & Safety Code 1602.5........................................................................................................... 9Cal. Health & Safety Code 1635.1......................................................................................................... 10Cal. Health & Safety Code 1278.5(d) ......................................................................................................... 8Cal. Labor Code 1102.5(e) ....................................................................................................................... 8



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Cal. Labor Code 1102.6 ........................................................................................................................... 8U.S.C. 2615(b)(1) .................................................................................................................................. 18

OtherAuthoritiesAdv. Comm. Note to 2006 Amendment to FRCP 26(b)(2) ........................................................................ 4Judicial Council of California Civil Jury Instructions No. 2600 .............................................................. 13

Regulations2 Cal. Code of Regs. 7297.1(2).............................................................................................................. 132 Cal. Code of.Regs. 7297.7 .................................................................................................................. 112 Cal.Code.of Regs. 7287.8(b)..................................................................................................... 7, 11, 18



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I. EXECUTIVE SUMMARYPlaintiff David F. Jadwin (Plaintiff or Jadwin) is a disabled doctor who was formerly chair

of the Pathology department at Kern Medical Center (KMC or hospital), a large 60-doctor acute

care teaching hospital that is owned and operated by Defendant County of Kern (Defendant County or

County). [Plaintiff Material Fact (PMF) 5, 30]. Plaintiffs major depression disability was known to

his employer as early as 2003. [Separate Statement in Support of Defendants Motion for Summary

Judgment (Doc. 259), Defense Material Fact (DMF) 62, 63, 64].1

A. CREDENTIAL THREATAfter Plaintiff began blowing the whistle to his employer and, later, outside agencies, regarding

serious patient care issues and regulatory noncompliance, Plaintiff was subjected to retaliation. In

October 2005, Defendant County informed Plaintiff of its decision to place letters of reprimand into his

physician credentialing file (Credential Threat). [PMF 40-42, DMF 106]. The unwarranted Credential

Threat led to a recurrence of his chronic depression disability which necessitated medical leave. [PMF

75]. Plaintiff notified his employer in January 2006 of his need for medical leave and was thereafter

granted reduced work schedule medical leave whereby Plaintiff was permitted to work 2 to 3 days per

week. [PMF 13, 121]. Beginning January 2006, Defendant County did not pay Plaintiff for the days he

did not work. [PMF 226].

B. FORCED FULL-TIME LEAVEIn April 2006, several months into Plaintiffs reduced work schedule leave, Defendant Peter

Bryan, then-Chief Executive Officer of KMC (Bryan) observed that Yes, the Department of

Pathology continues to function well, as it has for many years, and, yes, you have made many positive

changes to the department [PMF 123]. He later testified that actual functioning of the department of

1 It is undisputed that, in 2003, Plaintiff told Marv Kolb, M.D., then-Chief Medical Officer andPlaintiffs direct supervisor, that he was depressed. There is no legal requirement that Plaintiff notifyeach and every officer at KMC of his disability, or that he use the word disability. In Kimbro vAtlantic Richfield Co. 889 F.2d 869 (9th Cir., 1989), the court held that notice to Plaintiffs supervisorwas imputed to the person(s) who made the final decisions regarding the adverse action. See alsoCalifornia Fair Employment and Housing Commission v. Gemini Aluminum Corp., 122 Cal.App.4th1004 (2004) (notice to ANY supervisor of plaintiffs limitations is sufficient to trigger theaccommodation duty.)



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[pathology] actually was fairly good [PMF 227] and that no complaints about Plaintiff were bubbling

up to him at the time [DMF160]; nevertheless, Bryan then proceeded to interfere with Plaintiffs medical

leave by ordering him onto full-time medical leave in April 2006 (Forced FT Leave) so as to burn up

Plaintiffs medical leave entitlement. [PMF 228]. This violated the California Family Rights Act

(CFRA) and the Family & Medical Leave Act (FMLA).

C. DEMOTION AND PAYCUTIn July 2006, after Plaintiff had been on Forced FT Leave as ordered by Bryan for almost 3

months, Bryan caused Plaintiff to be demoted by making a recommendation for removal of Plaintiff to

KMCs highest decisionmaking body, the Joint Conference Committee (JCC) [PMF 16-17], which the

JCC then approved (Demotion). [PMF 18]. The Demotion was accompanied by a more than $100,000

reduction (Paycut) in Plaintiffs base compensation (Base Pay). [PMF 48]. Bryans written

recommendation to the JCC stated that Plaintiff should be demoted based on Dr. Jadwins

unavailability for service because of extended medical leaves for non-work related ailments and solely

based on his continued non-availability. (emphasis added). [PMF 17, 122]. Defendant County was

interfering with and retaliating against Plaintiffs protected medical leave.

Moreover, Defendant Bryan and the County failed to give Plaintiff impartial adjudicators, notice

of the JCC vote, nor any opportunity to face his accusers or defend himself when depriving him of his

clearly-established contractual right to over $100,000 of Base Pay. [PMF 182-187]. Defendant Bryan

willfully and maliciously violated Plaintiffs due process rights. [PMF 123, 162, 15-16].

D. ADMINISTRATIVE LEAVEPrior to the Demotion in July 2006, Bryan had ordered Plaintiff onto 90-day personal necessity

leave. Defendants claim Bryan was simply granting Plaintiffs request, but Plaintiff never made any

such request. [PMF 264, 265].

After that personal necessity leave ended, Defendant County permitted Plaintiff to return to work

in October 2006 as a demoted staff pathologist and placed him beneath a former subordinate whom

Plaintiff had hired and trained the year before and whom the County had elevated to Acting Chair of

Pathology. [PMF 21]. Plaintiff was subjected to further retaliation and harassment. [PMF 23, DMF 176-

190]. When Plaintiff complained in December 2006 about additional patient care issues and the



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harassment he was being subjected to [PMF 22-23, DMF 190], Defendant Irwin Harris, then-Chief

Medical Officer of KMC (Harris) and the County placed Plaintiff on administrative leave (Admin

Leave) pending resolution of a personnel matter. [PMF 24, 58, 229]. In so doing, Defendants Harris

and County violated County policy by keeping Plaintiff on administrative leave for more than 5 days

without obtaining written authorization from the County Administrative Office. [PMF 258].2 During the

Admin Leave, Plaintiff was physically restricted to his home during work hours [PMF 28, 59, 81] and

given no explanation or indication as to whether or when the Admin Leave would end. [PMF 24, 26,

60]. Plaintiff remained on Admin Leave for almost a year until his contract ended on October 4, 2007.

[PMF 64]. Defendant Harris was acting willfully and maliciously.

