You are on page 1of 29

Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 1 of 29

1 Eugene D. Lee (SB#: 236812)


LAW OFFICE OF EUGENE LEE
2 555 West Fifth Street, Suite 3100
Los Angeles, CA 90013
3 Phone: (213) 992-3299
Fax: (213) 596-0487
4 email: elee@LOEL.com
5 Attorney for Plaintiff
DAVID F. JADWIN, D.O.
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 FRESNO DIVISION
11 DAVID F. JADWIN, D.O., Civil Action No. 1:07-cv-00026 OWW TAG
12 Plaintiff, PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY
13 v. JUDGMENT
[Fed. R. Civ. P. 56(e)]
14 COUNTY OF KERN, et al.,
Date: January 12, 2009
15 Defendants. Time: 10:00
Courtroom: U.S. Dist. Ct., Crtrm. 3
16 2500 Tulare St., Fresno, CA
17 Complaint Filed: January 6, 2007
Trial Date: March 24, 2009
18
19
20
21
22
23
24
25
26
27
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 1
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 2 of 29

1 Table of Contents
I.  EXECUTIVE SUMMARY ................................................................................................................ 1 
2 A.  Credential Threat .......................................................................................................................... 1 
B.  Forced Full-Time Leave ............................................................................................................... 1 
3 C.  Demotion and Paycut ................................................................................................................... 2 
D.  Administrative Leave ................................................................................................................... 2 
4 E.  Nonrenewal .................................................................................................................................. 3 
II.  ARGUMENT ...................................................................................................................................... 4 
5 A.  THRESHOLD ISSUES ................................................................................................................ 4 
1.  Defendants’ Spoliation of Evidence Creates an Adverse Inference Avoiding Summary
6 Judgment ............................................................................................................................................. 4 
2.  Defendants Failed to Plead Affirmative Defenses ................................................................... 7 
7 B.  Adverse Employment Actions Common to Counts ..................................................................... 7 
C.  COUNTS 1 & 2: Whistleblower Retaliation................................................................................ 8 
8 1.  October Conference .................................................................................................................. 8 
2.  PCCs ......................................................................................................................................... 9 
9 3.  Radical Prostatectomy .............................................................................................................. 9 
4.  Martinez Tipoff......................................................................................................................... 9 
10 5.  Skull Flaps .............................................................................................................................. 10 
6.  Smear Campaign..................................................................................................................... 10 
11 D.  COUNTS 3 & 4: Medical Leave Retaliation ............................................................................. 10 
E.  COUNTS 4 & 5: Medical Leave Denial/Interference ................................................................ 13 
12 F.  COUNT 9: Deprivation without Due Process ............................................................................... 14 
1.  Demotion ................................................................................................................................ 14 
13 2.  Admin Leave .......................................................................................................................... 15 
3.  Nonrenewal ............................................................................................................................. 16 
14 4.  Qualified Immunity ................................................................................................................ 17 
5.  Stigma ..................................................................................................................................... 18 
15 G.  COUNTS 3, 10 AND 11: Oppositional/Participatory Retaliation ............................................. 18 
H.  COUNT 6: Disability Discrimination ........................................................................................ 20 
16 I.  COUNT 7: Failure to Accommodate ............................................................................................. 23 
J.  COUNT 8: Interactive Process ...................................................................................................... 24 
17 III.  CONCLUSION .............................................................................................................................. 25 
18
19
20
21
22
23
24
25
26
27
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT i
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 3 of 29

