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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] 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.,

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Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(e)]

COUNTY OF KERN, et al., Defendants.

Date: January 12, 2009 Time: 10:00 Courtroom: U.S. Dist. Ct., Crtrm. 3 2500 Tulare St., Fresno, CA Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

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Table of Contents EXECUTIVE SUMMARY ................................................................................................................ 1  A.  Credential Threat .......................................................................................................................... 1  B.  Forced Full-Time Leave ............................................................................................................... 1  C.  Demotion and Paycut ................................................................................................................... 2  D.  Administrative Leave ................................................................................................................... 2  E.  Nonrenewal .................................................................................................................................. 3  II.  ARGUMENT ...................................................................................................................................... 4  A.  THRESHOLD ISSUES ................................................................................................................ 4  1.  Defendants’ Spoliation of Evidence Creates an Adverse Inference Avoiding Summary Judgment ............................................................................................................................................. 4  2.  Defendants Failed to Plead Affirmative Defenses ................................................................... 7  B.  Adverse Employment Actions Common to Counts ..................................................................... 7  C.  COUNTS 1 & 2: Whistleblower Retaliation................................................................................ 8  1.  October Conference .................................................................................................................. 8  2.  PCCs ......................................................................................................................................... 9  3.  Radical Prostatectomy .............................................................................................................. 9  4.  Martinez Tipoff......................................................................................................................... 9  5.  Skull Flaps .............................................................................................................................. 10  6.  Smear Campaign..................................................................................................................... 10  D.  COUNTS 3 & 4: Medical Leave Retaliation ............................................................................. 10  E.  COUNTS 4 & 5: Medical Leave Denial/Interference ................................................................ 13  F.  COUNT 9: Deprivation without Due Process ............................................................................... 14  1.  Demotion ................................................................................................................................ 14  2.  Admin Leave .......................................................................................................................... 15  3.  Nonrenewal ............................................................................................................................. 16  4.  Qualified Immunity ................................................................................................................ 17  5.  Stigma ..................................................................................................................................... 18  G.  COUNTS 3, 10 AND 11: Oppositional/Participatory Retaliation ............................................. 18  H.  COUNT 6: Disability Discrimination ........................................................................................ 20  I.  COUNT 7: Failure to Accommodate ............................................................................................. 23  J.  COUNT 8: Interactive Process ...................................................................................................... 24  III.  CONCLUSION .............................................................................................................................. 25 

I. 

