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

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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DAVID F. JADWIN, D.O.,

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Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 251) [Fed. R. Civ. P. 12(c)]

COUNTY OF KERN, et al., Defendants.

DATE: TIME: CTRM: TRIAL:

January 12, 2009 10:00 U.S. Dist. Ct., Crtrm. 3 2500 Tulare St., Fresno, CA March 24, 2009

Complaint Filed: January 6, 2007

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Plaintiff David F. Jadwin submits his Opposition to Defendant County of Kern’s Motion for Judgment on the Pleadings, filed 11/13/08 (Doc. 250).

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Defendants’ motion contends Defendants should be granted judgment as a matter of law because:

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Here, Plaintiff s [California Tort Claims Act] claim did not put the County on notice of the Claims Plaintiff actually filed in his complaint. None of the Claims in Plaintiff’s Second Amended Complaint are identified or described in his claim. Motion, Doc. 251 at 5:3-8.

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Defendants’ motion is frivolous, harassing and violates Rule 11. 8 A. DEFENDANTS JUDICIALLY ADMITTED THAT PLAINTIFF EXHAUSTED ALL ADEQUATE ADMINISTRATIVE REMEDIES FOR ALL OF HIS CLAIMS BOTH BEFORE AND AFTER FILING THE INSTANT MOTION

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Defendants have admitted on numerous occasions that Plaintiff exhausted all adequate 11 administrative remedies for all of his claims. In fact, such admissions occurred both before and after the 12 filing of their frivolous motion for judgment on the pleadings on 11/13/08. 13 On 5/13/08, Defendants stated in discovery responses that they were not “presently aware of any 14

facts that support the Eighth Affirmative Defense [alleging failure to exhaust administrative remedies]”.1

15 See Lee Decl., Exh. 1 (Defendants’ Second Supplemental Responses to Plaintiff’s Interrogatories, ROG 16 6 at 5:26-6:3). 17 On 8/7/08, Defendants admitted that Plaintiff had “exhausted all adequate administrative 18 remedies for all of his claims”. See Lee Decl., Exh. 2 (Defendants’ Responses to Plaintiff’s Request for 19 Admission, Set One, RFA 16 at 4:23-27). 20 Then on 12/1/08, almost 3 weeks after Defendants filed the instant motion for judgment on the 21 pleadings, Defendants again admitted Plaintiff had exhausted all his administrative remedies as to all 22 claims. See Lee Decl., Exh. 3 (Defendants’ Response to Plaintiff’s Statement of Undisputed Facts, Doc. 23 278, at PMF 210 & 211 on 37:8-17). 24 Defendants’s admissions both before and after the filing of the instant motion belie their own 25 present contention that Plaintiff failed to exhaust remedies under the Tort Claims Act. There motion is 26 1

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The Eighth Affirmative Defense states: “As and for an eighth affirmative defense, Defendants allege that Plaintiff has available adequate administrative remedies which he failed to exhaust and that his claims are, therefore, barred.” Defendants’ Answer to Second Amended Complaint, Doc. 246 at 13:3-5. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO Δs MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 251)

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frivolous and harassing. B. DEFENDANTS’ MOTION VIOLATES THE COURT’S EXPRESS RULING AGAINST FILING OF RULE 12 MOTIONS At the hearing held before Judge Wanger on 10/6/08, Defendants requested permission to file

4 Rule 12 motions in connection with Plaintiff’s Second Amended Complaint. Defendants stated their 5 strong belief that Plaintiff’s new oppositional retaliation claims would be dismissed on a Rule 12 6 motion. Plaintiff pointed out that the parties intended to file motions for summary judgment on 11/13/08 7 anyway and that any Rule 12 motions should be subsumed by the motions for summary judgment for 8 sake of judicial economy and to minimize further delays in the trial calendar. Having heard all the 9 arguments of the parties, Judge Wanger agreed with Plaintiff and ruled from the bench that the parties 10 should not file Rule 12 motions subsequent to the filing of the Second Amended Complaint (which 11 Plaintiff filed on 10/7/08). 12 In observance of this ruling, Plaintiff refrained from filing separate Rule 12 motions to strike 13 Defendants’ 10 frivolous affirmative defenses and instead strained to include these arguments within the 14 restrictive page limits of his motion for summary judgment brief. 15 Defendants’ motion is a violation of Judge Wanger’s ruling. Plaintiff has been prejudiced. 16 17

C. PLAINTIFF’S TORT CLAIMS ACT COMPLAINT WAS MORE THAN ADEQUATE

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Defendants contend:

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[Plaintiff’s] [Tort Claims Act] claim contains no allegation and no factual description of any violation of CFRA, no allegation of “disability,” “depression,” “whistleblowing” to a governmental agency, “reasonable accommodation,” failure to accommodate or failure to engage in the interactive process – allegations that are all integral to his complaint. Motion, Doc. 251 at 5:5-6.

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Defendant’s contention rests on bad law and bad facts.

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1. Well-settled Caselaw Holds that FEHA Claims are Exempt from General Tort Claims Act Requirements As Defendants well know, the caselaw is well settled that actions under FEHA (of which CFRA

25 is a part) are exempt from general California Tort Claims Act requirements. In Snipes v. City of 26 Bakersfield, a case Defendant County of Kern is surely familiar with, the Court of Appeal reversed a 27 grant of demurrer by a Kern County Superior Court, ruling: 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO Δs MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 251)

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In this appeal we conclude that actions seeking redress for employment discrimination pursuant to the California Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq.) are not subject to the claim-presentation requirements of the Tort Claims Act ( Gov. Code, § 810 et seq.).” 145 Cal. App. 3d 861, 863.

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The court further reasoned: 4 We agree with appellant’s argument that the purposes and procedures of the FEHA demonstrate a legislative intent that actions against governmental entities brought under the FEHA are to be excepted from the general requirements of the Tort Claims Act. The FEHA constitutes a comprehensive scheme for combating employment discrimination, with specific time limitations related to the remedies provided.

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Snipes was cited with approval by the California Supreme Court in Rojo v. Kliger, 52 Cal.3d 65, 80 8 (Cal. 1990) (“actions under FEHA are exempt from general Tort Claims Act requirements”). 9 In fact, on 7/31/06, Plaintiff filed, and served on Defendants, his complaint with the California 10 Department of Fair Employment & Housing regarding his claims under FEHA and CFRA. That 11 complaint included an attachment which fully detailed the chronology of transactions and occurrences 12 underlying all of Plaintiff’s FEHA and CFRA claims. It also included many of the legal catchphrases 13 which Defendants seem to hold so dear – “accommodation”, “disability”, “retaliation”, etc.: 14 [. . .] I would be pursuing claims for, among other things, disability discrimination, failure to accommodate disability, retaliation for taking California Family Rights Act medical leaves, etc.” Exhibits to Second Amended Complaint, Doc. 241-2, Exh. 4 at pp. 52-54 (FEHA complaint of 8/3/06).

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2. Plaintiff’s Disclosure of His Claims Exceeded the Requirements of Government Code § 911

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The disclosures contained in Plaintiff’s Tort Claims Act complaint were more than adequate.

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Cal. Gov’t. C. § 910 requires Plaintiff only to disclose the “date, place, and other circumstances of the

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occurrence or transaction”; it does not require recitation of the specific statutory or other legal bases for

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Plaintiff’s claims as Defendants contend.2 Nor does it require evidentiary detail. See Blair v. Sup. Ct.

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Cal. Gov’t. C. § 910 states:

A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following:

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(a) The name and post office address of the claimant. (b) The post office address to which the person presenting the claim desires notices to be sent. (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO Δs MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 251)

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(1990) 218 Cal.App.3d 221, 224; More v. City of San Bernardino (1931) 118 Cal.App. 732. The claim

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need only be drafted with sufficient factual breadth and character to support the legal theories on which

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the plaintiff subsequently plans to sue if the claim is rejected. See Stearns v. County of Los Angeles

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(1969) 275 Cal.App.2d 134, 138 n.3. Recognizing that laypersons often prepare claims without benefit

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of legal advice, courts have ruled that claims need not adhere to the standards of clarity and precision

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expected in pleadings. See Martinez v. County of Los Angeles (1978) 78 Cal.App.3d 242; Foster v.

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McFadden (1973) 30 Cal.App.3d 943. In short, the focus is on disclosure of the circumstances of

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relevant transactions and occurrences, not recitation of legal catchphrases like “reasonable

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accommodation”, “whistleblowing”, “interactive process”, etc.

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Plaintiff’s Tort Claims Act complaint amply fulfills these factual disclosure requirements. Regarding Plaintiff’s whistleblower retaliation claim, the complaint discloses: Pursuant to an employment contract (“Contract”), Complainant was formerly Chair of Pathology at Kern Medical Center (“KMC”). On June 14, 2006, Mr. Peter Bryan (CEO of KMC) summarily informed Complainant that he was being stripped of chairmanship effective June 17, 2006, due to his taking excessive sick leaves. . . . The demotion/termination constituted retaliation by Mr. Bryan against Complainant for raising concerns relating to patient health care. Previous to June 14, Complainant had apprised Mr. Bryan and other medical staff leadership in emails and communications too numerous to count of several crisis issues which critically jeopardized patient health care at KMC: i) need for follow-up on failure of a formerly-employed KMC pathologist to detect cancer diagnoses in numerous patient prostate biopsies; ii) chronically incomplete or inaccurate KMC blood component product chart copies, in violation of state regulations and accreditation standards of JCAHO, CAP and AABB; iii) chronically inadequate fine needle aspirations collected by KMC radiologists leading to incomplete and/or incorrect patient diagnoses and greatly increased expense for KMC; iv) need for KMC pathology dept. i) to review outsourced pathology diagnoses prior to undergoing major therapy in reliance on those diagnoses and ii) to approve outsourcing of pathology to outside vendors; and v) need for effective oversight of blood usage program by pathology dept.

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claim asserted. (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO Δs MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 251)

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Exhibits to Second Amended Complaint, Doc. 241-2, Exh. 2 at pp. 28-30 (Tort Claims Act complaint of 7/3/06).

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Both whistleblower statutes which Plaintiff is suing under – Labor Code § 1102.5 and Health & Safety

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Code § 1278.5 – expressly provide that an employee’s reports to his public employer constitute

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whistleblowing. H&S § 1278.5(b)(1)(A); Labor C. § 1102.5(e). That is exactly what is disclosed in the

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foregoing. Nor did Plaintiff blow the whistle to external regulatory authorities until much later, in

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November 2006. Defendants’ allegation that Plaintiff’s Tort Claims Act complaint is deficient is

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baseless and frivolous.

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Moreover, the purpose of the Tort Claims Act is “to provide the public entity sufficient

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information to enable it to adequately investigate claims and to settle them, if appropriate, without the

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expense of litigation.” City of San Jose v. Sup. Ct. (1974) 12 Cal.3d 447, 455. Even before Plaintiff had

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filed his Tort Claims Act complaint on 7/3/06, Plaintiff sent a demand letter on 6/29/06 to Defendants,

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fully detailing Plaintiff’s pending claims for retaliation for reporting patient care issues to his employers,

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disability discrimination, failure to accommodate, etc. The disclosure of pending claims in that letter put

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Defendants on notice as to the nature of all of Plaintiff’s claims, not just those required to be disclosed

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under the Tort Claims Act. See See Lee Decl., Exh. 4 (Demand letter, as served by Plaintiff’s counsel

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upon Karen Barnes, Chief Deputy County Counsel for the County of Kern on 6/29/06).

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Similarly, the FEHA complaint of 8/3/06 referenced in Section C.1. supra provided detailed

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disclosure to Defendants, more than enabling them to investigate and/or settle Plaintiff’s claims had they

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chosen to do so.

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In short, there were no deficiencies in Plaintiff’s Tort Claims Act complaint, nor can Defendants now claim prejudice from deficiencies which they contend existed in such complaint.

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D.

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Plaintiff questions what good faith basis Defendants could have had in bringing this motion. It

CONCLUSION

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rests on bad facts and bad law, and is ultimately nothing more than bad faith argument. Defendants’

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judicial admissions that Plaintiff exhausted all administrative remedies on all claims both before and

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after the filing of this motion establish that beyond question. It is apparent that Defendants’ purposes in

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bringing this frivolous motion are improper: to harass Plaintiff and increase his costs of litigation, as

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they have done throughout this action. Defendants have violated Rule 113 more times than Plaintiff can

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recount. This motion is but the latest example of that.

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For the foregoing reasons, Plaintiff respectfully requests the Court deny Defendants’ Motion for Judgment on the Pleadings in its entirety.

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RESPECTFULLY SUBMITTED on December 26, 2008.

8 /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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FRCP Rule 11(b) states:

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By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

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(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. USDC, ED Case No. 1:07-cv-00026 OWW TAG Π’S OPPOSITION TO Δs MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 251)

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

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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DAVID F. JADWIN, D.O.,

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

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Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF EUGENE LEE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION FOR JUDGMENT ON PLEADINGS [Fed. R. Civ. P. 12(c)]

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DATE: TIME: CTRM:

January 12, 2009 10:00 U.S. Dist. Ct., Crtrm. 3 2500 Tulare St., Fresno, CA March 24, 2009

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TRIAL:

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Complaint Filed: January 6, 2007

19 20 I, Eugene D. Lee, declare as follows: 21 1.

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

22 California and admitted to practice before the U.S.D.C. for the Eastern District of California. I am 23 counsel of record for Plaintiff David F. Jadwin in this matter. 24 2.

I am making this declaration in support of Plaintiff’s opposition to Defendants’ Motion

25 for Judgment on the Pleadings. I have personal knowledge of the matters set forth below and I could and 26 would competently testify thereto if called as a witness in this matter. 27 3.

Attached hereto as Exhibits are true and correct copies of the following documents which

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were either served on me or transmitted by me on or around the dates indicated:

2 Exh. 1

Date 5/13/2008

Description Defendants’ Second Supplemental Responses to Plaintiff’s Interrogatories, Set One

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8/7/2008

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12/1/2008

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6/29/2006

Defendants’ Responses to Plaintiff’s Requests for Admission, Set One Defendants’ Separate Statement in Opposition to Plaintiff’s Motion for Summary Judgment (Doc. 278) Eugene Lee Faxed Demand Letter to Kern County Deputy Counsel Karen Barnes

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EXHIBIT 1: Defendants’ Second Supplemental Responses to Plaintiff’s Interrogatories, Set One

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Mark A Wasser CA 5B #60160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barmarm, Sr. CA SB #60508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy CA SB #101838 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 9330 I Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]

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Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, JelUlifer Abraham, Scott Ragland, Toni Smith and William Roy

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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) Case No.: I:07-cv-00026-0WW-TAG

DAVID F. JAD"'TN, D.O.

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) ) DEFENDANTS' SECOND

Plaintiff,

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~ ~ ~

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)

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vs.

COUNTY OF KERN, et al., Defendants.

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SUPPLEMENTAL RESPONSES TO PLAINTIFF'S INTEROGATORIES (SET ONE) Date Action Filed: January 6, 2007 Trial Date: December 3, 2008

) )

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PROPOUNDING PARTY:

Plaintiff DAVID F. JADWIN, D.O., F.e.A.p.

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RESPONDING PARTY:

Defendant COUNTY OF KERN

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SET NUMBER:

ONE (1)

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Defendants hereby submit these second supplemental responses to Plaintiff David F. 2

Jad\\iin's Interrogatories, Set One.

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INTERROGATORY NO.1

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State each and every fact that YOU contend supports YOUR Third Affinnative Defense.

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO.1

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All of the Defendants' actions and communications referenced in the complaint were

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done in furtherance of patient care and the administration ofKMC and KMC's peer-review,

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quality assurance and maintenance of quality-of-care programs, all of which are official

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proceedings authorized by statute. All of the letters, e-mails and statements described in the

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complaint were prepared and distributed within the context of hospital management, peer review

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and quality assurance and maintenance of quality-of-care programs. All of Defendants'

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statements were accurate and true. None were false. None was motivated by malice towards

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Plaintiff or by any improper purpose.

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INTERROGATORY NO.2

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State each and every fact that YOU contend supports YOUR Fourth Affirmative Defense.

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO.2

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All of the Defendants' actions and communications referenced in the complaint were

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done in furtherance of patient care and the administration ofKMC and KMC's peer-review,

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quality assurance and maintenance of quality-of-care programs, all of which are officiaI

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proceedings authorized by statute. All of the letters, e-mails and statements described in the

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complaint were prepared and distributed within the context of peer review and quality:assurance

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and maintenance of quality-of-care programs. All of Defendants' statements were accurate and

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true. None were false. None was motivated by malice towards Plaintiff or by any improper

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purpose.

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INTERROGATORY NO.3

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State e:u:h and every fact that YOU contend supports YOUR Fifth Affirmative Defense.

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11/

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SUPPLEMENTAL RESPONSE TO INTERROGATORY NO.3 Plaintiff physically assaulted Dr. Lau in a room at KMC; falsely accused Dr. Ragland of

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being an "impaired" physician and being "incompetent", of having a substance abuse problem,

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an emotional or cognitive function disorder, and an intellectual level of functioning well below

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the high school graduate level; he demanded that Dr. Ragland undergo immediate drug testing,

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be referred to the physician well-being committee, and that his patient care duties be monitored

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until Ragland could be evaluated. Plaintiff publicly accused Dr. Roy of being a "bad doctor" and

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committing malpractice and repeatedly threatened Dr. Roy with lawsuits to recover damages for

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what Plaintiff termed Dr. Roy's "imprudent public behavior." Plaintiffrepeatedly threatened

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legal action as a means of resolving his differences with members of the medical staff;

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repeatedly usurped time allocated to other speakers at monthly oncology conferences to make

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speeches, criticize other physicians and providers, inappropriately debate other members of the

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medical staff and disrupt the conference; wrote many letters and e-mails, all of which have been

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produced, in which he complained about other members of the medical statl and non-medical

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staff, made false accusations against KMC and members of the KMC medical staff and

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demanded that various members of the KMC medical staff be "investigated"; he made

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derogatory comments about and complained about Dr. Abrallam, including accusing her of

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being "nothing more than a weight-loss doctor." He made derogatory comments about and

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complained about Dr. Kercher, Dr. Harris, Dr. Roy, Dr. Naderi, Dr. Taylor, Dr. McBride, Dr.

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Martin, Dr. Ang, Dr. Lang, Dr. Liu and Dr. Shertudke, he wrote many e-mails and letters, all of

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which have been prodnced, falsely alleging that KL\1C was in violation or non-compliance with

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state law and accepted health care protocols; he used e-mail and memos to avoid more personal

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communication with KMC staff and as a vehicle for verbal retaliation for a variety of perceived

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wrongs and personal slights, he resisted repeated efforts by Peter Bryan, Dr. Harris, Dr.

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Abraham, Dr. Kercher, Dr. Ragland and Dr. Kolb to eounsd him and tacilitate an improvement

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in relationships between Plaintiff and other members of the medical staff; he dismissed the

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opinions and observations of other members of KMC staff if their opinions and observations did

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not coincide with his own, he proposed a new protocol for fine needle aspirations without 3 DEFENDA)[TS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S INTERROGATORIES

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discussing it with the Radiology Department and pouted and became openly antagonistic with 2

othcr members ofKMC staff when it was not adopted; he proposed a change in the record

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keeping for blood product chart copies that would have violated state laws on the integrity

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patient records and made accusations to several KMC staff members when it was not adopted.

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Plaintiff drove Dr. Aug, Dr. Lang, Dr. Liu, Denise Long and Jane Thornton from the Pathology

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Department as a result of his continual micro-managing of their work, criticism, interference

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with their work and insistence that they devote disproportionate time to preparing reports and

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forms of minimal importance; he created frustration and stress in other members of the staff as a

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result of the same behaviors, he insisted that staffin the Pathology Department devote

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extraordinary time to compiling information of minimal importance and dismissed their resulting

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concerns about workload; repeatedly tried to monopolize Medical Executive Committee and

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Quality Management committee meetings with issues of personal interest and complaints about

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KMC and other members of the medical staff; ignored and dismissed medical texts and other

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authorities that did not agree with his opinions and dismissed the related concerns of staff;

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resisted requests from treating physicians that he send pathology reports out for a second opinion

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and interfered with patient care while feuding witb treating physicians over the preparation and

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release of pathology reports, interfered with stan; including Evangeline Gallegos, by performing

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their jobs Hnd ignored requests that he let them to their work and do his own job. Plaintiff

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adopted policies for the Pathology Department but applied them inconsistently and selectively;

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he did not comply with his own policies despite insistence that others comply; he gave staff

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inconsistent and contradictory instruction and dismissed their resulting concerns. Plaintiff

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frequently became emotional and argumentative over routine hospital management and

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administration issues and gradually destroyed thc collegiality and teamwork essential to effective

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hospital operation. He routinely retaliated against staff members he perceived as non-supportive

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by threatening them, making all egaLiulls against them and demanding they be investigated.

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Plaintiff frequently demanded that various members of the KMC staff "apologize" to him for

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statements made in the course of peer-review and quality management processes. Plaintiffs

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typical response to disagreements was to blame and accuse others, verbally assault them and, 2

ultimately, make complaints against them.

3

INTERROGATORY NO.4

4 5

State each and every fact that YOU contend supports YOUR Sixth Affirmative Defense. SUPPLEMENTAL RESPONSE TO INTERROGATORY :'1"0. 4 Dr. Roy's alleged refusal to submit outside pathology reports for internal review in 2005

6 7

(Second Supplemental Complaint at 13 :23-14: 1); the Dr. Roy letter of April IS, 2005 (lbid at

8

14:5); the concerns Dr. Roy voiced in or before May, 2005 (Ibid at 15:1); the Roy letter of July

9

15,2005 (Ibid at 16:3-8); the October 12, 2005 oncology conference (Ibid at 17:5-7); the Roy

10

letter of October 13,2005 (Ibid at 17: 16-18:3); the October 17,2005 meeting with Dr. Harris,

11

Dr. Kercher and Dr. Ragland (Ibid at 19:8-9); the October 17,2005 letter from Dr. Harris, Dr.

12

Kercher, Dr. Ragland and Dr. Abraham (Ibid at 19:19-20); the Febmary 21, 2006 letter from

13

Pcter Bryan (Ibid at 21 :11-19).

14

INTERROGATORY !'IO. 5

15

State each and every fact that YOU contend supports YOUR Seventh Affirmative

16

Defense.

17

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO.5

18

Dr. Roy's alleged refusal to submit outside pathology reports for internal review in 2005

19

(Second Supplemental Complaint at 13:23-14: 1); the Dr. Roy letter of April 15, 2005 (Ibid at

20

14:5); the concerns Dr. Roy voiced in or before May, 2005 (Ibid at 15: 1); the Roy letter of July

21

15,2005 (Ibid at 16:3-8); the October 12,2005 oncology conference (Ibid at 17:5-7); the Roy

22

letter of October 13, 2005 (Tbidat 17:16-18:3); the October 17, 2005 meeting with Dr. Harris,

23

Dr. Kercher and Dr. Ragland (Ibid at 19:8-9); the October 17,2005 letter from Dr. I-Ianis, Dr.

24

Kercher, Dr. Ragland and Dr. Abraham (Ibid at 19:19-20); the February 21, 2006 letter from

25

Peter Bryan (Ibid at 21 :11-19).

26

INTERROGATORY NO.6

27

28

State each and every fact that YOU contend supports YOUR Eighth Affirmative Defensc.

Iii 5

DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S INTERROGATORIES

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SUPPLEMENTAL RESPONSE TO INTERROGATORY NO.6 2

Defendants are not presently aware of any facts that support the Eighth Affirmative

3

Defense.

4

INTERROGATORY NO.7

5 6 7

State each and every fact that YOU contend supports YOUR Ninth Affirmative Defense.

SUPPLEMENTAL RESPO:-lSE TO INTERROGATORY NO.7 Plaintiff's employment agreements and amendments, the KMC medical staff bylaws,

8

Plaintiffs representation by counsel during the negotiation and execution of the October 3, 2006

9

amendment to his employment agreement, Peter Bryan's IWle 14,2006 e-mail and letter to

10

Plaintiff, the membership ofthe joint conference committee on July 10,2006, the dates and

11

durations of and reasons for Plaintiffs various leaves and absences, all of which have been

12

disclosed.

13

INTERROGATORY NO. 48

14

State each and every job function which YOU contend were the essential functions of

15

PLAINTIFF'S position as Chair of Pathology at K1vlC.