The Admin Leave denied Plaintiff his clearly-established, contractually-provided for right to

earn professional fees (Professional Fees), which had historically amounted to over $100,000 per year

[PMF 25]. Plaintiff was given no notice of the charges against him, nor any opportunity to defend

himself, nor any other due process. [PMF 193-197]. To date, Plaintiff has yet to personally receive an

explanation from Defendants why he was placed on Admin Leave despite his several requests to

Defendant County. [PMF 196, 204].

E. NONRENEWALDefendant County decided not to renew Plaintiffs contract (Nonrenewal) [PMF 29, 68], which

expired on October 4, 2007 [PMF 29], in further retaliation for Plaintiffs medical leaves and

prosecution of this lawsuit in defense of his legal rights under the Fair Employment & Housing Act

(FEHA) and FMLA. [PMF 68]. As Ray Watson, then-Chair of the Board of Supervisors for the

County of Kern, testified: 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 the was suing

us, that we decided not to renew his contract. [PMF 68]. As a member of the JCC, Watson had voted to

demote Plaintiff [PMF 67] and also participated in the JCCs decision not to renew Plaintiffs contract.

[PMF 67, 68].

2 An employers failure to follow its own policies and procedures gives rise to an inference of unlawfulmotive because it establishes that the work rules apply to everyone but Plaintiff. Deschene v. PinolePoint Steel Co. (1999) 76 Cal.App.4th 33;EEOC v. Board of Governors (7th Cir. 1992) 957 F.2d 424.



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formally demanded Defendant County take all appropriate affirmative steps to preserve evidence

relating to those claims, including notes taken at meetings with or concerning Dr. Jadwin. [PMF 231].

On March 29, 2007, Plaintiffs counsel again sent a letter to Barnes stating, I would like to remind you

that KMC is under a strict legal obligation to preserve and prevent spoliation . . . .. [PMF 232].

Nevertheless, at Plaintiffs 8/19/08 deposition of Barbara Patrick, former Chair of the Kern

County Board of Supervisors and member of the JCC who voted to demote Plaintiff (Patrick) [PMF

233], Patrick testified that: 1) she had taken notes at every JCC meeting [PMF 234], 2) she had shredded

all of her documents upon leaving office on January 8, 2007 [PMF 235], 3) she had thrown out

documents which included JCC meeting agendas on the margins of which she had taken notes [PMF

236], and 4) Kern County counsel had never contacted her regarding preservation of documents and

evidence in connection with Plaintiffs lawsuit. [PMF 237]. It should be noted that Defendants failed to

produce a single JCC meeting agenda in response to Plaintiffs numerous discovery demands. [PMF

238]. Moreover, in the absence of the spoliated agendas, Patrick was able to recall very little about the

JCC meeting at which the Demotion was approved. [PMF 239].

Patricks spoliated notes were material evidence relating to the circumstances surrounding the

Demotion and Paycut and therefore relevant to Plaintiffs allegations that whistleblower retaliation,

medical leave interference/retaliation and disability discrimination were motivating factors in the

Demotion, that Defendant County acted willfully in engaging in FMLA interference with respect to the

Demotion, that Defendant Bryan acted with malice in causing violation of Plaintiffs constitutional due

process rights with respect to the Demotion, and that Defendants alternative explanations therefor are

pretext, among other things.

Likewise, at Plaintiffs 8/21/08 deposition of David Culberson, former CEO of KMC who

decided to place Plaintiff on Admin Leave (Culberson) [PMF 240], Culberson testified that: 1) he had

taken notes at each of up to 10 meetings of the KMC leadership team regarding Plaintiff and the

Pathology department [PMF 241], 2) Culberson destroyed those notes prior to January 2007, by

shredding them, ripping them up, crumpling them up and throwing them in the trash [PMF 242], and 3)

no one ever contacted him regarding preservation of documents and evidence in connection with

Plaintiffs lawsuit. [PMF 243]. In the absence of those notes, Culberson was unable to recall important



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details, such as the allegations against Plaintiff that led to the Demotion as related to him by Harris

[PMF 244], the HR directors investigative findings as to disruption and chaos in the Pathology

department at the end of 2006 just prior to the Admin Leave [PMF 245], Dr. Dutts investigative

findings regarding Plaintiffs alleged misconduct at the end of 2006 [PMF 246], etc.

Culbersons spoliated notes were material evidence relating to the circumstances surrounding the

Demotion, Admin Leave and Nonrenewal and therefore relevant to Plaintiffs allegations that

whistleblower retaliation, medical leave interference/retaliation and disability discrimination were

motivating factors in the Demotion, Admin Leave and Nonrenewal, that Defendant County acted

willfully in engaging in FMLA interference with respect to the Demotion, Admin Leave and

Nonrenewal, that Defendant Harris acted with malice in causing violation of Plaintiffs constitutional

due process rights with respect to the Admin Leave, and that Defendants alternative explanations

therefor are pretext, among other things.

Finally, Scott Ragland, former President of the Medical Staff and member of the JCC

(Ragland) [PMF 247], testified at his 8/22/08 deposition that no one ever contacted him regarding

preservation of documents and evidence in connection with Plaintiffs lawsuit. [PMF 248]. He also

testified that he deleted all of his emails, including emails relating to Plaintiff [PMF 249], and sneered at

Plaintiffs consternation over the spoliation.

Q. Okay. Well, why dont we take the second question. Do you have this E-mail whereDr. Jadwin told you no one?A. No.Q. Is that because you deleted it as well?A. Yes.Q. Why did you delete these E-mails?A. Because I delete my E-mails.Q. You delete -- what was -- Im sorry, Doctor. You just engaged in a facial expression.What was the significance of that?A. I think your questions silly.

[PMF 250].Despite the fact that Culberson recalled that Ragland had investigated Plaintiff just prior to the

Admin Leave [PMF 251], that Ragland was one of Plaintiffs most vocal critics and that Ragland is cited

numerous times by Defendants in support of the many smears against Plaintiff contained in their motion,

Ragland testified that he produced only a single document in all of discovery in this action, and even

that was not in response to any discovery-related request from an attorney (as he never received one) but



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on his own initiative. [PMF 252]. In the absence of the spoliated documents, Ragland was able to recall

little. [PMF 253].

The foregoing spoliation not only gives rise to an adverse inference defeating Defendants

Motion for Summary Judgment, it demands sanction.