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Table of Authorities Cases  Aerel, S.R.L. v. PCC Airfoils, LLC (6th Cir. 2006) 448 F3d 899, 907–908 ............................................. 19 Ayoob v. Ayoob (1946) 74 Cal.App.2d 236, 250-251 ............................................................................... 15 Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001) ............................... 11, 12 Bank of Ill. v. Allied Signal Safety Restraint Systems (7th Cir. 1996) 75 F3d 1162, 1169 ....................... 19 Block v. City of Los Angeles (9th Cir. 2001) 253 F3d 410, 419, fn. 2 ...................................................... 19 Blumer v. Madden (1932) 128 Cal.App. 22, 24 ........................................................................................ 15 Board of Regents v. Roth 408 U.S. 564, 578 n.16 (1972) ........................................................................... 8 Bowen v. Missouri Department of Social Services, 311 F.3d 878, 884 (2002) ........................................ 23 Brewster v. Bd. of Educ. 149 F.3d 971, 987, fn.9. (9th Cir. 1998) ........................................................... 17 Brown v. Sierra Nevada Memorial Hospital 849 F.2d 1186 (9th Cir. 1988) ........................................... 22 Byrnie v. Town of Cromwell, Board of Ed. (2nd Cir. 2001) 243 F3d 93, 107 ............................................ 4 California Fair Employment and Housing Commission v. Gemini Aluminum Corp. 122 Cal.App.4th 1004 (2004) ............................................................................................................................................. 1 City of Moorpark v. Superior Court, 18 Cal.th 4th 1143 (1998) ................................................................. 21 Colarossi v. Coty USA, Inc. 97 Cal. App. 4 1142 ................................................................................... 10 Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30 ..................................................................... 23 Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33 .................................................................. 3 EEOC v. Board of Governors (7th Cir. 1992) 957 F.2d 424 ...................................................................... 3 EEOC v. Sears Roebuck Co. (4th Cir. 2001) 243 F.3d 846, 853 .............................................................. 22 Humphrey v. Memorial Hosps. Assn. (9 Cir. 2001) 239 F. 3d 1128, 1139-1140 ..................................... 21 Kimbro v. Atlantic Richfield Co. 889 F.2d 869 (9th Cir., 1989) ................................................................. 1 Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 430 ..................................................................... 16 Lujan v. Minagar 124 Cal.App.4th 1040, 1045-46 (2005) ......................................................................... 9 McDonnell Douglas v. Green, 411 U.S. 792 (1973) ................................................................................ 22 Mendiondo v. Centinela Hosp. Medical Center 521 F.3d 1097, 1105 (9th Cir. 2008) .............................. 8 Mora v. Chem-Tronics Inc., 16 F.Supp. 2d 1192, 1202, 1217 (S.D. Cal. 1998) ...................................... 13 Morgan v. U.S. Xpress, Inc., 2006 U.S. Dist. LEXIS 36195 (M.D. Ga. June 2, 2006) .............................. 4 O’Mary v. Mitsubishi Electronics of America, Inc., 59 Cal. App. 4th 563, 574-75 (1997) ..................... 22 Payne v. Norwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080 .................................................................. 22 Perry v Sindermann 408 U.S. 593, 602 (1972)..................................................................................... 8, 17 Richards v. CH2M Hill, Inc. 26 Cal. 4th 798, 803 .................................................................................... 10 Roberts v. College of Desert 870 F.2d 1411, 1416 (9th Cir. 1988) .................................................... 14, 17 Roth v. Veteran’s Admin. of United States 856 F.2d 1401, 1409 ....................................................... 16, 17 Schneider v. TRW, Inc. (9th Cir. 1991) 938 F.2d 986, 990–991................................................................. 7 Shoemaker v County of Los Angeles (1995 2d. Dist.) 37 Cal.App.4th 618, 630 ...................................... 16 Transworld Airlines v. Thurston, 469 U.S. 111, 105 (1985) .................................................................... 22 Williams v. Shenango, Inc. 986 F. Supp. 309, 320-21 (W.D. Pa. 1997)................................................... 13 Zubulake v. UBS Warburg LLC (SD NY 2004) 229 FRD 422, 432........................................................... 4 Statutes  29 U.S.C. § 2615(b) .................................................................................................................................. 18 Cal. Gov’t C. § 12945.2 ............................................................................................................................ 13 Cal. Gov’t Code §§ 12926.1(c) ................................................................................................................. 21 Cal. Gov’t. C. § 12940(h) ......................................................................................................................... 18 Cal. Gov’t. C. §§ 12900 to 12996 ............................................................................................................. 18 Cal. Gov't. Code 12926(i)(1)(B) ............................................................................................................... 21 Cal. Health & Safety Code § 1278.5........................................................................................................... 8 Cal. Health & Safety Code § 1278.5(b)(1)(A) ............................................................................................ 8 Cal. Health & Safety Code § 1602.5........................................................................................................... 9 Cal. Health & Safety Code § 1635.1......................................................................................................... 10 Cal. Health & Safety Code 1278.5(d) ......................................................................................................... 8 Cal. Labor Code § 1102.5(e)....................................................................................................................... 8 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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Cal. Labor Code § 1102.6 ........................................................................................................................... 8 U.S.C. § 2615(b)(1) .................................................................................................................................. 18 Other Authorities  Adv. Comm. Note to 2006 Amendment to FRCP 26(b)(2) ........................................................................ 4 Judicial Council of California Civil Jury Instructions No. 2600 .............................................................. 13 Regulations  2 Cal. Code of Regs. § 7297.1(2).............................................................................................................. 13 2 Cal. Code of.Regs. § 7297.7 .................................................................................................................. 11 2 Cal.Code.of Regs. § 7287.8(b)..................................................................................................... 7, 11, 18

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

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

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

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“County”). [Plaintiff Material Fact (“PMF”) 5, 30]. Plaintiff’s major depression disability was known to

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

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

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

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

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

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

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

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

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

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

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did not work. [PMF 226].

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B. FORCED FULL-TIME LEAVE In April 2006, several months into Plaintiff’s reduced work schedule leave, Defendant Peter

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

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

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

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It is undisputed that, in 2003, Plaintiff told Marv Kolb, M.D., then-Chief Medical Officer and Plaintiff’s direct supervisor, that he was depressed. There is no legal requirement that Plaintiff notify each and every officer at KMC of his disability, or that he use the word “disability”. In Kimbro v. Atlantic Richfield Co. 889 F.2d 869 (9th Cir., 1989), the court held that notice to Plaintiff’s supervisor was imputed to the person(s) who made the final decisions regarding the adverse action. See also California Fair Employment and Housing Commission v. Gemini Aluminum Corp., 122 Cal.App.4th 1004 (2004) (notice to ANY supervisor of plaintiff’s limitations is sufficient to trigger the accommodation duty.) USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

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

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

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Plaintiff’s medical leave entitlement. [PMF 228]. This violated the California Family Rights Act

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

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

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

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KMC’s highest decisionmaking body, the Joint Conference Committee (“JCC”) [PMF 16-17], which the

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

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reduction (“Paycut”) in Plaintiff’s base compensation (“Base Pay”). [PMF 48]. Bryan’s written

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recommendation to the JCC stated that Plaintiff should be demoted based on “Dr. Jadwin’s

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

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

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interfering with and retaliating against Plaintiff’s protected medical leave.

