161 P Mx Amend Complaint

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LAW OFFICE OF EUGENE LEE Eugene D. Lee (SB#: 236812) 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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

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v. COUNTY OF KERN, et al., Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Date: September 8, 2008 Time: 10:00 a.m. Courtroom: U.S. District Court, Crtrm. 3 2500 Tulare St, Fresno, CA Complaint Filed: January 6, 2007 Trial Date: December 2, 2008

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that on Sept. 8, 2008, at 10:00 a.m., or as soon thereafter as the parties may

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be heard, Plaintiff DAVID F. JADWIN, D.O. will and hereby does move this Court, at the U.S. District

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Court, Crtrm. 3, 2500 Tulare St, Fresno, CA, for leave to file the Second Amended Complaint.

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For the reasons set forth in the accompanying Memorandum of Points and Authorities and

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Declaration of Eugene Lee, Plaintiff respectfully requests that this Court grant it leave to file the Second

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Amended Complaint, and for such other relief as may be just.

28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 1

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RESPECTFULLY SUBMITTED on July 7, 2008. /s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 2

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MEMORANDUM OF POINTS & AUTHORITIES I.

BACKGROUND Plaintiff has attempted without success to obtain Defendants’ stipulation to file the Second

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Amended Complaint (“SAC”).

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On January 6, 2007, Plaintiff filed the Complaint initiating this action.

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On April 24, 2007 and on June 13, 2007, Plaintiff supplemented the Complaint to reflect events

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occurring after the date of the last-filed Complaint.

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On January 4, 2008, Plaintiff sent the draft Third Supplemental Complaint (“TSC”) –almost identical to the SAC – to Defendants for their review. Defendants never responded. On January 22, 2008, Plaintiff noted Defendants had not responded. Defendants replied that they

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were inclined not to so stipulate but would reconsider subject to certain conditions. On April 17, 2008, after further discussion between the parties, Plaintiff again sent the draft TSC

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to Defendants for their review. Defendants never responded. On May 4, 2008, Plaintiff again requested Defendants’ stipulation to filing the TSC. On May 5,

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Defendants refused and stated “the pleadings are done.” On June 30, 2008, Plaintiff filed with this Court his notice of withdrawal of motion for leave to

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file the TSC, stating:

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Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to file and serve the Second Amended Complaint, naming the County of Kern . . . as defendants in their personal and official capacities under Count Ten [sic] of Plaintiff’s Complaint (42 U.S.C. 1983 procedural due process). Doc. 159, 1:24 – 2:1.

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On July 1, 2008, Plaintiff requested Defendants’ stipulation to filing the SAC. Later that day,

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Defendants stated that they refused.

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Discovery in this action will close on August 18, 2008, more than a month from now.

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Plaintiff was therefore compelled to bring this motion. Defendants’ lack of cooperation has been

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characteristic in this action.

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II.

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ARGUMENT Plaintiff seeks to effect the following items with the filing of the SAC:

28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 3

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A.

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Item 1: Supplement the Complaint regarding events that occurred after the filing of Plaintiff’s second supplemental complaint.

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Requested Change

3 Plaintiff filed the Second Supplemental Complaint on June 13, 2007. Plaintiff now seeks to 4 supplement the Complaint regarding events subsequent to June 13, 2007: (a) Defendant County’s lifting 5 of Plaintiff’s home restriction on April 30, 2007, (b) Defendant County’s non-renewal of Plaintiff’s 6 employment contract on October 4, 2007 and (c) Plaintiff’s exhaustion of administrative remedies. 7 Accordingly, Plaintiff seeks to make additions to the Complaint including the following: 8 9

27. On April 30, 2007, Defendant County sent a letter to Plaintiff notifying him of its decision to lift the home restriction. To date, Plaintiff has received no explanation for the involuntary leave or the restriction to his home.

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28. On May 1, 2007, Defendant County sent an email to Plaintiff notifying him of its decision not to renew Plaintiff’s employment contract, which was not due to expire until October 4, 2007, and to “let the contract run out”. To date, Plaintiff has received no explanation for the decision not to renew his contract as in the past and as customary at KMC.

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29. On October 4, 2007, Defendant County failed to renew Plaintiff’s employment contract, which therefore expired. 142. During the time that Defendants placed Plaintiff on involuntary full-time leave, including the period from December 7, 2006 to October 4, 2007, Defendants effectively denied Plaintiff the opportunity to earn Professional Fees as set forth in Article II of the Second Contract.

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149. On October 10, 2007, Plaintiff filed a supplemented Tort Claims Act complaint with the County of Kern, supplemented to reflect events occurring after filing of the supplemented Tort Claims Act complaint on April 23, 2007.

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153. On October 16, 2007, Plaintiff filed a supplemented complaint with the DFEH, supplemented to reflect events occurring after filing of the supplemented complaint with the DFEH on April 23, 2006.

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216. On December 7, 2006, Defendants placed Plaintiff on administrative leave, denying him the opportunity to earn clearly established, constitutionally protectable professional fees. In so doing, Defendants failed to give Plaintiff adequate due process and violated his clearly established right to procedural due process. 217. On October 4, 2007, Defendant County failed to renew Plaintiff’s employment contract, denying him clearly established, constitutionally protectable continued employment. In so doing, Defendants failed to give Plaintiff adequate due process and violated his clearly established right to procedural due process.

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Why It Should be Permitted

27 Rule 15(d) of the Federal Rules of Civil Procedure provides, in pertinent part: 28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 4

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Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.

3 A supplemental pleading is used to allege relevant facts occurring after the original pleading was 4 filed. Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 468. A supplemental pleading is designed to bring the 5 action “up to date” and to set forth new facts affecting the controversy that have occurred since the 6 original pleading was filed. Manning v. City of Auburn (11th Cir. 1992) 953 F.2d 1355, 1359–1360. A 7 supplemental pleading may properly allege events occurring after the original complaint was filed and 8 identify any new parties involved therein. Rule 15(d) “plainly permits supplemental amendments to 9 cover events happening after suit, and it follows, of course, that persons participating in these new 10 events may be added if necessary.” Griffin v. County School Board (1964) 377 U.S. 218, 226–227. 11 Supplemental pleadings can only be filed with leave of court and upon such terms as are just. Glatt v. 12 Chicago Park Dist. (7th Cir. 1996) 87 F.3d 190, 194. However, supplemental pleadings are favored 13 because they enable the court to award complete relief in the same action, avoiding the costs and delays 14 of separate suits. Therefore, absent a clear showing of prejudice to the opposing parties, they are 15 liberally allowed. See Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 473; Quaratino v. Tiffany & Co. (2nd 16 Cir. 1995) 71 F.3d 58, 66. The purpose of Rule 15(d) is to promote as complete an adjudication of the 17 dispute between the parties as is possible. LaSalvia v. United Dairymen of Arizona, 804 F.2d 1113, 18

1119 (9th Cir. 1986), cert. denied, 482 U.S. 928 (1987).

19 The supplements sought by Plaintiff promote a complete and efficient adjudication of the 20 disputes between the existing parties to this action. Item 1 – Plaintiff’s proposed supplements – allege a 21 series of adverse employment actions taken by Defendants against Plaintiff that were first referenced in 22 Plaintiff's original and subsequent complaints. For instance, Plaintiff’s Second Supplemental Complaint 23 had alleged in pertinent part: 24 25

102. On or about December 7, 2006, Culberson sent a letter addressed to Plaintiff informing him that he was being placed on involuntary paid administrative leave “pending resolution of a personnel matter”.

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104. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had yet to be provided any explanation for his involuntary leave or any indication as to whether or when it would end so that he could return to work, (ii) the involuntary leave requiring him to remain at home by his phone during working hours was threatening to erode his pathology skills, jeopardizing his employability and career as a pathologist, PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 5

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(iii) the involuntary leave was denying him the opportunity to earn income from professional fee billing, and (iv) part-time work was deemed therapeutic for him by his physician and that the confinement to his house during working hours was having the opposite effect of severely exacerbating his depression.

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105. To date, Plaintiff remains on involuntary leave, with no explanation therefore or any indication as to whether or when it will end.

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Plaintiff alleges that these actions constituted a continuing violation and/or a pattern and practice of

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discrimination, harassment, and/or retaliation taken against Plaintiff because of his protected

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characteristics and activities. If Plaintiff is denied leave to file the SAC, Plaintiff would be forced to file

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a new law suit re-alleging most of the same claims contained in this action based on these new adverse

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actions. Permitting the supplement would result in a more efficient use of scarce judicial resources. More importantly, there is no risk of prejudice or surprise to Defendants. First, the supplements

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comprise allegations of continuing injury or continuation of the wrongful conduct already alleged in

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Plaintiff’s original or supplemental complaints. Second, Plaintiff has repeatedly apprised Defendants of

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his desire to make the foregoing supplements to his complaint since January 4, 2008, when Plaintiff first

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sent Defendants the draft TSC. Defendants initially refused to respond at all, then ultimately refused to

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stipulate.

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Third, Plaintiff served on Defendants copies of the supplemented complaint he filed with the

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Department of Fair Employment & Housing on October 16, 2007 and supplemented Tort Claims Act

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claim he filed with the County of Kern on October 10, 2007, each detailing the same supplemental

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allegations which Plaintiff now proposes in the SAC. Fourth, Plaintiff’s Initial Disclosure contained a

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Rule 26 report issued by Plaintiff’s forensic economist which fully disclosed the harm that Plaintiff

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suffered and expected to suffer because of the events which Plaintiff now seeks to supplementally

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allege.

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Defendants cannot in good faith claim to be surprised or prejudiced by Plaintiff’s proposed supplements. B.

Item 2: Correct an omission of an element of Plaintiff’s Count VI for disability discrimination.

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Requested Change

27 Plaintiff seeks to add Paragraph 125 to allege Plaintiff’s ability to perform the essential functions 28 of his job, which is an element of Plaintiff’s disability discrimination claim. Paragraph 125 reads as PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 6

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follows: 125. At all times material here, excluding a portion of the time when he was out on voluntary full-time medical leave, Plaintiff has been able to perform the essential functions of the employment positions he held with Defendants and each of them, with reasonable accommodation.

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Why It Should be Permitted

5 Rule 15 provides the parties with flexibility in presenting their claims and defenses. It assures 6 that cases will be heard on their merits and avoids injustices which sometimes resulted from strict 7 adherence to earlier technical pleading requirements. Foman v. Davis (1962) 371 U.S. 178, 182; Slayton 8

v. American Express Co. (2nd Cir. 2006) 460 F.3d 215, 228. Rule 15 reflects the limited role assigned to

9 federal pleadings: i.e., their purpose is simply to provide the parties with fair notice of the general nature 10 and type of the pleader's claim or defense. As long as such notice has been provided, the pleadings 11 should not limit the pleader's claims or defenses. Ibid.; see also Grier v. Brown (N.Dist. Cal. 2002) 230 12 F.Supp.2d 1108, 1111. 13 Plaintiff’s proposed correction of an omission does not allege any new facts; it arises out of the 14 same exact nucleus of facts alleged in Plaintiff’s original and supplemental complaints filed with the 15 Court. Simply put, it merely seeks to correct the omission of a legal pleading element required for 16 Plaintiff’s Counts VI through VIII for violation of California’s disability discrimination laws. 17 Defendants cannot claim to have been denied fair notice of the general nature of Plaintiff’s disability 18 discrimination claims or the alleged facts from which they arise. Permitting the correction would not 19 prejudice Defendants in any way. Conversely, denying the correction may prevent consideration of 20 Plaintiff’s disability discrimination claims on their merits and result in injustice. 21 C. 22

Item 3: Add already-named and existing Defendant, the County of Kern, to Plaintiff’s Count IX for 42 U.S.C. 1983 due process violation claim, based upon events which were already alleged in the Complaint.

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Requested Change

24 Plaintiff seeks to amend Count IX (See Paragraph 207 of the SAC) to add Defendant County of 25 Kern to that count. Defendant County is an already named and existing party and no joinder of new 26 parties is required under Rule 19. Rather, joinder of a claim against an existing party is required under 27 Rule 18. 28 2.

Why It Should be Permitted

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Rule 15 requires that leave to amend should be freely given “when justice so requires.” Fed. R.

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Civ. Proc. 15(a)(2); see Lone Star Ladies Invest. Club v. Schlotzsky's Inc. (5th Cir. 2001) 238 F.3d 363,

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367 (policy favoring leave to amend “a necessary companion to notice pleading and discovery”.) This

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policy is to be applied with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003)

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316 F.3d 1048, 1051; Moore v. Baker (11th Cir. 1993) 989 F.2d 1129, 1131 (“justifying reasons must be

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apparent for denial of a motion to amend”). Absent prejudice, or a strong showing of any of the other

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reasons for denying leave to amend, “there exists a presumption under Rule 15(a) in favor of granting

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leave to amend.” Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003) 316 F.3d 1048, 1052. While

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“leave to amend should not be granted automatically,” the circumstances under which Rule 15(a)

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“permits denial of leave to amend are limited.” Ynclan v. Department of Air Force (5th Cir. 1991) 943

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F.2d 1388, 1391.

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The opposing party may claim “prejudice” from any amendment, such as the expense of

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responding to the amended pleading and possible delay in getting to trial; however, expense and delay

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are probably not enough by themselves to deny leave to amend. There must be some showing of

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inability to respond to the proposed amendment. Likewise, the need for additional discovery is

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insufficient by itself to deny a proposed amended pleading. See U.S. v. Continental Illinois Nat'l Bank &

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Trust (2nd Cir. 1989) 889 F.2d 1248, 1255; Genentech, Inc. v. Abbott Laboratories (N.Dist. Cal. 1989)

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127 F.R.D. 529, 531.

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Rule 18(a) expresses a philosophy of great liberality toward entertaining the broadest possible

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scope of action consistent with fairness to parties; joinder of claims, parties, and remedies is strongly

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encouraged. Lanier Business Products v Graymar Co. (1972, Dist. Md.) 342 F.Supp 1200. A party

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should be able to join all claims he has against his opponent as matter of course to avoid a multiplicity of

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litigation and possible claims of res judicata at later date. Ibid.

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Joinder of Plaintiff’s Count IX for 42 U.S.C. 1983 due process violations against Defendant

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County should be permitted. Defendant County is already named in several of Plaintiff’s Counts and is

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an existing party in this action. Joinder of Defendant County in County IX is clearly warranted under

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Monell v Dept. of Social Services (1978) 436 U.S. 658 and would avoid multiplicity of litigation and

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claims of res judicata at a later date. PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 8

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There is no risk of prejudice or surprise to Defendants. Defendants have had fair notice of the

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nucleus of facts underlying Defendant County’s liability under Count IX – e.g., demotion of Plaintiff

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and reduction of his base salary, placement of Plaintiff on involuntary administrative leave with home

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restriction, and non-renewal of Plaintiff’s contract – since at least January 2008 when Plaintiff sent the

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draft TSC to Defendants. On June 30, 2008, Plaintiff filed with this Court his notice of withdrawal of

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motion to file the TS, expressly stating therein Plaintiff’s intention to seek joinder of Count IX against

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Defendant County (Doc. 159). On July 1, 2008, Plaintiff again gave Defendants notice, providing them a

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copy of the SAC along with a proposed stipulation (which Defendants rejected). With discovery in this

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action due to close on August 18, 2008, Defendants have more than a month to conduct whatever

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additional discovery they deem necessary in light of the SAC – although no additional discovery should

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conceivably be necessary to parse out a Monell analysis.