1 Table of Authorities
2 Cases 
Aerel, S.R.L. v. PCC Airfoils, LLC (6th Cir. 2006) 448 F3d 899, 907–908 ............................................. 19
3 Ayoob v. Ayoob (1946) 74 Cal.App.2d 236, 250-251 ............................................................................... 15
Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001) ............................... 11, 12
4 Bank of Ill. v. Allied Signal Safety Restraint Systems (7th Cir. 1996) 75 F3d 1162, 1169 ....................... 19
Block v. City of Los Angeles (9th Cir. 2001) 253 F3d 410, 419, fn. 2 ...................................................... 19
5 Blumer v. Madden (1932) 128 Cal.App. 22, 24 ........................................................................................ 15
Board of Regents v. Roth 408 U.S. 564, 578 n.16 (1972) ........................................................................... 8
6 Bowen v. Missouri Department of Social Services, 311 F.3d 878, 884 (2002) ........................................ 23
Brewster v. Bd. of Educ. 149 F.3d 971, 987, fn.9. (9th Cir. 1998) ........................................................... 17
7 Brown v. Sierra Nevada Memorial Hospital 849 F.2d 1186 (9th Cir. 1988) ........................................... 22
Byrnie v. Town of Cromwell, Board of Ed. (2nd Cir. 2001) 243 F3d 93, 107 ............................................ 4
8 California Fair Employment and Housing Commission v. Gemini Aluminum Corp. 122 Cal.App.4th
1004 (2004) ............................................................................................................................................. 1
9 City of Moorpark v. Superior Court, 18 Cal.th 4th 1143 (1998) ................................................................. 21
Colarossi v. Coty USA, Inc. 97 Cal. App. 4 1142 ................................................................................... 10
10 Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30 ..................................................................... 23
Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33 .................................................................. 3
11 EEOC v. Board of Governors (7th Cir. 1992) 957 F.2d 424 ...................................................................... 3
EEOC v. Sears Roebuck Co. (4th Cir. 2001) 243 F.3d 846, 853 .............................................................. 22
12 Humphrey v. Memorial Hosps. Assn. (9 Cir. 2001) 239 F. 3d 1128, 1139-1140 ..................................... 21
Kimbro v. Atlantic Richfield Co. 889 F.2d 869 (9th Cir., 1989) ................................................................. 1
13 Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 430 ..................................................................... 16
Lujan v. Minagar 124 Cal.App.4th 1040, 1045-46 (2005) ......................................................................... 9
14 McDonnell Douglas v. Green, 411 U.S. 792 (1973) ................................................................................ 22
Mendiondo v. Centinela Hosp. Medical Center 521 F.3d 1097, 1105 (9th Cir. 2008) .............................. 8
15 Mora v. Chem-Tronics Inc., 16 F.Supp. 2d 1192, 1202, 1217 (S.D. Cal. 1998) ...................................... 13
Morgan v. U.S. Xpress, Inc., 2006 U.S. Dist. LEXIS 36195 (M.D. Ga. June 2, 2006) .............................. 4
16 O’Mary v. Mitsubishi Electronics of America, Inc., 59 Cal. App. 4th 563, 574-75 (1997) ..................... 22
Payne v. Norwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080 .................................................................. 22
17 Perry v Sindermann 408 U.S. 593, 602 (1972)..................................................................................... 8, 17
Richards v. CH2M Hill, Inc. 26 Cal. 4th 798, 803 .................................................................................... 10
18 Roberts v. College of Desert 870 F.2d 1411, 1416 (9th Cir. 1988) .................................................... 14, 17
Roth v. Veteran’s Admin. of United States 856 F.2d 1401, 1409 ....................................................... 16, 17
19 Schneider v. TRW, Inc. (9th Cir. 1991) 938 F.2d 986, 990–991................................................................. 7
Shoemaker v County of Los Angeles (1995 2d. Dist.) 37 Cal.App.4th 618, 630 ...................................... 16
20 Transworld Airlines v. Thurston, 469 U.S. 111, 105 (1985) .................................................................... 22
Williams v. Shenango, Inc. 986 F. Supp. 309, 320-21 (W.D. Pa. 1997)................................................... 13
21 Zubulake v. UBS Warburg LLC (SD NY 2004) 229 FRD 422, 432........................................................... 4
Statutes 
22 29 U.S.C. § 2615(b) .................................................................................................................................. 18
Cal. Gov’t C. § 12945.2 ............................................................................................................................ 13
23 Cal. Gov’t Code §§ 12926.1(c) ................................................................................................................. 21
Cal. Gov’t. C. § 12940(h) ......................................................................................................................... 18
24 Cal. Gov’t. C. §§ 12900 to 12996 ............................................................................................................. 18
Cal. Gov't. Code 12926(i)(1)(B) ............................................................................................................... 21
25 Cal. Health & Safety Code § 1278.5........................................................................................................... 8
Cal. Health & Safety Code § 1278.5(b)(1)(A) ............................................................................................ 8
26 Cal. Health & Safety Code § 1602.5........................................................................................................... 9
Cal. Health & Safety Code § 1635.1......................................................................................................... 10
27 Cal. Health & Safety Code 1278.5(d) ......................................................................................................... 8
Cal. Labor Code § 1102.5(e)....................................................................................................................... 8
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT ii
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 4 of 29