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

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

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

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

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D. ADMINISTRATIVE LEAVE

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Prior to the Demotion in July 2006, Bryan had ordered Plaintiff onto 90-day personal necessity

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leave. Defendants claim Bryan was simply “granting” Plaintiff’s request, but Plaintiff never made any

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such request. [PMF 264, 265].

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

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

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

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

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190]. When Plaintiff complained in December 2006 about additional patient care issues and the USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

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

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

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

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

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

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

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

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[PMF 64]. Defendant Harris was acting willfully and maliciously. The Admin Leave denied Plaintiff his clearly-established, contractually-provided for right to

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

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

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

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

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Defendant County. [PMF 196, 204].

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E. NONRENEWAL Defendant County decided not to renew Plaintiff’s contract (“Nonrenewal”) [PMF 29, 68], which

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

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

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

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County of Kern, testified: “My understanding was that [Plaintiff] had – he had been on medical leave,

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family leave, and had requested even more leave, and that for that reason and the fact that the was suing

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

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demote Plaintiff [PMF 67] and also participated in the JCC’s decision not to renew Plaintiff’s contract.

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[PMF 67, 68].

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An employer’s’ failure to follow its own policies and procedures gives rise to an inference of unlawful motive because it establishes that the ‘work rules apply to everyone but Plaintiff’. Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33; EEOC v. Board of Governors (7th Cir. 1992) 957 F.2d 424. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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Plaintiff had a constitutional property right to continued employment by Defendant County.

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[PMF 69, 70, 200, 201]. Yet, when Defendant County decided to not to renew his contract, they gave

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him no due process. They never put him on notice as to what the charges against him were nor gave him

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any opportunity to defend himself. [PMF 202-204]. This is despite the fact that, in May 2007, Plaintiff

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had written to Defendant County requesting an explanation for its decision not to renew his contract.

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[PMF 204]. To date, Plaintiff has not received any response from Defendant County, let alone an

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explanation or opportunity to respond. [PMF 204].

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II. ARGUMENT

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A. THRESHOLD ISSUES

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1. Defendants’ Spoliation of Evidence Creates an Adverse Inference Avoiding Summary Judgment

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Spoliation of relevant evidence creates an inference adverse to the party responsible for the 12 spoliation. That inference, in combination with “some (not insubstantial) evidence for plaintiff’s cause 13 of action” may allow plaintiff to survive summary judgment. Byrnie v. Town of Cromwell, Board of Ed. 14 (2nd Cir. 2001) 243 F3d 93, 107 (parentheses in original); see, e.g., Morgan v. U.S. Xpress, Inc., 2006 15 U.S. Dist. LEXIS 36195 (M.D. Ga. June 2, 2006). 16 Once a party reasonably anticipates litigation, it must suspend its routine document 17 retention/destruction policy and put in place a “litigation hold” to ensure preservation of relevant 18 documents. Once the “litigation hold” is in place, a party and its counsel must communicate with key 19 employees to make certain all sources of potentially relevant information are identified and placed “on 20 hold,” and that all backup media are identified and stored in a safe place. See Zubulake v. UBS Warburg 21 LLC (SD NY 2004) 229 FRD 422, 432; see also Adv. Comm. Note to 2006 Amendment to FRCP 22 26(b)(2). 23 Plaintiff twice requested Defendant County to preserve evidence. On June 29, 2006, Plaintiff’s 24 counsel sent a letter to Kern County counsel Karen Barnes (“Barnes”) which was captioned “Re: 25 Preservation / no spoliation of evidence Jadwin v. County of Kern, Peter Bryan, et al.”. This letter pre26 dated the Demotion of July 10, 2006 by almost a month. [PMF 230]. It outlined in detail Plaintiff’s 27 pending claims for whistleblower and medical leave retaliation and disability discrimination and 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

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

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On March 29, 2007, Plaintiff’s counsel again sent a letter to Barnes stating, “I would like to remind you

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

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Nevertheless, at Plaintiff’s 8/19/08 deposition of Barbara Patrick, former Chair of the Kern

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

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

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

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

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

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

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produce a single JCC meeting agenda in response to Plaintiff’s numerous discovery demands. [PMF

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

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

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Patrick’s spoliated notes were material evidence relating to the circumstances surrounding the

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Demotion and Paycut and therefore relevant to Plaintiff’s allegations that whistleblower retaliation,

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

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

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Demotion, that Defendant Bryan acted with malice in causing violation of Plaintiff’s constitutional due

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

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pretext, among other things.