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Finally, under Cal. Gov’t. C. 995 et seq., Defendant County is required to indemnify its

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employees against liability for violations alleged in Plaintiff’s Count IX as set forth in Plaintiff’s initial

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complaint filed on January 6, 2008. The joinder of Count IX against Defendant County simply adds

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direct liability where indirect liability for individually named employees under Count IX already exists.

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III.

CONCLUSION

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The foregoing items which Plaintiff seeks to effect via the SAC would promote a complete

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adjudication of issues arising out of the same nucleus of transactions and occurrences and a resolution of

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disputes on their merits. At the same time, they do not pose any risk of prejudice or surprise to

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Defendants. Defendants have had fair notice of the proposed supplemental allegations, the general

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nature of Plaintiff’s disability discrimination and due process claims, and the facts establishing

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Defendant County’s liability thereunder, since at least January 2008. In light of Cal. Gov’t. C. 995 et

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seq., the joinder of Count IX against Defendant County only adds direct liability where indirect liability

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already exists. In the implausible event Defendants require additional discovery as a consequence of the

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SAC, they have the time to do so prior to the close of discovery on August 18, 2008. There is no need

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for a continuance of any sort.

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There should not be a need for this motion either. However, Defendants remain as uncooperative as ever as they pursue their scorched earth litigation strategy. Plaintiff regrets this imposition on the PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 9

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Court’s limited time and that Defendants’ steadfast refusal of Plaintiff’s multiple requests for stipulation

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have made it necessary.

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For the foregoing reasons, Plaintiff DAVID F. JADWIN, D.O., respectfully requests that this Court grant him leave to file the Second Amended Complaint.

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RESPECTFULLY SUBMITTED on July 7, 2008. /s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 10

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DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION

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I, Eugene D. Lee, declare and say, as follows:

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1.

I am an attorney at law duly licensed to practice before the Federal and State Courts of

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California and admitted to practice before the United States District Court for the Eastern District of

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California. I am the attorney representing Plaintiff David F. Jadwin in this matter.

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2.

I am making this declaration in support of Plaintiff David F. Jadwin, D.O.’s motion for

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leave to file the Second Amended Complaint (“SAC”). The facts stated herein are personally known to

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me and if called as a witness, I could and would competently testify to the truth of the facts set forth in

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this declaration.

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3.

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Exhibit 1.

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4.

A true and correct copy of the SAC which Plaintiff seeks to file is attached hereto as

On January 4, 2008, my co-counsel, Joan Herrington, sent the draft Third Supplemental

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Complaint, which contained the nucleus of facts underlying all of the changes proposed in the SAC, to

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defense counsel, Mark Wasser, for his review. He never responded. I was carbon-copied on Ms.

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Herrington’s and Mr. Wasser’s emails. A true and correct copy of the emails is attached hereto as

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Exhibit 2.

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5.

On January 22, 2008, I sent an email to Mr. Wasser noting Defendants had not responded

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to Ms. Herrington’s previous email. Mr. Wasser sent an email replying that he was inclined not to so

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stipulate but would reconsider subject to certain conditions. A true and correct copy of the emails is

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attached hereto as Exhibit 3.

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6.

On April 17, 2008, after further discussion between the parties, I again sent the draft TSC

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to Mr. Wasser for his review. He never responded. A true and correct copy of the emails is attached

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hereto as Exhibit 4.

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7.

On May 4, 2008, I again requested Mr. Wasser’s stipulation to filing the TSC. On May 5,

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he sent an email stating his refusal and stated “the pleadings are done.” A true and correct copy of the

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emails is attached hereto as Exhibit 5.

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8.

On June 30, 2008, I filed with this Court Plaintiff’s notice of withdrawal of motion for

leave to file the TSC, which stated: PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 11

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Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to file and serve the Second Amended Complaint, naming the County of Kern . . . as defendants in their personal and official capacities under Count Ten [sic] of Plaintiff’s Complaint (42 U.S.C. 1983 procedural due process). Doc. 159, 1:24 – 2:1.

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A true and correct copy of the notice of withdrawal is attached hereto as Exhibit 6.

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9.

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On July 1, 2008, I sent an email to Defendants requesting their stipulation to Plaintiff’s

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filing the SAC. Later that day, Defendants emailed me, stating that they refused. Defendants’ lack of

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cooperation has been characteristic in this action. A true and correct copy of the notice of withdrawal is

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attached hereto as Exhibit 7.

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10.

Defendant County's refusal to allow Plaintiff to return to work at Kern Medical Center;

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failure to conduct an investigation into the "personnel matters" that purported necessitated Plaintiff's

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administrative leave with home restriction; and its decision not to renew Plaintiff's employment contract

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are part of a series of adverse employment actions taken by Defendants against Plaintiff, as alleged in

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Plaintiff's original and subsequent complaints. Plaintiff alleges that this series of adverse actions

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constitute a continuing violation and/or a pattern and practice of discrimination, harassment, and/or

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retaliation taken against Plaintiff because of his protected characteristics and activities. An efficient

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resolution of all issues raised by these subsequent events requires supplementation of the Complaint to

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encompass all adverse employment actions taken by Defendant County against Plaintiff.

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11.

None of the Defendants can claim that they will suffer prejudice if leave is granted to file

the SAC. 12.

If this Court denies Plaintiff leave to file the SAC, Plaintiff would be forced to file a new

law suit re-alleging most of the same claims contained in this action based on these new adverse actions. 13.

Defendants have known since at least May 1, 2007, that Plaintiff would never be allowed

to return to work at Kern Medical Center. 14.

Plaintiff notified Defendants that he would seek further leave to amend or supplement his

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complaint if Defendant County carried out its threat to keep Plaintiff on administrative leave until his

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employment contract expired.

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15.

Plaintiff provided further notice of his intent to seek relief for these adverse actions by

serving a copy of his supplemented Department of Fair Employment & Housing complaint and right to PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 12

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sue letter and supplemented Tort Claims Act complaint on Defendant County. 16.

Plaintiff has already disclosed documents reflecting the harm that Plaintiff suffered and

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will continue to suffer because of these subsequent adverse employment actions, and Defendants have

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conducted further discovery on these disclosures.

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I declare under penalty of perjury under the laws of the State of California and of the United States that the foregoing is true and correct.

8 Dated: July 7, 2008

LAW OFFICE OF EUGENE LEE

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By: ____________________________________ Eugene D. Lee Attorney for Defendant DAVID F. JADWIN, D.O.

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 13

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EXHIBITS TO DECLARATION OF EUGENE D. LEE EXHIBIT 1. Draft Second Amended Complaint EXHIBIT 2. Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 1/4/08 EXHIBIT 3. Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 1/22/08 EXHIBIT 4. Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 4/17/08 EXHIBIT 5. Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 5/4/08 to 5/5/08 EXHIBIT 6. Plaintiff’s Notice of Withdrawal of Motion to File TSC (Doc. 159) EXHIBIT 7. Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 7/1/08

SAC000001

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EXHIBIT 1: Draft Second Amended Complaint

SAC000002

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Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] Attorneys for Plaintiff DAVID F. JADWIN, D.O.

7 UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9 10

DAVID F. JADWIN, D.O.

11 12 13

Plaintiff vs. COUNTY OF KERN; PETER BRYAN (both individually and in his former official capacity as Chief Executive Officer Of Kern Medical Center); IRWIN HARRIS, M.D; EUGENE KERCHER, M.D. (both individually and in his official capacity as a President of Medical Staff of Kern Medical Center); JENNIFER ABRAHAM, M.D. (both individually and in her official capacity as Immediate Past President of Medical Staff at Kern Medical Center); SCOTT RAGLAND, M.D. (both individually and in his official capacity as President-Elect of Medical Staff of Kern Medical Center); TONI SMITH, (both individually and in her official capacity as Chief Nurse Executive of Kern Medical Center); WILLIAM ROY, M.D.; and DOES 1 through 10, inclusive.

Case No. 1:07-cv-26-OWW-TAG SECOND SUPPLEMENTAL AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF

27

Retaliation [Health & Safety Code § 1278.5]; II. Retaliation [Lab. Code § 1102.5]; III. Retaliation [Gov’t Code §§ 12945.1, et seq; 2 C.C.R. § 7297.7(a)]; IV. Interference with FMLA Rights [29 U.S.C. §§ 2601, et seq.]; V. Violation of CFRA Rights. [Gov’t Code §§ 12945.1, et seq.]; VI. Disability Discrimination [Gov’t. Code § 12940(a)]; VII. Failure to Provide Reasonable Accommodation [Gov’t Code § 12940(m)]; VIII. Failure to Engage in Good Faith In An Interactive Process [Gov’t Code § 12940(n)]; IX. Procedural Due Process Violation [14th Amendment of U.S. Constitution; 42 U.S.C. § 1983]. X. Defamation [Civ. Code §§ 45- 47]; and XI. Violation of FLSA [29 U.S.C. §201 et seq.]

28

JURY TRIAL DEMANDED

14 15 16 17 18 19 20 21 22 23 24 25 26

Defendants.

I.

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NATURE OF THE ACTION

3

This is an individual action brought by Plaintiff David F. Jadwin, D.O., a whistleblowing

4

physician with disabilities, against his employer, (i) the County of Kern (“Defendant County” or

5

“the County”); ) (ii) individual Defendants Peter Bryan (“Bryan”), Chief Executive Officer of

6

Kern Medical Center (“KMC”); Eugene Kercher, M.D., President of Medical Staff at KMC

7

(“Kercher”); Jennifer Abraham, M.D., Immediate Past President of Medical Staff at KMC

8

(“Abraham”); Scott Ragland, M.D., President-Elect of Medical Staff at KMC (“Ragland”); and

9

Toni Smith, Chief Nurse Executive of KMC, (“Smith”), both personally and in their official

10

capacities; and (iii) individual Defendants Irwin Harris, M.D., Chief Medical Officer of KMC

11

(“Harris”); William Roy, M.D., Chief of the Division of Gynecologic Oncology at KMC

12

(“Roy”); and DOES 1 through 10.

13

Plaintiff’s claims against his employer, Defendant County, allege violations of section

14

1278.5 of the Health & Safety Code1 which prohibits retaliation against a health care provider

15

who reports suspected unsafe care and conditions of patients in a health care facility; section

16

1102.5 of the Labor Code which prohibits retaliation against an employee for reporting or

17

refusing to participate in suspected violations of the law; the California Family Rights Act

18

(sections 12945.1, et seq., of the Government Code) (“CFRA”) and the Family and Medical

19

Leave Act (sections 2601, et seq. of the United States Code) (“FMLA”) which prohibit

20

interference with an employee’s right to medical leave and retaliation for an employee’s exercise

21

of the right to medical leave; and the Fair Employment and Housing Act [subdivisions (a), (m) &

22

(n) of section 12940 of the Government Code] (“FEHA”) which prohibits discrimination against

23

an employee with a disability, failure to provide reasonable accommodation, and failure to

24

engage in an interactive process; and recovery of wrongfully deducted wages under the Fair

25

Labor Standards Act (29 U.S.C. §§ 201, et seq.) (“FLSA”).

26

Plaintiff sues Defendants County, Roy, Harris and DOES 1 through 10, for defamation;

27 28

1

All statutory references are to California Codes unless otherwise specified.

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and also sues Defendant County and each of the individual Defendants except for Roy, and

2

Harris, both in their personal capacity and in their official capacity as members of the KMC Joint

3

Conference Committee (“JCC”), for violation of Plaintiff’s 14th Amendment of the United States

4

Constitution right to procedural due process pursuant to 42 U.S.C. § 1983 (“Due Process”).

5

Plaintiff brings this action for general, compensatory, and punitive damages; prejudgment

6

interest, costs and attorneys’ fees; injunctive and declaratory relief; and other appropriate and

7

just relief resulting from Defendants’ unlawful conduct, and as grounds therefor alleges:

8 9

JURISDICTION AND VENUE 1.

This Court has federal question jurisdiction over the FMLA, Due Process, and

10

FLSA claims pursuant to 28 U.S.C. § 1331. The Court has supplemental jurisdiction over

11

Plaintiff’s transactionally-related state claims pursuant to 28 U.S.C. § 1367.

12

2.

Venue is proper in Fresno in the Eastern District of California, as a substantial

13

part of the events and omissions giving rise to this claim occurred in the County of Kern,

14

California.

15 16

INTRADISTRICT ASSIGNMENT 3.

Assignment to Bakersfield is proper pursuant to Civil Local Rule 3-120

17

(Appendix A) because the events giving rise to this civil action occurred in Bakersfield in the

18

County of Kern, California.

19 20

PARTIES 4.

At all material times herein, Plaintiff David F. Jadwin, D.O. (“Plaintiff”) has

21

continuously been an employee of Defendant County, a citizen of the United States and

22

California; and a resident of Los Angeles County, California.

23 24 25

5.

At all material times herein, Plaintiff was an individual with disabilities within the

meaning of Section 12926(i) & (k) of the Government Code. 6.

On information and belief, at all material times herein, Defendant County is a

26

local public entity within the meaning of sections 811.2 & 900.4 of the Government Code and is

27

operating in Kern County, California.

28

7.

At all material times herein, the County has continuously been an employer

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within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Government Code §

2

12945.2(b)(2)], FEHA [Government Code § 12926(d)], and FLSA [29 U.S.C. § 203], engaged in

3

interstate commerce and regularly employing more than fifty employees within seventy-five

4

miles of Plaintiff’s workplace.

5

8.

On information and belief, at all material times herein, Defendant Peter Bryan is a

6

citizen of Colorado, and a resident of Denver, Colorado, and was Chief Executive Officer of

7

KMC, and a member of the JCC.

8

9.

On information and belief, at all material times herein, Defendant Eugene Kercher

9

is a citizen of California, a resident of Kern County, California, and President of KMC Medical

10

Staff, and a member of the JCC.

11

10.

On information and belief, at all material times herein, Defendant Irwin Harris is

12

a citizen of California, and a resident of Kern County, California, and Chief Medical Officer at

13

KMC, and a non-voting member of the JCC.

14

11.

On information and belief, at all material times herein, Defendant Jennifer

15

Abraham is a citizen of California, and a resident of Kern County, California and Immediate Past

16

President of KMC Medical Staff, and a member of the JCC.

17

12.

On information and belief, at all material times herein, Defendant Scott Ragland

18

is a citizen of California, and a resident of Kern County, California, President-Elect of KMC

19

Medical Staff, and a member of the JCC.

20

13.

On information and belief, at all material times herein, Defendant Toni Smith is a

21

citizen of California, and a resident of Kern County, California, and Chief Nurse Executive of

22

KMC, and a member of the JCC.

23

14.

On information and belief, at all material times herein, Defendant William Roy is

24

a citizen of California, and a resident of Kern County, California and Chief of the Division of

25

Gynecologic Oncology at KMC.

26

15.

The true names and capacities of Defendants DOES 1 through 10, inclusive, are

27

presently unknown to Plaintiff, who therefore sues said Defendants by such fictitious names.

