291 D Reply - D Msj

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

1 2 3 4 5 6 7 8

Document 291

Filed 12/08/2008

Page 1 of 11

Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 2640 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasserlalmarkwasser.com Bernard C. Barmann, Sr. CA SB #060508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy CA SB #101838 1115 Truxtuu Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]

9 10

Attorneys for Defendants County of Kern, Peter Bryan, and Irwin Harris

11 12

UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA

14 15

DAVID F. JADWIN, D.O.

16 17 18 19

Plaintiff, vs.

COUNTY OF KERN, et ai., Defendants.

20

Case No.: 1:07-cv-00026-0WW-TAG

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIIF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Date: January 12,2009 Time: 10:00 a.m. Place: U.S. District Court, Courtroom 3 2500 Tulare Street, Fresno, CA

21 22

-------------

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

23 24 25 26 27 28

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORlTIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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

1 2

Document 291

Filed 12/08/2008

Page 2 of 11

Defendants submit this memorandum of points and authorities in reply to Plaintiffs opposition to Defendants' motion for summary judgment.

3

A.

4

Raising in his opposition an issue he did not raise in his moving papers, Plaintiff alleges

5 6

Spoliation

three individuals employed by the County destroyed evidence in this case. This is specious. With regard to David Culberson, KMC's interim Chief Executive Officer, the deposition

7

testimony Plaintiff cites ("PMF 242"), when read in its entirety, shows the notes Mr. Culberson

8

destroyed were inconsequential reminders about topics to be discussed at meetings. (Culberson

9

Depo., 8/21/08, pgs. 45: 17-46:11). Mr. Culberson testified it was his usual practice to discard

10

notes of this type. There is no indication his notes had anything to do with this case. (Culberson

11

Depo., 8/21/08, pg. 42:8-17; pgs. 45: 10-46: 11. See also, pg. 47: 10-51 :6). Furthermore, to the

12

extent Mr. Culberson attended meetings where minutes were kept, the minutes would be the best

13

evidence of what transpired at the meetings and the minutes have all been produced.

14

Supervisor Barbara Patrick does not recall whether she took notes at the Joint Conference

15

Committee meeting where the vote was taken to remove Plaintiff as Chair. (PSUF ~234, Patrick

16

Depo., 8/19/08, pgs. 70:8-73:7). She described any notes she might have written on her copies

17

of the agendas as "doodles." Id. Again, the minutes would be the best evidence of topics

18

discussed at the meetings and all the minutes have been produced.

19

Finally, Dr. Ragland testified that his standard and long-standing practice is to delete e-

20

mails after he reads them. The hard disk on the computer that had been assigned to Plaintiff was

21

both searched and produced and the e-mail exchange Plaintiff inquired about was not on

22

Plaintiffs computer, either. Thus, it is likely the e-mail exchange Plaintiff inquired about

23

occurred before Plaintiff asked the Defendants to preserve e-mails. Further, Plaintiff clearly had

24

control over the information in question because he discussed it during a Medical Executive

25

Committee meeting. (Ragland Depo., 8/22/08, pgs. 90:10-91:17)

26 27 28

B.

Medical Leave

Plaintiff argues that Bachelder v. America West Airlines, Inc., (9 th Cir. 2001) 259 F.3d 1112 is controlling and establishes that Defendants interfered with his right to medical leave and -1DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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

I

Document 291

Filed 12/08/2008

Page 3 of 11

retaliated against him for taking medical leave. Bachelder actually supports the Defendants. In Bachelder, the court held the plaintiff/employee's absences were protected by FMLA

2 3

because they occurred during her 12 workweeks of protected leave. Id. at 1132. The

4

defendant/employer had not specified which of the four "leave year" calculations, described in

5

29 C.F.R. §825.200, it would use to calculate FMLA leave. Id. at 1129. Consequently, the court

6

calculated the plaintiff/employee's leave under the method that was most advantageous to her.

7

Id. This was the "calendar year" method and, under that method, the absences for which the

8

plaintiff had been terminated occurred within the protected 12-week period.

9

Here, the facts are different. The County had designated a "rolling leave year" for the

10

purpose of calculating FMLA leave. (Bates Nos. 0018974-0018976; 29 C.F.R. §825.200(b)).

II

Plaintiff exhausted his 12 weeks leave by June 14,2006 (DSUF ~~30, 32, and 38) but was not

12

removed as Chair until July 10, after he refused the COlmty's invitation to return to work.