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Likewise, at Plaintiff’s 8/21/08 deposition of David Culberson, former CEO of KMC who

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

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

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

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

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

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Plaintiff’s lawsuit. [PMF 243]. In the absence of those notes, Culberson was unable to recall important USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

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

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

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

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Culberson’s spoliated notes were material evidence relating to the circumstances surrounding the

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Demotion, Admin Leave and Nonrenewal and therefore relevant to Plaintiff’s allegations that

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

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

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

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Nonrenewal, that Defendant Harris acted with malice in causing violation of Plaintiff’s constitutional

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

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therefor are pretext, among other things.

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

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

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

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

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Plaintiff’s consternation over the spoliation.

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Q. Okay. Well, why don’t we take the second question. Do you have this E-mail where Dr. Jadwin told you no one? A. No. Q. Is that because you deleted it as well? A. Yes. Q. Why did you delete these E-mails? A. Because I delete my E-mails. Q. You delete -- what was -- I’m sorry, Doctor. You just engaged in a facial expression. What was the significance of that? A. I think your question’s silly. [PMF 250].

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Despite the fact that Culberson recalled that Ragland had investigated Plaintiff just prior to the

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

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

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

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that was not in response to any discovery-related request from an attorney (as he never received one) but USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

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little. [PMF 253].

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The foregoing spoliation not only gives rise to an adverse inference defeating Defendants’ Motion for Summary Judgment, it demands sanction.

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2. Defendants Failed to Plead Affirmative Defenses

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Defendant County asserts a statutory affirmative defense to oppositional retaliation liability

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

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

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

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

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

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22).

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

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

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

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

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has been prejudiced. These unpleaded defenses should be barred.

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B. ADVERSE EMPLOYMENT ACTIONS COMMON TO COUNTS Defendants’ argument that Plaintiff did not suffer “an adverse employment actions” is baseless.

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

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

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Cir. 1991) 938 F2d 986, 990–991. For sake of economy, Plaintiff hereby incorporates Section II.C of his

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

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

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

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

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First, Defendants misstate the law. Board of Regents v. Roth stands for the opposite proposition. There, the court looked for something “approaching a common law of re-employment” a la Perry v USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

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

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

4

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

5

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

6

Second, Defendants misstate Plaintiff’s deposition testimony by suggesting he did not want

7

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

8

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

9

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

10 11

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

12

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

13

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

14

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

15

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

16

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

17

see also Mendiondo v. Centinela Hosp. Medical Center 521 F.3d 1097, 1105 (9th Cir. 2008). Likewise,

18

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

19

report to their employer.

20

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

21

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

22

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

23

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

24

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

25 26

1. October Conference At a monthly KMC oncology conference held on October 12, 2005 (“October Conference”),

27

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

28

hysterectomy for a KMC patient that had relied on inaccurate outside pathology reports, as well as USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

2

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

3

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

4

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

5

2. PCCs

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

related regulations [PMF 98].

15

3. Radical Prostatectomy On December 6, 2006, Plaintiff made a protected report to Culberson regarding a KMC patient

16 17

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

18

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

19

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

20

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

21

266].

22

4. Martinez Tipoff

23

Defendants contend that Plaintiff’s tipoff of coming outside inspections to Gilbert Martinez

24

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

25

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

26

file workplace safety complaints constitutes whistleblower retaliation. Lujan v. Minagar 124

27

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

28

inspections around Thanksgiving and that he informed his supervisor, David Hill, Director of USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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1

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

2

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

3

conversation with Harris regarding Plaintiff’s statement to Martinez that “he was going to report the

4

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

5

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

6

with CAP inspections to conduct a mock unannounced inspection. Harris quickly approved Dutt’s

7

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

8

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

9

5. Skull Flaps Included in the Outside WB Reports was Plaintiff’s protected report that patient skull flaps

10 11

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

12

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

13

unlicensed tissue storage and informed Culberson. [PMF 111]. On May 1, 2007, 6 months after Defendants learned of Plaintiff’s tipoff to Martinez and 4

14 15

months after they learned of Plaintiff’s report to CAP about Skull Flaps, Defendant County informed

16

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

17

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

18

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

19

leave would end. [PMF 59, 62].

