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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., Plaintiff,

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

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S RESPONSIVE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(a)] Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

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Plaintiff DAVID F. JADWIN, D.O., hereby submits the following statement of disputed and undisputed material facts in support of his Opposition to Defendants’ Motion for Summary Judgment

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Δ’s MATERIAL FACTS (“DMF”)

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Δ’S SOURCE

Π’S RESPONSE

1. First Employment Contract between Kern Medical Center (hereinafter referred to as KMC) and David F. Jadwin, D.O. (hereinafter referred to as Jadwin) was entered into on October 24, 2000.

DFJ00025 -00046

Undisputed.

a) Article 1, ¶2 incorporates attached Exhibit A as a part of the agreement

DFJ00043 -46

Undisputed.

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LEGAL RELATIONSHIP BETWEEN KERN MEDICAL CENTER AND DAVID F. JADWIN, D.O.

b) Article 5, ¶20 states, in part, “The parties recognize that each is possessed of legal knowledge and skill, and that this Agreement is fully understood by the parties, and is the result of bargaining between the parties.”

Undisputed that the document says what it says.

c) Article 5, ¶22 states, in part, “This Agreement, including all attachments hereto, contains the entire agreement between the parties relating to the services, rights, obligations and covenants contained herein and assumed by the parties respectively.”

Disputed only as to the word “Agreement”. Article 5 ¶ 22 actually uses the word “document”, “This document, including all [….]”.Undisputed that the document says what it says.

2. Employment Verification letter gives original date of hire as December 3, 2000.

DFJ00358

Undisputed.

3. Jadwin received the Medical Staff Bylaws.

0000202203

See evidentiary objections.

4. Medical Staff Bylaws.

0000272358

Undisputed.

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5. Responsibilities and duties of the pathology dept. chair are set out in the KMC Medical Staff Bylaws, sections 6. through 6.4-3.

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DFJ00046

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See evidentiary objections. Disputed: Sections 6. through 6.4-3 of the Bylaws do NOT contain any such provisions.

6. Second Employment 0001479Contract between KMC and 1499 Jadwin was effective October 5, 2002.

Undisputed.

a) Exhibit A to the Second Employment Contract: Job Description, David F. Jadwin, M.D., Pathology Chairman.

Undisputed.

i) First paragraph, 3rd line reads “This is a full-time position requiring 48 hours of service, on average, per week.”

Disputed in that Article II.1.A. of the Second Employment Contract provides that Plaintiff was required to work “no less than forty [40] hours per week”. (Bates 0001480). Otherwise, undisputed that the document says what it says.

ii) Second page, paragraph 6 states “A standard workweek will be 48 hours per week. Actual hours may vary weekto-week according to specific assignments; however, the objective is to achieve 2112 worked hours during a twelve-month period.”

Disputed in that Article II.1.A. of the Second Employment Contract provides that Plaintiff was required to work “no less than forty [40] hours per week”. (Bates 0001480). Otherwise, undisputed that the document says what it says.

b) Section V, ¶10 states “Core physician shall be employed by the County of Kern pursuant to the terms of this Agreement and the medical staff bylaws of KMC. Core physician acknowledges that he or she will not be deemed a classified employee, or have any rights or protections under the County’s Civil Service Ordinance, rules or regulations.”

Undisputed that the document says what it says.

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FMLA/CFRA RETALIATION

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7. Letter to Peter Bryan DFJ00723 (hereinafter referred to as Bryan) from Jadwin, dated 1/9/06, requesting administrative leave with pay until hostile environment is corrected. He demanded action on 1) sending transfusion Product Chart Copies (hereinafter referred to as PCCs) to the blood bank; 2) KMC’s alleged lack of compliance with their weekly oncology conferences by reporting themselves (KMC) to the American College of Surgeons (hereinafter referred to as ACS); 3) reviewing time limits on pathology presentations; and 4) implementing protocol of collection of Fine Needle Aspiration (hereinafter referred to as FNA) specimens.

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See evidentiary objections. Disputed: Plaintiff states on DFJ000723 that “This harassment had led me develop depression, anxiety and insomnia. Although I enjoy much of my work at KMC, it is not possible for me to continue to work under this form of harassment.” Under FEHA, this letter placed Defendants on notice that Plaintiff was suffering a recurrence of his chronic depression and that the leave he was requesting was a reasonable accommodation of his disability. See evidentiary objections. Otherwise, undisputed that the document says what it says.

7A. Dutt recalled Jadwin’s threat of taking a leave of absence until the medical staff and the administration apologized to him.

Dutt Depo., 8/20/08, pgs. 52:553: 18

See evidentiary objections.

8. Jadwin conducted a vigorous job search in the first six months of 2006. He was actively looking for another job as there are inquiries into at least six other full-time positions.

DFJ02422 -2459

See evidentiary objections: Irrelevant to proving disability under FEHA vis-à-vis ADA.

a) “You know, I wish I could go back because I enjoyed that job. I mentioned multiple times during my recruitment and elsewhere that that was the last position that I wanted to take, that I saw myself retiring out of that position and not moving. And I was very disappointed when-when things-when people that were in a position to do the right thing didn’t do the right thing.”

Jadwin Depo., 10/21/08, pg. 1087:9-17

See evidentiary objections: Irrelevant to proving disability under FEHA vis-à-vis ADA.

Disputed: Jadwin never made such a threat. [Decl. of David Jadwin in Opposition to Defendants’ Motion for Summary Judgment (“Jadwin Opp. Decl.”), para. 3].

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9. Sandi Chester effectively refutes any argument that Jadwin’s letter to Peter Bryan of January 9, 2006 was notice to KMC that Jadwin needed medical leave or that, by implication, Jadwin was absolved of the responsibility to notify HR that he was taking a leave of absence. As Sandi Chester said “I mean, anybody can write a letter.”

Chester Depo., 8/28/08, pgs. 135:12137: 6

10. Certification of Health Care Provider dated 1/13/06 for Jadwin. Includes the duration of the medical condition (2-3 months) and the expected date to return to work (3/16/06). It gives the date the medical condition commenced as 12/16/05.

DFJ00726

Undisputed that the document says what it says.

11. Jadwin did not communicate with Human Resources (hereinafter referred to as HR) at all, HR discovered that Jadwin -----had unilaterally assigned himself to 1 to 2 workdays per week but, per policy, an employee must use vacation, sick time, or leave of absence when not working full-time. It was HR that brought Jadwin into compliance with County policy by putting him on leave of absence.

Chester Depo., 8/28/08, pgs. 75:1976:10

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts.

Pg. 136:17-18

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). See evidentiary objections: Irrelevant to prove Plaintiff failed to give reasonable notice on 3/16/06 of his need for extension of medical leave prior to being placed on Forced FT Leave by Bryan on 4/28/06. Chester later admitted that Plaintiff’s email to Bryan of 3/16/06 constituted reasonable notice of his need for extension of medical leave. [Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22]

Disputed: Plaintiff obtained permission in January 2006 from Bryan before commencing his medical leave. Bryan promised to contact HR and send Plaintiff the necessary leave forms but was late in doing so. Plaintiff submitted the form and medical certification promptly after being provided the forms and appropriate instructions from HR. [Jadwin Opp. Decl., para. 4]. Defendant County waived any such policy by allowing Dr. Naderi and Dr. Dutt to take leave for known FMLA/CFRA qualifying purposes without requiring them to contact HR, submit a request for family leave supported by a doctor's certificate; HR did not designate either of their leaves as family leave. [Lee Opp. Decl., Exh. 56 (PMK Dutt Depo at 232:6-13, 237:1-9); Exh. 41 (Naderi Depo. at 38:6-39:25, 43:2-10, 51:21-25); Exh. 29 (McBride Depo. at 98:15-22) (Naderi's son's accident was common knowledge at KMC)]. The fact that Defendants apply it strictly against Plaintiff is further evidence of retaliatory animus.

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12. KMC had to designate Jadwin’s medical leave retroactively because Jadwin was late in giving appropriate requests.

Bryan Depo., 8/14/08, pgs. 195:9196: 14

13. Jadwin’s submission of his healthcare provider’s certification was not timely and was only provided upon prompting from HR.

Chester Depo., 8/28/08, pgs. 113:23114: 12

14. Certification of Health Care Provider, dated 4/26/06, stating that Jadwin’s medical condition goes back to 10/30/03. The Certification states that Jadwin requires “part-time or less to avoid worsening of his serious medical condition.”

DFJ0l150

15. Jadwin’s Request for Leave of Absence (hereinafter referred to as LOA), dated 3/2/06, notes that the LOA started on 12/16/05.

DFJ00746

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See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: Plaintiff’s timecards show that he took vacation from 12/16/05 to 1/2/06. Plaintiff obtained permission in January 2006 from Bryan before commencing his medical leave. Bryan promised to contact HR and send Plaintiff the necessary leave forms but was late in doing so. Plaintiff submitted the form and medical certification promptly after being provided the forms and appropriate instructions from HR. On 1/13/06, Plaintiff’s therapist, Dr. Riskin, certified that Plaintiff's need for reduced work schedule began on 12/16/05. Accordingly, KMC retroactively deducted Jadwin's vacation days from his FMLA/CFRA balance even though he worked full time for approximately three weeks after returning from vacation. [Lee Decl., Exh. 14 (Bryan Memo to Jadwin of 4/28/06 at DFJ01155); [Declaration of Paul Riskin (“Riskin Decl.”), Exh. 1 (Certification of 1/13/06 at DFJ1810)]. [Jadwin Opp. Decl., para. 4]. See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: Plaintiff obtained permission in January 2006 from Bryan before commencing his medical leave. Bryan promised to contact HR and send Plaintiff the necessary leave forms but was late in doing so. Plaintiff submitted the form and medical certification promptly after being provided the forms and appropriate instructions from HR. [Jadwin Opp. Decl., para.4]. Disputed in that the form also states that Plaintiff can work “part-time, now”, and is able to “work for 1-2 days per week”; and Defendant did not engage in interactive consultation to clarify any confusion over the Riskin’s certification.

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Otherwise undisputed that the document says what it says.

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See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts.

17. E-mails dated 3/16/06. One to Peter Bryan from Jadwin telling him that he (Jadwin) will take Bryan’s suggestion to take 2-3 months additional leave; the other to Dr. Kercher from Jadwin telling him that he (Jadwin) is having surgery and will need 2-3 months of additional leave for the surgery and requesting apologies from Dr. Ragland (Presidentelect), Dr. Abraham and Dr. Taylor and an investigation into Dr. Roy.

DFJ00752 -753

Undisputed.

18. Notice from Human Resources to Jadwin, dated 4/20/06, that his leave of absence expired on 3/15/06.

DFJ00796

See evidentiary objections: Irrelevant to prove Plaintiff failed to give reasonable notice on 3/16/06 of his need for extension of medical leave prior to being placed on Forced FT Leave by Bryan on 4/28/06. This is also See evidentiary objections: Irrelevant to excusing Defendants’ liability under any other of Plaintiff’s counts. Chester admitted in Depo. that Plaintiff’s email to Bryan of 3/16/06 constituted reasonable notice of his need for extension of medical leave. [Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22]

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Otherwise, undisputed that the document says what it says.

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16. KMC’s responsive DFJ00747 document to the LOA -748 request, dated 3/2/06, indicating that the leave ends on 3/15/06 and stating “ .. have the right to be reinstated to the same or an equivalent job with the same pay, benefits and terms and conditions of employment.”

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19. Jadwin’s request for Leave of Absence Extension, dated 4/26/06, has a starting date of 3/15/06 and an ending date of 9/16/06.

DFJ01158

See evidentiary objections: Irrelevant to prove Plaintiff failed to give reasonable notice on 3/16/06 of his need for extension of medical leave prior to being placed on Forced FT Leave by Bryan on 4/28/06. Chester admitted in Depo. that Plaintiff’s email to Bryan of 3/16/06 constituted reasonable notice of his need for extension of medical leave. [Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22] Otherwise, undisputed that the document says what it says.

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20. Memo from Bryan to Jadwin, dated 4/28/06, notifying him that his leave would be up on 6/16/06 and he either returns fulltime or resigns. Also, it notes that Jadwin was provided a medical leave history, along with the calculations and policies about his medical leave.

DFJ0l121

Undisputed that the document says what it says.

21. Bryan noted that he gave the option to Jadwin whether to go on full-time leave, although full-time leave was preferable to Bryan. Bryan asserts that it was Jadwin’s decision to go on fulltime leave and that Jadwin never communicated with Bryan any contrary intent.

Bryan Depo., 8/14/08, pgs. 250: 15- 251:6, Exhibit 303

See evidentiary objections. Disputed: Plaintiff has testified multiple times that, after he requested an extension of his medically-required parttime medical leave in April 2006 [Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157), Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752)], Defendant Bryan refused and forced him onto full-time medical leave on April 28, 2006, so as to exhaust his medical leave as soon as possible. [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:913); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23985:4).]. Plaintiff’s testimony is unrefuted: Defendant Bryan admitted in Depo. that it was his idea that day to have Plaintiff convert his part-time leave to full-time, based upon a perception that Plaintiff’s part-time leave was creating “issues” within the Pathology department (not a concern that part-time work might worsen Plaintiff’s condition). [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:913); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23985:4).]. It should be noted that the “issues” within the Pathology department to which Bryan referred are clearly pretext. Less than 2 weeks before Bryan interfered with Plaintiff’s leave, he wrote to him saying: “Yes, the Department of Pathology continues to function well, as it has for many years, and, yes, you have made many positive changes to the department” [Lee Decl. (Doc. 266), Exh. 12 (Bryan memo to Jadwin of 4/17/06 at DFJ795); Bryan Depo at 332:12-22; Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ1152)]. Later, Bryan testified that, as of April 28, 2006, “actual functioning of the department of [pathology] actually was fairly good”. [Lee Opp. Decl., Exh. 3 (Bryan Depo at 332:12-22).].

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22. Memo from Bryan to Jadwin dated 4/28/06, summarizing a meeting held with Bryan, Karen Barnes, Steve O’Connor, and Jadwin. The meeting was held to “insure that [Jadwin] had all information available concerning his status and what was possible and not possible according to County policies for leaves of absence.” It was not a disciplinary meeting.

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Bryan Depo., 8114/08, pgs. 240:9244: 2, Exhibit 303 pg 243:22-25 pg.244:12

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See evidentiary Objections Disputed: Plaintiff has testified multiple times that, after he requested an extension of his medically-required parttime medical leave in April 2006 [Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157), Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752)], Defendant Bryan refused and forced him onto full-time medical leave on April 28, 2006, so as to exhaust his medical leave as soon as possible. [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:913); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23985:4).]. Plaintiff’s testimony is unrefuted: Defendant Bryan admitted in Depo. that it was his idea that day to have Plaintiff convert his part-time leave to full-time, based upon a perception that Plaintiff’s part-time leave was creating “issues” within the Pathology department (not a concern that part-time work might worsen Plaintiff’s condition). [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:913); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23985:4).]. Disputed that it was not a disciplinary meeting. [Lee Opp. Decl., Exh. 57 (O’Connor Depo. at 68:4-11). Meetings that Defendant Bryan ordered him to attend were typically those involving employee discipline. [Id. at 73:23-74:11]. O’Connor also testified that his role at the meeting did not include offering any input, and that he did not do so.

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23. A letter to Bryan from Jadwin, dated May 31, 2006, where Jadwin requests more time to make the decision by June 16th of whether to return full-time or resign. Bryan did not have the authority to make an exception to County policy by extending leave beyond the maximum period granted for leave. Jadwin wasn’t being asked to return fulltime on June 16th, he just had to give his decision to return full-time by June 16th. He did not do that.

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Bryan Depo., 8/14/08, pgs. 248:16249 : 9 Exhibit 311

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24. Letter from Peter Bryan DFJ01141 to Jadwin, dated 6/14/06, granting him Personal Necessity Leave of 90 days, pursuant to Rule 1202.2, but only for his employment with KMC, not for his position as pathology department chair.

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See evidentiary objections. Undisputed that Plaintiff was requesting more time to make decision by June 16th whether to return full-time or resign. Disputed that Plaintiff “did not do that”. It is true Bryan had told Plaintiff to make a decision to return full-time by 6/16/06. Plaintiff’s request for more time to decide was sent on 5/31/06. All Bryan had to do was say yes or no. He did neither. Instead, on 6/14/06, 2 days before the deadline, Bryan pre-empted Plaintiff by informing him he was going to “enact the provisions [of REMOVAL], and rescind your appointment as chairman…This decision is effective 6/17/07. [Lee Decl. (Bryan memo to Jadwin of 6/14/06 at DFJ01181]. Disputed: Bryan did not lack authority to extend leave beyond June 16, 2006. Kern County Civil Service Commission rule 1201.20 provided that Plaintiff was permitted to have medical or recuperative leave of up to 6 months CUMULATIVELY. [Lee Decl., Exh. 18 (CSC Rules, Rule 1201.20 on Bates 0001501)]. June 16 is exactly 6 calendar months after Plaintiff’s leave allegedly began (December 16, 2005). Since Plaintiff had been on part-time leave from 12/16/05 to 4/28/06, he had not used up 6 months of cumulative leave by 6/16/06. On June 29, 2006, Plaintiff’s counsel informed County Counsel Barnes of this error. [Lee Opp. Decl., Exh. 16 (Lee Letter to Barnes of 6/29/06 at sec. III)]. Defendant County responded by demoting Plaintiff on July 10, 2006 anyway. Disputed that Plaintiff ever asked for 90-days Personal Necessity Leave. He never did; Bryan forced him onto personal leave. Plaintiff’s leave extension request of March 16, 2006 asked for extension of Plaintiff’s protected medical leave, not personal leave. [Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157); Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752); Lee Supp. Decl. (Doc. 267), Exh. 15 (Chester Depo at 120:1-16)]. Meanwhile, Defendants’ own Separate Statement (Doc. 259) admits that Plaintiff’s letter to Bryan of May 31, 2006 was requesting more time to decide whether he would be returning full-time or resigning. It was not requesting more leave past September 16, 2006. [Defendants’ Separate Statement (Doc. 259), DMF 23]. The notion that Bryan “granted” Plaintiff personal leave is pretext.

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25. Bryan artfully explained why the Chair of the Department of Pathology needs to be present full-time. “It’s not just the task orientation of handling a duty. It’s being present within the organization to influence the organization’s policies and practices. Organizations tend to drift without the constancy of leadership, because that is part of what a leader does is monitor the performance to ensure things stay on track, and without that constant dialogue present, you can find yourself getting off track. In the medical arena when patient care is involved, you don’t allow it to get to the point where you don’t have the leadership necessary. So that’s inferred in it being a full-time position.”

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Bryan Depo., 8/14/08, pg. 216:3·22.

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See evidentiary objections. Disputed: This is pretext. On 4/17/06, just prior to placing Plaintiff on Forced FT Leave, Bryan admitted to Plaintiff: “Yes, the Department of Pathology continues to function well, as it has for many years, and, yes, you have made many positive changes to the department.” [Lee Decl. (Doc. 266), Exh. 12 (Bryan memo to Jadwin of 4/17/06 at DFJ795); Bryan Depo at 332:12-22; Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ1152)]. Later, Bryan testified that, as of April 28, 2006, “actual functioning of the department of [pathology] actually was fairly good”. [Lee Opp. Decl., Exh. 3 (Bryan Depo at 332:12-22).]. But in Bryan’s letter to the DHS of 7/25/06, he contradicts himself when explaining to the DHS that Plaintiff had been demoted as follows: “Quality of care issues was not the basis for making this decision. To the contrary, Dr. Jadwin has been on an extended leave of absence from the hospital and there was a need to provide consistent administrative leadership within the department. In compliance with section 1265 and CLIA, Philip Lee Dutt, M.D., has been selected as the interim director of the laboratory and will serve in that capacity until a permanent replacement is appointed.” [Lee Decl., Exh. 19 (Bryan letter to DHS of 7/25/06 at Bates 0001619)(emphasis added)]. Bryan made no mention in his letter of a failure to “influence” policies and practices outside of the pathology department or across KMC as an organization. Moreover, this responsibility to “influence” policies and procedures outside of the Pathology department, across KMC as an organization, is conspicuously absent from Plaintiff’s job description. In fact, the job description’s only reference to “policies and procedures” is as follows: “Oversees the development, implementation and maintenance of department policies and procedures for the clinical laboratory and pathology department, including surgical pathology, cytopathology and autopsy pathology.” [Lee Decl., Exh. 2 (Second Employment Contract of 11/12/2002 at Section 2.a. of Exhibit A on Bates DFJ00171)]. Bryan's "explanation" is a pretext for discrimination in that Dr. Tai Yoo, Chair of Psychiatry, is a chair even though he is not present full-time. Yoo testified that he typically spent 25 to 30 hours per week at KMC [Lee Opp. Decl., Exh. 46 (Yoo Depo. at 20:4-15)], dividing his time 50/50 between KMC and Kern Mental Health [Id. at 9:11-16; 20:4-11]. He has been employed by Defendant County as a part-time chair since 8/1/01. [Id. at 9:2510:9]. He remains a chair and has not been removed.

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a) Responsibilities and duties of the pathology dept. chair are set out in the KMC Medical Staff Bylaws, sections 6. through 6.4-3.

DFJ00046

26. Mortgage verification of employment for Jadwin, dated 6/22/06, noting that the probability of continued employment for Jadwin was good and he was okay to return to work when well.

DFJ01343

27. Letter from Dr. Harris (writing on behalf of Bryan) to Jadwin, dated 6/26/06, stating that he (Jadwin) has been seen in and around KMC and that while he (Jadwin) is on leave, he is not to enter the hospital except for seeking medical attention. He is also not to contact any employee or faculty member of KMC while on leave.

0001424

28. In his letter of June 14, 2006, Bryan notifies Jadwin that Jadwin will be removed as chair and tells Jadwin to call him if he has questions. Bryan states that put the burden of challenging the action or asking for reconsideration on Jadwin who never called him about the letter.

Bryan Depo., 8/14/08, pg. 257:915

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See evidentiary objections. Disputed: Sections 6. through 6.4-3 of the Bylaws do NOT contain any such provisions. See evidentiary objections: Irrelevant and immaterial to excusing Defendants' liability under any of Plaintiff's counts. Bryan had solicited Plaintiff’s resignation earlier on 4/28/06. [Lee Decl., Exh. 14 (Bryan Memo to Jadwin of 4/28/06 at DFJ001152)]. See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Disputed: Bryan testified in deposition that this letter was drafted by him (not Harris). [Lee Opp. Decl., Exh. 2 (Bryan Depo., 261:7-262:19)].

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Disputed: Bryan is not an impartial adjudicator. Offering Plaintiff to contact him was not adequate due process. [Lee Decl. (Doc. 266), Exh. 15 (Bryan Letter to Jadwin of 6/14/06 at DFJ1181); Lee Decl. (Doc. 266), Exh. 16 (Bryan Letter to Jadwin of 6/26/06 at DFJ1346); Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 0009821); Jadwin Decl. (Doc. 265), Exh. 1 (Jadwin email to Bryan of 2/28/05 at DFJ355); Lee Supp. Decl. (Doc. 267), Exh. 13 (Ragland Depo at 332:14-21); Lee Decl. (Doc. 266), Exh. 8 (Bryan email to Harris of 11/8/05 at 0000503); Lee Decl. (Doc. 266), Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507)].

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29. According to Exhibit 303, Jadwin’s leave and all allowances by the County expired by June 16th. After that date, Bryan had no authority to extend Jadwin’s employment relationship.

Document 282

Bryan Depo., 8/14/08, pg. 244:616

Filed 12/01/2008

Page 13 of 115

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Undisputed that the document says what it says. Disputed: Bryan did not lack authority to extend leave or employment beyond June 16, 2006. Kern County Civil Service Commission rule 1201.20 provided that Plaintiff was permitted to have medical or recuperative leave of up to 6 months CUMULATIVELY. [Lee Decl., Exh. 18 (CSC Rules, Rule 1201.20 on Bates 0001501)]. June 16 is exactly 6 calendar months after Plaintiff’s leave allegedly began (December 16, 2005). Since Plaintiff had been on part-time leave from 12/16/05 to 4/28/06, he had not used up 6 months of cumulative leave by 6/16/06. On June 29, 2006, Plaintiff’s counsel informed County Counsel Barnes of this error. [Lee Opp. Decl., Exh. 16 (Lee Letter to Barnes of 6/29/06 at sec. III)]. Defendant County responded by demoting Plaintiff on July 10, 2006 anyway.

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30. By June 2006, Jadwin had fully exhausted his rights and the institutional obligation to grant him medical leave.

Document 282

Bryan Depo., 8/14/08, pgs. 280:21281:4

4 5

7 8 9 10 11 12 13

15 16 17

20 21 22 23 24 25 26 27 28

See evidentiary objections. Undisputed that the document says what it says. Disputed: Bryan testified that, towards the end of his leave, Plaintiff was requesting extension of his leave even though he had fully his medical leave right under law and County policy. This is pretext.

Second, Plaintiff was not asking for an extension of his leave. As Defendants’ own Separate Statement (Doc. 259) admits Plaintiff’s letter to Bryan of May 31, 2006 was requesting more time to decide whether he would be returning full-time or resigning, not more leave past September 16, 2006. [Defendants’ Separate Statement (Doc. 259), DMF 23]. Bryan’s testimony is pretext manufactured after the fact to justify the Demotion.

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First, Bryan did not lack authority to extend leave or employment beyond June 16, 2006. Kern County Civil Service Commission rule 1201.20 provided that Plaintiff was permitted to have medical or recuperative leave of up to 6 months CUMULATIVELY. [Lee Decl., Exh. 18 (CSC Rules, Rule 1201.20 on Bates 0001501)]. June 16 is exactly 6 calendar months after Plaintiff’s leave allegedly began (December 16, 2005). Since Plaintiff had been on part-time leave from 12/16/05 to 4/28/06, he had not used up 6 months of cumulative leave by 6/16/06. On June 29, 2006, Plaintiff’s counsel informed County Counsel Barnes of this error. [Lee Opp. Decl., Exh. 16 (Lee Letter to Barnes of 6/29/06 at sec. III)]. Defendant County responded by demoting Plaintiff on July 10, 2006 anyway.