13

(DSUF

14

should be obvious" that FMLA offers no protection for absences that exceed those authorized by

15

the statute. Bachelder, 259 FJd at 1125. Thus, it offers no protection for Plaintiff.

~~19,

23, and 33). The relevant language from Bachelder is the court's comment that "it

16

c.

17

Plaintiff erroneously asserts Defendants have "expressly recognized" the constitutional

Due Process

18

right of chairs to not be demoted without due process. (Pltf.'s Opp. to Defts.' Motion for

19

Summary Judgment, pg. 14,

20

Committee meeting of September 10, 2007 during which someone said, with reference to Dr.

21

Leonard Perez, "Dr. Perez is entitled to a due process hearing." (PSUF

22

However, Dr. Leonard Perez's employment was terminated for cause. (Id.; JCC Meeting

23

Minutes of 9/1 0/07 at Agenda Item 6 on Bates 0009221). Plaintiff would also have been entitled

24

to a hearing ifhe had been terminated. (See, Plaintiffs employment agreement, DSUF '[6,

25

Section IV, ~3, pg. 14).

26

~4).

In "support", he relies on minutes of the Joint Conference

~257).

That was true.

But, Plaintiff was not terminated. He was simply removed as department chair.

27

Plaintiffs employment was subject to the KMC medical staff bylaws (DSUF ~~4 and 6b) and the

28

Bylaws provide that chairs can be removed without cause on recommendation of the Chief ·2· DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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

Document 291

Filed 12/08/2008

Page 4 of 11

I

Executive Officer. (DSUF ~4, Article IX, Section 9.7-4, pg. 48). Procedures that applied to the

2

termination of Dr. Perez's employment do not apply to Plaintiffs removal as Chair. Other provisions of Plaintiff's contract provided that he was not a classified employee,

3

~6,

~IO,

4

did not have rights under the County's Civil Service system (DSUF

5

and was required to comply "with all applicable KMC and County policies and procedures" (Id.,

6

Article V,

7

~7,

Article V,

pg. 16),

pg. 15). Administrative leave is expressly authorized by the County's policies. Id.

On July 10,2006, after Plaintiff had been absent from the hospital on self-imposed exile

8

for 8 months, the Joint Conference Committee, acting on the recommendation of the hospital's

9

chief executive officer and in accordance with the Bylaws, voted to remove Plaintiff as Chair of ~33).

10

the Department of Pathology. (DSUF

II

present ifhe wanted to continue to be Chair. (DSUF ~~20 and 22).

12

Plaintiff had been previously told he had to be

Plaintiff was not "demoted" as that term is used in the Bylaws. "Demotion" is ~4,

Article XII,

13

referenced in Section 12.2 as one of several possible corrective actions. (DSUF

14

~12.2,

15

membership status." Id. The categories of medical staff are also defined in the Bylaws (See,

16

Article V, "Categories of Membership," DSUF

17

Consulting, Provisional, Honorary, Retired, Advisory, Administrative, and Associate. Id.

18

Plaintiff was always in the "Active" category with full rights of membership and clinical

19

privileges. (KMC Letter to Jadwin, dated 8/14/01 to 9/12/08).

pg. 71). It means moving a medical staff member to a "lower staff category or

~4,

pgs.18-28) and are: Active, Courtesy,

20

D.

21

Plaintiff alleges he is a "disabled physician." He is not. He testified at his deposition that

22

he is not limited in any major life functions. (Jadwin Depo., 1/9/08, pgs. 465:3-467:18). He said

23

he could perform all the essential functions of this job without accommodation. (Jadwin Depo.,

24

1/9/08, pg. 416:6-7). His forensic psychologist was quite emphatic in his deposition testimony

25

that Plaintiff is not disabled within the meaning of either the ADA or FEHA. Dr. Reading

26

testified that it was "unequivocal" that Plaintiff "was asymptomatic when starting work at Kern

27

and so did not bring with him to the job any nascent depressive vulnerability." (PSUF ~134,

28

Reading Decl., pg. 59,

Plaintiff's Alleged Disability.

~3).

Reading added that the "depressive disorder" Plaintiff experienced -3-

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITlES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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

1

Document 291

Filed 12/08/2008

Page 5 of 11

while working at KMC "would be considered to have been a first occurrence." ld.