20

6. Smear Campaign In response to his whistleblowing, Defendants targeted Plaintiff with a smear campaign of

21 22

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

23

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

24

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

25

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

26

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

27

190].

28

D. COUNTS 3 & 4: MEDICAL LEAVE RETALIATION USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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1

Defendants’ legal analysis regarding medical leave retaliation is woefully deficient.

2

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

3

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

4

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

5

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

6

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

7

262, 7:7-9:7). Second, Defendants’ motion suggests that FMLA interference analysis devolves to an analysis of

8 9

whether Plaintiff’s medical leave rights were “chilled”, which in Defendants’ view is satisfied by

10

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

11

allegedly didn’t comply – with CFRA and FMLA. (Doc. 262, 10:8-12:13). This entire analysis has no

12

support in caselaw and is irrelevant to a leave retaliation analysis. To establish medical leave retaliation, a plaintiff need only show: (1) his employer was covered

13 14

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

15

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

16

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

17

Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001). Elements 1-3 are undisputed that [PMF 4, 36, 120, 121]. As for element 4, the 9th Circuit in

18 19

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

20

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

21

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

22

burden shifting framework does not apply. Id. at 1131. While Defendants’ brief did not contend that

23

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

24

consideration of Plaintiff’s medical leaves notwithstanding, such argument would have been to no avail

25 26 27 28

3

Section 7287.8(a) states: “It is unlawful for an employer or other covered entity to demote [. . .] or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Commission or Department or their staffs.” USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

2

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

3

established.

4

The 9th Circuit further stated in a footnote that the defendant’s consideration of the plaintiff’s

5

“continued unavailability” further established that the plaintiff’s medical leave had been a negative

6

factor in her termination:

7

12

We note that it appears fairly clear in any event that Bachelder would not have been fired had she not taken the protected leave. The supervisor who recommended that Bachelder be fired admitted in his deposition that “the basis for her termination, for the most part, was availability,” and characterized her on-time performance and Employee of the Month deficiencies as “minor performance issues.” Moreover, America West’s witnesses testified at the trial that Bachelder’s attendance was the primary reason for firing her, and the district court ultimately found that Bachelder failed to contradict their testimony that “the likely reason for her termination …was because of her continued unavailability in 1996.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1131 (9th Cir. Ariz. 2001) n22 (emphasis added).

13

Here, it is incontrovertible that Defendant County considered Plaintiff’s medical leave as a

8 9 10 11

14

negative factor in the Demotion and Nonrenewal. In the case of the Demotion, Plaintiff’s “continued

15

unavailability” due to medical leave wasn’t just a negative factor, it was the only factor. Defendants’

16

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

17

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

18

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

19

his recommendation was based on Plaintiff’s “unavailability for service because of extended medical

20

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

21

then “took Bryan’s advice and they did it for the reason that he gave in his memorandum”. [DMF 33].

22

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

23

availability” due to protected leave.

24

Regarding the Nonrenewal, Watson testified: “My understanding was that [Plaintiff] had -- he

25

had been on medical leave, family leave, and had requested even more leave, and that for that reason

26

and the fact that he was suing us, that we decided not to renew his contract.” [PMF 68]. It is

27

incontrovertible that Plaintiff’s medical leave was also a negative factor in the Nonrenewal.

28

In fact, Defendant County, through its PMK, testified that punishing employees for taking USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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medical leave was “sometimes” appropriate. [PMF 150].

2

E. COUNTS 4 & 5: MEDICAL LEAVE DENIAL/INTERFERENCE

3

Defendants contend that “Every request for leave that Plaintiff made was granted.” (Doc.

4

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

5

leave laws (Doc. 262, 11:7-12:13). However, even if true, 99 instances of compliance won’t blot out 1

6

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

7

did occur. Defendants’ discussion is therefore insufficient.

8

An employer’s suggestion that an employee take different dates of leave in order to

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

expected timing and length, and that was all he was legally required to do. Gov’t C. § 12945.2; CACI

20

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

21

C.C.R. § 7297.1(2). Sandra Chester, Defendant County’s then-HR Director, testified in deposition that

22

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

23

after his initial medical leave expired, was timely:

24 25 26 27

Q: You know, so this e-mail, under your normal program in your tenure at KMC, would constitute reasonable notice of the need for an extension of his medical leave that should have generated an employee information packet being sent to him at that time. Is that correct? A. Absolutely. [PMF 128]. It is incontrovertible that Plaintiff gave reasonable notice of his need for an extension of medical

28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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leave. Defendants’ allegations of Plaintiff’s noncompliance with FMLA/CFRA are insufficient.

2

F. COUNT 9: DEPRIVATION WITHOUT DUE PROCESS

3

Defendants allege Plaintiff cannot show he had a constitutional property right to chairmanship

4

and Base Pay, Professional Fees, or continued employment. Plaintiff can show by incontrovertible

5

evidence that he did.

6 7 8 9

1. Demotion Plaintiff had a constitutional property right to his Base Pay. The Demotion and Paycut resulted in a reduction and deprivation of over $100,000 of his Base Pay. Under California law, a contract-based entitlement constitutes a constitutionally protectable

10

interest. Roberts v. College of Desert 870 F.2d 1411, 1416 (9th Cir. 1988). Plaintiff’s employment

11

contract expressly set forth a mutually explicit understanding with Defendant County that Plaintiff

12

would receive Base Pay of $287,529, and that Plaintiff would be chair of KMC’s pathology department

13

[PMF 176]. Moreover, the employment contract barred Defendant County from reducing Plaintiff’s

14

Base Pay, removing Plaintiff from chair or terminating or otherwise modifying the Contract at will,

15

without cause, or without Plaintiff’s consent [PMF 177].

16

To date, Defendant County has not removed a department chair without cause. [PMF 178]. In

17

fact, Defendant County has expressly recognized the constitutional right of chairs not to be demoted

18

without due process. JCC minutes regarding the contemplated demotion of the chair of the OB-GYN

19

department stated: “The problem is we have tied a portion of the chair’s compensation to that position,

20

that is a property right. Dr. Perez is entitled to due process hearing for this reason.” [PMF 257]. It is

21

undisputed that a portion of Plaintiff’s chair compensation was likewise tied to his chair position. [PMF

22

47]. Plaintiff was likewise entitled to due process.

23

Moreover, Defendants’ contention that a Base Pay reduction without cause was already

24

encompassed and provided for in Plaintiff’s contract is contradicted by Defendants’ own repeated

25

insistence that the Paycut Amendment was in fact necessary after the Demotion. [PMF 47, 48]. If

26

Defendants’ contention were correct, no contract modification should have been necessary. However,

27

Defendants were acutely aware that the opposite was true, that the Demotion and Paycut in fact

28

necessitated an amendment. Defendants therefore preconditioned Plaintiff’s continued employment on USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

file suit challenging the Demotion. [PMF 184].

10

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

11

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

12

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

13

that the JCC “took Bryan’s advice and they did it for the reason that he gave in his memorandum”.

14

[DMF 33].

15

2. Admin Leave

16

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

17

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

18

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

19

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

20

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

21

to them. [PMF 25, 56].

22

In fact, Defendant County was acutely aware of Plaintiff’s contractual interest in Professional

23

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

24

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

25

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

26

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

27

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

28

More importantly, Defendant County’s own policy explicitly states that Defendants were not USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

2

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

3

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

4

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

5

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

6

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

7

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

8 9 10 11 12 13

Any employee may be dismissed, suspended, reduced in rank and/or compensation, reprimanded or otherwise disciplined for any action or conduct which in the judgment of the appointing authority provides good cause for discipline under the Civil Service Rules or other laws, regulations, or policies [. . . .] .6 Administrative Leave with Pay. A department head may place an employee on administrative leave with pay if the department head determines that the employee is engaged in conduct posing a danger to County property, the public or other employees, or the continued presence of the employee at the work site will hinder an investigation of the employee’s alleged misconduct or will severely disrupt the business of the department [. . . .] [PMF 258] (emphasis added). It is incontrovertible that Plaintiff had a contractual right to earn Professional Fees and that

14 Defendants Harris and County were not permitted to place Plaintiff on Admin Leave, and deprive 15 Plaintiff of Professional Fees, without cause. Plaintiff thus had a constitutional property right to those 16 Professional Fees and was entitled to due process relating to their deprivation. 17 Defendants make a frivolous argument that Defendant Harris had no part in placing Plaintiff on 18 Admin Leave and is therefore relieved of liability. (Doc. 262, 32:19-21). However, in its verified 19 response to Plaintiff’s Interrogatory No. 42, Defendant County identified Harris as one of 4 participants 20 in the decision to place Plaintiff on administrative leave [PMF 229], depriving him of Professional Fees 21 without any due process whatsoever. [PMF 24, 26, 60]. 22 23

3. Nonrenewal A party’s expectation of continued employment may be based on rules or understandings,

24 entitling him to constitutional due process. Roth v. Veteran’s Admin. of United States 856 F.2d 1401, 25 1409 (“If Roth was a permanent, non-probationary VA employee, he was clearly entitled to procedural 26 protections before being deprived of his job”.) (emphasis added). In Board of Regents v. Roth, a case 27 which Defendants incorrectly cite in support of their motion, the court considered the question of 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

2

looking for something “approaching a common law of re-employment” a la Perry v Sindermann. 408

3

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

4 5 6 7 8

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

9 non-probationary employee of Defendant County. His position at KMC was “core physician”, a 10 permanent position as acknowledged by Bryan in deposition testimony. [PMF 69]. There was a mutually 11 explicit understanding that his contract would be continuously renewed [PMF 70]. Defendant County 12 had a policy of renewing the contracts of all of its non-probationary physicians [PMF 70] – since 13 October 2000, the contract of only one member of KMC’s sizable medical staff has not been renewed 14 [PMF 71] , and that was due to a breakdown in negotiations over compensation. [PMF 254]. 15 It is incontrovertible that there was a “common law of re-employment” at KMC, that Plaintiff 16 was a “permanent”, non-probationary employee, and that Plaintiff therefore had a constitutional property 17 right to continued employment by Defendant County. 18 19

4. Qualified Immunity Defendants argue Bryan and Harris enjoy qualified immunity because they did not violate a

20

clearly established right. (Doc. 262, 32:1-23). However, the 9th Circuit has established that when a

21 property interest is determined to be constitutionally protected under the Perry v Sindermann “mutually 22 explicit understandings” standard, it is clearly established and the defendant is not entitled to qualified 23 immunity. Roberts v. College of Desert 870 F.2d 1411, 1416-17 (9th Cir. 1988) (“Because we have 24 found that the understanding between Roberts and Dr. Stout satisfies the Perry standard, the defendants 25 are not entitled to immunity from liability for the College’s failure to provide Roberts the rudiments of 26 due process.”). Moreover, where pre- and post-deprivation procedures are absent, the offending officials 27 are not entitled to qualified immunity. Brewster v. Bd. of Educ. 149 F.3d 971, 987, fn.9. (9th Cir. 1998) 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

to the Demotion and Admin Leave, respectively.

14

5. Stigma

15

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

16

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

17

Plaintiff does not allege deprivation of liberty.

18 19

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

20

practices or participates in any proceeding under Gov’t C. §§ 12900 to 12996. [Gov’t. C. § 12940(h); 29

21

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

22

a complaint, testified, or assisted in any proceeding under [Gov’t C. §§ 12900 through 12996].” Id.;

23

U.S.C. § 2615(b)(1).

24

Defendant County asserts a statutory affirmative defense to oppositional retaliation liability

25

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

26

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

27

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

28

Defendants demoted Plaintiff solely due to unavailability for medical leave. [DMF 33, PMF 17]. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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Plaintiff’s unavailability due to medical leave cannot be a legitimate business reason for employment

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

3

1112 (9th Cir. 2001).

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Regarding the Admin Leave, Plaintiff disproves Defendants’ alleged reasons as non-credible pretext supra at •. Regarding the Nonrenewal, Defendants’ brief does not even bother to allege a “legitimate

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

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

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

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

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

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affiant’s deposition testimony. Aerel, S.R.L. v. PCC Airfoils, LLC (6th Cir. 2006) 448 F3d 899, 907–908;

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

14

Here, Watson testified at his deposition that Defendant County decided not to renew Plaintiff’s

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

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this was the case and each time he answered yes:

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Q. Okay. What about the nonrenewal? I mean, do you recall Dr. Jadwin’s physical absence being a reason for his nonrenewal of his contract? A. Well, it could be that. It could be the fact that I think by then he was -- probably was suing us. So why would you want to establish a contractual relationship with somebody who’s suing you. Q. Okay. Well, he was also suing you at the time of his removal or actually at the time of his --no, he wasn’t. He wasn’t. Okay. But I mean, you say why would you establish a contractual relationship with someone who’s suing you, right? A. Right. Q. Was that -- does that mean -- are you just speculating now, just guessing, or was that a consideration for his nonrenewal? A. Well, I remember it being discussed. […] Q. Okay. But you recall it being discussed at the JCC meetings? A. Yes. [PMF 259]. Watson then re-affirmed a third time – volunteering it on his own initiative – that oppositional

27 retaliation was an additional motivating factor for the Nonrenewal: 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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Q. So the question is: You’ve mentioned that for the nonrenewal one of the reasons was that Dr. Jadwin wasn’t available for work; is that correct or -A. My understanding was that he had -- he had been on medical leave, family leave, and had requested even more leave, and that for that reason and the fact that he was suing us, that we decided not to renew his contract. [PMF 260].