6

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31. Adherence to the Medical Staff Bylaws afforded Jadwin the due process that he was entitled to.

Bryan Depo., 8/14/08, pg. 258:716

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Disputed: The Bylaws’ failure to provide for due process in connection with the Demotion is a violation of due process. Because the Bylaws were ratified by the Kern Board of Superviors, it establishes the 42 USC § 1983 liability of Defendant County under Monell. Disputed: JCC minutes regarding the contemplated demotion of the chair of the OB-GYN department stated: “The problem is we have tied a portion of the chair’s compensation to that position, that is a property right. Dr. Perez is entitled to due process hearing for this reason.” [Lee Opp. Decl., Exh. 18 (JCC Meeting Minutes of 9/10/07 at Agenda Item 6 on Bates 0009221)]. See evidentiary objections.

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Document 282

Filed 12/01/2008

Page 15 of 115

32. Tort Claims Act Complaint, dated 7/3/06, Jadwin admits that he had used up his CFRA leave by June 14th, 2006. Page 1 of the Attachment (page 3 of the entire complaint), Section A, paragraph 1, last sentence reads “As of June 14, 2006, Complainant had taken 12 weeks of CFRA sick leave and approximately 3-4 weeks of County sick leave based on doctor’s certifications which he submitted.”

Exhibit 2 to Second Amended Complaint

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts.

33. Memorandum to the Joint Conference Committee (JCC) from Bryan, dated 7/10106, recommending that the Committee approve the demotion of Jadwin from chair of the pathology department to staff pathologist. “This recommendation to rescind Dr. Jadwin’s appointment as Chairman, Department of Pathology, is based solely on his continued nonavailability to provide the leadership necessary for a contributing member of the medical staff leadership group. KMC must have its key personnel available, and Dr. Jadwin has provided no indication that he is committed to return to work or resume his duties as chairman.” Also, “Dr. Jadwin has made no attempt to contact me concerning my decision to relieve him of his chairman duties nor has he indicated any desire to negotiate a new contract.” JCC meeting minutes confirm that the committee took Bryan’s advice and they did it for the reason that he gave in his memorandum.

00014761565 000007375

See evidentiary objections. Undisputed that the JCC “took [Bryan’s] advice”. Disputed: Evidence establishes that the JCC voted to demote Plaintiff not only for the reasons that he gave in his memorandum, but also for whistleblower retaliation and disability discrimination, as well as oppositional/participatory retaliation for threatening to file lawsuit.

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34. Ray Watson (hereinafter referred to as Watson) testified that he only remembers a discussion on removing Jadwin from the department chair position; he was quite clear (and he was asked three times) that he did not remember any discussion about Jadwin’s “termination.” He affirmatively stated that he knew of no discussions about Jadwin resigning or being denied privileges.

Document 282

Watson Depo., 8125/08, pgs. 13:1714:14

Filed 12/01/2008

Page 16 of 115

See evidentiary objections. Disputed: Watson testified at his deposition that he clearly recalled Defendant County had decided not to renew Plaintiff’s contract. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 30:10-13).].Watson was asked twice if he recalled clearly whether it was to punish Plaintiff for bring suit and each time he answered yes: 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. [Id. at 110:12-111:5; 111:15-24]. Watson then re-affirmed a third time – volunteering it on his own initiative – that oppositional retaliation was an additional motivating factor for the Nonrenewal: 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. [Id. at 113:15-114:4).]. Watson failure to recall discussion of Plaintiff’s termination or denial of his medical privileges proves nothing about the Nonrenewal and whether a discussion about it occurred. A discussion of one doesn’t necessitate or preclude a discussion of the others. Moreover, the testimony Defendants cite to appeared over 100 pages and 2 hours earlier in the deposition transcript than the Nonrenewal discussion and arose in response to a completely unrelated line of questioning. [Id. at 12:10-14; 13:17-14:2)].

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8 9 10 11 12 13 14 15 16 17 18

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Page 17 of 115

35. Watson testified that he became aware that Jadwin’s contract was not renewed although he could not give a timeline as to when things happened. He also testified strongly that he does not recall a vote taken on the nonrenewal “although [he] imagine[s] it was,”

Watson Depo., 8/25/08, pgs. 28:630:23

36. Watson testified that the fact that Jadwin was suing KMC was brought up in discussions of whether to renew Jadwin’s contract although he would not say it was a consideration, only that it was discussed. In addition, it became obvious after a few questions that Watson was confused about the sequence of events which can lead to the inference that he does not recall anything specifically or correctly.

Watson Depo., 8/25/08, Disputed: For sake of economy, see Item 34 supra, which pgs. is incorporated in its entirety herein. 110:12112 : 13 Disputed: On the one hand, Defendants argue that Watson’s testimony is “confused” and unreliable. Yet, In their own motion, Defendants cite liberally to Watson’s supposedly “unreliable” testimony when it suits them. [Defendants’ Separate Statement (Doc. 259) at DMF 34 on 9:16-22; at DMF 35 on 9:23-27; at DMF 145 on 34:45; DFM 36 on 34:6-9]. Defendants’ argument is a bad faith attempt to controvert Watson’s testimony when it is damaging, but to otherwise rely on it when it suits them.

6 7

Document 282

See evidentiary objections. Disputed: For sake of economy, see Item 34 supra, which is incorporated in its entirety herein. Disputed: The fact that Watson couldn’t recall a formal JCC vote to not renew Plaintiff’s contract proves nothing about whether or not the JCC decided to not renew Plaintiff’s contract. JCC decision do not all require a formal JCC vote. In any event, Watson confirmed several times that he clearly recalled the JCC deciding on the Nonrenewal. See evidentiary objections.

Watson was scrupulous about stating in his deposition when he did or did not have clear or certain recall. [Lee Opp. Decl., Exh. 10 (Watson depo. at 13:17-14:19, at 38:9-40:5)]. Watson confirmed several times that he clearly recalled the JCC deciding on the Nonrenewal for the reasons he stated. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 110:12-111:5; 111:15-24; at 113:15-114:4)].

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a) Kern County Board of Supervisors did not discuss the non-renewal of Jadwin’s employment agreement or made any decisions regarding the non-renewal of the employment agreement. The subject never came before the Board of Supervisors.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Document 282

Decl. of Michael Rubio, 11/10/08, ¶2; Decl. of Raymond Watson, 11/10/08, ¶¶3, 4 and 5; Decl. of Mike Maggard, 11/10/08, ¶2; Decl. of Jon McQuisto n, 11/10/08, ¶2; Decl. of Don Maben, 11/10/08, ¶2

Filed 12/01/2008

Page 18 of 115

See evidentiary objections. Disputed: Defendants’ declarations submitted by members of the Kern County Board of Supervisors asserting that the Board never discussed or made any decision regarding nonrenewal or expiration of Plaintiff’s contract proves nothing about whether such a decision or discussion occurred at the JCC level. The absence of a decision by the Board of Supervisors in no way precludes a decision being made by the JCC. Again, Watson confirmed several times that he clearly recalled the JCC deciding on the Nonrenewal. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 30:10-13; 110:12-111:5; 111:15-24; 113:15-114:4)]. Disputed: a party cannot create an issue of fact by a declaration contradicting his or her own deposition or other sworn testimony. See Block v. City of Los Angeles (9th Cir. 2001) 253 F3d 410, 419, fn. 2. The same rule applies to postdeposition affidavits that contradict the affiant’s deposition testimony. Aerel, S.R.L. v. PCC Airfoils, LLC (6th Cir. 2006) 448 F3d 899, 907–908; Bank of Ill. v. Allied Signal Safety Restraint Systems (7th Cir. 1996) 75 F3d 1162, 1169.

37. Letter from Karen Barnes DFJ01359 (hereinafter referred to as -1361 Barnes) to Plaintiffs attorney Eugene Lee, dated 7118/06, in which she mentions (pg. 2) that Jadwin was removed as pathology department chair on 7/10/06 at a regularly scheduled meeting of the Joint Conference Committee, pursuant to Bylaws article IX, section 9.7-4 “removal of a department chair may occur with or without cause .. “

See evidentiary objections.

38. Plaintiffs’ attorney Eugene Lee agrees that Jadwin was not removed as chair during his medical leave.

Bryan Depo., 8/14/08, pg. 222:813

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts.

39. Letter to Dr. Harris from Jadwin, dated 9111/06, stating that he (Jadwin) will be returning to work on 9/18/06 and enclosed was a doctor’s certification that he was able to return to work full-time.

DFJ01388 -1389

Undisputed that the document says what it says.

Disputed: The Bylaws’ failure to provide for due process in connection with the Demotion is a violation of due process. Because the Bylaws were ratified by the Kern Board of Superviors, it establishes the 42 USC § 1983 liability of Defendant County under Monell.

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Document 282

DFJ01398

Undisputed.

41. Letter from David Culberson to Jadwin, dated 12/7/06, putting Jadwin on administrative leave with pay and confining him to his home during business hours, pursuant to Kern County Policy and Administrative Procedures Manual section 124.3.

DFJ01482

Undisputed that the document says what it says.

a) Kern County Policy and Administrative Procedures Manual, pg. 1:22, Section titled “Administrative Leave with Pay.” “During the administrative leave, the employee shall be ordered to remain at home and available by telephone .. “.

0016941

See evidentiary objections.

42. Letter from Mark Wasser to Eugene Lee, dated 4/30/07, allowing Jadwin to pursue his own activities during the work week and retaining him, at his usual salary, for consulting.

DFJ01701

Undisputed that the document says what it says.

Disputed: Defendant County was not “retaining” Plaintiff for consulting. Rather, the intent was to “run out’ the term of his existing contract, which was due to expire on October 4, 2007. [Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 43 at 53:3-9); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 44, 28:17-22); Lee Supp. Decl. (Doc. 267), Exh. 6 (Wasser Email to Lee of 5/1/07 at DFJ01705)].

21 22

25 26 27 28

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Undisputed that the document says what it says.

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40. Letter from David Culberson to Jadwin, dated 9/20/06, explaining the reasons for reduction in pay.

19

23

Filed 12/01/2008

See evidentiary objections. 43. Letter to Mark Wasser from Eugene Lee, dated 5/1/07, noting that on 4/28/07 and in several following e-mails he was notified that KMC wanted to terminate Jadwin’s contract and would not renew it on 10/4/07.

DFJ01703 -1704

Undisputed that the document says what it says.

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44. Exhibit 644 is an e-mail with an amendment attached to it. The amendment is a contract amendment which Jadwin had to sign before returning to work. Exhibit 581 is also the same contract amendment although Exhibit 581 is signed. There are differences between Exhibit 644 and 581, in subparagraphs “h” and “i”. Jadwin confirmed that he had discussions with his attorney about the amendment; Jadwin does not know if his attorney negotiated any of the terms in it. Jadwin does not know if his attorney made proposals to KMC with suggested changes in the language of the amendment. Jadwin was aware of the changes at the time they occurred but he does not recall how the changes came about. One change that Jadwin recalls talking about is the cut in his salary which he didn’t agree with.

Document 282

Jadwin Depo., 3/12/08, pgs. 969:1974:2 (Exhibits 644 and 581)

Filed 12/01/2008

Page 20 of 115

See evidentiary objections. Undisputed that the amendment is a contract amendment which Jadwin had to sign before returning to work. Disputed: Plaintiff’s confirmation of discussions with his attorney about the amendment proves nothing, much less that Plaintiff negotiated the amendment with Defendants. In fact, later, Plaintiff confirmed he did not know whether his attorney had engaged in negotiations or made proposals regarding the amendment. Disputed: Defendants cite DMF 44 in support of an affirmative defense that the Paycut Amendment was a novation of Plaintiff’s employment contract, thus extinguishing all prior claims. This is an unpleaded affirmative defense which Defendants failed to plead as recently as October 27, 2008, when they filed their Answer to the Second Amended Complaint. It should be stricken.

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45. The last two pages of Exhibit 581 is Exhibit A which is a job description. Jadwin confirms that he read it at the time of signing the amendment. Jadwin looked at the tasks listed and does not believe that any of those tasks require accommodation. Jadwin does not recall asking anyone with the County for an accommodation of any of the tasks listed in Exhibit A.

Document 282

Jadwin Depo., 3/12/08, 974:3~97 6:l2

Filed 12/01/2008

Page 21 of 115

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: Plaintiff had requested reasonable accommodation of his disability by asking to extend his part-time medical leave. Bryan refused on 4/28/06, forcing Plaintiff onto Forced FT Leave. [Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157), Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752)] [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23-985:4).]

8

Plaintiff’s testimony is unrefuted: Defendant Bryan admitted in Depo. that it was his idea that day to have Plaintiff convert his part-time leave to full-time, based upon a perception that Plaintiff’s part-time leave was creating “issues” within the Pathology department (not a concern that part-time work might worsen Plaintiff’s condition). [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23-985:4).].

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

46. Jadwin testified that he wanted his employment contract renewed, but when presented with the fact that his employment contract in place at the time of nonrenewal contained his reduced salary, he denied wanting to renew that contract.

Jadwin Depo., 10/21/08, pg. 1011: 161016: 19

See evidentiary objections. Completely misstates Plaintiff’s testimony.

47. Jadwin said that the contract he wanted renewed was his Department Chair contract.

Jadwin Depo., 10/21/08, pgs. 1032:1610 33: 3; pg. 1043:1220

See evidentiary objections. Completely misstates testimony. Disputed: What Plaintiff wanted is irrelevant to establishing what he was willing to agree to in terms of contract renewal. Plaintiff testified on the record that he expected his contract to be renewed on 10/4/07 and that he would have continued prosecuting his lawsuit, had it been renewed. [Lee Opp. Decl., Exh. 6 (Jadwin Depo. at 1096:9-14; 1096:22-1097:3)].

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Document 282

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

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JADWIN’S ALLEGATIONS OF REGULATORY VIOLATIONS 48. Approved Cancer Program Performance Report for KMC, dated 7/14/04, with a rating of “I “meaning KMC’s Cancer program-including number of meetings-is approved for three years with commendation.

0000623630

49. Exchange of e-mails between Toni Smith and Jadwin, dated 6/15/05, about the PCC issues. In 0000423, Jadwin states that a PCC must not be signed until the time of the infusion, or KMC is not meeting American Association of Blood Banks’ (hereinafter referred to as AABB) accreditation standards.

0000421424

Disputed: See evidentiary objections: Irrelevantas this is allegedly a report issued as of 7/14/04, more than a year before the October Conference of 10/12/05 and the Credential Threat and before Plaintiff reported concerns that the monthly oncology conference was not compliant with accreditation requirements. See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Undisputed that the document says what it says.

50. Typed notes, dated 0000575 1/10/06, of interviews done to rebut Jadwin’s claim that the meeting frequency standard set by the American College of Surgeons (hereinafter referred to as ACS) was not being met at KMC. 51. In meeting on 2/22/06, Jadwin alleges that KMC is not meeting the ACS standard for frequency of staff meetings; was rebutted during the meeting that KMC is meeting standard based on 2 surveys and paperwork.

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). See evidentiary objections.

9 10

Filed 12/01/2008

0000578

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

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Document 282

Filed 12/01/2008

52. In an e-mail to Peter Bryan dated 4/10/06, Jadwin brings up noncompliance with state regulations, Joint Commission for the Accreditation of Hospital Organizations (hereinafter referred to as JCAHO), and AABB on the issues of the PCCs.

DFJ00784

Undisputed.

53. Notes of meeting with Peter Bryan, Karen Barnes and Jadwin on 4/13/06. There is no problem with the PCCs because 5 charts were reviewed (and approved) by JCAHO.

DFJ00788

See evidentiary objections:

54. E-mail to Peter Bryan from Jadwin, dated 4/17/06, claiming that the JCAHO review was too small of a sample so KMC was not in compliance on their handling of the PCCs and there was a need for action.

DFJ00793

Undisputed.

55. Gilbert Martinez, the Laboratory manager, recalls Jadwin telling him before Thanksgiving in 2006 to prepare the laboratory for possible inspections (so sometime before 11/22/06). He does not recall if Jadwin told him how Jadwin might know about it. He remembers inspectors coming in from the California Dept. of Health Services (hereinafter referred to as DHS) and receiving written inquiries from the CAP. These inspections occurred several months after Jadwin had mentioned it. Jadwin did not “confide” in him or tell him that the inspections were happening because of whistleblowing by Jadwin.

Martinez Depo., 4/16/08, pgs. 111: 12-118: 22

See evidentiary objections.

Page 23 of 115

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

Disputed: Dr. Philip Dutt, Acting Chair of Pathology, testified as PMK for the County on 8/29/08 that by the Monday following Thanksgiving 2006, he had had a conversation with Harris regarding Plaintiff’s statement to Martinez that “he was going to report the hospital to JCAHO, CNPS [sic] . . . either the Friday before Thanksgiving that year or the Monday after that weekend.” [Lee Opp. Decl., Exh. 12 (Dutt Depo. at 10:524)].

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a) CAP conducts routine inspections, unannounced, on a known periodic basis.

3

Document 282

Martinez Depo., 4/16/08, pgs. 118:23120:19

Filed 12/01/2008

Page 24 of 115

See evidentiary objections.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

56. Jadwin first reported concerns to JCAHO, CAP, and DHS in November 28, 2006 (more than five years after noticing alleged violations).

Disputed only as to the statement “more than five years after noticing alleged violations”. There is no support for this statement.

a) Actual complaint filed with JCAHO by Jadwin.

DFJ02540 -2541

Undisputed.

b) E-mail from JCAHO to Jadwin, dated 11/29/06, acknowledging receipt of complaint about KMC.

DFJ01454

Undisputed.

c) Letter from DHS to Jadwin, dated 12/1/06, acknowledging receipt of complaint.

DFJ01459

Undisputed.

57. E-mail to JCAHO from Jadwin, dated 12/8/06, wanting to talk with the JCAHO investigator and requesting quickness on the investigation because KMC might be covering up noncompliance evidence. He brings up the issue of skull flaps being stored onsite.

DFJ02538 -2539

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

58. Letter to KMC from Jadwin dated 12/13/06 notifying hospital administration that he has notified governmental and enforcement agencies of alleged violations.

00014551458

Misstates the evidence.

Undisputed.

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Document 282

59. Letter from Dr. Dutt to 0020278 Gerald Hoeltge of the CAP, dated 1/11/07, telling him that Jadwin had never informed him (Dutt) that some tissue handling and storage was occurring but the situation has been taken care of.

Filed 12/01/2008

Page 25 of 115

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Undisputed that unlicensed tissue handling and storage was occurring.

60. Letter to Dr. Dutt from CAP, dated 3/22/07, informing him that the KMC laboratory continues to be in compliance with the CAP Standards for Laboratory Accreditation.

0020279

See evidentiary objections:

61. Dr. Dutt believed that Jadwin, after returning from leave, might be intentionally issuing wrong opinions to prove he was a whistleblower.

Dutt Depo., 8/20/08, pg. 296: 10- 19

See evidentiary objections:

Jadwin Depo., 1/9/08, pgs. 414:24418:12

See evidentiary objections.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

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

DEPRESSION DISABILITY, REASONABLE ACCOMMODATION, INTERACTIVE PROCESS 62. Jadwin described his disability as severe depression, manifested by a lack of ability to concentrate; loss of joy in his work; extreme anxiety and difficulty sleeping. Jadwin testified that he told Dr. Kolb, during a meeting he had with him in 2003, that he was depressed. Jadwin thought this meeting was a one-on-one weekly meeting that each department chair had with Dr. Kolb. Jadwin said that Dr. Kolb must have noticed that he was depressed because he would often ask him if he was alright.

Undisputed.

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Document 282

Filed 12/01/2008

63. Jadwin told Dr. Kolb that he suffered from depression when he notified him of the weekly half-day medical leave day off to see his therapist.

Jadwin Depo., 1/9108, pgs. 491:1493:17

See evidentiary objections.

64. Jadwin asked Dr. Kolb for accommodations for his disability by requesting time off for his therapist visits. Dr. Kolb granted that accommodation.

Jadwin Depo., 1/9108, pgs. 506: 16-507: 1

See evidentiary objections.

65. Jadwin had an episode of depression in the 1990s before coming to work at KMC. Jadwin affirmed his earlier testimony that his recent depression started in 2002 or 2003. Jadwin said that he was taking weekly half-day leaves starting in or about 2003 and he told Dr. Kolb it was because of his problems with radiology and others.

Jadwin Depo., 1/9/08, pgs. 452:4455:19 Pg. 455:813

See evidentiary objections.

66. Bryan does not recall Jadwin mentioning to him about depression, sleeplessness, etc. nor did Bryan notice behavior that he would call mental illness.

Bryan Depo., 8/14/08, pgs. 1ll: 12113: 2 and 128:16129:3

See evidentiary objections:

Page 26 of 115

Undisputed.

Undisputed.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262). Disputed: This is pretext. Bryan testified that he recalled receiving a letter from Plaintiff on 1/9/06 in which Plaintiff stated he was “depressed” and requested leave due to his depression. [Lee Supp. Decl., Exh. 10 (Bryan Depo at 105:7-106:2); Lee Decl., Exh. 9 (Jadwin letter to Bryan of 1/9/05 on Bates 0001140)]. Defendants also admit that Plaintiff had told Kolb he was depressed in 2003 and was accommodated in the form of part-time leave so he could obtain treatment. [Defendants’ Motion (Doc. 262) at 27:12-14 (“Plaintiff first complained of depression in 2003. He told Dr. Marvin Kolb, Chief Medical Officer at the time, that he suffered from an inability to concentrate, anxiety, and sleeplessness”); Defendants’ Separate Statement (Doc. 259) at DMF 6264]. On 1/17/06, Bryan also sent a letter to the Kern Board of Supervisors in which he stated he had become concerned about Plaintiff’s “emotional health”. [Lee Decl., Exh. 10 (Bryan memo to BOS of 1/17/06 at item 8 on Bates 0001567)].

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Document 282

Filed 12/01/2008

67. Jadwin only discussed his disability with Dr. Kolb. When asked whether he had ever told Peter Bryan, Jadwin said that subsequently during one-on-one meetings with Bryan he had mentioned being depressed by lack of action on the concerns Jadwin was raising. When pressed on whether he had ever actually told Peter Bryan he was disabled, Jadwin said that in late 2005 or early 2006, he told Bryan that sometimes he was so depressed he couldn’t work at KMC anymore until it fixed some of his concerns. Jadwin said that he also told Dr. Yoo, head of psychiatry, that he was depressed from working at the hospital. Jadwin does not recall talking to Dr. Dutt about this issue. Jadwin could not recall any other people at KMC that he talked to about his disability. In fact, Jadwin would not use the term “disabled” just that he could not work there.

Jadwin Depo., 3/12/08, pgs. 976: 13983: 2 lines 977:5-8 and lines 977:24978:8 and lines 981: 17-982: 1 and lines 982: 1824 lines 978: 15979:1 lines 979:24980:8 lines 982:9-24

See evidentiary objections.

68. When asked what considerations there were in renewing a contract with KMC, Jadwin replied “All of the working environment situations. The patient quality issues, the administration, whatwhat type of administrative operation is there. The emphasis on quality, interest in quality. Interest in patient safety. The collaborative working environment. Are the other physicians going to be responsible in working for the betterment of patient care, or are they just going to be working for their own self-interest.”

Jadwin Depo., 10/21/08, pgs. 1055:131056: 15

See evidentiary objections:

Page 27 of 115

Disputed: Bryan testified that he recalled receiving a letter from Plaintiff on 1/9/06 in which Plaintiff stated he was “depressed” and requested leave due to his depression. [Lee Supp. Decl., Exh. 10 (Bryan Depo at 105:7-106:2); Lee Decl., Exh. 9 (Jadwin letter to Bryan of 1/9/05 on Bates 0001140)]. On 1/17/06, Bryan also sent a letter to the Kern Board of Supervisors in which he stated he had become concerned about Plaintiff’s “emotional health”. [Lee Decl., Exh. 10 (Bryan memo to BOS of 1/17/06 at item 8 on Bates 0001567)]. Defendants also admit that Plaintiff had told Kolb he was depressed in 2003 and was accommodated in the form of part-time leave so he could obtain treatment. [Defendants’ Motion (Doc. 262) at 27:12-14 (“Plaintiff first complained of depression in 2003. He told Dr. Marvin Kolb, Chief Medical Officer at the time, that he suffered from an inability to concentrate, anxiety, and sleeplessness”); Defendants’ Separate Statement (Doc. 259) at DMF 62-64]. Once Plaintiff informed Kolb, the CMO, of his disability, Defendant County was legally on notice of his disability.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts, as evidenced by Defendants’ failure to cite this DMF anywhere in their motion brief (Doc. 262).

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69. Dr. Ragland brings up the issue that a stack of FNA reports that Jadwin had given him had issue dates after the date of a double read, in each case, was done by UCLA. This raises the possibility that Jadwin waited to enter a diagnosis until the double read had come back from UCLA so that he could be in 100% agreement with UCLA.

Ragland Depo., 8/22/08, pgs. 171:5172:5 and 328:7329: 14

11 12 13 14 15 16

18 19 20 21 22 23 24 25

Page 28 of 115

JADWIN’S ERRORS Failure to Produce Timely or Correct Diagnoses

10

17

Filed 12/01/2008

70. Letter from Dr. Ang to 0000690Dr. Perez, Peter Bryan, Dr. 691, Kolb, and Dr. Munoz, dated 0000736 2/20/02, containing formal complaints of misconduct against Jadwin. Complaint #3 states that Jadwin failed to pass the quarterly proficiency tests on cervical pap smears so those tests are sent out. It states that this was an unnecessary cost and delay because the other three pathologists in the department could examine the pap smears because they have maintained their proficiency.