2. Defendants Failed to Plead Affirmative Defenses

Defendant County asserts a statutory affirmative defense to oppositional retaliation liability

under FEHA (but not FMLA): that it engaged in the Demotion, Admin Leave and Nonrenewal for a

legitimate business reason, excusing it from liability pursuant to 2 C.C.R. 7287.8(b). (Doc. 262, 7:20-

8:25). Defendants also assert the affirmative defense that the amendment by which the Paycut was

instituted on July 10, 2006 (Paycut Amendment) represented a new employment contract which

completely supplanted, and extinguished all claims under, the old one. (Doc. 262, 30:17-31:5.5; 31:21-

22).

Defendants failed to assert either of these defenses in their pleadings; nor do they have any

excuse for this dilatory behavior. As recently as last month, Plaintiff had filed the Second Amended

Complaint (Doc. 241). After unsuccessfully opposing Plaintiffs motion for leave to amend, Defendants

filed their Answer to the Amended Complaint (Doc. 246) on October 27, 2008 a month ago. Plaintiff

has been prejudiced. These unpleaded defenses should be barred.

B. ADVERSE EMPLOYMENT ACTIONS COMMON TO COUNTSDefendants argument that Plaintiff did not suffer an adverse employment actions is baseless.

(Doc. 262, 8:1-2). Without citing any specific facts to support this conclusory statement, Defendants are

making a bald assertion of an ultimate fact and that is insufficient. SeeSchneider v. TRW, Inc. (9th

Cir. 1991) 938 F2d 986, 990991. For sake of economy, Plaintiff hereby incorporates Section II.C of his

Motion for Summary Judgment (Doc. 272, 4:24.5-8:14) in rebuttal of Defendants assertion.

Defendants elsewhere state that the Nonrenewal was not an adverse action because Plaintiff had

no right to a renewed employment agreement and Plaintiff testified at his deposition that he did not

want to have his contract renewed anyway. (Doc. 262, 6:5-9).

First, Defendants misstate the law.Board of Regents v. Roth stands for the opposite proposition.

There, the court looked for something approaching a common law of re-employment a laPerry v



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Sindermann and failed to find it. 408 U.S. 564, 578 n.16 (1972)(citing to Perry v Sindermann 408 U.S.

593, 602 (1972)). Here, it is incontrovertible that Plaintiff had the equivalent of tenure. His position at

KMC was core physician, a permanent position [PMF 69-70]. In fact, since October 2000, the contract

of only one member of KMCs sizable medical staff has not been renewed [PMF 71], and that was due

to a breakdown in negotiations over compensation. [PMF 254].

Second, Defendants misstate Plaintiffs deposition testimony by suggesting he did not want

renewal of his contract anyway. [DMF 46]. Plaintiff testified he had expected his contract to be renewed

as of October 4, 2007, and that he would have accepted such renewal, albeit under protest over his

demoted status and reduced Base Pay. [PMF 254].

C. COUNTS 1 & 2: WHISTLEBLOWER RETALIATIONDefendant County contends that Plaintiff engaged in only one instance of whistleblowing on

November 28, 2006, when Plaintiff submitted complaints (Outside WB Reports) to the California

Department of Health (DHS), the College of American Pathologists (CAP) and the Joint

Commission for the Accreditation of Hospital Organizations (JCAHO). (Doc. 262, 4:12-15). But

California Health & Safety Code 1278.5 also prohibits retaliation against any employee of a health

facility who complains to his employer about unsafe patient care or conditions. H&S 1278.5(b)(1)(A);

see alsoMendiondo v. Centinela Hosp. Medical Center521 F.3d 1097, 1105 (9th Cir. 2008). Likewise,

California Labor Code 1102.5(e) expressly protects employees of a government agency who make a

report to their employer.

Plaintiff submitted several complaints to KMC leadership, all of them within 120 days prior to

adverse employment actions, giving rise to a rebuttable presumption of retaliation which shifts the

burden of production to Defendants under H&S 1278.5(d). Under California Labor Code 1102.6, the

proximity in time also shifts the burden of proof at trial to Defendants to demonstrate by clear and

convincing evidence that such adverse actions would have occurred for legitimate, independent reasons.

1. October Conference

At a monthly KMC oncology conference held on October 12, 2005 (October Conference),

Plaintiff made a protected report to medical staff leadership on the medical appropriateness of a radical

hysterectomy for a KMC patient that had relied on inaccurate outside pathology reports, as well as



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unsafe conditions created for other patients by the lack of a KMC policy requiring internal confirmatory

review of all outside pathology reports prior to treatment (IPR) [PMF 89]. Defendants Harris and the

County made the Credential Threat just days later, on October 17, 2005, retaliating specifically against

his October Conference presentation. [DMF 106-116].

2. PCCs

Starting January 9, 2006, Plaintiff made protected reports to Bryan regarding noncompliance

with H&S 1602.5, specifically failure to maintain accurate and complete records of patient blood

transfusions (so-called product chart copies or PCCs) in accordance with accreditation standards.

These reports culminated in Plaintiffs demand to Bryan on April 17, 2006, to set up a meeting with

County Counsel to resolve the PCC issue. [PMF 96, 97]. That same day, Bryan sent a memo to Plaintiff

threatening to demote him. [PMF 99]. Then, on April 28, 2006, Bryan forced Plaintiff onto Forced FT

Leave [PMF 123] and on July 10, 2006, the County demoted him. The California Department of Health

Services later determined during the course of an inspection that KMC was failing to comply with PCC-

related regulations [PMF 98].

3. Radical Prostatectomy

On December 6, 2006, Plaintiff made a protected report to Culberson regarding a KMC patient

who was scheduled for imminent radical prostatectomy despite pathologic findings of cancer which

were inconclusive. [PMF 114]. The next day, Plaintiff was placed on Admin Leave. Subsequent biopsies

which were conducted ultimately came back negative for cancer, leading to conflicting diagnoses by

outside experts. [PMF 114]. The patient ultimately elected not to proceed with the prostatectomy. [PMF

266].

4. Martinez Tipoff

Defendants contend that Plaintiffs tipoff of coming outside inspections to Gilbert Martinez

(Martinez), then-Manager of Laboratory Services, prior to Thanksgiving 2006 did not constitute

whistleblowing. But adverse actions against employees whom employers suspect or believe intend to

file workplace safety complaints constitutes whistleblower retaliation.Lujan v. Minagar124

Cal.App.4th 1040, 1045-46 (2005). Martinez testified that Plaintiff warned him of coming outside

inspections around Thanksgiving and that he informed his supervisor, David Hill, Director of



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Ambulatory Services (Hill), a few days later. [PMF 55]. Dr. Philip Dutt, Acting Chair of Pathology,

testified as PMK for the County that by the Monday following Thanksgiving 2006, he had had a

conversation with Harris regarding Plaintiffs statement to Martinez that he was going to report the

hospital to JCAHO, CNPS [sic] . . . either the Friday before Thanksgiving that year or the Monday after

that weekend. [PMF 255]. Dutt then suggested to Harris that KMC retain someone who had experience

with CAP inspections to conduct a mock unannounced inspection. Harris quickly approved Dutts

proposal on either the Friday or the Monday before Thanksgiving. [PMF 256]. Two weeks later, on

December 7, 2006, Defendants Harris and the County placed Plaintiff on Admin Leave. [PMF 58, 229].