4

Defendants resort to frivolous arguments in their bid to contradict Watson’s testimony, setting up

1 2

5 6

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

Defendants point out Watson testified that he didn’t recall discussion of Plaintiff’s termination or

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

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

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considering immediate termination or medical privileges denial. A discussion of one doesn’t

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

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

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

13

•

Defendants then point out Watson couldn’t recall a formal JCC vote to not renew Plaintiff’s

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contract. This proves nothing about whether or not the JCC decided to not renew Plaintiff’s

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

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

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•

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

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

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or expiration of Plaintiff’s contract. This proves nothing about whether such a decision or

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

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

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he clearly recalled the JCC deciding on the Nonrenewal.

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Watson’s testimony is more than clear. Defendants’ sham declarations should be disregarded.

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

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

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H. COUNT 6: DISABILITY DISCRIMINATION Plaintiff incorporates by reference the points and authorities set forth in Sections II (I) & III (I) of Plaintiff’s Corrected Motion for Full or Partial Summary Judgment regarding his Sixth Claim for USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

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Disability Discrimination and Defendant’s Eleventh Affirmative Defense re Workers Compensation

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Preemption.

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Contrary to Defendant’s assertion, Plaintiff has expressly stated that his Sixth Claim for

4

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

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

6

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

7

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

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1143 (1998). Further, Defendants’analysis of Plaintiff’s disability claim under the ADA is inapposite

9

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

10

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

11

relied on by Defendants. [Gov’t C. §§ 12926.1(c), 12926(i)(1)(B); Defendants’ Motion (Doc. 262) at

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14:10-13].

13

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

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

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

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

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Plaintiff’s chronic depression from December 16, 2005 to April 28, 2006, when Defendant Bryan forced

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

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

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

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Plaintiff’s accommodation. [PMF 141, 227 ].

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Defendants’ own admissions establish that Defendant Bryan’s revoking of Jadwin’s

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

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

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

26

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

27

termination is particularly strong where it is the employer’s failure to reasonably accommodate a known

28

disability that leads to discharge for performance inadequacies resulting from that disability”); PMF USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

3

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

4

disparate treatment based upon circumstantial evidence using the standards set forth in McDonnell

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

6

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

7

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

8

establish Defendant County’s discriminatory motive, the McDonnell-Douglas burden-shifting

9

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

10

reason for the Demotion, Paycut, and Nonrenewal.

11

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

12

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

13

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

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

15

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

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

17

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

18

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

19

To the extent that Defendants offer evidence of Plaintiff’s conduct to justify his placement on the

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

21

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

22

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

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

24

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

25

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

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

27

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

28

Defendant County and Dr. Dutt acted on this unlawful animus as soon as Plaintiff indicated his intent to USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

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

3

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

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

The evidence is so strongly in Plaintiff’s favor that the court must deny Defendants’ motion for

15

summary judgment, and should grant summary adjudication on all elements of Plaintiff’s disability

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discrimination claim except the amount of damages.

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

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

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

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

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

23

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

24

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

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doctor’s notes precluded him from performing any work, thus requiring his employer to place him on

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

27

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

28

more recuperative leave than medically necessary. DFEH v. California State University, FEHC Dec. No. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

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

3

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

4

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

5

was not required under FEHA to convert an injured police officer’s temporary, light-duty

6

accommodation in a front-desk position into a permanent position once the officer’s temporary disability

7

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

8

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

9

accommodate the officer. Id. at 901, 1223-1124. Unlike Raine, Dr. Jadwin’s disability was “chronic” not

10

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

11

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

12

accommodation.

13

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

14

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

15

51 (1997). Defendant Bryan’s explanation” of why he conditioned Dr. Jadwin’s continuance as Chair of

16

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

17

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

18

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

19

believed that Plaintiff’s accommodation wasn’t working, then it had a duty to engage in an interactive

20

process regarding other possible accommodations. Humphries v. Memorial Hospitals

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Association (9 Cir. 2001) 239 F.3d 1128, 1138 (“...the employer’s obligation to engage in the

22

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

23

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

24

failing and further accommodation is needed.”).

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J. COUNT 8: INTERACTIVE PROCESS

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Plaintiff incorporates by reference the points and authorities set forth in Section II(L) of

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

28

the points and authorities set forth in Sections D-F, infra. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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

2

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

3

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

4

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

5

III. CONCLUSION

6

For the foregoing reasons, the Court should deny Defendants’ Motion for Summary Judgment in

7

its entirety and grant Plaintiff’s Motion for Summary Judgment.

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RESPECTFULLY SUBMITTED on December 1, 2008.

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/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.

15 16 17 18 19 20 21 22 23 24 25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT

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