See evidentiary objections. Disputed: Ragland testified that he never even bothered to investigate his serious fraud concern by speaking with Plaintiff or UCLA or even Dutt directly. Had he done so, Plaintiff would have explained that the he issued diagnoses to clinicians PRIOR to sending reports out to UCLA for confirmatory review and that when he later received UCLA’s confirmatory reports, he entered them into the KMC computer system, which automatically updates the “Completed” report date to the date of the last modification. The “Completed” date does not equate to the date when Plaintiff issued his own diagnosis that was later confirmed by UCLA. This quickness to conclude Plaintiff had engaged in wrongdoing -- by fraudulently withholding diagnoses until UCLA issued their reports so that he could issue parallel diagnoses -- without informing Plaintiff of the suspicions or allowing him to explain himself was typical of how Ragland and KMC officers dealt with Plaintiff. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 171:22-172:7; 173:19-23; 174:7-175:24; 177:15176:12; 181:20-182:3); [Jadwin Opp. Decl., para. 5]. Even worse, Ragland spread rumors of Plaintiff’s suspected FNA fraud so that he was tried and convicted in the court of opinion. [(Lee Opp. Decl., Exh. 27 (Abraham Depo. at 73:15-74:16)]. Abraham admitted she still doesn’t trust Jadwin's competence. [Id. at 77:10-18]. See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: Plaintiff’s proficiency with cervical pap smears is irrelevant. KMC had outsourced Pap smear analysis and was no longer conducting them by 2002. Moreover, Kolb’s investigative report concluded that there was no basis for any of Ang’s accusations. [Lee Opp. Decl., Exh. 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676677)].

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1 2 3

a) Document asserting Jadwin’s failing test scores and the fact that the Department of Pathology has not been sued for medical malpractice in 23 years.

4 5 6

8 9 10

12

15 16 17 18 19 20 21 22 23

Page 29 of 115

See evidentiary objections. See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247).

Whether or not the Department of Pathology has not been sued for malpractice is irrelevant to prove that such malpractice did or did not occur.

11

14

0000737

Filed 12/01/2008

Disputed: Plaintiff’s proficiency with cervical pap smears is irrelevant. KMC had outsourced Pap smear analysis and was no longer conducting them by 2002. Moreover, Kolb’s investigative report concluded that there was no basis for any of Ang’s accusations. [Lee Opp. Decl., Exh. 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676677)].

7

13

Document 282

b) Jadwin’s actual (failing) test for cervical pap smears. This test is conducted by the College of American Pathologists (CAP). Of interest, on Case #3 Jadwin marked “unsatisfactory for evaluation” when the accurate diagnosis was “squamous cell carcinoma.”

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: Plaintiff’s proficiency with cervical pap smears is irrelevant. KMC had outsourced Pap smear analysis and was no longer conducting them by 2002. Moreover, Kolb’s investigative report concluded that there was no basis for any of Ang’s accusations. [Lee Opp. Decl., Exh. 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676677)].

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71. Report to Maureen Martin from Jadwin, dated 11/20/02, on the results of the evaluations of the pathologists (Jadwin and Lang) by resident physicians and staff physicians in surgery. On a three-point scale, where 2 means satisfactory and 3 means needs improvement, Jadwin scored low on timeliness (lower than Lang), IOC quality, completeness, and clarity of diagnosis. Jadwin blamed unhappiness of a Dr. Prunes for his low scores.

00010591072

72. Twenty-nine (29) medical reports from 2004 and 2005 with all of the following in common: 1) all are FNA reports; 2) all were processed in-house and then sent to outside labs for independent diagnosis; and 3) the turn-around time for the final diagnosis ranged from three weeks to five or six months.

00011631310

Filed 12/01/2008

Page 30 of 115

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: Defendants neglect to mention that Plaintiff scored higher than Lang on 14 out of 16 of the criteria and also overall.

See evidentiary objections. Disputed: Ragland testified that he never even bothered to investigate his serious fraud concern by speaking with Plaintiff or UCLA or even Dutt directly. Had he done so, Plaintiff would have explained that the he issued diagnoses to clinicians PRIOR to sending reports out to UCLA for confirmatory review and that when he later received UCLA’s confirmatory reports, he entered them into the KMC computer system, which automatically updates the “Completed” report date to the date of the last modification. The “Completed” date does not equate to the date when Plaintiff issued his own diagnosis that was later confirmed by UCLA. This quickness to conclude Plaintiff had engaged in wrongdoing -- by fraudulently withholding diagnoses until UCLA issued their reports so that he could issue parallel diagnoses -- without informing him of the suspicions or allowing him to explain himself was typical of how Ragland and KMC officers dealt with Plaintiff. [Lee Opp. Decl., Exh. 9: 171:22-172:7; 173:1923; 174:7-175:24; 177:15-176:12; 181:20-182:3].

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

73. Letter from Dr. Roy to Jadwin, dated 4/15/05, complaining that samples from 2 cases still had not been analyzed and diagnosed and were over one week late.

Document 282

DFJ00363

Filed 12/01/2008

Page 31 of 115

See evidentiary objections. Defendant County retained outside pathology experts and sent out the pathology cases of which Roy complained and several others to such experts for evaluation of Plaintiff’s performance. The experts determined that Plaintiff’s performance had been exemplary. Dr. William Colburn was retained by Kern County to evaluate 21 of Plaintiff’s pathology reports. [Lee Opp. Decl., Exh. 22 (Colburn Agreement with Kern County of 5/15/06)]. Dr. Colburn issued an extensive report 3 months later that concluded that Plaintiff’s overall performance was found to “exceed the usual standard of care exercised by a practicing surgical pathologist in a busy tertiary community hospital”, that Plaintiff’s reports were “completed in what I believe to be a timely manner”, that his reports were “authoritative in all aspects rendering concise tissue diagnoses”, that he “appropriately solicited ‘expert’ extramural consultation opinions from noted” pathologists, and “to his credit constantly up-dated the primary surgeon of record in all instances as to their progress”. He also concurred with Plaintiff’s final diagnoses in 20 of 21 cases. [Lee Opp. Decl., Exh. 23 (Colburn Report to Barnes of 8/30/06 at Bates 0025924)]. Moreover, Harris, then-CMO, testified that “before [Plaintiff’s] leave of absence there was no quality concern. I’ve said that four times now. There was no quality concern over the cases prior to October of 2006.” [Lee Opp. Decl., Exh. 24 (Harris Depo at 192:7-13); see also Lee Opp. Decl., Exh. 24 (Harris Depo at 409:21410:3)]. Harris further testified: “I wasn’t even aware that his competency was an issue in this case.” When Plaintiff’s counsel responded: “Well, it certainly wasn’t from our view”, Mr. Wasser, defense counsel of record, volunteered: “It’s not from the defense either, but keep going, Counsel. We covered that before.” [Lee Opp. Decl., Exh. 25 (Harris Depo at 411:4-20)]. Regarding the period after Plaintiff’s return to work as a staff pathologist on 10/4/06, Harris testified that all complaints about Plaintiff’s competency were directed to him [Lee Opp. Decl., Exh. 24 (Harris Depo. at 60:14-22)]; and that Defendant County never conducted any peer review in response to any of those complaints. [Lee Opp. Decl., Exh. 24 (Harris Depo. at 58:4-59:1)].

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

74. Letter to Dr. Roy from Jadwin, dated 4/20/05, in response to his complaint about late diagnoses. On page 3 Jadwin writes “Pathology diagnoses are consensus based, with few gold standards to affirm accuracy. Consultants offer opinions, not accurate diagnoses. There is no universally agreed upon definition for what constitutes an ‘accurate’ diagnosis.”

Document 282

DFJ00364 -366

Filed 12/01/2008

Page 32 of 115

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

75. Notes by Dr. Harris, 0027066dated 6/8/05, of a meeting 27068 between himself and Dr. Roy in which Dr. Roy again raises his concerns with the pathology department.

See evidentiary objections.

76. Notes by Dr. Harris, dated 7/1/05, of a meeting between himself and Dr. Roy. Dr. Roy had specific examples of his complaints about the pathology department including three missed diagnoses and an example-by name and report number--()f a pathology report changed after the fact by Jadwin.

002706927070

See evidentiary objections.

77. Letter from Dr. Roy to Jadwin, dated 7/15/05, responding to Jadwin’s letter to him dated 6/5/05 and stating that he (Dr. Roy) has raised pathology department mistakes, delays and discrepancies with Jadwin many times before.

DFJ00439 , DFJ00437

78. Phone message from Dr. Roy, dated 11/18/05, identifying a patient error by Jadwin.

0000506

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

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79. Letter from Dr. Roy to Dr. Harris, dated 2/22/06, identifying 19 cases (with medical records backup) where KMC pathology department was wrong in their diagnosis, or very late in getting a diagnosis, or changing an initial wrong diagnosis.

0000434476

a) Pathology Quality Management Policy, September 2005, “Correction of significant error must be made through a corrected report.”

0018516

Filed 12/01/2008

Page 33 of 115

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

c) Two letters from Dr. Felix 0000432at USC to Dr. Roy, dated 433 3115/06 and 3/16/06, with diagnoses of samples that Dr. Roy sent to him. Handwritten notes on bottom of letters describe discrepancy with KMC pathology diagnosis and that pathology changed its diagnosis in one instance.

See evidentiary objections.

80. After returning from leave, Jadwin had to be told to slow down on regular case work because he was going too fast and making errors.

See evidentiary objections.

Dutt Depo., 8/20/08, pg. 285:623

19

to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

20 21 22 23 24 25

Other Mistakes 81. E-mail from Reyes to Dr. 0000398 Harris and Tony Smith, dated 4/17/06, reporting that Jadwin was making copies of patient files which is a Title 22 violation.

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

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82. Minutes of the meeting of 0000899 the pathology/histology department on 10/17/06. It was noted that Dr. Shertukde was concerned that blades were not being removed once grossing was done. She and Dr. Dutt remove and discard the blades immediately. 83. E-mail from Dr. Dutt to Jadwin, dated 11/22/06, reminding him of a rush case that Jadwin failed to process promptly and counseling Jadwin to remember it when criticizing others.

DFJ01449 DFJ01446 -1447

84. E-mail from Tracy Lindsey to Ramona Case, dated 11/27/06, stating that Jadwin had labeled some (9) placentas wrong and she gave the incorrect labels alongside the correct labels.

0000823

85. E-mail from Dr. Dutt to Yolanda Figueroa, dated 12/7/06, acknowledging her report that Jadwin had left two long blades and a scalpel out after he was finished.

0000862

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See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety. See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety. See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety. Figueroa vigorously denies that this claim is true. (“Jadwin Opp. Decl.”) para. 6].

18 19

Filed 12/01/2008

86. Report from Dr. Dutt to Peer Review Committee, dated 12/14/06, describing with documentation five mistakes by Jadwin: 1) missed diagnosis and failure or refusal to seek outside consultation (with backup letter from Dr. McBride); 2) misdiagnosis of prostate carcinoma and of prostatic biopsies; 3) missed diagnosis of thyroid microcarcinoma; 4) performance of sternal bone marrow examination; and 5) assignment of procedures to physician without privileges.

0000882895

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. Disputed: For sake of economy, Plaintiff’s Response to DMF 73 supra is incorporated herein in its entirety.

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24 25 26

Page 35 of 115

JADWIN’S INABILITY TO GET ALONG WITH OR COMMUNICATE WELL WITH OTHERS Policy 87. Policy Statement of the Disruptive Behavior, Discrimination & Harassment Policy “It is the policy of Kern Medical Center that all associates are expected to conduct themselves at all times while on hospital premises in a courteous, professional, respectful, collegial, and cooperative manner. This applies to interactions and communications with or relating to physicians, nursing and technical personnel, other caregivers, other hospital personnel, .. “ [emphasis added]

001068510688

Undisputed that the document says what it says.

88. Section V Item A of the 0010686Kern Medical Center 10687 Procedure on Disruptive Behavior, Discrimination and Harassment Policy “Examples of prohibited conduct include but are not limited to the following ..

Undisputed that the document says what it says.

a) 6. Use of racial, ethnic, epithetic or derogatory comments..

0010686

Undisputed that the document says what it says.

b) 8. Use of medical record entries to criticize KMC associates, policies or equipment, other practitioners, or others;

0010686

Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007.

Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007.

Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007.

22 23

Filed 12/01/2008

Undisputed that the document says what it says. Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007.

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c) 14. Persisting to criticize, or to discuss performance or quality concerns with, particular KMC associates or others after being asked to direct such comments exclusively through other channels; .. “

0010687

89. Jadwin was dealt with pursuant to the Disruptive Physician Policy.

Harris Depo., 8/13/08, pgs. 330:21332: 3

8

11 12 13

Pulling Dr. Lau’s Tie

14

90. E-mail to Michael Ewald from Jadwin, dated 10/9/03, telling Ewald how to conduct the investigation into the “tiepulling” incident, who to talk to, and what questions to ask.

17

Undisputed that the document says what it says.

Undisputed that the document says what it says. Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007. Harris himself testified that he wasn’t sure if the policy was in place when he allegedly disciplined Plaintiff. In fact, the policy was ratified in May 2007. By that time, Plaintiff had been on Admin Leave and restricted to his home for 6 months. [Lee Opp. Decl., Exh. 24 (Harris Depo at 331:21-332:3)].

10

16

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Disputed: This is pretext. This policy is irrelevant as it was ratified in May 2007 during Plaintiff’s Admin Leave. It could not have served as the basis for any of Defendants’ actions prior to 2007.

9

15

Filed 12/01/2008

0000260 (Exhibit 560)

18 19 20

See evidentiary objections. Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: The investigator concluded: “Dr. Jadwin has expressed regret over the incident. This appears to be an isolated incident, and there have been no related complaints against Dr. Jadwin either before or after this incident.” [Lee Opp. Decl., Exh. 54 (Investigation Report of 10/21/03 at “Investigative Findings” item 4 on Bates 0000033)].

21 22 23 24 25 26

91. Confidential file of investigation of Jadwin pulling Dr. Lau by his tie, dated 10/21/03.

000003170

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

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Document 282

Filed 12/01/2008

Page 37 of 115

a) Portion of Jadwin’s 0000061interview blaming Dr. Lau 63 for the incident, alleging a prior history of Dr. Lau being afraid of him because Jadwin (allegedly) points out Dr. Lau’s many mistakes.

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

b) During Jadwin’s interview, conducted on 10/17/03, Jadwin accepts that he pulled the tie, says he cannot really remember.

0000063

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

c) The investigator finds, by 0000034 a preponderance of the evidence, that (Item #2) Jadwin violated the Workplace Violence Policy of the County of Kern and potentially endangered the quality or efficiency of patient care (because both Jadwin and Lau testified that Lau told Jadwin that he could not accompany him because he had patient work to do).

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

92. Letter from Dr. Kolb to Jadwin, dated 11/26/03, reprimanding him for pulling Dr. Lau by his tie.

DFJ00246

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

93. Letter to Dr. Lau from Jadwin, dated 10/19/05, apologizing for past wrongs.

DFJ00590

For sake of economy, see Plaintiff’s Response to DMF 90 supra.

Dispute with Radiology

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94. Dr. Ragland implied that Jadwin was wrong in the dispute with the radiology department because the procedurist (the radiologist) should chose the equipment he uses (gauge of needle is an example) because that is who is performing the task.

Document 282

Ragland Depo., 8/22/08, pgs. 155:2156:13

Filed 12/01/2008

Page 38 of 115

See evidentiary objections. Defendant County retained an outside consultant to review FNA procedures at KMC in 2004. The consultant, David Lieu observed the radiologists engaging in just one FNA procedure on a single day. [Lee Opp. Decl., Exh. 26 (Lieu Report of 5/3/04 at DFJ00260)]. By contrast, he reviewed 200 of Plaintiff’s FNA reports. [Id. at DFJ00266]. Despite this bias, he nevertheless concluded: 1) the radiologist still managed to err in the one procedure Lieu witnessed [Id. at DFJ00261], 2) Plaintiff made no errors in any of his 200 reports [Id. at DFJ00266]; 3) Radiologists needed to improve [Id. at DFJ00269]; and 4) Plaintiff should set up a weekly FNA clinic whereby pathologists would take FNAs on superficial masses, replacing the radiologists. [Id. at DFJ00268]. Ragland himself admitted that Lieu had found the radiologists’ FNA technique could be “improved”. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 230:23-25)]. By contrast, he admitted that Lieu had “determined that [Plaintiff] had sufficient [FNA] skill”. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 226:18-22)]. Later, Ragland admitted that the FNA concerns Plaintiff had raised were not just a communication issue but a valid “patient care issue” and that he had always known that even from the beginning. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 361:3-18)]. Yet, he had earlier characterized the FNA issue as merely a “feud” between pathology radiology and that the issue was the need for Plaintiff to improve his “communication”. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 219:25-220:7; 220:1621)]. This establishes Ragland’s retaliatory animus. Abraham shows her retaliatory animus when she likewise minimizes the FNA issue as merely a “communication” problem and unlike Ragland refuses to admit it was a patient care issue. [Lee Opp. Decl., Exh. 27 (Abraham Depo. at 67:7-15)]. Abraham later testified that, despite Lieu’s report, “we still were not satisfied with whether or not the – the pathology readings of the FNA was – was – was adequate.” [Id. at 56:16-22)]. She also testified that, even after the Lieu report came out, there remained doubts about Plaintiff’s competence as a pathologist. [Id. at 63:14-17] and that she remained loyal to her longtime friends, the radiologists. [Id. at 73:1-5]. When Plaintiff’s FNA reports were later confirmed as 100% accurate by ongoing outside reviews by UCLA, Ragland concocted far-fetched suspicions of fraud by Plaintiff which he unsuccessfully investigated, but directly confronted Plaintiff with. See Plaintiff’s Response to DMF 69 supra, which is incorporated in its entirety herein.

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Document 282

Abraham Depo., 8/18/08, pgs. 59:660:2

See Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

a) Jadwin’s actual (failing) test for cervical pap smears. This test is conducted by the College of American Pathologists (CAP). Of interest, on Case #3 Jadwin marked “unsatisfactory for evaluation” when the accurate diagnosis was “squamous cell carcinoma.”

0000737

See evidentiary objections.

Disputed: Plaintiff’s proficiency with cervical pap smears is irrelevant. KMC had outsourced Pap smear analysis and was no longer conducting them by 2002. Moreover, Kolb’s investigative report concluded that there was no basis for any of Ang’s accusations. [Lee Opp. Decl., Exh. 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676677)].

15 16 17

20 21 22 23 24 25 26 27 28

See evidentiary objections.

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247).

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Page 39 of 115

95. Dr. Abraham, while discussing the FNA Consulting Report, mentioned that the radiologists were upset with Jadwin because he was accusing them of too many inadequate specimens (“unsatisfactory for evaluation”) when there were relatively few complaints of that before Jadwin arrived.

13

18

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96. Dr. Abraham talked about the lack of trust between the other doctors and Jadwin, which the FNA Consulting Project report addresses as communication problems.

Abraham Depo., 8/18/08, pgs. 62: 16-64:3

See Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

97. Kern Medical Center FNA Consulting Project report by Dr. David Lieu, M.D., M.B.A., dated 5/3/04.

DFJ00251 -270

Undisputed.

a) Consultant’s core issue is the lack of communication and complete distrust between radiology and pathology with negative ramifications for the clinicians and administration.

DFJ00255

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

See evidentiary objections.

But see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

See evidentiary objections.

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1 2

b) Consultant agreed with radiologists that long clinical history on the FNA reports was unnecessary.

Document 282

DFJ00257

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Page 40 of 115

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein. See evidentiary objections.

3 4

Filed 12/01/2008

c) “ .. Dr. Jadwin and DF100260 Disputed: for sake of economy, see Plaintiff’s Response radiologists do not to DMF 94 supra, which is incorporated in its entirety communicate at this level. herein. This suggests that a breakdown in communication is the fundamental problem. This bridge was burned down long ago.” d) “Finally, both radiology and pathology will work together to find the best needle for deep FNAs.”

DFJ00269

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

98. E-mail to Drs. Kercher and Kolb from Jadwin, dated 9/3/04, stating “You cannot dictate the size of the needle by policy” and calling Dr. Lieu “unjustifiably pompous,”

DFJ00289 -290

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

99. E-mail to Peter Bryan DFJ00319 from Jadwin, dated 2/2/05, -320 listing his suggestions for improvement on the FNA issue. Jadwin also states that the radiology department was “substantially at fault” for the conflict between the departments. He requested a formal apology from the radiology department to himself and the pathology department. He also requested (in bold lettering) a public announcement at the next Medical Executive Committee (hereinafter referred to as MEC) meeting that there are no quality issues involving the pathology department and Drs. Amin, Abraham, Munoz and Naderi should be standing at the podium during the announcement.

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein.

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100. Exchange of e-mails between Dr. Ragland and Jadwin, dated 2/25/05, in which Jadwin complains about some comments made by the radiologists at the February QM meeting and informing Dr. Ragland to be prepared for Jadwin to request him to call for supporting documentation from radiology or announce that the previous comments were unsupported. Dr. Ragland shot back his displeasure at the continuing conflict between radiology and pathology, and stated that his committee will not become a battleground for this conflict.

Document 282

DFJ00353 -354

Filed 12/01/2008

Page 41 of 115

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein. Despite the fact that Ragland was chair of the quality committee and the fact that, as he himself testified, he knew from the beginning that the FNA issue was a patient care issue, he refused to let Plaintiff address it at the Quality Management meeting. He retaliated against Plaintiff by dismissing the issue as “battling doctors” and attacking Plaintiff for his “poor” communication skills.

Length of Presentations/October 2005 Oncology Conference

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Document 282

101. Exchange of e-mails DFJ00241 between Dr. Ragland and -242 Jadwin, dated 11/19 & 11/20/03, about the last Quality Management meeting. Dr. Ragland contradicted Jadwin’s statement that the pathology presentation during the meeting was 20 minutes; Dr. Ragland said it went on much longer than 20 minutes and proceeded to give Jadwin advice on which information was most important to present and how it could be presented succinctly.

10 11

13 14 15 16 17 18

22 23 24 25 26

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein. Despite the fact that Ragland was chair of the quality committee and the fact that, as he himself testified, he knew from the beginning that the FNA issue was a patient care issue, he refused to let Plaintiff address it at the Quality Management meeting. He retaliated against Plaintiff by dismissing the issue as “battling doctors” and attacking Plaintiff for his “poor” communication skills.

In his depo testimony, Ragland was so extreme in his retaliatory animus against Plaintiff, he became almost a caricature. [Lee Opp. Decl., Exh. 9: 54:2-21; 138:3-10)].

19

21

Page 42 of 115

In one email exchange with Bryan, he expressed his disdain for Plaintiff’s whistleblowing efforts: “that was one of the most distasteful event I have ever participated in [Plaintiff] has fixed his department so now he is going to fix us?” [Lee Decl., Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507)]. Bryan made no bones about indicating that his allegiance lay with Ragland, Harris, Abraham and Kercher: “I know it was really challenging to remain cordial and not combative [with Plaintiff], and goodness a couple of you could have really hit back”, even as he portrayed himself as an impartial adjudicator to Plaintiff. [Ibid.].

12

20

Filed 12/01/2008

102. Memo from Dr. Ragland to Jadwin, dated 1/21/04, that presentations must be concise and that the last Blood Usage Report-52 slides-will not fit in the allotted time.

DFJ00248

Disputed: for sake of economy, see Plaintiff’s Response to DMF 94 supra, which is incorporated in its entirety herein. Despite the fact that Ragland was chair of the quality committee and the fact that, as he himself testified, he knew from the beginning that the FNA issue was a patient care issue, he refused to let Plaintiff address it at the Quality Management meeting. He retaliated against Plaintiff by dismissing the issue as “battling doctors” and attacking Plaintiff for his “poor” communication skills.

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Document 282

DFJ00381

15 16 17 18

Disputed: For sake of economy, see Plaintiff’s Response to DMF 104 and DMF 106 infra.

104. Instructions for the Cancer Conference presenters 1) the presentation is to contain less than 10 slides, 2) length not to exceed 20 minutes for comprehensive background and overview of testing, and 3) all physicians involved in the case being presented must be notified beforehand.

Patel Depo., 12/6/07, Exhibit 25

Disputed: The document specifies NO time limits for the pathology portion of the presentation, contrary to Defendants’ claims and consistent with what Plaintiff claims. Defendants fundamentally misconstrue this document. The guidelines are directed to the RESIDENT who will be introducing the case, giving the background and going through preliminary slides at the beginning, as evidenced by the instruction “You will be required to meet with both the Pathologist and Radiologist to discuss the case to be presented at least 4 working days before the conference. It is also your responsibility to notify ALL physicians involved in the case you are presenting.” It is NOT directed at the pathologists. [Lee Opp. Decl., Exh. 28 (Conference Guidelines at Bates 0000804); Lee Opp. Decl., Exh. 29 (McBride Depo. at 362-16)].

105. Pathology Dept.’s DFJ00508 oncology conference -574 presentation--67 slides-by Jadwin, reviewing gynecology cases and alleged errors in diagnosis by University of Southern California (hereinafter referred to as USC).

Disputed: See Plaintiff’s Response to DMF 104 supra and DMF 106 infra, which are incorporated in their entirety herein.

Disputed: McBride stated that the purpose of the memos from the Cancer Committee to Plaintiff was NOT to reprimand Plaintiff or anybody in particular. [Lee Opp. Decl., Exh. 29 (McBride Depo. at 28:3-8)].

12

14

Page 43 of 115

103. Memo from Dr. McBride to Jadwin, dated 5/9/05, requesting that the time required for the pathology presentation at the oncology conference be kept to a minimum.

11

13

Filed 12/01/2008

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106. Memo from the Cancer Committee (Drs. Patel, Johnson, and McBride) to Jadwin, dated 10/12/05, insisting that his presentation take no more than 5 minutes per patient case.