28

Plaintiff will amend this complaint to set forth the true names and capacities of said Defendants

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when they are ascertained. Plaintiff is informed and believes, and upon such information and

2

belief alleges, that at all times relevant, each of the fictitiously-named Defendants was an agent,

3

employee, or co-conspirator of one or more of the named Defendants, and was acting within the

4

course and scope of said agency or employment. Plaintiff is further informed and believes, and

5

upon such information and belief alleges, that each of the fictitiously named Defendants aided,

6

assisted, approved, acknowledged and/or ratified the wrongful acts committed by Defendants as

7

alleged herein, and that Plaintiff’s damages, as alleged herein, were legally caused by such

8

Defendants.

9 10 11

FACTUAL BACKGROUND A.

STATEMENT OF THE CASE 16.

Plaintiff is a highly-qualified and capable pathologist with numerous professional

12

accomplishments that have included leadership roles in national, state and local pathology and

13

medical societies. Plaintiff received extensive education and training at reputable academic and

14

medical institutions. Plaintiff has managed several clinical laboratories and pathology

15

departments that have achieved accreditation by the College of American Pathologists,

16

frequently “with distinction.” Plaintiff has also been recognized by numerous pathologists and

17

physicians for his professional leadership and commitment to set and uphold rigorous and ethical

18

standards for patient care quality and safety.

19

17.

In late 2000, Plaintiff was recruited to assume the position of Chair of the

20

Pathology Department at KMC, a teaching hospital owned and operated by Defendant County.

21

Plaintiff was recruited in part to raise standards of patient care quality and safety at KMC.

22

Plaintiff immediately set about implementing, among other things, a best-practices peer review

23

system in the Pathology Department.

24

18.

In 2001, Plaintiff began to report concerns to key members of KMC’s medical

25

staff and administration about the unacceptably high levels of unsatisfactory or non-diagnostic

26

fine needle aspirations (“FNA”) – a method of using a needle and syringe to obtain deep internal

27

tissue samples of vital organs – being taken by the Radiology Department at KMC for diagnosis

28

by the Pathology Department. In 2003, Plaintiff began to report concerns to key members of

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KMC’s medical staff and administration about ineffective and unnecessary blood transfusions

2

and an unacceptably high incidence of lost or incomplete product chart copy certifications

3

(“PCC”) required for accurate tracking of dangerous blood transfusions. In 2004, Plaintiff began

4

to report concerns to key members of KMC’s medical staff and administration about the need for

5

instituting a policy of requiring KMC Pathology Department review prior to undertaking

6

significant surgical procedures based upon the reports of outside pathologists (“Internal

7

Pathology Review”). In 2005, Plaintiff reported a concern to key members of KMC’s medical

8

staff and administration about an inappropriate radical hysterectomy (cancer surgical procedure

9

for removal of all female reproductive organs and regional lymph nodes) performed by Roy on a

10

patient with a benign endometriotic cyst (“Roy Hysterectomy”). Also in 2005, Plaintiff began to

11

report concerns to key members of KMC’s medical staff and administration about the need to

12

review a series of serious diagnostic errors committed by a former KMC pathologist, including

13

the failure to identify invasive adenocarcinoma in several prostate needle biopsies (“Prostate

14

Biopsy Errors”). Also in 2005, Plaintiff reported concerns to KMC administration that KMC

15

physicians had performed surgery on a wrong patient due to an error which Plaintiff believed

16

would have been less likely had KMC implemented Internal Pathology Review per Plaintiff’s

17

recommendation. Plaintiff reported several other concerns about inappropriate patient care and

18

noncompliance with quality control standards. In February of 2006, Plaintiff met with Bernard

19

Barmann, County Counsel for the County of Kern (“Barmann”), to report the foregoing

20

concerns.

21

19.

In 2005, Roy began a campaign of making defamatory statements impugning

22

Plaintiff’s professional competence. Events culminated in October of 2005, when Kercher,

23

Harris, Ragland and Abraham harshly reprimanded Plaintiff, based on false allegations, resulting

24

from a 15- to 20-minute presentation given by Plaintiff during a monthly KMC oncology

25

conference that allegedly exceeded conference time limits by approximately ten minutes.

26

Plaintiff’s presentation had attempted to highlight several of Plaintiff’s above-mentioned

27

concerns regarding Internal Pathology Review and their potential impact upon deciding the

28

correct surgical procedure for the patient under discussion. The presentation was stopped before

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Plaintiff could present the key diagnostic conclusions of his presentation. 20.

After the conference, Harris solicited letters of disapprobation from conference

3

participants, including Roy. Roy submitted a letter (“Roy Letter”) containing several false

4

statements of fact which defamed Plaintiff to other members of KMC’s medical staff and

5

administration. On information and belief, Harris and DOES 1 through 10 republished the Roy

6

Letter to third parties. Several KMC medical and administration officers including Bryan and

7

Kercher were aware of Roy’s, Harris’s and DOES 1 through 10’s acts of defamation, but refused

8

to intercede, and possibly approved or encouraged them.

9

21.

In December of 2005, Plaintiff began medical leave initially in the form of

10

medically necessary reduced work schedule due to severe depression which was later extended

11

to June 16, 2006. It was not until on or about March 2, 2006, that Plaintiff was finally provided

12

with a Request for Leave of Absence form which he then submitted to KMC’s HR Department.

13

Plaintiff also received a document entitled “Designation of Leave (Serious Health Condition of

14

Employee-Intermittent)” from the HR Department at KMC, which included a written guarantee

15

of Plaintiff’s reinstatement to his same or equivalent position with same pay, benefits and terms

16

and conditions of employment upon his return from his leave.

17

22.

During Plaintiff’s sick leave, Bryan issued a series of verbal and written

18

ultimatums to Plaintiff which threatened him with termination or demotion upon return from his

19

leave, thereby giving notice that Plaintiff was not in fact guaranteed reinstatement to his same or

20

equivalent position. In a meeting in April of 2006, Bryan ordered Plaintiff to cease his reduced

21

work schedule and begin full-time leave, despite the fact that just days before, Plaintiff had

22

submitted a written request for extension of his reduced work schedule for an additional six

23

months to one year because of his serious medical condition. On June 14, 2006, two days before

24

Plaintiff’s medical leave was allegedly due to end, Bryan informed Plaintiff that he was denying

25

Plaintiff reinstatement to his same or equivalent position, and that he was in fact demoting

26

Plaintiff to a staff pathologist position, effective June 17, 2006, because Plaintiff had taken

27

excessive sick leaves; Plaintiff’s base salary was also ultimately reduced over $100,000 (over

28

35%) as a result (such demotion and pay reduction are hereinafter referred to collectively as

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“demotion” or “demoted”). 23.

Plaintiff resumed full-time work as a staff pathologist on October 4, 2006.

3

Plaintiff continued to suffer a hostile work environment and retaliation. On or about November

4

28, 2006, after almost six years of trying to reform KMC from within, Plaintiff finally blew the

5

whistle on KMC, formally reporting his Concerns to the Joint Commission on Accreditation of

6

Hospital Organizations, the College of American Pathologists, and the California Department of

7

Health Services (“Authorities”). On or about December 4, 2006, Plaintiff submitted a written

8

complaint to KMC leadership about numerous additional concerns regarding the quality of

9

patient care and the deterioration of the pathology department. On December 7, Plaintiff was

10

placed on involuntary administrative leave allegedly “pending resolution of a personnel matter”.

11

24.

On December 13, 2006, Plaintiff sent a letter to David Culberson (“Culberson”),

12

interim Chief Executive Officer of KMC, and carbon-copied to members of KMC’s medical staff

13

leadership, informing him that he had reported his Concerns to the Authorities.

14

25.

On March 28, 2007, KMC authorized Plaintiff to access his office in order to

15

retrieve his personal computer files. Upon his arrival, Defendant Dutt informed him that his

16

office was now locked and that Defendant Dutt now had custody of the key, that Plaintiff’s file

17

cabinet and computer had been physically removed and retasked for other purposes at KMC, and

18

that Plaintiff would not be able to access his personal computer files after all.

19

26.

On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had

20

yet to be provided any explanation for his involuntary leave or any indication as to whether or

21

when it would end so that he could return to work, (ii) the involuntary leave requiring him to

22

remain at home by his phone during working hours was threatening to erode his pathology skills,

23

jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was

24

denying him the opportunity to earn income from professional fee billing, and (iv) part-time

25

work was deemed therapeutic for him by his physician and that the confinement to his house

26

during working hours was having the opposite effect of severely exacerbating his depression.

27 28

27.

On April 30, 2007, Defendant County sent a letter to Plaintiff notifying him of its

decision to lift the home restriction. To date, Plaintiff has received no explanation for the

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involuntary leave or the restriction to his home.

2

28.

On May 1, 2007, Defendant County sent an email to Plaintiff notifying him of its

3

decision not to renew Plaintiff’s employment contract, which was not due to expire until October

4

4, 2007, and to “let the contract run out”. To date, Plaintiff has received no explanation for the

5

decision not to renew his contract as in the past and as customary at KMC.

6

29.

On October 4, 2007, Defendant County failed to renew Plaintiff’s employment

7

contract, which therefore expired.

8

B.

9

EMPLOYMENT RELATIONSHIP 27.30. On October 24, 2000, the County entered into an employment contract with

10

Plaintiff (“Initial Contract”), hiring him to a full-time position as Chair of the Pathology

11

Department at KMC and as Medical Director of the KMC clinical laboratory (“Lab Director”)

12

for an employment term ending on November 30, 2006. As Lab Director, Plaintiff’s job duties

13

included Medical Director of KMC’s blood bank and transfusion service.

14

28.31. On or about November 12, 2002, the County modified Plaintiff’s employment

15

contract to reflect an increase in his compensation and leave accrual rate, among other things.

16

This second employment contract dated as of October 5, 2002 (“Second Contract”) extended

17

Plaintiff’s employment term to October 4, 2007. A true and correct copy of the Second Contract

18

is attached hereto as Exhibit 1, and incorporated by reference herein.

19

29.32. The Pathology Department and consequently the Chair of Pathology is

20

customarily referred to as “the conscience of a hospital”, and Plaintiff’s job duties extended

21

“beyond (his) own department and (he was) expected to be an effective contributor to the overall

22

improvement efforts of the hospital as a whole.” Such duties included participation in many

23

hospital committees including KMC’s Quality Management Committee.

24

30.33. According to Exhibit A of the Initial Contract, the County expected Plaintiff to

25

spend 80 to 90% of his time on clinical duties of a pathologist, and 10 to 20% of his time on

26

administrative duties as Chair of the Department of Pathology (“Chair of Pathology”) and Lab

27

Director.

28

31.34. Article V.10 of the Second Contract provides that Plaintiff will not be deemed a

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classified employee, or have any rights or protections under the County’s Civil Service

2

Ordinance, rules or regulation. 32.35. Article II.3(B)(1) of the Second Contract guarantees that Plaintiff’s base salary

3 4

will be based on a benchmark salary in proportion to his full-effort commitment. In turn, the

5

benchmark salary will be based on a national standard with four steps (A-D) with three criteria

6

for step placement: clinical experience, teaching and administrative duties as set forth in the

7

KMC Administrative Policies and Procedures Manual (“KAPP Manual”).

8 9

33.36. On information and belief, at the time of his hire, the County placed Plaintiff’s salary level at Step C .

10

34.37. Article III.4 of the Second Contract entitles Plaintiff to the same right to unpaid

11

leave of absence as those provided to a regular County employee under the County’s policy,

12

including six months cumulative unpaid leave of absence for illness or disability pursuant to

13

Rule 1201.20 of the Rules of the Civil Service Commission for the County of Kern (“CSC

14

Rules”).

15

35.38. Article IV.1(B) of the Second Contract requires “cause” for termination of

16

Plaintiff’s employment, which cause is defined as “serious administrative violation and/or

17

unsatisfactory clinical performance.”

18

36.39. Article IV.3 of the Second Contract entitles Plaintiff to administrative review of

19

any corrective action for unsatisfactory clinical performance pursuant to the Bylaws of the

20

Medical Staff of KMC (“Bylaws”); and for administrative review of any corrective action for

21

violation of administrative policies of the County or KMC pursuant to the KAPP Manual.

22

C.

23

WHISTLEBLOWING 37.40. Throughout the course of his employment by KMC, Plaintiff has advocated for

24

appropriate patient care and compliance with the quality accreditation standards of the Joint

25

Commission for the Accreditation of Hospital Organizations, the College of American

26

Pathologists, the American Association of Blood Banks and the American College of Surgeons

27

Commission on Cancer as well as applicable state and federal regulations designed to ensure safe

28

care and conditions of patients.

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38.41. Plaintiff reported his various concerns (“Concerns”) about inappropriate and/or

2

suspected unsafe patient care and conditions and non-compliance with applicable laws and

3

regulations and accreditation standards to Bryan and key members of KMC’s medical staff,

4

including but not limited to the following: (i) beginning in 2001, Plaintiff reported the

5

unacceptably high levels of unsatisfactory or non-diagnostic FNAs being taken by the Radiology

6

Department at KMC; (ii) beginning in 2003, Plaintiff reported the unacceptably high incidence

7

of lost or incomplete PCC; (iii) beginning in 2004, Plaintiff reported the need for Internal

8

Pathology Review; (iv) beginning in 2005, Plaintiff reported the Roy Hysterectomy; (v)

9

beginning in 2005, Plaintiff reported the need to review the Prostate Biopsy Errors; and (vi)

10

beginning in 2005, Plaintiff reported that KMC physicians had performed surgery on a wrong

11

patient due to an error which Plaintiff believed would have been less likely had KMC

12

implemented Internal Pathology Review. Unfortunately, Plaintiff’s reports not only appeared to

13

fall on deaf ears, but also generated resentment and hostility among his peers at KMC. 39.42. On or about December 12, 2005, Plaintiff’s former attorney, Michael Young

14 15

(“Young”), sent a letter to Barmann, requesting Barmann meet with Plaintiff to discuss his

16

Concerns.

17

40.43. On or about February 9, 2006, Barmann and Barnes met with Plaintiff. Plaintiff

18

reported his various Concerns, as well as the retaliation, defamation and hostile work

19

environment Plaintiff was experiencing at KMC. 41.44. Finally, on or about November 28, 2006, after almost six years of trying to reform

20 21

KMC from within in vain, Plaintiff formally reported his Concerns to the Authorities.

22

42.45. On December 13, 2006, Plaintiff sent a letter addressed to Culberson, and carbon-

23

copied to members of KMC’s medical staff leadership, informing him that “KMC leadership has

24

left me no choice but to report the above issues to the appropriate state and accrediting

25

agencies”.

26

D.

27 28

DEFAMATION 43.46. In 2005, Plaintiff had reported the need for Internal Pathology Review to key

members of KMC medical staff and administration. Roy refused to submit outside pathology

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reports for Internal Pathology Review prior to surgery, preferring instead to refer all of his

2

pathology cases to an acquaintance at the University of Southern California without intereference

3

from KMC’s Pathology Department.