Cal. Labor Code § 1102.6 ........................................................................................................................... 8


1 U.S.C. § 2615(b)(1) .................................................................................................................................. 18
2 Other Authorities 
Adv. Comm. Note to 2006 Amendment to FRCP 26(b)(2) ........................................................................ 4
3 Judicial Council of California Civil Jury Instructions No. 2600 .............................................................. 13
Regulations 
4 2 Cal. Code of Regs. § 7297.1(2).............................................................................................................. 13
2 Cal. Code of.Regs. § 7297.7 .................................................................................................................. 11
5 2 Cal.Code.of Regs. § 7287.8(b)..................................................................................................... 7, 11, 18
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT iii
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 5 of 29

1 I. EXECUTIVE SUMMARY
2 Plaintiff David F. Jadwin (“Plaintiff” or “Jadwin”) is a disabled doctor who was formerly chair
3 of the Pathology department at Kern Medical Center (“KMC” or “hospital”), a large 60-doctor acute
4 care teaching hospital that is owned and operated by Defendant County of Kern (“Defendant County” or
5 “County”). [Plaintiff Material Fact (“PMF”) 5, 30]. Plaintiff’s major depression disability was known to
6 his employer as early as 2003. [Separate Statement in Support of Defendants’ Motion for Summary
7 Judgment (Doc. 259), Defense Material Fact (“DMF”) 62, 63, 64].1
8 A. CREDENTIAL THREAT
9 After Plaintiff began blowing the whistle to his employer and, later, outside agencies, regarding
10 serious patient care issues and regulatory noncompliance, Plaintiff was subjected to retaliation. In
11 October 2005, Defendant County informed Plaintiff of its decision to place letters of reprimand into his
12 physician credentialing file (“Credential Threat”). [PMF 40-42, DMF 106]. The unwarranted Credential
13 Threat led to a recurrence of his chronic depression disability which necessitated medical leave. [PMF
14 75]. Plaintiff notified his employer in January 2006 of his need for medical leave and was thereafter
15 granted reduced work schedule medical leave whereby Plaintiff was permitted to work 2 to 3 days per
16 week. [PMF 13, 121]. Beginning January 2006, Defendant County did not pay Plaintiff for the days he
17 did not work. [PMF 226].
18 B. FORCED FULL-TIME LEAVE
19 In April 2006, several months into Plaintiff’s reduced work schedule leave, Defendant Peter
20 Bryan, then-Chief Executive Officer of KMC (“Bryan”) observed that “Yes, the Department of
21 Pathology continues to function well, as it has for many years, and, yes, you have made many positive
22 changes to the department” [PMF 123]. He later testified that “actual functioning of the department of
23
1
It is undisputed that, in 2003, Plaintiff told Marv Kolb, M.D., then-Chief Medical Officer and
24
Plaintiff’s direct supervisor, that he was depressed. There is no legal requirement that Plaintiff notify
25 each and every officer at KMC of his disability, or that he use the word “disability”. In Kimbro v.
Atlantic Richfield Co. 889 F.2d 869 (9th Cir., 1989), the court held that notice to Plaintiff’s supervisor
26 was imputed to the person(s) who made the final decisions regarding the adverse action. See also
California Fair Employment and Housing Commission v. Gemini Aluminum Corp., 122 Cal.App.4th
27
1004 (2004) (notice to ANY supervisor of plaintiff’s limitations is sufficient to trigger the
28 accommodation duty.)