5. Skull Flaps

Included in the Outside WB Reports was Plaintiffs protected report that patient skull flaps

(Skull Flaps) were being stored in an unlicensed KMC freezer in violation of H&S 1635.1. [PMF

102, 110]. On January 4, 2007, Dutt received confirmation that Plaintiff had complained to CAP about

unlicensed tissue storage and informed Culberson. [PMF 111].

On May 1, 2007, 6 months after Defendants learned of Plaintiffs tipoff to Martinez and 4

months after they learned of Plaintiffs report to CAP about Skull Flaps, Defendant County informed

Plaintiff that it would not be renewing Plaintiffs contract. [PMF 63]. During that time, Plaintiff was

continuously on Admin Leave, was restricted to his home during work hours, and was given no notice of

the charges against him, whether he would be permitted to respond or return to work, or even when the

leave would end. [PMF 59, 62].

6. Smear Campaign

In response to his whistleblowing, Defendants targeted Plaintiff with a smear campaign of

disparate treatment, heightened scrutiny, retaliatory peer review and baseless accusations to label him

arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous, unfriendly, non-

collaborative, and uncooperative. [Answer (Doc. 246), 12:14-22; Colarossi v. Coty USA, Inc. 97 Cal.

App. 4th 1142 (heightened scrutiny was retaliatory);Richards v. CH2M Hill, Inc. 26 Cal. 4th 798, 803

(baseless accusations that Plaintiff not disabled and milking the system were harassing.)] [DMF 69-

190].

D. COUNTS 3 & 4: MEDICAL LEAVE RETALIATION



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Defendants legal analysis regarding medical leave retaliation is woefully deficient.

First, Defendants suggest that the affirmative defense set forth in 2 C.C.R. 7287.8(b) applies to

medical leave retaliation and then proceeds to launch into a discussion of Defendants allegedly

legitimate business reasons for their actions independent of medical leave retaliation. However, Section

7287.8(a) makes it clear that that regulation is related only to oppositional/participatory retaliation under

CFRA. The discussion in Defendants motion regarding Count 3 is irrelevant and insufficient.3

(Doc.

262, 7:7-9:7).

Second, Defendants motion suggests that FMLA interference analysis devolves to an analysis of

whether Plaintiffs medical leave rights were chilled, which in Defendants view is satisfied by

exhaustively cataloging all of the many ways Defendant County allegedly complied and Plaintiff

allegedly didnt comply with CFRA and FMLA. (Doc. 262, 10:8-12:13). This entire analysis has no

support in caselaw and is irrelevant to a leave retaliation analysis.

To establish medical leave retaliation, a plaintiff need only show: (1) his employer was covered

by CFRA/FMLA; (2) he was an employee eligible to take medical leave; (3) he exercised his right to

medical leave; and (4) thereafter, his employer subjected him to an adverse employment action because

of his exercise of his right to medical leave. See 2.C.C.R. 7297.7; see alsoBachelder v. America West

Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001).

Elements 1-3 are undisputed that [PMF 4, 36, 120, 121]. As for element 4, the 9th Circuit in

Bachelder v. Am. W. Airlines, Inc. established that Plaintiff need only prove by a preponderance of the

evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to

terminate her. 259 F.3d 1112, 1124 (9th Cir. Ariz. 2001). Under this analysis, theMcDonnell Douglas

burden shifting framework does not apply.Id. at1131. While Defendants brief did not contend that

Defendant County would have taken the actions it did anyway for legitimate, independent reasons,

consideration of Plaintiffs medical leaves notwithstanding, such argument would have been to no avail

3 Section 7287.8(a) states: It is unlawful for an employer or other covered entity to demote [. . .] orotherwise deny any employment benefit to an individual because that individual has opposed practicesprohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in aninvestigation, proceeding, or hearing conducted by the Commission or Department or their staffs.



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anyway.Id. at 1131 (9th Cir. Ariz. 2001). In short, once Plaintiff establishes that his medical leaves

were a negative factor in the Demotion and the Nonrenewal, the analysis ends there. Liability is

established.

The 9th Circuit further stated in a footnote that the defendants consideration of the plaintiffs

continued unavailability further established that the plaintiffs medical leave had been a negative

factor in her termination:

We note that it appears fairly clear in any event that Bachelder would not have beenfired had she not taken the protected leave. The supervisor who recommended thatBachelder be fired admitted in his deposition that the basis for her termination, for themost part, was availability, and characterized her on-time performance and Employeeof the Month deficiencies as minor performance issues. Moreover, America Westswitnesses testified at the trial that Bachelders attendance was the primary reason for

firing her, and the district court ultimately found that Bachelder failed to contradict theirtestimony that the likely reason for her termination was because of her continuedunavailability in 1996.Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1131 (9th Cir. Ariz. 2001) n22(emphasis added).

Here, it is incontrovertible that Defendant County considered Plaintiffs medical leave as a

negative factor in the Demotion and Nonrenewal. In the case of the Demotion, Plaintiffs continued

unavailability due to medical leave wasnt just a negative factor, it was the only factor. Defendants

own motion asserts: The evidence is undisputed that Defendants removed Plaintiff from the

chairmanship only because of his physical absence from the hospital. (Doc. 262, 31:9-10) (emphasis

added). When Bryan initiated the KMC procedure to demote Plaintiff, his memo to the JCC stated that

his recommendation was based on Plaintiffs unavailability for service because ofextended medical

leaves and solely based on his continued non-availability. [PMF 17] (emphasis added). The JCC

then took Bryans advice and they did it for the reason that he gave in his memorandum. [DMF 33].

As in the case ofBachelder, it is incontrovertible that Plaintiff was demoted for continued non-

availability due to protected leave.

Regarding the Nonrenewal, Watson testified: 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. [PMF 68]. It is

incontrovertible that Plaintiffs medical leave was also a negative factor in the Nonrenewal.

In fact, Defendant County, through its PMK, testified that punishing employees for taking



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medical leave was sometimes appropriate. [PMF 150].

E. COUNTS 4 & 5: MEDICAL LEAVE DENIAL/INTERFERENCEDefendants contend that Every request for leave that Plaintiff made was granted. (Doc.