4

44.47. On or about April 15, 2005, Roy sent a letter which was addressed to Plaintiff and

5

carbon-copied to Dr. Leonard Perez (“Perez”), Chair of the OB-GYN Department at KMC. The

6

letter contained the following statements of fact:

7 8 9

Additionally, I cannot institute adjuvant therapy in a timely manner when it takes weeks and sometimes months to get an accurate diagnosis from your department…. Most importantly, delays in instituting appropriate adjuvant therapy due to delays in obtaining an accurate diagnosis, or instituting inappropriate therapy based on an inaccurate diagnosis can negatively affect patient survival.

10 45.48. Roy’s statements regarding delays of weeks and months were false. Perez 11 reasonably understood that the statements were about Plaintiff. Perez reasonably understood the 12 statements to mean that Plaintiff was not managing the Pathology Department in a competent 13 manner. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy 14 acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a 15 significant loss of reputation and confidence among his peers at KMC. 16 46.49. On or about April 20, 2005, Plaintiff sent a letter addressed to Roy and carbon17 copied to Perez, Dr. Maureen Martin, Chair of Surgery (“Martin”), Kercher and Bryan. The letter 18 stated: “Please refrain from making statements such as it takes weeks and sometimes months to 19 get an accurate diagnosis from your department without citing specific instances. In my 20 experience, such statements are typically untrue and consequently are unethical if not supported 21 by facts.” As officers of KMC, Kercher and Bryan approved, accepted, and/or failed to intercede 22 to protect Plaintiff from Roy’s defamatory acts, and in so doing, ratified them. 23 47.50. In May of 2005, Harris informed Plaintiff that Roy had voiced concerns about the 24 Pathology Department and had submitted certain pathology reports for second-level peer review 25 and investigation. Plaintiff requested that Harris identify the pathology reports in question but 26 Harris refused. Later, Plaintiff determined that no second-level peer review ever occurred. 27 48.51. On or about June 30, 2005, Martin and Harris told Plaintiff that Roy was making 28 negative comments about the Pathology Department.

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49.52. On or about June 30, 2005, Plaintiff sent a letter addressed to Roy and carboncopied to Perez, Martin, Harris, Kercher and Bryan. The letter stated: It has come to my attention that you are making negative statements to numerous key members of the medical staff regarding pathology reports issued by this department. You are reported by others to claim that several of KMC pathology diagnoses do not agree with outside diagnoses rendered by other outside pathologists and that these discrepancies have or would have changed patient management. It would appear from these actions that you are claiming that our diagnoses are not correct. I do not recollect any true, substantial discrepancies between diagnoses rendered by this department and outside pathology departments based upon retrospective review of our cases since my arrival in December 2000. It is reported that you claim to have in your possession several such reports detailing incorrect diagnoses rendered by our department. It is also my understanding that you have been asked on several occasions to produce examples of these discrepancies, and as of yet have not produced any such reports to individuals that have made these requests. To demonstrate and support the accuracy of your claims, I request that you produce copies of these reports for my review by July 15, 2005.

11 50.53. Roy’s statements of fact regarding incorrect diagnoses by the Pathology 12 Department were false. The key members of the KMC medical staff who heard the statements 13 reasonably understood that the statements were about Plaintiff and reasonably understood the 14 statements to mean that Plaintiff was not managing the Pathology Department in a competent 15 manner. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy 16 acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a 17 significant loss of reputation and confidence among his peers at KMC. As officers of KMC, 18 Harris, Kercher and Bryan approved, accepted, and/or failed to intercede against Roy’s 19 defamatory acts and in so doing, ratified them. 20 51.54. On or about July 15, 2005, Roy sent a letter addressed to Plaintiff and carbon21 copied to Harris, Bryan and Perez. The letter stated: 22 23 24 25

I was quite surprised to receive your letter of June 5th. The “discrepancies” should be well known to you as I have brought them to your attention many times, both in the presence of Dr. Perez, and in a letter to you a couple of months ago, as well as multiple phone conversations. The inaccuracies, delays and refusals to refer specimens for outside review continue. The matter has been appropriately reported to the administration for a quality assurance review, as I have had no success in my pleadings to you directly.

26 52.55. Roy’s statements of fact regarding the existence of “discrepancies” and the 27 bringing of them to Plaintiff’s attention “many times” and “in the presence of Dr. Perez” were 28 false. Harris, Bryan and Perez reasonably understood that the statements were about Plaintiff and

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reasonably understood the statements to mean that Plaintiff was neither managing the Pathology

2

Department in a competent manner nor being truthful about Roy’s disclosures of the facts and

3

circumstances underlying his defamatory statements. Roy failed to use reasonable care to

4

determine the truth or falsity of the statements. Roy acted with malice in publishing the false

5

statements. As a consequence, Plaintiff experienced a significant loss of reputation and

6

confidence among his peers at KMC. As officers of KMC, Harris and Bryan approved, accepted,

7

and/or failed to intercede against Roy’s defamatory acts and in so doing, ratified them.

8

53.56. Moreover, Roy’s statement of fact that he had reported the matter to KMC

9

administration for quality assurance review was false. Harris, Bryan and Perez reasonably

10

understood that the statement was about Plaintiff and reasonably understood the statements to

11

mean that Plaintiff was not managing the Pathology Department in a competent manner. Roy

12

failed to use reasonable care to determine the truth or falsity of the statements. Roy acted with

13

malice in publishing the false statements. As a consequence, Plaintiff experienced a significant

14

loss of reputation and confidence among his peers at KMC. As officers of KMC, Harris and

15

Bryan approved, accepted, and/or failed to intercede against Roy’s defamatory acts and in so

16

doing, ratified them.

17

54.57. On October 12, 2005, Plaintiff gave a presentation at the monthly KMC oncology

18

conference (“Oncology Conference”) highlighting concerns regarding a patient that might need a

19

hysterectomy, and the need for Internal Pathology Review.

20

55.58. Plaintiff’s presentation lasted approximately 15 to 20 minutes, which exceeded

21

alleged conference time limits by approximately ten minutes. Plaintiff was stopped before he

22

could present his final slides stating his patient care quality conclusions.

23 24

56.59. On information and belief, presenters at prior and subsequent Oncology Conferences frequently exceeded time limits without interruption, incident, or reprimand.

25

57.60. Roy, Bill Taylor, Vice-Chair of Surgery, and Albert McBride, the Cancer

26

Committee Liaison, attended Plaintiff’s presentation at the October 12 Oncology Conference and

27

were requested by Harris to give him letters criticizing Plaintiff’s time infraction.

28

58.61. In response, Roy sent a letter (“Roy Letter”), dated October 13, 2005, addressed

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to Harris. The Roy Letter stated in relevant part: With respect, Dr. Jadwin is a small rural community hospital pathologist, with very limited experience and no specialty training in regard to Gynecologic Oncologic Pathology…. Dr. Jadwin is not a clinician, and has neither the fund of knowledge nor the experience to make any recommendations regarding the treatment of patients, much less criticize the care provided by those, such as myself, whose training and experience were attained at some of the highest seats of learning in the U.S and abroad. Additionally, as you are aware, it is not infrequent that Dr. Jadwin’s diagnoses are in err when reviewed by outside specialists, as in this particular case. The management of the patient would have been inappropriate if we accepted Dr. Jadwin’s report, which as you know, was different from two other pathologists in his own department (three different opinions). I have no confidence in Dr. Jadwin and I am actively pursuing the possibility of having all specimens from the Gynecologic Oncology service evaluated outside, as is currently done for the Neurosurgery service…. I have discussed these issues with Dr. Perez, Chairman of the Department of Obstectrics and Gynecology, and he assures me of his full support.

10 59.62. The Roy Letter contained the following false statements of fact: (i) Plaintiff is a 11 small rural community hospital pathologist, (ii) Plaintiff has very limited experience in 12 Gynecologic Oncologic Pathology, (iii) Plaintiff is not a clinician, (iv) Plaintiff has neither the 13 fund of knowledge nor the experience to make any recommendations regarding the treatment of 14 patients, much less criticize the care given by doctors such as Roy, (v) it is not infrequent that 15 Plaintiff’s diagnoses are in err when reviewed by outside specialists, as in this particular case, 16 (vi) the management of the patient would have been inappropriate if Plaintiff’s report had been 17 accepted, and (vii) Plaintiff’s report was different from two other pathologists in his own 18 department, suggesting the deficiency of his report. Harris reasonably understood that the 19 statements were about Plaintiff and reasonably understood the statements to mean that Plaintiff’s 20 credentials and abilities as a pathologist and physician were deficient. Roy failed to use 21 reasonable care to determine the truth or falsity of the statements. Roy acted with malice in 22 publishing the false statements. The Roy Letter exceeded the scope of Harris’s request. Roy 23 defamed Plaintiff despite Plaintiff’s numerous prior requests to stop defaming him. As a 24 consequence, Plaintiff experienced a significant loss of reputation and confidence among his 25 peers at KMC. As an officer of KMC, Harris approved, accepted, and/or failed to intercede 26 against Roy’s defamatory acts and in so doing, ratified them. 27 60.63. Plaintiff is informed and believes, and thereupon alleges, that Harris subsequently 28 republished the Roy Letter to DOES 1 through 10, and that DOES 1 through 10 further

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republished the Roy Letter to other members of KMC staff. Such other members of KMC staff

2

reasonably understood that the statements contained in the Roy Letter were about Plaintiff and

3

reasonably understood such statements to mean that Plaintiff’s credentials and abilities as a

4

pathologist and physician were deficient. Harris and DOES 1 through 10 failed to use reasonable

5

care to determine the truth or falsity of the statements. Harris and DOES 1 through 10 acted with

6

actual malice in publishing the false statements. As a consequence, Plaintiff experienced a

7

significant loss of reputation and confidence among his peers at KMC. As officers of KMC,

8

Harris, and DOES 1 through 10 accepted, and/or failed to intercede against Roy’s defamatory

9

acts or their subsequent republication, and in so doing, ratified them.

10

61.64. On or about October 17, 2005, Plaintiff was ordered to attend a meeting with

11

Kercher, Harris and Ragland who subjected Plaintiff to humiliating ridicule, yelling and

12

inappropriate questioning regarding Plaintiff’s alleged violation of Oncology Conference time

13

limits. Kercher, Harris and Ragland informed Plaintiff that they had received letters of

14

disapprobation (“Disapprobation Letters”) from three conference participants – one of which was

15

the Roy Letter – and would be issuing a letter of reprimand later that day which would be entered

16

into Plaintiff’s medical staff file. When Plaintiff asked to see the Disapprobation Letters,

17

Kercher, Harris and Ragland refused to provide them. As officers of KMC, Harris, Kercher,

18

Ragland and Abraham approved, accepted, and/or failed to intercede against Roy’s defamatory

19

acts or their subsequent republication by Harris and DOES 1 through 10, and in so doing, ratified

20

such defamatory acts.

21

62.65. Later that day, Harris, Kercher, Ragland and Abraham issued a formal letter of

22

reprimand addressed to Plaintiff (“Reprimand Letter”). The Reprimand Letter stated: “Your

23

repeated misconduct at the Tumor Conference on October 12, 2005 was noted by numerous

24

attendants, three of which have written letters of their dissatisfaction, which will be entered into

25

your medical staff file.” The three letters to be entered into Plaintiff’s medical staff file included

26

the Roy Letter. As officers of KMC, Harris, Kercher, Ragland and Abraham approved, accepted,

27

and/or failed to intercede against Roy’s defamatory acts or their subsequent republication by

28

Harris and DOES 1 through 10, and in so doing, ratified such defamatory acts.

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63.66. During the period from on or about October 17, 2005 to on or about January

2

2007, Plaintiff submitted numerous requests to Harris, Ms. Karen Barnes, Deputy County

3

Counsel for the County of Kern (“Barnes”), and Bryan to see the Disapprobation Letters. He was

4

continuously refused. As officers of KMC, Harris and Bryan approved, accepted, and/or failed to

5

intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1

6

through 10, and in so doing, ratified such defamatory acts.

7

64.67. On or about December 12, 2005, Young sent a letter to Barmann stating:

8

12

Recently, Dr. Jadwin was advised that several of the staff physicians had written letters of dissatisfaction regarding Dr. Jadwin’s professionalism and was advised that these letters were placed into his personnel/medical staff file. When the doctor asked to see these letters, he was refused access to them and was subsequently told that the letters had not been placed into his file. Dr. Jadwin then sent an e-mail to Deputy County Counsel, Karen Barnes, copy attached, regarding an opinion with respect to his right to inspect the file. At this juncture, there has been no reply to his request. Needless to say, Dr. Jadwin is extremely upset and emotionally distraught over the present state of affairs.

13

65.68. On or about January 6, 2006, Barnes sent a letter on behalf of Barmann and

9 10 11

14

addressed to Young. The letter included as an attachment a copy of the Roy Letter, redacted to

15

conceal Roy’s identity. This letter afforded Plaintiff his first opportunity to see the Roy Letter

16

and the defamatory statements contained therein.

17

66.69. On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan, stating:

18

I have been victim of professional mistreatment by a few members of medical staff. You are aware of these instances. I believe this harassment is in response to the many quality management issues that I have raised. This harassment has led me develop depression, anxiety and insomnia. Most recent issue involving the October Oncology Conference is still unresolved. I request administrative leave with pay until this issue is resolved.

19 20 21

67.70. On or about February 10, 2006, Plaintiff sent a letter addressed to Roy, 22 challenging the truthfulness of the claims contained in Roy’s letter of July 15, 2005, that Roy had 23 reported certain patient cases handled by the Pathology Department to the KMC administration 24 for quality assurance review. Plaintiff stated “to my knowledge no credible report has been 25 submitted. As of today, I have not received notice of any deficient reports from you.” Plaintiff 26 further challenged the truthfulness of other defamatory statements contained in the Roy Letter 27 and demanded “immediate proof of these allegations within 14 days”. Plaintiff went on to state 28 that if Roy failed to produce such proof, then Roy should issue an apology meeting Plaintiff’s

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specifications. 68.71. On or about February 21, 2006, Bryan sent a letter addressed to Plaintiff, stating in relevant part: I received a copy of your letter to Dr. Roy dated February 10, 2006 and I must say that I am disappointed in your decision to send it… I know that you felt justified in sending the letter. You feel that Dr. Roy besmirched your reputation and challenged your professional competency. Furthermore, you feel that there is no evidence to support his characterizations of you and you are demanding that he recant his comments and apologize. All of these things may or may not be as you say. However, your decision to confront the issues this way is not a good one…. It is not your message that people react to but rather how you deliver it…. Dr. Roy’s letter was correspondence submitted through the medical staff structure, and the staff officers and Chief Medical Officer have the obligation to decide what to do with that input. They can either ignore that correspondence because of a lack of supporting evidence, call for a review of the quality of your work, or cause a meeting to happen between you and Dr. Roy and Dr. Perez to further clarify the basis of Dr. Roy’s concerns.

11 69.72. As an officer of KMC, Bryan approved, accepted, and/or failed to intercede 12 against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1 through 13 10, and in so doing, ratified them. 14 70.73. On or about March 16, 2006, Plaintiff sent an email addressed to Kercher and 15 carbon-copied to Bryan, stating: 16 17 18 19

I am further requesting an investigation of Dr. Roy’s professional behavior by the medical staff… [H]e has made outrageous false statements about the pathology department and myself, which cause great concern about his ethical integrity…. I think it is outrageous that the medical staff sits by and lets this individual act in such a pompous, destructive manner. I feel a personal duty to the pathology department (and the hospital) to push the issue of his bad conduct in whatever venue may be needed to control the actions of this individual.

20 71.74. On or about March 30, 2006, Young sent a letter addressed to Roy, stating: 21

25

Dr. Jadwin is very upset with the alleged statements attributable to you regarding his reputation in the medical community. Unless you come forward with facts in support of your position to show the truth thereof or issue a written apology to Dr. Jadwin, he will have no alternative but to seek recourse against you for damaging his reputation. While professionals may justifiably have a difference of opinion regarding complex issues in the field of medicine, there is really no place for publishing statements about a colleague that are not true and intended to tarnish one’s reputation.”

26

72.75. To date, Plaintiff is informed and believes and thereupon alleges: (i) Roy has

22 23 24

27

never responded to Plaintiff’s repeated requests for factual substantiation of Roy’s numerous

28

defamatory statements; (ii) KMC never conducted an investigation into Roy’s professional

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misconduct; and (iii) Harris, Kercher, Bryan and Abraham have approved, accepted, and refused

2

to intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES

3

1 through 10.

4

E.

5

MEDICAL LEAVE 73.76. As of December 16, 2005, Plaintiff was eligible for twelve weeks of medical

6

leave under FMLA and CFRA pursuant to 29 C.F.R. § 825.110 and 2 C.C.R. § 72970(e),

7

respectively, in that he had been regularly employed by Defendant County for 1,250 hours in the

8

twelve months immediately prior to the start of his leave and had not taken any medical or

9

family leave during that time.

10

74.77. An eligible employee’s rights under CFRA and FMLA include a “reduced work

11

schedule” pursuant to 29 C.F.R. § 825.203 that is “medically necessary” pursuant to 29 C.F.R.

12

825.117.

13

75.78. On or about December 16, 2005, Plaintiff submitted to KMC a copy of his

14

psychiatrist’s certification stating that Plaintiff needed a reduced work schedule leave until at

15

least March 16, 2006 because of his serious medical condition.

16 17 18

76.79. Plaintiff’s notice to KMC of his need for medical leave was reasonable under the circumstances. 77.80. On or about December 16, 2005 Plaintiff began his medically necessary reduced

19

work schedule that permitted him to perform all of his duties as Chair of Pathology, and reduced

20

his schedule only as to his duties as a regular pathologist.

21

78.81. On or about March 2, 2006, Plaintiff was finally provided with a Request for

22

Leave of Absence form which he then submitted to KMC’s HR Department. KMC’s HR

23

Department formally approved the leave on March 13, 2006.

24

79.82. Also on or about March 2, 2006, Plaintiff received a document entitled

25

“Designation of Leave (Serious Health Condition of Employee-Intermittent)” (“Leave

26

Designation Notice”) from the HR Department at KMC that informed Plaintiff:

27 28

You also have the right to be reinstated to the same or an equivalent job with the same pay, benefits and terms and conditions of employment on your return from leave. Please note that the leave provisions for County employees are more generous than those mandated by FMLA and CFRA and, accordingly, you may be

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eligible for more than the twelve (12) weeks of unpaid leave described above.”

2

80.83. On or about April 10, 2006, Plaintiff sent an email to Bryan stating: “I believe

3

that we have a meeting this Thursday at 1500. I can discuss a schedule with you. I have been

4

working only to help out Phil and Savita during periods of shortage, and to keep on top of some

5

administrative work. I am always available for necessary discussions. Just have Arlene or Tracy

6

call me.”

7

81.84. On or about April 17, 2006, Bryan wrote a letter addressed to Plaintiff,

8

purportedly memorializing Bryan’s April 13, 2006 meeting with Plaintiff in which he

9

acknowledged, “Yes, the Department of Pathology continues to function well as it has for many

10

years, and yes, you have made many positive changes in the department.” Bryan also

11

acknowledged that Plaintiff’s whistleblowing activity had created “the dysfunctional relationship

12

you have with some key members of the staff” and asked for Plaintiff to either cease upsetting

13

staff with his whistleblowing activity or to step down as Chairman on his return from medical

14

leave.

15

82.85. On or about April 20, 2006, Plaintiff received notice from KMC’s HR

16

Department that his “Intermittent Leave of Absence” had expired on March 15 and that in order

17

to extend his leave, he would need to submit a “Request for Leave of Absence” form to the HR

18

Department by “no later than Tuesday, April 25, 2006”.

19

83.86. On or about April 26, 2006, Plaintiff submitted a Request for Leave of Absence

20

form to KMC’s HR Department, along with a copy of his psychiatrist’s certification that Plaintiff

21

needed an extension of his reduced work schedule leave for six months to one year because of

22

his serious medical condition.

23

84.87. However, on or about April 28, 2006, Bryan met with Plaintiff, Barnes and Steve

24

O’Conner of the HR Department (“O’Conner”) and ordered Plaintiff to convert his reduced work

25

schedule to involuntary full-time medical leave despite the fact that Plaintiff was ready, willing,

26

and able to continue working his reduced work schedule (“Forced FT Leave”). Bryan further told

27

Plaintiff that he needed to know by June 16, 2006 whether Plaintiff would resign as Chair; and

28

that if he resigned he would be in the same position as Adam Lang, a former staff pathologist at

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KMC, who retained only hospital privileges but whose employment contract had been

2

terminated. Hence, Bryan threatened Plaintiff not only with removal from chairmanship, but

3

termination of the Second Contract, thereby giving notice that he would not honor any guarantee

4

of reinstatement to Plaintiff’s same or equivalent position.

5

85.88. On or about April 28, 2006, Bryan wrote a letter to Plaintiff purportedly

6

memorializing the April 26, 2006 meeting and stating that he required Plaintiff to go on full-time

7

leave from May 1, 2006 to June 16, 2006 when Plaintiff’s right to medical leave would

8

purportedly expire; and required Plaintiff to either return to work full-time on June 17, 2006 or

9

resign, purportedly because “the hospital needs you here full-time.”

10

86.89. On or about May 5, 2006, Plaintiff underwent nasal surgery followed by a

11

difficult recovery which limited his ability to breathe and exert himself for approximately one

12

month.

13

87.90. On or about May 29, 2006, Plaintiff fractured his foot and avulsed a ligament

14

from his ankle in an accident which limited his ability to walk, stand or sit without elevating his

15

ankle for approximately three months.

16

88.91. On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan, stating:

17

20

Unfortunately, I underwent sinus surgery in early May which took some time to recover from. Then last Monday, I suffered a serious fall down a staircase that will require a cast on my left ankle and impose serious restrictions on my mobility for at least four weeks. I would greatly appreciate an extension of the June 16 deadline as my physical ailments of late simply have not permitted me to consider and render such an important decision nor do they physically permit me to come to the office by June 16.

21

89.92. On or about June 14, 2006, Bryan sent an email addressed to Plaintiff informing

22

Plaintiff that Bryan was unilaterally removing Plaintiff from his position as Chair of Pathology,

23

thereby denying Plaintiff reinstatement to his same or equivalent position despite written

24

guarantees to the contrary. The email stated:

18 19

25 26 27 28

My response to your request for an extension of medical leave has a two part answer. First, I will extend leave to a Personal Necessity Leave for your employment status only. This means that you have 90 days of extended leave which will protect your overall employment status. At the end of this 90 day period, you must either return to duty or resign from employment. Second, I will not extend your leave as it relates to your appointment as Chairman, Department of Pathology. I am implementing the provisions of paragraph 9.6-4, REMOVAL, Medical Staff Bylaws, and withdrawing your appointment as Chairman,

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Department of Pathology. This institution needs to have full-time leadership in the department and because of your leave you have not been able to provide it. Should you return to work after the completion of your Personal Necessity Leave then your employment contract will be modified as mutually agreed to reflect that you are still an employed pathologist (should you choose this option), but you will not retain the duties and appointment of a chairman. My decision to do this, Dr. Jadwin, is based solely on your inability to provide consistent and stable leadership in the department for most of the past eight to nine months. You have used all of your sick and vacation time in addition to using all available time under the medical leave provisions of County policy. It is unfortunate that you had your accident which delayed your return but the hospital needs to move on.

7

90.93. Later, on or about June 14, 2006, Bryan sent a letter addressed to Plaintiff

1 2 3 4 5

8

reiterating that Bryan was rescinding Plaintiff’s Chairmanship of the Pathology Department

9

because Plaintiff had “essentially been out on either full or part-time leave for the past eight or

10

nine months” – an inaccurate statement – and because “the Department of Pathology needs a

11

full-time chairman.”

12 13 14 15 16

91.94. On information and belief, on or about July 10, 2006, the JCC approved Plaintiff’s removal from Chairmanship by a majority vote. 92.95. Plaintiff’s demotion breached the guarantee of reinstatement contained in the Leave Designation Notice. 93.96. On or about September 18, 2006, Barnes sent Plaintiff’s attorney a proposed

17

amendment (“Amendment”) to the Second Contract which included a base salary reduction of

18

over 35% (“Paycut”), allegedly as a consequence of Plaintiff’s removal from Chairmanship.

19

94.97. On or about September 18, 2006, Plaintiff sent an email addressed to Barnes

20

protesting the Paycut. The email stated:

24

Mr. Bryan stated in his letter to me that his decision to strip me of my chairmanship was based on the sick leaves I was taking. KMC’s proposed reduction of my base salary seems to have the purpose of punishing me further. I wish to return to work at KMC, but I believe the proposed drastic reduction in my base salary as benchmarked against Dr. Dutt’s is utterly unfair on numerous levels. I am left feeling that this is simply another retaliatory effort on the part of KMC.

25

95.98. On or about September 20, 2006, Culberson sent a letter addressed to Plaintiff

21 22 23

26 27 28

explaining the Paycut. 96.99. On or about September 22, 2006, Plaintiff executed the Amendment memorializing the Paycut and submitted it to Barnes.

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97.100.On or about October 3, 2006, the Board of Supervisors for Defendant County voted to approve the Amendment. 98.101.On October 4, 2006, Plaintiff’s 90-day personal necessity leave ended and

3 4

Plaintiff returned to work at KMC as a staff pathologist. Plaintiff’s former subordinate,

5

Defendant Dutt, was chosen to replace Plaintiff as Acting Chair of Pathology.

6

99.102.Between on or about October 4, 2006 until on or about December 7, 2006,

7

Defendant Dutt yelled at, harassed, insulted, ridiculed Plaintiff, both verbally and in a series of

8

emails.

9

100.103.

On or about December 4, 2006, Plaintiff sent a letter addressed to

10

Culberson and carbon-copied to key members of KMC’s medical staff and administration,

11

protesting Defendant Dutt’s behavior and raising additional concerns about patient care quality,

12

safety and legal noncompliance.

13

101.104.

On or about December 7, 2006, Culberson sent a letter addressed to

14

Plaintiff informing him that he was being placed on involuntary paid administrative leave

15

“pending resolution of a personnel matter”.

16

102.105.

On March 28, 2007, KMC authorized Plaintiff to access his office in order

17

to retrieve his personal computer files. Upon his arrival, Defendant Dutt informed him that his

18

office was now locked and that Defendant Dutt now had custody of the key, that Plaintiff’s file

19

cabinet and computer had been physically removed and retasked for other purposes at KMC, and

20

that Plaintiff would not be able to access his personal computer files after all.

21

103.106.

On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he

22

still had yet to be provided any explanation for his involuntary leave or any indication as to

23

whether or when it would end so that he could return to work, (ii) the involuntary leave requiring

24

him to remain at home by his phone during working hours was threatening to erode his

25

pathology skills, jeopardizing his employability and career as a pathologist, (iii) the involuntary

26

leave was denying him the opportunity to earn income from professional fee billing, and (iv)

27

part-time work was deemed therapeutic for him by his physician and that the confinement to his

28

house during working hours was having the opposite effect of severely exacerbating his

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depression.

2

F.

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DISABILITY DISCRIMINATION 104.107.

In 2003, Plaintiff had notified KMC that he suffered from depression due

4

to work-related hostility and KMC’s failure to resolve Plaintiff’s compliance and patient care

5

concerns. KMC subsequently permitted Plaintiff to undertake a medically necessary reduced

6

work schedule leave as a reasonable accommodation.

7

105.108.

By December 16, 2005, Plaintiff was suffering extreme stress from the

8

hostile work environment created by the harassment, defamation, discrimination, and retaliatory

9

adverse actions of Defendants and each of them. Plaintiff’s depression subsequently became

10

disabling in that it limited his ability to enjoy life, without anxiety or insomnia..

11

106.109.

On or about December 16, 2005, Plaintiff submitted to KMC a copy of his

12

psychiatrist’s certification that Plaintiff needed a reduced work schedule leave because of his

13

serious medical condition.

14

107.110.

On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan,

15

stating: “This harassment has led me develop depression, anxiety and insomnia. Most recent

16

issue involving the October Oncology Conference is still unresolved. I request administrative

17

leave with pay until this issue is resolved.”

18

108.111.

On or about January 9, 2006, Plaintiff met with Bryan regarding his

19

request for a medically necessary reduced work schedule, and clarified that it was necessary

20

because of the reoccurrence of his disabling depression. Bryan orally approved Plaintiff’s

21

reduced work schedule.

22

109.112.

Defendants, and each of them, knew or should have known that Plaintiff

23

was an individual with a disability that limited his major life activities of taking pleasure in life,

24

without experiencing anxiety, insomnia or difficulty breathing and moving, and/or was perceived

25

by Defendants as having such limitations.

26

110.113.

On or about March 2, 2006, Plaintiff sent an email to Bryan, repeating his

27

previous verbal request weeks earlier that KMC hire a locum tenens pathologist to assist with the

28

Pathology Department’s workload during Plaintiff’s reduced work leave.

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111.114.

Document 161

Filed 07/07/2008

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On or about March 24, 2006, Plaintiff sent an email to Bryan, expressing

2

his disappointment that KMC had not yet hired a locum tenens pathologist to assist with the

3

Pathology Department’s workload during Plaintiff’s reduced work leave, as Plaintiff had

4

previously requested.

5

112.115.

On or about April 10, 2006, Plaintiff sent an email to Bryan, stating that

6

he had not been informed that KMC had finally hired a locum tenens pathologist. The email

7

stated: I don’t know of Dr. Bhargava and didn’t know that a contract with Dr. Bhargava was signed. Had I known, I would have placed him on the call schedule for the coming months. I felt obligated to take some of the call, even though I am off, because there would not be enough resources for the call schedule.

8 9 10

113.116.

On or about April 17, 2006, Bryan wrote a letter addressed to Plaintiff in

11 which he acknowledged that “Yes, the Department of Pathology continues to function well as it 12 has for many years, and yes, you have made many positive changes in the department [emphasis 13 added]”. 14 114.117.

On or about April 26, 2006, Plaintiff submitted a Request for Leave of

15 Absence form to KMC’s HR Department, along with a copy of his psychiatrist’s certification 16 that Plaintiff needed an extension of his reduced work schedule leave for six months to one year 17 because of his serious medical condition. 18 115.118.

Nevertheless, on or about April 28, 2006, Bryan met with Plaintiff, Barnes

19 and O’Conner, and ordered Plaintiff to convert his reduced work schedule to involuntary full20 time medical leave despite the fact that Plaintiff was ready, willing, and able to continue working 21 his reduced work schedule, thereby removing an accommodation of Plaintiff’s disability and 22 refusing to engage in good faith in an interactive process with Plaintiff. 23 116.119.

On or about May 5, 2006, Plaintiff underwent nasal surgery followed by a

24 difficult recovery, which limited his ability to breathe and exert himself for approximately one 25 month. 26 117.120.

On or about May 29, 2006, Plaintiff fractured his foot and avulsed a

27 ligament from his ankle in an accident which limited his ability to stand, sit without elevating his 28 ankle, or walk for approximately three months.

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118.121.

Document 161

Filed 07/07/2008

Page 41 of 76

On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan,

2

requesting an extension of Plaintiff’s leave, which was due to expire on June 16, 2006, because

3

of Plaintiff’s nasal surgery and foot injury.

4

119.122.

On or about June 14, 2006, Bryan sent an email addressed to Plaintiff

5

informing Plaintiff that Bryan was unilaterally removing Plaintiff from his position as Chair of

6

Pathology purportedly because “[t]his institution needs to have full-time leadership in the

7

department and because of your leave you have not been able to provide it.”

8

120.123.

Later, on or about June 14, 2006, Bryan sent a letter address to Plaintiff

9

containing statements similar to those contained in Bryan’s email of earlier that day, and

10

reiterating that “the Department of Pathology needs a full-time chairman.”

11

121.124.

On April 4, 2007, after KMC had placed Plaintiff on involuntary paid

12

leave, Plaintiff placed Defendant County on notice that (i) he still had yet to be provided any

13

explanation for his involuntary leave or any indication as to whether or when it would end so that

14

he could return to work, (ii) the involuntary leave requiring him to remain at home by his phone

15

during working hours was threatening to erode his pathology skills, jeopardizing his

16

employability and career as a pathologist, (iii) the involuntary leave was denying him the

17

opportunity to earn income from professional fee billing, and (iv) part-time work was deemed

18

therapeutic for him by his physician and that the confinement to his house during working hours

19

was having the opposite effect of severely exacerbating his depression.

20

125.

At all times material here, excluding a portion of the time when he was out on

21

voluntary full-time medical leave, Plaintiff has been able to perform the essential functions of the

22

employment positions he held with Defendants and each of them, with reasonable

23

accommodation.

24

122.126.

25 26 27 28

Plaintiff requested reasonable accommodation of his disabilities from

Defendants, and each of them, in the form of a reduced work schedule and/or recuperative leave. 123.127.

Allowing Plaintiff to take the medical and/or recuperative leave that he

requested would have been a reasonable accommodation of Plaintiff’s disabilities. 124.128.

Holding open Plaintiff’s position as Chair of Pathology while he was on

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leave would have been a reasonable accommodation of Plaintiff’s disabilities.

2

125.129.

Holding open Plaintiff’s position as Chair of Pathology while he was on

3

leave would not have been unduly burdensome for the County or KMC.

4

G.

DUE PROCESS 126.130.

5

Pursuant to 9.6-4 of the Bylaws, Bryan was not authorized to remove

6

Plaintiff from his position as Chair of Pathology, but could only recommend such removal to the

7

JCC.

8 9

127.131.

It is customary for the County and/or KMC to remove a Department Chair

pursuant to 9.6-4 of the Bylaws only for cause.

10

128.132.

It is customary for the County and/or KMC to provide a hearing and

11

opportunity to be heard before removing a Department Chair of KMC from office, and before a

12

demotion that results in a substantial and/or excessive reduction in compensation 129.133.

13

When necessary, it is customary for the County and/or KMC to appoint a

14

temporary replacement as “Acting” senior manager in the place and stead of a senior manager,

15

such as Plaintiff, when the senior manager’s position is left vacant because of a leave of absence

16

or termination of employment.

17 18

130.134.

Defendants, and each of them except Roy, demoted and reduced the

compensation of Plaintiff without cause or justification.

19

131.135.

Defendants, and each of them except Roy, demoted and the reduced the

20

compensation of Plaintiff without providing him with the customary hearing or notice thereof.

21

H.

22

ADVERSE ACTIONS 132.136.

Defendants, and each of them, have taken adverse employment actions

23

against Plaintiff, willfully and intentionally creating a hostile work environment, subjecting him

24

to acts of defamation and ratification thereof, demotion and excessive reduction in pay, disparate

25

treatment, unwarranted criticism and reprimands, threats, requests for his resignation,

26

interference with and denial of his right to medical leave, refusing to engage in good faith in an

27

interactive process and denying him reasonable accommodation and procedural due process

28

because of his protected characteristics and/or activities alleged herein.

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133.137.

Document 161

Filed 07/07/2008

Page 43 of 76

On May 1, 2007, Defendant County notified Plaintiff that he would

2

remain on paid administrative leave until his employment contract expired on October 4, 2007;

3

and that, contrary to its prior and customary practice, Defendant County did not intend to renew

4

his employment contract. Although Plaintiff was no longer restricted to the confines of his home

5

during working hours, he still could not enter KMC’s premises or access his office without prior

6

written permission.

7

138.

On October 4, 2007, Defendant County failed to renew Plaintiff’s employment

8

contract, which therefore expired.

9

I.

10

DAMAGES AND CAUSATION 134.139.

As a result of Defendants’ acts and omissions alleged herein, Plaintiff has

11

suffered pecuniary losses, such as loss of wages and benefits, and has been required to incur

12

medical and legal expenses and to hire attorneys in order (i) to enforce Plaintiff’s rights, (ii) to

13

enforce provisions of the law protecting whistleblowers, employees who exercise their right to

14

medical leave under CFRA and FMLA, and employees with disabilities that need reasonable

15

accommodation, and (iii) to take such action both in his own interest and in order to enforce

16

important rights affecting the public interest.

17

135.140.

After Plaintiff’s returned from leave on October 4, 2006, Defendants and

18

each of them except Roy, and Harris placed Plaintiff in the position of staff pathologist and

19

excessively reduced his salary by $100,842 or over 35%.

20

136.141.

On information and belief, Plaintiff’s salary for his work as a staff

21

pathologist for KMC was less than the benchmark National Medical Group Association

22

(“NMGA”) median salary for a clinical and anatomic pathologist with Plaintiff’s qualifications

23

and experience, in breach of the Second Contract.

24

142.

During the time that Defendants placed Plaintiff on involuntary full-time leave,

25

including the period from December 7, 2006 to October 4, 2007, Defendants effectively denied

26

Plaintiff the opportunity to earn Professional Fees as set forth in Article II of the Second

27

Contract.

28

137.143.

As a further result of Defendants’ acts and omissions alleged herein,

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1

Plaintiff has suffered and continues to suffer non-economic damages, such as emotional distress,

2

anxiety, humiliation, and loss of reputation.

3 4 5

138.144.

The acts and omissions of Defendants, and each of them, alleged herein

were and are a substantial factor in causing Plaintiff’s harm. 139.145.

The acts and omissions of Defendants Bryan, Harris, Roy alleged herein

6

are despicable, oppressive and were done in conscious disregard of the rights of individuals and

7

whistleblowers, such as Plaintiff, and of the safety of public patients, and have evidenced actual

8

or implied malicious intent toward Plaintiff, thereby entitling him to an award of punitive

9

damages against Defendants Bryan, Harris, Roy pursuant to §3294 Civil Code in an amount

10

sufficient to make an example of Defendants Bryan, Harris, Roy and Dutt and discourage others

11

from conscious disregard for the rights of individuals and whistleblowers and for the safe care

12

and condition of public patients. Plaintiff does not know the financial worth of Defendants

13

Bryan, Harris, Roy or the amount of punitive damages sufficient to accomplish the public

14

purposes of §3294 Civil Code and will seek leave to amend this complaint when such facts are

15

known or proceed according to proof at trial.

16

140.146.

Plaintiff has mitigated his damages by seeking and maintaining medical

17

and psychiatric treatment and by taking progressive steps to try to protect his reputation and

18

restore confidence in the Pathology Department at KMC.

19 20

EXHAUSTION OF REMEDIES 141.147.

On July 3, 2006, Plaintiff filed a Tort Claims Act complaint with the

21

County of Kern. The complaint disclosed Plaintiff’s claims of defamation against Roy, Harris

22

and Defendants DOES 1 through 10, and of retaliation against Defendant County for engaging in

23

whistleblowing activity concerning unsafe patient care and conditions at KMC and his refusal to

24

participate in activities that he reasonably believed to be unlawful against Defendant County (a

25

true and correct copy of which is attached hereto as Exhibit 2 and incorporated by reference

26

herein). The Office of the County Counsel for the County of Kern sent a letter to Plaintiff’s

27

counsel, dated September 15, 2006 (a true and correct copy of which is attached hereto as

28

Exhibit 3 and incorporated by reference herein), giving notice that Plaintiff’s complaint was

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1

deemed rejected by operation of law and informing Plaintiff that he had six months from the date

2

of such notice to file a court action on his claims. Plaintiff continues to be employed by KMC as

3

a staff pathologist and continues to be subject to a hostile work environment and retaliation on an

4

ongoing basis.

5

142.148.

On April 23, 2007, Plaintiff filed a supplemented Tort Claims Act

6

complaint with the County of Kern, supplemented to reflect events occurring after filing of the

7

initial Tort Claims Act complaint on July 3, 2006.

8

149.

On October 10, 2007, Plaintiff filed a supplemented Tort Claims Act complaint

9

with the County of Kern, supplemented to reflect events occurring after filing of the

10

supplemented Tort Claims Act complaint on April 23, 2007.

11 12 13

143.150.

Plaintiff intends to file supplemented Tort Claims Act complaints with the

County of Kern on a periodic and continuing basis. 144.151.

On August 3, 2006, Plaintiff filed a complaint with the California

14

Department of Fair Employment and Housing (“DFEH”), followed by an amended complaint

15

filed on November 14, 2006. The complaint stated claims against Defendant County for

16

discrimination on the basis of disability, as well as failure to engage in good faith in an

17

interactive process, failure to provide reasonable accommodation, violations of Plaintiff’s

18

medical leave rights. Plaintiff received a right-to-sue notice from the DFEH, true and correct

19

copies of which are attached hereto as Exhibit 4 and incorporated by reference herein.

20

145.152.

On April 23, 2007, Plaintiff filed a supplemented complaint with the

21

DFEH, supplemented to reflect events occurring after filing of the initial complaint with the

22

DFEH on August 3, 2006.

23

153.

On October 16, 2007, Plaintiff filed a supplemented complaint with the DFEH,

24

supplemented to reflect events occurring after filing of the supplemented complaint with the

25

DFEH on April 23, 2006.

26 27 28

146.154.

Plaintiff intends to file supplemented complaints with the DFEH on a

periodic and continuing basis. 147.155.

Plaintiff filed a notice of intent to sue under Section 1102.5 of the Labor

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Code, without seeking any penalties, with the Labor and Workforce Development Agency

2

(“LWDA”) on January 5, 2007, a true and correct copy of which is attached hereto as Exhibit 5

3

and incorporated by reference herein. On February 15, 2007, the LWDA mailed notice to

4

Plaintiff that it was in receipt of Plaintiff’s notice of intent to sue. To date, Plaintiff has not

5

received any citation or notice that LWDA will investigate or pursue this claim.

6

148.156.

On January 24, 2007, Plaintiff gave notice to the U.S. Department of

7

Labor that he had filed a complaint and initiated this action in US district court, alleging

8

interference with Plaintiff’s right to family and medical leave under FMLA. No right-to-sue

9

notice has issued as Plaintiff has a free-standing private right of action under FMLA.

10

STATEMENT OF CLAIMS

11

FIRST CLAIM

12

(Retaliation in Violation of Health & Safety Code § 1278.5) (Against Defendants County and DOES 1 through 10)

13 149.157.

Plaintiff alleges this first and separate claim for Retaliation in violation of

14 Health & Safety Code § 1278.5 against Defendant County. 15 150.158.

Plaintiff incorporates by reference herein the allegations set forth in

16 Paragraphs 1 through 163, inclusive, above. 17 151.159.

At all material times herein, Health & Safety Code § 1278.5 provided

18 protection from discrimination and retaliation for health care workers who reported suspected 19 unsafe care and conditions of patients in health care facilities. 20 152.160.

Defendants and each of them knew of Plaintiff’s whistleblowing activity

21 regarding suspected unsafe care and conditions of patients at KMC. 22 153.161.

Defendants and each of them have violated Section 1278.5 of the Health

23 & Safety Code by engaging in a continuous and ongoing pattern and practice of discrimination 24 and retaliation against Plaintiff because he engaged in whistleblowing activity protected by 25 Section 1278.5 of the Health & Safety Code. 26 154.162.

A motivating factor for the acts and omissions of Defendants and each of

27 them described herein was Plaintiff’s reports to his employer, Barmann, and Authorities 28 regarding what he reasonably believed to be unsafe patient care and conditions.

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WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

2

SECOND CLAIM:

3

(Retaliation In Violation Of Lab. Code § 1102.5) (Against Defendants County and DOES 1 through 10)

4 5 6 7 8 9 10

155.163.

Plaintiff alleges this second and separate claim for Retaliation in violation

of Labor Code § 1102.5 against Defendant County and DOES 1 through 10, inclusive 156.164.

Plaintiff incorporates by reference herein the allegations contained in

Paragraphs 1 through 163 above, inclusive. 157.165.

At all material times herein, Labor Code § 1102.5 was in effect, and

provides in pertinent part:

16

1102.5. (a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

17

158.166.

11 12 13 14 15

18 19 20 21

Plaintiff reported his reasonable suspicions about illegal, non-compliant,

and unsafe care and conditions of patients at KMC to his employer, Barmann, and Authorities. 159.167.

Defendants, and each of them, knew of Plaintiff’s whistleblowing reports

protected by Section 1102.5 of the Labor Code. 160.168.

Defendants, and each of them, engaged in a continuous and ongoing

22

pattern and practice of discrimination and retaliation against Plaintiff because he engaged in

23

activity protected by Section 1102.5 of the Labor Code.

24

161.169.

Plaintiff’s activity protected by Section 1102.5 of the Labor Code was a

25

contributing factor in the continuous pattern and practice of discrimination and retaliation of

26

Defendants, and each of them, against Plaintiff described in this complaint.

27

WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

28

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1

THIRD CLAIM

2

[Retaliation (CFRA - Gov’t Code §§ 12945.1, et seq.)] (Against Defendants County and DOES 1 through 10, inclusive.)

3 162.170.

Plaintiff alleges this third and separate claim for violations of Government

4 Code §§ 12945.1, et seq., against Defendants County and DOES 1 through 10, inclusive. 5 163.171.

Plaintiff incorporates by reference herein the allegations contained in

6 Paragraphs 1 through 163 above, inclusive. 7 164.172.

At all material times herein, Section 12945.2(a)(1) of the Government

8 Code and 2 C.C.R. § 7297.7(a) prohibit any person from discriminating, discharging, or 9 retaliating against an employee for exercising his right to medical leave. 10 165.173.