USDC, ED Case No. 1:07-cv-00026 OWW TAG


Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 1
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 6 of 29

1 [pathology] actually was fairly good” [PMF 227] and that no complaints about Plaintiff were “bubbling”
2 up to him at the time [DMF160]; nevertheless, Bryan then proceeded to interfere with Plaintiff’s medical
3 leave by ordering him onto full-time medical leave in April 2006 (“Forced FT Leave”) so as to burn up
4 Plaintiff’s medical leave entitlement. [PMF 228]. This violated the California Family Rights Act
5 (“CFRA”) and the Family & Medical Leave Act (“FMLA”).
6 C. DEMOTION AND PAYCUT
7 In July 2006, after Plaintiff had been on Forced FT Leave as ordered by Bryan for almost 3
8 months, Bryan caused Plaintiff to be demoted by making a recommendation for removal of Plaintiff to
9 KMC’s highest decisionmaking body, the Joint Conference Committee (“JCC”) [PMF 16-17], which the
10 JCC then approved (“Demotion”). [PMF 18]. The Demotion was accompanied by a more than $100,000
11 reduction (“Paycut”) in Plaintiff’s base compensation (“Base Pay”). [PMF 48]. Bryan’s written
12 recommendation to the JCC stated that Plaintiff should be demoted based on “Dr. Jadwin’s
13 unavailability for service because of extended medical leaves for non-work related ailments” and “solely
14 based on his continued non-availability.” (emphasis added). [PMF 17, 122]. Defendant County was
15 interfering with and retaliating against Plaintiff’s protected medical leave.
16 Moreover, Defendant Bryan and the County failed to give Plaintiff impartial adjudicators, notice
17 of the JCC vote, nor any opportunity to face his accusers or defend himself when depriving him of his
18 clearly-established contractual right to over $100,000 of Base Pay. [PMF 182-187]. Defendant Bryan
19 willfully and maliciously violated Plaintiff’s due process rights. [PMF 123, 162, 15-16].
20 D. ADMINISTRATIVE LEAVE
21 Prior to the Demotion in July 2006, Bryan had ordered Plaintiff onto 90-day personal necessity
22 leave. Defendants claim Bryan was simply “granting” Plaintiff’s request, but Plaintiff never made any
23 such request. [PMF 264, 265].
24 After that personal necessity leave ended, Defendant County permitted Plaintiff to return to work
25 in October 2006 as a demoted staff pathologist and placed him beneath a former subordinate whom
26 Plaintiff had hired and trained the year before and whom the County had elevated to Acting Chair of
27 Pathology. [PMF 21]. Plaintiff was subjected to further retaliation and harassment. [PMF 23, DMF 176-
28 190]. When Plaintiff complained in December 2006 about additional patient care issues and the
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 2
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 7 of 29