262:10:10) and exhaustively catalog all of the many ways Defendants allegedly complied with medical

leave laws (Doc. 262, 11:7-12:13). However, even if true, 99 instances of compliance wont blot out 1

instance of egregious non-compliance. And the evidence establishes that such egregious non-compliance

did occur. Defendants discussion is therefore insufficient.

An employers suggestion that an employee take different dates of leave in order to

accommodate the employer can constitute impermissible FMLA interference. SeeWilliams v. Shenango,

Inc. 986 F. Supp. 309, 320-21 (W.D. Pa. 1997) (employers motion for summary judgment denied where

suggestion of rescheduling leave may constitute interference with FMLA rights). The evidence

establishes that, after Plaintiff requested an extension of his medically-required part-time medical leave

on April 26, 2006 [PMF 13, 14], Defendant Bryan refused and forced him onto full-time medical leave

on April 28, 2006, so as to exhaust his medical leave as soon as possible. [PMF 228].

Defendants take special pains in their brief to smear Plaintiff with many alleged violations of

Defendant Countys internal procedures. (Doc. 262, 10:11-13; 11:2-112). Plaintiffs disputes them [DMF

11-22]; moreover, they have no relevance to Counts 4 and 5 and are insufficient. Plaintiff was required

only to provide reasonable notice to Defendant County of his need for medical leave, including its

expected timing and length, and that was all he was legally required to do. Govt C. 12945.2; CACI

No. 2600;Mora v. Chem-Tronics Inc., 16 F.Supp. 2d 1192, 1202, 1217 (S.D. Cal. 1998); see also 2

C.C.R. 7297.1(2). Sandra Chester, Defendant Countys then-HR Director, testified in deposition that

Plaintiffs email request to Bryan for extension of part-time medical leave on March 16, 2006, the day

after his initial medical leave expired, was timely:

Q: You know, so this e-mail, under your normal program in your tenure at KMC, wouldconstitute reasonable notice of the need for an extension of his medical leave that shouldhave generated an employee information packet being sent to him at that time. Is thatcorrect?A. Absolutely.[PMF 128].

It is incontrovertible that Plaintiff gave reasonable notice of his need for an extension of medical



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his execution of just such an amendment. [PMF 47, 48, 179]. In short, it is incontrovertible that Plaintiff

had a constitutional property right to the over $100,000 reduction in his Base Pay.

Defendants state an affirmative defense that the Paycut Amendment was a new contract that

completely supplanted and extinguished all rights under the old one. However, an amendment of a

contract cannot be presumed to be a novation; that requires evidence that the parties intended the rights

and obligations of a new contract be substituted for those of the old one.Ayoob v. Ayoob (1946) 74

Cal.App.2d 236, 250-251;Blumer v. Madden (1932) 128 Cal.App. 22, 24. Defendants present no such

evidence. In fact, Plaintiff placed Defendants on notice by letter dated June 29, 2006, that he intended to

file suit challenging the Demotion. [PMF 184].

Defendants further argue frivolously that Defendant Bryan had no part in the Demotion and is

therefore relieved of liability. However, it is undisputed that Bryan initiated the demotion process in the

first place by submitting a recommendation to the JCC that Plaintiff be removed from chairmanship, and

that the JCC took Bryans advice and they did it for the reason that he gave in his memorandum.

[DMF 33].

2. Admin Leave

Plaintiff had a constitutional property right to Professional Fees. His employment contract

expressly set forth a mutually explicit understanding with Defendant County that Plaintiff would be paid

Professional Fees [PMF 190]. Plaintiffs Professional Fees historically amounted to over $100,000 per

year. [PMF 25]. When Defendants County and Harris decided to place Plaintiff on Admin Leave [PMF

229], they barred him from earning Professional Fees, depriving him of his constitutional property right

to them. [PMF 25, 56].

In fact, Defendant County was acutely aware of Plaintiffs contractual interest in Professional

Fees. In his letter to Plaintiff regarding the Paycut, Culberson explained that, as a demoted staff

pathologist with a drastically reduced base salary, Plaintiff would nevertheless be able to take advantage

of his reduced administrative duties in order to increase his Professional Fees-based income [PMF 191].

Ironically, it was Culberson who then denied Plaintiff the opportunity to earn those same Professional

Fees when he decided to place Plaintiff on Admin Leave [PMF 192].

More importantly, Defendant Countys own policy explicitly states that Defendants were not



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permitted to place Plaintiff on Admin Leave, and thereby deprive Plaintiff of Professional Fees, in the

absence of good cause. The hallmark of property ... is an individual entitlement grounded in state

law, which cannot be removed except for cause. Shoemaker v County of Los Angeles (1995 2d. Dist.)

37 Cal.App.4th 618, 630 (citingLogan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 430).

Defendants motion admits: Plaintiff was placed on paid administrative leave on December 7, 2006

pursuant to the Kern County Policy and Procedures Manual (Manual). (Doc. 262, 33:11-12).

Paragraph 139 (Disciplinary Actions) of the Manual states in relevant part:

Any employee may be dismissed, suspended, reduced in rank and/or compensation,reprimanded or otherwise disciplined for any action or conduct which in the judgment ofthe appointing authority provides good cause for discipline under the Civil ServiceRules or other laws, regulations, or policies [. . . .] .6Administrative Leave with Pay. A

department head may place an employee on administrative leave with pay if thedepartment head determines that the employee is engaged in conduct posing a danger toCounty property, the public or other employees, or the continued presence of theemployee at the work site will hinder an investigation of the employees allegedmisconduct or will severely disrupt the business of the department [. . . .][PMF 258] (emphasis added).

It is incontrovertible that Plaintiff had a contractual right to earn Professional Fees and that

Defendants Harris and County were not permitted to place Plaintiff on Admin Leave, and deprive

Plaintiff of Professional Fees, without cause. Plaintiff thus had a constitutional property right to those

Professional Fees and was entitled to due process relating to their deprivation.Defendants make a frivolous argument that Defendant Harris had no part in placing Plaintiff on

Admin Leave and is therefore relieved of liability. (Doc. 262, 32:19-21). However, in its verified

response to Plaintiffs Interrogatory No. 42, Defendant County identified Harris as one of 4 participants

in the decision to place Plaintiff on administrative leave [PMF 229], depriving him of Professional Fees

without any due process whatsoever. [PMF 24, 26, 60].