Pursuant to 2 C.C.R. § 7297.2(a), CFRA requires that upon granting of

11 leave, an employer shall guarantee to reinstate an employee to the same or comparable position, 12 and must do so unless refusal to reinstate is “justified” by the defenses stated in 2 C.C.R. § 13 72972(c). 14 166.174.

At all material times herein, the County lacked “justification” pursuant to

15 2 C.C.R. § 7297.7(c) for refusing to reinstate Plaintiff to the same or comparable position on his 16 return from medical leave. 17 167.175.

Defendants, and each of them, retaliated against Plaintiff for exercising his

18 right to medical leave, including denying him a medically necessary reduced work schedule; 19 unjustified notice of Defendants’ intent not to reinstate Plaintiff to his former or comparable 20 position on his return from leave; Defendant’s unjustified refusal to reinstate Plaintiff to his 21 former or comparable position on his return from leave; demoting him; and excessively reducing 22 his salary and chance to earn professional fees, bonuses and promotion. 23 168.176.

Plaintiff’s exercise of his right to medical leave was a motivating reason

24 for Defendants’ adverse treatment Plaintiff. 25 WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. 26 FOURTH CLAIM 27 28

[Interference With FMLA Rights in violation of 29 U.S.C. §§ 2601, et seq.] (Against Defendants County, Bryan, and DOES 1 through 10, inclusive.)

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169.177.

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Plaintiff alleges this fourth and separate claim for violations of 29 U.S.C.

2

§§ 2601, et seq. against Defendants County, Bryan, and DOES 1 through 10, inclusive, and each

3

of them.

4 5 6

170.178.

Plaintiff incorporates by reference herein the allegations contained in

Paragraphs 1 through 163 above, inclusive. 171.179.

At all material times herein, FMLA was in effect and pursuant to 29

7

U.S.C. § 2611(4)(A)(ii)(I) imposed liability on covered employers and “any person who acts

8

directly or indirectly in the interest of the employer to any of the employees of such employer”

9

for interfering, restraining, or denying the exercise of, or attempt to exercise, any right provided

10

under FMLA pursuant to 29 U.S.C. § 2615(a).

11 12 13

172.180.

Defendants, and each of them, interfered, restrained, or denied the exercise

of, or attempt to exercise, Plaintiff’s rights under FMLA. 173.181.

Defendants’ interference, restraint, or denial of the exercise of, or attempt

14

to exercise Plaintiff’s rights under FMLA included interference with and denial of Plaintiff’s

15

right to a medically necessary reduced work schedule; requiring Plaintiff to take full-time

16

medical leave when he was ready, willing, and able to work part-time, exhausting his medical

17

leave more rapidly than permitted; unjustified notice of Defendants’ intent not to reinstate

18

Plaintiff to his former or comparable position on his return from leave; Defendant’s unjustified

19

refusal to reinstate Plaintiff to his former or comparable position on his return from leave;

20

Defendants’ excessive reduction in Plaintiff’s salary.

21 22 23

174.182.

Plaintiff’s exercise of his rights under FMLA was a motivating reason for

Defendants’ adverse treatment of Plaintiff. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

24

FIFTH CLAIM

25

[Violation of CFRA Rights in violation of Gov’t Code §§ 12945.1, et seq.] (Against Defendants County and DOES 1 through 10, inclusive.)

26 175.183.

Plaintiff alleges this fifth and separate claim for violations of Government

27 Code §§ 12945.1, et seq., against Defendants County and DOES 1 through 10, inclusive, and 28 each of them.

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176.184.

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Plaintiff incorporates by reference herein the allegations contained in

Paragraphs 1 through 163 above, inclusive. 177.185.

At all material times herein, the CFRA was in effect and made it an

4

unlawful employment practice for an employer to violate an employee’s rights under the CFRA

5

pursuant to section 12945.2(a) of the Government Code.

6

178.186.

At all material times herein, the CFRA imposed strict liability on covered

7

employers who discriminated against an employee for exercising his right to leave or otherwise

8

interfered with an eligible employee’s CFRA rights pursuant to 2 C.C.R. § 7297.1 and Section

9

1615(a)(2) of the United States Code.

10

179.187.

Pursuant to 2 C.C.R.§ 7297.10, CFRA expressly incorporates federal

11

implementing regulations for FMLA that are not inconsistent with CFRA. 29 C.F.R. 825 §

12

825.700(a) provides that “[i]f an employee takes paid or unpaid leave and the employer does not

13

designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA

14

entitlement.”

15

180.188.

Pursuant to 2 C.C.R. § 7297.4(6), an employer must designate leave as

16

CFRA leave within 10 days of notice of the employee’s need for leave; but the greater

17

protections of 29 C.F.R. § 825.208 which require an employer to do so “within two days absent

18

extenuating circumstances” should apply.

19

181.189.

In Bachelder v. America West Airlines, 259 F.3d 1112 (9th Cir. 2001), the

20

court construed 29 C.F.R. Sec. 825.200(e) and held that where an employer does not designate

21

the method used in calculating employees’ entitlement to leave, “the option that provides the

22

most beneficial outcome for the employee will be used.”

23

182.190.

Pursuant to Government Code § 12945.2(a) and 2 C.C.R. § 7297.2(A),

24

medical leave requested is not be deemed to have been granted unless the employer provides the

25

employee, upon granting the leave request, a written guarantee of employment in the same or a

26

comparable position upon the termination of the leave.

27 28

183.191.

Pursuant to 2 C.C.R. § 7297.2(a), CFRA requires that upon granting of

leave, an employer shall guarantee to reinstate an employee to the same or comparable position,

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1

and must do so unless refusal to reinstate is “justified” by the defenses stated in 2 C.C.R. §

2

72972(c).

3

184.192.

At all material times herein, the County lacked “justification” pursuant to

4

2 C.C.R.C § 7297.7(c) for refusing to reinstate Plaintiff to the same or comparable position on

5

his return from medical leave.

6

185.193.

Defendants, and each of them, discriminated against Plaintiff and

7

otherwise interfered with his CFRA rights because he exercised, or tried to exercise, his CFRA

8

rights, including untimely designation of the initial leave as CFRA leave without providing

9

notice of the method of calculation, untimely notice of how KMC calculated Plaintiff’s

10

entitlement to the extension of his CFRA leave; interference with and denial of Plaintiff’s right

11

to a medically necessary reduced work schedule; requiring Plaintiff to take full-time medical

12

leave when he was ready, willing, and able to work part-time which exhausted his medical leave

13

more rapidly than permitted; unjustified notice of Defendants’ intent not to reinstate Plaintiff to

14

his former or comparable position on his return from leave; Defendant’s unjustified refusal to

15

reinstate Plaintiff to his former or comparable position on his return from leave; and Defendants’

16

excessive reduction in Plaintiff’s salary.

17

186.194.

These violations may also mean that Defendant further violated Plaintiff’s

18

CFRA rights by informing him that his medical leave was exhausted as of June 16, 2005, while

19

Plaintiff may have been entitled to medical leave even as of October 4, 2006 when he returned to

20

work.

21 22 23

187.195.

Plaintiff’s exercise of, or attempt to exercise, his CFRA rights was a

motivating reason for Defendants’ adverse treatment of him. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

24

SIXTH CLAIM

25

[Disability Discrimination in Violation of Gov’t Code § 12940(a)] (Against Defendants County and DOES 1 through 10, inclusive)

26 188.196.

Plaintiff alleges this sixth and separate claim for Disability Discrimination

27 in violation of Government Code § 12940(a) against Defendant County and DOES 1 through 10, 28 inclusive.

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1 2 3 4 5

189.197.

Document 161

Filed 07/07/2008

Page 52 of 76

Plaintiff incorporates by reference herein the allegations contained in

Paragraphs 1 through 163 above, inclusive. 190.198.

The FEHA prohibits discrimination on the basis of disability in

employment. 191.199.

Defendants, and each of them, through their course of conduct denied

6

Plaintiff a benefit of employment, in whole or in part, because he is an individual with known

7

disabilities in violation of Government Code 12940(a) and 2 C.C.R. §7293.7.

8

192.200.

In addition to the adverse actions alleged above, Defendants, and each of

9

them, discriminated against Plaintiff, denied him reasonable accommodation, and refused to

10

engage in good faith in an interactive process because of his known disabilities.

11

WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

12

SEVENTH CLAIM

13

(Failure to Provide Reasonable Accommodation in Violation of Gov’t Code § 12940(m)) (Against Defendants County and DOES 1 through 10, inclusive)

14 15 16 17 18 19 20 21 22 23

193.201.

Reasonable Accommodation in violation of Government Code § 12940(m) against Defendant County and DOES 1 through 10, inclusive. 194.202.

26

Plaintiff incorporates by reference herein the allegations contained in

Paragraphs 1 through 163 above, inclusive. 195.203.

Defendants, and each of them, failed to provide reasonable

accommodation of Plaintiff’s known disabilities in violation of Section 12904(m) of the Government Code and 2 C.C.R. § 7293.9. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. EIGHTH CLAIM

24 25

Plaintiff alleges this seventh and separate claim for Failure to Provide

(Failure to Engage In Interactive Consultation In Violation of Gov’t Code § 12940(n)) (Against Defendants County and DOES 1 through 10, inclusive) 196.204.

Plaintiff alleges this Eighth and separate claim for Failure to Engage in

27

Good Faith in an Interactive Consultation in violation of Government Code § 12940(n) against

28

Defendant County and DOES 1 through 10, inclusive.

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1 2 3

197.205.

Document 161

Filed 07/07/2008

Page 53 of 76

Plaintiff incorporates by reference herein the allegations contained in

Paragraphs 1 through 163 above, inclusive. 198.206.

Defendants, and each of them, failed to engage in good faith in a prompt,

4

ongoing, interactive consultation regarding reasonable accommodation of Plaintiff’s disabilities

5

in violation of Section 12940(n) of the Government Code.

6

WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

7

NINTH CLAIM

8

(Violation of Due Process Right under 42 U.S.C. § 1983) (Against Defendants County of Kern; Bryan both personally and as former CEO of KMC; Kercher both personally and as President of Medical Staff of KMC; Ragland both personally and as President-Elect of Medical Staff of KMC; Abraham both personally and as Immediate Past President of Medical Staff of KMC; and Smith both personally and as Chief Nurse Executive of KMC, in their capacity as members of the JCC of KMC)

9 10 11

199.207.

Plaintiff alleges this Ninth and separate claim for violation of Plaintiff’s

12 Fourteenth Amendment of the United States Constitution Right of Procedural Due Process under 13 42 U.S.C. § 1983 against Defendants County of Kern; Bryan both personally and as former CEO 14 of KMC; Kercher both personally and as President of Medical Staff of KMC; Ragland both 15 personally and as President-Elect of Medical Staff of KMC; Abraham both personally and as 16 Immediate Past President of Medical Staff of KMC; and Smith both personally and as Chief 17 Nurse Executive of KMC, in their capacity as members of the JCC of KMC. 18 200.208.

Plaintiff incorporates by reference herein the allegations contained in

19 Paragraphs 1 through 163 above, inclusive. 20 201.209.

The Fourteenth Amendment of the United States Constitution protects a

21 public employee’s right of procedural due process regarding governmental actions that deprive 22 him of life, liberty, or property interest of constitutional magnitude. 23 202.210.

At all material times herein, Plaintiff had a property interest in his position

24 as Chair of Pathology and in the excessive reduction of his base salary of constitutional 25 magnitude as provided for in the Second Contract. 26 203.211.

Defendants, and each of them, intentionally, or with deliberate

27 indifference to, or with a conscious disregard of, Plaintiff’s Constitutional rights, denied Plaintiff 28 his right to procedural due process guaranteed by the Fourteenth Amendment of the United

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1

States Constitution when they decided to demote Plaintiff and substantially and excessively

2

reduced his salary by a sum of constitutional magnitude in breach of the Second Contract; placed

3

Plaintiff on administrative leave denying him the right to earn professional fees, and failed to

4

renew his employment contract.

5

204.212.

Defendant Bryan, was acting or purporting to act under color of law in the

6

performance of his official duties as Chief Executive Officer of KMC when he unilaterally,

7

arbitrarily, and capriciously demoted Plaintiff and excessively reduced his salary by a sum of

8

constitutional magnitude in violation of the Bylaws and the Second Contract, without providing

9

Plaintiff with the customary notice of hearing and opportunity to be heard to which he was

10

entitled.

11

205.213.

When Plaintiff complained to Bryan that he had been deprived of the

12

customary hearing regarding his demotion and excessive reduction in pay, the JCC met and

13

ratified Bryan’s decision to demote Plaintiff and substantially and excessively reduced his salary

14

in breach of the Second Contract without providing Plaintiff with prior notice of the hearing or

15

an opportunity to be heard.

16

206.214.

Defendants and each of them, were acting or purporting to act under color

17

of law in the performance of their official duties as members of the JCC when they arbitrarily

18

and capriciously decided to demote Plaintiff and substantially and excessively reduced his salary

19

in breach of the Second Contract without providing Plaintiff with the customary notice of

20

hearing and opportunity to be heard to which he was entitled.

21

207.215.

Thereafter, the Kern County Board of Supervisors met and voted to

22

confirm Plaintiff’s demotion and the excessive reduction in Plaintiff’s salary in breach of the

23

Second Contract without providing Plaintiff with notice of the hearing or an opportunity to be

24

heard.

25

216.

On December 7, 2006, Defendants placed Plaintiff on administrative leave,

26

denying him the opportunity to earn clearly established, constitutionally protectable professional

27

fees. In so doing, Defendants failed to give Plaintiff adequate due process and violated his

28

clearly established right to procedural due process.

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217.

Document 161

Filed 07/07/2008

Page 55 of 76

On October 4, 2007, Defendant County failed to renew Plaintiff’s employment

2

contract, denying him clearly established, constitutionally protectable continued employment. In

3

so doing, Defendants failed to give Plaintiff adequate due process and violated his clearly

4

established right to procedural due process.

5 6 7 8 9 10 11

208.218.

The conduct of Defendants, and each of them, violated Plaintiff’s 14th

Amendment right of procedural due process. 209.219.

As a legal result of the conduct of Defendants, and each of them, Plaintiff

was harmed. 210.220.

Defendants’ denial of Plaintiff’s procedural due process right was a

substantial factor in causing Plaintiff’s harm. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

12

TENTH CLAIM

13

(Defamation in Violation of Civ. Code §§ 45-47) (Against Defendants County, Roy, Harris, Dutt, and DOES 1 through 10, and Each of Them)

14 15

211.221.

Plaintiff alleges this Tenth and separate claim for Defamation in violation

16

of Civil Code §§ 45 to 47 against Defendants Roy, Dutt, Harris, the County, and DOES 1

17

through 10, inclusive, and each of them.

18 19 20

212.222.

Plaintiff incorporates by reference herein the allegations contained in

Paragraphs 1 through 163 above, inclusive. 213.223.

On information and belief, Plaintiff alleges that Roy made several false

21

statements of fact, both orally and in writing, which defamed Plaintiff’s professional credentials,

22

competence and/or integrity to other members of KMC’s medical staff and administration, and

23

that Harris and DOES 1 through 10 republished such defamatory statements to other members of

24

KMC’s medical staff and administration.

25

214.224.

On information and belief, Plaintiff alleges Defendants, and each of them,

26

included the Roy Letter in papers stored in Plaintiff’s personnel file, where they are continuously

27

republished to anyone who consults his personnel file.

28

215.225.

The above-alleged defamatory statements have continuously been false.

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216.226.

Document 161

Filed 07/07/2008

Page 56 of 76

The hearers of the defamatory statements reasonably understood that they

2

were about Plaintiff and understood them to mean that Plaintiff’s professional credentials,

3

competence and/or integrity were deficient.

4 5 6 7 8 9 10

217.227.

As a result of Defendants’ wrongful conduct, Plaintiff has suffered harm

to his profession, reputation, and experienced feelings of shame, mortification, and hurt 218.228.

Defendants’ wrongful conduct was a substantial factor in causing harm to

Plaintiff’s profession and reputation. 219.229.

Defendants failed to use reasonable care to determine the truth or falsity of

the statements. 220.230.

At all material times, Defendants, and each of them, either knew that each

11

statement was false or had serious doubts about the truth of each statement, and that they acted

12

with malice, oppression, or fraud, entitling Plaintiff to an award of punitive damages against the

13

individual Defendants.

14

221.231.

Defendants Harris, Kercher, Bryan and Abraham have approved, accepted,

15

and refused to intercede against Roy’s defamatory acts or their subsequent republication by

16

Harris and DOES 1 through 10, thereby ratifying such acts.

17

WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

18

ELEVENTH CLAIM

19

(Violation of FLSA) (Against Defendants County and DOES 1 through 10 inclusive)

20 222.232.

Plaintiff alleges this Eleventh and separate claim for reimbursement of

21 deductions from his salary made in violation of FLSA against Defendant County and DOES 1 22 through 10, inclusive. 23 223.233.

Plaintiff incorporates by reference herein the allegations contained in

24 Paragraphs 1 through 163 above, inclusive. 25 224.234.

Pursuant to 20 C.F.R. § 541.118(1), an employee will not be considered

26 “on a salary basis” if deductions from his predetermined compensation are made for absences 27 occasioned by the employer. 28 225.235.

Pursuant to 20 C.F.R. § 541.118(6), where a deduction not permitted by

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1

these interpretations is inadvertent, or is made for reasons other than lack of work, the exemption

2

will not be considered to have been lost if the employer reimburses the employee for such

3

deductions and promises to comply in the future.

4

226.236.

From April 28 to October 3, 2006, Defendants, and each of them,

5

unlawfully required Plaintiff to take involuntary full-time unpaid leave rather than reduced

6

scheduled leave even though he was occasionally ready, willing, and able to work part-time

7

during that period of time.

8 9 10

227.237.

During the period from April 28 to October 3, 2006, clinical pathology

work was always available to Plaintiff at KMC. 228.238.

Plaintiff is entitled to reimbursement of salary for those periods of time

11

during the period from April 28, 2006 to October 3, 2006 when he was ready, willing, and able

12

to work, and was prevented from doing so by the County; and also entitled to a promise that the

13

County will comply in the future.

14

WHEREFORE Plaintiff prays for relief as stated herein and in pertinent part hereinafter.

15 16 17 18 19 20

PRAYER FOR RELIEF Plaintiff prays for judgment against Defendants, and each of them, jointly and severally, as follows: 1. Reinstatement to his former position as Chair of Pathology and reimbursement for lost wages and work benefits caused by the acts of his employer pursuant to Section 1278.5(g) of the Health & Safety Code and Section 12965 of the Government Code.

21 22

2. Recovery of all reasonable attorneys’ fees, litigation expenses and costs incurred,

23

pursuant to Section 2699 of the Labor Code for violation of Section 1102.5 of the Labor

24

Code, 1278.5(g) of the Health & Safety Code, Section 1021.5 of the Code of Civil

25

Procedure, Section 12965 of the Government Code, 29 U.S.C. § 2617(a)(3) [FMLA], and

26

42 U.S.C. § 1988.

27 28

3. That Defendant County be enjoined from retaliating against whistleblowers in violation

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1

of Section 1278.5 of the Health & Safety Code and Section 1102.5 of the Labor Code.

2

4. That Defendant County be required to expunge from Plaintiff’s personnel records any

3

and all references to Plaintiff’s having “poor relationships” with staff, displaying poor

4 5

teamwork or other words of similar effect.

6

5. That Defendant County be required to comply with all of the provisions of the FEHA

7

relating to providing reasonable accommodation and engaging in good faith in an

8

interactive consultation regarding reasonable accommodation [Government Code §§

9

12940 (m) & (n)].

10 11

6. That Defendant County be required to provide training to the managerial staff at KMC

12

regarding compliance with Section 1278.5 of the Health & Safety Code, Section 1102.5

13

of the Labor Code, Sections 12940(m) and (n) of the Government Code, and CFRA

14

(Government Code §§ 12945.1, et seq.).

15

7. General and compensatory damages according to proof.

16 17 18 19 20 21

8. Liquidated damages under FMLA/CFRA and FLSA according to proof. 9. Punitive damages against Defendants Roy, Harris, and Bryan pursuant to §3294 Civil Code; 10. Pre-judgment interest pursuant to §3291 of the Civil Code. 11. For such other and further relief as the court may deem proper.

22 23

Dated: August __, 2008

LAW OFFICE OF EUGENE LEE

24 25 26

By: ___________________________________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN, D.O.

27 28

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DEMAND FOR JURY TRIAL

2 Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands 3 trial by jury for all issues and claims triable as of right by a jury. 4 Dated: August ___, 2008

LAW OFFICE OF EUGENE LEE

5 6 7 8

By: ___________________________________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN, D.O.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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EXHIBIT 2: Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 1/4/08

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Eugene D. Lee From: Sent: To: Cc: Subject:

Mark Wasser [[email protected]] Friday, January 04, 2008 5:11 PM 'Joan Herrington' 'Gene Lee' RE: 080104 JEH-Wasser re 3d Supplemental Complaint - Redlined

Joan, I can open the Stipulation but cannot open the Third Supplemental Complaint. Apparently it is in a different program. Mark

From: Joan Herrington [mailto:[email protected]] Sent: Friday, January 04, 2008 4:53 PM To: Mark Wasser Cc: Gene Lee Subject: 080104 JEH-Wasser re 3d Supplemental Complaint - Redlined

  Attached is a copy of the red‐lined proposed Third Supplemental Complaint and a proposed stipulation allowing Plaintiff  to file it.  Although Defendants’ Answer to the Second Supplemental Complaint is deemed effective as to a Third  Supplemental Complaint by operation of law, I have included a paragraph covering this in the stipulation in an excess of  caution.      Please let us know if Defendants will stipulate to the filing of this Third Supplemental Complaint, or whether Plaintiff will  be forced to file a motion for leave to file it.  In any case, Plaintiff will not object to Defendants deposing Plaintiff on any  allegations contained in the Third Supplemental Complaint.        Joan Herrington  Bay Area Employment Law Office  5032 Woodminster Lane  Oakland, CA 94602‐2614  (510) 530‐4078 ext 109  [email protected]   

No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.516 / Virus Database: 269.17.13/1209 - Release Date: 1/4/2008 12:05 PM

1

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EXHIBIT 3: Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 1/22/08

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Eugene D. Lee From: Sent: To: Subject:

Mark Wasser [[email protected]] Tuesday, January 22, 2008 9:01 AM [email protected] RE: Jadwin/KC: Supplemental Complaint

Follow Up Flag: Flag Status:

Follow up Completed

Gene, We are not inclined to stipulate to the Third Supplemental Complaint. It seems late in the case to be changing the pleadings and we view your proposed deletion of the references to “hostile work environment” as an attempt to limit discovery into Dr. Jadwin’s behavior. We might reconsider our willingness to stipulate to the filing if you stipulate that the Defendants remain free to inquire into Dr. Jadwin’s behavior. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, January 21, 2008 7:21 PM To: [email protected] Subject: Jadwin/KC: Supplemental Complaint

Mark, Several weeks ago, we had sent over the supplemental complaint Plaintiff intends to file. We had asked whether Defendants would stipulate to the supplement. If not, Plaintiff intends to file a motion for leave to file it. Please let us know your thoughts on stipulating to the supplement. Feel free to reach me at any time with any questions you may have. Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

      1

SAC000050

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EXHIBIT 4: Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 4/17/08

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Eugene D. Lee From: Sent: To: Subject: Attachments:

Eugene D. Lee [[email protected]] Thursday, April 17, 2008 7:58 PM '[email protected]' Complaint Pleading - Third Supp Complaint_080417.doc

Follow Up Flag: Flag Status:

Follow up Flagged

Mark, As we discussed, attached is a stipulation for leave to supplement the Second Supplemental Complaint. We’ve highlighted in yellow the sections we are adding to the complaint. If it’s ok with you, please let me know so I can go ahead and file it. Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

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1

SAC000052

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EXHIBIT 5: Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 5/4/08 to 5/5/08

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Eugene D. Lee Mark Wasser [[email protected]] Monday, May 05, 2008 10:48 AM [email protected] RE: Continuance of expert deadlines/DME

From: Sent: To: Subject: Fine, Gene. Whatever.

From: Eugene D. Lee [mailto:[email protected]] Sent: Monday, May 05, 2008 10:42 AM To: [email protected] Subject: RE: Continuance of expert deadlines/DME

Mark,    I did NOT say I agreed to forego filing the supplemental complaint. I said I would think about it. Please do not suggest I  have committed to things I have not. Second, it is not an amended but supplemented complaint, supplemented to  reflect the fact of KMC’s non‐renewal of Dr. Jadwin’s contract on October 4, 2007. When I spoke to you, the  supplemental complaint was already done and I told you so. All I’m requesting is your stipulation. If you don’t want to  give it, that’s fine…and I hasten to add typical of your conduct in this action. We’ll file a motion. The motion is utterly  unnecessary and I see no reasonable basis for your refusal to stipulate, but that is your choice. The consequence will be  unnecessarily increased statutory attorney fees and costs.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

          From: Mark Wasser [mailto:[email protected]] Sent: Monday, May 05, 2008 8:30 AM To: [email protected] Subject: RE: Continuance of expert deadlines/DME 1

SAC000054

Gene,

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

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Filed 07/07/2008

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Our motion will be submitted to whomever the Clerk directs it to. We simply file it. Neither you nor I control that. Regarding the complaint, this is another example why we do not work together. We discussed that at our meet and confer session before the Perez depo. I told you I did not think it was a necessary amendment and you said you agreed. Pleadings do not need to be amended endlessly. I assumed the issue was resolved. Now, out of the blue, here it is again. Sorry. No thanks. If you want to file another supplemental complaint, bring a motion. For all I know you will be amending the complaint up to trial. The pleadings are done. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Sunday, May 04, 2008 5:29 PM To: [email protected] Subject: RE: Continuance of expert deadlines/DME

Mark,    We’ll be pleased to stip to shortened time (giving Plaintiff 1 week for opposition and waiving Defendants’ reply)  provided 1) you are submitting the motion to Judge Wanger, whose scheduling order you are seeking relief from, and 2)  you sign the stipulation for leave for plaintiff to file the Third Supplemental Complaint, which I sent you on April 17 (see  attached) and regarding which I have not heard from you since.    I look forward to hearing from you.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

          From: Mark Wasser [mailto:[email protected]] Sent: Sunday, May 04, 2008 12:07 PM To: [email protected] Subject: RE: Continuance of expert deadlines/DME 2

SAC000055

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EXHIBIT 6: Plaintiff’s Notice of Withdrawal of Motion to File TSC (Doc. 159)

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1 2 3 4 5

Filed Filed07/07/2008 06/30/2008 Page Page70 1 of 2 76

LAW OFFICE OF EUGENE LEE Eugene D. Lee (SB#: 236812) 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

6 7 8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

FRESNO DIVISION

11

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

12 13 14 15

v. COUNTY OF KERN, et al., Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF'S WITHDRAWAL OF MOTION FOR LEAVE TO FILE THIRD SUPPLEMENTAL COMPLAINT Date: July 14, 2008 Time: 9:30 a.m. Courtroom: U.S. Dist. Ct., Bankr. Crtrm. 1300 18th St., Bakersfield, CA

16 Complaint Filed: January 6, 2007 Trial Date: December 2, 2008

17 18 19 20 21 22 23 24

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that Plaintiff hereby withdraws the motion for leave to file third supplemental complaint, scheduled to be heard on July 14, 2008, at 9:30 a.m. Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to file and

25

serve the Second Amended Complaint, naming the County of Kern and additional members of the Joint

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Conference Committee at Kern Medical Center – Barbara Patrick, Ray Watson, Peter Bryan, David

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Culberson, Irwin Harris, Jose Perez, Ron Errea and Kent Johnson – as defendants in their personal and

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Filed Filed07/07/2008 06/30/2008 Page Page71 2 of 2 76

official capacities under Count Ten of Plaintiff’s Complaint (42 U.S.C. 1983 procedural due process).

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RESPECTFULLY SUBMITTED on June 30, 2008. /s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

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EXHIBIT 7: Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 7/1/08

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Eugene D. Lee From: Sent: To: Cc: Subject:

Mark Wasser [[email protected]] Tuesday, July 01, 2008 4:27 PM [email protected] Karen Barnes RE: Second Amended Complaint - Stipulation

Gene, The Defendants will not stipulate to the filing of this amended complaint. Mark

From: Eugene D. Lee [mailto:[email protected]] Sent: Tuesday, July 01, 2008 4:21 PM To: [email protected] Subject: Second Amended Complaint - Stipulation

  Mark,    Attached is Plaintiff’s proposed Second Amended Complaint. I’ve highlighted changes in yellow. Please let me know if  Defendants will stipulate to the filing at your earliest convenience or whether a motion will be necessary.   

Sincerely, Gene Lee   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW

OFFICE

OF

EUGENE

EMPLOYMENT

LEE

LAW

555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : [email protected] W e b s i t e : www.LOEL.com B l o g : www.CaLaborLaw.com  

  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

           

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Eugene D. Lee SB#: 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected]

5

Attorneys for Plaintiff DAVID F. JADWIN, D.O.

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Mark A. Wasser CA SB #06160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 Email: [email protected]

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Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 Email: [email protected]

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Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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

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v. COUNTY OF KERN, et al.,

Civil Action No. 1:07-cv-00026 OWW TAG STIPULATION RE PLAINTIFF’S LEAVE TO FILE A SECOND AMENDED COMPLAINT; & ORDER THEREON. Complaint Filed: January 6, 2007 Trial Date: December 2, 2008

Defendants.

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IT IS HEREBY STIPULATED by and between the parties hereto through their respective

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attorneys of record that Plaintiff David F. Jadwin, D.O. may file the Second Amended Complaint, a

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copy of which is attached hereto as Attachment 1.

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IT IS FURTHER STIPULATED that Defendants waive notice and service of the Second Amended Complaint.

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Date: July , 2008 . LAW OFFICE OF EUGENE LEE Attorney for Plaintiff DAVID F. JADWIN, D.O.

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Date: July , 2008

11 _______________________________________ Mark A. Wasser Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy.

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THE FOREGOING STIPULATION IS APPROVED AND IT IS SO ORDERED

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Date:

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_______________________________________ Hon. Oliver W. Wanger United States District Court Judge

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ATTACHMENT A SECOND AMENDED COMPLAINT

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