322 Joint Stmt Undisputed Facts

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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.

JOINT UNDISPUTED FACTS TRIAL:

COUNTY OF KERN,

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Case No. 1:07-cv-00026 OWW DLB

May 12, 2009

Complaint Filed: January 6, 2007

Defendant.

16 17 18 19 Pursuant to the Court’s order of April 28, 2009 (Doc. 321), the parties hereby submit joint 20 undisputed facts, accompanied by transmission via email to [email protected] and 21 [email protected] and [email protected], by and through the parties’ respective counsel 22 of record. 23 I. UNDISPUTED FACTS

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Plaintiff was a “core physician” at KMC.

2.

On October 24, 2000, Plaintiff signed an employment contract with the County. The term

25 26 of Plaintiff’s employment was set to expire on November 30, 2006. According to Exhibit A, Plaintiff, in 27 his role as Pathology Chairman, was expected to serve as the medical director for the anatomic 28 pathology service and clinical laboratories at KMC, and report to the KMC Medical Director. USDC, ED Case No. 1:07-cv-00026 OWW DLB JOINT UNDISPUTED FACTS

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3.

Defendant Kern County placed Plaintiff’s initial salary level at Step C.

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4.

On October 5, 2002, Plaintiff executed a second employment contract which called for a

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term ending October 4, 2007. The contract provided that, as a Core Physician, Plaintiff must perform

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certain services as set forth in Exhibit A.

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5.

Plaintiff requested and received leaves of absence and reduced work schedules, the terms

and conditions of and reasons for which are memorialized in writings that speak for themselves. 6.

Defendant Bryan and Plaintiff exchanged written communications regarding Plaintiff’s

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reduced work schedule and requests for leaves of absence. Plaintiff met with Defendant Bryan and

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others to discuss those subjects.

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7.

Defendant Bryan and Plaintiff exchanged written correspondence regarding Plaintiff’s

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tenure and performance as Chair of the Pathology Department at KMC. All the writings speak for

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themselves.

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8.

On or about March 2, 2006, Plaintiff submitted a “Kern County Personnel Department

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Request For Leave Of Absence” form on which Plaintiff checked the box “Initial Request.” He

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requested a leave of absence from “12-16-05” to “3-15-06.” Under the section entitled “Mandatory

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Leave FMLA/CFRA” Plaintiff requested “Intermittent-Employee” leave. He indicated that he had a

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physician’s note.

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9.

Defendant County appointed Dr. Philip Dutt Acting Chair of the Pathology Department.

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10.

Plaintiff returned to work as a staff pathologist at KMC on October 4, 2006.

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11.

Plaintiff exchanged written correspondence with KMC Interim CEO David Culberson

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and those writings speak for themselves. 12.

In a letter to David Culberson dated December 13, 2006, Plaintiff informed hospital

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administration that he had notified outside authorities of alleged violations. Plaintiff remained on

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administrative leave until his contract expired on October 4, 2007.

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13.

Plaintiff filed a claim with Defendant Kern County and the claim was rejected.

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14.

The County employed Plaintiff and the County is a “government agency”.

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15.

As of 12/16/05, Plaintiff was eligible for medical leave under FMLA/CFRA.

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16.

The County is an employer subject to the FMLA/CFRA.

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17.

Plaintiff took FMLA/CFRA medical leave.

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18.

The County explicitly, in writing, approved Plaintiff’s first “FMLA” leave request.

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19.

Plaintiff took a second FMLA leave of absence after he submitted a second Request For

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Leave Of Absence form on April 26, 2006. In his second request (April 26, 2006), Plaintiff asked that

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his initial leave be extended. Then, after his meeting with Bryan and others on April 28, 2006, he was

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granted full-time FMLA leave until June 16, 2006.

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20.

Plaintiff was on FMLA leave at minimum through the “06-09” pay period, which

spanned from April 29, 2006 through May 12, 2006. 21.

The County accommodated Plaintiff’s disability for four months, “from December 16,

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2005 to April 16, 2006, by providing him with the reduced work schedule medical leave” that he had

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requested.

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22.

At all material times, Defendant Kern County was a local public entity within the

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meaning of sections 811.2 and 900.4 of the Government Code and is operating in Kern County,

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California.

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23.

During the entire course of Plaintiff’s employment, Defendant Kern County has

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continuously been an employer within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Gov’t

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Code § 12945.2(b)(2)] FEHA (Gov’t Code § 12926(d)], and FLSA [29 U.S.C. § 203] engaged in

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

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Plaintiff’s workplace.

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24.

Plaintiff was an employee of Defendant Kern County from October 24, 2000 to October

4, 2007. 25.

Plaintiff is a pathologist whom Defendant County hired as a pathologist at KMC and

appointed to the position of Chair of the Pathology Department. 26.

Plaintiff was compensated and provided with certain benefits pursuant to a written

employment agreement, the terms of which speak for themselves. 27.

On or about July 10, 2006, the JCC voted to remove Plaintiff from his position as Chair

of the Pathology Department at Kern Medical Center. 28.

Plaintiff was removed from his position as Chair of the Pathology Department because he

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was not physically present in the hospital. 29.

Plaintiff’s employment agreement was subsequently amended to reduce Plaintiff’s base

compensation.

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30.

Defendant County placed Plaintiff on paid administrative leave on December 7, 2006.

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31.

Any acts or omissions of the County were under color of law.

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RESPECTFULLY SUBMITTED.

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Dated: April 29, 2009.

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

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Dated: April 29, 2009

LAW OFFICES OF MARK A. WASSER

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By:

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/s/ Mark A. Wasser (as authorized on 4/29/09) Mark A. Wasser Attorney for Defendants County of Kern, et al.

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