2

Reading's opinion is consistent with Plaintiffs admission that he first complained about

3

depression in 2003 to Dr. Marvin Kolb, KMC's Chief Medical Officer at the time. (DSUF ~~65

4

and 67) Plaintiff bluntly asserts his "disability" was caused by working at KMC. (Second

5

Amended Complaint ~109). (See, e.g., DSUF ~~7, 65, and 67). These facts, undisputed, establish that Plaintiff is not "disabled" within the meaning of

6 7

any of the applicable statutes. According to his own expert, Plaintiff was just "depressed." He

8

became "depressed" because of his on-the-job experiences at KMC. Because he did not bring

9

"any nascent depressive vulnerability" with him to KMC and his depression developed on the

10

job, it is clearly a work-related injury and his exclusive remedy is under the California Workers

11

Compensation Act.

12

Despite claiming he is not limited in any major life function and able to perform all

13

essential functions of his job, there is one thing he cannot do: He cannot work at KMC. (DSUF

14

~~7,

15

perform the most essential function of the job he had - which is to simply show up to work and

16

do his job. And that means he is not a "qualified individual" under either the ADA or FEHA.

65, 67, and 68; Jadwin Depo., 10/21/08, pp. 1051: 11 - 1052:5). This means he cannot

17

E.

18

Plaintiff put himself on leave beginning in December, 2005. (DSUF ~l 0). Although he

19

told another physician he was going to stay on leave until the hospital's chief executive officer

20

"apologized" to him and asked him to come back to work (DSUF

21

put himself on leave because he was too "depressed" to work. He remained out of the hospital

22

for over 10 months, from December 15, 2005 to October 4,2006. (DSUF

23

Failure to Accommodate and Discrimination.

~7 A),

~15;

PSUF ~49).

Plaintiff did not tell KMC management he was on leave until January 9, 2006 and he ~~7,

11). Human Resources had

24

never told the County's Human Resources Department. (DSUF

25

to scramble to bring Plaintiff into compliance with County policy. ld.

26

he has also testified he

Plaintiffs physician certification gave an expected return-to-work date of March 16,

27

2006. ld. However, Plaintiff took no steps after March 16 to either return to work or submit a

28

request for more leave. Human Resources finally notified him, on April 20, 2006, that his leave -4. DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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

Document 291

Filed 12/08/2008

Page 6 of 11

1

had expired. (DSDP ~18). Plaintiff then requested an extension of his leave of absence until

2

September 16, 2006. (DSDP

3

dated April 26, 2006, stating he required "part-time or less to avoid worsening of his serious

4

medical condition." [emphasis added] (DSDP ~14).

5

~19).

He submitted a certification from his health care provider,

On April 28, 2006, KMC management met with Plaintiff and gave him a summary of his

6

medical leave history along with policies about medical leave. (DSDF ~20). He was reminded

7

that his responsibilities as Chair required him to be physically present at the hospital. (DSDF

8

~20).

9

his status and what was possible and not possible according to County policies." (DSDP

The meeting was held to "insure that [PlaintiffJ had all information available concerning

10

~22).

Plaintiffs medical certification that he required a "part-time or less" work schedule was a

11

sufficient basis for the County to propose full-time leave to Plaintiff. (DSDP ~~20 and 22).

12

Peter Bryan told Plaintiff he had the option to go on full-time leave (DSDP ~20) and Plaintiff

13

chose to do so - without complaint. (DSDP

14

~2l).

It is undisputed Plaintiff had exhausted his 12 weeks ofFMLA and CPRA leave by June

15

14,2006. (DSDP ~~30, 32, and 38). Plaintiff had been told his leave would expire in June, 2006

16

and that he needed to notify the County of his intention to either return to work or resign.

17

(DSDP

~20).

18

(DSDP

~23).

19

could not continue as Chair. (DSDP ~24).

20

Plaintiff, again, failed to respond as requested and, instead, asked for more leave. On June 14,2006, the County notified Plaintiff he could have more leave but

By the time Plaintiff finally returned to work on October 4, 2006, he had effectively

21

destroyed his career as a pathologist. He had not practiced in over 10 months and, combined

22

with the personality traits that had destroyed his working relationships with the KMC medical

23

staff, (see discussion below) he could simply no longer do his job.

24

(While he was on leave because he was too "depressed" to work, Plaintiff actively

25

pursued at least six other full-time pathology positions, further showing there was only one place

26

he could not work. (DSDP ~8).)