1 harassment he was being subjected to [PMF 22-23, DMF 190], Defendant Irwin Harris, then-Chief
2 Medical Officer of KMC (“Harris”) and the County placed Plaintiff on administrative leave (“Admin
3 Leave”) “pending resolution of a personnel matter”. [PMF 24, 58, 229]. In so doing, Defendants Harris
4 and County violated County policy by keeping Plaintiff on administrative leave for more than 5 days
5 without obtaining written authorization from the County Administrative Office. [PMF 258].2 During the
6 Admin Leave, Plaintiff was physically restricted to his home during work hours [PMF 28, 59, 81] and
7 given no explanation or indication as to whether or when the Admin Leave would end. [PMF 24, 26,
8 60]. Plaintiff remained on Admin Leave for almost a year until his contract ended on October 4, 2007.
9 [PMF 64]. Defendant Harris was acting willfully and maliciously.
10 The Admin Leave denied Plaintiff his clearly-established, contractually-provided for right to
11 earn professional fees (“Professional Fees”), which had historically amounted to over $100,000 per year.
12 [PMF 25]. Plaintiff was given no notice of the charges against him, nor any opportunity to defend
13 himself, nor any other due process. [PMF 193-197]. To date, Plaintiff has yet to personally receive an
14 explanation from Defendants why he was placed on Admin Leave despite his several requests to
15 Defendant County. [PMF 196, 204].
16 E. NONRENEWAL
17 Defendant County decided not to renew Plaintiff’s contract (“Nonrenewal”) [PMF 29, 68], which
18 expired on October 4, 2007 [PMF 29], in further retaliation for Plaintiff’s medical leaves and
19 prosecution of this lawsuit in defense of his legal rights under the Fair Employment & Housing Act
20 (“FEHA”) and FMLA. [PMF 68]. As Ray Watson, then-Chair of the Board of Supervisors for the
21 County of Kern, testified: “My understanding was that [Plaintiff] had – he had been on medical leave,
22 family leave, and had requested even more leave, and that for that reason and the fact that the was suing
23 us, that we decided not to renew his contract.” [PMF 68]. As a member of the JCC, Watson had voted to
24 demote Plaintiff [PMF 67] and also participated in the JCC’s decision not to renew Plaintiff’s contract.
25 [PMF 67, 68].
26
2
An employer’s’ failure to follow its own policies and procedures gives rise to an inference of unlawful
27
motive because it establishes that the ‘work rules apply to everyone but Plaintiff’. Deschene v. Pinole
28 Point Steel Co. (1999) 76 Cal.App.4th 33; EEOC v. Board of Governors (7th Cir. 1992) 957 F.2d 424.

USDC, ED Case No. 1:07-cv-00026 OWW TAG


Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 3
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 8 of 29

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


2 [PMF 69, 70, 200, 201]. Yet, when Defendant County decided to not to renew his contract, they gave
3 him no due process. They never put him on notice as to what the charges against him were nor gave him
4 any opportunity to defend himself. [PMF 202-204]. This is despite the fact that, in May 2007, Plaintiff
5 had written to Defendant County requesting an explanation for its decision not to renew his contract.
6 [PMF 204]. To date, Plaintiff has not received any response from Defendant County, let alone an
7 explanation or opportunity to respond. [PMF 204].
8 II. ARGUMENT
9 A. THRESHOLD ISSUES
10 1. Defendants’ Spoliation of Evidence Creates an Adverse Inference Avoiding
Summary Judgment
11
Spoliation of relevant evidence creates an inference adverse to the party responsible for the
12
spoliation. That inference, in combination with “some (not insubstantial) evidence for plaintiff’s cause
13
of action” may allow plaintiff to survive summary judgment. Byrnie v. Town of Cromwell, Board of Ed.
14
(2nd Cir. 2001) 243 F3d 93, 107 (parentheses in original); see, e.g., Morgan v. U.S. Xpress, Inc., 2006
15
U.S. Dist. LEXIS 36195 (M.D. Ga. June 2, 2006).
16
Once a party reasonably anticipates litigation, it must suspend its routine document
17
retention/destruction policy and put in place a “litigation hold” to ensure preservation of relevant
18
documents. Once the “litigation hold” is in place, a party and its counsel must communicate with key
19
employees to make certain all sources of potentially relevant information are identified and placed “on
20
hold,” and that all backup media are identified and stored in a safe place. See Zubulake v. UBS Warburg
21
LLC (SD NY 2004) 229 FRD 422, 432; see also Adv. Comm. Note to 2006 Amendment to FRCP
22
26(b)(2).
23
Plaintiff twice requested Defendant County to preserve evidence. On June 29, 2006, Plaintiff’s
24
counsel sent a letter to Kern County counsel Karen Barnes (“Barnes”) which was captioned “Re:
25
Preservation / no spoliation of evidence Jadwin v. County of Kern, Peter Bryan, et al.”. This letter pre-
26
dated the Demotion of July 10, 2006 by almost a month. [PMF 230]. It outlined in detail Plaintiff’s
27
pending claims for whistleblower and medical leave retaliation and disability discrimination and
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 4
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 9 of 29