3. Nonrenewal

A partys expectation of continued employment may be based on rules or understandings,

entitling him to constitutional due process.Roth v. Veterans Admin. of United States 856 F.2d 1401,

1409 (If Roth was a permanent, non-probationary VA employee, he was clearly entitled to procedural

protections before being deprived of his job.) (emphasis added). In Board of Regents v. Roth, a case

which Defendants incorrectly cite in support of their motion, the court considered the question of



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whether a plaintiff had a constitutional right to due process with respect to continued employment by

looking for something approaching a common law of re-employment a laPerry v Sindermann. 408

U.S. 564, 578 n.16 (1972). Perry v Sindermann established:

A teacher, like the respondent, who has held his position for a number of years, might beable to show from the circumstances of this service -- and from other relevant facts --that he has a legitimate claim of entitlement to job tenure. Just as this Court has foundthere to be a common law of a particular industry or of a particular plant that maysupplement a collective-bargaining agreement, Steelworkers v. Warrior & Gulf Co., 363U.S. 574, 579, so there may be an unwritten common law in a particular universitythat certain employees shall have the equivalent of tenure.408 U.S. 593, 602 (1972).

Here, it is incontrovertible that Plaintiff had the equivalent of tenure and was a permanent,

non-probationary employee of Defendant County. His position at KMC was core physician, a

permanent position as acknowledged by Bryan in deposition testimony. [PMF 69]. There was a mutually

explicit understanding that his contract would be continuously renewed [PMF 70]. Defendant County

had a policy of renewing the contracts of all of its non-probationary physicians [PMF 70] since

October 2000, the contract of only one member of KMCs sizable medical staff has not been renewed

[PMF 71] , and that was due to a breakdown in negotiations over compensation. [PMF 254].

It is incontrovertible that there was a common law of re-employment at KMC, that Plaintiff

was a permanent, non-probationary employee, and that Plaintiff therefore had a constitutional propertyright to continued employment by Defendant County.

4. Qualified Immunity

Defendants argue Bryan and Harris enjoy qualified immunity because they did not violate a

clearly established right. (Doc. 262, 32:1-23). However, the 9th

Circuit has established that when a

property interest is determined to be constitutionally protected under the Perry v Sindermann mutually

explicit understandings standard, it is clearly established and the defendant is not entitled to qualified

immunity.Roberts v. College of Desert870 F.2d 1411, 1416-17 (9th Cir. 1988) (Because we have

found that the understanding between Roberts and Dr. Stout satisfies the Perry standard, the defendants

are not entitled to immunity from liability for the Colleges failure to provide Roberts the rudiments of

due process.). Moreover, where pre- and post-deprivation procedures are absent, the offending officials

are not entitled to qualified immunity.Brewster v. Bd. of Educ. 149 F.3d 971, 987, fn.9. (9th Cir. 1998)



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(Presumably, when an individual is given neither a predeprivation hearing nor a postdeprivation

hearing at which to contest the taking of his property, his clearly established due process rights have

been violated, because under no reading ofMathews could such a taking be constitutional. In that case,

the offending officials would not be entitled to qualified immunity.).

Plaintiff has already established supra that Plaintiff and Defendants had a mutually explicit

understanding that (i) Plaintiff would not be subjected to demotion and Base Pay reduction absent cause,

and (ii) Plaintiff would not be placed on administrative leave and deprived of his contractual right to

Professional Fees absent cause. It is also undisputed that Defendants gave Plaintiff neither a

predeprivation nor a postdeprivation hearing in the case of either the Demotion or the Admin Leave (In

the interests of economy, Plaintiff hereby incorporates the discussions contained in Sections II.L.4 and 5

of his motion for summary judgment (Doc. 272, 28:2-29:3; 29:20-27)). Hence, Plaintiff has

incontrovertibly established that neither Bryan nor Harris is entitled to qualified immunity with respect

to the Demotion and Admin Leave, respectively.

5. Stigma

Defendants discussion regarding stigma is inapposite. Stigma is relevant to establishing a

deprivation of liberty, not property. Smith v Siegelman (2003, 11th Cir. Ala) 322 F.3d 1290, 1296.

Plaintiff does not allege deprivation of liberty.

G. COUNTS 3, 10 AND 11: OPPOSITIONAL/PARTICIPATORY RETALIATIONBoth FEHA and FMLA provide protection for an employee who opposes any discriminatory

practices or participates in any proceeding under Govt C. 12900 to 12996. [Govt. C. 12940(h); 29

U.S.C. 2615(b)]. The protected activity of participation is expressly defined within the code as filed

a complaint, testified, or assisted in any proceeding under [Govt C. 12900 through 12996].Id.;

U.S.C. 2615(b)(1).

Defendant County asserts a statutory affirmative defense to oppositional retaliation liability

under FEHA (but not FMLA) pursuant to 2 C.C.R. 7287.8(b). As for Defendants allegedly

legitimate business reasons for the Demotion and the Admin Leave, Defendants cannot satisfy their

burden of proof with incontrovertible evidence. Regarding the Demotion, it is undisputed that

Defendants demoted Plaintiff solely due to unavailability for medical leave. [DMF 33, PMF 17].



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Plaintiffs unavailability due to medical leave cannot be a legitimate business reason for employment

action, as established in Section II.D supra and byBachelder v. America West Airlines, Inc., 259 F.3d

1112 (9th Cir. 2001).

Regarding the Admin Leave, Plaintiff disproves Defendants alleged reasons as non-credible

pretext supra at .

Regarding the Nonrenewal, Defendants brief does not even bother to allege a legitimate

business reason (Doc. 262, at 8:24-9:7). Instead, Defendants focus their efforts on contradicting the

sworn deposition testimony of Ray Watson, former Chair of the Board of Supervisors (Watson),

through use of sham declarations. However, a party cannot create an issue of fact by a declaration

contradicting his or her own deposition or other sworn testimony. SeeBlock v. City of Los Angeles (9th

Cir. 2001) 253 F3d 410, 419, fn. 2. The same rule applies to postdeposition affidavits that contradict the

affiants deposition testimony.Aerel, S.R.L. v. PCC Airfoils, LLC(6th Cir. 2006) 448 F3d 899, 907908

Bank of Ill. v. Allied Signal Safety Restraint Systems (7th Cir. 1996) 75 F3d 1162, 1169.

Here, Watson testified at his deposition that Defendant County decided not to renew Plaintiffs

contract in retaliation for his filing the instant lawsuit. Watson was asked twice if he recalled clearly that

this was the case and each time he answered yes:

Q. Okay. What about the nonrenewal? I mean, do you recall Dr. Jadwins physicalabsence being a reason for his nonrenewal of his contract?A. Well, it could be that. It could be the fact that I think by then he was -- probably wassuing us. So why would you want to establish a contractual relationship with somebodywhos suing you.Q. Okay. Well, he was also suing you at the time of his removal or actually at the timeof his --no, he wasnt. He wasnt. Okay. But I mean, you say why would you establish acontractual relationship with someone whos suing you, right?A. Right.Q. Was that -- does that mean -- are you just speculating now, just guessing, or was thata consideration for his nonrenewal?A. Well, I remember it being discussed.