16

SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 48

17

Administrative responsibilities include ensuring, together with the laboratory manager,

18

the Pathology Department is in compliance with federal and state regulations regarding clinical

19

laboratory operation, meets the standards for accreditation by the College of American

20

Pathologists and the American Association of Blood Banks, operates within the policies

21

established by K1vlC and the medical staff bylaws, rules and regulations, and operates effectively

22

and smooth Iy and provides timely reports, provided adequate resources are provided. Administrative duties include overseeing the development, implementation and

24

maintenance of department policies and procedures for the eiinieallaboratory and pathology

25

department, including surgical pathology, cytopathology and autopsy pathology; operating and

26

managing the pathology department quality assessment and improvement program; overseeing

27

the performance of the clinical laboratory in the CAP laboratory proficiency survey program;

28

ensuring that performance deficicncics arc addresscd in a timely manner; monitoring 6 DEFEKDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S INTERROGATORIES

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Page 10 of 120

performance and preparing annual evaluations for staff pathologists and the laboratory manager; 2

serving as a member of the Medical Executive Committee, the Chairmen's Council, the FacuJty

3

Practice Board, the Quality Management Committee, the Blood Usage Committee, and other

4

committees that may be assigned by the president of the medical staff; through participation in

5

the Blood Usage Committee, ensuring adequate transfusion service and utilization, coordinating

6

and monitoring department faculty involvement in hospital committees, conducting and

7

monitoring regular department meetings, in compliance 'With medical staff bylaws, and provides

8. timely department reports, including an annual department report for the medical staff, 9

coordinating medical student and resident training for students and residents on training rotation

10

within the department, meeting 'With the KMC medical director at least monthly, overseeing the

II

scheduling and effectiveness of pathology educational conferences for outside departments,

12

including the oncology conference and the oncology clinic, and completing clinical pathology

13

and anatomic pathology service work as may be required.

14

Teaching duties include coordinating and participating in tcaching conferences to include

15

weekly gynecology conference, oncology conference, and surgery conference, preparing and

16

presenting didactic lectures, and actively participating in and presenting departmental,

17

interdepartmental, and interdisciplinary programs 'Within KMC.

18

Other duties may be assigned by the chief executive officer or medical director.

19

The standard workweek for Plaintiffs position is 48 hours per week Actual hours may

20

vary week-to-week according to specific assignments, however the objective is to achieve 2112

21

worked hours Juring a twelve·month period.

22

The Chair of the Department of Pathology is responsible to the Board of Supervisors,

23

though the Medical Executive Committee, for high quality professional management and care of

24

patients under the jurisdiction of the department; establishing systems to monitor the quality of

2S

patient care and professional performance in the department through a planned and systematic

26

process; specific recommendations and suggestions regarding the improvement of patient care in

27

the department; review of professional performance of all members with respcct to clinical

28

privileges; recommending delineated clinical privileges for each member of the department, 7 DEFEKDANTS' SUPPLEMENTAL RESPONSES TO PLANTIFF'S INTERROGATORIES

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including practitioner appointment and classification, reappointment, criteria for clinical 2

privileges, and corrective action; discipline of members and staff pursuant to Article XI of the

3

Medical Staff Bylaws, evaluation of all full- and part-time medical staff and other members of

4

the medical staff who are active clinically, or teach on an annual basis; enforcing the medical

5

staff bylaws, rules, regulations and policies within the department; promoting clinical research in

6

the department; implementing within the department actions taken by the medical executive

7

committee; recommending, creating, deleting or changing the divisions of the department and th

8

appointment of division chiefs, being a member of the medical executive committee and giving

9

guidance on the overall medical policies ofthe medical staff and medical center and making

10

specific recommendations and suggestions regarding the department; reporting to the medical

II

executive committee and president of staff regarding all professional activities within the

12

department; assuring the orientation of all practitioners in the department in cooperation with

13

medical center administration; any other activity or functions as would reasonably be the

14

responsibility of a chair of a department of a teaching hospital or as assigned by the medical

15

director.

16

The Chair ofthe Department of Pathology is responsible to the Board of Supervisors,

17

though the chief executive officer, for administrative activities of the department, establishing

18

and maintenance of postgraduate medical education programs, participating in every phase of

19

administration of the department through cooperation "'ith the department of nursing and the

20

medical center administration in matters affecting patient care, including, without limitation,

21

personnel, supplies, special regulations, standing orders and techniques, assessing and

22

recommending to the relevant medical center authority off-site sources for needed patient care

23

services not provided by the department or the medical center, preparing n:ports, budgetary plans

24

and infonnation relating to the department, appointing a designee to act as chair of the

25

department in thc absence of the chair, with the approval of the chief executive officer and

26

president of staff, and any other administrative activity or non-clinical managerial function as

27

///

28

III 8 DEPENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF'S INTERROGATORIES

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would reasonably be the responsibility of a chair of a department of a teaching hospital or as 2

assigned by the chief executive officer.

3

4 5

SIGNATURE OF PARTY UNDER OATH

I, Paul J. Hensler, have read Plaintiffs first set of interrogatories to Defendants and the

6

foregoing supplemental answers thereto and certify under penalty of petjury that the answers are

7

true and correct.

8

Dated: May 13, 2008

9 10 II

By:._ _---,--_ Paul J. Hensler Chief Executive Officer, Kern Medical Center

12

13 14

15 16 17

18 19 20

21 22

23 24

25

26 27

28 9 DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLADITIFF'S INTERROGATORIES

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

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Page 13 of 120

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

EXHIBIT 2: Defendants’ Responses to Plaintiff’s Requests for Admission, Set One

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION O EUGENE D. LEE IN SUPPORT OF Π’S OPPOSITION TO Δs MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 251) 4

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

I 2 3 4 5 6 7 8

Document 293-2

Filed 12/26/2008

Page 14 of 120

Mark A. Wasser CA SB #60160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 2640 Sacramento, California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barmann, Sr. CA SB #060508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy CA SB #101838 IllS Truxtun Avenue, Fourth Floor Bakersfield, California 9330 I Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]

9 10 II

Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jelli1ifer Abraham, Scott Ragland, Toni Smith and William Roy

12 13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF CALIFORNIA

IS 16

DAVID F. JADWIN, D.O.

19 20

DEFENDANTS' RESPONSES TO

Plaintiff,

17 18

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

PLAINTIFF'S REQUEST FOR ADMISSION (SET ONE)

vs.

COUNTY OF KERN, et a!.,

Date Action Filed: January 6, 2007 Trial Date: December 2, 2008

Defendants.

21 22

PROPOUNDING PARTY:

Plaintiff DAVID F. JADWIN, D.O., F.C.A.P.

23

RESPONDING PARTY:

Defendant COUNTY OF KERN

24

SET NUMBER:

ONE (1)

25 26

Defendants hereby submit these responses to Plaintiff David F. Jadwin's Request for Admission, Set One.

27 28 -1DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

I. 2

3

REQUEST FOR ADMISSION NO.1

Admit that at all times from 10117/05 to 10/4/07, DEFENDANT acted or omitted to act through its officers and agents.

5

RESPONSE TO REQUEST FOR ADMISSION NO.1

7 8 9 10

11

12 13

Admit. REQUEST FOR ADMISSION NO.2

Admit that PLAINTIFF was harmed by DEFENDANT's decision to place three letters of dissatisfaction in PLAINTIFF's medical staff file on 10117/05. RESPONSE TO REQUEST FOR ADMISSION NO.2

Deny. REQUEST FOR ADMISSION NO.3

Admit that PLAINTIFF was harmed by DEFENDANT's decision to remove PLAINTIFF

14

from the position of chair of the department of pathology at KMC on 7/10106.

15

RESPONSE TO REQUEST FOR ADMISSION NO.3

16 17

18

Deny. REQUEST FOR ADMISSION NO.4

Admit that PLAINTIFF was harmed by DEFENDANT's decision to reduce

19

PLAINTIFF's base salary on 10/3/06.

20

RESPONSE TO REQUEST FOR ADMISSION NO.4

21 22

23

Deny. REQUEST FOR ADMISSION NO.5

Admit that PLAINTIFF was harmed by DEFENDANT's decision to deny PLAINTIFF

24

the right to work on a part-time basis from 4128/06 to 10/3/06.

25

RESPONSE TO REQUEST FOR ADMISSION NO.5

26 27

28

Page 15 of 120

COMMON

4

6

Filed 12/26/2008

Deny. REQUEST FOR ADMISSION NO.6

Admit that PLAINTIFF was harmed by DEFENDANT's decision to deny PLAINTIFF -2DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

Filed 12/26/2008

Page 16 of 120

the right to work at home occasionally from 4/28/06 to 10/3/06. 2

RESPONSE TO REQUEST FOR ADMISSION NO.6

3 4

Deny. REQUEST FOR ADMISSION NO.7 Admit that PLAINTIFF was harmed by DEFENDANT's decision to place PLAINTIFF

S

6

on administrative leave from 1217/06 to 10/4/07.

7

RESPONSE TO REQUEST FOR ADMISSION NO.7

8 9

Deny. REQUEST FOR ADMISSION NO.8

10

Admit that PLAINTIFF was harmed by DEFENDANT's decision not to renew

II

PLAINTIFF's employment contract with DEFENDANT in 2007.

12

RESPONSE TO REQUEST FOR ADMISSION NO.8

13 14

Deny. REQUEST FOR ADMISSION NO.9

IS

Admit that DEFENDANT's decision to place three letters of dissatisfaction in

16

PLAINTIFF's medical staff file was a substantial factor in causing PLAINTIFF's harm.

17

RESPONSE TO REQUEST FOR ADMISSION NO.9

18 19

Deny. REQUEST FOR ADMISSION NO. 10 Admit that DEFENDANT's decision to remove PLAINTIFF from the position of the

20 21

chair of the department of pathology at KMC was a substantial factor in causing PLAINTIFF's

22

harm.

23

RESPONSE TO REQUEST FOR ADMISSION NO. 10

24 2S

26 27

Deny. REQUEST FOR ADMISSION NO. 11 Admit that DEFENDANT's decision to reduce PLAINTIFF's base salary was a substantial factor in causing PLAINTIFF's harm.

28 -3DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

Filed 12/26/2008

Page 17 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 11

2 3

Document 293-2

Deny. REQUEST FOR ADMISSION NO. 12

4

Admit that DEFENDANT's decision to deny PLAINTIFF the right to work on a part-

S

time basis from 4/28/06 to 10/3/06 was a substantial factor in causing PLAINTIFF's harm.

6

RESPONSE TO REQUEST FOR ADMISSION NO. 12

7

8

Deny. REQUEST FOR ADMISSION NO. 13

9

Admit that DEFENDANT's decision to deny PLAINTIFF the right to work at home

10

occasionally from 4/28/06 to 10/3/06 was a substantial factor in causing PLAINTIFF's harm.

11

RESPONSE TO REQUEST FOR ADMISSION NO. 13

12 13

Deny. REQUEST FOR ADMISSION NO. 14

14

Admit that DEFENDANT's decision to place PLAINTIFF on administrative leave from

15

12/7/06 to 10/4/07 was a substantial factor in causing PLAINTIFF's harm.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 14

17 18

Deny. REQUEST FOR ADMISSION NO. 15

19

Admit that DEFENDANT's decision not to renew employment contract with

20

DEFENDANT in 2007 was a substantial factor in causing PLAINTIFF's harm.

21

RESPONSE TO REQUEST FOR ADMISSION NO. 15

22 23

Deny. REQUEST FOR ADMISSION NO. 16

24

Admit that PLAINTIFF exhausted all adequate administrative remedies for all of his

25

claims.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 16

27

Admit.

28 -4DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

2

Document 293-2

Admit that throughout the course of PLAINTIFF's employment by DEFENDANT, PLAINTIFF had a recurrent major depressive disorder.

4

RESPONSE TO REOUEST FOR ADMISSION NO. 17

Deny.

II.

6 7

8 9

10 11

12 13

14

HS 1278.5

REOUEST FOR ADMISSION NO. 18

Admit that KMC is a health facility. RESPONSE TO REOUEST FOR ADMISSION NO. 18

Admit. REOUEST FOR ADMISSION NO. 19

Admit that KMC is a government agency. RESPONSE TO REOUEST FOR ADMISSION NO. 19

Defendant admits that KMC is a department of the County of Kern and the County of

15

Kern is a government agency.

16

REOUEST FOR ADMISSION NO. 20

17

Admit that DEFENDANT is a government agency.

18

RESPONSE TO REOUEST FOR ADMISSION NO. 20

19 20

21 22

23

Admit. REOUEST FOR ADMISSION NO. 21

Admit that the California Department of Health Services is a government agency. RESPONSE TO REOUEST FOR ADMISSION NO. 21

Defendant admits that the California Department of Health Care Services is a govermnen

24

agency.

25

REOUEST FOR ADMISSION NO. 22

26 27

Page 18 of 120

REOUEST FOR ADMISSION NO. 17

3

5

Filed 12/26/2008

Admit that Joint Commission on the Accreditation of Healthcare Organizations ("JCAHO") is an accreditation body.

28 -5DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

Filed 12/26/2008

Page 19 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 22 2

3 4

5 6

7 8 9 10 II 12

Defendant admits that The Joint Commission is an accreditation body.

REQUEST FOR ADMISSION NO. 23 Admit that College of American Pathologists ("CAP") is an accreditation body.

RESPQNSE TQ REQUEST FOR ADMISSION NO. 23 Admit.

REQUEST FQR ADMISSION NO. 24 Admit that PLAINTIFF was an employee of a health facility from 10/24/00 to 10/4/07.

RESPQNSE TQ REQUEST FQR ADMISSIQN NO. 24 Defendant admits Plaintiff was an employee of the County of Kern.

REQUEST FOR ADMISSION NO. 25 Admit that PLAINTIFF presented to DEFENDANT complaints about patient care at

13

KMC prior to 6/20/05.

14

RESPONSE TO REQUEST FOR ADMISSION NO. 25

15

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

16

to this request.

17

REQUEST FOR ADMISSION NO. 26

18

Admit that PLAINTIFF presented to DEFENDANT complaints about patient care at

19

KMC from 6/20/05 to 10/17/05.

20

RESPONSE TO REQUEST FOR ADMISSION NO. 26

21

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

22

to this request.

23

REQUEST FOR ADMISSION NO. 27

24

Admit that PLAINTIFF presented to DEFENDANT complaints about patient care at

25

KMC from 12/29/05 to 4/28/06.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 27

27

28

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request. -6DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2

Document 293-2

Admit that PLAINTIFF presented to DEFENDANT complaints about patient care at KMC from 2114/06 to 6/13/06.

4

RESPONSE TO REQUEST FOR ADMISSION NO. 28

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

6

to this request.

7

REQUEST FOR ADMISSION NO. 29

8 9 10 II

Admit that PLAINTIFF presented to DEFENDANT complaints about patient care at KMC from 3/13/06 to 7110/06. RESPONSE TO REQUEST FOR ADMISSION NO. 29

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

12

to this request.

13

REQUEST FOR ADMISSION NO. 30

14

Admit that PLAINTIFF presented to DEFENDANT complaints about patient care at

15

KMC from 6/5/06 to 10/3/06.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 30

17

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

18

to this request.

19

REQUEST FOR ADMISSION NO. 31

20

Admit that PLAINTIFF presented to DEFENDANT complaints about patient care at

21

KMC from 10/3/06 to 12/6/06.

22

RESPONSE TO REQUEST FOR ADMISSION NO. 31

23

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

24

to this request.

25

REQUEST FOR ADMISSION NO. 32

26 27

Page 20 of 120

REQUEST FOR ADMISSION NO. 28

3

5

Filed 12/26/2008

Admit that PLAINTIFF presented to DEFENDANT complaints about patient care at KMC from 6/6/07 to 10/4/07.

28

-7DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2

Document 293-2

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request.

4

REQUEST FOR ADMISSION NO. 34

Admit that PLAINTIFF presented to the College of American Pathologists complaints

6

about patient care at KMC in November 2006.

7

RESPONSE TO REQUEST FOR ADMISSION NO. 34

8 9 10 11

Page 21 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 32

3

5

Filed 12/26/2008

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request. REQUEST FOR ADMISSION NO. 35

Admit that PLAINTIFF presented to the Joint Commission on the Accreditation of

12

Healthcare Organizations complaints about patient care at KMC in November 2006.

13

RESPONSE TO REQUEST FOR ADMISSION NO. 35

14 15

16

Admit. REQUEST FOR ADMISSION NO. 36

Admit that by 10117/05 Peter Bryan was aware that PLAINTIFF had previously

17

presented complaints about patient care at KMC to Defendant.

18

RESPONSE TO REQUEST FOR ADMISSION NO. 36

19

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

20

to this request.

21

REQUEST FOR ADMISSION NO. 37

22

Admit that by 10/17/05 Irwin Harris was aware that PLAINTIFF had previously

23

presented complaints about patient care at KMC to Defendant.

24

RESPONSE TO REQUEST FOR ADMISSION NO. 37

25

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

26

to this request.

27

REQUEST FOR ADMISSION NO. 38

28

Admit that by 10/17/05 Scott Ragland was aware that PLAINTIFF had previously -8DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

Filed 12/26/2008

1

presented complaints about patient care at KMC to Defendant.

2

RESPONSE TO REQUEST FOR ADMISSION NO. 38

3

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

4

to this request.

5

REQUEST FOR ADMISSION NO. 39

6

Admit that by 10/17/05 Jennifer Abraham was aware that PLAINTIFF had previously

7

presented complaints about patient care at KMC to Defendant.

8

RESPONSE TO REQUEST FOR ADMISSION NO. 39

9

After reasonable inquiry, Defendant lacks lmowledge or information sufficient to respond

10

to this request.

11

REQUEST FOR ADMISSION NO. 40

12

Admit that by 10/17/05 Eugene Kercher was aware that PLAINTIFF had previously

13

presented complaints about patient care at KMC to Defendant.

14

RESPONSE TO REQUEST FOR ADMISSION NO. 40

15

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

16

to this request.

17

REQUEST FOR ADMISSION NO. 41

18

Admit that by 4/28/06 Peter Bryan was aware that PLAINTIFF had previously presented

19

complaints about patient care at KMC to Defendant.

20

RESPONSE TO REQUEST FOR ADMISSION NO. 41

21

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

22

to this request.

23

REQUEST FOR ADMISSION NO. 42

24

Admit that by 4/28/06 Steve O'Connor was aware that PLAINTIFF had previously

25

presented complaints about patient care at KMC to Defendant.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 42

27 28

Page 22 of 120

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request. -9DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I 2

Document 293-2

Filed 12/26/2008

REQUEST FQR ADMISSION NQ. 43 Admit that by 4/28/06 Karen Barnes was aware that PLAINTIFF had previously

3

presented complaints about patient care at KMC to Defendant.

4

RESPQNSE TQ REQUEST FOR ADMISSION NO. 43

5 6 7

Defendant objects to this request on the grounds of attorney-client privilege.

REQUEST FOR ADMISSION NQ. 44 Admit that by 6113/06 Peter Bryan was aware that PLAINTIFF had previously presented

8

complaints about patient care at KMC to Defendant.

9

RESPONSE TO REQUEST FOR ADMISSION NO. 44

10

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

II

to this request.

12

REQUEST FOR ADMISSION NO. 45

13

Admit that by 711 0106 Peter Bryan was aware that PLAINTIFF had previously presented

14

complaints about patient care at KMC to Defendant.

15

RESPONSE TQ REQUEST FQR ADMISSIQN NQ. 45

16

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

17

to this request.

18

REQUEST FOR ADMISSION NO. 46

19

Admit that by 711 0106 Scott Ragland was aware that PLAINTIFF had previously

20

presented complaints about patient care at KMC to Defendant.

21

RESPONSE TQ REQUEST FQR ADMISSION NO. 46

22

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

23

to this request.

24

REQUEST FOR ADMISSION NO. 47

25

Admit tbat by 7/10106 Jennifer Abraham was aware that PLAINTIFF had previously

26

presented complaints about patient care at KMC to Defendant.

27

RESPONSE TO REQUEST FOR ADMISSION NO. 47

28

Page 23 of 120

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond -10DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

Filed 12/26/2008

Page 24 of 120

to this request. 2

3

REQUEST FOR ADMISSION NO. 48 Admit that by 7/10106 Toni Smith was aware that PLAINTIFF had previously presented

4

complaints about patient care at KMC to Defendant.

5

RESPONSE TO REQUEST FOR ADMISSION NO. 48

6

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

7

to this request.

8

REQUEST FOR ADMISSION NO. 49

9

Admit that by 7110106 Barbara Patrick was aware that PLAINTIFF had previously

10

presented complaints about patient care at KMC to Defendant.

II

RESPONSE TO REQUEST FOR ADMISSION NO. 49

12

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

13

to this request.

14

REQUEST FOR ADMISSION NO. 50

15

Admit that by 7110106 Ray Watson was aware that PLAINTIFF had previously presented

16

complaints about patient care at KMC to Defendant.

17

RESPONSE TO REQUEST FOR ADMISSION NO. 50

18

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

19

to this request.

20

REQUEST FOR ADMISSION NO. 51

21

Admit that by 711 0106 Jose Perez was aware that PLAINTIFF had previously presented

22

complaints about patient care at KMC to Defendant.

23

RESPONSE TO REQUEST FOR ADMISSION NO. 51

24 25

26 27

Deny.

REQUEST FOR ADMISSION NO. 52 Admit that by 7/10106 David Hill was aware that PLAINTIFF had previously presented complaints about patient care at KMC to Defendant.

28 -11DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

2

Document 293-2

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request.

4

REQUEST FOR ADMISSION NO. 53 Admit that by 7/10/06 Eugene Kercher was aware that PLAINTIFF had previously

6

presented complaints about patient care at KMC to Defendant.

7

RESPONSE TQ REQUEST FOR ADMISSION NO. 53

8 9

10

Deny. REQUEST FOR ADMISSION NO. 54 Admit that by 10/3/06 Peter Bryan was aware that PLAINTIFF had previously presented

11

complaints about patient care at KMC to Defendant.

12

RESPONSE TO REQUEST FOR ADMISSION NO. 54

13

14 15

Deny. REQUEST FOR ADMISSION NO. 55 Admit that by 10/3/06 David Culberson was aware that PLAINTIFF had previously

16

presented complaints about patient care at KMC to Defendant.

17

RESPONSE TO REQUEST FQR ADMISSIQN NO. 55

18 19

20

Deny. REQUEST FOR ADMISSION NQ. 56 Admit that by 10/3/06 Karen Barnes was aware that PLAINTIFF had previously

21

presented complaints about patient care at KMC to Defendant.

22

RESPQNSE TO REQUEST FOR ADMISSION NO. 56

23 24

25

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 57 Admit that by 10/3/06 Barbara Patrick was aware that PLAINTIFF had previously

26

presented complaints about patient care at KMC to Defendant.

27

RESPONSE TO REQUEST FOR ADMISSIQN NO. 57

28

Page 25 of 120

RESPONSE TO REQUEST FOR ADMISSION NQ. 52

3

5

Filed 12/26/2008

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond -12DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

1

to this request.

2

REQUEST FOR ADMISSION NO. 58

3

complaints about patient care at KMC to Defendant.

5

RESPONSE TO REQUEST FOR ADMISSION NO. 58

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

7

to this request.

8

REQUEST FOR ADMISSION NO. 59

9

Admit that by 1216/06 David Culberson was aware that PLAINTIFF had previously

10

presented complaints about patient care at KMC to Defendant.

11

RESPONSE TO REQUEST FOR ADMISSION NO. 59

12 13

14

Deny. REQUEST FOR ADMISSION NO. 60

Admit that by 12/6/06 Irwin Harris was aware that PLAINTIFF had previously presented

15

complaints about patient care at KMC to Defendant.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 60

17

After reasonable inquiry, Defendant lacks knowledge or infonllation sufficient to respond

18

to this request.

19

REQUEST FOR ADMISSION NO. 61

20

Admit that by 12/6/06 Philip Dutt was aware that PLAINTIFF had previously presented

21

complaints about patient care at KMC to Defendant.

22

RESPONSE TO REQUEST FOR ADMISSION NO. 61

23

Page 26 of 120

Admit that by 10/3/06 Ray Watson was aware that PLAINTIFF had previously presented

4

6

Filed 12/26/2008

Defendant admits that Philip Dutt was aware by 12/6/06 that Plaintiff had complained

24

about the diagnosis of specific pathology specimens. Defendant denies the balance of this

25

request.

26

REQUEST FOR ADMISSION NO. 62

27 28

Admit that by 12/6/06 Karen Barnes was aware that PLAINTIFF had previously presented complaints about patient care at KMC to Defendant. -13DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2 3 4

Document 293-2

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 63

Admit that by 10/4/07 Paul Hensler was aware that PLAINTIFF had previously presented complaints about patient care at KMC to Defendant.

6

RESPONSE TO REQUEST FOR ADMISSION NO. 63

8

9

Deny. REQUEST FOR ADMISSION NO. 64

Admit that by 10/4/07 Mark Nations was aware that PLAINTIFF had previously

10

presented complaints about patient care at KMC to Defendant.

II

RESPONSE TO REQUEST FOR ADMISSION NO. 64

12 13

14

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 65

Admit that by 10/4/07 Mark Wasser was aware that PLAINTIFF had previously

IS

presented complaints about patient care at KMC to Defendant.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 65

17 18

19

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 66

Admit that by 10/4/07 Michael Rubio was aware that PLAINTIFF had previously

20

presented complaints about patient care at KMC to Defendant.