27 28

Because Plaintiffs decisions to put himself on leave and choose which duties he would do and which he would not do were made unilaterally and without input from the County (DSDP -5DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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

~~12

2

Document 291

Filed 12/08/2008

Page 7 of 11

and 15; Second Amended Complaint ~80), when he returned to work the County reasonabl

imposed certain on him. (PSUF

~267,

Lee Decl., Exh. 22). These were not "discriminatory."

During the brief period between October 4, 2006 and December 7, 2006, when he tried to

3 4

return, Plaintiff usurped the jobs of the lab techs in the pathology laboratory (DSUF ~177), and

5

further isolated himself from the medical staff. (DSUF ~~83, 177, 182, 184, and 186). When he

6

was asked to resume doing the blood bank reviews, he refused. (DSUF ~187). When counseled

7

about his performance, he blamed other staff members and verbally attacked them. (DSUF

8

~179).

9

lack of cooperation and failure to follow Departmental protocol. (DSUF

He avoided the interim chair of the Department until he was finally counseled about his ~~183

and 189).

10

Because he refused to talk with the interim chair about his work, some of Plaintiffs cases were

11

referred to the Peer Review Committee. (DSUF

12

was being singled out for special treatment. (DSUF ~190).

13

~189).

Plaintiff responded by complaining he

Plaintiff was sloppy in his work habits. Other members of the pathology department

14

began to notice he was not removing "sharps" (i.e., blades) from the grossing (i.e. working) area.

15

(DSUF ~~82, 85, and 182, l82a, l82b). He mislabeled specimens. (DSUF ~84). After he

16

refused to send one specimen to an outside reviewer, he responded by sending almost all his

17

cases out, thereby taxing the Department's budget. (DSUF ~185). He failed to correctly proctor

18

another staff member who lacked the privileges to do fine needle aspiration. (DSUF ~180).

19

Plaintiffs attitude stressed his co-workers. He interfered in their work. (DSUF

~177).

~186).

20

He ordered other staff members to perform tasks outside of their job duties. (DSUF

21

retaliated against doctors he did not like. (DSUF

22

least one other physician. (DSUF

23

concerned about Plaintiff s behavior that he met with KMC management about it. (DSUF ~188).

24

The County was concerned that other staff members would file hostile work environment claims

25

because of their mistreatment by Plaintiff. (DSUF ~165).

26

~184).

~164).

He

He was counseled for being hostile to at

The interim chair of the Department was sufficiently

The only responsible thing for the County to do was remove him from the work

27

environment in a way that would do the least damage to him and those around him. (DSUF

28

~4l).

The County pnt Plaintiff on paid administrative leave and let his employment contract run -6-

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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

Document 291

Filed 12/08/2008

Page 8 of 11

lout. There were no "charges" against Plaintiff and he suffered no stigma. He was just sent home 2

and was paid for staying there. Defendants Had Legitimate Business Reasons For The Actions They Took.

3

G.

4

During his tenure as Chair of the Pathology Department, Plaintiff behaved in an

5

increasingly confrontational and hostile way towards members ofthe KMC medical and non-

6

medical staff. (DSUF

7

Medical Officer that his leadership style should be "kinder and gentler." (DSUF '1147). In

8

February, 2005, Plaintiff was told that "he was not acting like a team member." (DSUF ~149).

9

In October 2005, Plaintiff was described as lacking communication skills and failing to "extend

~~69-190).

As early as 2003, Plaintiff was counseled by the Chief

10

basic courtesy to his colleagues." (DSUF ~114). In April, Peter Bryan wrote Plaintiff that he

II

must either improve his relationships with staff or step down as Chair. (DSUF

12

told him, "you have made many derogatory comments about some of the staff members." Ibid.

13

~160).

Mr. Bryan

From the beginning, Plaintiff exhibited no self-awareness and little sensitivity to the

14

effect his behavior had on others. As early as 2003, Plaintiff wrote that complaints his behavior

15

were "irresponsible attempts by a few inadequate individuals." (DSUF

16

Irwin Harris, the Chief Medical Officer, an "idiot" on several occasions and he questioned Toni

17

Smith's competency as chief nursing officer. (DSUF

~~137

~147).

He called Dr.

and 139).

18

Plaintiff wrote an e-mail accusing Dr. Abraham, the former medical staff president, of no

19

being "honest, objective or impartial." (DSUF ~148). In a later e-mail, he accused Dr. Abraham

20

of having an "inappropriate personality defect." (DSUF ~154). In another e-mail, he called Dr.