Document 282

DFJ00578

Filed 12/01/2008

Page 44 of 115

Disputed: For sake of economy, see Plaintiff’s Response to DMF 104 supra, which is incorporated in its entirety herein. McBride testified that: 1) McBride was the timekeeper and there was no one better positioned to keep track of the timing of events at the October Conference [Id. at 32:2-5; 33:19-22]; 2) Plaintiff and the resident presenter together spoke at the October Conference for a total of 20 minutes, during which the resident typically spoke for “roughly” 5 minutes [Id. at 37:18-21; 39:10-20]; hence, Plaintiff’s presentation only took 15 minutes max; 3) the total conference time was typically 1 hour [Id. at 15:16-19]; 4) he did not disagree with Plaintiff when Plaintiff informed him that the director of a preeminent cancer center had stated that it is not reasonable to limit the time of the pathology presentation, that the “pathology department has presented concise, well organized presentations for years”, that Plaintiff’s October Conference presentation detailed “problems encountered with this patient’s care and hopefully improve general awareness about important KMC patient care issues”, that “other oncology conferences have run over without incident and most other conferences throughout [KMC] run over all of the time”, etc. [Lee Opp. Decl., Exh. 29 (McBride Depo. at 54:24-55:16; 57:7-8); Lee Opp. Decl., Exh. 30 (Jadwin letter to McBride of 10/19/05 re October Conference at DFJ00591)]; 5) “I was not unhappy with [Plaintiff’s October Conference] presentation. He had a lot of good material to present.” [Id. at 46:11-14)]; 6) He had moderated “many, many” Cancer Conferences [Id. at 37:2-6)], 7) the first presentation on the morning of the October Conference ran over by about 5 minutes without incident and that “it was not uncommon” for time overruns to occur at Cancer Conferences. [Id. at 49:1725)]; 8) he could not recall any other physician receiving a letter of reprimand for running over time at a Cancer Conference; 9) he had moderated “many, many” Cancer Conferences [Id. at 50:1-7)]; 10) Harris had forced him to write a letter of dissatisfaction against Plaintiff at the end of the October Conference [Id. at 29:11-13]; 11) he didn’t want to do write the letter [Id. at 30:1-8]; 12) that he was not upset with Plaintiff for going over time [Id. 33:1934:6]. Plaintiff’s expert, Lawrence Weiss, Chair of Pathology at City of Hope in Duarte, CA, stated re Plaintiff’s time overrun: “Customarily, if an Oncology Conference runs over the time scheduled, those attendees who need to leave to perform other duties simply do so…. In all my years of experience, I have never seen a physician’s privileges threatened for such an insignificant and patently unwarranted reason.” [Decl. of Lawrence Weiss (“Weiss Decl.”) at pp. 4-5.

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13 14 15 16 17 18 19 20 21 22 23 24

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Page 45 of 115

107. Anonymous (redacted) memo (author-Dr. Taylor) of complaint about Jadwin’s oncology presentation, dated 10/12/05. Some quotes: “ .. inappropriate to bring political/personal battles to an educational forum filled with residents and students,” and “ .. inappropriate to ‘bash’ reputable institutions like USC and Stanford,” and “ ..made [Jadwin] look like a conceited, pompous buffoon.”

DFJ00580

108. Dr. Royce Johnson also voiced a complaint.

Harris Depo., 8/13/08, pgs. 126:8127: 19

See evidentiary objections.

109. Oncology Conference Performance Evaluations of 10/12/05 where criticisms of Jadwin’s presentation are written in the comments section on the following Bates-stamped pages: 0000516,522,526,536, and 548.

Exhibit 190

Disputed: in those same evaluations, Plaintiff’s presentation received high praise from the majority of attendees. [Lee Opp. Decl., Exh. 31 (October Conference Feedback at 0000517, 520, 521 (“V. good speaker, confident & clear”; “V. important topic for women’s health”), 523, 524, 527, 528, 531 (“Great”), 534, 537, 538, 539, 542, 544, 545.

110. Dr. Ragland was not present at the October Oncology Conference so his testimony was limited to the comments he heard Jadwin make regarding the conference (which is an admission against interest). Dr. Ragland said that Jadwin’s excuse for monopolizing the oncology conference was that “the only important information on that case was his.”

Ragland Depo., 8/22/08, pgs. 106: 18-109: 14 and 156:14-25

Disputed: Plaintiff never said that “the only important information on that [October Conference] case was his.”. [Jadwin Opp. Decl., para. 7].

11 12

Document 282

See evidentiary objections. Disputed: See Plaintiff’s Response to DMF 104 supra and DMF 106 infra, which are incorporated in their entirety herein.

Disputed: See Plaintiff’s Response to DMF 104 supra and DMF 106 infra, which are incorporated in their entirety herein.

See evidentiary objections.

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111. Dr. Abraham testified that Jadwin went on much longer than a normal pathology presentation and she was embarrassed for him and by some of the things that he said. Her overall feeling was one of discomfort. She definitely felt that his criticisms of outside consultants were inappropriate and further evidence of his arrogance because the issue was not one of who was- right-andwho-was-wrong but of the actual sample and how it could be read. Jadwin’s position that it is a patient care issue presumes that Jadwin is right and Dr. Roy and the outside pathologist are wrong.

Document 282

Abraham Depo., 8/18/08, pgs. 14: 10-21: 17 and 131:5133:23 and 135:24138:22

Filed 12/01/2008

Page 46 of 115

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Responses to DMF 94, 104, 106, 113.

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112. Dr. Dutt believed that Jadwin retaliated against Dr. Roy by verbally attacking him, angrily, at the October oncology conference.

Document 282

Dutt Depo., 8/20/08, pgs.292:2 5-293:20

Filed 12/01/2008

Page 47 of 115

See evidentiary objections. Disputed: Dutt insisted that the Paycut Amendment to Plaintiff’s contract limit his medical leave allowance upon his return to work in retaliation for his prior medical leaves. [Lee Opp. Decl., Exh. 48 (Dutt email to Barnest of 9/14/06 at 0000830)]. Then-CEO Culberson testified that Dutt, Plaintiff’s former subordinate who had been elevated to replace him as Acting Chair of Pathology, could be biased against Plaintiff. [Lee Opp. Decl., Exh. 11 (Culberson Depo. at 163:12-16)]. Plaintiff’s expert, Dr. Lawrence Weiss, stated in his report: “Dr. Dutt’s so-called peer review of Dr. Jadwin was not only unwarranted, but was also non-compliant with customary and KMC’s procedures (that would require that reviewer comments be returned to the original pathologist and the original pathologist be given an opportunity to review the slides, make an assessment and acknowledge the receipt of the comments by the original pathologists), and not designed to achieve any legitimate peer review purpose that I can discern.” [Weiss Decl., Exh. 1 at p. 8-9]. According to Culberson, sometime between August 2006 and May 2007, Dutt investigated Plaintiff for competency errors and reported to him that “There were several matters that it was clear the outside consultant did not believe that the way matters were handled [by Plaintiff] was proper.” [Lee Opp. Decl., Exh. 11 (Culberson Depo. at 165:9-20; 166:6-20)]. Dutt confirmed submitting such complaints to then-CMO Harris about Plaintiff’s competence in the middle of November 2006. [Lee Opp. Decl., Exh. 47 (Dutt Depo. at 289:5-21; 289:25-290:7)]. Dutt also confirmed that he told Plaintiff he was subjecting his report to outside peer review, then locked up the slides at issue and denied Plaintiff access to them. [Id. at 35:5-36:15; 38:4-25; 297:14-21; 298:3-13]. Harris testified at his depo. that “There was no quality concern over [Plaintiff’s] cases prior to October of 2006.” [Lee Opp. Decl., Exh. 24 (Harris Depo at 192:7-13); see also Lee Opp. Decl., Exh. 24 (Harris Depo at 409:21410:3)]. Harris further testified: “I wasn’t even aware that [Plaintiff’] competency was an issue in this case.” [Lee Opp. Decl., Exh. 25 (Harris Depo at 411:4-20)]. Regarding the period after Plaintiff’s return to work as a staff pathologist on 10/4/06, Harris testified that all complaints about Plaintiff’s competency were directed to him [Lee Opp. Decl., Exh. 24 (Harris Depo. at 60:14-22)]; and that Defendant County never conducted any peer review in response to any of those complaints. [Lee Opp. Decl., Exh. 24 (Harris Depo. at 58:4-59:1)].

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Document 282

113. Letter from Drs. Kercher, Ragland, Abraham and Harris to Jadwin, dated 10/17/05, about Jadwin’s October oncology presentation. The criticisms of the presentation were 1) it exceeded the time allotted to it, 2) Jadwin failed to follow the leader of the conference on brevity, and 3) Jadwin used a public forum for a personal agenda and/or for making a political statement.

DFJ00588

114. E-mail from Dr. Ragland to Dr. Harris, dated 10/18/05, describing Jadwin’s attitude during the meeting on 10/17/05. When handed the evaluations of his presentation, he would not look at them. The e-mail states that Jadwin has a “lack of communication skills” and fails to “extend basic courtesy to his colleagues.”

0000094

9

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

Page 48 of 115

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Responses to DMF 94, 101, 104, 106, 126, which are incorporated in their entirety herein.

8

10

Filed 12/01/2008

Disputed: The fact that the letter references “personal agenda” and “political statement” is, if anything, direct evidence that Defendants were retaliating against Plaintiff for blowing the whistle on the fact that the patient whose case was being discussed at the October Conference had received a hysterectomy based upon outside pathology reports from USC that had been wrongly based upon incorrectly oriented slides. As Abraham testified, the political point referenced was the errors made by USC in their pathology report which Plaintiff was highlighting in his October Conference presentation – the very patient care issue which Plaintiff was raising. [Lee Opp. Decl., Exh. 27 (Abraham Depo. at 148:2-9)]. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Responses to DMF 104, 106 and 113 supra, which is incorporated in its entirety herein. Disputed: Plaintiff’s recollection of this meeting is entirely opposite to what is described in this email. Plaintiff recalls: “Dr. Ragland began by saying “So Dr. Jadwin, Mr. Perfect, here we are again, having problems with your behavior.” He said that he had been selected to deal with this issue. I said I wanted Mr. Bryan present. Kercher said this has nothing to do with Peter, this is a medical staff issue. Dr. Kercher started yelling at me: “David if you needed more time, why didn’t you tell Dr. McBride beforehand?” Dr. Ragland read the letter of reprimand aloud to me, which stated that letters were placed in my file. When I asked to see them, Dr. Harris said that I could not see them. When I turned to address Dr. Kercher, as the senior person in the room, Dr. Ragland on two occasions said “Don’t look at him, look at me; I am the person you need to talk to!” and “Noo, don’t look at [Kercher] look at me. That’s riiight, you don’t need to look at him, you need to look at me.” It was humiliating. Drs. Kercher and Ragland who were not at the conference, obviously listened to Dr. Harris’s account only. I was not given an opportunity to speak or otherwise defend myself.” [Jadwin Opp. Decl., para. 8].

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115. Jadwin’s evaluation of the 11/9/05 oncology conference (what he filled out). He complained that it ran to 8:38 a.m. and he noted he would discuss the overrun with Dr. McBride.

Document 282

DFJ00689

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

116. Memorandum to 0001566Supervisor Michael Rubio, 1567 District V, from Peter Bryan, dated 1/17/06, giving him background on the problems arising from the October oncology conference. Bryan tells of a meeting he had with Jadwin about a week after the conference in which Jadwin was extremely angry and making loud, derogatory comments about various members of the medical staff. He said he became concerned about Jadwin’s emotional health. He also said that Jadwin has never been able to state a resolution to the impasse. Bryan also says that he will meet again with Jadwin and inform him of some expectations for future conduct, or he will consider removing him as the chairman of the pathology department.

Filed 12/01/2008

Page 49 of 115

See evidentiary objections. Disputed: Defendants omit Dr. Shertukde’s feedback form which confirms that “The conference ran to 8:38 am” [Lee Opp. Decl., Exh. 32 (Oncology Conference feedback form of Shertukde of 11/9/05 at DFJ00686). The conference is supposed to end at 8:30 am [Lee Opp. Decl., Exh. 29 (McBride Depo. at 32:26-33:3)], so this represents an 8 minute overrun for which no one was reprimanded. In contrast, the October Conference ended at 8:25 a.m., 5 minutes early. [Lee Opp. Decl., Exh. 29 (McBride Depo. at 39:6-9)]. Nevertheless, Plaintiff was severely reprimanded for an alleged time overrun. Undisputed that the document says what it says. Disputed: This memorandum’s reference to “emotional health” is direct evidence that Bryan knew of Plaintiff’s depression disability and that he was discriminating against him on that basis.

PCCs

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117. PCC issue was a difference in professional judgment, the process by the nursing staff was working for them, and Jadwin failed to work within the institution and committee structure. Also, Bryan inferred that Jadwin had accused Toni Smith of ethical lapses which is an example of “a pattern of inability to establish an effective means of dialogue.”

Document 282

Bryan Depo., 8/14/08, pgs. 205:6206: 25 (Exhibit 291)

Filed 12/01/2008

Page 50 of 115

See evidentiary objections. Disputed: PCC issue was NOT a difference in professional judgment. It was an issue of illegal noncompliance with H&S § 1602.5 and AABB standards. The DHS later concluded that KMC was not complying with blood transfusion documentation and reporting procedures. [Jadwin Decl. (Doc. 265), Exh. 13 (DHS’s Fax to Jadwin of 8/11/08 at E264 on pages 2-4 (finding almost 50% noncompliance at KMC)]. The fact that Bryan ignored and belittled Plaintiff’s many reports of PCC noncompliance as a “difference in professional judgment” and indication of Plaintiff’s deficient leadership style and later caused Plaintiff to be demoted is further evidence of Bryan’s hostility to whistleblowers. For Bryan, “dysfunction” is nothing more than a code word for whistleblowing. Legal noncompliance becomes an issue of ethics when people choose to disregard it instead of fixing the problem. Bryan and Smith are guilty of ethical lapses in their betrayal of the public trust. Even as late as 8/14/08, Bryan still didn’t get it. He continued to minimize the PCC issue as an “inability of two professionals to sit down and have a constructive dialogue, to come up with a satisfactory solution.” [Lee Opp. Decl., Exh. 3 (Bryan Depo at 230:25-231:5)]. He took no responsibility whatsoever as then-CEO for failing to step in and break the deadlock between Nurse Executive Smith and Plaintiff, nor for failing to discipline Smith for her incompetence or willful resistance to bringing KMC into compliance with H&S 1602.5. He is under the delusion that all responsibility for enforcing compliance with regulations at KMC rested with Plaintiff alone, and not anyone else, including him and Smith. Bryan was far from impartial and demonstrated a clear bias against Plaintiff over time. [Lee Decl. (Doc. 266), Exh. 15 (Bryan Letter to Jadwin of 6/14/06 at DFJ1181); Lee Decl. (Doc. 266), Exh. 16 (Bryan Letter to Jadwin of 6/26/06 at DFJ1346); Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 0009821); Jadwin Decl. (Doc. 265), Exh. 1 (Jadwin email to Bryan of 2/28/05 at DFJ355); Lee Supp. Decl. (Doc. 267), Exh. 13 (Ragland Depo at 332:14-21); Lee Decl. (Doc. 266), Exh. 8 (Bryan email to Harris of 11/8/05 at 0000503); Lee Decl. (Doc. 266), Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507)]. Joseph Mansour, a doctor in OB-GYN, similarly testified that when he blew the whistle to Bryan on improper publicly-funded malpractice coverage of KMC doctors’ activities outside of KMC, Bryan discounted / disagreed with the concern. Mansour testified that the Kern County Board of Supervisors became aware of the problem and later canceled all such improper policies. [Lee Opp. Decl., Exh. 33 (Mansour Depo. at 98:18-99:12; 104:11-25)].

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Document 282

118. E-mail to Toni Smith, DFJ00408 R.N. from Jadwin, dated -409 5/20/05, inquiring after audits of the nursing department of which only one was received and arguing that PCCs should be sent to the blood bank when complete.

Undisputed.

119. E-mail to Toni Smith from Jadwin, dated 5/20/05, recounting Jadwin’s telephone conversation with Holly Rapp, AABB Accreditation Director.

DFJ02499

Undisputed.

120. Exchange of e-mails between Toni Smith and Jadwin, dated between 6/15/05 and 6/28/05, about the PCC issues. In 0000423, Jadwin states that a PCC must not be signed until the time of the infusion, or KMC is not meeting AABB accreditation standards.

0000421424

Undisputed.

Filed 12/01/2008

Page 51 of 115

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Document 282

121. Typed notes, dated 1/10/06, of interviews with various people and institutions re: sending the Product Chart Copies (PCCs) back to the blood bank (pathology). The author unknown- interviewed Michelle Burris who said there is no reason to return PCCs to pathology. The author interviewed Ann Schadler, UCLA Blood Bank Director, who said their PCCs are in the patient’s record only, not the blood bank. The author interviewed Julia, UCSD Blood Bank, who said there was no reason to return the form to the blood bank. The author also interviewed Dr. Wu and Jay, supervisor of Mercy Lab and Blood Bank, who said that the PCC goes in the patient’s record and there is no reason to return the PCC to the blood bank.

0000572

122. E-mail to Peter Bryan from Jadwin, dated 4/10/06, about several issues but he brings up non-compliance with state regulations, JCAHO, and AABB on the issues of the PCCs.

DFJ00784

123. Notes of meeting dated 4/14/06 with Peter Bryan, Karen Barnes and Jadwin on 4/13/06. There is no problem with the PCCs because 5 charts were reviewed (and approved) by JCAHO.

DFJ00788

124. E-mail to Peter Bryan from Jadwin, dated 4/17/06, claiming that the JCAHO review was too small of a sample and KMC was in noncompliance on their handling of the PCCs and there was a need for action.

DFJ00793

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Page 52 of 115

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 117.

Undisputed. Seven days later, on 4/17/06, Bryan threatened Plaintiff with termination. This is compelling evidence of whistleblower retaliation. “Dysfunction” for Bryan is nothing more than a code word for whistleblowing. [Lee Decl., Exh. 12 (Bryan Memo to Jadwin of 4/17/06 re Termination Threat at DFJ000795)]. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 117.

Undisputed.

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Document 282

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Page 53 of 115

a) Bryan criticizes Jadwin’s 57 memos to Toni Smith, R.N. as a “way of flooding the system and seeing what sticks and what doesn’t.”

Bryan Depo., 8/14/08, pg. 226: 10-16

Disputed: For sake of economy, see Plaintiff’s Response to DMF 117.

125. Memo to Peter Bryan from Toni Smith, dated 4/17/06, responding to Jadwin’s e-mail to Peter Bryan of 4/17/06, disagreeing with Jadwin’s characterization of the PCC situation and stating that Jadwin’s proposals on this issue were strategies that have previously been rejected by KMC.

0000401403

Disputed: For sake of economy, see Plaintiff’s Response to DMF 117.

See evidentiary objections.

See evidentiary objections.

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126. Harris had complaints about Jadwin’s handling of the PCC issue-Jadwin was demanding, inflexible, unreasonable in wanting the originals, impatient.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Harris later testified: “I wasn’t even aware that [Plaintiff’] competency was an issue in this case.” [Lee Opp. Decl., Exh. 25 (Harris Depo at 411:4-20)].

Document 282

Harris Depo., 8/13/08, pgs. 268:8-23

Filed 12/01/2008

Page 54 of 115

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 112 and 117. Harris’s view of Plaintiff’s reports of non-compliant PCCs is further evidence of Harris’s hostility to whistleblowers like Plaintiff. Harris’s retaliatory animus is well-documented. Harris had coordinated with a gynecologist, William Roy, in 2005 to 2006 to conduct retaliatory peer review of Plaintiff’s work. As Plaintiff’s expert Dr. Lawrence Weiss noted in his report: “However, contrary to customary practice, the peer review was not opened in a timely fashion, occurring more than six months after Dr. Roy provided a list of [Plaintiff’s] cases to Dr. Harris (Bates No. 434-438), and more than a year after Dr. Jadwin challenged Dr. Roy to provide the cases for which he questioned Dr. Jadwin’s abilities in a letter copied to the hospital administration and the medical staff leadership (Bates No. 1614). If the interests of patient care were to be served, the cases would have been provided and the review performed promptly.”[Weiss Decl., Exh. 1 at p. 7]. Weiss further noted: “It is very clear that these peer review activities were not conducted as an educational tool or as a method of risk reduction, as is customary. Peer review needs to be conducted confidentially--opaque to the world outside of the Medical Staff; but it is not conducted like the inquisition, in which one does not know who the accuser is or what the allegations are. In my entire career, I have never encountered so much peer review directed at one individual and with so little return.” [Weiss Decl., Exh. 1 at p. 6-7]. Plaintiff is not the only whistleblower to whom Harris was hostile. Joseph Mansour, a doctor in the OB-GYN department, testified that when he blew the whistle to Harris on improper publicly-funded malpractice coverage of KMC doctors’ activities outside of KMC, Harris said he was aware of the problem and thought it was fine, then suggested to Mansour “why don’t you go use this malpractice coverage and work at hospitals and get free coverage [yourself]”. Mansour view of Harris’s unethical suggestion was that “I thought it was outrageous to do that”. Mansour then testified that the Kern County Board of Supervisors became aware of the problem and later canceled all such improper policies. [Lee Opp. Decl., Exh. 33 (Mansour Depo. at 100:14-25; 101:8-21; 104:11-25)]. The conversation between Harris and Mansour is memorialized in one of Harris’s memos to file. [Lee Opp. Decl., Exh. 34 (Harris memo to file of 5/10/06 at 0027083-27084)].

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Document 282

127. Toni Smith, R.N. explained that the reason that some PCCs looked like they were not complete is that the PCC form was actually in duplicate and the nurses were not consistent about writing on only one copy and throwing the blank copy away.

Smith Depo., 8/19/08, pgs. 59:460: 13

128. Toni Smith said that Jadwin was never interested or willing to listen to her ideas. When asked what Jadwin’s physical demeanor was like in these conversations in which he was allegedly uncooperative, she said “He was obviously frustrated, obviously not going to change his mind, obviously not willing to listen to anything. I presented cases from other hospitals, some of the lab directors that I hold in high esteem. [He] had no interest in any of that.”

Smith Depo., 8/19/08, pg. 65:213 and 74: 12-22

129. Jadwin’s idea to have the PCCs stored in his department may violate California law, Title 22, by fragmenting the medical record. Jadwin’s idea was opposed by Toni Smith, R.N., the medical records department, and the medical records committee which ultimately determines what the contents of a medical record will be.

Smith Depo., 8/19/08, pg. 71:221

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D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. See evidentiary objections. D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. See evidentiary objections.

D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. See evidentiary objections.

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Document 282

130. Toni Smith, R.N. offered a succinct description of her conversations with Jadwin on the issue of PCCs. The conversations were not professional conversations”It just was a dead-end conversation. I mean, he had his mind made up that those things-he had never seen an organization where they hadn’t been stored in the lab. I had indicated-I indicated to him that I had never seen an organization where they were stored in the lab. And I questioned him as to how he was going to be able to locate that if we needed it for patient care purposes. I think he said he was going to store them in binders or in notebooks or boxes or something. You know, it was See evidentiary objections: Irrelevantas far as I was concerned. I felt that it was very important to have that information-one, we needed to know that the patient hadhad received the blood. We needed the vital sign information during the blood transfusion part, which would leave a huge gaping hole in patient information if that was stored somewhere in the lab.”

Smith Depo., 8/19/08,p gs.72:1973:17

131. Toni Smith considered Jadwin’s conduct at the MEC meeting as uncooperative, refusal to consider other points of view or suggestions, etc.

Smith Depo., 8/19/08, pg. 77:920

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Page 56 of 115

D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. See evidentiary objections.

D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. See evidentiary objections.

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132. Jadwin’s charges of being out of compliance with regulatory agencies were unfounded, and regulatory agencies found no jeopardy of KMC’s level of compliance.

5

7 8 9 10

Page 57 of 115

D Disputed: For sake of economy, see Plaintiff’s Response to DMF 117. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation.

Disputed: Smith later testified that another KMC audit of PCCs confirmed Plaintiff’s finding of “less than 100 percent compliance” and that even regarding one percent or two percent incomplete or inaccurate PCCs, “I would never say that was okay”. [Lee Opp. Decl., Exh. 35 at 85:18-20; 87:17-23;

11 12 13 14

16

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Filed 12/01/2008

Disputed: At her deposition, Smith claimed not to recall whether DHS found KMC blood transfusion documentation procedures to be noncompliant, even though she is Nurse Executive, in charge of nurses who fill out PCCs at time of transfusion. [Lee Opp. Decl., Exh. 35 at 82:24-83:4)]. One month earlier, DHS had issued their report finding PCC deficiencies to KMC. [Jadwin Decl., Exh. 13 (DHS Report of 7/22/08)]. Smith is either incompetent or lying.

6

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Document 282

See evidentiary objections. In General Treatment of Other Staff

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133. Dr. Abraham gradually had fewer and fewer interactions with Jadwin because his attitude was pompous and arrogant. Since the conversations with Jadwin were not cordial, it negatively affected patient care. She didn’t discuss Jadwin’s attitude with other doctors because she thought his attitude was evident to everyone.

Document 282

Abraham Depo., 8/18/08, pgs. 49: 16-52:9 and 75:22-76: 19

8 9 10 11 12 13 14 15 16 17 18

20 21

25 26 27

Disputed: Mr. Bryan (Former CEO), Dr. Abraham (Former President of Medical Staff), Dr. Ragland (Former President of Medical Staff), Dr. Kercher (Former President of Medical Staff), Ms. Smith (Nurse Executive), and Dr. Dutt (Acting Chair of Pathology and Plaintiff’s former subordinate) were in the minority of people who were detractors of Plaintiff. The vast majority of people – Dr. Martin (Surgery Chair), Ms. Gallegos (Histotech), Dr. Kolb (Former CMO), Ms. Lindsey (Secretary), Ms. Lopez (Clerk), Dr. Mansour (OB-GYN physician), Mr. Martinez (Former Lab Manager), Dr. McBride (Former Cancer Conference Director), Dr. Naderi (Radiology Chair), Dr. Patel (Cancer Committee Chair), Ms. Ramos (Secretary), Dr. Taylor (Surgeon), Dr. Wrobel (Neurosurgeon), and Dr. Yoo (Psychiatry Chair) – liked Plaintiff, reported having no or few bad interactions with him and found he generally conducted himself professionally. [Lee Opp. Decl., Exh. 36 (Martin Depo. at 34:24-35:2; 91:14-19); Exh. 37 (Gallegos Depo. at 23:19-25; 24:17; 28:7-9); Exh. 38 (Kolb Depo. at 17:12-16; 19:17-21:18; 22:19-23:1; 75:11-76:10; 62:10-19; 36:21-19); Exh. 39 (Lindsey Depo. at 8:23-10:3); Exh. 40 (Lopez Depo. at 8:19-20; 10:4-8; 11:3-8; 12:4-19; 15:20-16:13); Exh. 33 (Mansour Depo. at 10:2-4); Exh. 8 (Martinez Depo. at 121:2-7; 122:8-123:1; 124:18-21; 127:18-21; 130:12-16; 133:17-22); Exh. 29 (McBride Depo. at 91:3-92:24); Exh. 41 (Naderi Depo. at 63:18-64:19; 75:17-22); Exh. 42 (Patel Depo. at 16:2-6; 16:17-19); Exh. 43 (Ramos Depo. at 47:9-48:9; 48:22-49:2; 49:10-12); Exh. 44 (Taylor Depo. at 88:23-89:25; 90:16-90); Exh. 45 (Wrobel Depo. at 12:15-13:18); Exh. 46 (Yoo Depo. at 10:20-11:23; 12:4-6; 12:22-24).

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94.

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Even Dr. Kercher testified “I don’t ever remember [Plaintiff] specifically treating me in a sassy, mean, horrible way” and “he was always nice to me”. [Lee Opp. Decl., Exh. 14 (Kercher PMK Depo at 32:9-13; 32:2533:3)].

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134. Dr. Abraham testified that many or most physicians reported difficulties in getting along with Jadwin.

Abraham Depo., 8/18/08, pgs. 185:7187:9

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF DMF 94, 101, 117, 126, 127, 133, 176. The group of people alleging difficulties with Plaintiff were in the minority of people retaliating against Plaintiff - Bryan, Harris, Kercher, Ragland, Abraham, Smith and Dutt. See evidentiary objections.

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Document 282

135. Jadwin’s communication style was, to some people, offensive and abrasive, and he had a hard time accepting differing opinions from others.

Bryan Depo., 8/14/08, pgs. 90:492:2

136. “Compromise” was not in Jadwin’s vocabulary. It is not enough to be right; a department chair must exercise judgment on how to deal with others.

Bryan Depo., 8114/08, pgs. 100: 12102: 1

5 6 7

9 10 11

13 14

16 17 18 19 20 21 22 23 24 25

Disputed: For sake of economy, see Plaintiff’s Response to DMF DMF 94, 101, 117, 126, 127, 133, 176. Bryan, Harris, Kercher, Ragland, Abraham, Smith and Dutt were intolerant in accepting the patient care and noncompliance issues Plaintiff was blowing the whistle on.

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF DMF 94, 101, 117, 126, 127, 133, 176. Bryan, Harris, Kercher, Ragland, Abraham, Smith and Dutt were just as intolerant in accepting the patient care and noncompliance issues Plaintiff was blowing the whistle on. Disputed: This is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance 3 years into his tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247).

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Disputed: This is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance 3 years into his tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247).

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137. Jadwin said Dr. Ragland was not qualified to be a staff officer, and he called Dr. Harris an idiot on several occasions.

Bryan Depo., 8/14/08, pgs. 107:16109:11

138. E-mail to Bryan from Jadwin asking Bryan what he (Bryan) has done on the cytotech issue. Bryan said that he was not the appropriate person to resolve this. Jadwin should be directing this to the chairman; Bryan only gets involved if approval is necessary.

Bryan Depo., 8/14/08, pgs. 171: 17-173:11 (Exhibit 271)

See evidentiary objections. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF DMF 94, 101, 117, 126, 127, 133, 176. Bryan, Harris, Kercher, Ragland, Abraham, Smith and Dutt engaged in retaliatory attacks against Plaintiff which were far more severe and coordinated. See evidentiary objections. Disputed: Plaintiff had discovered Elsa Ang, a former pathologist, had made failed to diagnose florid cancer in numerous prostate slides, raising a serious patient care issue. Plaintiff reported the issue to Bryan and Bryan’s response was, true to form, to disregard it. Only later did Bryan finally decide to ask Harris to look into the issue. This is further evidence of Bryan’s hostility to whistleblowers. [Lee Opp. Decl., Exh. 49 (Jadwin email to Bryan of 10/17/05 at DFJ00589); Exh. 50 (Jadwin email to Bryan of 3/2/06 at DFJ00750); Exh. 51 (Emails between Bryan and Plaintiff of 4/21/06 at DFJ00799)].

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139. Bryan recalls private conversations with Jadwin where Jadwin challenged Toni Smith’s competency as chief nursing officer.

Document 282

Bryan Depo., 8/14/08, pg. 230: 10-15

5 6 7

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140. Jadwin was so obsessed with personnel actions or inactions that he was distracted in his duties. “ .. his behavior threatened a healthy, productive work environment at the hospital.”

Harris Depo., 8/13/08, pgs. 171: 16174: 8 pg. 173:910

141. In most cases, doctors know how to calm each other down and act professionally and collegially. Jadwin was “unusual.” Jadwin was unable to interact collegially and professionally to create a healthy, collaborative working environment.

Harris Depo., 8/13/08,p gs.212:16 218: 11 pg.215:18 -21

142. Jadwin denied referring to Dr. Epstein as cavalier. Jadwin said that on another matter, at another time, he said that Dr. Epstein’s diagnoses were a little cavalier.

Jadwin Depo., 3/12/08,9 01:12903: 1

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Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Bryan did not display similar concern when Plaintiff’s FNA competency was being attacked in retaliatory fashion by Ragland, Abraham, Kercher, Harris, Smith, and others. Disputed: Even as of 8/19/08, Smith took no responsibility for her role in failing to get KMC into compliance with H&S 1602.5. Instead, she focuses on Plaintiff’s alleged dysfunction and unsubstantiated speculation that one of Plaintiff’s proposed solutions might run afoul of a regulation. Smith is either incompetent or retaliating.

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Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Harris leveled far more severe charges of assault, intimidation and violence at Mansour, yet Mansour was not subjected to administrative leave or nonrenewal as Plaintiff was. Disputed: This is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance 3 years into his tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Harris leveled far more severe charges of assault, intimidation and violence at Mansour, yet Mansour was not subjected to administrative leave or nonrenewal as Plaintiff was. Disputed: This is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance 3 years into his tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). See evidentiary objections. See evidentiary objections. Disputed: Pathologists disagree with outside experts all the time. That was the basis for the policy of internal pathology review of outside expert reports which Plaintiff was espousing at the October Conference. Dr. Patel, Chair of the Cancer Committee, enthusiastically supported Plaintiff’s advocacy. [Lee Opp. Decl., Exh. 42 (Patel Depo. at 38:3-7; 38:20-22; 41:11-21)].

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143. Dr. Ragland testified that Jadwin acted inappropriately in several instances.

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Ragland Depo., 8/22/08, pg. 12:823

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

a) The first incident was pg.16:15when Jadwin, in a meeting, 16. said Dr. Ragland was incompetent and shouldn’t be the medical staff president. b) The second incident was Jadwin taking over the blood usage committee and not letting any other physicians on it. Jadwin sent Dr. Ragland an e-mail stating that he thought having other physicians on the committee was a waste of time because “they will all rubber stamp it.” Dr. Ragland interpreted this to mean that Jadwin did not think that anyone else at KMC had the competence or experience to sit on the committee.

pgs. 59:21-60: 17 and 86:5-25

c) The third incident was Jadwin’s fighting with the radiologists and calling them incompetent. According to Dr. Ragland, Jadwin was wrong because the procedurist (the radiologist) should chose the equipment he uses (gauge of needle is an example) as that is who is performing the task.

pg. 94:16 95:15 and 155:2156:13

d) The fourth incident was Jadwin hijacking the presentation at the October 2005 oncology conference.

pgs. 106: 18-109: 14 and 156:14-25

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Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Ragland’s retaliatory animus against Plaintiff is so extreme, it approaches hatred. Disputed: This is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance 3 years into his tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Ragland had no hesitation launching more severe retaliatory attacks against Plaintiff. Ragland’s retaliatory animus against Plaintiff is so extreme, it approaches hatred. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Ragland spoliated the emails referenced here and testified he was never contacted by anybody with instructions not to spoliate or to produce documents responsive to Plaintiff’s discovery requests.

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. The radiologists, Ragland and Abraham numerous times aired their suspicions that the Pathology department was incompetent. According to Abraham, that is what led up to the retention of David Lieu to conduct an outside review. See evidentiary objections.

See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Ragland was not even in attendance.

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144. Dr. Ragland observed an incident involving Dr. Shertukde wherein Jadwin intimidated her into giving the answer he wanted and then he dismissed her from the room.

Ragland Depo., 8/22/08, pg. 110:717

145. Watson describes how Jadwin’s disruptive misconduct was discussed at several JCC meetings.

Watson Depo., 8/25/08, pg. 13:316

8 9 10 11 12 13 14 15

146. Watson testified to his impression of Jadwin’s involvement with KMC management regarding whether to remove him as chair, etc. He felt that Peter Bryan had made a lot of effort to engage Jadwin but that Jadwin was unresponsive.

Watson Depo., 8/25/08, pg. 32:6-1 0

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See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Disputed: Shertukde never submitted a single complaint against Plaintiff because “there wasn’t any reason for me to submit any complaint”. [Lee Opp. Decl., Exh. 52 (Shertukde depo. at 25:1-9)]. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. These accounts were being provided by Bryan who had retaliatory animus against Plaintiff. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 13:8-16)]. Watson testified he has never even met Plaintiff, much less heard Plaintiff’s side of the story.[Id. at 10:5-13]. See evidentiary objections. Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Watson testified he has never even met Plaintiff, much less heard Plaintiff’s side of the story. [Lee Opp. Decl., Exh. 10 (Watson Depo. at 10:5-13)].

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147. Letter to Dr. Ko1b from DFJ00243 Jadwin, dated 11/22/03, -245 complaining about the situation at KMC. Jadwin asserted the following: 1) offense at Dr. Kolb’s counseling of Jadwin that his leadership style needs to be kinder and gentler; 2) distress at the criticisms he received from Drs. Ragland and Abraham at a Wednesday meeting; 3) blame for the schism between pathology and radiology over FNA was on the radiologists; 4) personally unaware of any inappropriate interpersonal relations involving himself; 5) hoped to be recognized by others at KMC as one of the best physicians and directors there; and 6) any complaints about him were “irresponsible attempts by a few inadequate individuals.”

See evidentiary objections.

148. E-mail to Dr. Kercher from Jadwin, dated 2/1/05, requesting Dr. Abraham be removed from the FNA Committee because she wasn’t (by implication) honest, objective or impartial.

DFJ00316

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Plaintiff had grounds for this concern. Even after Dr. Lieu reviewed 200 of Plaintiff’s cases and issued a report exonerating Plaintiff, Abraham testified at her deposition that she still harbored suspicions about Plaintiff’s competence afterwards. [Lee Opp. Decl., Exh. 27 (Abraham Depo. at 56:16-22)].

149. E-mail from Dr. Kercher to Jadwin, dated 2/1/05, telling Jadwin that he was not acting like a team member.

DFJ00317

See evidentiary objections.

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance just one month after this letter and 3 years into Plaintiff’s tenure. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: For sake of economy, see Plaintiff’s Response to DMF 133.

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Kercher did not lift a finger to address the numerous patient care and noncompliance concerns Plaintiff was reporting to him, showing his hostility to whistleblowers.

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150. E-mail to Peter Bryan DFJ00319 from Jadwin, dated 2/2/05, -320 listing his suggestions for improvement on the FNA issue. Jadwin also states that the radiology department was “substantially at fault” for the conflict between the departments. He requested a formal apology from the radiology department to himself and the pathology department. He also requested (in bold lettering) a public announcement at the next MEC meeting that there are no quality issues involving the pathology department and Drs. Amin, Abraham, Munoz and Naderi should be forced to stand at the podium during the announcement.

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Plaintiff requested his name be cleared of the radiologists’ accusations of incompetence after Dr. Lieu’s outside report exonerated him. That never happened. As Abraham’s testimony showed, even to this day, Plaintiff’s competence remains in question. [Lee Opp. Decl., Exh. 27 (Abraham Depo. at 56:16-22)].

151. Exchange of e-mails between Dr. Ragland and Jadwin, dated 2/25/05, in which Jadwin complains about some comments made by the radiologists at the February QM meeting and informing Dr. Ragland to be prepared for Jadwin to request him to call for supporting documentation from radiology or announce that the previous comments were unsupported. Dr. Ragland shot back his displeasure at the continuing conflict between radiology and pathology, and stated that his committee will not become a battleground for this conflict.

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176.

DFJ00353 -354

Ragland admitted in depo that the FNA concerns Plaintiff had raised were not just a communication issue but a valid “patient care issue” and that he had always known that even from the beginning. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 361:3-18)]. Yet here he is minimizing the issue as “battling doctors” in retaliatory fashion.

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152. E-mail to Peter Bryan and Dr. Kercher from Jadwin, dated 2/28/05, forwarding Dr. Ragland’s email of 2/25/05 and asserting that because of spelling, grammar, and syntax errors in it that Dr. Ragland may be an “impaired physician” with a “level of intellectual functioning well below the high school graduate level” and thought processes that are “chaotic and almost incoherent.” Jadwin alleges that Dr. Ragland may have a substance abuse, emotional and/or cognitive function disorder, and suggests monitored drug testing and that Dr. Ragland’s patient care duties be monitored as well.

DFJ00355

Disputed: Plaintiff was making a confidential report of genuine concern regarding Ragland to Bryan and Kercher. He expected it to be kept confidential. [Lee Opp. Decl., Exh. 53 (Jadwin Depo. at 618:8-9; 622:21-623:4; 621: 1417)]. They had a duty to keep the report confidential. Instead, the report was leaked to Ragland, leading to predictable escalation of animosity just prior to the October Conference. [Lee Opp. Decl., Exh. 9 (Ragland Depo. at 332:9-21; 333:11-17; 334:2-8)]. Amazingly, Bryan and Kercher then turned around and chided Plaintiff for not getting along better with Ragland.

a) Dr. Ragland heard about the e-mail although he never saw it. He heard that the email was turned over to Dr. Yoo, head of psychiatry. He also heard that Jadwin had contacted the licensing board about him with this same accusation.

Ragland Depo., 8/22/08, pgs. 332:4337:2

See evidentiary objections.

b) Letter to Dr. Ragland from Jadwin, dated 10/19/05, apologizing for past wrongs, although he asserts that he does not know how Dr. Ragland came to dislike him. The irony is that Jadwin’s letter contains many spelling and grammatical mistakes and a Freudian slip” .. and I have never treated you and your patients exceptionally well ..”

[Compare to DFJ00355 above] DFJ00592

See evidentiary objections.

Disputed:

Disputed: For sake of economy, see Plaintiff’s Response to DMF 152. Plaintiff testified that he acted out of genuine concern, and he submitted it confidentially. This letter proves nothing.

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153. Letter to Dr. Sergio Perticucci from Jadwin, dated 3/3/05, complaining about Dr. Perticucci’s complaints about the pathology department. In particular, Jadwin attempted to assert that an original diagnosis of “atypical metaplasia” was merely a transcription error because the diagnosis should have been “atypical hyperplasia.” Jadwin also called the diagnosis rendered on the same case by Dr. Felix of use “nebulous.” Jadwin called Dr. Perticucci dishonest and demanded an apology.

DFJ00356 ~357

See evidentiary objections.

154. E-mail to Dr. Kercher from Jadwin, dated 6/7/05, complaining about Dr. Abraham’s conduct at an MEC meeting and accusing her of an “inappropriate personality defect.”

DFJ00427

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Kercher was quick to criticize Plaintiff, but looked the other way when Abraham attacked Plaintiff in public.

155. E-mail to Dr. Kercher from Jadwin, dated 6/27/05, demanding that Dr. Abraham publicly apologize to Jadwin at the next MEC meeting.

DFJ00436

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Abraham harbored retaliatory animus against Plaintiff for pointing out that the radiologists were not receptive to addressing the FNA problem. She testified that she still questions Plaintiff’s competence to this day, despite all the contrary evidence.

156. Letter to Dr. Roy from Jadwin, dated 2/10/06, demanding apology “meeting my specifications” if alleged (pathology department) deficiencies are not received in 14 days.

DFJ00738

See evidentiary objections.

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Disputed: As Plaintiff testified, when he approached Perticucci after sending him the letter, he explained why he was upset and Perticucci apologized to him. [Lee Opp. Decl., Exh. 53 (Jadwin Depo. at 650:13-20)].

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 176. Roy’s letter of dissatisfaction of 10/13/05 issued to Harris at the October Conference went beyond the scope of the October Conference and devolved into baseless personal attacks on Plaintiff. [Weiss Decl., Exh. 1 at pp. 7-8]. Dr. Weiss, Plaintiff’s expert, noted how KMC was quick to upbraid Plaintiff for being slightly critical of anyone, but refused to discipline anyone who launched attacks against Plaintiff like Roy’s letters, and in fact upbraided Plaintiff further when he tried to defend himself. [Id. at p. 6].

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157. Memorandum from Peter Bryan to Jadwin, dated 2/21/06, chastising Jadwin for the tone of voice he used in his letter to Dr. Roy of 2/10/06 and stating that “this method.. exemplifies why it is becoming increasingly difficult for you to work with key members of the medical staff.”

DFJ00740 -741; Bryan Depo., 8/14/08, pgs. 137:1144:9

See evidentiary objections.

158. Email to Peter Bryan from Jadwin, dated 2/23/06, following the meeting of 2/22/06 urging Bryan to take the moral high ground and called Drs. Ragland and Abraham “disgruntled, vindictive individuals.”

DFJ00744 -745

Undisputed that the document says what it says.

159. Exchange of e-mails with Peter Bryan from Jadwin, dated 3/24/06, 3/27/06, 4/5/06, criticizing Karen Barnes for insisting on vicarious liability of staffing agency before placing a temporary pathologist. Also, Jadwin postponed his own surgery indefinitely because his mother was ill.

DFJ00783

Disputed: As is apparent from the email of 3/24/06, Plaintiff was protesting the delay in getting temporary help hired to assist his department during his medical leave. Plaintiff’s expert, Regina Levison, stated in her report: “According to the documents I read and my conversations with Dr. Jadwin, it is my opinion that Kern County could have arranged for locum tenens coverage for the Pathology Department at Kern Medical Center much more quickly than they did. Kern County could have contacted several other locum tenens firms if they were not able to reach contractual agreement with CompHealth or any other companies in a reasonable amount of time…Over the past 10-15 years, I have seen it become more common for organizations needing locum tenens coverage to place the request with several locum tenens search firms simultaneously. If Kern County had followed this practice, there would have been several firms working to fill the Pathology Department's need for locum tenens coverage. Kern County would not have been liable to pay every firm for recruiting for a Pathologist locum tenens, only the firm that found the Pathologist that took the assignment”. [Declaration of Regina Levison (Doc. 268) (“Levison Decl.”), Exh. 1 at Section 5 on p.8].

Disputed: For sake of economy, see Plaintiff’s Response to DMF 156.

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160. Memo from Peter Bryan to Jadwin, dated 4/17/06, telling him that he must either work on improving his relationships with staff or step down as chairman of pathology department. Bryan states “You have made many derogatory comments about some of the staff members” and “this apparent lack of insight on your part is at the heart of your inability to meaningfully contribute as a member of the medical staff leadership group.” In Bryan’s Depo., he distinguished between the department running well on a technical level (which he notes in this memo) and Jadwin’s deficiencies as department chair

DFJ00794 -795; Bryan Depo., 8/14/08, pgs. 231:9237:25; pgs. 233:2-17 and 237:2-11

See evidentiary objections.

161. E-mail from Peter Bryan to Jadwin, dated 4/17/06, responding to an email from Jadwin in which Jadwin pushes an issue of “pathology informatics.” Bryan’s response was stem, “I clearly indicated to you that your proposed solution of a free standing system for pathology was not going to happen. I have repeated this to you many times .. “

0001581

See evidentiary objections:

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Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 156, 176. In that same letter, Bryan stated: “Yes, the Department of Pathology continues to function well, as it has for many years, and, yes, you have made many positive changes to the department” [Lee Decl. (Doc. 266), Exh. 12 (Bryan memo to Jadwin of 4/17/06 at DFJ795); Bryan Depo at 332:12-22; Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ1152)]. Later, Bryan testified that, as of April 28, 2006, “actual functioning of the department of [pathology] actually was fairly good”. [Lee Opp. Decl., Exh. 3 (Bryan Depo at 332:12-22).]. Bryan also testified that if there were any complaints about Plaintiff they would have “bubbled” up to him as CEO, but that was not the case as of 4/17/06. [Lee Opp. Decl., Exh. 2 (Bryan Depo. at 333:18-334:9)]. At the same time, Bryan wrote to the DHS re: Plaintiff’s demotion: “Quality of care issues was not the basis for making this decision. To the contrary, Dr. Jadwin has been on an extended leave of absence from the hospital and there was a need to provide consistent administrative leadership within the department.” [Lee Decl., Exh. 19 at 0001619)].

Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts.

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162. Jadwin wanted to delete the “Complete Blood Count” from the laboratory’s test menu and only offer the “Complete Blood Count with Differential.” Gilbert Martinez believed Jadwin’s idea would pose a compliance issue so Martinez took the matter to the Compliance Committee. Both options stayed on the test menu. Martinez felt that Jadwin was being uncooperative in this incident.

Martinez See evidentiary objections: Depo., 4/16/08, pgs. 121:17122 Irrelevant to excusing Defendants’ liability under any of : 19 Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247).

163. Gilbert Martinez described an incident an unannounced inspection occurred and Jadwin was not present. Martinez proceeded to show the inspectors around the laboratory. Jadwin returned, became upset when he discovered the inspectors were there, stated that the inspection had been mishandled, and then said that if Jadwin had a gun, he would shoot someone. Jadwin never apologized to him for making the remark. The incident happened sometime before 2005.

Martinez Depo., 4/16/08, pgs. 127:22130:3

164. Dr. Dutt believed that Jadwin tried to retaliate against Dr. Taylor who is married to Dr. Abraham. Jadwin’s dislike of Dr. Abraham is well-known. For instance, Jadwin refused to make the obvious diagnosis on one of Dr. Taylor’s cases.

Dutt Depo., 8/20/08 pgs. 291:7292: 11

See evidentiary objections: Irrelevant to excusing Defendants’ liability under any of Plaintiff’s counts. It predates the October Conference of 12/16/05 by several years. Also, it is pretext. On 12/26/03, Defendant County increased Plaintiff’s biweekly base salary from $10,679.43 to $11,021.08 establishing that Defendant County was satisfied with Plaintiff’s performance as of that date. [Lee Opp. Decl., Exh. 21 (Change of Employee Status of 12/26/03 at Bates DFJ00247). Disputed: Martinez also testified that he did not interpret the comment to mean that Plaintiff was physically threatening him or anyone else. [Lee Decl., Exh. 8 (Martinez Depo. at 128:19-129:7; 130:4-11)]. Martinez testified that he didn’t file a police complaint or a workplace violent or any other complaint – instead he dismissed it as a stray remark. [Ibid.]. See evidentiary objections.

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165. Dr. Dutt reported to Dr. Harris complaints by Dr. Shertukde that Jadwin was angry and hostile toward her. Dutt did so because he was afraid that Dr. Shertukde or Vangie Gallegos would file a case against the County for harassment or hostile work environment based on Jadwin’s behavior.

Document 282

Dutt Depo., 8/20/08, pgs. 298:23300:24

See evidentiary objections.

Abraham Depo., 8/18/08, pgs. 198:24207: 17

See evidentiary objections.

166. Dr. Abraham recalled how Jadwin insulted her and how he had insulted Dr. Ragland and, in general, that he managed to insult everyone who was there but she did not remember specific statements beyond those directed at her and Dr. Ragland.

16

18 19 20 21

Harris testified that he sincerely apologized to Plaintiff after the meeting. [Lee Opp. Decl., Exh. 24 (Harris Depo. at 199:1-6)]. He also testified that negative things were said to Plaintiff at the meeting as well. [Id. at 232:19-21]. Kercher was asked if he apologized to Plaintiff at the meeting, and he responded “I apologize all the time, sir…I do it all the time.” [Lee Opp. Decl., Exh. 14 (Kercher PMK Depo. at 93:19-24)].

Plaintiff denied insulting anyone at the meeting. [Lee Opp. Decl., Exh. 55 (Jadwin Depo. at 222:14-223:7; 223:15-17). He also confirmed that Harris and Kercher had both apologized to him after the meeting. [Lee Opp. Decl., Exh. 4 (Jadwin Depo. at 290:16-19)].

22 23

26

Disputed: For sake of economy, see Plaintiff’s Response to DMF 94, 101, 117, 126, 127, 133, 156, 176.

Kercher also testified, “I don’t ever remember David specifically treating me in a sassy, mean, horrible way…I mean, he was always nice to me.” [Lee Opp. Decl., Exh. 14 (Kercher PMK Depo at 32:9-13)]. Bryan testified that Plaintiff did not insult him at the meeting. [Lee Opp. Decl., Exh. 3 (Bryan Depo at 110:11-13)]. Abraham testified that Plaintiff called her a “fat doctor” but Kercher testified “I don’t recall that comment any time”. [Lee Opp. Decl., Exh. 14 (Kercher PMK Depo at 92:24-93:1)].

17

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Meeting on February 22, 2006

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167. Jadwin insulted, literally, everyone at the meeting face-to-face.

Bryan Depo., 8/14/08, pgs. 109: 12-111:10

For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

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Bryan Depo., 8/14/08, pgs. 156:22157:12

See evidentiary objections.

169. Jadwin made attacking statements and charges at attendees of 2/22/06 meeting.

Harris Depo., 8/13/08, pg. 159:213

See evidentiary objections.

170. Jadwin insulted Dr. Ragland severely at the 2/22/06 meeting.

Harris Depo., 8113/08, pg. 196:720

See evidentiary objections.

171. Jadwin insulted all of the doctors at the meeting, including Dr. Harris.

Harris Depo., 8/13/08 pgs. 230:4232: 13

See evidentiary objections.

172. Harris refused to characterize Jadwin’s behavior as crazy but he did offer “excessive” as a description and agreed with Eugene Lee’s adjectives of “unprofessional” and “unreasonable.” Harris said it was the most unprofessional, unreasonable, excessive behavior he has ever seen in a physician.

Harris Depo., 8113/08, pgs. 234:24235: 23 and 305:20308: 22

See evidentiary objections.

173. The first incident of Jadwin’s inappropriate conduct was when Jadwin, during this meeting, said Dr. Ragland was incompetent and shouldn’t be the medical staff president.

Ragland Depo., 8/22/08, pg. 16:1216

See evidentiary objections.

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168. Bryan thanked Dr. Ragland for showing restraint in the face of Jadwin’s insults.

3 4

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For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

For sake of economy, see Plaintiff’s Responses to DMF 166 supra. For sake of economy, see Plaintiff’s Responses to DMF 176 supra. Harris’s pretext is belied by his memos to file regarding Mansour and the many formal and informal complaints submitted against him. To date, Mansour was not subjected to administrative leave or nonrenewal as Plaintiff was.

For sake of economy, see Plaintiff’s Responses to DMF 166 supra.

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174. E-mail from Dr. 0000507 Ragland to Peter Bryan, dated 2/23/06, stating that the meeting with Jadwin on 2/22/06 was “one of the most distasteful events I have ever participated in.”

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Disputed: Defendants are quoting out of context. In that email exchange, Ragland specifically expressed his disdain for Plaintiff’s whistleblowing efforts: “that was one of the most distasteful event I have ever participated in [Plaintiff] has fixed his department so now he is going to fix us?” [Lee Decl., Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507)]. Bryan made no bones about indicating that his allegiance lay with Ragland, Harris, Abraham and Kercher: “I know it was really challenging to remain cordial and not combative [with Plaintiff], and goodness a couple of you could have really hit back”, even as he portrayed himself as an impartial adjudicator to Plaintiff. [Ibid.].

5 6 7 8 9 10 11 12 13 14 15 16

Demotion to Staff Pathologist 175. Pathology Dept. Proctoring Report on Dr. Dutt, dated 1/l8/06, and completed by Jadwin who said that Dr. Dutt’s performance is “responsible and excellent.”

0000903 913

See evidentiary objections. Disputed: Plaintiff issued this proctoring report just a few months after Dutt’s hire. Plaintiff was able to form a fuller, and very different, opinion of Dutt’s performance as a pathologist after further opportunity to work closely with him. Plaintiff formed the opinion over time that Dutt was a weak pathologist. [Jadwin Opp. Decl., para. 9].

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176. Exchange of e-mails between Dr. Dutt and Jadwin, dated 11/6/06, regarding a container of specimen left sitting out. To remedy the situation, Dr. Dutt instructed that only Evangeline “Vangie” Gallegos was to process the placentas.

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DFJ01430

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Disputed: For sake of economy, Plaintiff’s Response to DMF 112 is incorporated in its entirety herein. Disputed: This is pretext for retaliatory motive and disparate treatment of Plaintiff. Dr. Mansour, an OBGYN core physician, is a direct comparator to Plaintiff after his demotion – both reported to respective department chairs at KMC. Mansour was the subject of a staggering number of serious complaints of disruptive behavior from 5/10/2006 to 4/12/2007. Yet, he was not put on administrative leave or subjected to nonrenewal. Harris reported in numerous memos to file that: 1) Mansour had used an “angry and raised voice” at him. [Lee Opp. Decl., Exh. 34 (Harris memos to file, Exh. 736 at Bates 0027083)]; 2) Roy went to Harris to “complain about abuses by Dr. Mansour” including “ridicule and criticism” and threatened to leave KMC [Id. at Exh. 740 at Bates 0027094]; 3) Harris concluded “the comments made by Dr. Mansour [about Roy] were unprofessional, inappropriate, and of malicious intent.” [Id. at Exh. 740 at Bates 0027094]; 4) Harris counseled Mansour “on the spot” regarding his inappropriate criticism of nursing staff in front of residents - [Id. at Exh. 742 at Bates 0027097]; 5) Harris noted that Mansour’s actions were so egregious to the “NRP Team” and medical staff officers that Ragland and Jose Perez contemplated suspending him, “if for no other reason than for ‘possible assault’ on the respiratory therapist.” [Id. at Exh. 746 at Bates 0027102]; 6) Harris noted that he remained skeptical of Mansour’s ability to “communicate constructively and to engender the support of others with whom he works”. [Id. at Exh. 746 at Bates 0027103]; 7) Harris faulted Mansour’s “communication style” as not contributing to a “communicative, helpful, collegial, and effective environment at the hospital”. [Id. at Exh. 746 at Bates 0027104]; 8) Harris noted that only once or twice had his blood pressure “gotten up” at KMC but that Mansour had become “truly exasperating” and that Mansour “can never be legitimately criticized, because anyone who would criticize him would have to be out to get him”. [Id. at Exh. 746 at Bates 0027104]; 9) Harris noted that he and Culberson presented to Mansour five complaints of quality concerns and one patient complaint. [Id. at Exh. 747 at Bates 0027105]; 10) Mansour responded that “all of this is a remnant of Peter Bryan. It was Mansour who got rid of Peter Bryan”. [Id. at Exh. 747 at Bates 0027106]; 11) Harris noted a complaint that Mansour had improperly thrown surgical instruments. [Id. at Exh. 749 at Bates 0027109]. Disputed: Plaintiff disputes this hearsay account reported by Dutt. [Jadwin Opp. Decl., para. 10]. See evidentiary objections.

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7 8

See evidentiary objections.

9

Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 11].

2 3 4 5

0000824

Filed 12/01/2008

Disputed: Dutt himself was the target of complaints within the Pathology department. Yet he was not subjected to disciplinary action. As late as 2/6/07, Harris noted in his memos to file that Dutt himself had not “embraced the broad support of the pathology department and lab” and has been the target of complaints from other medical staff members in the pathology department. Harris decided Dutt should not be promoted from Acting to full Chair of Pathology until he could demonstrate “those administrative demeanors desired of a Chair under conditions of lower environmental stress.” [Lee Opp. Decl., Exh. 34 (Harris memos to file, Exh. 745 at Bates 0027100-27101].

1

177. E-mail from Evangeline “Vangie” Gallegos to Dr. Dutt, dated 11/6/06, thanking him for his support and complaining about Jadwin interfering in her work area and “creating more work for everybody.” She asked if she could go home early as she was feeling sick.

Document 282

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

178. Exchange of e-mails between Dr. Dutt and Jadwin, dated 11/13/06 and 11/14/06, wherein Jadwin requested that he have an assigned assistant and that the assigned assistant be required to notify him when leaving the lab for more than 5 minutes. Dr. Dutt’s response was to deny the need for an assistant as the department had three pathologists and to remark how “demeaning and time consuming” it would be to constantly clock in and out.

DFJ01439 (0000840 841)

179. E-mail from Dr. Dutt to Jadwin, dated 11/17/06, expressing frustration with Jadwin’s reaction to counseling which is to escalate the situation, blame others, or attack others. Dr. Dutt also promised to find the records where Jadwin did not submit a “rush” case or most of his other cases that day. He also asserted that Jadwin had done this before.

DFJ01446 -01447 (0000843)

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes it would be demeaning and time consuming to have an employee clock in and out. It occurs in workplaces all across the country every day. [Jadwin Opp. Decl., para. 12].

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 13].

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180. E-mail from Dr. Dutt to Jadwin, dated 11/22/06, discussing their disagreement on the necessity for privileges for FNA and the necessity for proctoring.

DFJ01448 (0000850)

6

181. E-mail from Dr. Dutt to Jadwin, dated 11/22/06, reminding him of a rush case that Jadwin failed to process promptly and counseling Jadwin to remember it when criticizing others.

DFJ01449 (000085])

7 8 9 10

182. E-mail from Dr. Dutt to Jadwin, dated 12/4/06, chastising Jadwin for criticizing Dr. Shertukde’s diagnosis without consulting others first; chastising him for refusing to get outside consult on a hard case; and chastising him for failing to remove the sharps from the cutting area when he was done.

0000827

11 12 13 14 15 16 17

a) Minutes of the meeting of the pathology/histology department on 10/17/06. It was noted that Dr. Shertukde was concerned that blades were not being removed once grossing was done. She and Dr. Dutt remove and discard the blades immediately.

0000899

18 19 20 21 22

b) E-mail from Dr. Dutt to Yolanda Figueroa, dated 12/7/06, acknowledging her report that Jadwin had left two long blades and a scalpel out after he was finished.

0000862

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For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 14].

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For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 15]. For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 16].

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 16]. For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. Disputed: Figueroa disputes this hearsay account reported by Dutt. [Jadwin Opp. Decl., para. 6]. See evidentiary objections.

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183. E-mail from Dr. Dutt to Jadwin, dated 12/5/06, regarding Jadwin’s uncooperativeness with him and general failure to adhere to a chain of command.

DFJ01465 (0000856)

6

184. E-mails between Dr. Dutt and Jadwin, dated 12/6/06, arguing over a criticism Jadwin made of a diagnosis that Dr. Shertukde did and involving alleged defamatory and retaliatory statements made by Jadwin. Dr. Dutt tells Jadwin that people are afraid of him because of his hostility and that it is Jadwin’s fault for how he treats others.

DFJ01476 -1478 (0000857858)

7 8 9 10 11 12 13

185. E-mail from Dr. Dutt to David Culberson, dated 12/6/06, stating that he had counseled Jadwin for not sending out a case for consultation that, in fact, turned out to be a missed endometrial cancer and now Jadwin was pushing a lot of cases out for consultation, burdening the staffs time and budget.

0001466

14 15 16 17 18 19

186. E-mail from Dr. Dutt to Jadwin, dated 12/7/06, chastising him for commanding Yolanda to treat the placentas when in his e-mail of 11/6/06 (0000825 above) specifically said that only Vangie was to work with placentas.

0000863

20 21 22 23 24

187. Jadwin was uncooperative after returning from leave. He was asked specifically to resume doing the blood bank reviews and he did not do them.

Dutt Depo., 8/20/08, pg. 284:25285:5

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For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 17].

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For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 18].

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 19].

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. Disputed: Figueroa disputes this hearsay account reported by Dutt. [Jadwin Opp. Decl., para. 20]. See evidentiary objections. For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein. See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 21].

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188. Dr. Dutt, acting Chair of the Pathology Department had concerns that Jadwin was creating a hostile work environment. This prompted meetings with Dr. Perez, David Culberson, and Dr. Harris.

Dutt Depo., 8/20/08, pgs. 286:6289: 1; 290:14-20

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein.

189. Dr. Dutt would try to counsel Jadwin one-on-one but Jadwin would avoid the conversation. He would make an excuse to leave the room or leave the hospital. Because Jadwin made it difficult for Dr. Dutt to talk to him, Dr. Dutt had no alternative but to send his concerns about Jadwin’s work to the Peer Review Committee.

Dutt Depo., 8/20/08, pgs.296:2 0-297:13

For sake of economy, see Plaintiff’s Responses to DMF 176 and 177 supra, which are incorporated in their entirety herein.

190. E-mail to Dr. Dutt from Jadwin, dated 12/6/06, with copies to David Culberson, Dr. Harris and Karen Barnes, alleging that he has been “singled out for nontransparent ‘PCC r review’” as well as personal attacks, and he requests the KMC administration to initiate a formal review.

DFJ01479 -1480

See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 22].

See evidentiary objections. Disputed: Plaintiff disputes this account by Dutt. [Jadwin Opp. Decl., para. 23].

Undisputed.

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Π’S MATERIAL FACTS (“PMF”)

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2

3

3 A. INTRODUCTION

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4

5

5 Plaintiff is the former Chief of Pathology at Kern Medical Center (“KMC” or “the hospital”), an acute care teaching hospital and health care facility that is owned and operated by Defendant County of Kern (“Defendant County” or “the County”).

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Π’S SOURCE

Supplemental Decl. of Eugene Lee in Support of Plaintiff’s Motion for Summary Judgment (“Lee Supp. Decl.”, Doc. 267), Exh. 19 (Scheduling Order (“SCO”) at 8:2-4); Exh. 20 (RFA No. 18 at 5:7-10, RFA No. 19 at 13-15; RFA No. 24 at 6:7-10).

10 11 12 13

6

14

7 B. STATEMENT OF FACTS 8 In October 2000, Dr. Jadwin began full-time employment at KMC as chair of the pathology department. Plaintiff was an employee of Defendant County from October 24, 2000 to October 4, 2007.

15 16 17 18 19 20 21 22 23 24

Lee Supp. Decl. (Doc. 267), Exh. 19 (Scheduling Order (“SCO”) at 8:2-4), Decl. of Eugene Lee in Support of Plaintiff’s Motion for Summary Judgment (“Lee Decl.”, Doc. 266) Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (a) on DFJ1416)

9 Throughout the course of his employment at KMC, Dr. Jadwin tried to ensure that patient care was based on adequate and accurate pathology.

Lee Supp. Decl. (Doc. 267), Exh. 10 (Bryan’s Letter to Supervisors of 1/17/06 at No. 10 on 0001567)

10 In May 2005, Dr. Jadwin began formally expressing his concerns that KMC was not complying with state regulations regarding blood transfusion documentation.

Decl. of David F. Jadwin in Support of Plaintiff’s Motion for Summary Judgment (“Jadwin Decl.” Doc. 265), Exh. 2 (Jadwin Email to RamosAninion of 5/19/05 at DFJ00407)

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11 In October 2005, Dr. Jadwin presented at an intra-hospital conference where he reported on uncaught pathology report errors that potentially jeopardized the care of a hysterectomy patient and the need for a policy to address the problem.

Jadwin Decl. (Doc. 265), Exh. 2 (Presentation at DFJ481-484, 494-495)

12 Defendants responded by calling him into a meeting, severely reprimanding him, and informing him that letters of reprimand would be placed in his physician credentials file.

Lee Decl. (Doc. 266), Exh. 4 (Taylor Letter to Harris of 10/12/05 at DFJ00580); Exh. 5 (McBride Letter to Harris of 10/12/055 at DFJ00581); Exh. 6 (Roy Letter to Harris of 10/12/05 at DFJ00583); Exh. 7 (Kercher et al Letter to Jadwin of 10/17/05 at DFJ00588))

13 Defendants’ retaliatory conduct exacerbated Dr. Jadwin’s chronic depression and proved so disabling that, at the end of 2005, he was forced to take a reduced work schedule medical leave as an accommodation and seek psychiatric therapy.

Lee Decl. (Doc. 266) Exh. 9 (Jadwin’s Letter to Bryan of 1/9/06 at 0001140); Decl. of Paul Riskin, M.D. Authenticating Documents (“Riskin Decl.”, Doc. 270) (Certification of 1/13/06 at DFJ1810); Lee Supp. Decl. (Doc. 267), Exh. 8 (Jadwin Depo. at 495:2-496:20)

14 In April 2006, Dr. Jadwin requested an extension of his reduced work schedule leave.

Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157), Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752)

15 On April 28, 2006, Defendant Bryan responded by placing him on full-time “personal necessity leave” under the County’s leave policy and, a few months later, ordered him not to contact anybody at KMC or he would be fired (“Forced FT Leave”).

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 36, 27:1-4); Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ01152, DFJ011551159, DFJ01164); Lee Decl. (Doc. 266), Exh. 16 (Nunn’s Cover Email to Jadwin of 6/26/06 at DFJ01346)

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16 On June 14, 2006, Defendant Bryan told Dr. Jadwin that he had decided to “rescind your appointment as chairman” and that “This decision is effective June 17, 2006”.

Lee Decl. (Doc. 266), Exh. 15 (Bryan’s Letter to Jadwin of 6/14/06 at DFJ01181)

17 On July 10, 2006, Defendant Bryan recommended to KMC’s Joint Conference Committee (“JCC”) that Plaintiff be removed from his position as Chair of the pathology department “based on Dr. Jadwin’s unavailability for service because of extended medical leaves for non-work related ailments” and “solely based on his continued nonavailability to provide the leadership necessary for a contributing member of the medical staff leadership group..Dr. Jadwin has provided no indication that he is committed to return to work or resume his duties as chair. Other than his latest written communication requesting an extension of his medical leave, Dr. Jadwin has made no attempt in the last two months to contact me concerning his employment status or how the Department of Pathology should be managed during his absence”.

Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001476-77); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 37 at 51:20-23); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 37, 27:9-11)

18 At a meeting of the JCC on July 10, 2006, Defendant County approved the demotion of Plaintiff from chair of the pathology department for “unavailability”. Members of the JCC based their vote on his unavailability due in part to his medical leave.

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:15114:4); Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/10/06 at 0009819-21); Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001476-77)

19 Defendant County then conditioned Dr. Jadwin’s return to work as a regular pathologist on his medical release to full time work and entry into an amendment to his contract that contained restrictive terms and conditions and reduced Dr. Jadwin’s base pay from roughly $300,000 to $200,000.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog1 No. 33 at 50:16-26; Rog1 Nos. 38-41 at 51:26-52:23); Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (a) & (f) on DFJ1416, (i) on DFJ1417, & DFJ1420 at “Assignments”)

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20 When demoting Dr. Jadwin, Defendants Bryan and the County did not notify Dr. Jadwin of the hospital committee vote to demote him or give him a chance to defend himself prior to, at or after the vote.

Jadwin Decl. (Doc. 265), para 9)

21 On his return to work as a demoted pathologist in late 2006, Dr. Jadwin was placed beneath a former subordinate whom he had hired and trained the year before.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 9:10-11); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 10, 4:10-11)

22 After about two months, Dr. Jadwin decided to go outside the hospital and report his ongoing suspicions of legal noncompliance and illegal and/or unsafe care and conditions of patients at KMC to regulatory and accreditation agencies, as well as KMC senior management.

Jadwin Decl. (Doc. 265), Exh. 8 (JCAHO’s Email to Jadwin of 11/29/06 at DFJ01454); Exh. 9 (DHS Letter to Jadwin of 12/1/06); Exh. 12 (Jadwin Decl. (Doc. 265), Exh. 12 (Jadwin’s Email to CAP of 1/15/07 at DFJ02463-DFJ02499)

23 Plaintiff also complained to KMC’s senior management about the harsh treatment he was receiving.

Jadwin Decl. (Doc. 265), Exh. 11 (Jadwin Email to Culberson of 12/13/06 at DFJ01488-DFJ1491)

24 The following day, on December 7, 2006, Defendant County placed Dr. Jadwin on administrative leave “pending resolution of a personnel matter.”

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog1 No. 42 at 52:24-53:1); Lee Decl. (Doc. 266), Exh. 24 (Culberson Letter to Jadwin of 12/7/06 at DFJ01482)

25 The leave denied Plaintiff the opportunity to earn patientbased professional fees, which had amounted to roughly $100,000 per year (“Professional Fees”) prior to his taking of reduced work schedule leave.

Decl. of Stephanie Rizzardi in Support of Plaintiff’s Motion for Summary Judgment (“Rizzardi Decl.”, Doc. 271), Exh. 1, Table 7; Jadwin Decl. para 14

26 Dr. Jadwin formally notified KMC of his whistle-blowing reports to the outside regulatory and accreditation agencies.

Jadwin Decl. (Doc. 265), Exh. 10 (Jadwin Letter to Culberson of 12/6/06 at DFJ01488-91)

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27 Dr. Jadwin remained on administrative leave for another ten Lee Decl. (Doc. 266), Exh. 22 months until his contract expired on October 4, 2007. (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (a) on DFJ1416); Jadwin Decl. para 12 28 During six of those months, Dr. Jadwin was physically restricted to his home during work hours.

Lee Supp. Decl. (Doc. 267), Exh. 5 (Wasser Letter to Lee of 4/30/07 at DFJ01701)

29 The county decided not to renew Dr. Jadwin’s contract, which expired on October 4, 2007.

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:15114:4);Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at Recital (a))

30 From October 2000 to the present, KMC – a hospital with roughly 60 full-time faculty physicians – had failed to renew the contract of only 1 other KMC physician.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 28, 20:8-21)

31 Plaintiff’s position had been that of a permanent, core physician, whose contracts are customarily renewed.

Lee Supp. Decl. (Doc. 267), Exh. 10 (Bryan Depo, 39:6-8); Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract, p.1); Jadwin Decl. para 7

32 Defendant County based its nonrenewal decision on Dr. Jadwin’s medical and recuperative leave, and the fact he had brought a lawsuit opposing employment practices prohibited by the Family & Medical Leave Act (“FMLA”), the California Family Rights Act (“CFRA”), and the Fair Employment & Housing Act (“FEHA”).

Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001476-77)

33 To this day, Dr. Jadwin has not personally received an explanation from Defendants as to why he was placed on administrative leave or why his contract was not renewed, despite repeated requests for an explanation. Defendants never notified Dr. Jadwin of the charges against him or permitted him to defend himself.

Jadwin Decl. (Doc. 265), para 13

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1

35 B. THRESHOLD ISSUES

2

Lee Supp. Decl. (Doc. 267), Exh. 36 During the entire tenure of Plaintiff’s employment, Defendant County was continuously an employer within the 19 (SCO at 6:25-7:3) meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Gov’t C. § 12945.2 (b)(2)], and FEHA [Gov’t C. § 12926(d)] engaged in interstate commerce, and regularly employing more than fifty employees within seventy-five miles of Plaintiff’s regular workplace at KMC.

3 4 5 6 7 8 9

37 Defendant County is a government agency.

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 20, 5:16-19)

10 11 12 13 14 15

38 39 1. Threats to Plaintiff’s Credentials 40 On October 12, 2005, Defendant Harris solicited and received letters of dissatisfaction from three KMC core physicians, criticizing Dr. Jadwin’s presentation at a KMC monthly Oncology Conference.

Lee Decl. (Doc. 266), Exh. 4 (Taylor Letter to Harris of 10/12/05 at DFJ00580); Exh. 5 (McBride Letter to Harris of 10/12/055 at DFJ00581); Exh. 6 (Roy Letter to Harris of 10/12/05 at DFJ00583); Exh. 7 (Kercher et al Letter to Jadwin of 10/17/05 at DFJ00588))

41 On October 17, 2005, KMC’s senior medical staff wrote to Dr. Jadwin notifying him that these letters of dissatisfaction would be placed in his credentialing file (“Credential Threat”).

Lee Decl. (Doc. 266), Exh. 7 (Kercher et al Letter to Jadwin of 10/17/05 at DFJ00588)

42 Some of the medical staff involved later apologized to Dr. Jadwin.

Lee Decl. (Doc. 266), Exh. 12 (Bryan Letter to Jadwin of 4/17/06 at DFJ00794

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

43 44 2. Demotion & Pay Cut

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Lee Supp. Decl. (Doc. 267), Exh. 45 Dr. Jadwin’s employment contract expressly provided that Dr. Jadwin would be chair of the KMC pathology 20 (RFA No. 243 at 49:22-27) department and paid base compensation of $287,529 (“Base Pay”).

3 4 5

46 On July 10, 2006, Bryan recommended and the JCC approved Jadwin’s demotion from department chair to staff pathologist (“Demotion”).

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 229 at 47:4-9); Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 228 at 46:27-47:1)

47 It is uncontested that Defendants considered a portion of Dr. Jadwin’s pay to be tied to his chair position, and that the demotion therefore made the paycut a foregone conclusion. The JCC vote to demote Plaintiff was effectively a vote to reduce his Base Pay as well.

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 228 at 58:6-10); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 13:10-21); Lee Supp. Decl. (Doc. 267), Exh. 3 (Barnes Letter to Lee of 9/15/06 at DFJ1390); Lee Decl. (Doc. 266), Exh. 22 (Amendment No. 1 to Employment Contract dated 10/3/06 at (a) & (f) on DFJ01416, (i) on DFJ01417)

48 Defendants County and Harris informed Dr. Jadwin that his return to work at KMC was conditioned on his entry into an amendment to his employment contract, instituting a reduction in Base Pay from $287,529 to $186,687 (“Paycut”).

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 246 at 50:12-16)

49 On October 3, 2006, Plaintiff executed the amendment to his employment contract.

Lee Decl. (Doc. 266), Exh. 22 (Amendment No. 1 to Employment Contract dated 10/3/06 at DFJ01418)

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

50

24

51 3. Administrative Leave

25

52 A pathologist is valued according to the efficacy of his “eye”, i.e., the training and experience that allows him to spot minute patterns and telltale abnormalities in microscopic and gross tissue samples.

26 27

Decl. of Regina Levison in Support of Plaintiff’s Motion for Summary Judgment (“Levison Decl.”, Doc. 268) Exh. 1 At p 6

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53 Developing and maintaining the pathologist “eye” requires years of daily pathology work; however, it takes only a few months of being away from work to lose enough efficacy to threaten a pathologist’s career.

Levison Decl. (Doc. 268), Exh. 1 At p 6

54 Moreover, Dr. Jadwin’s contract expressly provided that he was to earn patient billing-based professional fees, separate and apart from his fixed Base Pay.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract of 11/12/02 at No. 4 on DFJ00156157)

55 In order to earn Professional Fees, Dr. Jadwin needed to process and bill patient cases.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract of 11/12/02 at No. 4 on DFJ00156157 (“direct patient care”…through “an agreement for services with the County”); Jadwin Decl. para 14

56 Restriction to his workplace at KMC by placement on leave denied him the opportunity to earn such fees.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract of 11/12/02 at No. 4 on DFJ00156157 (“direct patient care”…through “an agreement for services with the County”)

57 Dr. Jadwin’s professional fee income amounted to approximately $100,000 per year.

Rizzardi Decl. (Doc. 271), Exh. 1, Table 7; Jadwin Decl. para 14

58 On December 7, 2006, Defendant County placed Plaintiff on paid administrative leave “pending resolution of a personnel matter” (“Admin Leave”).

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 252 at 51:16-20); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 42, 28:3-9); Lee Decl. (Doc. 266), Exh. 24 (Culberson Letter to Jadwin of 12/7/06 at DFJ01482)

59 Defendant County further ordered Plaintiff to “remain at home and available by telephone during normal business hours” and not to contact anyone at KMC, else he could be terminated. There was no further indication of what Plaintiff was being charged with, whether he would be permitted to respond to charges, or when the leave would end.

Lee Decl. (Doc. 266), Exh. 24 (Culberson Letter to Jadwin of 12/7/06 at DFJ01482)

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60 No investigation, explanation or resolution ensued.

Jadwin Decl. (Doc. 265), para 6

61 On April 4, 2007, Plaintiff notified Defendant County that the long leave was exacerbating his depression, eroding his pathology skills and employability, and denying him the opportunity to earn professional fees.

Lee Supp. Decl. (Doc. 267), Exh. 4 (Lee Letter to Barnes of 4/4/07 at DFJ01619)

62 On April 30, 2007, Defendant County informed Dr. Jadwin that he remained on administrative leave but removed the home restriction.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 43, 28:10-16); Lee Supp. Decl. (Doc. 267), Exh. 5 (Wasser Letter to Lee of 4/30/07 at DFJ01701)

63 On May 1, 2007, Defendant County informed Dr. Jadwin that they intended to keep Dr. Jadwin on leave and “let his contract run out”.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 43 at 53:3-9); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 44, 28:17-22); Lee Supp. Decl. (Doc. 267), Exh. 6 (Wasser Email to Lee of 5/1/07 at DFJ01705)

64 Dr. Jadwin remained on administrative leave until his employment contract expired on October, 4, 2007.

Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (a) on DFJ01416, (i) on DFJ01417; Jadwin Decl. (Doc. 265), para. 12

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65

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66 4. Nonrenewal

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67 Supervisor Ray Watson, then-Chair of the Board of Supervisors, voted as a member of the JCC to demote Dr. Jadwin and effectively cut his pay, and also participated in the decision not to renew Plaintiff’s employment contract

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Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:15114:4)

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68 Ray Watson, Chair of the Board Supervisors at the time of the Nonrenewal, testified in Depo.: “My understanding was that [Plaintiff] had -- he had been on medical leave, family leave, and had requested even more leave, and that for that reason and the fact that he was suing us, that we decided not to renew his contract.” (“Nonrenewal”).

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:15114:4)

69 Moreover, Dr. Jadwin was a “core physician” at KMC, a permanent position.

Lee Supp. Decl. (Doc. 267), Exh. 10 (Bryan Depo, 39:6-8); Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract, p.1); Jadwin Decl. para 7

70 There was a mutually explicit understanding that, as a core physician, Plaintiff’s contract would be continuously renewed.

Lee Supp. Decl. (Doc. 267), Exh. 10 (Bryan Depo, 39:6-8); Jadwin Decl. para 7; Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 28, 20:8-21)

71 In fact, from October 2000 to present, only one other physician besides Dr. Jadwin has not had his contract renewed.

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 275 at 55:22-26)

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72

18

73 D. CAUSATION

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74 Credential Threat was a substantial cause of Dr. Jadwin’s emotional distress leading to recurrence of his chronic major depressive disorder.

Decl. of Anthony Reading, Ph.D. (“Reading Decl.”, Doc. 269) Exh. 1, p. 58 - 59 at Overall Conclusions

75 Credential Threat was a substantial cause of Dr. Jadwin’s reduced work schedule medical/recuperative leave and loss of opportunity to earn Professional Fees from December 16, 2005 to on or around April 28, 2006.

Reading Decl. (Doc. 269), Exh. 1, p. 58 - 59 at Overall Conclusions; Supplemental Decl. of David F. Jadwin in Support of Plaintiff’s Motion for Summary Judgment (“Jadwin Supp. Decl.” Doc. 272) 5, 6

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76 Forced FT Leave was a substantial cause of Dr. Jadwin’s emotional distress, leading to worsening of Dr. Jadwin’s major depression.

Reading Decl. (Doc. 269), Exh. 1, p. 59-60 at Overall Conclusions; Jadwin Supp. Decl. 6

77 Forced FT Leave was a substantial cause of Plaintiff’s loss of opportunity to earn Professional Fees as provided for in his employment contract from on or around April 28, 2006 to June 17, 2006.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract, at DFJ00154, 156); Jadwin Supp. Decl. 6

78 Demotion and Paycut were substantial causes of Dr. Jadwin’s emotional distress, leading to worsening of Dr. Jadwin’s major depression.

Reading Decl. (Doc. 269), Exh. 1, p. 58 - 59 at Overall Conclusions

79 Demotion and Paycut were substantial causes of Base Pay reduction from $287,529 to $186,687 from October 3, 2006 onward.

Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Lee Decl. (Doc. 266)); Exh. 2 (Jadwin Employment Contract of 11/12/02 at (i) on DFJ1417)

80 Demotion and Paycut were substantial causes of termination of Plaintiff’s career as a pathology department chair due to unemployability.

Levison Decl. (Doc. 268), Exh. 1 At p 6

81 Admin Leave, during 5 months of which Plaintiff was restricted full-time to his home, was a substantial cause of Dr. Jadwin’s emotional distress, leading to worsening of Dr. Jadwin’s major depression.

Reading Decl. (Doc. 269), Exh. 1, p. 59-60 at Overall Conclusions

82 Admin Leave was a substantial cause of Plaintiff’s loss of opportunity to earn Professional Fees as provided for in his employment contract from on or around December 7, 2006 to October 4, 2007

Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (i) on DFJ1417); Jadwin Decl. (Doc. 265), para 14

83 Admin Leave was a substantial cause of loss of Plaintiff’s pathologist “eye”, causing him to become unemployable as a pathologist.

Levison Decl. (Doc. 268), Exh. 1 At p 6

84 Nonrenewal was a substantial cause of Dr. Jadwin’s emotional distress, leading to worsening of Dr. Jadwin’s major depression.

Reading Decl. (Doc. 269), Exh. 1, p. 59-60 at Overall Conclusions

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85 Nonrenewal was a substantial cause of Plaintiff’s lost Base Pay of $186,687 and Professional Fees of roughly $100,000 per year, as provided for in his employment contract, from on or around October 4, 2007 onward.

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Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract of 11/12/02 at No. 4 on DFJ00156157); Lee Decl. (Doc. 266), Exh. 22 (Amendment 1 to Jadwin Employment Contract of 11/12/02 at (i) on DFJ1417)

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86

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87 E. COUNTS 2&3: DEFENDANT COUNTY’S WHISTLEBLOWER RETALIATION

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88 1. Oncology Conference 89 Dr. Jadwin made a protected report to KMC’s medical staff leadership about (a) the medical appropriateness of a radical hysterectomy for a KMC patient (Patient No. 1142693) based on inaccurate outside pathology reports – which case was the subject of Plaintiff’s presentation at the monthly KMC oncology conference held on October 12, 2005 (“October Conference”) – and (b) the unsafe conditions created for other patients by the lack of a KMC policy requiring internal pathology review of all outside pathology reports prior to treatment (“IPR”).

Jadwin Decl. (Doc. 265), Exh. 2 (Presentation at DFJ481-484, 494-495)

90 Defendant County knew of Dr. Jadwin’s whistleblowing report at the October Conference since Defendant Harris, then-CMO of KMC, and Jennifer Abraham, thenImmediate Past President, were in attendance.

Lee Decl. (Doc. 266), Exh. 7 (Kercher et al Letter to Jadwin of 10/17/05 at DFJ00588)

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91 Each of the letters of reprimand which Defendant County decided to place into Plaintiff’s medical credential file specifically reference Dr. Jadwin’s presentation at the October Conference.

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Lee Decl. (Doc. 266), Exh. 4 (Taylor Letter to Harris of 10/12/05 at DFJ00580); Exh. 5 (McBride Letter to Harris of 10/12/055 at DFJ00581); Exh. 6 (Roy Letter to Harris of 10/12/05 at DFJ00583); Exh. 7 (Kercher et al Letter to Jadwin of 10/17/05 at DFJ00588)

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92 93 2. PCCs 94 On January 9, 2006, Dr. Jadwin made a protected report to Bryan regarding KMC’s noncompliance with state regulations regarding blood transfusion related documentation called product chart copies (“PCCs”), jeopardizing patient safety.

Lee Decl. (Doc. 266), Exh. 9 (Jadwin’s Letter to Bryan of 1/9/06 at 0001141)

95 Improper documentation of blood transfusions creates patient risk of morbidity and mortality.

Jadwin Supp. Decl. (Doc. 272), para 3

96 Dr. Jadwin reasonably suspected that KMC’s ongoing failure to maintain accurate and complete records of patient blood transfusions did not comply with H&S § 1602.5, which requires PCC documentation to conform to AABB accreditation standards.

Jadwin Decl. (Doc. 265), Exh. 12 (Jadwin’s Email to CAP of 1/15/07 at DFJ02499); Jadwin Decl. (Doc. 265), Exh. 13 (DHS’s Fax to Jadwin of 8/11/08 at E264 on pages 2-4 (finding almost 50% noncompliance at KMC)); Jadwin Supp. Decl. (Doc. 272), Exh. 1 at DFJ793

97 During his reduced work schedule medical leave, Dr. Jadwin audited PCCs, and continued to report noncompliant incomplete or missing PCCs to Defendant Bryan, Toni Smith, KMC Nurse Executive, and Risk Management and Quality Assurance through at least April 17, 2006, when Plaintiff asked Defendant Bryan to set up a meeting with Bernard Barmann, County Counsel, to discuss his concerns regarding PCC noncompliance.

Jadwin Decl. (Doc. 265), Exh. 12 (Jadwin’s Email to CAP of 1/15/07 at both DFJ02463DFJ02499); pages in between show Dr. Jadwin’s audits of PCCs & his efforts to correct noncompliance internally); Jadwin Supp. Decl. (Doc. 272), Exh. 1 at DFJ793 (subject line states “Compliance with Regulations”)

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98 The California Department of Health Services later determined during the course of an inspection that KMC was indeed failing to comply with PCC-related regulations.

Jadwin Decl. (Doc. 265), Exh. 13 (DHS’s Fax to Jadwin of 8/11/08 at E264 on pages 2-4 (finding almost 50% noncompliance))

99 On April 17, 2006, Defendant Bryan threatened to demote Plaintiff.

Lee Decl. (Doc. 266), Exh. 12 (Bryan Letter to Jadwin of 4/17/06 at DFJ00795)

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100 101 3. Skull Flaps 102 Dr. Jadwin reasonably believed that storage of patient skull caps occurring in an unlicensed laboratory freezer at KMC violated H&S § 1635.1.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo at 14:2-22); Lee Supp. Decl. (Doc. 267), Exh. 12 (Dutt Depo at 244:6-9)

103 Unlicensed skull flap storage could give rise to a risk of patient morbidity or mortality.

Jadwin Decl. (Doc. 265), at para 15

104 Gilbert Martinez, the Manager of Laboratory Services at KMC (“Martinez”) confirmed that there were typically seven to nine skull flaps being stored in the lunlicensed aboratory freezer.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo At 10:2-7, 16:6-21)

105 At times, upwards of 15 to 20 skull flaps were being stored in KMC’s unlicensed freezer.

Lee Supp. Decl. (Doc. 267), Exh. 12 (Dutt Depo at 244:6-9)

106 Martinez shared Plaintiff’s concerns about unlicensed skull flap storage in the laboratory freezer.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo 14:2-12)

107 When Dr. Jadwin discovered skull flaps being illegally stored in the laboratory freezer, he discussed the problem with Gilbert Martinez, the Manager of Laboratory Services at KMC (“Martinez”).

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo 14:2-22)

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108 Around Thanksgiving 2006, Dr. Jadwin tipped Martinez off that he intended to blow the whistle about his unresolved complaints about unsafe patient care and conditions, including unlicensed skull flap storage, and that inspections of KMC by regulatory and accreditation agencies was likely.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo at 111:12112:4)

109 Within a few days, Martinez relayed this information to his supervisor, David Hill, the Director of Ambulatory Care; who in turn relayed it to a pathologist, Philip Dutt, and/or Defendant Harris.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo at 113:8114:23)

110 Beginning November 28, 2006, Dr. Jadwin formally reported his suspicions of illegal and/or unsafe care and conditions of patients at KMC – including unlicensed skull flap storage, noncompliant PCCs, and an inappropriate radical prostatectomy (see below) – to the Joint Commission on Accreditation of Hospital Organizations (“JCAHO”), the College of American Pathologists (“CAP”), and the California Department of Health Services (“DHS”). (“Outside WB Reports”).

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 35 at 8:10-14); Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 21 at 5:22-24 (DHS)); Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 22 at 5:25-6:2 (JCAHO); Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 23 at 6:3-6 (CAP))

111 On January 4, 2007, Dr. Dutt received confirmation that Dr. Jadwin had in fact complained to CAP about the unlicensed tissue storage and noncompliant PCCs, and shared this with then-CEO Mr. Culberson.

Jadwin Supp. Decl. (Doc. 272), Exh. 2 (Dutt’s Email to Culberson of 1/4/07 at 0001330)

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112 113 4. Radical Prostatectomy

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114 At 12:54 p.m. on December 6, 2006, Dr. Jadwin formally reported to KMC leadership his concerns regarding a KMC patient who was scheduled for immediate radical prostatectomy to treat possible cancer. Plaintiff had recommended the attending physician delay the prostatectomy because he believed the pathologic findings of cancer were inconclusive. Instead, Plaintiff had recommended the findings be validated by outside experts.

Jadwin Decl. (Doc. 265), Exh. 10 (Jadwin’s email to Dutt, Culberson et al. of 12/6/06 at DFJ1479); Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 61 at 13:19-25); Lee Supp. Decl. (Doc. 267), Exh. 24 (Rog 67 at 14:2223 (noting difficulties outside reviewers had reaching conclusions about the diagnosis)

115 Radical prostatectomies pose numerous risks to patient care, including incontinence, impotence and other morbid factors.

Jadwin Decl. (Doc. 265), Exh. 10 (Jadwin’s email to Dutt, Culberson et al. of 12/6/06 at DFJ1479)

116 In his report to KMC leadership, Dr. Jadwin also complained of a pattern of non-transparent “peer review” being conducted against him and asked that the Board of Supervisors be apprised of his concerns and initiate a formal review.

Jadwin Decl. (Doc. 265), Exh. 10 (Jadwin’s email to Dutt, Culberson et al. of 12/6/06 at DFJ1479-1480)

117 Four minutes later, at 12:58 p.m., Dr. Dutt emailed Mr. Culberson complaining about Dr. Jadwin’s competency, and insistence on outside review of numerous cases after Dr. Dutt had counseled him on failing to send a case out for consultation. Dr. Dutt also complained about alleged “other problems” involving Dr. Jadwin which he worried might lead to loss of staff and the pathology department’s ability to serve patients and doctors in a timely manner.

(Lee Decl. (Doc. 266), Exh. 23 (Dutt Email to Culberson dated 12/6/07 at 0001466)

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118

The patient ultimately decided not to proceed with the prostatectomy.

119 G. COUNTS 3 & 4: DEFENDANT COUNTY’S MEDICAL LEAVE RETALIATION

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120 Plaintiff was eligible to take medical leave as of December 16, 2006

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA NO. Nos. 134-138 at 28:15-29:10)

121 Plaintiff requested and took reduced work schedule CFRA medical leave from December 16, 2005 to at least March 15, 2006.

Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ1152, 1154); Exh. 18 (Bryan memo to JCC at 14761477, paras 6,7); Riskin Dec, Exh. 1 & 2

122 Members of the JCC subsequently voted to demote Plaintiff, basing their decision on his unavailability due in part to his medical leave. Mr. Bryan told the JCC at the removal vote: “This recommendation [for removal] is based on Dr. Jadwin’s unavailability for service because of extended medical leaves..”

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 8:28-9:5); Lee Decl. (Doc. 266), Exh. 17 (JCC Meeting Minutes of 7/10/06 at item 10 on 0009820 to 0009821); Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001476).

123 Previously on April 17, 2006, 4 months into Plaintiff’s reduced work schedule medical leave, Bryan admitted to Dr. Jadwin, “Yes the Department of Pathology continues to function well as it has for many years, and yes, you have made many positive changes in the department.” Yet on April 28, 2006, Bryan ordered Dr. Jadwin onto full-time leave unti lJune 16, 2006.

Lee Decl. (Doc. 266), Exh. 12 (Bryan memo to Jadwin of 4/17/06 at DFJ795); Bryan Depo at 332:12-22; Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ1152)

124 Plaintiff also has direct evidence that Plaintiff’s medical leave was a negative factor in the Nonrenewal

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:19114:4)

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125

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126 H. COUNTS 4 & 5: DEFENDANT COUNTY’S MEDICAL LEAVE DENIAL/INTERFERENCE

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127 On April 28, 2006, Defendant Bryan represented to Dr. Jadwin that he was still entitled to 137 hours of medical leave.

Lee Decl. (Doc. 266), Exh. 14 (Bryan Memo to Jadwin of 4/28/06 at DFJ1152, 1154)

128 Sandra Chester, Defendant County’s then-HR Director, testified in Depo. that Plaintiff’s request for medical leave in his email to Bryan and herself on March 16, 2006; and provision by Dr. Jadwin’s treating therapist, Dr. Riskin, of leave certification on April 29, 2006 was timely under Defendant County’s customary practice.

Lee Supp. Decl. (Doc. 267), Exh. 15 (Chester Depo at 120:1-16)

129 Dr. Riskin’s certifications notified it that Plaintiff’s depression was serious enough to require a reduced work schedule leave and regular treatment from December 16, 2005 to September 16, 2006

Riskin Decl. (Doc. 270), Exh. 1 &2

130 Nonetheless, Defendant Bryan denied Plaintiff reduced work schedule medical leave, and forced him to take fulltime “personal necessity leave” under the County’s leave policy.

Lee Decl. (Doc. 266), Exh. 14 (Bryan Memo to Jadwin of 4/28/06 at DFJ1152); Lee Decl. (Doc. 266), Exh. 18 (Bryan Memo to JCC of 7/10/06 at No. 9 on 001476); No. 1201.20 on 0001501; No 1201.30 on 0001501-1502; No. 1202.20 at 0001523-1524

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131 132 I. COUNT 6: DEFENDANT COUNTY’S DISABILITY DISCRIMINATION

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133 1. Jadwin Was An Individual With Disabilities

22

134 Dr. Jadwin was an individual with a mental disability because of his chronic major depressive disorder. Dr. Reading, Plaintiff’s forensic psychologist, diagnosed Dr. Jadwin as having Major Depressive Disorder. Dr. Reading also noted Dr. Jadwin reported developing depressed mood, pervasive anhedonia, suicidal ideation, sleep disturbance, and other symptoms while working at KMC.

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Reading Decl. (Doc. 269), Exh. 1 at “Diagnostic Impressions” on p. 58; Reading Decl. (Doc. 269), Exh. 1 at “Structured Clinical Interview” at p. 57-58

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135 Dr. Jadwin’s depression limited his ability to take pleasure from life, and to engage full-time in, and take pleasure from, the medical work to which he had devoted his life.

Reading Decl. (Doc. 269), Exh. 1 at “Structured Clinical Interview” at p. 57-58

136 Likewise, Defendant County has admitted, by and through the PMK Depo. testimony of its representative, Eugene Kercher, a psychiatrist, that it was familiar with the symptoms of depression and believed that Dr. Jadwin was depressed over several years during the tenure of his employment at KMC.

Lee Supp. Decl. (Doc. 267), Exh. 17 (Kercher Depo at 95:13-22, 96:3-8)

137 Plaintiff also required sinus surgery and required a few weeks to recover from it during May of 2005.

Jadwin Decl. (Doc. 265), Exh. 7 (Jadwin’s Letter to Bryan of 5/31/06 at DFJ1175)

138 Further, Plaintiff suffered an avulsed ankle at the end of May of 2005 that limited his ability to walk.

Jadwin Decl. (Doc. 265), Exh. 7 (Jadwin’s Letter to Bryan of 5/31/06 at DFJ1175)

139 The limitations from these physical conditions contributed to Plaintiff’s limitations from his chronic depression during May through the first part of June of 2005.

Riskin Decl. (Doc. 270), Exh. 3 at DFJ1814

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140

18

141 2. Plaintiff Was “Otherwise Qualified”

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Lee Decl. (Doc. 266), Exh. 19 (Bryan’s Letter to DHS of 7/25/06 at 0001619); Exh. 18 (Bryan’s Letter to JCC of 7/10/06 at top of 001476 and end of 001457); Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ01152, DFJ01155-1159, DFJ01164); Exh. 16 (Nunn’s Cover Email to Jadwin of 6/26/06 at DFJ01346); Exh. 10 (Bryan’s Letter to Supervisors of 1/17/06 at No. 10 on 0001567)

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142 143 3. Defendant County Knew Dr. Jadwin Was An Individual with Disabilities

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144 Plaintiff’s physician, Dr. Lempel, disclosed Plaintiff’s depression when he faxed his medical report to KMC’s HR Department on November 30, 2000, around the time of Plaintiff’s hire.

Lee Decl. (Doc. 266), Exh. 1 (Lempel Medical Report of 11/30/00 at DFJ00102-103 and handwritten Zoloft prescription at bottom of page)

145 Defendant Bryan admitted knowing that Dr. Jadwin needed leave because of his depression.

Lee Decl. (Doc. 266), Exh. 9 (Jadwin’s Letter to Bryan of 1/9/06 at 0001140); Exh. 18 (Bryan Memo to JCC of 7/10/06 at 0001500 & 0001506)

146 Dr. Riskin’s certifications stated that Plaintiff needed medical/recuperative leave for depression from December 16, 2005 to September 16, 2006

Riskin Decl. (Doc. 270), Exh. 1 &2

147 Supervisor Watson testified in Depo. that he knew Dr. Jadwin was in continuous need of extensions of his medical leave.

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 80:22-81:2)

148 On April 4, 2007, during Plaintiff’s Admin Leave, Plaintiff expressly notified Defendant County in writing that Plaintiff was depressed and that the Admin Leave was exacerbating his chronic depression.

Lee Supp. Decl. (Doc. 267), Exh. 4 (Lee Letter to Barnes of 4/4/07 at DFJ01619)

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149

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150 4. Disability Was A Motivating Factor in Demotion, Pay Cut & Nonrenewal

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.

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Lee Opp. Decl., Exh. 56 (PMK Dutt Depo. at 243:7-11) (sometimes appropriate to punish an employee for taking medical leave)].

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15 16 17 18 19 20 21 22 23 24

Lee Supp. Decl. (Doc. 267), Exh. 14 (Watson Depo. at 113:15114:4); Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at top of 001476; No. 9 on 001477; and end of 001457) [Lee Decl., Exh. 17 (JCC Minutes of 7/10/06 meeting at ¶ 10 on 0009830-9831); Lee Opp. Decl., Exh. 7 (Patrick Depo. at 27:5-8 & 30:2-20); Lee Opp. Decl., Exh. 14 (Kercher Depo. at 99:20100:17); Lee Opp. Decl., Exh. 35 (Smith Depo. at 14:22-15:8); Lee Opp. Decl., Exh. 48 (emails between Dutt & Barnes of 9/14/06 at 0000830)].

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151 152 J. COUNT 7: DEFENDANT COUNTY’S FAILURE TO REASONABLY ACCOMMODATE 153 On January 9, 2006, Dr. Jadwin asked Defendant Bryan to allow him to work part-time and at home while he was recovering from his disabling depression.

Lee Decl. (Doc. 266), Exh. 9 (Jadwin’s Letter to Bryan of 1/9/06 at 0001140)

154 Dr. Riskin, Plaintiff’s psychiatrist, certified that part-time work was medically necessary.

Riskin Decl. (Doc. 270), Exh. 1 &2

155 KMC accommodated Jadwin’s disability from December 16, 2005 to April 28, 2006 by providing him with the reduced work schedule medical/recuperative leave and ability to perform work at home that he requested during his meeting with Defendant Bryan on January 9, 2006.

Lee Decl. (Doc. 266), Exh. 18 (Bryan memo to JCC at 14761477, paras 6,7); Riskin Dec, Exh. 1 & 2

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156 As customary, a Locum Tenens pathologist covered Plaintiff’s clinical pathologist duties, while Plaintiff performed the remaining10-20% of his administrative duties as Chair of Pathology.

3 4 5 6 7 8

157 As usual, if Dr. Jadwin was unable to attend to an administrative duty at a particular time, then Dr. Dutt filled in for him. 158 On March 16, 2006, Dr. Jadwin requested an extension of his reduced work schedule leave. Dr. Jadwin submitted Dr. Riskin’s certification of his continuing need for a reduced work schedule within three days of learning that Defendant County required it.

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Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157); Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752)

159 On April 28, 2006, Bryan refused to accommodate Jadwin’s disability. Instead he forced him to take full-time leave, and refused to hold his job open for him any longer while he was on recuperative leave, and refused to allow Dr. Jadwin to return to work until he could work full-time. As a result, Dr. Jadwin was prevented continuing to carry out his duties as Chair of Pathology.

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160

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161 K. COUNT 8: DEFENDANT COUNTY’S FAILURE TO ENGAGE IN INTERACTIVE PROCESS

19 20 21

162 Defendant Bryan acted in bad faith when he unilaterally denied Dr. Jadwin’s request for continuing accommodation in the form of part-time work, and refused to allow him to return to work until he could work full time.

Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001500 & 0001506); Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ01152, DFJ011551159, DFJ01164)

163 Defendant Bryan also acted in bad faith when he represented to the JCC that Dr. Jadwin’s lack of communication with him led him to believe that Dr. Jadwin had essentially abandoned his job.

Lee Decl. (Doc. 266), Exh. 18 (Bryan’s Memo to JCC of 7/10/06 at 0001500 & 0001506); Lee Decl. (Doc. 266), Exh. 14 (Bryan’s Memo to Jadwin of 4/28/06 at DFJ01152, DFJ011551159, DFJ01164)

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165 L. COUNT 9: ALL DEFENDANTS’ PROCEDURAL DUE PROCESS VIOLATIONS 166 1. Direct Liability of Defendant County under Monell 167 The Bylaws of Kern Medical Center as in effect between June 13, 2006 and October 4, 2007 (“Bylaws”) provided for due process for core physicians in numerous scenarios like loss of hospital privileges, but not for (i) removal of physicians from department chairmanship, (ii) placement of physicians on administrative leave, or (iii) nonrenewal of physician employment contracts with Defendant County.

Lee Decl. (Doc. 266), Exh. 3 (Bylaws at 11599 - 11601 etc.)

According to Bylaws Section 12.2 GROUNDS FOR HEARING, due process is provided in the following situations: “A. Denial of medical staff membership. B. Denial of requested advancement in staff membership status, or category. C. Denial of medical staff reappointment. D. Suspension of staff membership or clinical privileges for more than thirty (30) days in any twelve (12) month period. E. Demotion to lower staff category or membership status. F. Summary suspension of staff membership or clinical privileges for more than fourteen (14) days. G. Revocation of medical staff membership. H. Denial of requested clinical privileges. I. Involuntary reduction of current clinical privileges. J. Termination of all clinical privileges. K. Involuntary imposition of significant consultation or monitoring requirements (excluding monitoring incidental to provisional status and Section 7.3).” The due process afforded by the Bylaws in the above cases is robust, e.g., Bylaws Section 12.3-1 NOTICE OF ACTION OR PROPOSED ACTION. 168 The Board of Supervisors of Defendant County ratified the Bylaws on December 13, 2004.

24 25 26

Lee Supp. Decl. (Doc. 267), Patrick depo, 40:1-4); Lee Supp. Decl. (Doc. 267), Exh. 1 (Board of Supervisor Minutes of 12/13/04 at p. 4, item 20); Lee Decl. (Doc. 266), Exh. 3 (Bylaws at 0011529)

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169 When the Defendants failed to provide Plaintiff with adequate due process in connection with the Demotion, Admin Leave and Nonrenewal, they were acting pursuant to the Bylaws.

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Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA Nos. 219-221 at 45:321); Lee Supp. Decl. (Doc. 267), Exh. 10 (Bryan Depo, 258:12-16)

3 4 5 6 7

170 171 2. 42 U.S.C. 1983 Requirements 172 It is incontrovertibly established that “Any acts or omissions of the individual Defendants were under color of law.” See Scheduling Order, 9:22-23.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 9:22-23)

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173

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174 3. 14th Amendment Elements

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175 4. Demotion & Paycut 176 Plaintiff’s employment contract expressly set forth a mutually explicit understanding with Defendant County that Plaintiff would receive Base Pay of $287,529, and that Plaintiff would be chair of KMC’s pathology department.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract, p.2, 20)

177 Moreover, the employment contract barred Defendant County from reducing Plaintiff’s Base Pay, removing Plaintiff from chair or terminating or otherwise modifying the Contract at will, without cause, or without Plaintiff’s consent.

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 227 at 46:22-26); Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract at DFJ164, DFJ165, DFJ168, DFJ169)

178 Defendant County has not removed a department chair without cause since at least October 2000

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 227 at 46:22-26)

179 Defendants County and Harris told Plaintiff several times that the Demotion “necessitated” the Paycut, and that he would have to agree to it to continue working at KMC.

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA No. 228 at 46:27-47:3); Lee Decl. (Doc. 266), Exh. 3 (Barnes email to Lee of 9/15/06 at DFJ1390); Lee Decl. (Doc. 266), Exh. 20 (Harris Letter to Jadwin of 9/1/06 at DFJ1383)

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180 Having no other choice, Plaintiff executed the Paycut amendment to his employment contract.

Lee Supp. Decl. (Doc. 267), Exh. 18 (Jadwin depo, 1025:4-7); Lee Decl. (Doc. 266), Exh. 22 (Amendment No. 1 to Employment Contract dated 10/3/06)

181 Defendant County was subjectively aware of Plaintiff’s contractual interest in Base Pay, as evidenced by the numerous reminders by Defendants Bryan and County that Plaintiff would have to expressly amend his employment contract to implement the Paycut resulting from his Demotion.

Lee Supp. Decl. (Doc. 267), Exh. 3 (Barnes Letter to Lee of 9/15/06 at DFJ1390), Lee Decl. (Doc. 266), Exh. 20 (Harris Letter to Bryan of 9/1/06 at DFJ1383)

182 There was nearly a month gap between the time Defendant Bryan informed Plaintiff he was initiating demotion procedures to the time the JCC voted to demote Plaintiff.

Lee Decl. (Doc. 266), Exh. 15 (Bryan Letter to Jadwin of 6/14/06 at DFJ1181); Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 00098200009821, item 10)

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Jadwin Supp. Decl. (Doc. 272), 183 Defendants never notified Plaintiff of the time or place of the JCC vote to demote Plaintiff, gave him an explanation para 3 of the evidence against him, or provided him an opportunity to tell his side of the story,

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184 Before the JCC vote occurred, Plaintiff sent a letter to Defendant County legally challenging the Demotion.

Lee Supp. Decl. (Doc. 267), Exh. 2 (Lee Letter to Barnes of 6/29/06 at DFJ1349)

185 Nor did Defendant County ever offer Plaintiff a postdeprivation hearing.

Jadwin Decl. (Doc. 265), para 4, Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 0009820-0009821, item 10)

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186 More importantly, the JCC did not constitute an impartial tribunal since it comprised individuals who had been harassing and retaliating against Dr. Jadwin and/or individuals on whom Dr. Jadwin was blowing the whistle.

Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 0009819); Jadwin Decl. (Doc. 265), Exh. 1 (Jadwin email to Bryan of 2/28/05 at DFJ355); Lee Decl. (Doc. 266), Exh. 8 (Bryan email to Harris of 11/8/05 at 0000503); Lee Decl. (Doc. 266), Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507); Jadwin Decl. (Doc. 265), Exh. 5 (Jadwin memos to Smith of 3/23/06); Lee Supp. Decl. (Doc. 267), Exh. 13 (Ragland depo, 332:14-21)

187 Nor was Defendant Bryan – who invited Plaintiff to contact him, and only, him regarding the Demotion he himself had instigated – an impartial adjudicator given his demonstrated bias against Plaintiff.

Lee Decl. (Doc. 266), Exh. 15 (Bryan Letter to Jadwin of 6/14/06 at DFJ1181); Lee Decl. (Doc. 266), Exh. 16 (Bryan Letter to Jadwin of 6/26/06 at DFJ1346); Lee Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at 0009821); Jadwin Decl. (Doc. 265), Exh. 1 (Jadwin email to Bryan of 2/28/05 at DFJ355); Lee Supp. Decl. (Doc. 267), Exh. 13 (Ragland Depo at 332:14-21); Lee Decl. (Doc. 266), Exh. 8 (Bryan email to Harris of 11/8/05 at 0000503); Lee Decl. (Doc. 266), Exh. 11 (Ragland email to Bryan of 2/23/06 at 0000507)

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188 189 5. Admin Leave

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190 Plaintiff’s employment contract expressly set forth a mutually explicit understanding with Defendant County that Plaintiff would be paid Professional Fees.

Lee Decl. (Doc. 266), Exh. 2 (Jadwin Employment Contract, at DFJ00154, DFJ00156)

191 Defendant County was subjectively aware of Plaintiff’s contractual interest in Professional Fees, as evidenced by the then-CEO’s letter to Plaintiff regarding the Paycut. Mr. Culberson explained that, as a demoted staff pathologist with a drastically reduced base salary, Plaintiff would nevertheless be able to take advantage of his reduced administrative duties in order to increase his Professional Fees-based income.

Lee Decl. (Doc. 266), Exh. 21 (Culberson Letter to Jadwin of 9/20/06 at DFJ01398)

192 Mr. Culberson participated in the decision to to place Plaintiff on Admin Leave, which denied Plaintiff the opportunity to earn Professional Fees.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 42, 28:3-9)

193 Defendants failed to provide Plaintiff any pre- or postdeprivation procedure when placing him on Admin Leave.

Jadwin Decl. para 5; Lee Decl. (Doc. 266), Exh. 24 (Culberson Letter to Jadwin of 12/7/06 at DFJ01482)

194 When Defendant County sent a letter to Plaintiff placing him on Admin Leave, the letter stated only that the Admin Leave was “pending resolution of a personnel matter”.

Lee Decl. (Doc. 266), Exh. 24 (Culberson Letter to Jadwin of 12/7/06 at DFJ01482)

195 At no time did Defendants County or Harris inform Plaintiff of the nature of the charges against him, give him an explanation of the evidence against him, or provide him an opportunity to tell his side of the story.

Jadwin Decl. para 6; Lee Supp. Decl. (Doc. 267), Exh. 4 (Lee Letter to Barnes of 4/4/07 at DFJ01619)

196 Even when Plaintiff protested the lack of due process, Defendant County refused to respond.

Lee Supp. Decl. (Doc. 267), Exh. 4 (Lee Letter to Barnes of 4/4/07 at DFJ01619)

197 Since 1995, only one other department chair at KMC had ever been placed on administrative leave in excess of 1 month.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 27, 19:23-20:6)

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200 Defendant County customarily renews the contracts of all of its KMC medical staff.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 28, 20:8-21); Jadwin Decl. para 7

201 When Plaintiff asked Defendant County to identify all members of the KMC medical staff – which comprises roughly 60 full-time faculty physicians at any given time – who had employment contracts which were not renewed during the period from October 24, 2000 to the present, Defendant County was able to name only one doctor.

Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No. 28, 20:8-21

202 At no time did Defendant County inform Plaintiff of the nature of the charges against him, give him an explanation of the evidence against him, or provide him an opportunity to tell his side of the story.

Jadwin Decl. para 8

203 Defendant County denies that anyone even participated in a decision not to renew Plaintiff’s employment contract.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 45, 53:16-20

204 Even when Plaintiff protested the lack of due process, Defendant County refused to respond.

Lee Supp. Decl. (Doc. 267), Exh. 7 (Lee Letter to Wasser of 5/1/07 at DFJ1703-DFJ1704); Jadwin Supp. Decl. para 4; Jadwin Decl. para 13

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205 206 F. SEVENTH DEFENSE: 2 YEAR SOL 207 Defendant County itself admits that no relevant event occurred on or before January 6, 2005.

Lee Supp. Decl. (Doc. 267), Exh. 23 (Rog. No. 5, 5:17-25)

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208 209 G. EIGHTH DEFENSE: ADMINISTRATIVE EXHAUSTION

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210 Defendant County admits that Plaintiff has Exh.austed his administrative remedies as to all claims except for the new FMLA/CFRA/FEHA retaliation claim added via the Second Amended Complaint, filed on October 7, 2008 (Doc. 241).

Lee Supp. Decl. (Doc. 267), Exh. 20 (RFA1 at 4:23-27); Lee Supp. Decl. (Doc. 267), Exh. 23 (Rog. No. 6, 6:1-3); Lee Supp. Decl. (Doc. 267) para 7

211 Plaintiff Exh.austed his CFRA & FEHA oppositional/participation retaliation claims by filing a timely complaint with the California Department of Fair Employment & Housing (“DFEH”) on September 3, 2008, and obtaining a right to sue letter that same day.

Lee Supp. Decl. (Doc. 267) para 7

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213 PERSONS

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214 Defendant Bryan was the Chief Executive Officer at KMC from September of 2004 until September of 2006.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:4-6); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 9:20)

215 Eugene Kercher, M.D. was the President of KMC Medical Staff from July 2004 to June 2006, and a member of the JCC

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:7-10); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 9:4-5)

216 Defendant Irwin Harris, M. D., was Chief Medical Officer at KMC from July of 2005 to September of 2007 , and a non-voting member of the JCC.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:11-14); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 10:24)

217 Jennifer Abraham, M.D. was Immediate Past President of KMC Medical Staff during 2004-2006, and President Elect in July 2006 to December of 2007

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:15-17); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 9:4, 9:7, 10:2, 10:6)

218 Scott Ragland, D.O. was President-Elect of the KMC Medical Staff from 2004-2006, Chair of the Quality Management Committee, and a member of the JCC.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:18-21); Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 9:3, 9:6, 10:1, 11:3-4)

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219 Toni Smith was the Chief Nurse Executive of KMC, and a member of the JCC

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:22-24)

220 William Roy, M.D., was Chief of the Division of Gynecologic Oncology at KMC.

Lee Supp. Decl. (Doc. 267), Exh. 19 (SCO at 7:25-27)

221 Marvin Kolb, M.D. was former Chief Medical Officer at KMC who left in September of 2004.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 9:21)

222 Phillip Dutt, M.D., became Chair of Pathology at KMC in August of 2006

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 10:16)

223 David Culberson was Interim Chief Executive Officer from September of 2006 to May of 2007.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 11 at 10:22)

224 Paul Hensler became Chief Executive Officer at in May of 2007.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog 11 at 10:23)

225 Gilbert Martinez was and is the Manager of Laboratory Services at KMC.

Lee Supp. Decl. (Doc. 267), Exh. 9 (Martinez Depo at 10:2-7)

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OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 226 Beginning January 2006, Defendant County did not pay Plaintiff for the days he did not work.

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Decl. of Eugene Lee in Opposition to Defendants’ Motion for Summary Judgment (“Lee Opp. Decl.”), Exh. Bryan’s Memo to JCC of 7/10/06 at 0001476); Rizzardi Decl. (Doc. 271) at Table 6 showing dramatic Plaintiff’s earnings decrease starting 1/17/06.

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227 Bryan testified that testified that “actual functioning of the department of [pathology] actually was fairly good” as of April 17, 2006.

Lee Opp. Decl., Exh. 3 (Bryan Depo at 332:12-22).

228 Plaintiff testified several times that Bryan had ordered him off of part-time and onto full-time medical leave on April 28, 2006 so as to burn up Plaintiff’s medical leave entitlement. Bryan’s Depo. testimony did not refute this.

Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23-985:4).

229 According to Defendant County’s verified response to Plaintiff’s Interrogatory No. 42, Harris participated in the decision to place Plaintiff on Admin Leave.

Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 42 at 52:24-53:2).

230 On June 29, 2006, Plaintiff’s counsel sent a letter to Kern County counsel Karen Barnes (“Barnes”) which was captioned “Re: Preservation / no spoliation of evidence Jadwin v. County of Kern, Peter Bryan, et al.”. This letter pre-dated the Demotion of July 10, 2006 by almost a month.

Lee Opp. Decl., Exh. 15 (Lee Letter to Barnes of 6/29/06 at pp. 1 and 2).

231 Plaintiff’s counsel’s letter to Barnes of June 29, 2006 outlined in detail Plaintiff’s pending claims for whistleblower and medical leave retaliation and disability discrimination and formally demanded Defendant County take all appropriate affirmative steps to preserve evidence relating to those claims, including “notes taken at meetings with or concerning Dr. Jadwin”.

Lee Opp. Decl., Exh. 15 (Lee Letter to Barnes of 6/29/06 at pp. 1 and 2).

232 On March 29, 2007, Plaintiff’s counsel again sent a letter to Barnes stating, “I would like to remind you that KMC is under a strict legal obligation to preserve and prevent spoliation . . . .”.

Lee Opp. Decl., Exh. 16 (Lee Letter to Barnes of 3/29/07 at p. 2).

233 Barbara Patrick is a former Chair of the Kern County Board of Supervisors and member of the JCC who voted to demote Plaintiff.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 22:2-12; 26:20-27:3).

234 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that she had taken notes at every JCC meeting.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 70:8-73:7).

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235 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that she had shredded all of her documents upon leaving office on January 8, 2007.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 70:8-73:7).

236 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that she had thrown out documents which included JCC meeting agendas on the margins of which she had taken notes.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 70:8-73:7).

237 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that Kern County counsel had never contacted her regarding preservation of documents and evidence in connection with Plaintiff’s lawsuit.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 70:8-73:7).

238 Defendants failed to produce a single JCC meeting agenda in response to Plaintiff’s numerous discovery demands.

Lee Opp. Decl., para. 6; Exh. 17 (RPD No. 44 at 20:15-21).

239 At Plaintiff’s 8/19/08 Depo. of Patrick, she was able to recall very little in the absence of her spoliated notes about the JCC meeting at which the Demotion was approved.

Lee Opp. Decl., Exh. 7 (Patrick Depo. at 75:16-78:19).

240 David Culberson is former CEO of KMC who decided to place Plaintiff on Admin Leave.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 10:13-16; 10:23-11:1).

241 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that he had taken notes at each of up to 10 meetings of the KMC “leadership team” regarding Plaintiff and the Pathology department.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 42:24-47:9).

242 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that Culberson destroyed those notes prior to January 2007, by shredding them, ripping them up, crumpling them up and throwing them in the trash.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 42:24-47:9).

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243 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that no one ever contacted him regarding preservation of documents and evidence in connection with Plaintiff’s lawsuit.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 42:24-47:9).

244 At Plaintiff’s 8/21/08 Depo. of Culberson, Culberson – in the absence of his spoliated notes – was unable to recall important details regarding the allegations against Plaintiff that led to the Demotion as related to him by Harris.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 61:7-19; 63:4-6).

245 At Plaintiff’s 8/21/08 Depo. of Culberson, Culberson – in the absence of his spoliated notes – was unable to recall important details regarding the HR director’s investigative findings as to disruption and chaos in the Pathology department at the end of 2006 just prior to the Admin Leave.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 102:16-21; 98:4-15; 99:2-10).

246 At Plaintiff’s 8/21/08 Depo. of Culberson, Culberson – in the absence of his spoliated notes – was unable to recall important details regarding Dr. Dutt’s investigative findings regarding Plaintiff’s alleged misconduct at the end of 2006.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at 160:23161:2; 159:9-13; 157:15-158:4).

247 Scott Ragland is the former President of the Medical Staff and member of the JCC (“Ragland”).

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 8:23-9:10).

248 Ragland testified at his 8/22/08 Depo. that no one ever contacted him regarding preservation of documents and evidence in connection with Plaintiff’s lawsuit

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 61:10-25).

249 Ragland testified at his 8/22/08 Depo. that he deleted all of his emails, including emails relating to Plaintiff, and sneered at Plaintiff’s consternation over the spoliation

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 63:13-23).

250 At Ragland’s 8/22/08 Depo., he sneered at Plaintiff’s consternation over the spoliation of evidence.

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 63:13-23).

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251 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that Ragland had investigated Plaintiff just prior to the Admin Leave.

Lee Opp. Decl., Exh. 11 (Culberson Depo. at.73:9-18).

252 Ragland testified at his 8/22/08 Depo. that he produced only a single document in all of discovery in this action, and even that was not in response to any request from an attorney (as he never received one) but on his own initiative.

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 69:21-71:1).

253 At Ragland’s 8/22/08 Depo., he was able to recall very little in the absence of his spoliated documents about material events.

Lee Opp. Decl., Exh. 9 (Ragland Depo. at 23:13-24:24).

254 At the Depo. of PMK Eugene Kercher, he testified that KMC did not renew John Digges’ employment contract because Digges was asking for an unacceptable salary increase.

Lee Opp. Decl., Exh. 14 (Kercher Depo. at 27:1-12).

254 Plaintiff testified on 10/21/08 that he would have accepted renewal of his contract as of October 4, 2007, albeit under protest over his demoted status and reduced Base Pay.

Lee Opp. Decl., Exh. 6 (Jadwin Depo. at 1096:9-14; 1096:221097:3).

255 Dr. Philip Dutt, Acting Chair of Pathology, testified as PMK for the County on 8/29/08 that by the Monday following Thanksgiving 2006, he had had a conversation with Harris regarding Plaintiff’s statement to Martinez that “he was going to report the hospital to JCAHO, CNPS [sic] . . . either the Friday before Thanksgiving that year or the Monday after that weekend.”

Lee Opp. Decl., Exh. 12 (Dutt Depo. at 10:5-24).

256 Dr. Philip Dutt, Acting Chair of Pathology, testified as PMK for the County on 8/29/08 that he had suggested to Harris that KMC retain someone who had experience with CAP inspections to conduct a mock unannounced inspection. Harris quickly approved Dutt’s proposal on either the Friday or the Monday before Thanksgiving 2006.

Lee Opp. Decl., Exh. 12 (Dutt Depo. at 13:1-14:6).

257 JCC minutes regarding the contemplated demotion of the chair of the OB-GYN department stated: “The problem is we have tied a portion of the chair’s compensation to that position, that is a property right. Dr. Perez is entitled to due process hearing for this reason.”

Lee Opp. Decl., Exh. 18 (JCC Meeting Minutes of 9/10/07 at Agenda Item 6 on Bates 0009221).

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258 Paragraph 139 (“Disciplinary Actions”) of the Manual states in relevant part: “Any employee may be dismissed, suspended, reduced in rank and/or compensation, reprimanded or otherwise disciplined for any action or conduct which in the judgment 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 [. . . .]”. (emphasis added). 259 At his Depo. of 8/25/08, Watson testified that Defendant County decided not to renew Plaintiff’s contract in retaliation for his filing the instant lawsuit. Watson was asked twice if he recalled clearly that this was the case and each time he answered yes:

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Lee Opp. Decl., Exh. 19 (Kern County Policy & Administrative Procedures Manual at Section 139 (Disciplinary Actions) and 139.6 (Administrative Leave with Pay) on Bates 0016940-16941).

Lee Opp. Decl., Exh. 10 (Watson Depo. at 110:12-111:5; 111:1524).

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.

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260 At his Depo. of 8/25/08, Watson re-affirmed a third time – volunteering it on his own initiative – that oppositional retaliation was an additional motivating factor for the Nonrenewal:

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Lee Opp. Decl., Exh. 10 (Watson Depo. at 113:15-114:4).

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.

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261 Defendants claim Watson gave confused testimony and suggest that his testimony regarding Nonrenewal was likewise confused even though the allegedly confused testimony is elicited by a completely different line of questioning regarding Demotion that occurs over 100 pages and 2 hours earlier in the Depo. transcript.

Lee Opp. Decl., Exh. 10 (Watson Depo. at 12:10-14; 13:17-14:2).

262 Bryan could not have “granted” Plaintiff 90-day personal necessity leave because he never asked for it. His request for extension of leave of absence of March 16, 2006 was for extension of his reduced work schedule medical leave.

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263 Plaintiff’s request of March 16, 2006 for leave extension requested an extension of reduced work schedule leave, as established by Plaintiff’s later submitted medical certification.

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264 Plaintiff’s leave extension request of March 16, 2006 asked for extension of Plaintiff’s protected medical leave, not personal leave.

Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for Leave Extension of 4/26/06 at DFJ00157); Exh. 4 (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at DFJ00752); Lee Supp. Decl. (Doc. 267), Exh. 15 (Chester Depo at 120:1-16)

265 Defendants’ own Separate Statement (Doc. 259) admits, Plaintiff’s letter to Bryan of May 31, 2006 was requesting more time to decide whether he would be returning fulltime or resigning. It was not requesting more leave past September 16, 2006. [DMF 23]

Defendants’ Separate Statement (Doc. 259), DMF 23

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266 The prostatectomy patient ultimately elected not to proceed with prostatectomy based on the second set of biopsies recommended by Plaintiff coming back negative for cancer.

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Lee Opp. Decl., Exh. 52 (Shertudke Depo. at 42:17-20)].

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267

Disability Was A Motivating Factor in Administrative Leave.

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Lee Decl. (Doc. 266), Exh. 22 (Amendment No. 1 to Employment Contract dated 10/3/06 at “Assignments” on DFJ01420); Lee Opp. Decl., Exh. 58 (Pathologist Chair Phlip Dutt employment contract amendment no. 1 of 10/10/05 at “Assignments” on Bates 0026200; Exh. 59 (Pathologist Savita Shertukde employment contract of 11/1/05 at “Assignments” on Bates 0026248; Exh. 60 (Pathologist Gian Yakoub employment contract of 6/19/07 at “Assignments” on Bates 0026193. [Lee Decl., Exh. 17 (JCC Minutes of 7/10/06 meeting at ¶ 10 on 0009830-9831); Lee Opp. Decl., Exh. 7 (Patrick Depo. at 27:5-8 & 30:2-20); Lee Opp. Decl., Exh. 14 (Kercher Depo. at 99:20-100:17); Lee Opp. Decl., Exh. 35 (Smith Depo. at 14:2215:8); Lee Opp. Decl., Exh. 48 (emails between Dutt & Barnes of 9/14/06 at 0000830)].

14 15 16 17 18 19

Lee Opp. Decl., Exh. 56 (PMK Dutt Depo. at 243:7-11) (sometimes appropriate to punish an employee for taking medical leave)].

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See DMF 69-190 re Defendants' pattern and practice of subjecting Plaintiff to smear campaign continued on Jadwin's return from medical leave on October 4, 2006.

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Date: December 1, 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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