[]

Q. Okay. But you recall it being discussed at the JCC meetings?A. Yes.[PMF 259].

Watson then re-affirmed a third time volunteering it on his own initiative that oppositional

retaliation was an additional motivating factor for the Nonrenewal:



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Q. So the question is: Youve mentioned that for the nonrenewal one of the reasons wasthat Dr. Jadwin wasnt available for work; is that correct or --A. My understanding was that he had -- he had been on medical leave, family leave, andhad 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.[PMF 260].

Defendants resort to frivolous arguments in their bid to contradict Watsons testimony, setting up

fallacious strawman arguments and knocking them down one-by-one.

Defendants point out Watson testified that he didnt recall discussion of Plaintiffs termination or

denial of his medical privileges. This proves nothing about the Nonrenewal and whether a

discussion about it occurred. Defendant County could have contemplated nonrenewal without

considering immediate termination or medical privileges denial. A discussion of one doesnt

necessitate or preclude a discussion of the others. Moreover, the testimony Defendants cite to

appeared over 100 pages and 2 hours earlier in the deposition transcript than the Nonrenewal

discussion and arose in response to a completely unrelated line of questioning. [PMF 261].

Defendants then point out Watson couldnt recall a formal JCC vote to not renew Plaintiffs

contract. This proves nothing about whether or not the JCC decided to not renew Plaintiffs

contract A JCC decision is not preconditioned on a JCC vote occurring. In any event, Watson

confirmed several times that he clearly recalled the JCC deciding on the Nonrenewal.

Defendants then reference declarations submitted by members of the Kern County Board of

Supervisors asserting that the Board never discussed or made any decision regarding nonrenewal

or expiration of Plaintiffs contract. This proves nothing about whether such a decision or

discussion occurred at the JCC level. The absence of a decision by the Board of Supervisors in

no way precludes a decision being made by the JCC. Again, Watson confirmed several times that

he clearly recalled the JCC deciding on the Nonrenewal.

Watsons testimony is more than clear. Defendants sham declarations should be disregarded.

There is no question that Defendant County engaged in oppositional/participatory retaliation against

Plaintiff when it decided not to renew his contract. Defendants motion should be denied.

H. COUNT 6: DISABILITY DISCRIMINATIONPlaintiff incorporates by reference the points and authorities set forth in Sections II (I) & III (I)

of Plaintiffs Corrected Motion for Full or Partial Summary Judgment regarding his Sixth Claim for



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Disability Discrimination and Defendants Eleventh Affirmative Defense re Workers Compensation

Preemption.

Contrary to Defendants assertion, Plaintiff has expressly stated that his Sixth Claim for

Disability Discrimination if brought against Defendant County. [Defendants Motion (Doc. 262) at

22:14-23; SAC (Doc. 241) at 188, 35:16-18].

Also contrary to Defendants assertion, the FEHA covers both industrial and non-industrial

injuries. [Defendants Motion (Doc. 262) at 13:7-9; City of Moorpark v. Superior Court, 18 Cal. 4th

1143 (1998). Further, Defendantsanalysis of Plaintiffs disability claim under the ADA is inapposite

because Plaintiff is bringing his claim under the FEHA. [SAC (Doc. 241) at 188, 35:16-18]. The

California Legislature has rejected both the ADA substantially limits test and the work limitation test

relied on by Defendants. [Govt C. 12926.1(c), 12926(i)(1)(B); Defendants Motion (Doc. 262) at

14:10-13].

It is undisputed that Plaintiff suffered from known chronic depression that limited his ability to

work full-time as Chair of Pathology at KMC from December 16, 2005 to September 6, 2006, requiring

accommodation in the form of reduced work schedule medical/recuperative leave. [DMF 10, 14, 65 &

67; PMF (1/9/06 memo) 144-148 & 154]. It is undisputed that Defendant County accommodated

Plaintiffs chronic depression from December 16, 2005 to April 28, 2006, when Defendant Bryan forced

Plaintiff to take full-time leave until October 4, 2006. [DMF 20-21; PMF 155, 159]. The evidence shows

that Plaintiff was otherwise qualified because Defendant Bryan admitted that Plaintiff was

successfully performing his duties as Chair of Pathology with accommodation just prior to revoking

Plaintiffs accommodation. [PMF 141, 227 ].

Defendants own admissions establish that Defendant Bryans revoking of Jadwins

accommodation was the sole reason for the Demotion and Paycut, and a motivating reason for the

Nonrenewal, and are direct evidence of disability discrimination. [Humphrey v. Memorial Hosps. Assn.

(9 Cir. 2001) 239 F. 3d 1128, 1139-1140 (the conduct resulting from a disability is considered part of

the disability, rather than a separate basis for termination. The link between the disability and the

termination is particularly strong where it is the employers failure to reasonably accommodate a known

disability that leads to discharge for performance inadequacies resulting from that disability); PMF



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150].

A prima facie case of age discrimination may be established by either (a) direct evidence of

discriminatory intent, Transworld Airlines v. Thurston, 469 U.S. 111, 105 (1985), or (b) by proof of

disparate treatment based upon circumstantial evidence using the standards set forth inMcDonnell

Douglas v. Green, 411 U.S. 792 (1973). Direct evidence of discriminatory intent cannot be rebutted by

articulating or producing evidence of legitimate, non-discriminatory reasons. [Brown v. Sierra Nevada

Memorial Hospital, 849 F.2d 1186 (9th Cir. 1988)]. Because Plaintiff relies on direct evidence to

establish Defendant Countys discriminatory motive, the McDonnell-Douglas burden-shifting

framework does not apply, and Defendant County is precluded from arguing that it had a legitimate

reason for the Demotion, Paycut, and Nonrenewal.

If the court does not strike Defendants improper Section E, then it must consider Defendants

post-hoc attempt to attribute the Demotion, Paycut, and Non-renewal to any reasons than those already

admitted as evidence of pretext. [EEOC v. Sears Roebuck Co. (4th Cir. 2001) 243 F.3d 846, 853 ("[A]

factfinder could infer from the late appearance of [the employer's] current justification that it is a post-

hoc rationale, not a legitimate explanation for [its] decision not to hire [the employee]."); Payne v.

Norwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080 ("A rational trier of fact could find that [the

employer's] varying reasons shows that the stated reason was pretextual, for one who tells the truth need

not recite different versions of the supposedly same event.").

To the extent that Defendants offer evidence of Plaintiffs conduct to justify his placement on the

Admin Leave [DMF 69-190, PMF 150, 267], the Court view the totality of the circumstances in the light

of the fact that both Defendant County and Dr. Dutt have admitted harboring unlawful animus towards

individuals with disabilities who may need to take medical/recuperative leave. [OMary v. Mitsubishi

Electronics of America, Inc., 59 Cal. App. 4th 563, 574-75 (1997) (On occasions where there is

evidence of clear discriminatory intent, it is like a gold nugget which happens to be lying on the ground.

You do not throw it away as if it were so much dross. To put the idea in typical evidentiary terms,

evidence of clear discriminatory intent is overwhelmingly probative in a discrimination case because it

shines the spotlight on the very thing which is the focus of the litigation.); [DMF 69-190, PMF 150]

Defendant County and Dr. Dutt acted on this unlawful animus as soon as Plaintiff indicated his intent to



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return to work from medical/recuperative leave. Dr. Dutt asked County Counsel if he could prevent Dr.

Jadwin from taking any further leave as a condition of his return to work. [PMF 267]. The disparate

terms and conditions regarding Plaintiff's hours of work and productivity contained in Amendment 1 to

Dr. Jadwins employment contract of 11/12/02 achieve this goal. [PMF 267].

Defendant County's and Dr. Dutt's admitted unlawful animus also taints all of their dealings with

Plaintiff subsequent to his taking medical/recuperative leave. [Dee v. Vintage Petroleum, Inc. (2003)

106 Cal.App.4th 30 (supervisor's pattern of mistreatment is illuminated by a single racial remark);

Bowen v. Missouri Department of Social Services, 311 F.3d 878, 884 (2002) (Where supervisors and

other harassers used epithets with clear racial content, it can be inferred that racial animus motivated

not only [their] overtly discriminatory conduct but all of [their] offensive behavior toward [plaintiffs]".

Dr. Dutt participated in the smear campaign targeting Dr. Jadwin in retaliation for his whistleblowing,

subjecting him to heightened scrutiny and unwarranted criticism until Plaintiff was placed on Admin

Leave. [DMF 69-190, PMF 267].

The evidence is so strongly in Plaintiffs favor that the court must deny Defendants motion for

summary judgment, and should grant summary adjudication on all elements of Plaintiffs disability

discrimination claim except the amount of damages.

I. COUNT 7: FAILURE TO ACCOMMODATEPlaintiff incorporates by reference the points and authorities set forth in Section II(K) of

Plaintiffs Corrected Motion for Full or Partial Summary Judgment, and Sections D, E, & H, infra.

An employer is required to modify it's policies and procedures to provide reasonable

accommodation. [Gov't Code 12926(n) Jensen v. Wells Fargo Bank(2000) 85 Cal.App.4th 245, 263

(holding job open while employee takes recuperative leave was reasonable accommodation).

Defendantsreliance on Swonke v. Sprint, Inc. 327 F.Supp.2d 1128(N.D. Cal. 2004) for support of its

contention that an employer may force an employee to take full-time leave is also misplaced. Swonkes

doctors notes precluded him from performing any work, thus requiring his employer to place him on

full-time leave until he obtained a release to work. Plaintiffs psychiatrist never precluded him from

performing any work. [PMF 146]. It was illegal for Defendant County to require Dr. Jadwin to take

more recuperative leave than medically necessary.DFEH v. California State University, FEHC Dec. No



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87-28 at page 9 (forcing complainant to take involuntary leave is not a reasonable accommodation);

DFEH v. Ford of Simi Valley, Inc. (2005) FEHC Dec. No. 06-02 at page 12 (employer failed to

accommodate complainant by failing to return him to work on his release to part-time work).

Raine v. City of Burbank 135 Cal.App. 4th 1215 (2006) is also distinguishable. InRaine, the City

was not required under FEHA to convert an injured police officers temporary, light-duty

accommodation in a front-desk position into a permanent position once the officers temporary disability

became permanent because the officer sought reclassification of front-desk position from a civilian

position to a sworn-officer position, and city was not required to reclassify the front-desk job to

accommodate the officer.Id. at 901, 1223-1124. Unlike Raine, Dr. Jadwins disability was chronic not

permanent; Dr. Jadwin did not request permanent light work as an accommodation, and no

reclassification of Dr. Jadwins position was required to allow him to work part-time as an

accommodation.

As an accommodation, an employer must provide an employee with disabilities with similar

assistance and benefits that it offers others. Prillimanv. United Air Lines, Inc. 53 Cal.App.4th 935, 950-

51 (1997). Defendant Bryans explanation of why he conditioned Dr. Jadwins continuance as Chair of

Pathology on his full-time attendance at KMC is pretextual. Defendant County allowed Dr. Tai Yoo

attend KMC part-time as Chair of Psychiatry, so must also allow Dr. Jadwin to attend KMC part-time as

Chair of Pathology as an accommodation of his disabilities. [DMF 25]. Moreover, if Defendant County

believed that Plaintiffs accommodation wasnt working, then it had a duty to engage in an interactive

process regarding other possible accommodations.Humphries v. Memorial Hospitals

Association (9 Cir. 2001) 239 F.3d 1128, 1138 (...the employers obligation to engage in the

interactive process extends beyond the first attempt at accommodation and continues when the employee

asks for a different accommodation or where the employer is aware that the initial accommodation is

failing and further accommodation is needed.).

J. COUNT 8: INTERACTIVE PROCESSPlaintiff incorporates by reference the points and authorities set forth in Section II(L) of

Plaintiffs Corrected Motion for Full or Partial Summary Judgment. Plaintiff incorporates by reference

the points and authorities set forth in Sections D-F, infra.



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The ten minute meeting on April 26, 2006 was to inform Plaintiff of his leave balance, not to

engage in an interactive process. [DMF 20, 22,]. Nor was Steven O'Connor sufficiently knowledgeable

or prepared to answer any questions that Plaintiff might have regarding his leave.

Defendant County failed to engage in good faith in an interactive consultation with Plaintiff.

III.CONCLUSIONFor the foregoing reasons, the Court should deny Defendants Motion for Summary Judgment in

its entirety and grant Plaintiffs Motion for Summary Judgment.

RESPECTFULLY SUBMITTED on December 1, 2008.

/s/ Eugene D. LeeLAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected] for Plaintiff DAVID F. JADWIN, D.O.


Documents

275 D MSJ - Opposition