21

Abraham and Dr. Ragland "disgruntled, vindictive individuals." (DSUF ~158). In a letter to Dr.

22

Perticucci, Plaintiff called him "dishonest." (DSUF

23

~153).

He called Dr. Epstein's independent, outside diagnoses "cavalier." (DSUF ~143c).

~142).

He

24

called the radiologists at KMC "incompetent." (DSUF

25

pathology staff at the University of Southern California and Stanford University medical schools

26

at an Oncology Conference in October, 2005. (DSUF '(111).

27 28

Plaintiff publicly criticized the

In one particularly egregious incident, Plaintiff accused Dr. Ragland of being an "impaired physician" with a "level of intellectual functioning well below the high school -7-

DEFENDANTS' MEMORANDUM OF POlNTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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

Document 291

Filed 12/08/2008

Page 9 of 11

1

graduate level" and mental processes that are "chaotic and almost incoherent." He alleged that

2

Dr. Ragland might have a substance abuse, emotional and/or cognitive function disorder. He

3

suggested that Dr. Ragland be drug tested and his patient care duties monitored. (DSUF ~152).

4

This was all because Dr. Ragland sent Plaintiff an e-mail that contained spelling and

5

grammatical mistakes. ld. Plaintiff contacted the licensing board with these same accusations,

6

and he turned Dr. Ragland's e-mail over to KMC's psychiatry department. (DSUF

7

~152a).

Dr. Ragland was, in fact, not "impaired" and Plaintiff later wrote a letter of apology to ~152b).

8

him. (DSUF

9

mistakes, including the phrase: " ... and I have never treated you and your patients exceptionally

10

(Ironically, Plaintiffs letter of apology contains spelling and grammatical

well ... " [italics added] ld.

11

Once, Plaintiff became angry because he missed an inspection of his department and the

12

laboratory manager reported Plaintiff as saying, "If he had a gun-a gun he would have shot

13

someone." (DSUF ~163). In 2003, Plaintiff became so enraged at a radiologist, Dr. Lau, that he

14

grabbed him by his tie and pulled him out ofa room at KMC. (DSUF

15

blamed Dr. Lau for the incident, saying Dr. Lan was afraid of "data" Plaintiff was going to show

16

him. (DSUF ~91a). Plaintiff was found to have violated the County's Workplace Violence

17

Policy and was given a written reprimand. (DSUF ~91c and 92).

~~90-93).

Plaintiff

18

Plaintiff was unable to work cooperatively with the Radiology Department. There had

19

been relatively few complaints about the radiologists before Plaintiff arrived at KMC. (DSUF

20

~95).

21

recommend a resolution. Plaintiff rejected Dr. Lieu's recommendation (DSUF ~98) and called

22

Dr. Lieu, "unjustifiably pompous." (DSUF

23

An independent outside consultant, Dr. Lieu, was brought in to study the problem and

~98).

Plaintiff had a penchant for demanding apologies from others. He demanded an apology

24

from the Radiology Department and specified it had to occur at a staff meeting, with Dr. Amin,

25

Dr. Abraham, Dr. Munoz, and Dr. Naderi standing at the podium while he received the apology.

26

(DSUF ~~99 and 150). He demanded an apology from Dr. Perticucci for pointing out mistakes

27

the Pathology Department had made. (DSUF ~153). He demanded an apology from Dr.

28

Abraham, again to occur at a staff meeting, because he found her behavior objectionable. -8-

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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

Document 291

Filed 12/08/2008

Page 10 of 11

1

(DSUF ~155). He demanded an apology "meeting [his] specifications" from Dr. Roy for not

2

providing documentary evidence of deficiencies in the Pathology Department by a deadline

3

Plaintiff imposed. (DSUF

4

apologies from Dr. Ragland, Dr. Abraham, Dr. Taylor, ffi1d Dr. Roy, did not abate. (DSUF

5

~156).

Even after he put himself on leave, Plaintiff s demands for ~18).

By 2005, Plaintiff had alienated most members of the medical staff. Jd. Events cmne to

6

head at the October 12, 2005 Oncology Conference. Plaintiffs presentations at these

7

conferences had been problematic before. In 2003, Plaintiff was counseled to prioritize

8

information and present it succinctly. (DSUF ~I 01). In 2004, he was warned that a presentation

9

he wanted to make, consisting of 52 slides, would take more time than was allotted. (DSUF

10 11

'1l02). In May 2005, he was again requested to observe the time limits. (DSUF ~103). Plaintiffs presentation at the October 12, 2005 oncology conference was inappropriate.