1 formally demanded Defendant County take all appropriate affirmative steps to preserve evidence
2 relating to those claims, including “notes taken at meetings with or concerning Dr. Jadwin”. [PMF 231].
3 On March 29, 2007, Plaintiff’s counsel again sent a letter to Barnes stating, “I would like to remind you
4 that KMC is under a strict legal obligation to preserve and prevent spoliation . . . .”. [PMF 232].
5 Nevertheless, at Plaintiff’s 8/19/08 deposition of Barbara Patrick, former Chair of the Kern
6 County Board of Supervisors and member of the JCC who voted to demote Plaintiff (“Patrick”) [PMF
7 233], Patrick testified that: 1) she had taken notes at every JCC meeting [PMF 234], 2) she had shredded
8 all of her documents upon leaving office on January 8, 2007 [PMF 235], 3) she had thrown out
9 documents which included JCC meeting agendas on the margins of which she had taken notes [PMF
10 236], and 4) Kern County counsel had never contacted her regarding preservation of documents and
11 evidence in connection with Plaintiff’s lawsuit. [PMF 237]. It should be noted that Defendants failed to
12 produce a single JCC meeting agenda in response to Plaintiff’s numerous discovery demands. [PMF
13 238]. Moreover, in the absence of the spoliated agendas, Patrick was able to recall very little about the
14 JCC meeting at which the Demotion was approved. [PMF 239].
15 Patrick’s spoliated notes were material evidence relating to the circumstances surrounding the
16 Demotion and Paycut and therefore relevant to Plaintiff’s allegations that whistleblower retaliation,
17 medical leave interference/retaliation and disability discrimination were motivating factors in the
18 Demotion, that Defendant County acted willfully in engaging in FMLA interference with respect to the
19 Demotion, that Defendant Bryan acted with malice in causing violation of Plaintiff’s constitutional due
20 process rights with respect to the Demotion, and that Defendants’ alternative explanations therefor are
21 pretext, among other things.
22 Likewise, at Plaintiff’s 8/21/08 deposition of David Culberson, former CEO of KMC who
23 decided to place Plaintiff on Admin Leave (“Culberson”) [PMF 240], Culberson testified that: 1) he had
24 taken notes at each of up to 10 meetings of the KMC “leadership team” regarding Plaintiff and the
25 Pathology department [PMF 241], 2) Culberson destroyed those notes prior to January 2007, by
26 shredding them, ripping them up, crumpling them up and throwing them in the trash [PMF 242], and 3)
27 no one ever contacted him regarding preservation of documents and evidence in connection with
28 Plaintiff’s lawsuit. [PMF 243]. In the absence of those notes, Culberson was unable to recall important
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 5
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 10 of 29