21

RESPONSE TO REQUEST FOR ADMISSION NO. 66

22

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

23

to this request.

24

REQUEST FOR ADMISSION NO. 67

25

Admit that by 10/4/07 Ray Watson was aware that PLAINTIFF had previously presented

26

complaints about patient care at KMC to Defendant.

27

RESPONSE TO REQUEST FOR ADMISSION NO. 67

28

Page 27 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 62

5

7

Filed 12/26/2008

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond -14DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

I

to this request.

2

REQUEST FOR ADMISSION NO. 68

3

Filed 12/26/2008

Page 28 of 120

Admit that by 10/4/07 Paul Hensler was aware that PLAlNTIFF had previously presented

4

complaints about patient care at KMC to the California Department of Health Services.

5

RESPONSE TO REQUEST FOR ADMISSION NO. 68

6 7 8 9 10 II 12 13

Deny. REQUEST FOR ADMISSION NO. 69 Admit that by 10/4/07 Mark Nations was aware that PLAlNTIFF had previously presented complaints about patient care at KMC to the California Department of Health Services. RESPONSE TO REQUEST FOR ADMISSION NO. 69 Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 70 Admit that by 10/4/07 Mark Wasser was aware that PLAlNTIFF had previously

14

presented complaints about patient care at KMC to the California Department of Health Services.

15

RESPONSE TO REQUEST FOR ADMISSION NO. 70

16 17

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 71

18

Admit that by 10/4/07 Michael Rubio was aware that PLAlNTIFF had previously

19

presented complaints about patient care at KMC to the California Department of Health Services.

20

RESPONSE TO REQUEST FOR ADMISSION NO. 71

21

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

22

to this request.

23

REQUEST FOR ADMISSION NO. 72

24

Admit that by 10/4/07 Ray Watson was aware that PLAlNTIFF had previously presented

25

complaints about patient care at KMC to the California Department of Health Services.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 72

27 28

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request. -15DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2

Document 293-2

Filed 12/26/2008

REQUEST FOR ADMISSION NO. 73 Admit that by 10/4/07 Paul Hensler was aware that PLAINTIFF had previously presented

3

complaints about patient care at KMC to an accreditation body.

4

RESPONSE TO REQUEST FOR ADMISSION NO. 73

5

6 7

Deny.

REQUEST FOR ADMISSION NO. 74 Admit that by 1014/07 Mark Nations was aware that PLAINTIFF had previously

8

presented complaints about patient care at KMC to an accreditation body.

9

RESPONSE TO REQUEST FOR ADMISSION NO. 74

10

11 12

Defendant objects to this request on the grounds of attorney-client privilege.

REQUEST FOR ADMISSION NO. 75 Admit that by 10/4/07 Mark Wasser was aware that PLAINTIFF had previously

13

presented complaints about patient care at KMC to an accreditation body.

14

RESPONSE TO REQUEST FOR ADMISSION NO. 75

15

16 17

Defendant objects to this request on the grounds of attorney-client privilege.

REQUEST FOR ADMISSION NO. 76 Admit that by 10/4/07 Michael Rubio was aware that PLAINTIFF had previously

18

presented complaints about patient care at KMC to an accreditation body.

19

RESPONSE TO REQUEST FOR ADMISSION NO. 76

20

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

21

to this request.

22

REQUEST FOR ADMISSION NO. 77

23

Admit that by 10/4/07 Ray Watson was aware that PLAINTIFF had previously presented

24

complaints about patient care at KMC to an accreditation body.

25

RESPONSE TO REQUEST FOR ADMISSION NO. 77

26 27

Page 29 of 120

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request.

28

-16DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2

Document 293-2

Filed 12/26/2008

Page 30 of 120

REQUEST FQR ADMISSION NO. 78

Admit that PLAINTIFF's complaints about patient care at KMC were a motivating

3

reason in DEFENDANT's decision to place three letters of dissatisfaction in PLAINTIFF's

4

medical staff file on 10/17/05.

5

RESPQNSE TQ REQUEST FOR ADMISSIQN NO. 78

6 7

8 9 10 II 12 13

Deny. REQUEST FQR ADMISSION NO. 79

Admit that PLAINTIFF's complaints about patient care at KMC were a motivating reason in DEFENDANT's decision to convert PLAINTIFF's leave to full time leave on 4/28/06. RESPONSE TO REQUEST FQR ADMISSION NO. 79

Deny. REQUEST FQR ADMISSION NO. 80

Admit that PLAINTIFF's complaints about patient care at KMC were a motivating

14

reason in DEFENDANT's decision to recommend removal of PLAINTIFF from the position of

15

chair of the department of pathology on 6/13/06.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 80

17 18 19

Deny. REQUEST FQR ADMISSION NO. 81

Admit that PLAINTIFF's complaints about patient care at KMC were a motivating

20

reason in DEFENDANT's decision to remove PLAINTIFF from the position of chair of the

21

department of pathology on 7/10/06.

22

RESPONSE TO REQUEST FOR ADMISSION NO. 81

23 24 25

Deny. REQUEST FOR ADMISSION NO. 82

Admit that PLAINTIFF's complaints about patient care at KMC were a motivating

26

reason in DEFENDANT's decision to reduce PLAINTIFF base salary on 10/3/06.

27

RESPONSE TO REQUEST FOR ADMISSIQN NQ. 82

28

Deny. -17DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2

Document 293-2

Filed 12/26/2008

Page 31 of 120

REQUEST FQR ADMISSION NO. 83

Admit that PLAINTIFF's complaints about patient care at KMC were a motivating

3

reason in DEFENDANT's decision to place PLAINTIFF on administrative leave on 12/7/06.

4

RESPONSE TO REQUEST FOR ADMISSION NO. 83

5 6

Deny. REQUEST FOR ADMISSION NO. 84

7

Admit that PLAINTIFF's complaints about patient care at KMC were a motivating

8

reason in DEFENDANT's decision not to renew PLAINTIFF's employment contract with

9

DEFENDANT in 2007.

10 11

RESPONSE TO REQUEST FOR ADMISSION NO. 84

Deny.

III.

12 13

14 15

16 17 18

LC 1102.5

REQUEST FOR ADMISSION NO. 85

Admit that PLAINTIFF made reports of violations of law to DEFENDANT. RESPONSE TO REQUEST FQR ADMISSIQN NO. 85

Deny. REQUEST FQR ADMISSIQN NO. 86

Admit that PLAINTIFF made reports of violations of law to the California Department 0

19

Health Services.

20

RESPONSE TO REQUEST FOR ADMISSION NQ. 86

21 22 23

Deny. REQUEST FOR ADMISSION NO. 87

Admit that PLAINTIFF had reasonable cause to believe that he was disclosing violations

24

of law to DEFENDANT.

25

RESPONSE TQ REQUEST FQR ADMISSION NQ. 87

26 27 28

Deny. REQUEST FOR ADMISSION NO. 88

Admit that PLAINTIFF had reasonable cause to believe that he was disclosing violations -18DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

Filed 12/26/2008

Page 32 of 120

of law to the California Department of Health Services. 2

3 4

5

RESPONSE TO REQUEST FOR ADMISSION NO. 88

Deny. REQUEST FOR ADMISSION NO. 89

Admit that by 10117/05 Peter Bryan was aware that PLAINTIFF had made reports of

6

violations of law to DEFENDANT.

7

RESPONSE TO REQUEST FOR ADMISSION NO. 89

8 9 10 II

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request. REQUEST FOR ADMISSION NO. 90

Admit that by 10117/05 Irwin Harris was aware that PLAINTIFF had made reports of

12

violations of law to DEFENDANT.

13

RESPONSE TO REQUEST FOR ADMISSION NO. 90

14

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

15

to this request.

16

REQUEST FOR ADMISSION NO. 91

17

Admit that by 10/17/05 Scott Ragland was aware that PLAINTIFF had made reports of

18

violations of law to DEFENDANT.

19

RESPONSE TO REQUEST FOR ADMISSION NO. 91

20

Aftcr reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

21

to this request.

22

REQUEST FOR ADMISSION NO. 92

23

Admit that by 10/17/05 Jermifer Abraham was aware that PLAINTIFF had made reports

24

of violations oflaw to DEFENDANT.

25

RESPONSE TO REQUEST FOR ADMISSION NO. 92

26 27

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request.

28 -19DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2

Document 293-2

Admit that by 10/17/05 Eugene Kercher was aware that PLAINTIFF had made reports of violations oflaw to DEFENDANT.

4

RESPONSE TO REOUEST FOR ADMISSION NO. 93

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

6

to this request.

7

REOUEST FOR ADMISSION NO. 94

8 9 10 11

Admit that by 4/28/06 Peter Bryan was aware that PLAINTIFF had made reports of violations of law to DEFENDANT. RESPONSE TO REOUEST FOR ADMISSION NO. 94

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

12

to this request.

13

REOUEST FOR ADMISSION NO. 95

14

Admit that by 4/28/06 Steve O'Connor was aware that PLAINTIFF had made reports of

15

violations of law to DEFENDANT.

16

RESPONSE TO REOUEST FOR ADMISSION NO. 95

17

After reasonable inquiry, Defendant lacks knowledge or infonnation sufficient to respond

18

to this request.

19

REOUEST FOR ADMISSION NO. 96

20

Admit that by 4/28/06 Karen Barnes was aware that PLAINTIFF had made reports of

21

violations oflaw to DEFENDANT.

22

RESPONSE TO REOUEST FOR ADMISSION NO. 96

23 24 25

Defendant objects to this request on the grounds of attorney-client privilege. REOUEST FOR ADMISSION NO. 97

Admit that by 6/13/06 Peter Bryan was aware that PLAINTIFF had made reports of

26

violations oflaw to DEFENDANT.

27

RESPONSE TO REOUEST FOR ADMISSION NO. 97

28

Page 33 of 120

REOUEST FOR ADMISSION NO. 93

3

5

Filed 12/26/2008

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond -20DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

I

to this request.

2

REQUEST FOR ADMISSION NO. 98

3

violations oflaw to DEFENDANT.

5

RESPONSE TO REQUEST FOR ADMISSION NO. 98 After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

7

to this request.

8

REQUEST FOR ADMISSION NO. 99

9

Admit that by 7/10/06 Scott Ragland was aware that PLAINTIFF had made reports of

10

violations of law to DEFENDANT.

II

RESPONSE TO REQUEST FOR ADMISSION NO. 99

12

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

13

to this request.

14

REQUEST FOR ADMISSION NO. 100

IS

Admit that by 7/ I0/06 Jennifer Abraham was aware that PLAINTIFF had made reports

16

violations oflaw to DEFENDANT.

17

RESPONSE TO REQUEST FOR ADMISSION NO. 100

18

to this request.

20

REQUEST FOR ADMISSION NO. 101 Admit that by 7/1 0/06 Toni Smith was aware that PLAINTIFF had made reports of

22

violations oflaw to DEFENDANT.

23

RESPONSE TO REQUEST FOR ADMISSION NO. 101

24

After reasonable inquiry, Defendant lacks Imowledge or information sufficient to respond

25

to this request.

26

REQUEST FOR ADMISSION NO. 102

27 28

0

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

19

21

Page 34 of 120

Admit that by 7/1 0/06 Peter Bryan was aware that PLAINTIFF had made reports of

4

6

Filed 12/26/2008

Admit that by 7/1 0/06 Barbara Patrick was aware that PLAINTIFF had made reports of violations of law to DEFENDANT. -21DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

2

Document 293-2

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request.

4

REQUEST FQR ADMISSIQN NO. 103

Admit that by 7/10/06 Ray Watson was aware that PLAINTIFF had made reports of

6

violations of law to DEFENDANT.

7

RESPONSE TO REQUEST FOR ADMISSION NO. 103

8 9 10 11

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request. REQUEST FOR ADMISSION NO. 104

Admit that by 7/1 0/06 Jose Perez was aware that PLAINTIFF had made reports of

12

violations of law to DEFENDANT.

13

RESPONSE TO REQUEST FOR ADMISSION NO. 104

14

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

15

to this request.

16

REQUEST FOR ADMISSION NO. 105

17

Admit that by 7/10/06 David Hill was aware that PLAINTIFF had made reports of

18

violations oflaw to DEFENDANT.

19

RESPONSE TO REQUEST FOR ADMISSION NQ. 105

20

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

21

to this request.

22

REQUEST FOR ADMISSION NO. 106

23

Admit that by 7/1 0/06 Eugene Kercher was aware that PLAINTIFF had made reports of

24

violations oflaw to DEFENDANT.

25

RESPONSE TO REQUEST FQR ADMISSION NO. 106

26 27

Page 35 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 102

3

5

Filed 12/26/2008

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request.

28 -22DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2

Document 293-2

Admit that by 10/3/06 Peter Bryan was aware that PLAINTIFF had made reports of violations oflaw to DEFENDANT.

4

RESPONSE TO REQUEST FOR ADMISSION NO. 107

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

6

to this request.

7

REQUEST FOR ADMISSION NO. 108

8 9 10

11

Admit that by 10/3/06 David Culberson was aware that PLAINTIFF had made reports of violations of law to DEFENDANT. RESPONSE TO REQUEST FOR ADMISSION NO. 108

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

12

to this request.

13

REQUEST FOR ADMISSION NO. 109

14

Admit that by 10/3106 Karen Barnes was aware that PLAINTIFF had made reports of

15

violations oflaw to DEFENDANT.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 109

17

18 19

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 110

Admit that by 10/3106 Barbara Patrick was aware that PLAINTIFF had made reports of

20

violations of law to DEFENDANT.

21

RESPONSE TO REQUEST FOR ADMISSION NO. 110

22

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

23

to this request.

24

REQUEST FOR ADMISSION NO. 111

25

Admit that by 10/3/06 Ray Watson was aware that PLAINTIFF had made reports of

26

violations of law to DEFENDANT.

27

RESPONSE TO REQUEST FOR ADMISSION NO. 111

28

Page 36 of 120

REQUEST FOR ADMISSION NO. 107

3

5

Filed 12/26/2008

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond -23DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

1

to this request.

2

REQUEST FOR ADMISSION NO. 112

3

violations of law to DEFENDANT.

5

RESPONSE TO REQUEST FOR ADMISSION NO. 112

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

7

to this request.

8

REQUEST FOR ADMISSION NO. 113

9

Admit that by 12/6/06 Irwin Harris was aware that PLAINTIFF had made reports of

10

violations of law to DEFENDANT.

11

RESPONSE TO REQUEST FOR ADMISSION NO. 113

12

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

13

to this request.

14

REQUEST FOR ADMISSION NO. 114

15

Admit that by 12/6/06 Philip Dutt was aware that PLAINTIFF had made reports of

16

violations of law to DEFENDANT.

17

RESPONSE TO REQUEST FOR ADMISSION NO. 114

18

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

19

to this request.

20

REQUEST FOR ADMISSION NO. 115

21

Admit that by 12/6/06 Karen Barnes was aware that PLAINTIFF had made reports of

22

violations of law to DEFENDANT.

23

RESPONSE TO REQUEST FOR ADMISSION NO. 115

24 25 26 27

Page 37 of 120

Admit that by 12/6/06 David Culberson was aware that PLAINTIFF had made reports of

4

6

Filed 12/26/2008

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 116

Admit that by 10/4/07 Paul Hensler was aware that PLAINTIFF had made reports of violations oflaw to DEFENDANT.

28 -24DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2

Document 293-2

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request.

4

REQUEST FOR ADMISSIQN NO. 117

Admit that by 10/4/07 Mark Nations was aware that PLAINTIFF had made reports of

6

violations of law to DEFENDANT.

7

RESPONSE TO REQUEST FOR ADMISSION NO. 117

8 9

10

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 118

Admit that by 10/4/07 Mark Wasser was aware that PLAINTIFF had made reports of

11

violations of law to DEFENDANT.

12

RESPONSE TQ REQUEST FOR ADMISSION NO. 118

13 14 15

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 119

Admit that by 10/4/07 Michael Rubio was aware that PLAINTIFF had made reports of

16

violations oflaw to DEFENDANT.

17

RESPONSE TO REQUEST FOR ADMISSION NQ. 119

18

After reasonable inquiry, Defendant lacks knowledge or infonnation sufficient to respond

19

to this request.

20

REQUEST FQR ADMISSION NO. 120

21

Admit that by 10/4/07 Ray Watson was aware that PLAINTIFF had made reports of

22

violations oflaw to DEFENDANT.

23

RESPONSE TQ REQUEST FOR ADMISSION NO. 120

24

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

25

to this request.

26

REQUEST FOR ADMISSION NO. 121

27 28

Page 38 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 116

3

5

Filed 12/26/2008

Admit that by 10/4/07 Paul Hensler was aware that PLAINTIFF had made reports of violations of law to the California Department of Health Services. -25DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2

Document 293-2

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond to this request.

4

REQUEST FOR ADMISSION NO. 122

Admit that by 10/4/07 Mark Nations was aware that PLAINTIFF had made reports of

6

violations of law to the California Department of Health Services.

7

RESPONSE TO REQUEST FOR ADMISSION NO. 122

8 9

10

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 123

Admit that by 10/4/07 Mark Wasser was aware that PLAINTIFF had made reports of

11

violations of law to the California Department of Health Services.

12

RESPONSE TO REQUEST FOR ADMISSION NO. 123

13 14 15

Defendant objects to this request on the grounds of attorney-client privilege. REQUEST FOR ADMISSION NO. 124

Admit that by 10/4/07 Michael Rubio was aware that PLAINTIFF had made reports of

16

violations of law to the California Department of Health Services.

17

RESPONSE TO REQUEST FOR ADMISSION NO. 124

18

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

19

to this request.

20

REQUEST FOR ADMISSION NO. 125

21

Admit that by 10/4/07 Ray Watson was aware that PLAINTIFF had made reports of

22

violations of law to the California Department of Health Services.

23

RESPONSE TO REQUEST FOR ADMISSION NO. 125

24

After reasonable inquiry, Defendant lacks knowledge or information sufficient to respond

25

to this request.

26

REQUEST FOR ADMISSION NO. 126

27 28

Page 39 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 121

3

5

Filed 12/26/2008

Admit that PLAINTIFF's reports of violations oflaw were a contributing factor in DEFENDANT's decision to place three letters of dissatisfaction in PLAINTIFF's medical staff -26DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

1

file on 10/17/05.

2

RESPONSE TO REQUEST FOR ADMISSION NO. 126

3 4

5

Filed 12/26/2008

Page 40 of 120

Deny. REQUEST FOR ADMISSION NO. 127

Admit that PLAINTIFF's reports of violations oflaw were a contributing factor in

6

DEFENDANT's decision to convert PLAINTIFF's leave to full time leave on 4/28/06.

7

RESPONSE TO REQUEST FOR ADMISSION NO. 127

8 9

10

Deny. REQUEST FOR ADMISSION NO. 128

Admit that PLAINTIFF's reports of violations of law were a contributing factor in

11

DEFENDANT's decision to recommend removal of PLAINTIFF from the position of chair of

12

the department of pathology on 6/13/06.

13

RESPONSE TO REQUEST FOR ADMISSION NO. 128

14 15

Deny. REQUEST FOR ADMISSION NO. 129

16

Admit that PLAINTIFF's reports of violations oflaw were a contributing factor in

17

DEFENDANT's decision to remove PLAINTIFF from the position of chair of the department of

18

pathology on 7/1 0/06.

19

RESPONSE TO REQUEST FOR ADMISSION NO. 129

20 21 22

Deny. REQUEST FOR ADMISSION NO. 130

Admit that PLAINTIFF's reports of violations of law were a contributing factor in

23

DEFENDANT's decision to reduce PLAINTIFF base salary on 10/3/06.

24

RESPONSE TO REQUEST FOR ADMISSION NO. 130

25 26 27 28

Deny. REQUEST FOR ADMISSION NO. 131

Admit that PLAINTIFF's reports of violations of law were a contributing factor in DEFENDANT's decision to place PLAINTIFF on administrative leave on 1217/06. -27DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

2 3

Document 293-2

Filed 12/26/2008

Page 41 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 131 Deny. REQUEST FOR ADMISSION NO. 132

4

Admit that PLAINTIFF's reports of violations of law were a contributing factor in

5

DEFENDANT's decision not to renew PLAINTIFF's employment contract with DEFENDANT

6

in 2007.

7

RESPONSE TO REQUEST FOR ADMISSION NO. 132

8

Deny. IV.

9

10 11

CFRAlFMLA

REQUEST FOR ADMISSION NO. 133 Admit that DEFENDANT granted PLAINTIFF medical leave on a "REDUCED LEAVE

12

SCHEDULE" (as that term is defined in 29 C.F.R. § 825.203(a» fromI2/16/05 to 4/28/06.

13

RESPONSE TO REQUEST FOR ADMISSION NO. 133

14 15 16

Deny. REQUEST FOR ADMISSION NO. 134 Admit that as of 12/16/05, PLAINTIFF had more than 12 months of service with

17

DEFENDANT.

18

RESPONSE TO REQUEST FOR ADMISSION NO. 134

19 20 21

Admit. REQUEST FOR ADMISSION NO. 135 Admit that as of 12/16/05, PLAINTIFF had worked more than 1,250 hours for

22

DEFENDANT during the previous 12 months.

23

RESPONSE TO REQUEST FOR ADMISSION NO. 135

24 25 26 27

Admit. REQUEST FOR ADMISSION NO. 136 Admit that as of 12116/05, PLAINTIFF had taken no more than 12 weeks of medical leave in the previous 12 months.

28 -28DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

REQUEST FOR ADMISSION NO. 137

Admit that as of 12116/05, PLAINTIFF was eligible for medica11eave under CFRA. RESPONSE TO REQUEST FOR ADMISSION NO. 137

6 7

Admit. REQUEST FOR ADMISSION NO. 138

Admit that as of 12116/05, PLAINTIFF was eligible for medica11eave under FMLA.

8 9

RESPONSE TO REQUEST FOR ADMISSION NO. 138

10 11

Page 42 of 120

Admit.

4

5

Filed 12/26/2008

RESPONSE TO REQUEST FOR ADMISSION NO. 136

2 3

Document 293-2

Admit. REQUEST FOR ADMISSION NO. 139

12

Admit that PLAINTIFF's recurrent major depressive disorder was a "SERIOUS

13

HEALTH CONDITION" (as that term is defined in 29 C.F.R. § 825.114) from 12116/05 to

14

9111/06.

15

RESPONSE TO REQUEST FOR ADMISSION NO. 139

16 17

Deny. REQUEST FOR ADMISSION NO. 140

Admit that PLAINTIFF took medica11eave from 12116/05 to 4/28/06 for a SERIOUS

18 19

HEALTH CONDITION that made him unable to perform ftffictions of his job on a full-time

20

basis.

21

RESPONSE TO REQUEST FOR ADMISSION NO. 140

22 23 24

Deny. REQUEST FOR ADMISSION NO. 141

Admit that PLAINTIFF provided reasonable notice to DEFENDANT of his need for the

25

medica11eave which began on 12116/05.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 141

27

Deny.

28 -29DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2

Document 293-2

Admit that PLAINTIFF provided reasonable notice to DEFENDANT of his need for an extension of the medical leave which began on 12/16/06.

4

RESPONSE TO REQUEST FOR ADMISSION NO. 142

6

Page 43 of 120

REQUEST FOR ADMISSION NO. 142

3

5

Filed 12/26/2008

Deny. REQUEST FOR ADMISSION NO. 143

7

Admit that PLAINTIFF timely provided certification of his SERIOUS HEALTH

8

CONDITION from a health-care provider in support of his need for the medical leave that began

9

on 12/16/05.

10 11 12

RESPONSE TO REQUEST FOR ADMISSION NO. 143 Deny. REQUEST FOR ADMISSION NO. 144

13

Admit that PLAINTIFF timely provided certification of his SERIOUS HEALTH

14

CONDITION from a health-care provider in support of his need for an extension of the medical

15

leave that began on 12/16/06.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 144

17 18 19

Deny. REQUEST FOR ADMISSION NO. 145 Admit that from 12116/05 to 4/28/06, PLAINTIFF's medical need was best

20

accommodated through medical leave on a REDUCED LEAVE SCHEDULE.

21

RESPONSE TO REQUEST FOR ADMISSION NO. 145

22 23 24

Deny. REQUEST FOR ADMISSION NO. 146 Admit that from 4/28/06 to 9/11106, PLAINTIFF's medical need was best accommodated

25

through medical leave on a REDUCED LEAVE SCHEDULE.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 146

27

Deny.

28 -30DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2

Document 293-2

Filed 12/26/2008

REQUEST FOR ADMISSION NO. 147

Admit that on 4/28/06, DEFENDANT converted PLAINTIFF's medical leave on a

3

REDUCED LEAVE SCHEDULE to full-time medical leave.

4

RESPONSE TO REQUEST FOR ADMISSION NO. 147

5 6

7 8

9 10 II

Deny. REQUEST FOR ADMISSION NO. 148

Admit that DEFENDANT interfered with PLAINTIFF's medical leave on 4/28/06. RESPONSE TO REQUEST FOR ADMISSION NO. 148

Deny. REQUEST FOR ADMISSION NO. 149

Admit that PLAINTIFF was harmed by DEFENDANT's interference with PLAINTIFF's

12

medical leave on 4/28/06.

13

RESPONSE TO REQUEST FOR ADMISSION NO. 149

14

IS 16

Deny. REQUEST FOR ADMISSION NO. 150

Admit that DEFENDANT's interference with PLAINTIFF's medical leave on 4/28/06

17

was a substantial factor in causing PLAINTIFF's harm.

18

RESPONSE TO REQUEST FOR ADMISSION NO. 150

19 20 21

Page 44 of 120

Deny. REQUEST FOR ADMISSION NO. 151

Admit that DEFENDANT used PLAINTIFF's taking of medical leave as a negative

22

factor in recommending removal of PLAINTIFF from the position of chair of the department of

23

pathology at KMC on 6/13/06.

24

RESPONSE TO REQUEST FOR ADMISSION NO. 151

25 26 27 28

Deny. REQUEST FOR ADMISSION NO. 152

Admit that DEFENDANT used PLAINTIFF's taking of medical leave as a negative factor in recommending removal of PLAINTIFF from the position of chair of the department of -31DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

I

pathology at KMC on 7/1 0/06.

2

RESPONSE TO REQUEST FOR ADMISSION NO. 152

3 4

5

Filed 12/26/2008

Page 45 of 120

Deny. REQUEST FOR ADMISSION NO. 153

Admit that PLAINTIFF's taking of medical leave was a motivating reason in

6

DEFENDANT's decision to recommend removal of PLAINTIFF from the position of chair of

7

the department of pathology at KMC on 6/13/06.

8

RESPONSE TO REQUEST FOR ADMISSION NO. 153

9 10 II

Deny. REQUEST FOR ADMISSION NO. 154

Admit that PLAINTIFF's taking of medical leave was a motivating reason in

12

DEFENDANT's decision to recommend removal of PLAINTIFF from the position of chair of

13

the department of pathology at KMC on 7/10/06.

14

RESPONSE TO REQUEST FOR ADMISSION NO. 154

IS 16 17

Deny. REQUEST FOR ADMISSION NO. 155

Admit that PLAINTIFF's taking of medical leave was a motivating reason in

18

DEFENDANT's decision to reduce PLAINTIFF's base salary on 10/3/06.

19

RESPONSE TO REQUEST FOR ADMISSION NO. 155

20 21 22

Deny. REQUEST FOR ADMISSION NO. 156

Admit that PLAINTIFF's taking of medical leave was a motivating reason in

23

DEFENDANT's decision to place PLAINTIFF on administrative leave on 12/7/06.

24

RESPONSE TO REQUEST FOR ADMISSION NO. 156

25 26 27 28

Deny. REQUEST FOR ADMISSION NO. 157

Admit that PLAINTIFF's taking of medical leave was a motivating reason in DEFENDANT's decision not to renew PLAINTIFF's employment contract with DEFENDANT -32DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

1

in 2007.

2

RESPONSE TO REOUEST FOR ADMISSION NO. 157

3

6

Page 46 of 120

Deny. V.

4

5

Filed 12/26/2008

DISABILTY DISCRIM

REOUEST FOR ADMISSION NO. 158

Admit that from at least 10/17/05 to at least 10/4/07, that PLAINTIFF had a "MENTAL

7

DISABILITY" that limited a "MAJOR LIFE ACTIVITY" (as those terms are used in Cal. Gov't.

8

Code § 12926(i)).

9

RESPONSE TO REQUEST FOR ADMISSION NO. 158

10 II

Deny. REQUEST FOR ADMISSION NO. 159

12

Admit that throughout the course of Plaintiffs employment by DEFENDANT, he was

13

unable to perform the "ESSENTIAL FUNCTIONS" of his job (as those terms are used in Cal.

14

Gov't. Code § 12926(f)) when provided accommodation for his MENTAL DISABILITY.

15

RESPONSE TO REQUEST FOR ADMISSION NO. 159

16 17 18

Deny. REQUEST FOR ADMISSION NO. 160

Admit that on 119/06, PLAINTIFF requested accommodation of his MENTAL

19

DISABILITY from the DEFENDANT in the form of temporary part-time work.

20

RESPONSE TO REQUEST FOR ADMISSION NO. 160

21 22

23

Deny. REQUEST FOR ADMISSION NO. 161

Admit that on 119/06, PLAINTIFF requested accommodation of his MENTAL

24

DISABILITY from the DEFENDANT in the form of permission to work from home

25

occasionally.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 161

27

Deny.

28 -33DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I 2

Document 293-2

Filed 12/26/2008

REQUEST FOR ADMISSION NO. 162 Admit that from 119/06 to 4128/06, PLAINTIFF's temporary part-time work was a

3

reasonable accommodation for PLAINTIFF's MENTAL DISABILITY.

4

RESPONSE TO REQUEST FOR ADMISSION NO. 162

5 6 7

Deny.

REQUEST FOR ADMISSION NO. 163 Admit that from 1/9106 to 4/28106, permitting PLAINTIFF to work at home occasionally

8

was a reasonable accommodation for PLAINTIFF's MENTAL DISABILITY.

9

RESPONSE TO REQUEST FOR ADMISSION NO. 163

10

II 12

Deny.

REQUEST FOR ADMISSION NO. 164 Admit that from 4/28/06 to 9/11106, PLAINTIFF's temporary part-time work would have

13

been a reasonable accommodation for PLAINTIFF's MENTAL DISABILITY.

14

RESPONSE TO REQUEST FOR ADMISSION NO. 164

IS 16

Page 47 of 120

Deny.

REQUEST FOR ADMISSION NO. 165

17

Admit that from 4/28/06 to 9/11106, permitting PLAINTIFF to work at home

18

occasionally was a reasonable accommodation for PLAINTIFF's MENTAL DISABILITY.

19

RESPONSE TO REQUEST FOR ADMISSION NO. 165

20 21 22

Deny.

REQUEST FOR ADMISSION NO. 166 Admit that from 4/28/06 to 9/11106, DEFENDANT failed to provide accommodation for

23

PLAINTIFF's MENTAL DISABILITY in the form of temporary part-time.

24

RESPONSE TO REQUEST FOR ADMISSION NO. 166

25 26

Deny.

REQUEST FOR ADMISSION NO. 167

27

Admit that from 4/28/06 to 9/11106, DEFENDANT failed to provide accommodation for

28

PLAINTIFF's MENTAL DISABILITY in the form of permission to work at home occasionally. -34DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I 2 3

Document 293-2

Filed 12/26/2008

RESPONSE TO REOUEST FOR ADMISSION NO. 167 Deny. REQUEST FOR ADMISSION NO. 168

4

Admit that PLAINTIFF was harmed by DEFENDANT's failure to provide

5

accommodation in the form of temporary part-time work from 4/28/06 to 9/11/06.

6

RESPONSE TO REQUEST FOR ADMISSION NO. 168

7 8 9

Page 48 of 120

Deny. REQUEST FOR ADMISSION NO. 169 Admit that PLAINTIFF was harmed by DEFENDANT's failure to provide

10

accommodation in the form of permission to work at home occasionally from 4/28/06 to 9111106.

II

RESPONSE TO REQUEST FOR ADMISSION NO. 169

12 13

Deny. REQUEST FOR ADMISSION NO. 170

14

Admit that DEFENDANT's failure to provide accommodation in the form of temporary

15

part-time work from 4/28/06 to 9/11106 was a substantial factor in causing PLAINTIFF's harm.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 170

17 18 19

Deny. REQUEST FOR ADMISSION NO. 171 Admit that DEFENDANT's failure to provide accommodation in the form of permission

20

to work at home occasionally from 4/28/06 to 9111106 was a substantial factor in causing

21

PLAINTIFF's hann.

22

RESPONSE TO REQUEST FOR ADMISSION NO. 171

23 24 25

Deny. REQUEST FOR ADMISSION NO. 172 Admit that on 4/28/06, DEFENDANT's failed to engage in a "TIMELY, GOOD FAITH,

26

INTERACTIVE PROCESS" (as those terms are used in Cal. Gov't. Code § 12926(n)) with

27

PLAINTIFF to determine how to continue to provide effective accommodation for his MENTAL

28

DISABILITY. -35DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

Filed 12/26/2008

Deny.

REQUEST FOR ADMISSION NO. 173 Admit that PLAINTIFF was harmed by DEFENDANT's failure on 4/28/06, to engage in

4 5

TIMELY, GOOD FAITH, INTERACTIVE PROCESS with PLAINTIFF.

6

RESPONSE TO REQUEST FOR ADMISSION NO. 173

7 8

Page 49 of 120

RESPONSE TO REOUEST FOR ADMISSION NO. 172

2 3

Document 293-2

Deny.

REQUEST FOR ADMISSION NO. 174 Admit that DEFENDANT's failure on 4/28/06, to engage in TIMELY, GOOD FAITH,

9 10

INTERACTIVE PROCESS with PLAINTIFF was a substantial factor in causing PLAINTIFF's

11

harm.

12

RESPONSE TO REQUEST FOR ADMISSION NO. 174

13 14

15

Deny.

REQUEST FOR ADMISSION NO. 175 Admit that DEFENDANT knew by 11130103that PLAINTIFF had a MENTAL

16

DISABILITY.

17

RESPONSE TO REQUEST FOR ADMISSION NO. 175

18 19 20

Deny.

REQUEST FOR ADMISSION NO. 176 Admit that DEFENDANT knew by 10/17/05that PLAINTIFF had a MENTAL

21

DISABILITY.

22

RESPONSE TO REQUEST FOR ADMISSION NO. 176

23 24

25

Deny.

REQUEST FOR ADMISSION NO. 177 Admit that DEFENDANT knew by 4/28/06 that PLAINTIFF had a MENTAL

26

DISABILITY.

27

RESPONSE TO REQUEST FOR ADMISSION NO. 177

28

Deny. -36DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I 2

Document 293-2

Admit that DEFENDANT knew by 6/13/06 that PLAINTIFF had a MENTAL DISABILITY.

4

RESPONSE TO REQUEST FOR ADMISSION NO. 178

6 7

Deny. REQUEST FOR ADMISSION NO. 179 Admit that DEFENDANT knew by 10/3/06 that PLAINTIFF had a MENTAL

8

DISABILITY.

9

RESPONSE TO REQUEST FOR ADMISSION NO. 179

10 II 12

Deny. REQUEST FOR ADMISSION NO. 180 Admit that DEFENDANT knew by 12/6/06 that PLAINTIFF had a MENTAL

13

DISABILITY.

14

RESPONSE TO REQUEST FOR ADMISSION NO. 180

15 16 17

Deny. REQUEST FOR ADMISSION NO. 181 Admit that DEFENDANT knew by 10/4/07 that PLAINTIFF had a MENTAL

18

DISABILITY.

19

RESPONSE TO REQUEST FOR ADMISSION NO. 181

20 21 22

Deny. REQUEST FOR ADMISSION NO. 182 Admit that DEFENDANT thought by 11/30/03 that PLAINTIFF had a MENTAL

23

DISABILITY.

24

RESPONSE TO REQUEST FOR ADMISSION NO. 182

25 26 27 28

Page 50 of 120

REQUEST FOR ADMISSION NO. 178

3

5

Filed 12/26/2008

Deny. REQUEST FOR ADMISSION NO. 183 Admit that DEFENDANT thought by 10/17/05 that PLAINTIFF had a MENTAL DISABILITY. -37DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2 3 4

Document 293-2

Deny.

REQUEST FOR ADMISSION NO. 184 Admit that DEFENDANT thought by 6/13/06 that PLAINTIFF had a MENTAL DISABILITY.

6

RESPONSE TO REQUEST FOR ADMISSION NO. 184

8

9

Deny.

REQUEST FOR ADMISSION NO. 185 Admit that DEFENDANT thought by 1013/06 that PLAINTIFF had a MENTAL

10

DISABILITY.

11

RESPONSE TO REQUEST FOR ADMISSION NO. 185

12

13 14

Deny.

REQUEST FOR ADMISSION NO. 186 Admit that DEFENDANT thought by 12/6/06 that PLAINTIFF had a MENTAL

15

DISABILITY.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 186

17 18 19

Deny.

REQUEST FOR ADMISSION NO. 187 Admit that DEFENDANT thought by 10/4/07 that PLAINTIFF had a MENTAL

20

DISABILITY.

21

RESPONSE TO REQUEST FOR ADMISSION NO. 187

22

23 24

Page 51 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 183

5

7

Filed 12/26/2008

Deny.

REQUEST FOR ADMISSION NO. 188 Admit that PLAINTIFF's MENTAL DISABILITY was a motivating reason in

25

DEFENDANT's decision to place three letters of dissatisfaction in PLAINTIFF's medical staff

26

file on 10/17/05.

27

RESPONSE TO REQUEST FOR ADMISSION NO. 188

28

Deny. -38DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2

Document 293-2

Filed 12/26/2008

Page 52 of 120

REQUEST FOR ADMISSION NO. 189 Admit that DEFENDANT's belief that PLAINTIFF had a MENTAL DISABILITY was

3

motivating reason in DEFENDANT's decision to place three letters of dissatisfaction in

4

PLAINTIFF's medical staff file on 10/17/05.

5

RESPONSE TO REQUEST FOR ADMISSION NO. 189

6 7

Deny.

REQUEST FOR ADMISSION NO. 190

8

Admit that PLAINTIFF's temporary part-time work was a motivating reason in

9

DEFENDANT's decision to convert PLAINTIFF's leave to full-time leave on 4/28/06.

10 11

12 13

RESPONSE TO REQUEST FOR ADMISSION NO. 190 Deny.

REQUEST FOR ADMISSION NO. 191 Admit that PLAINTIFF's occasionally working at home was a motivating reason in

14

DEFENDANT's decision to convert PLAINTIFF's leave to full-time leave on 4/28/06.

15

RESPONSE TO REQUEST FOR ADMISSION NO. 191

16 17

Deny.

REQUEST FOR ADMISSION NO. 192

18

Admit that PLAINTIFF's MENTAL DISABILITY was a motivating reason in

19

DEFENDANT's decision to convert PLAINTIFF's leave to full-time leave on 4/28/06.

20

RESPONSE TO REQUEST FOR ADMISSION NO. 192

21 22

23

2

Deny.

REQUEST FOR ADMISSION NO. 193 Admit that DEFENDANT's belief that PLAINTIFF's MENTAL DISABILITY was a

24

motivating reason in DEFENDANT's decision to convert PLAINTIFF's leave to full-time leave

25

on 4/28/06.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 193

27

Deny.

28

-39DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

Document 293-2

Filed 12/26/2008

Page 53 of 120

REQUEST FOR ADMISSION NO. 194

2

Admit that PLAINTIFF's temporary part-time work was a motivating reason in

3

DEFENDANT's decision to remove PLAINTIFF's from the position of chair of the department

4

of pathology at KMC on 6/13/06.

5

RESPONSE TO REQUEST FOR ADMISSION NO. 194

6 7

8 9

Deny. REQUEST FOR ADMISSION NO. 195 Admit that PLAINTIFF's occasionally working at home was a motivating reason in DEFENDANT's decision to remove PLAINTIFF's from the position of chair of the department

10

of pathology at KMC on 6/13/06.

11

RESPONSE TO REQUEST FOR ADMISSION NO. 195

12 13 14

Deny. REQUEST FOR ADMISSION NO. 196 Admit that PLAINTIFF' s MENTAL DISABILITY was a motivating reason in

15

DEFENDANT's decision to remove PLAINTIFF's from the position of chair of the department

16

of pathology at KMC on 6/13/06.

17

RESPONSE TO REQUEST FOR ADMISSION NO. 196

18 19

20

Deny. REQUEST FOR ADMISSION NO. 197 Admit that DEFENDANT's belief that PLAINTIFF had a MENTAL DISABILITY was a

21

motivating reason in DEFENDANT's decision to remove PLAINTIFF's from the position of

22

chair of the department of pathology at KMC on 6/13/06.

23

RESPONSE TO REQUEST FOR ADMISSION NO. 197

24 25

Deny. REQUEST FOR ADMISSION NO. 198

26

Admit that PLAINTIFF's temporary part-time work was a motivating reason in

27

DEFENDANT's decision to remove PLAINTIFF's from the position of chair of the department

28

of pathology at KMC on 7/10/06. -40DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2 3

4

Document 293-2

Filed 12/26/2008

Page 54 of 120

RESPONSE TO REOUEST FOR ADMISSION NO. 198 Deny.

REQUEST FOR ADMISSION NO. 199 Admit that PLAINTIFF's occasionally working at home was a motivating reason in

5

DEFENDANT's decision to remove PLAINTIFF's from the position of chair of the department

6

of pathology at KMC on 711 0106.

7

RESPONSE TO REQUEST FOR ADMISSION NO. 199

8 9 10

Deny.

REQUEST FOR ADMISSION NO. 200 Admit that PLAINTIFF's MENTAL DISABILITY was a motivating reason in

11

DEFENDANT's decision to remove PLAINTIFF's from the position of chair of the department

12

of pathology at KMC on 7/10106.

13

RESPONSE TO REQUEST FOR ADMISSION NO. 200

14 15

16

Deny.

REQUEST FOR ADMISSION NO. 201 Admit that DEFENDANT's belief that PLAINTIFF had a MENTAL DISABILITY was a

17

motivating reason in DEFENDANT's decision to remove PLAINTIFF's from the position of

18

chair of the department of pathology at KMC on 7110106.

19

RESPONSE TO REQUEST FOR ADMISSION NO. 201

20 21 22

Deny.

REQUEST FOR ADMISSION NO. 202 Admit that PLAINTIFF's temporary part-time work was a motivating reason in

23

DEFENDANT's decision to reduce PLAINTIFF's base salary on 1013/06.

24

RESPONSE TO REQUEST FOR ADMISSION NO. 202

25 26

27 28

Deny.

REQUEST FOR ADMISSION NO. 203 Admit that PLAINTIFF's occasionally working at home was a motivating reason in DEFENDANT's decision to reduce PLAINTIFF's base salary on 10/3/06. -41DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2 3

4

Document 293-2

Filed 12/26/2008

RESPONSE TO REQUEST FOR ADMISSION NO. 203 Deny.

REQUEST FOR ADMISSION NO. 204 Admit that PLAINTIFF's MENTAL DISABILITY was a motivating reason in

5

DEFENDANT's decision to reduce PLAINTIFF's base salary on 10/3/06.

6

RESPONSE TO REQUEST FOR ADMISSION NO. 204

7 8

9

Page 55 of 120

Deny.

REQUEST FOR ADMISSION NO. 205 Admit that DEFENDANT's belief that PLAINTIFF had a MENTAL DISABILITY was,

10

motivating reason in DEFENDANT's decision to reduce PLAINTIFF's base salary on 10/3/06.

II

RESPONSE TO REQUEST FOR ADMISSION NO. 205

12 13

14

Deny.

REQUEST FOR ADMISSION NO. 206 Admit that PLAINTIFF's temporary part-time work was a motivating reason in

15

DEFENDANT's decision to place PLAINTIFF on administrative leave on 12/7/06.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 206

17 18

19

Deny.

REQUEST FOR ADMISSION NO. 207 Admit that PLAINTIFF's occasionally working at home was a motivating reason in

20

DEFENDANT's decision to place PLAINTIFF on administrative leave on 12/7/06.

21

RESPONSE TO REQUEST FOR ADMISSION NO. 207

22 23 24

Deny.

REQUEST FOR ADMISSION NO. 208 Admit that PLAINTIFF's MENTAL DISABILITY was a motivating reason in

25

DEFENDANT's decision to place PLAINTIFF on administrative leave on 12/7/06.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 208

27

Deny.

28

-42DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2

Document 293-2

Filed 12/26/2008

Page 56 of 120

REQUEST FQR ADMISSION NO. 209 Admit that DEFENDANT's belief that PLAINTIFF had a MENTAL DISABILITY was a

3

motivating reason in DEFENDANT's decision to place PLAINTIFF on administrative leave on

4

12/7/06.

5

RESPONSE TQ REQUEST FQR ADMISSION NO. 209

6 7 8

9

Deny.

REQUEST FOR ADMISSION NO. 210 Admit that PLAINTIFF's temporary part-time work was a motivating reason in DEFENDANT's decision not to renew PLAINTIFF's employment contract with DEFENDANT

lOin 2007. II

12 13 14

RESPONSE TO REQUEST FOR ADMISSION NO. 210 Deny.

REQUEST FOR ADMISSION NO. 211 Admit that PLAINTIFF's occasionally working at home was a motivating reason in

15

DEFENDANT's decision not to renew PLAINTIFF's employment contract with DEFENDANT

16

in 2007.

17

RESPONSE TO REQUEST FQR ADMISSION NO. 211

18 19 20

Deny.

REQUEST FOR ADMISSIQN NO. 212 Admit that PLAINTIFF's MENTAL DISABILITY was a motivating reason in

21

DEFENDANT's decision not to renew PLAINTIFF's employment contract with DEFENDANT

22

in 2007.

23

RESPONSE TQ REQUEST FOR ADMISSION NO. 212

24 25

Deny.

REQUEST FOR ADMISSION NO. 213

26

Admit that DEFENDANT's belief that PLAINTIFF had a MENTAL DISABILITY was,

27

motivating reason in DEFENDANT's decision not to renew PLAINTIFF's employment contract

28

with DEFENDANT in 2007. -43DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2

5

Filed 12/26/2008

Deny. VI.

DUE PROCESS

REQUEST FOR ADMISSION NO. 214 Admit that the Board of Supervisors for the County of Kern voted on 12/13/04 to approve

6

the Bylaws of KMC as in effect between 6113/06 and I 0/4/07 ("BYLAWS").

7

RESPONSE TO REQUEST FOR ADMISSION NO. 214

8 9

Page 57 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 213

3 4

Document 293-2

Deny. REQUEST FOR ADMISSION NO. 215

10

Admit that the BYLAWS did not provide for "DUE PROCESS" (as that term is used in

11

the 14th Amendment to the U.S. Constitution) to PLAINTIFF for removal of PLAINTIFF from

12

chairmanship of the KMC Pathology department on 7110106.

13

RESPONSE TO REQUEST FOR ADMISSION NO. 215

14 15 16

Deny. REQUEST FOR ADMISSION NO. 216 Admit that the BYLAWS did not provide for DUE PROCESS to PLAINTIFF for

17

reduction of PLAINTIFF's salary on 10/3/06.

18

RESPONSE TO REQUEST FOR ADMISSION NO. 216

19 20 21

Deny. REQUEST FOR ADMISSION NO. 217 Admit that the BYLAWS did not provide for DUE PROCESS to PLAINTIFF for

22

placement of PLAINTIFF on involuntary administrative leave on 1217106.

23

RESPONSE TO REQUEST FOR ADMISSION NO. 217

24 25 26 27

Deny. REQUEST FOR ADMISSION NO. 218 Admit that the BYLAWS did not provide for DUE PROCESS to PLAINTIFF for nomenewal of PLAINTIFF's employment contract with DEFENDANT on 10/4/07.

28 -44DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1 2 3

Document 293-2

Filed 12/26/2008

Page 58 of 120

RESPONSE TO REOUEST FOR ADMISSION NO. 218 Deny. REQUEST FOR ADMISSION NO. 219

4

Admit that DEFENDANT relied on the BYLAWS in denying DUE PROCESS to

5

PLAINTlFF for removal of PLAINTlFF from chairmanship of the KMC Pathology department

6

on 7/1 0/06.

7

RESPONSE TO REQUEST FOR ADMISSION NO. 219

8 9 10 11

Defendant admits this request to the extent Defendant relied on the Bylaws and denies this request to the extent Defendant did not rely on the Bylaws. REQUEST FOR ADMISSION NO. 220 Admit that DEFENDANT relied on the BYLAWS in denying PLAINTIFF DUE

12

PROCESS for reduction ofPLAINTlFF's base salary on 10/3/06.

13

RESPONSE TO REQUEST FOR ADMISSION NO. 220

14

Defendant admits this request to the extent Defendant relied on the Bylaws and denies

15

this request to the extent Defendant did not rely on the Bylaws.

16

REQUEST FOR ADMISSION NO. 221

17

Admit that DEFENDANT relied on the BYLAWS in denying PLAINTlFF DUE

18

PROCESS for placement of PLAINTlFF on involuntary administrative leave.

19

RESPONSE TO REQUEST FOR ADMISSION NO. 221

20

Defendant admits this request to the extent Defendant relied on the Bylaws and denies

21

this request to the extent Defendant did not rely on the Bylaws.

22

REQUEST FOR ADMISSION NO. 222

23

Admit that DEFENDANT relied on the BYLAWS in denying PLAINTlFF DUE

24

PROCESS for nonrenewal ofPLAINTlFF's employment contract with DEFENDANT on

25

10/4/07.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 222

27

Deny.

28 -45DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2

Document 293-2

Admit that PLAINTIFF had a constitutionally protected property interest in his position as Chair of the Pathology Department at KMC.

4

RESPQNSE TQ REQUEST FQR ADMISSION NQ. 223

6

7

Deny. REQUEST FOR ADMISSION NO. 224

Admit that prior to 7/10/06 PLAINTIFF's constitutionally protected property interest in

8

his position as Chair of the Pathology Department at KMC was clearly established.

9

RESPONSE TO REQUEST FOR ADMISSION NO. 224

10 II

12

Page 59 of 120

REQUEST FQR ADMISSIQN NQ. 223

3

5

Filed 12/26/2008

Deny. REQUEST FOR ADMISSION NO. 225

Admit that prior to 7110/06 there was a mutually explicit understanding between

13

PLAINTIFF and DEFENDANT that PLAINTIFF would not be removed from Chair of the

14

Pathology Department without cause.

15

RESPONSE TO REQUEST FOR ADMISSION NO. 225

16 17 18

Deny. REQUEST FOR ADMISSION NO. 226

Admit that prior to 7/10/06 it was a policy and practice of DEFENDANT not to remove a

19

core physician from Chair of a KMC department without cause.

20

RESPONSE TO REQUEST FOR ADMISSION NO. 226

21 22 23

Deny. REQUEST FOR ADMISSION NO. 227

Admit that DEFENDANT has not removed a core physician from Chair of a KMC

24

department without cause since 10/24/00.

25

RESPONSE TO REQUEST FOR ADMISSION NO. 227

26 27 28

Admit. REQUEST FOR ADMISSION NO. 228

Admit that prior to 7/10/06, a portion of PLAINTIFF's base salary was tied to his -46DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

1

position as Chair of the Pathology Department.

2

RESPONSE TO REQUEST FOR ADMISSION NO. 228

3 4

5

REQUEST FOR ADMISSION NO. 229

Admit that DEFENDANT deprived PLAINTIFF of his position as Chair of the Pathology Department at KMC on 7/10/06.

7

RESPONSE TQ REQUEST FOR ADMISSION NO. 229

9 10 11

Page 60 of 120

Admit.

6

8

Filed 12/26/2008

Defendant admits that Plaintiff was removed from the chairmanship of the Department of Pathology on 7/10/06. REQUEST FOR ADMISSION NO. 230

Admit that DEFENDANT did not give PLAINTIFF any DUE PROCESS prior to

12

removing him from his chairmanship of the KMC Pathology Department on 7/10/06.

13

RESPONSE TQ REQUEST FQR ADMISSION NO. 230

14 15

16

Deny. REQUEST FQR ADMISSION NQ. 231

Admit that DEFENDANT did not give PLAINTIFF any DUE PROCESS after removing

17

him from his chairmanship of the KMC Pathology Department on 7/10/06.

18

RESPONSE TO REQUEST FOR ADMISSION NO. 231

19 20 21

Deny. REQUEST FOR ADMISSION NO. 232

Admit that Peter Bryan was not an impartial adjudicator in connection with the KMC

22

Joint Conference Committee vote to remove PLAINTIFF from his chairmanship.

23

RESPONSE TO REQUEST FOR ADMISSION NO. 232

24 25

26 27

Deny. REQUEST FQR ADMISSION NO. 233

Admit that Toni Smith was not an impartial adjudicator in connection with the KMC Joint Conference Committee vote to remove PLAINTIFF from his chairmanship.

28

-47DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

Filed 12/26/2008

Page 61 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 233 2 3 4

Deny. REQUEST FOR ADMISSION NO. 234 Admit that Irwin Harris was not an impartial adjudicator in connection with the KMC

5

Joint Conference Committee vote to remove PLAINTIFF from his chairmanship.

6

RESPONSE TO REQUEST FOR ADMISSION NO. 234

7 8 9

Deny. REQUEST FOR ADMISSION NO. 235 Admit that Scott Ragland was not an impartial adjudicator in connection with the KMC

10

Joint Conference Committee vote to remove PLAINTIFF from his chairmanship.

11

RESPONSE TO REQUEST FOR ADMISSION NO. 235

12 13 14

Deny. REQUEST FOR ADMISSION NO. 236 Admit that Jennifer Abraham was not an impartial adjudicator in connection with the

15

KMC Joint Conference Committee vote to remove PLAINTIFF from his chairmanship.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 236

17 18 19

Deny. REQUEST FOR ADMISSION NO. 237 Admit that Eugene Kercher was not an impartial adjudicator in connection with the KMC

20

Joint Conference Committee vote to remove PLAINTIFF from his chairmanship.

21

RESPONSE TO REQUEST FOR ADMISSION NO. 237

22 23 24

Deny. REQUEST FOR ADMISSION NO. 238 Admit that DEFENDANT did not permit PLAINTIFF an opportunity to tell his side of

25

the story to the KMC Joint Conference Committee in connection with the decision to remove

26

PLAINTIFF from his chairmanship.

27

RESPONSE TO REQUEST FOR ADMISSION NO. 238

28

Deny. -48DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2

Document 293-2

Admit that PLAINTIFF's removal from chairmanship on 7/10/06 did not warrant immediate action without prior DUE PROCESS.

4

RESPONSE TO REQUEST FOR ADMISSION NO. 239

6

7

Defendant denies this request and also denies that Plaintiff was denied due process. REQUEST FOR ADMISSION NO. 240

Admit that PLAINTIFF had a clearly established right to impartial adjudicators in

8

connection with his removal from chairmanship on 7/1 0/06.

9

RESPONSE TO REQUEST FOR ADMISSION NO. 240

10 II

12

Deny. REQUEST FOR ADMISSION NO. 241

Admit that prior to 10/3/06, PLAINTIFF had a constitutionally protected property interes

13

in his base salary of$287,529 pursuant to his employment contract dated 11/2/02.

14

RESPONSE TO REQUEST FOR ADMISSION NO. 241

15 16 17

Page 62 of 120

REQUEST FOR ADMISSION NO. 239

3

5

Filed 12/26/2008

Deny. REQUEST FOR ADMISSION NO. 242

Admit that prior to 10/3/06, PLAINTIFF's constitutionally protected property interest in

18

his base salary of $287,529 pursuant to his employment contract dated 11/2/02, was clearly

19

established.

20

RESPONSE TO REQUEST FOR ADMISSION NO. 242

21 22 23

Deny. REQUEST FOR ADMISSION NO. 243

Admit that prior to 10/3/06, PLAINTIFF was entitled to a base salary of $287,529 per

24

year pursuant to his employment contract entered into with DEFENDANT as of 11/2/02.

25

RESPONSE TO REQUEST FOR ADMISSION NO. 243

26 27

Defendant admits that prior to 10/3/06 Plaintiff s employment agreement provided for a base salary of $287,529 per year.

28 -49DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

Document 293-2

Filed 12/26/2008

Page 63 of 120

REQUEST FOR ADMISSION NO. 244

2

Admit that prior to 10/3/06, there was a mutually explicit understanding between

3

PLAINTIFF and DEFENDANT that DEFENDANT would not reduce PLAINTIFF's base salary

4

without cause.

5

RESPONSE TO REQUEST FOR ADMISSION NO. 244

6 7

8 9 10 11 12 13

Deny. REQUEST FOR ADMISSION NO. 245

Admit Amendment No.1 to PLAINTIFF's employment contract entered into by and between PLAINTIFF and DEFENDANT on 10/3/06 lacked consideration. RESPONSE TO REQUEST FOR ADMISSION NO. 245

Deny. REQUEST FOR ADMISSION NO. 246

Admit that PLAINTIFF's base salary was reduced by $100,842 on 10/3/06 due to

14

PLAINTIFF's change in status from department chairman to staff pathologist.

15

RESPONSE TO REQUEST FOR ADMISSION NO. 246

16 17

18

Admit. REQUEST FOR ADMISSION NO. 247

Admit that DEFENDANT deprived PLAINTIFF of $1 00,842 of his base salary on

19

10/3/06.

20

RESPONSE TO REQUEST FOR ADMISSION NO. 247

21 22 23

Deny. REQUEST FOR ADMISSION NO. 248

Admit that PLAINTIFF had a constitutionally protected property interest in the

24

opportunity to earn professional fees at KMC pursuant to his employment contract dated 11/2/02.

25

RESPONSE TO REQUEST FOR ADMISSION NO. 248

26 27

28

Deny. REQUEST FOR ADMISSION NO. 249

Admit that PLAINTIFF had a constitutionally protected property interest in the -50DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

Filed 12/26/2008

Page 64 of 120

1

opportunity to earn professional fees at KMC pursuant to his employment contract dated 11/2/02

2

was clearly established.

3

RESPONSE TO REQUEST FOR ADMISSION NQ. 249

4

5 6

Deny. REQUEST FQR ADMISSION NO. 250

Admit that prior to 12/7/07, PLAINTIFF was entitled to the opportunity to earn

7

professional fees at KMC pursuant to his employment contract dated 11/2/02.

8

RESPONSE TO REQUEST FQR ADMISSION NO. 250

9 10 11

Deny. REQUEST FOR ADMISSION NO. 251

Admit that prior to 12/7/07, there was a mutually explicit understanding between

12

PLAINTIFF and DEFENDANT that DEFENDANT would not deny PLAINTIFF the

13

opportunity to earn professional fees at KMC without cause.

14

RESPONSE TO REQUEST FOR ADMISSION NQ. 251

15 16 17

Deny. REQUEST FOR ADMISSION NO. 252

Admit that DEFENDANT placed PLAINTIFF on administrative leave from 12/7/06 to

18

10/4/07.

19

RESPONSE TQ REQUEST FQR ADMISSION NO. 252

20 21

22

Defendant admits that Plaintiff was placed on paid administrative leave on 12/7/06. REQUEST FOR ADMISSION NO. 253

Admit that while on administrative leave from 12/7/06 to 10/4/07, PLAINTIFF was

23

denied the opportunity to earn professional fees at KMC.

24

RESPONSE TO REQUEST FOR ADMISSION NO. 253

25 26 27 28

Deny. REQUEST FOR ADMISSION NO. 254

Admit that DEFENDANT deprived PLAINTIFF of the opportunity to earn professional fees at KMC from 12/7/06 to 10/4/07.

-51DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I 2 3

4

Document 293-2

Deny.

REQUEST FOR ADMISSION NO. 255 Admit that DEFENDANT did not give PLAINTIFF any DUE PROCESS prior to placing PLAINTIFF on administrative leave on 12/7/06.

6

RESPONSE TO REQUEST FOR ADMISSION NO. 255

8 9

Deny.

REQUEST FOR ADMISSION NO. 256 Admit that DEFENDANT did not infOlID PLAINTIFF of the charges against him prior to

10

placing PLAINTIFF on administrative leave on 12/7/06.

II

RESPONSE TO REQUEST FOR ADMISSION NO. 256

12

13 14

Deny.

REQUEST FOR ADMISSION NO. 257 Admit that DEFENDANT did not present PLAINTIFF with evidence against him prior to

15

placing PLAINTIFF on administrative leave on 12/7/06.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 257

17

18 19

Page 65 of 120

RESPONSE TO REOUEST FOR ADMISSION NO. 254

5

7

Filed 12/26/2008

Deny.

REQUEST FOR ADMISSION NO. 258 Admit that DEFENDANT did not permit PLAINTIFF an opportunity to tell his side of

20

the story to DEFENDANT prior to placing PLAINTIFF on administrative leave on 12/7/06.

21

RESPONSE TO REQUEST FOR ADMISSION NO. 258

22 23 24

Deny.

REQUEST FOR ADMISSION NO. 259 Admit that DEFENDANT did not give PLAINTIFF any DUE PROCESS after placing

25

PLAINTIFF on administrative leave on 12/7/06.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 259

27

Deny.

28 -52DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

2

Document 293-2

Admit that DEFENDANT did not inform PLAINTIFF of the charges against him after placing PLAINTIFF on administrative leave on 12/7/06.

4

RESPONSE TO REQUEST FOR ADMISSION NO. 260

6

7

Deny. REQUEST FOR ADMISSION NO. 261

Admit that DEFENDANT did not present PLAINTIFF with evidence against him after

8

placing PLAINTIFF on administrative leave on 12/7/06.

9

RESPONSE TO REQUEST FOR ADMISSION NO. 261

10 11

12

Page 66 of 120

REQUEST FOR ADMISSION NO. 260

3

5

Filed 12/26/2008

Deny. REQUEST FOR ADMISSION NO. 262

Admit that DEFENDANT did not permit PLAINTIFF an opportunity to tell his side of

13

the story to DEFENDANT after placing PLAINTIFF on administrative leave on 12/7/06.

14

RESPONSE TO REQUEST FOR ADMISSION NO. 262

15 16 17

Deny. REQUEST FOR ADMISSION NO. 263

Admit that Irwin Harris was not an impartial adjudicator in comlection with the decision

18

to place PLAINTIFF on administrative leave on 12/7/06.

19

RESPONSE TO REQUEST FOR ADMISSION NO. 263

20 21 22

Deny. REQUEST FOR ADMISSION NO. 264

Admit that Philip Dutt was not an impartial adjudicator in connection with the decision to

23

place PLAINTIFF on administrative leave on 12/7/06.

24

RESPONSE TO REQUEST FOR ADMISSION NO. 264

25 26 27 28

Deny. REQUEST FOR ADMISSION NO. 265

Admit that David Culberson was not an impartial adjudicator in connection with the decision to place PLAINTIFF on administrative leave on 12/7/06. -53DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

1

2 3

4

Document 293-2

Deny. REQUEST FOR ADMISSION NO. 266

Admit that the decision to place PLAINTIFF on administrative leave on 12/7/06 did not warrant immediate action without prior DUE PROCESS.

6

RESPONSE TO REQUEST FOR ADMISSION NO. 266

8

9

Page 67 of 120

RESPONSE TO REQUEST FOR ADMISSION NO. 265

5

7

Filed 12/26/2008

Defendant denies this request and also denies that Plaintiff was denied due process. REQUEST FOR ADMISSION NO. 267

Admit that PLAINTIFF had a clearly established right to impartial adjudicators in

10

connection with the decision to place PLAINTIFF on administrative leave on 12/7/06.

11

RESPONSE TO REQUEST FOR ADMISSION NO. 267

12 13

14

Deny. REQUEST FOR ADMISSION NO. 268

Admit that PLAINTIFF had a clearly established right to DUE PROCESS in cOimection

15

with the decision to place PLAINTIFF on administrative leave on 12/7/06.

16

RESPONSE TO REQUEST FOR ADMISSION NO. 268

17 18 19

Deny. REQUEST FOR ADMISSION NO. 269

Admit that PLAINTIFF had a constitutionally protected property interest in continued

20

employment by DEFENDANT after 10/4/07.

21

RESPONSE TO REQUEST FOR ADMISSION NO. 269

22 23

24

Deny. REQUEST FOR ADMISSION NO. 270

Admit that prior to 10/4/07, PLAINTIFF's constitutionally protected property interest in

25

continued employment by DEFENDANT was clearly established.

26

RESPONSE TO REQUEST FOR ADMISSION NO. 270

27

Deny.

28

-54DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

Document 293-2

Filed 12/26/2008

Page 68 of 120

REQUEST FOR ADMISSION NO. 271

2

Admit that prior to 10/4/07, there was a mutually explicit understanding between

3

PLAINTIFF and DEFENDANT that PLAINTIFF's employment contract would be renewed in

4

the absence of cause.

5

RESPONSE TO REQUEST FOR ADMISSION NO. 271

6 7

8 9 10 II 12 13

Deny.

REQUEST FOR ADMISSION NO. 272 Admit that prior to 10/4/07. it was the policy and practice of DEFENDANT to renew the employment contracts of core physicians at KMC absent cause.

RESPONSE TO REQUEST FOR ADMISSION NO. 272 Deny.

REQUEST FOR ADMISSION NO. 273 Admit that DEFENDANT extended the term of PLAINTIFF's employment with

14

DEFENDANT on 11/2/02.

15

RESPONSE TO REQUEST FOR ADMISSION NO. 273

16

17 18

Deny.

REQUEST FOR ADMISSION NO. 274 Admit that, with the exception of John Digges, DEFENDANT has renewed all core

19

physician employment contracts which were up for renewal since 10/24/00.

20

RESPONSE TO REQUEST FOR ADMISSION NO. 274

21 22 23

Deny.

REQUEST FOR ADMISSION NO. 275 Admit that on 10/4/07, DEFENDANT did not renew PLAINTIFF's employment

24

contract.

25

RESPONSE TO REQUEST FOR ADMISSION NO. 275

26 27 28

Admit.

REQUEST FOR ADMISSION NO. 276 Admit that on 10/4/07, DEFENDANT deprived PLAINTIFF of continued employment -55DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

1

with DEFENDANT.

2

RESPONSE TO REQUEST FOR ADMISSION NO. 276

3 4

5

Filed 12/26/2008

Deny.

REQUEST FOR ADMISSION NO. 277 Admit that DEFENDANT did not give PLAINTIFF any DUE PROCESS in connection

6

with the non-renewal of his employment contract with DEFENDANT in 2007.

7

RESPONSE TO REQUEST FOR ADMISSION NO. 277

8

9 10

Deny.

REQUEST FOR ADMISSION NO. 278 Admit that DEFENDANT did not inform PLAINTIFF of the charges against him prior to

II

failing to renew his employment contract with DEFENDANT on 10/4/07.

12

RESPONSE TO REQUEST FOR ADMISSION NO. 278

13 14 15

Deny.

REQUEST FOR ADMISSION NO. 279 Admit that DEFENDANT did not present PLAINTIFF with evidence against him prior to

16

failing to renew his employment contract with DEFENDANT on 10/4/07.

17

RESPONSE TO REQUEST FOR ADMISSION NO. 279

18

19 20

Page 69 of 120

Deny.

REQUEST FOR ADMISSION NO. 280 Admit that DEFENDANT did not permit PLAINTIFF an opportunity to tell his side of

21

the story to DEFENDANT prior to failing to renew his employment contract with DEFENDANT

22

on 10/4/07.

23

RESPONSE TO REQUEST FOR ADMISSION NO. 280

24

25 26 27

Deny.

REQUEST FOR ADMISSION NO. 281 Admit that DEFENDANT did not give PLAINTIFF any DUE PROCESS after failing to renew his employment contract with DEFENDANT on 10/4/07.

28

-56DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

I

2 3

4

Document 293-2

Filed 12/26/2008

RESPONSE TO REQUEST FOR ADMISSION NO. 281 Deny.

REQUEST FOR ADMISSION NO. 282 Admit that DEFENDANT did not inform PLAINTIFF of the charges against him after

5

failing to renew his employment contract with DEFENDANT on 10/4/07.

6

RESPONSE TO REQUEST FOR ADMISSION NO. 282

7 8

9

Deny.

REQUEST FOR ADMISSION NO. 283 Admit that DEFENDANT did not present PLAINTIFF with evidence against him after

10

failing to renew his employment contract with DEFENDANT on 10/4/07.

II

RESPONSE TO REQUEST FOR ADMISSION NO. 283

12 13

Page 70 of 120

Deny.

REQUEST FOR ADMISSION NO. 284

14

Admit that DEFENDANT did not permit PLAINTIFF an opportunity to tell his side of

15

the story to DEFENDANT after failing to renew his employment contract with DEFENDANT

16

on 10/4/07.

17

RESPONSE TO REQUEST FOR ADMISSION NO. 284

18 19

20

Deny.

REQUEST FOR ADMISSION NO. 285 Admit that PLAINTIFF had a clearly established right to DUE PROCESS in connection

21

with the non-renewal of his employment contract with DEFENDANT in 2007.

22

RESPONSE TO REQUEST FOR ADMISSION NO. 285

23 24

Deny.

REQUEST FOR ADMISSION NO. 286

25

Admit that Irwin Harris, Scott Ragland, Jennifer Abraham and Eugene Kercher decided

26

to place three letters of dissatisfaction in PLAINTIFF's medical staff file on October 17, 2005.

27

RESPONSE TO REQUEST FOR ADMISSION NO. 286

28

Deny. -57DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

Filed 12/26/2008

Page 71 of 120

REQUEST FOR ADMISSION NO. 287

;\dmiltiJal Peter Bryan decided to recommend removal of PI AINTIFF from chair of the KMC Pathology department on Jnne 13, l006. RESPONSE TO IU£QUEST FOR ADMISSION NO. 287

REQUEST FOR A,DMISSION NO. 288

,·\dll1ill!lat the K\'!C' Joint Conference CDmmittee decided to remove PL \INTIFF from Ihe chair (lfthe KMC I'nthology department

011

July 10,2006,

HESPONSIi; TO RE(HiEST FOH ADMISSION NO. 288

l)

Admit. HEQUEST FOR ADMISSION NO. 289

Ii

Admit that the K.cTn County Board of Supervisors decided

10

reduce PL:UNTIFF"s base

salary on OClober 3. 200t),

13

RESPONSE TO REQtiEST FOR ADi\IISSION NO. 289

15 RFor'EST FOR ADMISSION NO. 290

I ()

}\rllnll that DEFENL)i\NT decided not to renew PLAINTIFF's employment contract

17

DEFENDANT on April

18

2007,

HESPONSE TO REOl'EST FOH ADMISSION NO. 290 .

l)em, SIGNATURE OF PARTY tiNDER OATIl

21

L Panl J. Hensler, Imve read Plaintifrs lirsl sci of request I'or admissions ilnd the ,

'foregoing responses thc'1'c'lo and certify under pC'naily of perjury tharlhe responses arc true and

Daled,

:\U[!Us\

200g

13 v', _.

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D1T1NDAN'IS IU'SPONSES TO PL;\INTIIT'S REQUEST lOR ·\D\,IISSION, SLT ONI

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

Document 293-2

Filed 12/26/2008

Page 72 of 120

I

2

SIGNATURE OF ATTORNEY AS TO OBJECTIONS

3

4

Dated: August

7

,2008

LAW OFFICES OF MARK A. WASSER

5 6 7

Mark A. Wasser Attorney for Defendants, County of Kern, et al.

8

9

10 II

12 13

14 15

16 17

18 19

20 21

22 23

24

25

26 27

28 -59DEFENDANTS' RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSION, SET ONE

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

Document 293-2

Filed 12/26/2008

Page 73 of 120

1, Amy Remly, declare:

I am a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is 400 Capitol Mall, Suite 2640, Sacramento, CA 95814. On 3 August 7, 2008, I served the within documents: Defendants' Responses to Plaintiff's Request for Admission, Set One and Defendants' Responses to Plaintiff's Interrogatories, Set Three. 4 D by transmitting via facsimile from (916) 444-6405 the above listed document(s) without error to the fax number(s) set forth below on this date before 5:00 p.m. A copy 5 of the transmittal/confirmation sheet is attached. 2

6 by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California addressed as set forth below.

7 8

9 10 11

o

of the document(s) listed above to the by causing personal delivery by person(s) at the address (es) set forth below.

o

by placing the document(s) listed above in a sealed Federal Express Overnight Delivery envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a Overnight Delivery Federal Express agent for delivery at the address set forth below.

12

13 14 15 16

by transmitting via email the documents listed above to be sent by electronic mail to the email address listed below. Eugene Lee Law Offices of Eugene Lee 555 West Fifth Street, Suite 3100 Los Angeles, California 90013-1010 Email: [email protected]

17 I am readily familiar with the firm's practice of collection and processing correspondence for 18 mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party 19 served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 20 I declare under penalty of perjury under the laws of the State of California that the above is true 2 I and correct. 22

Executed on August 7, 2008, at Sacramento, California.

23 24

\j

25 26

27 28 PROOF OF SERVICE

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

Document 293-2

Filed 12/26/2008

Page 74 of 120

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

EXHIBIT 3: Defendants’ Separate Statement in Opposition to Plaintiff’s Motion for Summary Judgment (Doc. 278)

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION O EUGENE D. LEE IN SUPPORT OF Π’S OPPOSITION TO Δs MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 251) 5

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

1 2 3 4 5 6 7 8

Filed Filed 12/26/2008 12/01/2008

Page Page 75 1 ofof38 120

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

18 19

DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Plaintiff,

16 17

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

DAVID F. JADWIN, D.O.

vs.

COUNTY OF KERN, et aI., Defendants.

Date: January 12,2009 Time: 10:00 a.m. Place: U.S. District Court, Courtroom 3 2500 Tulare Street, Fresno, CA

20 21

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

22 23 24

Defendants submit this Response to Plaintiffs Statement of Undisputed Facts in

25

Opposition to Plaintiffs Motion for Summary Judgment and/or Summary Adjudication

26

pursuant to LR 56-260(a).

27 28 -1DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 76 2 ofof38 120

1

2

Disputed Facts

Supporting Evidence

3

1.

4

2.

5

3.

6

4.

7

5. Plaintiff is the former Chief of Pathology at Kern Medical

Deny. Plaintiff is the former

8

Center ("KMC" or "the hospital"), an acute care teaching

Chair of the Department of

9

hospital and health care facility that is owned and operated

Pathology. See Defendants'

10

by Defendant County of Kern ("Defendant County" or "the

Statement of Undisputed Facts

11

County").

(hereinafter "DSUF") 1a,

12

(DFJOO043-46).

13

6.

14

7.

15

8. In October 2000, Dr. Jadwin began full-time employment

16

at KMC as chair of the pathology department. Plaintiff was

17

an employee of Defendant County from October 24, 2000 to

18

October 4,2007.

19

9. Throughout the course of his employment at KMC, Dr.

Deny. See DSUF 152b

20

Jadwin tried to ensure that patient care was based on

(DFJ00592), 74 (DFJ00364-

21

adequate and accurate pathology.

366),76 (0027069-27070), 78

Admit.

22

(0000506), 80 (Dutt

23

Deposition, 8/20108, pg. 285 :6-

24

23).

25

10. In May 2005, Dr. Jadwin began formally expressing his

Deny. See DSUF 118

26

concerns that KMC was not complying with state regulations

(DFJ00408-409).

27

regarding blood transfusion documentation.

28 -2DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY WDGMENT AND/OR SUMMARY ADWDICATlON

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 77 3 ofof38 120

I

II. In October 2005, Dr. Jadwin presented at an intra-

Deny. See DSUF 107

2

hospital conference where he reported on uncaught

(DFJ00580), 74 (DFJ00364-

3

pathology report errors that potentially jeopardized the care

366) and Plaintiffs Statement

4

of a hysterectomy patient and the need for a policy to address of Undisputed Facts

5

the problem.

(hereinafter "PSUF") 114

6

(Jadwin Dec!., Exh. 10

7

(Jadwin's email to Dutt,

8

Culberson et a!. of 12/6/06 at

9

DFJ1479; Lee Supp. Dec!.,

10

Exh. 20 (RFA No. 61 at 13:19-

11

25); Lee Supp. Decl., Exh. 24

12

(Rog 67 at 14:22-23 (noting

13

difficulties outside reviewers

14

had reaching conclusions about

15

the diagnosis)).

16

12. Defendants responded by calling him into a meeting,

Deny. See DSUF 113

17

severely reprimanding him, and informing him that letters of

(DFJ00588), 114 (0000094).

18

reprimand would be placed in his physician credentials file.

KMC letters to Jadwin dated

19

8114/01 - 9112/08.

20

13. Defendants retaliatory conduct exacerbated Dr. Jadwin's

21

chronic depression and proved so disabling that, at the end of was not retaliatory. See DSUF

22

2005, he was forced to take a reduced work schedule medical 62 (Jadwin Deposition, 1/9/08,

23

leave as an accommodation and seek psychiatric therapy.

pgs.414:24-418:12).

24

14. In April 2006, Dr. Jadwin requested an extension of his

Deny. Plaintiff requested an

25

reduced work schedule leave.

extension of his Leave of

Deny. Defendants' conduct

26

Absence. See DSUF 19

27

(DFJOI158).

28

-3DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 78 4 ofof38 120

1

15. On April 28, 2006, Defendant Bryan responded by

Deny. See DSUF 20

2

placing him on full-time "personal necessity leave" under the

(DFJOI121), 24 (DFJOI141),

3

County's leave policy and, a few months later, ordered him

27 (0001424), 29 (Bryan

4

not to contact anybody at KMC or he would be fired

Deposition, 8/14/08, pg. 244:6-

5

("Forced FT Leave").

16),30 (Bryan Deposition,

6

8/14/08, pgs. 280:21-281 :4).

7

See Lee Supp. Decl., Exh. 21,

8

Interrogatory 36.

9

16. On June 4, 2006, Defendant Bryan told Dr. Jadwin that

Deny. See DSUF 24

10

he had decided to "rescind your appointment at chairman"

(DFJOI141), 28 (Bryan

11

and that "this decision is effective June 17,2006."

Deposition, 8/14/08, pg. 257:9-

12

15).

13

17. On July 10,2006, Defendant Bryan recommended to

Deny. The quoted material is

14

KMC's Joint Conference Committee ("JCC") that Plaintiff

not an accurate quotation; see

15

be removed from his position as Chair of the pathology

DSUF 33 (0001476-1565,

16

department "based on Dr. Jadwin's unavailability for service

0000073-75).

17

because of extended medical leaves for non-work related

18

ailments" and "solely based on his continued non-availability

19

to provide the leadership necessary for a contributing

20

member of the medical staffleadership group....Dr. Jadwin

21

has provided no indication that he is committed to return to

22

work or resume his duties as chair. Other than his latest

23

written communication requesting an extension of his

24

medical leave, Dr. Jadwin has made no attempt in the last

25

two months to contact me concerning his employment status

26

or how the Department of Pathology should be managed

27

during his absence."

28

-4DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 79 5 ofof38 120

1

2

18. At a meeting of the JCC on July 10,2006, Defendant

Deny. Plaintiff was not

3

County approved the demotion ofPlaintifffrom chair of the

demoted. See DSUF 33

4

pathology department for "unavailability." Members of the

(0001476-1565,0000073-75).

5

JCC based their vote on his unavailability due in part to his

KMC letters to Jadwin dated

6

medical leave.

8/14/01 - 9/12/08.

7

19. Defendant County then conditioned Dr. Jadwin's return

Deny. See DSUF 44 (Jadwin

8

to work as a regular pathologist on his medical release to

Deposition, 3/12/08, pgs.

9

full time work and entry into an amendment to his contract

969:1-974:2 (Exhibits 644 and

10

that contained restrictive terms and conditions and reduced

581»,45 (Jadwin Deposition,

11

Dr. Jadwin's base pay from roughly $300,000 to $200,000.

3/12/08,974:3-976:12).

12

20. When demoting Dr. Jadwin, Defendants Bryan and the

Deny. Plaintiff was not

13

County did not notify Dr. Jadwin of the hospital committee

demoted. See DSUF 28

14

vote to demote him or give him a chance to defend himself

(Bryan Deposition, 8/14/08,

15

prior to, at or after the vote.

pg. 257:9-15), 31 (Bryan

16

Deposition, 8/14/08, pg. 258:7-

17

16). KMC letters to Jadwin

18

dated 8/14/01 - 9/12/08.

19

21. On his return to work as a demoted pathologist in late

Deny. Plaintiff was not

20

2006, Dr. Jadwin was placed beneath a former subordinate

demoted. See DSUF 4

21

whom he had hired and trained the year before.

(0000272-358, specifically

22

0000319). KMC letters to

23

Jadwin dated 8/14/01 -

24

9/12/08.

25

22. After about two months, Dr. Jadwin decided to go

Deny. See DSUF 56

26

outside the hospital and report his ongoing suspicions of

(DFJ02540-2541, DFJ01454,

27

legal noncompliance and illegal and/or unsafe care and

DFJ01459), 57 (DFJ02538-

28

-5DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 80 6 ofof38 120

1

conditions of patients at KMC to regulatory and

2

accreditation agencies, as well as KMC senior management.

3

23. Plaintiff also complained to KMC's senior management

Deny. See PSUF 114 ((Jadwin

4

about the harsh treatment he was receiving.

Dec!., Exh. 10 (Jadwin's email

2539).

5

to Dutt, Culberson et a!. of

6

12/6/06 at DFJ1479; Lee Supp.

7

Dec!., Exh. 20 (RFA No. 61 at

8

13:19-25); Lee Supp. Dec!.,

9

Exh. 24 (Rog 67 at 14:22-23

10

(noting difficulties outside

11

reviewers had reaching

12

conclusions about the

13

diagnosis).

14

24. The following day, on December 7, 2006, Defendant

15

County placed Dr. Jadwin on administrative leave "pending

16

resolution of a personnel matter."

17

25. The leave denied Plaintiff the opportunity to ear patient-

18

based professional fees, which had amounted to roughly

19

$100,000 per year ("Professional Fees") prior to his taking

20

of reduced work schedule leave.

21

26. Dr. Jadwin formally notified KMC of his whistle-

22

blowing reports to the outside regulatory and accreditation

23

agencIes.

24

27. Dr. Jadwin remained on administrative leave for another

25

ten months until his contract expired on October 4,2007.

26

28. During six of those months, Dr. Jadwin was physically

Deny. Plaintiff was required

27

restricted to his home during work hours.

by County policy to be

Admit.

Deny. 0018755-0018917.

Admit.

Admit.

28 -6DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY WDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 81 7 ofof38 120

1

"available by telephone." See

2

DSUF 41a (0016941).

3

29. The county decided not to renew Dr. Jadwin's contract,

4

which expired on October 4,2007.

5

30. From October 2000 to the present, KMC - a hospital

Deny. Lee Supp. Decl., Exh.

6

with roughly 60 full-time faculty physicians - had failed to

22, Interrogatory #28.

7

renew the contract of only 1 other KMC physician.

8

31. Plaintiff s position had been that of a permanent, core

Deny. See Response to #30

9

physician, whose contracts are customarily renewed.

above.

10

32. Defendant County based its nonrenewal decision on Dr.

Deny. See DSUF 36a

11

Jadwin's medical and recuperative leave, and the fact he had

(Declaration of Michael Rubio,

12

brought a lawsuit opposing employment practiced prohibited

11110/08, '12; Declaration of

13

by the Family & Medical Leave Act ("MFLA"), and the

Raymond Watson, 11110/98,

14

California Family Rights Act ("CFRA"), and the Fair

'1'13, 4 and 5; Declaration of

15

Employment & Housing Act ("FEHA").

Mike Maggard, 11110108, '12;

Admit.

16

Declaration of Jon McQuiston,

17

11110108, '12; Declaration of

18

Don Maben, 11/10108, '12).

19

33. To this day, Dr. Jadwin has not personally received an

Admit. There were no charges

20

explanation from Defendants as to why he was placed on

against Plaintiff.

21

administrative leave or why his contract was not renewed,

22

despite repeated requests for an explanation. Defendants

23

never notified Dr. Jadwin of the charges against him or

24

permitted him to defend himself.

25

34.

26

35.

27

36. During the entire tenure of Plaintiffs employment,

28

Admit.

-7DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

I

Defendant County was continuously an employer within the

2

meaning ofFMLA [29 C.F.R. § 825.105©], CFRA [Gov't C

3

§ 12945.2(b)(2)], and FEHA [Gov't C § 12926(d)] engaged

4

in interstate commerce, and regularly employing more than

5

fifty employees within seventy-five miles of Plaintiffs

6

regular workplace at KMC.

7

37. Defendant County is a government agency.

8

38.

9

39.

Page Page 82 8 ofof38 120

Admit.

10

40. On October 12,2005, Defendant Harris solicited and

Deny. Lee Supp. Decl., Exh.

11

received letters of dissatisfaction from three KMC core

21, Interrogatory #34. (Harris

12

physicians, criticizing Dr. Jadwin's presentation at a KMC

Deposition, 8/13/08, pgs.

13

monthly Oncology Conference.

113:14-16,116:4).

14

41. On October 17, 2005, KMC's senior medical staff wrote

Deny. Plaintiff s Corrected

IS

to Dr. Jadwin notifying him that these letters of

Motion for Partial or Full

16

dissatisfaction would be placed in his credentialing file

Summary Judgment Against

17

("Credential Threat").

Defendants, pg. 6:1. KMC

18

letters to Jadwin dated 8/14/01

19

- 9112/08.

20

42. Some of the medical staff involved later apologized to

Deny. 166 (Abraham

21

Dr. Jadwin.

Deposition, 8/18/08, pgs.

22

198:24-207:17), 167 (Bryan

23

Deposition, 8114/08, pgs.

24

109:12-111:10),168 (Bryan

25

Deposition, 8114/08, pgs.

26

156:22-157:12),169 (Harris

27

Deposition, 8/13/08, pg. 159:2-

28

-8DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 83 9 ofof38 120

1

13), 170 (Harris Deposition,

2

8113/08, pg. 196:7-20), 171

3

(Harris Deposition, 8113/08

4

pgs. 230:4-232:13),172

5

(Harris Deposition, 8113/08,

6

pgs. 234:24-235:23 and

7

305:20-308:22), 173 (Ragland

8

Deposition, 8/22/08, pg. 16:12-

9

16), 174 (0000507).

10 11

43.

1--------------------+------------1 44.

1--------------------+------------1

12

45. Dr. Jadwin's employment contract expressly provided

13

that Dr. Jadwin would be chair of the KMC pathology

14

department and paid base compensation of$287,529 ("Base

15

Pay").

16

46. On July 10,2006, Bryan recommended and the JCC

Deny. Plaintiff was not

17

approved Jadwin's demotion from department chair to staff

demoted. See DSUF 4

18

pathologist ("Demotion").

(0000272-358, specifically

Admit.

19

0000319). KMC letters to

20

Jadwin dated 8/14/01 -

21

9/12108.

22

47. 1t is uncontested that Defendants considered a portion of

Deny. Plaintiff was not

23

Dr. Jadwin's pay to be tied to his chair position, and that the

demoted. See DSUF 4

24

demotion therefore made the paycut a foregone conclusion.

(0000272-358, specifically

25

The JCC vote to demote Plaintiff was effectively a vote to

0000319), 44 (Jadwin

26

reduce his Base Pay as well.

Deposition, 3/12/08, pgs.

27 28

969: 1-974:2 (Exhibits 644 and -9DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICAnON

Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document293-2 278

Filed Filed 12/01/2008 12/26/2008

Page Page 10 84 of of 38 120

1

581»,45 (Jadwin Deposition,

2

3/12/08,974:3-976:12). KMC

3

letters to Jadwin dated 8/14/01

4

- 9/12/08.

5

48. Defendants County and Harris informed Dr. Jadwin that

Deny. See DSUF 44 (Jadwin

6

his return to work at KMC was conditioned on his entry into

Deposition, 3/12/08, pgs.

7

an amendment to his employment contract, instituting a

969:1-974:2 (Exhibits 644 and

8

reduction in Base Pay from $287,529 to $186,687

581»,45 (Jadwin Deposition,

9

("Paycut").

3/12/08,974:3-976: 12).

10

49. On October 3, 2006, Plaintiff executed the amendment

Admit.

11

to his employment contract.

12

50.

13

51.

14

52. A pathologist is valued according to the efficacy of his

Deny. This is not a fact; it is

15

"eye," i.e., the training and experience that allows him to

an expression of opinion. The

16

spot minute patterns and telltale abnormalities in

opinion is not relevant to

17

microscopic and gross tissue samples.

Plaintiffs administrative

18

duties as Chair.

19

53. Developing and maintaining the pathologist "eye"

Deny. This is not a fact; it is

20

requires years of daily pathology work; however, it takes

an expression of opinion. The

21

only a few months of being away from work to lose enough

opinion is not relevant to

22

efficacy to threaten a pathologist's career.

Plaintiffs administrative

23

duties as Chair.

24

54. Moreover, Dr. Jadwin's contract expressly provided that

Deny. See DSUF 6 (0001479-

25

he was to earn patient billing-based professional fees,

1499).

26

separate and apart from his fixed Base Pay.

27

55. In order to earn Professional Fees, Dr. Jadwin needed to

28

Admit.

-10DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document293-2 278

Filed Filed 12/01/2008 12/26/2008

Page Page 11 85 of of 38 120

1

process and bill patient cases.

2

56. Restriction to his workplace at KMC by placement on

Deny. Defendants do not

3

leave denied him the opportunity to earn such fees.

know what "restriction to his

4

workplace at KMC" means.

5

57. Dr. Jadwin's professional fee income amounted to

6

approximately $100,000 per year.

7

58. On December 7, 2007, Defendant County placed

8

Plaintiff on paid administrative leave "pending resolution of

9

a personnel matter" ("Admin Leave").

Deny. 0018755-0018917.

Admit.

10 11

59. Defendant County further ordered Plaintiff to "remain at

Deny. See DSUF 41

12

horne and available by telephone during normal business

(DFJOI482,0016941).

13

hours" and not to contact anyone at KMC, else he could be

14

terminated. There was no further indication of what Plaintiff

15

was being charged with, whether he would be permitted to

16

respond to charges, or when the leave would end.

17

60. No investigation, explanation or resolution ensued.

Deny. Defendants deny there

18

was anything to investigate,

19

explain or resolve.

20

61. On April 4, 2007, Plaintiff notified Defendant County

21

that the long leave was exacerbating his depression, eroding

22

his pathology skills and employability, and denying him the

23

opportunity to earn professional fees.

24

62. On April 30, 2007, Defendant County informed Dr.

Deny. Defendants informed

25

Jadwin that he remained on administrative leave but

Plaintiff that he was relieved of

26

removed the home restriction.

the obligation to be available

27 28

Admit.

for daily work. -11DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document293-2 278

Filed Filed 12/01/2008 12/26/2008

Page Page 12 86 of of 38 120

1

63. On May 1,2007, Defendant County informed Dr.

Deny. Defendants tried to

2

Jadwin that they intended to keep Dr. Jadwin on leave and

negotiate a settlement by

3

"let his contract run out."

buying out Plaintiff s contract

4

and lifting restrictions on

5

Plaintiffs leave. See PSUF 63

6

(Lee Supp. Decl., Exh. 21

7

(Rog No. 43 at 53:3-9); Lee

8

Supp. Decl., Exh. 22 (Rog No.

9

44,28: 17-22); Lee Supp.

10

Decl., Exh. 6 (Wasser Email to

11

Lee of 5/1/07 at DFJOI705)).

12

64. Dr. Jadwin remained on administrative leave until his

13

employment contract expired on October, [sic]4, 2007.

14 15

Admit.

65.

f------------------+-------------1

1-6:...::6~.- - - - - - - - - - - - - - - - - f - - - - - - - - - -

16

67. Supervisor Ray Watson, then-Chair of the Board of

Deny. See DSUF 36a

17

Supervisors, voted as a member of the JCC to demote Dr.

(Declaration of Michael Rubio,

18

Jadwin and effectively cut his pay, and also participated in

11/1 0/08,

19

the decision not to renew Plaintiff s employment contract.

Raymond Watson, 11/1 0/98,

~2;

Declaration of

20

~~3,

21

Mike Maggard, 11/1 0/08,

22

Declaration of Jon McQuiston,

23

11/1 0/08,

24

Don Maben, 11/1 0/08,

25

Plaintiff was not demoted.

26

KMC letters to Jadwin dated

27

8/14/0 I - 9/12/08.

4 and 5; Declaration of

~2;

~2;

Declaration of

28 -12DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

~2).

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Page Page 13 87 of of 38 120

1

68. Ray Watson, Chair of the Board Supervisors [sic] at the

2

time of the Nonrenewa1, testified in deposition: "My

3

understanding was that [Plaintiff] had - he had been on

4

medical leave, family leave, and had requested even more

5

leave, and that for that reason and the fact that he was suing

6

us, that we decided not to renew his contract."

7

C'Nonrenewal")

8

69. Moreover, Dr. Jadwin was a "core physician" at KMC, a

Deny. See DSUF 6 (0001479-

9

permanent position.

1499).

10

70. There was a mutually explicit understanding that, as a

Deny. This is not a fact;

11

core physician, Plaintiff s contract would be continuously

"mutually explicit

12

renewed.

understanding" is one of

13

Admit.

Plaintiff s legal arguments.

14

71. In fact, from October 2000 to present, only one other

Deny. See Response to #30

15

physician besides Dr. Jadwin has not had his contract

above.

16

renewed.

17

72.

18

73.

19

74. Credential Threat was a substantial cause of Dr.

Deny. Plaintiff s credential

20

Jadwin's emotional distress leading to recurrence of his

was never threatened. See

21

chronic major depressive disorder.

DSUF 7A (Dutt Deposition,

22

8/20/08, pgs. 52:5-53:18).

23

~'Substantial

24

and "major" are subj ective

25

terms. KMC letters to Jadwin

26

dated 8/14/01- 9/12/08.

27 28

75. Credential Threat was a substantial cause of Dr.

cause," "chronic"

Deny. Plaintiff s credential

-13DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

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Filed Filed 12/01/2008 12/26/2008

Page Page 14 88 of of 38 120

1

Jadwin's reduced work schedule medical/recuperative leave

was never threatened. See

2

and loss of opportunity to earn Professional Fees from

DSUF 7A (Dutt Deposition,

3

December 16,2005 to on or around April 28, 2006.

8/20/08, pgs. 52:5-53:18).

4

Plaintiff s Second Amended

5

Complaint '80. "Substantial

6

cause" is a subjective term.

7

KMC letters to Jadwin dated

8

8/14/01-9/12/08.

9

76. Forced FT Leave was a was a substantial cause of Dr.

Deny. See DSUF 7A (Dutt

10

Jadwin's emotional distress, leading to worsening of Dr.

Deposition, 8/20/08, pgs. 52:5-

11

Jadwin's major depression.

53: 18), 21 (Bryan Deposition,

12

8/14/08, pgs. 250:15-251 :6,

13

Exhibit 303). "Substantial

14

cause" and "major" are

15

subjective terms. Lee Supp.

16

Decl., Exh. 21, Rog #36.

17

77. Forced FT Leave was a substantial cause of Plaintiffs

Deny. See DSUF 7A (Dutt

18

loss of opportunity to earn Professional Fees as provided for

Deposition, 8/20/08, pgs. 52:5-

19

in his employment contract from on or around April 28, 2006

53:18),21 (Bryan Deposition,

20

to June 17, 2006.

8/14/08, pgs. 250: 15-251 :6,

21

Exhibit 303). Second

22

Amended Complaint '80.

23

"Substantial cause" is a

24

subjective term. Lee Supp.

25

Decl., Exh. 21, Rog #36.

26

78. Demotion and Paycut were substantial causes of Dr.

Deny. Plaintiff was not

27

Jadwin's emotional distress, leading to worsening of Dr.

demoted. See DSUF 4

28

-14DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

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1

Filed Filed 12/01/2008 12/26/2008

Jadwin's major depression.

Page Page 15 89 of of 38 120

(0000272-358, specifically

2

0000319). "Substantial cause"

3

and "major" are subjective

4

terms. KMC letters to Jadwin

5

dated 8/14/01 - 9/12108.

6

79. Demotion and Paycut were substantial causes of Base

Deny. Plaintiff was not

7

Pay reduction from $287,529 to $186,687 from October 3,

demoted. See DSUF 4

8

2006 onward.

(0000272-358, specifically

9

0000319), Lee Supp. Decl.,

10

Exh. 21, Rog #41.

11

"Substantial causes" is a

12

subjective term. KMC letters

13

to Jadwin dated 8/14/01 -

14

9/12108.

15

80. Demotion and Paycut were substantial causes of

Deny. Plaintiff was not

16

termination of Plaintiffs career as a pathology department

demoted. See DSUF 4

17

chair due to unemployability.

(0000272-358, specifically

18

0000319), 8 (DFJ02422-2459).

19

See Levison Decl., pg. 6, ~6.

20

KMC letters to Jadwin dated

21

8/14/01 - 9/12108.

22

81. Admin Leave, during 5 months of which Plaintiff was

Deny. See DSUF 41

23

restricted full-time to his home, was a substantial cause of

(DFJ01482,0016941).

24

Dr. Jadwin's emotional distress, leading to worsening of Dr.

"Substantial cause" and

25

Jadwin's major depression.

"major" are subjective terms.

26

82. Admin Leave was a substantial cause of Plaintiffs loss

Deny. See DSUF 6 (0001479-

27

ofopportnnity to earn Professional Fees as provided for in

1499). "Substantial cause" is a

28

-15DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

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Page Page 16 90 of of 38 120

I

his employment contract from on or around December 7,

2

2006 to October 4, 2007.

3

83. Admin Leave was a substantial cause ofloss of

Deny. See DSDF 10

4

Plaintiffs pathologist "eye," causing him to become

(DFJ00726), 15 (DFJ00746).

5

unemployable as a pathologist.

Plaintiffs Second Amended

6

subjective term.

Complaint ~80.

7

84. Nonrenewal was a substantial cause of Dr. Jadwin's

Deny. "Substantial cause" is a

8

emotional distress, leading to worsening of Dr. Jadwin's

subjective term.

9

major depression.

10

85. Admin Leave was a substantial cause of Plaintiffs lost

Deny. Admin Leave was paid.

11

Base Pay of$186,687 and Professional Fees of roughly

See DSDF 41 (DFJOI482).

12

$100,000 per year, as provided for in his employment

"Substantial cause" is a

13

contract, from on or around October 4, 2007 onward.

subjective term.

14

86.

15

87.

16

88.

17

89. Dr. Jadwin made a protected report to KMC's medical

Deny. Nothing about

18

staffleadership about (a) the medical appropriateness of a

Plaintiff s statements was

19

radical hysterectomy for a KMC patient (Patient No.

"protected." See DSDF 105

20

1142693) based on inaccurate outside pathology reports-

(DFJ00508-574), 106

21

which case was the subject of Plaintiff s presentation at the

(DFJ00578), 107 (DFJ00580),

22

monthly KMC oncology conference held on October 12,

108 (Harris Deposition,

23

2005 ("October Conference") - and (b) the unsafe conditions

8/13/08, pgs. 126:8-127: 19),

24

created for other patients by the lack of a KMC policy

109 (Exhibit 190), 110

25

requiring internal pathology review of all outside pathology

(Ragland Deposition, 8/22/08,

26

reports prior to treatment ("IPR").

pgs. 106:18-109:14 and

27

156:14-25), III (Abraham

28 -16DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

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Filed Filed 12/01/2008 12/26/2008

Page Page 17 91 of of 38 120

1

Deposition, 8/18/08, pgs.

2

14:10-21:17 and 131:5-133:23

3

and 135:24-138:22), 112 (Dutt

4

Deposition, 8/20/08, pgs.

5

292:25-293:20),74

6

(DFJ00364-366). See PSUF

7

114 (Jadwin Decl., Exh. 10

8

(Jadwin's email to Dutt,

9

Culberson et al. of 12/6/06 at

10

DFJl479); Lee Supp. Decl.,

11

Exh. 20 (RFA No. 61 at 13:19-

12

25); Lee Supp. Decl., Exh. 24

13

(Rog 67 at 14:22-23 (noting

14

difficulties outside reviewers

15

had reaching conclusions about

16

the diagnosis)). Taylor Depo.,

17

12/5/07 pgs. 14:19-21, 15:1-4,

18

22:9-10; 24:7-8, 27:16-17,

19

31:17-32:21,36:19-20,51:12-

20

25,55:7-23,62:19-25,63:4-11,

21

64:12-19,68:9-17.

22

90. Defendant County knew of Dr. Jadwin's whistleblowing

Deny. See DSUF 113

23

report at the October Conference since Defendant Harris,

(DFJ00588). Plaintiffs

24

then CMO ofKMC, and Jennifer Abraham, then-Immediate

presentation at the October

25

Past President, were in attendance.

Oncology Conference was not

26 27

"whistleblowing." 91. Each of the letters of reprimand which Defendant

Deny. Plaintiff's Corrected

28 -17DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

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Filed Filed 12/01/2008 12/26/2008

Page Page 18 92 of of 38 120

1

County decided to place into Plaintiff s medical credential

Motion for Partial or Full

2

file specifically reference Dr. Jadwin's presentation at the

Summary Judgment, pg. 6:1.

3

October Conference.

KMC letters to Jadwin dated 8/14/01

4

~

9/12/08.

5

92.

6

93.

7

94. On January 9, 2006, Dr. Jadwin made a protected report

Deny. Nothing about

8

to Bryan regarding KMC's noncompliance with state

Plaintiff s statements was

9

regulations regarding blood transfusion related

"protected." See DSUF 7

10

documentation called product chart copies ("PCCs"),

(DFJOO723).

11

jeopardizing patient safety.

12

95. Improper documentation of blood transfusions creates

13

patient risk of morbidity and mortality.

14

96. Dr. Jadwin reasonably suspected that KMC's ongoing

Deny. See DSUF 118

15

failure to maintain accurate and complete records of patient

(DFJ00408-409), 121

16

blood transfusions did not comply with H&S § 1602.5,

(0000572), 123 (DFJOO788),

17

which requires PCC documentation to conform to AABB

124 (DFJ00793), 126 (Harris

18

accreditation standards.

Deposition, 8/13/08, pgs.

Admit.

19

268:8-23), 127 (Smith

20

Deposition, 8/19/08, pgs. 59:4-

21

60: 13), 129 (Smith Deposition,

22

8/19/08, pg. 71 :2-21).

23

97. During his reduced work schedule medical leave, Dr.

Deny. See DSDF 117 (Bryan

24

Jadwin audited PCCs, and continued to report noncompliant

Deposition, 8/14/08, pgs.

25

incomplete or missing PCCs to Defendant Bryan, Toni

205:6-206:25 (Exhibit 291»,

26

Smith, KMC Nurse Executive, and Risk Management and

124a (Bryan Deposition,

27

Quality Assurance through at least April 17, 2006, when

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

28

-18DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDlSPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

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Page Page 19 93 of of 38 120

Plaintiff asked Defendant Bryan to set up a meeting with

2

Bernard Barmann, County Counsel, to discuss his concerns

3

regarding PCC noncompliance.

4

98. The California Department of Health Services later

Deny. See DSUF 132 (Smith

5

determined during the course of an inspection that KMC was

Deposition, 8/19/08, pgs.

6

indeed failing to comply with PCC-re1ated regulations.

84: 11-85:7).

7

99. On April17, 2006, Defendant Bryan threatened to

Deny. Plaintiff was not

8

demote Plaintiff.

demoted. See DSUF 160

9

(DFJ00794-795; Bryan

10

Deposition, 8/14/08, pgs.

11

231 :9-237:25). KMC letters to

12

Jadwin dated 8/14/01 -

13

9/12/08.

14

100.

15

101.

16

102. Dr. Jadwin reasonably believed that storage of patient

Deny. No License was

17

skull caps occurring in an unlicensed laboratory freezer at

required for the freezer and

18

KMC violated H&S § 1635.1.

Plaintiff knew it. Wrobel

19

Deposition, pgs. 10:11-12,

20

18:7-24,25: 13-26:20,30:4-

21

31:21,32:14-20,39:5-41:6.

22

See PSUF 102 (Lee Supp.

23

Dec!. Exh. 9 (Martinez Depo at

24

14:2-22); Lee Supp. Dec!.,

25

Exh. 12 (Dutt Depo at 244:6-

26

9».

27 28

103. Unlicensed skull flap storage could give rise to a risk of

Deny. Storage is not a risk.

-19DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document293-2 278

1

Filed Filed 12/01/2008 12/26/2008

patient morbidity or mortality.

Page Page 20 94 of of 38 120

Reimp1antation of improperly

2

stored tissue is the risk.

3

104. Gilbert Martinez, the Manager of Laboratory Services

Deny. KMC's freezer did not

4

at KMC ("Martinez") confirmed that there were typically

need a license. Wrobel

5

seven to nine skull flaps being stored in the lunlicensed [sic]

Deposition, pgs. 10:11-12,

6

aboratory [sic] freezer.

18:7-24,25:13-26:20,30:4-

7

31 :21,32:14-20,39:5-41 :6.

8

105. At times, upwards of 15 to 20 skull flaps were being

Deny. KMC's freezer did not

9

stored in KMC's unlicensed freezer.

need a license. Wrobel

10

Deposition, pgs. 10: 11-12,

11

18:7-24,25:13-26:20,30:4-

12

31:21,32:14-20,39:5-41:6.

13

106. Martinez shared Plaintiff s concerns about unlicensed

Deny. KMC's freezer did not

14

skull flap storage in the laboratory freezer.

need a license. Wrobel

15

Deposition, pgs. 10:11-12,

16

18:7-24,25: 13-26:20, 30:4-

17

31:21,32:14-20,39:5-41:6.

18

107. When Dr. Jadwin discovered skull flaps being illegally

Deny. The storage was not

19

stored in the laboratory freezer, he discussed the problem

illegal. Wrobel Deposition,

20

with Gilbert Martinez, the Manager of Laboratory Services

pgs. 10:11-12, 18:7-24,25:13-

21

atKMC ("Martinez").

26:20,30:4-31:21,32:14-20,

22

39:5-41 :6. Plaintiff supervised

23

the pathology laboratory and

24

was in charge of the freezers.

25

See DSUF 6a (0001479-1499).

26

108. Around Thanksgiving 2006, Dr. Jadwin tipped Martinez Deny. The storage did not

27

off that he intended to blow the whistle about his unresolved

28

need a license. See DSUF 55

-20DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

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Filed Filed 12/01/2008 12/26/2008

Page Page 21 95 of of 38 120

1

complaints about unsafe patient care and conditions,

(Martinez Deposition, 4/16/08,

2

including unlicensed skull flap storage, and that inspections

pgs. 111: 12-118:22). Plaintiff

3

ofKMC by regulatory and accreditation agencies was likely.

only told Martinez to expect

4

inspections.

5

109. Within a few days, Martinez relayed this information to

Deny. There is no evidence

6

his supervisor, David Hill, the Director of Ambulatory Care;

that David Hill communicated

7

who in turn relayed it to a pathologist, Philip Dutt, and/or

with either Dr. Dutt or Dr.

8

Defendant Harris.

Harris.

9

110. Beginning November 28,2006, Dr. Jadwin formally

Deny. Plaintiff has not

10

reported his suspicions of illegal and/or unsafe care and

produced his alleged letters to

11

conditions of patients at KMC - including unlicensed skull

CAP or DHS. Defendants

12

flap storage, noncompliance PCCs, and an inappropriate

have never seen them. See

13

radical prostatectomy (see below) - to the Joint Commission

DSUF 56a (DFJ02540-2541).

14

on Accreditation of Hospital Organizations ("JCAHO"), the

See PSUF 110 (Lee Supp.

15

College of American Pathologists ("CAP"), and the

Dec!., Exh. 20 (RFA No. 35 at

16

California Department of Health Services ("DHS").

8:10-14)); Lee Supp. Dec!.,

17

("Outside WB Reports).

Exh. 20 (RFA No. 21 at 5:22-

18

24 (DHS)); Lee Supp. Dec!.,

19

Exh. 20 (RFA No. 22 at 5:25-

20

6:2 (JCAHO)); Lee Supp!.

21

Dec!., Exh. 20 (RFA No. 23 at

22

6:3-6 (CAP)).

23

111. On January 4,2007, Dr. Dutt received confirmation that

Deny. See PSUF 111 (Jadwin

24

Dr. Jadwin had in fact complained to CAP about the

Supp. Dec!., Exh. 2 (Dutt's

25

unlicensed tissue storage and noncompliant PCCs, and

Email to Culberson of 1/4/07

26

shared this with then-CEO Mr. Culberson.

at 0001330)).

27

112.

28

-21DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

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Filed Filed 12/01/2008 12/26/2008

Page Page 22 96 of of 38 120

1

113.

2

114. At 12:54 p.m. on December 6, 2006, Dr. Jadwin

Deny. See DSUF 190

3

formally reported to KMC leadership his concerns regarding

(DFJ01479-1480). See Jadwin

4

a KMC patient who was scheduled for immediate radical

Dec., Exh. 10.

5

prostatectomy to treat possible cancer. Plaintiff had

6

recommended the attending physician delay the

7

prostatectomy because he believed the pathologic findings of

8

cancer were inconclusive. Instead, Plaintiff had

9

recommended the findings be validated by outside experts.

10

115. Radical prostatectomies pose numerous risks to patient

11

care, including incontinence, impotence and other morbid

12

factors.

13

116. In his report to KMC leadership, Dr. Jadwin also

Deny. See DSUF 189 (Dutt

14

complained of a pattern of non-transparent "peer review"

Deposition, 8/20/08, pgs.

15

being conducted against him and asked that the Board of

296:20-297: 13). See Jadwin

16

Supervisors be apprised of his concerns and initiate a formal

Dec!., Exh. 10.

17

reVIew.

18

117. Four minutes later, at 12:58 p.m., Dr. Dutt emailed Mr.

Dcny. Dutt's e-mail to

19

Culberson complaining about Dr. Jadwin's competency, and

Culberson does not refer to

20

insistence on outside review of numerous cases after Dr.

Plaintiffs "competency." See

21

Dutt had counseled him on failing to send a case out for

Lee Dec!., Exh. 23.

22

consultation. Dr. Dutt also complained about alleged "other

23

Problems" involving Dr. Jadwin which he worried might

24

lead to loss of staff and the pathology department's ability to

25

serve patients and doctors in a timely manner.

26

118.

27

119.

28

Admit.

-22DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

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Filed Filed 12/01/2008 12/26/2008

Page Page 23 97 of of 38 120

1

120. Plaintiff was eligible to take medical leave as of

Deny. Plaintiff was eligible on

2

December 16,2006. [sic]

December 15, 2005.

3

121. Plaintiff requested and took reduced work schedule

Admit.

4

CFRA medical leave from December 16, 2005 to at least

5

March 15, 2006.

6

122. Members of the JCC subsequently voted to demote

Deny. Plaintiff was not

7

Plaintiff, basing their decision on his unavailability due in

demoted. See DSUF 4

8

part to his medical leave. Mr. Bryan told the JCC at the

(0000272-358, specifically

9

removal vote: "This recommendation [for removal] is based

0000319). KMC letters to

10

on Dr. Jadwin's unavailability for service because of

Jadwin dated 8/14/01 -

11

extended medical leaves ...."

9112/08.

12

123. Previously on April 17, 2006, 4 months into Plaintiffs

Deny. See DSUF 160

13

reduced work schedule medical leave, Bryan admitted to Dr.

(DFJ00794-795; Bryan

14

Jadwin, "Yes the Department of Pathology continues to

Deposition, 8114/08, pgs.

15

function well as it has for many years, and yes, you have

231 :9-237:25).

16

made many positive changes in the department."

17

124. Plaintiff also has direct evidence that Plaintiffs medical

Deny. See DSUF 36a

18

leave was a negative factor in the Nonrenewal.

(Declaration of Michael Rubio,

19

11110/08, ~2; Declaration of

20

Raymond Watson, 11110/98,

21

~~3,

22

Mike Maggard, 11/1 0/08,

23

Declaration of Jon McQuiston,

24

1111 0/08,

25

Don Maben, 1111 0/08,

26

125.

27

126.

28

4 and 5; Declaration of

~2;

~2;

Declaration of

-23DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

~2).

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Filed Filed 12/01/2008 12/26/2008

Page Page 24 98 of of 38 120

1

127. On April 28, 2006, Defendant Bryan represented to Dr.

Admit.

2

Jadwin that he was still entitled to 137 hours of medical

3

leave.

4

128. Sandra Chester, Defendant County's Director of Human

Deny. See DSUF 9 (Chester

5

Resources, testified in deposition that Plaintiffs request for

Deposition, 8/28/08, pgs.

6

medical leave in his email to Bryan and herself on March 16,

135: 12-137:6), 11 (Chester

7

2006; and provision by Dr. Jadwin's treating therapist, Dr.

Deposition, 8/28/08, pgs.

8

Riskin, ofleave certification on April 29, 2006 was timely

75:19-76:10),12 (Bryan

9

under Defendant County's customary practice.

Deposition, 8/14/08, pgs.

10

195:9-196:14),13 (Chester

11

Deposition, 8/28/08, pgs.

12

113:23-114:12).

13

129. Dr. Riskin's certifications notified it that Plaintiff s

14

depression was serious enough to require a reduced work

15

schedule leave and regular treatment from December 16,

16

2006 to September 15,2006.

17

130. Nonetheless, Defendant Bryan denied Plaintiff reduced

Deny. Peter Bryan gave

18

work schedule medical leave, and forced him to take full-

Plaintiffthe option to take full-

19

time "personal necessity leave" under the County's leave

time leave. See DSUF 20

20

policy.

(DFJOI121), 21 (Bryan

Admit.

21

Deposition, 8/14/08, pgs.

22

250: 15-251 :6, Exhibit 303), 24

23

(DFJOI141), 29 (Bryan

24

Deposition, 8/14/08, pg. 244:6-

25

16), 30 (Bryan Deposition,

26

8/14/08, pgs. 280:21-281 :4).

27 28

131. -24DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS iN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

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Filed Filed 12/01/2008 12/26/2008

Page Page 25 99 of of 38 120

1

132.

2

133.

3

134. Dr. Jadwin was an individual with a mental disability

Deny. Dr. Reading never used

4

because of his chronic major depressive disorder. Dr.

the word "chronic." See PSUF

5

Reading, Plaintiff's forensic psychologist, diagnosed Dr.

134 (Reading Dec!., Exh. 1 at

6

Jadwin as having Major Depressive Disorder. Dr. Reading

"Diagnostic Impressions" on p.

7

also noted Dr. Jadwin reported developing depressed mood,

58; Reading Dec!., Exh. 1 at

8

pervasive anhedonia, suicidal ideation, sleep disturbance,

"Structured Clinical Interview"

9

and other symptoms while working at KMC.

at p. 57-58.).

10

135. Dr. Jadwin's depression limited his ability to take

Deny. See PSUF 135

11

pleasure from life, and to engage full-time in, and take

(Reading Dec!., Exh. 1 at

12

pleasure from, the medical work to which he had devoted his

"Structured Clinical Interview"

13

life.

at p. 57-58). Dr. Reading does

14

not comment on the effect

15

Plaintiff's depression had on

16

his life.

17

136. Likewise, Defendant County has admitted, by and

Deny. See PSUF 136 (Lee

18

through the PMK deposition testimony of its representative,

Supp. Dec!., Exh. 17 (Kercher

19

Eugene Kercher, a psychiatrist, that it was familiar with the

Depo at 95:13-22, 96:3-8».

20

symptoms of depression and believed that Dr. Jadwin was

Dr. Kercher never diagnosed

21

depressed over several years during his tenure of his

Plaintiff. (Kercher Depo

22

employment at KMC.

9/4/08, atpg. 51:1-16).

23

137. Plaintiff also required sinus surgery and required a few

Admit.

24

weeks to recover from it during May of 1005.

25

138. Further, Plaintiff suffered an avulsed ankle at the end of

26

May of 2005 that limited his ability to walk.

Admit.

27 28

-25DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 100 26 ofof38 120

1

139. The limitations from these physical conditions

Deny. See PSUF 139 (Riskin

2

contributed to Plaintiff s limitations from his chronic

Dec., Exh. 3 atDFJl814.).

3

depression during May through the first part of June of 2005.

There is no evidence that

4

Plaintiff s sinus surgery and

5

broken ankle contributed to his

6

depression.

7

140.

8

141. 2. Plaintiff Was "Otherwise Qualified"

9

Deny. See PSUF 141 (Lee Dec!., Exh. 19 (Bryan's Letter

10

to DHS of?/25/06 at

11

0001619); Exh. 18 (Bryan's

12

Letter to JCC of 7/10/06 at top

13

of 001476 and end of 001457

14

[sic. Should be 001477]); Exh.

15

14 (Bryan's Memo to Jadwin

16

of 4/28/06 at DFJ01152,

17

DFJOl155-1159, DFJOll64);

18

Exh. 16 (Nunn's Cover Email

19

to Jadwin of 6/26/06 at

20

DFJ01346); Exh. 10 (Bryan's

21

Letter to Supervisors of

22

1/17/06 at No. 10 on

23

0001567)). None of Plaintiffs

24

evidence establishes that he

25

was a qualified person under

26

either the ADA or FEHA.

27

142.

28 -26DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 101 27 ofof38 120

1

143.

2

144. Plaintiffs physician, Dr. Lempel, disclosed Plaintiffs

Deny. See DSUF 65 (Jadwin

3

depression when he faxed his medical report to KMC's HR

Deposition, 1/9/08, pgs. 452:4-

4

Department on November 30, 2000, around the time of

455:19). See Reading Dec!.,

5

Plaintiff shire.

pg. 59, ~3, last two lines.

6

145. Defendant Bryan admitted knowing that Dr. Jadwin

Admit.

7

needed leave because of his depression.

8

146. Dr. Riskin's certifications stated that Plaintiff needed

9

medical/recuperative leave for depression from

Admit.

10

December 16, 2005 to September 16, 2006.

11

147. Supervisor Watson testified in deposition that he knew

Deny. See PSUF 147 (Lee

12

Dr. Jadwin was in continuous need of extensions of his

Supp. Dec!., Exh. 14 (Watson

13

medical leave.

Depo. at 80:22-81 :2)). The

14

page numbers are incorrect and

15

Supervisor Watson did not

16

express an opinion about

17

Plaintiff s need for continuous

18

extensions of his leave.

19

148. On April 4, 2007, during Plaintiff s Admin Leave,

20

Plaintiff expressly notified Defendant County in writing that

21

Plaintiff was depressed and that the Admin Leave was

22

exacerbating his chronic depression.

23

149.

24

150. 4. Disability Was A Motivating Factor in Demotion,

Deny. Plaintiff was not

25

Pay Cut & Nonrenewal.

demoted. See DSUF 33

Admit.

26

(0001476-1565,0000073-75),

27

36a (Declaration of Michael

28

-27DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 102 28 ofof38 120

1

Rubio, 11110/08, '12;

2

Declaration of Raymond

3

Watson, 11/10/98, '1'13, 4 and

4

5; Declaration of Mike

5

Maggard, 11/10/08, '12;

6

Declaration of Jon McQuiston,

7

11/10/08, '12; Declaration of

8

Don Maben, 11/1 0/08, '12).

9

KMC letters to Jadwin dated

10

8/14/01 - 9/12/08.

11

151.

12

152.

13

153. On January 9, 2006, Dr. Jadwin asked Defendant Bryan

14

to allow him to work part-time and at home while he was

15

recovering from his disabling depression.

16

154. Dr. Riskin, Plaintiff s psychiatrist, certified that part-

Deny. See DSUF 14

17

time work was medically necessary.

(DFJOl150).

18

155. KMC accommodated Jadwin's disability from

Deny. See DSUF 7

19

December 16, 2005 to April 16, 2006 by providing him with

(DFJOO723).

20

the reduced work schedule medical/recuperative leave and

21

ability to perform work at home that he requested during his

22

meeting with Defendant Bryan on January 9, 2006.

23

156. As customary, a Locum Tenens pathologist covered

Deny. There is no evidence to

24

Plaintiff s clinical pathologist duties, while plaintiff

support this fact.

25

performed the remaining 10-20% of his administrative duties

26

as Chair of Pathology.

27

157. As usual, if Dr. Jadwin was unable to attend to an

28

Admit.

Deny. There is no evidence to

-28DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSlTION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 103 29 ofof38 120

1

administrative duty at a particular time, then Dr. Dutt filled

2

in for him.

3

158. On March 16, 2006, Dr. Jadwin requested an extension

Deny. See DSUF 14

4

of his reduced work schedule leave. Dr. Jadwin submitted

(DFJO 1150).

5

Dr. Riskin's certification of his continuing need for a

6

reduced work schedule within three days of learning that

7

Defendant County required it.

8

159. On April 28, 2006, Bryan refused to accommodate

Deny. See DSUF 21 (Bryan

9

Jadwin's disability. Instead he forced him to take full-time

Deposition, 8/14/08, pgs.

10

leave, and refused to hold his job open for him any longer

250:15-251:6, Exhibit 303).

11

while he was on recuperative leave, and refused to allow Dr.

There is no evidence to support

12

Jadwin to return to work until he could work full-time. As a

this fact.

13

result, Dr. Jadwin was prevented continuing to carry out his

14

duties as Chair of Pathology.

15

160.

16

161.

17

162. Defendant Bryan acted in bad faith when he tmilaterally

Deny. See DSUF 14

18

denied Dr. Jadwin's request for continuing accommodation

(DFJOlI50). There is no

19

in the form of part-time work, and refused to allow him to

evidence to support this fact.

20

return to work until he could work full time.

21

163. Defendant Bryan also acted in bad faith when he

Deny. See DSUF 33

22

represented to the JCC that Dr. Jadwin's lack of

(0001476-1565,0000073-75).

23

communication with him led him to believe that Dr. Jadwin

There is no evidence to support

24

had essentially abandoned his job.

this fact.

25

164.

26

165.

27

166.

28

support this fact.

-29DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 104 30 ofof38 120

I

167. The Bylaws of Kern County Medical Center as in effect

Deny. See DSUF 37

2

between June 13,2006 and October 4,2007 ("Bylaws")

(DFJ01359-1361).

3

provided for due process for core physicians in numerous

4

scenarios like loss of hospital privileges, but not for (i)

5

removal of physicians from department chairmanship, (ii)

6

placement of physicians on administrative leave, or (iii)

7

nonrenewal of physician employment contracts with

8

Defendant County.

9

According to Bylaws Section 12.2 GROUNDS FOR

10

HEARING, due process is provided in the following

II

situations:

12

"A. Denial of medical staff membership.

13

B. Denial of requested advancement in staff membership

14

status, or category.

15

C. Denial of medical staff reappointment.

16

D. Suspension of staff membership or clinical privileges for

17

more than thirty (30) days in any twelve (12) month period.

18

E. Demotion to lower staff category or membership status.

19

F. Summary suspension of staff membership or clinical

20

privileges for more than fourteen (14) days.

21

G. Revocation of medical staff membership.

22

H. Denial of requested clinical privileges.

23

1. Involuntary reduction of current clinical privileges.

24

1. Termination of all clinical privileges.

25

K. Involuntary imposition of significant consultation or

26

monitory requirements excluding monitoring incidental to

27

provisional status and Section 7.3)."

28 -30DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 105 31 ofof38 120

1

The due process afforded by the Bylaws in the above cases is

2

robust, as contained in Bylaws Section 12.3-1 NOTICE OF

3

ACTION OR PROPOSED ACTION:

4

"In all cases in which action has been taken or a

5

recommendation made as set forth in Section 12.2, the

6

president of staff or designee on behalf of the medical

7

executive committee shall give the member prompt written

8

notice of (1) the recommendation or final proposed action

9

and that such action, if adopted, shall be taken and reported

10

to the applicable licensing or certifying authority and/or the

11

National Practitioner Data Bank if required; (2) the reasons

12

for the proposed action including the acts or omissions with

13

which the member is charged; (3) the right to request a

14

hearing pursuant to Section 12.3-2."

15

168. The Board of Supervisors of Defendant County ratified

16

the Bylaws on December 13,2004.

17

169. When the defendants failed to provide Plaintiff with

Deny. Plaintiff was not

18

adequate due process in connection with the Demotion,

demoted. See DSUF 4

19

Admin Leave and Nonrenewal, they were acting pursuant to

(0000272-358), 31 (Bryan

20

the Bylaws.

Deposition, 8/14/08, pg. 258:7-

Admit.

21

16). There is no evidence

22

Defendants failed to comply

23

with the By-Laws. KMC

24

letters to Jadwin dated 8/14/01

25

- 9/12/08.

26

170.

27

171.

28 -31DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 106 32 ofof38 120

I

172. It is incontrovertibly established that "Any acts or

2

omissions of the individual Defendants were under color of

3

law." See Scheduling Order, 9:22-23.

4

173.

5

174.

6

175.

7

176. Plaintiffs employment contract expressly set forth a

Deny. See DSDF 6 (0001479-

8

mutually explicit understanding with Defendant County that

1499).

9

Plaintiff would receive Base Pay of$287,529, and that

Admit.

10

Plaintiff would be chair ofKMC's pathology department.

11

177. Moreover, the employment contract barred Defendant

Deny. See DSDF 6 (0001479-

12

County from reducing Plaintiffs Base Pay, removing

1499).

13

Plaintifffrom chair or terminating or otherwise modifying

14

the Contract at will, without cause, or without Plaintiffs

15

consent.

16

178. Defendant COlmty has not removed a department chair

17

without cause since at least October 2000.

18

179. Defendants County and Harris told Plaintiff several

Deny. See DSDF 44 (Jadwin

19

times that the Demotion "necessitated" the Paycut, and that

Deposition, 3/12/08, pgs.

20

he would have to agree to it to continue working at KMC.

969:1-974:2 (Exhibits 644 and

Admit.

21

581)),45 (Jadwin Deposition,

22

3/12/08, pgs. 974:3-976:12).

23

Plaintiff was not demoted.

24

KMC letters to Jadwin dated

25

8/14/01 - 9/12/08.

26

180. Having no other choice, Plaintiff executed the Paycut

Deny. See DSDF 44 (Jadwin

27

amendment to his employment contract.

Deposition, 3/12/08, pgs.

28

-32DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADmDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 107 33 ofof38 120

1

969:1-974:2 (Exhibits 644 and

2

581»,45 (Jadwin Deposition,

3

3/12/08, pgs. 974:3-976:12).

4

181. Defendant County was subjectively aware of Plaintiff's

Deny. Plaintiff was not

5

contractual interest in Base Pay, as evidenced by the

demoted. See DSUF 4

6

numerous reminders by Defendants Bryan and County that

(0000272-358, specifically

7

Plaintiff would have to expressly amend his employment

0000319), 44 (Jadwin

8

contract to implement the Paycut resulting from his

Deposition, 3/12/08, pgs.

9

Demotion.

969:1-974:2 (Exhibits 644 and

10

581»,45 (Jadwin Deposition,

11

3/12/08, pgs. 974:3-976:12).

12

KMC letters to Jadwin dated

13

8/14/01 - 9/12/08.

14

182. There was nearly a month gap between the time

Deny. Plaintiff was not

15

Defendant Bryan informed Plaintiff he was initiating

demoted. See DSUF 4

16

demotion procedures to the time the JCC voted to demote

(0000272-358, specifically

17

Plaintiff.

0000319). KMC letters to

18

Jadwin dated 8/14/01 -

19

9/12/08.

20

183. Defendants never notified Plaintiff of the time or place

Deny. Plaintiff was not

21

of the JCC vote to demote Plaintiff gave him an explanation

demoted. See DSUF 4

22

of the evidence against him, or provided him an opportunity

(0000272-358, specifically

23

to tell his side ofthe story.

0000319). KMC letters to

24

Jadwin dated 8/14/01 -

25

9/12/08.

26

184. Before the JCC vote occurred, Plaintiff sent a letter to

Deny. Plaintiff was not

27

Defendant County legally challenging the Demotion.

demoted. See DSUF 4

28

-33DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 108 34 ofof38 120

I

(0000272-358, specifically

2

0000319). See PSUF 184 (Lee

3

Supp. Decl., Exh. 2 (Lee Letter

4

to Barnes of 6/29/06 at

5

DFJl349). There is no

6

evidence to support this. KMC

7

letters to Jadwin dated 8/14/01

8

- 9/12/08.

9

185. Nor did Defendant County ever offer Plaintiff a post-

Deny. See DSUF 4 (0000272-

10

deprivation hearing.

358, specifically 0000319).

11

186. More importantly, the JCC did not constitute an

Deny. See Lee Decl., Exh. 17.

12

impartial tribunal since it comprised individuals who had

13

been harassing and retaliating against Dr. Jadwin and/or

14

individuals on whom Dr. Jadwin was blowing the whistle.

15

187. Nor was Defendant Bryan - who invited Plaintiff to

Deny. Plaintiff was not

16

contact him, and only, him regarding the Demotion he

demoted. See DSUF 4

17

himself had instigated - an impartial adjudicator given his

(0000272-358, specifically

18

demonstrated bias against Plaintiff.

0000319). KMC letters to

19

Jadwin dated 8/14/0 I -

20

9/12/08.

21

188.

22

189.

23

190. Plaintiffs employment contract expressly set forth a

Deny. See DSUF 6 (0001479-

24

mutually explicit understanding with Defendant County that

1499).

25

Plaintiff would be paid Professional Fees.

26

191. Defendant County was subjectively aware of Plaintiffs

Deny. See DSUF 6 (0001479-

27

contractual interest in Professional Fees as evidenced by the

1499). Plaintiff was not

28

-34DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 109 35 ofof38 120

1

then-CEQ's letter to Plaintiff regarding the Paycut. Mr.

demoted. KMC letters to

2

Culberson explained that, as a demoted staff pathologist with

Jadwin dated 8/14/01 -

3

a drastically reduced base salary, Plaintiff would

9/12/08.

4

nevertheless be able to take advantage of his reduced

5

administrative duties in order to increase his Professional

6

Fees-based income.

7

192. Mr. Culberson participated in the decision to place

Deny. See DSUF 41

8

Plaintiff on Admin Leave, which denied Plaintiff the

(DFJO 1482).

9

opportunity to earn Professional Fees.

10

193. Defendants failed to provide Plaintiff any pre- or post-

Deny. See DSUF 4 (0000272-

11

deprivation procedure when placing him on Admin Leave.

358).6(0001479-1499).

12

194. When Defendant County sent a letter to Plaintiff

Deny. See DSUF 41

13

placing him on Admin Leave, the letter stated only that the

(DFJ01482).

14

Admin Leave was "pending resolution of a personnel

15

matter."

16

195. At no time did Defendants County or Harris inform

Deny. There was no "charge"

17

Plaintiff of the nature of the charges against him, give him

against Plaintiff.

18

and explanation of the evidence against him, or provide him

19

an opportunity to tell his side of the story.

20

196. Even when Plaintiff protested the lack of due process,

Deny. See PSUF 196 (Lee

21

Defendant County refused to respond.

Supp. Dec!., Exh. 4 (Lee Letter

22

to Barnes of 4/4/07 at

23

DFJ01619». There is no

24

evidence to support this.

25

197. Since 1995, only one other department chair had ever

26

been placed on administrative leave in excess of 1 month.

27

198.

28

Admit.

-35DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 110 36 ofof38 120

1

199.

2

200. Defendant County customarily renews the contracts of

Deny. See Response to #30

3

all of its KMC medical staff.

above.

4

201. When Plaintiff asked Defendant County to identify all

Admit.

5

members of the KC medical staff - which comprises roughly

6

60 full-time faculty physicians at any given time - who had

7

employment contracts which were not renewed during the

8

period from October 24, 2000 to the present, Defendant

9

County was able to name only one doctor.

10

202. At no time did Defendant County inform Plaintiff of the

Deny. See Response to #195

11

nature of the charges against him, give him an explanation of

above.

12

the evidence against him, or provide him an opportunity to

13

tell his side of the story.

14

203. Defendant County denies that anyone even participated

Deny. See PSUF 203 (Lee

15

in a decision not to renew Plaintiff's employment contract.

Supp. Decl., Exh. 21 (Rog No.

16

45,53:16-20)).

17

204. Even when Plaintiff protested the lack of due process,

This is the same as #196. See

18

Defendant County refused to respond.

Response to #196 above.

19

205.

20

206.

21

207. Defendant County itself admits that no relevant event

Deny. See DSUF 6 (0001479-

22

occurred on or before January 6, 2005.

1499), 48 (0000623-630), 65

23

(Jadwin Deposition, 119/08,

24

pgs. 452:4-455:19), 71

25

(0001059-1072), 90 (0000260

26

(Exhibit 560)), 91 (0000031-

27

70),92 (DFJ00246), 97

28

-36DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

Page Page 111 37 ofof38 120

I

(DFJ0025 1-270), 98

2

(DFJ00289-290), 101

3

(DFJ00241-242),102

4

(DFJ00248), 147 (DFJ00243-

5

245).

6

208.

7

209.

8

210. Defendant County admits that Plaintiff has exhausted

9

his administrative remedies as to all claims except for the

10

new FMLAlCFRAlFEHA retaliation claim added via the

11

Second Amended Complaint, filed on October 7, 2008 (Doc.

12

241).

13

211. Plaintiff exhausted his CRFA & FEHA

14

oppositional/participation retaliation claims by filing a

15

timely complaint with the California Department of Fair

16

Employment & Housing ("DFEH") on September 3, 2008,

17

and obtaining a right to sue letter that same day.

18

212.

19

213.

20

214. Defendant Bryan was the Chief Executive Officer at

21

KMC from September of 2004 until September of 2006.

22

215. Eugene Kercher, M.D. was the President ofKMC

23

Medical Staff from July 2004 to July 2006, and a member of

24

the JCC.

25

216. Defendant Irwin Harris, M.D., was Chief Medical

26

Officer at KMC from July of2005 to September of2007,

27

and a non-voting member of the JCC.

28

Admit.

Admit.

Admit.

Admit.

Admit.

-37DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Case Case 1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document 293-2 278

Filed Filed 12/26/2008 12/01/2008

1

217. Jennifer Abraham, M.D. was Immediate Past President

2

ofKMC Medical Staff during 2004-2006, and President

3

Elect in July 2006 to December of 2007.

4

218. Scott Ragland, D.O. was President-Elect of the KMC

5

Medical Stafffrom 2004-2006, Chair of the Quality

6

Management Committee, and a member of the JCC.

7

219. Toni Smith was the Chief Nurse Executive ofKMC,

8

and a member of the Jec.

9

220. William Roy, M.D., was Chief of the Division of

Page Page 112 38 ofof38 120

Admit.

Admit.

Admit.

Admit.

10

Gynecologic Oncology at KMC.

11

221. Marvin Kolb, M.D. was former Chief Medical Officer

12

at KMC who left in September of 2004.

13

222. Phillip Dutt, MD., became Chair of Pathology at KMC

Deny. Dr. Dutt was the

14

in August of2006.

interim Chair.

15

223. David Culberson was Interim Chief Executive Officer

Admit.

16

from September of2006 to May of2007.

17

224. Paul Hensler became Chief Executive Officer at in [sic]

18

May of2007.

19

225. Gilbert Martinez was and is the Manager of Laboratory

Deny. Gilbert Martinez retired

20

Services at KMC.

on September 27,2008.

21

22

Admit.

Admit.

Change of Employee Status. Respectfully submitted,

23 24

Dated: December 1, 2008

LAW OFFICES OF MARK A. WASSER

25 26 27 28

By: lsi Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al -38DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICAnON

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

Document 293-2

Filed 12/26/2008

Page 113 of 120

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

EXHIBIT 4: Eugene Lee Faxed Demand Letter to Kern County Deputy Counsel Karen Barnes

27 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION O EUGENE D. LEE IN SUPPORT OF Π’S OPPOSITION TO Δs MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 251) 6

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

Document 293-2

Filed 12/26/2008

Page 114 of 120

Eugene D. Lee MaxEmail Send [[email protected]] Thursday, June 29, 2006 3:42 PM [email protected] MaxEmail Send Delivery Report Job 20183519-100011.001

From: Sent: To: Subject:

=============================================================================== Maxemail Send Job Confirmation For Job ID 20183519-100011.001 =============================================================================== Job Information Maxemail Job ID Number of Pages Recipient Count Total Charges Report Time Zone:

: 20183519-100011.001 : 0006 : 3 : $0.65 America/Los_Angeles (GMT-0700)

Recipient Delivery Summary Delivered Errorred Rec 0000 0001 0002

: 3 : 0

Fax Number 6618683809 8182499682 2135960487

Pgs* 0006 0006 0006

Duration 00:01:50 00:01:49 00:02:07

Calls 1 1 1

Status Delivered Delivered Delivered

Charge $0.20 $0.20 $0.25

================================================================================ Individual Call Detail ================================================================================ Call Detail for Item 00000 ID 3109078 Sent To 6618683809 0006 Pages Delivered Date/Time Duration Pgs* Status Charge 06/29-15:42 00:01:50 6 Transmission Successful $0.20 Call Detail for Item 00001 ID 3109079 Sent To 8182499682 0006 Pages Delivered Date/Time Duration Pgs* Status Charge 06/29-15:43 00:01:49 6 Transmission Successful $0.20 Call Detail for Item 00002 ID 3109080 Sent To 2135960487 0006 Pages Delivered Date/Time Duration Pgs* Status Charge 06/29-15:43 00:02:07 6 Transmission Successful $0.25 =============================================================================== End Of Report ===============================================================================

1

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

Pg I/ 6 06/29/06

3:38 pm

L A rDocument O F293-2 F I Filed C E12/26/2008 O F

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

E U G E N E

L E E

STE 2 7 0 0 4 4 5 SOUTH F I G U E R O A S T LOS ANGELES, CALIFORNIA 9 0 0 7 1 - 1 6 3 2

12 131 506-0407 FACSIMILE

[email protected]

Page 115 of 120 rm t'dA1 L W.LCIEL.ECIM WE~EITE

FAX To: Eugene Lee Fax Number: 21 35960487

Pages: 6 (including cover page) Re: Jadwin v Kern Medical Center et al. Comments: Please see the attached letters.

From: Law Office of Eugene Lee Date: 06/29/2006

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

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

Document 293-2

Pg 2/ 6 06/29/06

Filed 12/26/2008

TELEPHONE

L A WOFFICE OF E U G E N E L E E

12 131 6 9 e . 0 4 0 7 FAUEIMILL

4 4 6 E O U T H FImULROA ET, E U I T L 2 7 0 0 LOU ANmLLLE. UALIFORNIA 9 0 0 7 1 . 1 - 3 2

( a 131 ~ m a - 0 4 8 a

3:38 pm

Page 116 of 120 [email protected] E-MAIL

WWW.LOLL.UOM WLEEITL

June 29,2006 VIA US MAIL. FAX & EMAIL Ms. Kasen S. Basnes Deputy County Counsel Office of the County Counsel, County of Kern Administrative Center 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Re:

Preservation i no spoliation of evidence Jadwin v. County of Kern, Peter Bryan, et al.

Dear Ms. Barnes: I am writing to inform you that my office has been retained by Dr. David F. Jadwin to represent him in the above-captioned pending matter. We are currently preparing to bring suit against the County of Kern, Mr. Peter Bryan, Dr. William Roy, and other defendants whose identities are to be determined, and will soon be submitting the appropriate filings under the California Tort Claims Ad, California Fair Employment & Housing A d , etc. Dr. Jadwin is seeking to prosecute various employment-, tort- and contract-related claims arising out of, among other things: (i)

Retaliation in Violation of Cal. Familv Riehts A d : Retaliatory adions engaged in by Kern Medical Center (hereinafter referred to as " K M C ) et al. against Dr. Jadwin for taking medical leaves, in violation of the Cal. Family Rights A d ;

(ii)

Wrongful Demotion i Termination in Violation of Cal. Bus, & Prof. C. 12056 & Conspiracy Relating Thereto: Retaliatory actions engaged in by KMC et al. against Dr. Jadwin in violation of Cal. Bus, & Prof. C. 5 2056 (Protection against Retaliation for Physicians Who Advocate for Medically Appropriate Health Care), and conspiracy relating thereto by certain members of KMC's medical staff;

(iii)

Per Se Defamation & Ratification: Various communications made by certain members of KMC's medical staff which were per se defamatory of Dr. Jadwin's professional competence, and which KMC subsequently ratified and condoned;

(iv)

Disabilitv Discrimination / Failure to Accommodate in Violation of Cal. Fair Employment & Housing Act: Disability-based discriminatory harassment by KMC et al. of Dr. Jadwin, and failure to accommodate disability in violation of the Cal. Fair Employment & Housing A d ;

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

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

Document 293-2

Filed 12/26/2008

Page 117 of 120

(v)

Breach of Contract 1 Good Faith & Fair Dealing: Breach of Dr. Jadwin's employment contract (and implied covenant of good faith & fair dealing) by KMC et al. for failure to comply with KMC's bylaws and failure to permit Dr. Jadwin until June 16,2006 to decide whether to resign chairmanship (see Mr. Bryan's email to Dr. Jadwin of June 14,2006, where he informs Dr. Jadwin that he is abrogating the June 16 deadline and unilaterally initiating Dr. Jadwin's removal fiom chairmanship), among other things;

(vi)

Negligent Hiring I Su~ervisionI Retention

(vii)

Intentional Infliction of Emotional Distress

Please note that the foregoing list is preliminary and subject to change. Additional causes of action will likely materialize as more facts become known.

I. DEMAND FOR PRESERVATION OF EVIDENCE This letter serves as a formal demand that you take, and cause to be taken, all appropriate a r m a t i v e steps to preserve any and all evidence relating to the foregoing claims. This includes but is not limited to, all emails, oncology conference-related feedback forms and documentation, memos, letters, reports, committee and other meeting minutes, notes taken at meetings with or concerning Dr. Jadwin (including those of Dr. Marvin Kolb, Dr. Irwin Harris and Mr. Peter Bryan), administrative records (including those of Dr. Kolb and Dr. Harris), etc. Failure to do so may constitute negligent or intentional spoliation of evidence and result in, among other things, monetary, evidentiary, issue, and terminating sanctions in the pending lawsuit. In addition, intentional spoliation of evidence constitutes a criminal offense pursuant to California Penal Code 5135. That provision states: Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it fiom being produced, is guilty of a misdemeanor. Please kindly advise us of the identity, address, and telephone number of any party who may possess any evidence relating to the foregoing claims.

11. DEMAND FOR ACCESS TO CREDENTIALS FILE Turning to other matters, please note that KMC is currently in violation of both Cal. Labor C. 5 1198.5 and KMC Bylaws 5 14.9(E) regarding Dr. Jadwin's written request for access to his credentials file, dated May 19, 2006. Dr. Jadwin submitted his request in writing to Dr. Kercher more than a month ago, yet KMC continues to deny Dr. Jadwin (i) physical access to his credentials file, and (ii) a meaningful summary of the contents of the documents which KMC is refusing Dr. Jadwin access to. Please note, the mere recitation of titles of documents referenced

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

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

Document 293-2

Filed 12/26/2008

Page 118 of 120

in the foregoing subsection (ii), as KMC has provided to Dr. Jadwin, does not constitute a meaningful summary. In addition, I would like to relay Dr. Jadwin's request that I be provided access to his Kern County personnel file as soon as possible. Enclosed herewith is Dr. Jadwin's written request relating thereto.

111. DEMAND FOR ACCOUNTING OF CUMULATIVE MEDICAL LEAVE HOURS As you may know, at the meeting of April 28,2006 (and in Mr. Bryan's subsequent confirmation by fax of even date), Mr. Bryan had directed Dr. Jadwin to contact Mr. Steve O'Conner in the Human Resources department at KMC regarding all leave-related questions. Pursuant to that instruction, Dr. Jadwin spoke by phone with Mr. O'Conner on June 13,2006, and asked him to provide him with a full accounting of the actual hours of medical leave he has thus far exhausted. Dr. Jadwin has yet to receive any response. According to Kern County Civil Service Commission Rule 1201.20, Dr. Jadwin is entitled to up to 6 months' cumulative unpaid sick leave in any given 12-month period. Dr. Jadwin simply seeks to determine where he stands in terms of medical leave hours.

IV. MR. BRYAN'S EMAIL OF JUNE 26,2006 In his email to Dr. Jadwin of June 26,2006, Mr. Bryan directs Dr. Jadwin as follows: (i)

"you are to refrain from entering the facility for any reason other than seeking medical attention"

(ii)

"you are also to refrain from contacting any employee or faculty member of Kern Medical Center for any reason other than seeking medical attention"

(iii)

"In accordance with KMC policy, usage of any and all equipment as well as access to any and all systems has been suspended while you are on your approved personal necessity leave of absence"

Regarding instruction (i), please note that Dr. Jadwin had absolutely no prior notice that his leave would preclude him from access to KMC's facilities. Dr. Jadwin has a number of valuable and important personal documents and effects in his office at KMC which he requires immediate access to. For instance, Dr. Jadwin needs to retrieve CME certificates from his office so that he may submit them in response to a compliance audit, which requires submissions by early next week. Dr. Jadwin will require physical access to his office in order to retrieve these and other personal items. Please let me know what immediate arrangements can be made so that Dr. Jadwin can recover such items. Regarding instruction (ii), please provide me with the legal grounds for imposing on Dr. Jadwin (or any other KMC employee) such overbroad and blanket prohibition against association with other KMC personnel.

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

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

Document 293-2

Filed 12/26/2008

Page 119 of 120

Regarding instruction (iii), please provide me with the specific provisions in KMC's bylaws, KMC's rules and regulations, Kern County's Employee Manual, Kern County's Civil Service Commission Rules, or other appropriate rules and regulations, which establish that employee access to all equipment will be suspended for the duration of personal necessity (or any other) leaves. I must admit to being unable to locate any such provision. Please note, as mentioned previously, Dr. Jadwin is permitted under Kern County CSC Rules to take up to 6 months' cumulative unpaid sick leave. As we have reason to believe that such 6 month maximum has not been exhausted, we do not acknowledge nor necessarily agree that Dr. Jadwin's current leave can be characterized as personal necessity leave vis-a-vis sick leave. Finally, I would like to speak on Mr. Bryan's claims that he acts out of a "concern" for Dr. Jadwin's welfare, and that "we do not want to you to feel obligated to do work while on a leave of absence", which claims are followed by salient threats of formal termination and other penalties should Dr. Jadwin fail to comply. As Mr. Bryan is aware, the doctor's certification which Dr. Jadwin previously submitted in connection with his medical leave stated that Dr. Jadwin was capable of working 1 to 2 days per workweek. Indeed, KMC had previously reasonably accommodated Dr. Jadwin's disability by permitting Dr. Jadwin to come into work 1 to 2 days a week for several months. I fail to comprehend the sudden change in circumstance that necessitated KMC's recent decision to lock Dr. Jadwin out of the KMC campus. Mr. Bryan's expressions of concern for Dr. Jadwin's welfare strike me as particularly disingenuous. V. CONCLUSION

Litigation is always a measure of last resort and Dr. Jadwin does not undertake it lightly. It is unfortunate that events have compelled Dr. Jadwin to consider litigation at all. If you wish to discuss the foregoing with us, please feel free to contact me anytime at (213) 4531781 or at elee@,LOEL.com. We look forward to working with you toward resolution of Dr. Jadwin's claims.

enc:

Request for Kern County Personnel File

cc:

Dr. David F. Jadwin

To: Eugene Lee @ 213-596-0487

From: Law OFFice o f Eugene Lee

06/28/2006 12;41 18182499682 Case 1:07-cv-00026-OWW-TAG

Document 293-2

June 27,2006

To Whom It May Concern:

Please turn over my county personnel file to: 'Eugkne Lee 445 South Figueroa Street, Suite 2700 Los Angeles, California 90071 -1632

David F. Jndwin, DO 3 184 Beaudly Terrace

Glendale, California 91208-174.5

Pg 6/ 6 06/29/06

3:38 pm

Filed 12/26/2008

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