12

It greatly exceeded the allotted time, contained too many slides, did not conform to the

13

instructional purpose of the conference, included unprofessional criticisms of both the University

14

of Southern California and Stanford University, deteriorated into an argument between Plaintiff

15

and Dr. Roy over a specific case and monopolized the conference to such an extent that no one

16

else was able to make their presentations. (Taylor Depo., 12/5/07, pg. 14:19-21; pg. 15:1-4; pg.

17

27: 16-17; pgs. 31 :17-32:21; pg. 51: 12-25; pg. 55:7-23; pg. 62: 19-25; pg. 63:4-11; pg. 64: 12-19;

18

68:9-17 and DSUF ~~104, 105, 106 and 111 and PSUF ~89). After Plaintiff finally relinquished

19

the podium and sat down, he continued to argue with Dr. Roy. (DSUF

20

~112).

Three physicians who attended the conference wrote confidential letters to the Chief

21

Medical Officer about Plaintiff's behavior. (Harris Depo., 8/13/08, pgs. 113:14-16 and 116:4;

22

DSUF ~107; PSUF ~91). The chief of surgery also voiced a complaint. (DSUF ~108). The past-

23

president of the medical staff testified she was embarrassed by several things Plaintiff had said-

24

such as his criticisms of outside consultffi1tS. (DSUF ~III). Several residents and medical

25

students noted Plaintiff s unprofessional behavior on their evaluations. (DSUF ~I 09).

26

A few days after the conference, the Executive Board of the medical staff presented

27

Plaintiff with a confidential letter that both admonished and counseled him regarding his

28

behavior at the conference. The letter referenced Plaintiff s failure to observe the time limits, his -9DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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

Document 291

Filed 12/08/2008

Page 11 of 11

failure to cooperate with the conference coordinator's instructions regarding time and his use of 2 3

the conference as a platform from which to advance his personal agenda. (DSUF

~113).

In a meeting with KMC' s Chief Executive Officer about a week later, Plaintiff made ~116).

4

loud, angry and derogatory comments about other members of the medical staff. (DSUF

5

When called to a meeting in February 2006 to try and resolve the interpersonal conflicts, Plaintif

6

insulted every other person in the meeting (DSUF

7

efforts to bring resolution to the issue. (DSUF ~~166-174). Plaintiff became increasingly

8

antagonistic and hostile. (DSUF '1~114; 166-174). He told Dr. Abraham she was nothing but a

9

"fat doctor." (DSUF

~166).

~~166-173)

and refused their conciliatory

He told Dr. Ragland, he was unfit to be president of the medical

10

staff. (DSUF ~~13 7, 143a, and 173).

11

meeting was the "most distasteful event" the attendee had ever participated in. (DSUF

12 13

H.

An attendee later wrote to defendant Peter Bryan that the ~174).

Plaintiff Suffered No Retaliation.

Plaintiff sent letters to the California Department of Health Services ("DHS") the College

14

of American Pathologists ("CAP") and the Joint Commission for the Accreditation of Hospital

15

Organizations ("JCAHO") on November 28, 2006 complaining about KMC. (DSUF ~~56a, 56b

16

and 56c). But, he did not inform the County of the letters until December 13, 2006. (DSUF

17

Although he claims he told Gilbert Martinez that he intended to "blow the whistle" on KMC

18

(Second Amended Complaint ~20) he actually only told Mr. Martinez to be prepared for an

19

inspection. (DSUF

20

inspection and, in fact, the inspection did not happen until the next year. (DSUF ~55).

21 22 23 24

~55).

Gilbert Martinez had no idea why Plaintiff told him to prepare for

(The other incidents of "retaliation" that Plaintiff alleges (skull flaps, the oncology conference, the prostatectomy, the "smear campaign") do not warrant further discussion.) The County took no employment action against Plaintiff after he was put on administrative leave on December 7, 2006. It is not possible for the Defendants to have retaliated against him.

25

Respectfully submitted,

26

Dated: December 8, 2008

27 28

~58).

LAW OFFICES OF MARK A. WASSER By:

/s/ Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al. -10-

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORlTIES IN REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT