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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: October 3, 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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PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that on October 3, 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 U.S. Dist. Ct.,

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Bankr. Crtrm., 1300 18th St., Bakersfield, 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.

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RESPECTFULLY SUBMITTED on September 2, 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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MEMORANDUM OF POINTS & AUTHORITIES I.

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

Amended Complaint (“SAC”) and the revised Second Amended Complaint ("RSAC").

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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. 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 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 to Defendants for their review. Defendants never responded. On May 4, 2008, Plaintiff again requested Defendants’ stipulation to filing the TSC. On May 5, 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 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. Discovery in this action closed on August 18, 2008, except for depositions per the stipulation and order of the parties. On August 29, during the deposition of Philip Dutt, the parties met and conferred regarding

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withdrawal of Plaintiff’s prior motion for leave to file the Second Amended Complaint so that Plaintiff

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could further add additional claims arising out of facts which were newly discovered during the course

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of Plaintiff’s depositions. Defendants refused to stipulate to the filing of the revised Second Amended Complaint. Plaintiff therefore had no choice but to bring this motion seeking leave to file the second PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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amended complaint.

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II.

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ARGUMENT

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

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A.

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

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Requested Change

6 Plaintiff filed the Second Supplemental Complaint on June 13, 2007. Plaintiff now seeks to 7 supplement the Complaint regarding events occurring subsequently, including: (a) Defendant County’s 8 lifting of Plaintiff’s home restriction on April 30, 2007, (b) Defendant County’s non-renewal of 9 Plaintiff’s employment contract on October 4, 2007 and (c) Plaintiff’s exhaustion of administrative 10 remedies. Accordingly, Plaintiff seeks to make additions to the Complaint including the following: 11 12 13 14 15 16 17 18

20. Just before Thanksgiving of 2006, Plaintiff confided to Gilbert Martinez, the Laboratory Manager at KMC, that he intended to blow the whistle on KMC to appropriate outside agencies. Days later, Defendant Harris met with Philip Dutt, M.D., Interim Chair of the Pathology Department at KMC (“Dutt”), to discuss what steps the Pathology Department should take in anticipation of Plantiff’s whistleblowing to these outside agencies. 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 formal explanation for the involuntary leave or the restriction to his home. 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 formal explanation for the decision not to renew his contract.

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29. On October 4, 2007, Defendant County failed to renew Plaintiff’s employment contract, which therefore expired. 30. On August 15, 2008, Ray Watson, Chair of the Board of Supervisors of Defendant County, testified in deposition that Defendant County had decided during the course of several KMC Joint Conference Committee meetings not to renew Plaintiff’s employment contract because he had filed the instant lawsuit.

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138. 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 again 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. PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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153. On October 16, 2007, Plaintiff again 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. 154. On September 2, 2008, Plaintiff again filed a supplemented complaint with the DFEH, supplemented to reflect additional claims for retaliation for opposing practices made unlawful under CFRA and FEHA which arose after evidence was newly discovered subsequent to the filing of the supplemented complaint with the DFEH on October 16, 2007.

6 2.

Why It Should be Permitted

7 Rule 15(d) of the Federal Rules of Civil Procedure provides, in pertinent part: 8

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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.

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A supplemental pleading is used to allege relevant facts occurring after the original pleading was

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filed. Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 468. A supplemental pleading is designed to bring the

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action “up to date” and to set forth new facts affecting the controversy that have occurred since the

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original pleading was filed. Manning v. City of Auburn (11th Cir. 1992) 953 F.2d 1355, 1359–1360. A

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supplemental pleading may properly allege events occurring after the original complaint was filed and

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identify any new parties involved therein. Rule 15(d) “plainly permits supplemental amendments to

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cover events happening after suit, and it follows, of course, that persons participating in these new

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events may be added if necessary.” Griffin v. County School Board (1964) 377 U.S. 218, 226–227.

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Supplemental pleadings can only be filed with leave of court and upon such terms as are just. Glatt v.

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Chicago Park Dist. (7th Cir. 1996) 87 F.3d 190, 194. However, supplemental pleadings are favored

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because they enable the court to award complete relief in the same action, avoiding the costs and delays

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of separate suits. Therefore, absent a clear showing of prejudice to the opposing parties, they are

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liberally allowed. See Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 473; Quaratino v. Tiffany & Co. (2nd

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Cir. 1995) 71 F.3d 58, 66. The purpose of Rule 15(d) is to promote as complete an adjudication of the

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dispute between the parties as is possible. LaSalvia v. United Dairymen of Arizona, 804 F.2d 1113,

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

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The supplements sought by Plaintiff promote a complete and efficient adjudication of the

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disputes between the existing parties to this action. Item 1 – Plaintiff’s proposed supplements – allege a series of adverse employment actions taken by Defendants against Plaintiff that were first referenced in PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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Plaintiff's original and subsequent complaints. For instance, Plaintiff’s Second Supplemental Complaint

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had alleged in pertinent part:

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

11 Plaintiff alleges that these actions constituted a continuing violation and/or a pattern and practice of 12 discrimination, harassment, and/or retaliation taken against Plaintiff because of his protected 13 characteristics and activities. If Plaintiff is denied leave to file the SAC, Plaintiff would be forced to file 14 a new law suit re-alleging most of the same claims contained in this action based on these new adverse 15 actions. Permitting the supplement would result in a more efficient use of scarce judicial resources. 16 More importantly, there is no risk of prejudice or surprise to Defendants. First, the supplements 17 comprise allegations of continuing injury or continuation of the wrongful conduct already alleged in 18 Plaintiff’s original or supplemental complaints. Second, Plaintiff has repeatedly apprised Defendants of 19 his desire to make the foregoing supplements to his complaint since January 4, 2008, when Plaintiff first 20 sent Defendants the draft TSC. Defendants initially refused to respond at all, then ultimately refused to 21 stipulate. 22 Third, Plaintiff served on Defendants copies of the supplemented complaint he filed with the 23 Department of Fair Employment & Housing on October 16, 2007 and supplemented Tort Claims Act 24 claim he filed with the County of Kern on October 10, 2007, each detailing the same supplemental 25 allegations which Plaintiff now proposes in the SAC. 26 Fourth, Plaintiff’s Initial Disclosure contained a Rule 26 report issued by Plaintiff’s forensic 27 economist which fully disclosed the harm that Plaintiff suffered and expected to suffer because of the 28 events which Plaintiff now seeks to supplementally allege. PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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

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Item 2: To include an element of Plaintiff’s Count VI for disability discrimination added to Plaintiff's Prima Facie Case by a decision of the California Supreme Court issued after the filing of this lawsuit.

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1.

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B.

Requested Change

Plaintiff seeks to add Paragraph 125 to allege Plaintiff’s ability to perform the essential functions

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of his job, which the California Supreme Court found to be an element of Plaintiff’s disability

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discrimination claim in Green v. State of California, issued by the California Supreme Court on August

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23, 2007. Paragraph 125 reads as follows:

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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

13 Rule 15 provides the parties with flexibility in presenting their claims and defenses. It assures 14 that cases will be heard on their merits and avoids injustices which sometimes resulted from strict 15 adherence to earlier technical pleading requirements. Foman v. Davis (1962) 371 U.S. 178, 182; Slayton 16

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

17 federal pleadings: i.e., their purpose is simply to provide the parties with fair notice of the general nature 18 and type of the pleader's claim or defense. As long as such notice has been provided, the pleadings 19 should not limit the pleader's claims or defenses. Ibid.; see also Grier v. Brown (N.Dist. Cal. 2002) 230 20 F.Supp.2d 1108, 1111. 21 Plaintiff’s proposed correction of an omission does not allege any new facts; it arises out of the 22 same exact nucleus of facts alleged in Plaintiff’s original and supplemental complaints filed with the 23 Court. Simply put, it merely seeks to correct the omission of a legal pleading element required for 24 Plaintiff’s Counts VI through VIII for violation of California’s disability discrimination laws. 25 Defendants cannot claim to have been denied fair notice of the general nature of Plaintiff’s disability 26 discrimination claims or the alleged facts from which they arise. Permitting the correction would not 27 prejudice Defendants in any way. Conversely, denying the correction may prevent consideration of 28 Plaintiff’s disability discrimination claims on their merits and result in injustice. PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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Item 3: Add already-named and existing Defendants, the County of Kern and Irwin Harris, 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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1.

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C.

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Requested Change

Plaintiff seeks to amend Count IX (See Paragraph 207 of the SAC) to add Defendants County of

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Kern and Irwin Harris to that count. Both Defendants are already named and existing parties and no

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joinder of new parties is required under Rule 19. Rather, joinder of a claim against an existing party is

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required under Rule 18.

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2.

Why It Should be Permitted

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 encouraged. Lanier Business Products v Graymar Co. (1972, Dist. Md.) 342 F.Supp 1200. A party PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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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 Defendants

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County and Harris should be permitted. Both Defendants are already named in several of Plaintiff’s

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Counts and are existing parties in this action. Joinder of Defendant County in County IX is clearly

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

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litigation and claims of res judicata at a later date. Joinder of Harris became warranted in light of the

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deposition testimony of David Culberson, former Interim CEO of KMC, on August 21, 2008 wherein

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Plaintiff learned for the first time of the extent of Dr. Harris’s participation in Defendant County’s

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decision to place Plaintiff on administrative leave on December 7, 2006 and, subsequently, not to renew

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Plaintiff’s employment contract.

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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 and Harris’s liability under Count IX – e.g., demotion

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

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

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

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withdrawal of motion to file the TSC, expressly stating therein Plaintiff’s intention to seek joinder of

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Count IX against Defendant County (Doc. 159). On July 1, 2008, Plaintiff again gave Defendants notice,

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providing them a copy of the SAC along with a proposed stipulation (which Defendants rejected). With

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discovery in this action due to close on August 18, 2008, Defendants had more than a month to conduct

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

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discovery should conceivably be necessary to parse out a Monell analysis.

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More importantly, Plaintiff is not a percipient witness having knowledge of any facts regarding

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Defendant County’s liability under Monell or Dr. Harris’s liability for his participation in adverse

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employment actions against him, other than what was revealed by Defendants’ former and current

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employees themselves during their depositions. No further discovery needs to be conducted by

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Defendants in order to defend against the new claims proposed to be brought against Defendants County

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and Harris. Even if such were the case, Defendants have ready access to County witnesses and Harris himself – in contrast to Plaintiff who must engage in the formality of deposing them to access their PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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testimony.

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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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D.

Item 4: Joinder of new claims for CFRA retaliation (existing Count III), FEHA retaliation (Gov’t C. 12940(h), new Count XI) and FMLA retaliation (29 U.S.C. § 2615(b), new Count X) against Defendant County and Does 1 through 10 based upon newly-discovered evidence.

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Requested Change

9 Plaintiff seeks to amend the complaint to add new Counts X and XI and a new claim for CFRA 10 retaliation under existing Count III against Defendant County and Does 1 through 10. Defendant County 11 is an already named and existing party and no joinder of new parties is required under Rule 19. Rather, 12 joinder of new claims against an existing party is required under Rule 18. 13 During the course of Plaintiff’s deposition of Supervisor Ray Watson on August 25, 2008, 14 Plaintiff for the first time heard testimony that Defendant County had decided not to renew Plaintiff’s 15 employment contract with the County due to the fact that Plaintiff had initiated this action. Based on this 16 newly-discovered evidence, Plaintiff requests leave to join new claims against Defendant County and 17 Does 1 through 10 for FEHA oppositional retaliation pursuant to Gov’t C. 12940(h) (new Count XI), 18 FMLA oppositional retaliation pursuant to 29 U.S.C. § 2615(b) (new Count X) and CFRA oppositional 19 retaliation (Count III). Plaintiff alleges that Plaintiff’s filing of this action on December 7, 2006 20 opposing practices made unlawful under FEHA, CFRA and FMLA has subjected him to retaliation in 21 the form of non-renewal of his employment contract on October 4, 2007. 22 Moreover, based on newly-discovered evidence in the form of Supervisor Watson’s foregoing 23 testimony as well as the testimony of former Interim CEO David Culberson in deposition conducted on 24 August 21, 2008, Plaintiff further alleges FEHA oppositional retaliation pursuant to Gov’t C. 12940(h) 25 (new Count XI) and CFRA oppositional retaliation (Count III) in that Defendants placed him on 26 administrative leave on October 7, 2006 subsequent to his filing of a FEHA/CFRA complaint with the 27 DFEH on July 31, 2006. 28 1. Why It Should be Permitted PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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See discussion in Section II.C.2 above.

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Defendants will not be prejudiced by the joinder of the above new claims against existing

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Defendant County. Plaintiff is not a percipient witness having knowledge of any facts regarding

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Defendant County’s liability for oppositional retaliation under FMLA, CFRA or FEHA, other than what

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was revealed by Supervisor Watson and Mr. Culberson themselves during their depositions. No further

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discovery needs to be conducted by Defendants in order to defend against the new claims proposed to be

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brought against Defendant County. Even if such were the case, Defendants have ready access to Mr.

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Watson and Mr. Culberson – in contrast to Plaintiff who must engage in the formality of deposing them

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to access their testimony.

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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. There is no need for a continuance of any sort.

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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 September 2, 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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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:

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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. 10.

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Discovery in this action closed on August 18, 2008, except for depositions per the

stipulation and order of the parties. 11.

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On August 29, during the deposition of Philip Dutt, the parties met and conferred

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regarding withdrawal of Plaintiff’s prior motion for leave to file the Second Amended Complaint so that

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Plaintiff could add additional claims arising out of facts which were newly discovered during the course

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of Plaintiff’s depositions. Defendants refused to stipulate to the filing of the revised Second Amended

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Complaint; however, Defendants agreed to stipulate to an expedited briefing and hearing schedule on

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the motion for leave to file the Second Amended Complaint which Plaintiff intended to re-file in revised

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form.

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12.

Plaintiff’s ability to perform the essential functions of his job was found by the California

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Supreme Court to be an element of Plaintiff’s disability discrimination claim in Green v. State of

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California (2007) 42 Cal.4th 254, issued by the California Supreme Court on August 23, 2007.

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13.

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

22

the nucleus of facts underlying Defendant County’s and Harris’s liability under Count IX – e.g.,

23

demotion of Plaintiff and reduction of his base salary, placement of Plaintiff on involuntary

24

administrative leave with home restriction, and non-renewal of Plaintiff’s contract – since at least

25

January 2008 when Plaintiff sent the draft TSC to Defendants. On June 30, 2008, Plaintiff filed with this

26

Court his notice of withdrawal of motion to file the TSC, expressly stating therein Plaintiff’s intention to

27

seek joinder of Count IX against Defendant County (Doc. 159). On July 1, 2008, Plaintiff again gave

28

Defendants notice, providing them a copy of the SAC along with a proposed stipulation (which Defendants rejected). With discovery in this action due to close on August 18, 2008, Defendants had PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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1

more than a month to conduct whatever additional discovery they deem necessary in light of the SAC –

2

although no additional discovery should conceivably be necessary to parse out a Monell analysis.

3

14.

More importantly, Plaintiff is not a percipient witness having knowledge of any facts

4

regarding Defendant County’s liability under Monell or Dr. Harris’s liability for his participation in

5

adverse employment actions against him, other than what was revealed by Defendants’ former and

6

current employees themselves during their depositions. No further discovery needs to be conducted by

7

Defendants in order to defend against the new claims proposed to be brought against Defendants County

8

and Harris. Even if such were the case, Defendants have ready access to County witnesses and Harris

9

himself – in contrast to Plaintiff who must engage in the formality of deposing them to access their

10

testimony.

11

15.

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

12

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

13

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

14

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

15

16.

During the course of Plaintiff’s deposition of Supervisor Ray Watson on August 25,

16

2008, Plaintiff for the first time heard testimony that Defendant County had decided not to renew

17

Plaintiff’s employment contract with the County due to the fact that Plaintiff had initiated this action.

18

Based on this newly-discovered evidence, Plaintiff requests leave to join new claims against Defendant

19

County and Does 1 through 10 for FEHA oppositional retaliation pursuant to Gov’t C. 12940(h) (new

20

Count XI) and FMLA oppositional retaliation pursuant to 29 U.S.C. § 2615(b) (new Count X). Plaintiff

21

alleges that Plaintiff’s filing of this action on December 7, 2006 opposing practices made unlawful under

22

FEHA and FMLA has subjected him to retaliation in the form of non-renewal of his employment

23

contract on October 4, 2007.

24

17.

Moreover, based on newly-discovered evidence in the form of Supervisor Watson’s

25

foregoing testimony as well as the testimony of former Interim CEO David Culberson in deposition

26

conducted on August 21, 2008, Plaintiff further alleges FEHA oppositional retaliation pursuant to Gov’t

27

C. 12940(h) (new Count XI) in that Defendants placed him on administrative leave on October 7, 2006

28

subsequent to his filing of a FEHA complaint with the DFEH on July 31, 2006. 18.

Defendants will not be prejudiced by the joinder of the above new claims against existing

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Defendant County. Plaintiff is not a percipient witness having knowledge of any facts regarding

2

Defendant County’s liability for oppositional retaliation under FMLA or FEHA, other than what was

3

revealed by Supervisor Watson and Mr. Culberson themselves during their depositions. No further

4

discovery needs to be conducted by Defendants in order to defend against the new claims proposed to be

5

brought against Defendant County. Even if such were the case, Defendants have ready access to Mr.

6

Watson and Mr. Culberson – in contrast to Plaintiff who must engage in the formality of deposing them

7

to access their testimony.

8

19.

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17 18 19 20 21 22 23

20.

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

the SAC. 21.

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. 22.

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

to return to work at Kern Medical Center. 23.

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

24

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

25

employment contract expired.

26

24.

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

27

serving a copy of his supplemented Department of Fair Employment & Housing complaint and right to

28

sue letter and supplemented Tort Claims Act complaint on Defendant County. 25.

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

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1

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

2

conducted further discovery on these disclosures.

3 4 5

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.

6 Dated: September 2, 2008

LAW OFFICE OF EUGENE LEE

7 8 9 10

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

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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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 14 15

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; and DOES 1 through 10, inclusive. Defendants.

16 17 18 19 20 21 22 23 24 25 26 27 28

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

Retaliation [Health & Safety Code § 1278.5]; II. Retaliation [Lab. Code § 1102.5]; III. Retaliation [Gov’t Code §§ 12945.1, et seq; 12949(f); 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. FMLA Retaliation [29 U.S.C. § 2615]; and XI. FEHA Retaliation [Gov’t Code § 12940(h)] JURY TRIAL DEMANDED

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1 NATURE OF THE ACTION

2

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

3 4 5 6 7

physician with disabilities, against his employer, (i) the County of Kern (“Defendant County” or “the County”); ) (ii) individual Defendants Peter Bryan (“Bryan”), former Chief Executive Officer of Kern Medical Center (“KMC”); Irwin Harris, M.D., former Chief Medical Officer of KMC (“Harris”);; and DOES 1 through 10. Plaintiff’s claims against his employer, Defendant County, allege violations of section

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

1278.5 of the Health & Safety Code1 which prohibits retaliation against a health care provider who reports suspected unsafe care and conditions of patients in a health care facility; section 1102.5 of the Labor Code which prohibits retaliation against an employee for reporting or refusing to participate in suspected violations of the law; the California Family Rights Act (sections 12945.1, et seq., of the Government Code) (“CFRA”) and the Family and Medical Leave Act (sections 2601, et seq. of the United States Code) (“FMLA”) which prohibit interference with an employee’s right to medical leave and retaliation for an employee’s exercise of the right to medical leave and for opposing any practice made unlawful by the CFRA/FMLA, including filing any charge or instituting a proceeding under the CFRA/FMLA; and the Fair Employment and Housing Act [subdivisions (a), (h), (m) & (n) of section 12940 of the Government Code] (“FEHA”) which prohibits discrimination against an employee with a disability, retaliation for opposing employment practices prohibited by the FEHA, failure to provide reasonable accommodation, and failure to engage in an interactive process; and recovery of wrongfully deducted wages under the Fair Labor Standards Act (29 U.S.C. §§ 201, et seq.) (“FLSA”). Plaintiff sues Defendants County and Harris, and Defendant Bryan – both in his personal

24 25 26 27 28

capacity and in his official capacity as a member of the KMC Joint Conference Committee (“JCC”) – for violation of Plaintiff’s 14th Amendment of the United States Constitution right to procedural due process pursuant to 42 U.S.C. § 1983 (“Due Process”). 1

All statutory references are to California Codes unless otherwise specified.

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

2

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

3

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

4 5

JURISDICTION AND VENUE 1.

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

6

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

7

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

8

2.

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

9

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

10

California.

11 12

INTRADISTRICT ASSIGNMENT 3.

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

13

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

14

County of Kern, California.

15 16

PARTIES 4.

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

17

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

18

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

19 20 21

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

22

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

23

operating in Kern County, California.

24

7.

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

25

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

26

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

27

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

28

miles of Plaintiff’s workplace.

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8.

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

2

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

3

KMC, and a member of the JCC.

4

9.

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

5

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

6

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

7

10.

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

Defendants.

18 19 20

FACTUAL BACKGROUND A.

STATEMENT OF THE CASE 11.

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

21

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

22

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

23

medical institutions. Plaintiff has managed several clinical laboratories and pathology

24

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

25

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

26

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

27

standards for patient care quality and safety.

28

12.

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

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

2

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

3

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

4

system in the Pathology Department.

5

13.

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

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concerns. 14.

In 2005, Roy began a campaign of making statements impugning Plaintiff’s

3

professional competence. Events culminated in October of 2005, when Kercher, Harris, Ragland

4

and Abraham harshly reprimanded Plaintiff, based on false allegations, resulting from a 15- to

5

20-minute presentation given by Plaintiff during a monthly KMC oncology conference that

6

allegedly exceeded conference time limits by approximately ten minutes. Plaintiff’s presentation

7

had attempted to highlight several of Plaintiff’s above-mentioned concerns regarding Internal

8

Pathology Review and their potential impact upon deciding the correct surgical procedure for the

9

patient under discussion. The presentation was stopped before Plaintiff could present the key

10

diagnostic conclusions of his presentation.

11

15.

After the conference, Harris solicited letters of disapprobation from conference

12

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

13

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

14

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

15

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

16

Kercher were aware of Roy’s, Harris’s and DOES 1 through 10’s acts of unwarranted criticism,

17

but refused to intercede, and possibly approved or encouraged them.

18

16.

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

19

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

20

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

21

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

22

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

23

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

24

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

25

and conditions of employment upon his return from his leave.

26

17.

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

27

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

28

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

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1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

as “demotion” or “demoted”).

10

18.

On July 10, 2006, the Joint Conference Committee (“JCC”) at KMC voted and

11

approved Bryan’s recommendation that Plaintiff be removed from chairmanship of the

12

Pathology department due to his physical absence from KMC.

13 14 15

19.

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

Plaintiff continued to suffer a hostile work environment and retaliation. 20.

Just before Thanksgiving of 2006, Plaintiff confided to Gilbert Martinez, the

16

Laboratory Manager at KMC, that he intended to blow the whistle on KMC to appropriate

17

outside agencies. Days later, Defendant Harris met with Philip Dutt, M.D., Interim Chair of the

18

Pathology Department at KMC (“Dutt”), to discuss what steps the Pathology Department should

19

take in anticipation of Plantiff’s whistleblowing to these outside agencies.

20

21.

On or about November 28, 2006, after almost six years of trying to reform KMC

21

from within, Plaintiff finally blew the whistle on KMC, formally reporting his Concerns to the

22

Joint Commission on Accreditation of Hospital Organizations, the College of American

23

Pathologists, and the California Department of Health Services (“Authorities”).

24

22.

On or about December 4, 2006, Plaintiff submitted a written complaint to KMC

25

leadership about numerous additional concerns regarding the quality of patient care and the

26

deterioration of the pathology department.

27 28

23.

On December 7, Plaintiff was placed on involuntary administrative leave

allegedly “pending resolution of a personnel matter”.

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24.

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

2

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

3

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

4

25.

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

5

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

6

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

7

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

8

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

9

26.

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

27.

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

18

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

19

involuntary leave or the restriction to his home.

20

28.

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

21

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

22

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

23

for the decision not to renew his contract.

24 25 26

29.

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

contract, which therefore expired. 30.

On August 15, 2008, Ray Watson, Chair of the Board of Supervisors of

27

Defendant County, testified in deposition that Defendant County had decided during the course

28

of several KMC Joint Conference Committee meetings not to renew Plaintiff’s employment

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contract because he had filed the instant lawsuit.

2

B.

3

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EMPLOYMENT RELATIONSHIP 31.

On October 24, 2000, the County entered into an employment contract with

4

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

5

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

6

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

7

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

8

32.

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

9

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

10

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

11

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

12

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

13

33.

The Pathology Department and consequently the Chair of Pathology is

14

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

15

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

16

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

17

hospital committees including KMC’s Quality Management Committee.

18

34.

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

19

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

20

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

21

Director.

22

35.

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

23

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

24

Ordinance, rules or regulation.

25

36.

Article II.3(B)(1) of the Second Contract guarantees that Plaintiff’s base salary

26

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

27

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

28

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

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

2 3

Document 217

37.

On information and belief, at the time of his hire, the County placed Plaintiff’s

salary level at Step C .

4

38.

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

5

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

6

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

7

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

8

Rules”).

9

39.

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

10

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

11

unsatisfactory clinical performance.”

12

40.

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

13

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

14

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

15

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

16

C.

17

WHISTLEBLOWING 41.

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

18

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

19

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

20

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

21

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

22

care and conditions of patients.

23

42.

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

24

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

25

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

26

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

27

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

28

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

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

2

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

3

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

4

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

5

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

6

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

7

fall on deaf ears, but also generated resentment and hostility among his peers at KMC.

8

43.

On or about December 12, 2005, Plaintiff’s former attorney, Michael Young

9

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

10

Concerns.

11

44.

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

12

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

13

environment Plaintiff was experiencing at KMC.

14 15

45.

Finally, on or about November 28, 2006, after almost six years of trying to reform

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

16

46.

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

17

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

18

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

19

agencies”.

20

D.

21

UNWARRANTED CRITICISMS 47.

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

22

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

23

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

24

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

25

from KMC’s Pathology Department.

26

48.

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

27

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

28

letter contained the following statements of fact:

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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.

1 2 3 4

49.

Roy’s statements regarding delays of weeks and months were false. Perez

5 reasonably understood that the statements were about Plaintiff. Perez reasonably understood the 6 statements to mean that Plaintiff was not managing the Pathology Department in a competent 7 manner. As a consequence, Plaintiff experienced a significant loss of confidence of his peers at 8 KMC. 9 50.

On or about April 20, 2005, Plaintiff sent a letter addressed to Roy and carbon-

10 copied to Perez, Dr. Maureen Martin, Chair of Surgery (“Martin”), Kercher and Bryan. The letter 11 stated: “Please refrain from making statements such as it takes weeks and sometimes months to 12 get an accurate diagnosis from your department without citing specific instances. In my 13 experience, such statements are typically untrue and consequently are unethical if not supported 14 by facts.” As officers of KMC, Kercher and Bryan approved, accepted, and/or failed to intercede 15 to protect Plaintiff from Roy’s unwarranted criticisms, and in so doing, ratified them. 16 51.

In May of 2005, Harris informed Plaintiff that Roy had voiced concerns about the

17 Pathology Department and had submitted certain pathology reports for second-level peer review 18 and investigation. Plaintiff requested that Harris identify the pathology reports in question but 19 Harris refused. Later, Plaintiff determined that no second-level peer review ever occurred. 20 52.

On or about June 30, 2005, Martin and Harris told Plaintiff that Roy was making

21 negative comments about the Pathology Department. 22 53.

On or about June 30, 2005, Plaintiff sent a letter addressed to Roy and carbon-

23 copied to Perez, Martin, Harris, Kercher and Bryan. The letter stated: 24 25 26 27 28

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

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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.

5

54.

1 2 3

Roy’s statements of fact regarding incorrect diagnoses by the Pathology

6

Department were false. The key members of the KMC medical staff who heard the statements

7

reasonably understood that the statements were about Plaintiff and reasonably understood the

8

statements to mean that Plaintiff was not managing the Pathology Department in a competent

9

manner. As a consequence, Plaintiff experienced a significant loss of confidence of his peers at

10

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

11

intercede against Roy’s unwarranted criticisms and in so doing, ratified them.

12 13

55.

On or about July 15, 2005, Roy sent a letter addressed to Plaintiff and carbon-

copied to Harris, Bryan and Perez. The letter stated:

17

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.

18

56.

14 15 16

Roy’s statements of fact regarding the existence of “discrepancies” and the

19

bringing of them to Plaintiff’s attention “many times” and “in the presence of Dr. Perez” were

20

false. Harris, Bryan and Perez reasonably understood that the statements were about Plaintiff and

21

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

22

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

23

circumstances underlying his unwarranted criticisms. As a consequence, Plaintiff experienced a

24

significant loss of confidence of his peers at KMC. As officers of KMC, Harris and Bryan

25

approved, accepted, and/or failed to intercede against Roy’s unwarranted criticisms and in so

26

doing, ratified them.

27 28

57.

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

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

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

2

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

3

consequence, Plaintiff experienced a significant loss of confidence of his peers at KMC. As

4

officers of KMC, Harris and Bryan approved, accepted, and/or failed to intercede against Roy’s

5

unwarranted criticisms and in so doing, ratified them.

6

58.

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

7

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

8

hysterectomy, and the need for Internal Pathology Review.

9

59.

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

10

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

11

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

12 13 14

60.

On information and belief, presenters at prior and subsequent Oncology

Conferences frequently exceeded time limits without interruption, incident, or reprimand. 61.

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

15

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

16

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

17 18 19 20 21 22 23 24 25 26

62.

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

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.

27 63.

The Roy Letter contained the following false statements of fact: (i) Plaintiff is a

28 small rural community hospital pathologist, (ii) Plaintiff has very limited experience in

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Gynecologic Oncologic Pathology, (iii) Plaintiff is not a clinician, (iv) Plaintiff has neither the

2

fund of knowledge nor the experience to make any recommendations regarding the treatment of

3

patients, much less criticize the care given by doctors such as Roy, (v) it is not infrequent that

4

Plaintiff’s diagnoses are in err when reviewed by outside specialists, as in this particular case,

5

(vi) the management of the patient would have been inappropriate if Plaintiff’s report had been

6

accepted, and (vii) Plaintiff’s report was different from two other pathologists in his own

7

department, suggesting the deficiency of his report. Harris reasonably understood that the

8

statements were about Plaintiff and reasonably understood the statements to mean that Plaintiff’s

9

credentials and abilities as a pathologist and physician were deficient. Roy impugned Plaintiff

10

despite Plaintiff’s numerous prior requests to stop doing so. As a consequence, Plaintiff

11

experienced a significant loss of confidence of his peers at KMC. As an officer of KMC, Harris

12

approved, accepted, and/or failed to intercede against Roy’s unwarranted criticisms and in so

13

doing, ratified them.

14

64.

Plaintiff is informed and believes, and thereupon alleges, that Harris subsequently

15

republished the Roy Letter to members of KMC staff, and that such staff further republished the

16

Roy Letter to other members of KMC staff. Such other members of KMC staff reasonably

17

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

18

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

19

physician were deficient. As a consequence, Plaintiff experienced a significant loss of confidence

20

of his peers at KMC. As officers of KMC, Harris, and DOES 1 through 10 accepted, and/or

21

failed to intercede against Roy’s unwarranted criticisms or their subsequent republication, and in

22

so doing, ratified them.

23

65.

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

24

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

25

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

26

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

27

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

28

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

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

2

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

3

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

4

criticisms or their subsequent republication by Harris and other members of KMC staff, and in so

5

doing, ratified such unwarranted criticisms.

6

66.

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

7

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

8

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

9

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

10

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

11

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

12

and/or failed to intercede against Roy’s unwarranted criticisms or their subsequent republication

13

by Harris and members of KMC staff, and in so doing, ratified such unwarranted criticisms.

14

67.

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

15

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

16

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

17

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

18

intercede against Roy’s uwarranted criticisms or their subsequent republication by Harris and

19

members of KMC staff, and in so doing, ratified such unwarranted criticisms.

20

68.

21

25

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.

26

69.

22 23 24

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

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

27

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

28

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

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and the unwarranted criticisms contained therein.

2

70.

3

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.

4 5

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

6 71.

On or about February 10, 2006, Plaintiff sent a letter addressed to Roy,

7 challenging the truthfulness of the claims contained in Roy’s letter of July 15, 2005, that Roy had 8 reported certain patient cases handled by the Pathology Department to the KMC administration 9 for quality assurance review. Plaintiff stated “to my knowledge no credible report has been 10 submitted. As of today, I have not received notice of any deficient reports from you.” Plaintiff 11 further challenged the truthfulness of other unwarranted criticisms contained in the Roy Letter 12 and demanded “immediate proof of these allegations within 14 days”. Plaintiff went on to state 13 that if Roy failed to produce such proof, then Roy should issue an apology meeting Plaintiff’s 14 specifications. 15 72.

On or about February 21, 2006, Bryan sent a letter addressed to Plaintiff, stating

16 in relevant part: 17

24

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.

25

73.

18 19 20 21 22 23

As an officer of KMC, Bryan approved, accepted, and/or failed to intercede

26

against Roy’s unwarranted criticisms or their subsequent republication by Harris and members of

27

KMC staff, and in so doing, ratified them.

28

74.

On or about March 16, 2006, Plaintiff sent an email addressed to Kercher and

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carbon-copied to Bryan, stating:

5

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.

6

75.

7

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.”

2 3 4

8 9 10

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

11 76.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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

never responded to Plaintiff’s repeated requests for factual substantiation of Roy’s numerous unwarranted criticisms; (ii) KMC never conducted an investigation into Roy’s professional misconduct; and (iii) Harris, Kercher, Bryan and Abraham have approved, accepted, and refused to intercede against Roy’s unwarranted criticisms or their subsequent republication by Harris and DOES 1 through 10. E.

MEDICAL LEAVE 77.

As of December 16, 2005, Plaintiff was eligible for twelve weeks of medical

leave under FMLA and CFRA pursuant to 29 C.F.R. § 825.110 and 2 C.C.R. § 72970(e), respectively, in that he had been regularly employed by Defendant County for 1,250 hours in the twelve months immediately prior to the start of his leave and had not taken any medical or family leave during that time. 78.

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

schedule” pursuant to 29 C.F.R. § 825.203 that is “medically necessary” pursuant to 29 C.F.R. 825.117. 79.

Plaintiff’s notice to KMC of his need for medical leave was reasonable under the

circumstances.

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80.

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On or about December 16, 2005 Plaintiff began his medically necessary reduced

2

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

3

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

4

81.

On or about January 13, 2006, Plaintiff submitted to KMC a copy of his

5

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

6

December 16, 2005 until at least March 16, 2006 because of his serious medical condition.

7

82.

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

8

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

9

Department formally approved the leave on March 13, 2006.

10

83.

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

11

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

12

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

15

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

16

84.

13 14

On or about March 16, 2006, Plaintiff sent an email to Bryan stating in pertinent

17

part: “Peter: I will be taking you (sic) suggestion and take 2 to 3 more months of leave. I am

18

scheduled to have surgery on March 22, 2006 with a several week recovery time...”. Plaintiff

19

also sent an email that same day to Dr. Kercher, stating in pertinent part: “Gene: I will be out of

20

the hospital for 2 or 3 more months. I am having surgery next week and will need several weeks

21

to recover…”.

22

85.

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

23

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

24

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

25

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

26

call me.”

27 28

86.

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

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

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

2

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

3

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

4

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

5

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

6

leave.

7

87.

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

8

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

9

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

10

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

11

88.

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

12

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

13

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

14

his serious medical condition.

15

89.

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

of reinstatement to Plaintiff’s same or equivalent position.

25

90.

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

26

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

27

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

28

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

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

2

91.

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

3

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

4

month.

5

92.

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

6

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

7

ankle for approximately three months.

8

93.

9

12

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.

13

94.

10 11

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

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

14

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

15

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

16

guarantees to the contrary. The email stated:

26

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, 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.

27

95.

17 18 19 20 21 22 23 24 25

28

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

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

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1

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

2

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

3

full-time chairman.”

4 5

96.

Plaintiff’s removal from Chairmanship by a majority vote.

6 7

On information and belief, on or about July 10, 2006, the JCC approved

97.

Plaintiff’s demotion breached the guarantee of reinstatement contained in the

Leave Designation Notice.

8

98.

On or about September 18, 2006, Barnes sent Plaintiff’s attorney a proposed

9

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

10

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

11 12

99.

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

protesting the Paycut. The email stated:

16

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.

17

100.

13 14 15

18

explaining the Paycut.

19 20

101.

On or about September 22, 2006, Plaintiff executed the Amendment

memorializing the Paycut and submitted it to Barnes.

21 22

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

102.

On or about October 3, 2006, the Board of Supervisors for Defendant County

voted to approve the Amendment.

23

103.

On October 4, 2006, Plaintiff’s 90-day personal necessity leave ended and

24

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

25

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

26

104.

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

27

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

28

emails.

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105.

Document 217

Filed 09/02/2008

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

2

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

3

Dutt’s behavior and raising additional concerns about patient care quality, safety and legal

4

noncompliance.

5

106.

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

6

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

7

resolution of a personnel matter”.

8

107.

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

9

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

10

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

11

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

12

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

13

108.

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

F.

22

DISABILITY DISCRIMINATION 109.

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

23

related hostility and KMC’s failure to resolve Plaintiff’s compliance and patient care concerns.

24

KMC subsequently permitted Plaintiff to undertake a medically necessary reduced work

25

schedule leave as a reasonable accommodation.

26

110.

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

27

work environment created by the harassment, unwarranted criticisms, discrimination, and

28

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

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became disabling in that it limited his ability to enjoy life, without anxiety or insomnia.. 111.

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

3

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

4

serious medical condition.

5

112.

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

6

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

7

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

8

with pay until this issue is resolved.”

9

113.

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

10

medically necessary reduced work schedule, and clarified that it was necessary because of the

11

reoccurrence of his disabling depression. Bryan orally approved Plaintiff’s reduced work

12

schedule.

13

114.

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

14

individual with a disability that limited his major life activities of taking pleasure in life, without

15

experiencing anxiety, insomnia or difficulty breathing and moving, and/or was perceived by

16

Defendants as having such limitations.

17

115.

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

18

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

19

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

20

116.

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

21

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

22

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

23

previously requested.

24 25 26 27

117.

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

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

28 118.

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

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

2

many years, and yes, you have made many positive changes in the department [emphasis

3

added]”.

4

119.

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

5

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

6

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

7

his serious medical condition.

8

120.

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

9

O’Conner, and ordered Plaintiff to convert his reduced work schedule to involuntary full-time

10

medical leave despite the fact that Plaintiff was ready, willing, and able to continue working his

11

reduced work schedule, thereby removing an accommodation of Plaintiff’s disability and

12

refusing to engage in good faith in an interactive process with Plaintiff.

13

121.

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

14

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

15

month.

16

122.

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

17

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

18

walk for approximately three months.

19

123.

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

20

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

21

nasal surgery and foot injury.

22

124.

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

23

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

24

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

25

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

26

125.

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

27

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

28

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

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126.

Document 217

Filed 09/02/2008

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

was having the opposite effect of severely exacerbating his depression.

10

127.

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

11

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

12

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

13

accommodation.

14 15

128.

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

16 17

129.

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

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

18 19

Plaintiff requested reasonable accommodation of his disabilities from Defendants,

130.

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

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

20

131.

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

21

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

22

G.

23 24 25

DUE PROCESS 132.

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

from his position as Chair of Pathology, but could only recommend such removal to the JCC. 133.

On July 10, 2006, Defendants County and Bryan demoted and reduced the base

26

annual compensation of Plaintiff by over $100,000 as provided for in Plaintiff’s employment

27

contract with Defendant County without providing Plaintiff impartial adjudicators, meaningful

28

notice of the JCC vote to remove Plaintiff from chairmanship or a meaningful opportunity to

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respond to the charges against him or tell his side of the storya.

2

134.

On December 7, 2006, Defendants County and Harris placed Plaintiff on

3

administrative leave, denying him the opportunity to earn professional fees of roughly $100,000

4

per year as provided for in Plaintiff’s employment contract, without providing Plaintiff impartial

5

adjudicators, meaningful notice of the meetings at which it was decided to place Plaintiff on

6

administrative leave, or a meaningful opportunity to respond to the charges against him or tell his

7

side of the story.

8

135.

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

9

contract with Defendant County, denying him continued employment pursuant to a mutually

10

explicit understanding between Plaintiff and Defendant County, without providing Plaintiff

11

impartial adjudicators, meaningful notice of the JCC meetings at which it was decided not to

12

renew Plaintiff’s contract, or a meaningful opportunity to respond to the charges against him or

13

tell his side of the story.

14

H.

15

ADVERSE ACTIONS 136.

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

16

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

17

of unwarranted criticism and ratification thereof, demotion and excessive reduction in pay,

18

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

19

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

20

interactive process and denying him reasonable accommodation and procedural due process

21

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

22

137.

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

23

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

24

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

25

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

26

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

27

written permission.

28

138.

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

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contract, which therefore expired.

2

I.

3

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DAMAGES AND CAUSATION 139.

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

4

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

5

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

6

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

7

medical leave under CFRA and oppose practice made unlawful under CFRA/FMLA, and

8

employees with disabilities that need reasonable accommodation and/or oppose practices made

9

unlawful under FEHA, and (iii) to take such action both in his own interest and in order to

10

enforce important rights affecting the public interest.

11

140.

After Plaintiff returned from leave on October 4, 2006, Defendants and each of

12

them placed Plaintiff in the position of staff pathologist and excessively reduced his salary by

13

$100,842 or over 35%.

14

141.

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

15

KMC was less than the benchmark National Medical Group Association (“NMGA”) median

16

salary for a clinical and anatomic pathologist with Plaintiff’s qualifications and experience, in

17

breach of the Second Contract.

18

142.

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

19

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

20

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

21

Contract.

22

143.

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

23

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

24

humiliation.

25

144.

26 27 28

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

are a substantial factor in causing Plaintiff’s harm. 145.

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

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

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

2

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

3

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

4

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

5

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

6

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

7

Harris or the amount of punitive damages sufficient to accomplish the public purposes of §3294

8

Civil Code and will seek leave to amend this complaint when such facts are known or proceed

9

according to proof at trial.

10

146.

Plaintiff has mitigated his damages by seeking and maintaining medical and

11

psychiatric treatment, seeking employment, and by taking progressive steps to try to restore

12

confidence in the Pathology Department at KMC.

13 14

EXHAUSTION OF REMEDIES 147.

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

15

Kern. The complaint disclosed Plaintiff’s claims of retaliation against Defendant County for

16

engaging in whistleblowing activity concerning unsafe patient care and conditions at KMC and

17

his refusal to participate in activities that he reasonably believed to be unlawful against

18

Defendant County (a true and correct copy of which is attached hereto as Exhibit 2 and

19

incorporated by reference herein). The Office of the County Counsel for the County of Kern sent

20

a letter to Plaintiff’s counsel, dated September 15, 2006 (a true and correct copy of which is

21

attached hereto as Exhibit 3 and incorporated by reference herein), giving notice that Plaintiff’s

22

complaint was deemed rejected by operation of law and informing Plaintiff that he had six

23

months from the date of such notice to file a court action on his claims. Plaintiff continued to be

24

employed by KMC as a staff pathologist and continues to be subject to a hostile work

25

environment and retaliation on an ongoing basis.

26

148.

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

27

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

28

Claims Act complaint on July 3, 2006.

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149.

Document 217

Filed 09/02/2008

Page 48 of 77

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

2

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

3

supplemented Tort Claims Act complaint on April 23, 2007.

4 5 6

150.

Plaintiff intends to file supplemented Tort Claims Act complaints with the County

of Kern on a periodic and continuing basis. 151.

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

7

Fair Employment and Housing (“DFEH”), followed by an amended complaint filed on

8

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

9

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

10

failure to provide reasonable accommodation, violations of Plaintiff’s medical leave rights.

11

Plaintiff received a right-to-sue notice from the DFEH, true and correct copies of which are

12

attached hereto as Exhibit 4 and incorporated by reference herein.

13

152.

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

14

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

15

August 3, 2006.

16

153.

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

17

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

18

the DFEH on April 23, 2006.

19

154.

On September 2, 2008, Plaintiff again filed a supplemented complaint with the

20

DFEH, supplemented to reflect additional claims for retaliation for opposing practices made

21

unlawful under CFRA and FEHA which arose after evidence was newly discovered subsequent

22

to the filing of the supplemented complaint with the DFEH on October 16, 2007.

23 24 25

155.

Plaintiff intends to file supplemented complaints with the DFEH on a periodic and

continuing basis. 156.

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

26

without seeking any penalties, with the Labor and Workforce Development Agency (“LWDA”)

27

on January 5, 2007, a true and correct copy of which is attached hereto as Exhibit 5 and

28

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

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

2

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

3

157.

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

4

he had filed a complaint and initiated this action in US district court, alleging interference with

5

Plaintiff’s right to family and medical leave under FMLA. No right-to-sue notice has issued as

6

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

7

STATEMENT OF CLAIMS

8

FIRST CLAIM

9

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

10 158.

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

11 & Safety Code § 1278.5 against Defendant County. 12 159.

Plaintiff incorporates by reference herein the allegations set forth in Paragraphs 1

13 through 157, inclusive, above. 14 160.

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

15 from discrimination and retaliation for health care workers who reported suspected unsafe care 16 and conditions of patients in health care facilities. 17 161.

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

18 regarding suspected unsafe care and conditions of patients at KMC. 19 162.

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

20 Code by engaging in a continuous and ongoing pattern and practice of discrimination and 21 retaliation against Plaintiff because he engaged in whistleblowing activity protected by Section 22 1278.5 of the Health & Safety Code. 23 163.

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

24 described herein was Plaintiff’s reports to his employer, Barmann, and Authorities regarding 25 what he reasonably believed to be unsafe patient care and conditions. 26 WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. 27 SECOND CLAIM: 28 (Retaliation In Violation Of Lab. Code § 1102.5)

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(Against Defendants County and DOES 1 through 10) 164.

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 165.

Plaintiff incorporates by reference herein the allegations contained in Paragraphs

1 through 157 above, inclusive. 166.

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

pertinent part: 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. 167.

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

unsafe care and conditions of patients at KMC to his employer, Barmann, and Authorities. 168.

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

protected by Section 1102.5 of the Labor Code. 169.

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

practice of discrimination and retaliation against Plaintiff because he engaged in activity protected by Section 1102.5 of the Labor Code. 170.

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

contributing factor in the continuous pattern and practice of discrimination and retaliation of Defendants, and each of them, against Plaintiff described in this complaint. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. THIRD CLAIM

26

[Retaliation (CFRA - Gov’t Code §§ 12949(f); 12945.1, et seq.)] (Against Defendants County and DOES 1 through 10, inclusive.)

27 28

Document 217

171.

Plaintiff alleges this third and separate claim for violations of Government Code

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§§ 12945.1, et seq., against Defendants County and DOES 1 through 10, inclusive.

2 3

Document 217

172.

Plaintiff incorporates by reference herein the allegations contained in Paragraphs

1 through 157 above, inclusive.

4

173.

At all material times herein, Sections 12949(f), 12945.2(a)(1) of the Government

5

Code and 2 C.C.R. § 7297.7(a) prohibit any person from discriminating, discharging, or

6

retaliating against an employee for exercising his right to medical leave and/or for opposing

7

employment practices made unlawful under CFRA.

8

174.

Defendants, and each of them, retaliated against Plaintiff for requesting and

9

taking medical leave, including denying him a medically necessary reduced work schedule;

10

,demoting him; excessively reducing his salary and chance to earn professional fees, bonuses and

11

promotion; and non-renewal of his employment contract.

12

175.

Plaintiff’s exercise of his right to medical leave and/or opposition to employment

13

practices made unlawful under CFRA was a motivating reason for Defendants’ adverse treatment

14

Plaintiff.

15

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

16

FOURTH CLAIM

17

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

18 176.

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

19 2601, et seq. against Defendants County, Bryan, and DOES 1 through 10, inclusive, and each of 20 them. 21 177.

Plaintiff incorporates by reference herein the allegations contained in Paragraphs

22 1 through 157 above, inclusive. 23 178.

At all material times herein, FMLA was in effect and pursuant to 29 U.S.C. §

24 2611(4)(A)(ii)(I) imposed liability on covered employers and “any person who acts directly or 25 indirectly in the interest of the employer to any of the employees of such employer” for 26 interfering, restraining, or denying the exercise of, or attempt to exercise, any right provided 27 under FMLA pursuant to 29 U.S.C. § 2615(a), which prohibits any interference with (1) an 28 employee’s exercise of rights, and/or (2) discrimination against any individual for opposing any

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practice made unlawful under FMLA .

2

179.

Defendants, and each of them, interfered, restrained, or denied the exercise of, or

3

attempt to exercise, Plaintiff’s rights under FMLA, and discriminated against him for opposing

4

practices made unlawful under FMLA.

5

180.

Defendants’ interference, restraint, or denial of the exercise of, or attempt to

6

exercise Plaintiff’s rights under FMLA, and discrimination against Plantiff for opposing

7

practices made unlawful under FMLA, included interference with and denial of Plaintiff’s right

8

to a medically necessary reduced work schedule; requiring Plaintiff to take full-time medical

9

leave when he was ready, willing, and able to work part-time, exhausting his medical leave more

10

rapidly than permitted; Defendants’ excessive reduction in Plaintiff’s salary; Defendants’

11

placement of Plaintiff on administrative leave, denying him the opportunity to earn professional

12

fees, bonuses and promotion; and Defendants’ decision not to renew Plaintiff’s employment

13

contract.

14

181.

Plaintiff’s request for and taking of medical leave under FMLA and/or opposition

15

to practices made unlawful under FMLA was a negative factor in Defendants’ adverse treatment

16

of Plaintiff.

17

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

18

FIFTH CLAIM

19

[Violation of CFRA Rights in violation of Gov’t Code §§ 12945.1, et seq.] (Against Defendants County and DOES 1 through 10, inclusive.)

20 182.

Plaintiff alleges this fifth and separate claim for violations of Government Code

21 §§ 12945.1, et seq., against Defendants County and DOES 1 through 10, inclusive, and each of 22 them. 23 183.

Plaintiff incorporates by reference herein the allegations contained in Paragraphs

24 1 through 157 above, inclusive. 25 184.

At all material times herein, the CFRA was in effect and made it an unlawful

26 employment practice for an employer to violate an employee’s rights under the CFRA pursuant 27 to section 12945.2(a) of the Government Code. 28 185.

At all material times herein, the CFRA imposed strict liability on covered

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1

employers who discriminated against an employee for exercising his right to leave or otherwise

2

interfered with an eligible employee’s CFRA rights pursuant to 2 C.C.R. § 7297.1 and Section

3

1615(a)(2) of the United States Code.

4

186.

Defendants, and each of them, discriminated against Plaintiff and otherwise

5

interfered with his CFRA rights because he exercised, or tried to exercise, his CFRA rights,

6

including interference with and denial of Plaintiff’s right to a medically necessary reduced work

7

schedule; requiring Plaintiff to take full-time medical leave when he was ready, willing, and able

8

to work part-time which exhausted his medical leave more rapidly than permitted; and

9

Defendants’ demotion of Plaintiff and excessive reduction in Plaintiff’s salary.

10 11 12

187.

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.

13

SIXTH CLAIM

14

[Disability Discrimination in Violation of Gov’t Code § 12940(a)] (Against Defendants County and DOES 1 through 10, inclusive)

15 188.

Plaintiff alleges this sixth and separate claim for Disability Discrimination in

16 violation of Government Code § 12940(a) against Defendant County and DOES 1 through 10, 17 inclusive. 18 189.

Plaintiff incorporates by reference herein the allegations contained in Paragraphs

19 1 through 157 above, inclusive. 20 190.

The FEHA prohibits discrimination on the basis of disability in employment.

191.

Defendants, and each of them, through their course of conduct denied Plaintiff a

21 22 benefit of employment, in whole or in part, because he is an individual with known disabilities in 23 violation of Government Code 12940(a) and 2 C.C.R. §7293.7. 24 192.

In addition to the adverse actions alleged above, Defendants, and each of them,

25 discriminated against Plaintiff, denied him reasonable accommodation, and refused to engage in 26 good faith in an interactive process because of his known disabilities. 27 WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter. 28

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1

SEVENTH CLAIM

2

(Failure to Provide Reasonable Accommodation in Violation of Gov’t Code § 12940(m)) (Against Defendants County and DOES 1 through 10, inclusive)

3 4 5 6 7 8 9 10 11 12

193.

Plaintiff alleges this seventh and separate claim for Failure to Provide Reasonable

Accommodation in violation of Government Code § 12940(m) against Defendant County and DOES 1 through 10, inclusive. 194.

Plaintiff incorporates by reference herein the allegations contained in Paragraphs

1 through 157 above, inclusive. 195.

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

13 14 15

(Failure to Engage In Interactive Consultation In Violation of Gov’t Code § 12940(n)) (Against Defendants County and DOES 1 through 10, inclusive) 196.

Plaintiff alleges this Eighth and separate claim for Failure to Engage in Good

16

Faith in an Interactive Consultation in violation of Government Code § 12940(n) against

17

Defendant County and DOES 1 through 10, inclusive.

18 19 20

197.

Plaintiff incorporates by reference herein the allegations contained in Paragraphs

1 through 157 above, inclusive. 198.

Defendants, and each of them, failed to engage in good faith in a prompt,

21

ongoing, interactive consultation regarding reasonable accommodation of Plaintiff’s disabilities

22

in violation of Section 12940(n) of the Government Code.

23

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

24

NINTH CLAIM

25

(Violation of Due Process Right under 42 U.S.C. § 1983) (Against Defendants County of Kern; Harris; and Bryan both in his personal capacity and in his official capacity as a member of the JCC of KMC)

26 27 28

199.

Plaintiff alleges this Ninth and separate claim for violation of Plaintiff’s

Fourteenth Amendment of the United States Constitution Right of Procedural Due Process under

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1

42 U.S.C. § 1983 against Defendants County of Kern; Harris; Bryan both in his personal

2

capacity and in his official capacity as a member of the JCC of KMC.

3 4 5

200.

Plaintiff incorporates by reference herein the allegations contained in Paragraphs

1 through 157 above, inclusive. 201.

The Fourteenth Amendment of the United States Constitution protects a public

6

employee’s right of procedural due process regarding governmental actions that deprive him of

7

life, liberty, or property interest of constitutional magnitude.

8

202.

At all material times herein, Plaintiff had a constitutionally protectable contractual

9

property right not to be deprived without cause of his position as Chair of Pathology and/or of

10

any portion of his base salary of constitutional magnitude as provided for in the Second Contract.

11

203.

At all material times herein, Plaintiff had a constitutionally protectable contractual

12

property right not to be deprived without cause of the opportunity to earn professional fees of

13

constitutional magnitude as provided for in the Second Contract.

14

204.

At all material times herein, Plaintiff had a constitutionally protectable contractual

15

right not to be deprived without cause of continued renewal of his employment contract with

16

Defendant County of constitutional magnitude pursuant to a mutually explicit understanding that

17

Plaintiff would be continuously employed by Defendant County absent for cause.

18

205.

Defendants, and each of them, intentionally, or with deliberate indifference to, or

19

with a conscious disregard of, Plaintiff’s Constitutional rights, denied Plaintiff adequate

20

procedural due process guaranteed by the Fourteenth Amendment of the United States

21

Constitution when they decided to demote Plaintiff and substantially and excessively reduced his

22

salary by a sum of constitutional magnitude in breach of the Second Contract; to place Plaintiff

23

on administrative leave denying him the right to earn professional fees of constitutional

24

magnitude; and not to renew his employment contract inflicting economic losses of

25

constitutional magnitude.

26

206.

The persons who voted to remove Plaintiff from chairmanship, who decided to

27

place Plaintiff on administrative leave, and/or who decided not to renew Plaintiff’s employment

28

contract were not impartial adjudicators. Defendants willfully and maliciously refused to give

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1

Plaintiff notice of the JCC removal vote, of the meetings to decide whether to place Plaintiff on

2

administrative leave, and of the JCC meetings to decide whether to renew Plaintiff’s employment

3

contract. Defendants further willfully and maliciously denied Plaintiff a meaningful opportunity

4

to know or respond to the charges and allegations against him or to tell his side of the story.

5

207.

Defendants and each of them, were acting or purporting to act under color of law

6

in the performance of their official duties, including as members of the JCC, when engaging in

7

the acts and omissions alleged herein.

8

208.

Plaintiff’s right to due process in connection with his removal from chairmanship

9

and reduction of his contractually-provided for base annual compensation, and/or his placement

10

on administrative leave denying him the right to earn professional fees, and non-renewal of his

11

employment contract, was clearly established.

12

209.

Defendants and each of them relied on the Bylaws of Kern Medical Center –

13

which had been ratified and approved by the Board of Supervisors for the County of Kern – in

14

determining that Plaintiff was not entitled to due process, and therefore denying him such due

15

process, in connection with his removal from chairmanship and reduction of his contractually-

16

provided for base annual compensation, his placement on administrative leave denying him the

17

right to earn professional fees, and non-renewal of his employment contract.

18

210.

The conduct of Defendants, and each of them, deprived Plaintiff of his

19

constitutionally protectable interests without adequate due process in violation of Plaintiff’s 14th

20

Amendment right of procedural due process.

21 22 23 24 25

211.

As a legal result of the conduct of Defendants, and each of them, Plaintiff was

harmed. 212.

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.

26

TENTH CLAIM

27

(FMLA Retaliation in Violation of 29 U.S.C. § 2615(b)) (Against Defendants County and DOES 1 through 10, and Each of Them)

28 213.

Plaintiff alleges this Tenth and separate claim for FMLA Retaliation in violation

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1

of 29 U.S.C. § 2615(b)) against Defendants County, and DOES 1 through 10, inclusive, and each

2

of them.

3 4 5

214.

Plaintiff incorporates by reference herein the allegations contained in Paragraphs

1 through 157 above, inclusive. 215.

At all material times herein, FMLA was in effect and pursuant to 29 U.S.C. §

6

2611(4)(A)(ii)(I) imposed liability on covered employers and “any person who acts directly or

7

indirectly in the interest of the employer to any of the employees of such employer” for

8

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

9

under FMLA pursuant to 29 U.S.C. § 2615(b)(1), which prohibits any discrimination against an

10

individual because such individual has filed any charge, or has instituted or caused to be

11

instituted any proceeding, under or related to FMLA..

12 13 14 15 16

216.

Plaintiff opposed employment practices made unlawful by FMLA by filing this

lawsuit, which included claims brought under the FEHA. 217.

Defendants, and each of them, discriminated against Plaintiff because he filed this

lawsuit herein, which included claims brought under the FMLA. 218.

Defendants, and each of them, engaged in discriminatory conduct that, taken

17

separately and/or as a whole, materially and adversely affected the terms and conditions of

18

Plaintiff’s employment, including deciding not to renew Plaintiff’s employment contract.

19 20 21

219.

Plaintiff’s filing of this lawsuit herein, which included claims brought under

FMLA, was a negative factor in Defendants’ adverse treatment of Plaintiff. WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

22

ELEVENTH CLAIM

23

(FEHA Retaliation in Violation of Gov’t Code § 12940(h)) (Against Defendants County and DOES 1 through 10 inclusive)

24 220.

Plaintiff alleges this Eleventh and separate claim for FEHA retaliation in violation

25 of Gov’t Code § 12940(h) against Defendant County and DOES 1 through 10, inclusive. 26 221.

Plaintiff incorporates by reference herein the allegations contained in Paragraphs

27 1 through 157 above, inclusive. 28 222.

Plaintiff opposed employment practices made unlawful by the FEHA by filing a

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charge with the DFEH and filing this lawsuit, which included claims brought under the FEHA. 223.

Defendants, and each of them, engaged in discriminatory conduct that, taken

3

separately and/or as a whole, materially and adversely affected the terms and conditions of

4

Plaintiff’s employment, including excessively reducing Plaintiff’s salary and chance to earn

5

professional fees, bonuses and promotion, close scrutiny, and not renewing Plaintiff’s

6

employment contract.

7 8 9 10

224.

Plaintiff’s opposition to employment practices made unlawful by the FHEA was a

motivating reason for Defendants’ adverse treatment of Plaintiff. WHEREFORE Plaintiff prays for relief as stated herein and in pertinent part hereinafter.

11 12 13 14 15 16 17

PRAYER FOR RELIEF Plaintiff prays for judgment against Defendants, and each of them, jointly and severally, as follows: 1. Front pay in lieu of reinstatement 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.

18 19

2. Recovery of all reasonable attorneys’ fees, litigation expenses and costs incurred,

20

pursuant to Section 2699 of the Labor Code for violation of Section 1102.5 of the Labor

21

Code, 1278.5(g) of the Health & Safety Code, Section 1021.5 of the Code of Civil

22

Procedure, Section 12965 of the Government Code, 29 U.S.C. § 2617(a)(3) [FMLA], and

23

42 U.S.C. § 1988.

24 25

3. That Defendant County be enjoined from retaliating against whistleblowers in violation

26

of Section 1278.5 of the Health & Safety Code and Section 1102.5 of the Labor Code.

27

4. That Defendant County be required to expunge from Plaintiff’s personnel records any

28

and all references to Plaintiff’s having “poor relationships” with staff, displaying poor

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teamwork or other words of similar effect. 5. That Defendant County be required to comply with all of the provisions of the FEHA relating to providing reasonable accommodation and engaging in good faith in an

4 5 6 7 8 9

interactive consultation regarding reasonable accommodation [Government Code §§ 12940 (m) & (n)]. 6. That Defendant County be required to provide training to the managerial staff at KMC regarding compliance with Section 1278.5 of the Health & Safety Code, Section 1102.5 of the Labor Code, Sections 12940(m) and (n) of the Government Code, and CFRA

10 11

(Government Code §§ 12945.1, et seq.).

12

7. General and compensatory damages according to proof.

13

8. Liquidated damages under FMLA/CFRA according to proof.

14

9. Punitive damages against Defendants Harris and Bryan pursuant to §3294 Civil Code and

15

42 U.S.C. § 1983;

16 17 18

10. Pre-judgment interest pursuant to §3291 of the Civil Code. 11. For such other and further relief as the court may deem proper.

19 20 21 22 23

Dated: September __, 2008

LAW OFFICE OF EUGENE LEE By: ___________________________________ Eugene D. Lee Attorney for Plaintiff DAVID F. JADWIN, D.O.

24 25 26 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: September ___, 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

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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  

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          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,

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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

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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 Filed09/02/2008 06/30/2008 Page Page71 1 of 2 77

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

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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

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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 Filed09/02/2008 06/30/2008 Page Page72 2 of 2 77

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]

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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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