1 details, such as the allegations against Plaintiff that led to the Demotion as related to him by Harris
2 [PMF 244], the HR director’s investigative findings as to disruption and chaos in the Pathology
3 department at the end of 2006 just prior to the Admin Leave [PMF 245], Dr. Dutt’s investigative
4 findings regarding Plaintiff’s alleged misconduct at the end of 2006 [PMF 246], etc.
5 Culberson’s spoliated notes were material evidence relating to the circumstances surrounding the
6 Demotion, Admin Leave and Nonrenewal and therefore relevant to Plaintiff’s allegations that
7 whistleblower retaliation, medical leave interference/retaliation and disability discrimination were
8 motivating factors in the Demotion, Admin Leave and Nonrenewal, that Defendant County acted
9 willfully in engaging in FMLA interference with respect to the Demotion, Admin Leave and
10 Nonrenewal, that Defendant Harris acted with malice in causing violation of Plaintiff’s constitutional
11 due process rights with respect to the Admin Leave, and that Defendants’ alternative explanations
12 therefor are pretext, among other things.
13 Finally, Scott Ragland, former President of the Medical Staff and member of the JCC
14 (“Ragland”) [PMF 247], testified at his 8/22/08 deposition that no one ever contacted him regarding
15 preservation of documents and evidence in connection with Plaintiff’s lawsuit. [PMF 248]. He also
16 testified that he deleted all of his emails, including emails relating to Plaintiff [PMF 249], and sneered at
17 Plaintiff’s consternation over the spoliation.
18 Q. Okay. Well, why don’t we take the second question. Do you have this E-mail where
Dr. Jadwin told you no one?
19 A. No.
Q. Is that because you deleted it as well?
20 A. Yes.
Q. Why did you delete these E-mails?
21 A. Because I delete my E-mails.
Q. You delete -- what was -- I’m sorry, Doctor. You just engaged in a facial expression.
22 What was the significance of that?
A. I think your question’s silly.
23 [PMF 250].
24 Despite the fact that Culberson recalled that Ragland had investigated Plaintiff just prior to the
25 Admin Leave [PMF 251], that Ragland was one of Plaintiff’s most vocal critics and that Ragland is cited
26 numerous times by Defendants in support of the many smears against Plaintiff contained in their motion,
27 Ragland testified that he produced only a single document in all of discovery in this action, and even
28 that was not in response to any discovery-related request from an attorney (as he never received one) but
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 6
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 11 of 29

1 on his own initiative. [PMF 252]. In the absence of the spoliated documents, Ragland was able to recall
2 little. [PMF 253].
3 The foregoing spoliation not only gives rise to an adverse inference defeating Defendants’
4 Motion for Summary Judgment, it demands sanction.
5 2. Defendants Failed to Plead Affirmative Defenses
6 Defendant County asserts a statutory affirmative defense to oppositional retaliation liability
7 under FEHA (but not FMLA): that it engaged in the Demotion, Admin Leave and Nonrenewal for a
8 legitimate business reason, excusing it from liability pursuant to 2 C.C.R. § 7287.8(b). (Doc. 262, 7:20-
9 8:25). Defendants also assert the affirmative defense that the amendment by which the Paycut was
10 instituted on July 10, 2006 (“Paycut Amendment”) represented a new employment contract which
11 completely supplanted, and extinguished all claims under, the old one. (Doc. 262, 30:17-31:5.5; 31:21-
12 22).
13 Defendants failed to assert either of these defenses in their pleadings; nor do they have any
14 excuse for this dilatory behavior. As recently as last month, Plaintiff had filed the Second Amended
15 Complaint (Doc. 241). After unsuccessfully opposing Plaintiff’s motion for leave to amend, Defendants
16 filed their Answer to the Amended Complaint (Doc. 246) on October 27, 2008 – a month ago. Plaintiff
17 has been prejudiced. These unpleaded defenses should be barred.
18 B. ADVERSE EMPLOYMENT ACTIONS COMMON TO COUNTS
19 Defendants’ argument that Plaintiff did not suffer “an adverse employment actions” is baseless.
20 (Doc. 262, 8:1-2). Without citing any specific facts to support this conclusory statement, Defendants are
21 making a bald assertion of an “ultimate fact” and that is insufficient. See Schneider v. TRW, Inc. (9th
22 Cir. 1991) 938 F2d 986, 990–991. For sake of economy, Plaintiff hereby incorporates Section II.C of his
23 Motion for Summary Judgment (Doc. 272, 4:24.5-8:14) in rebuttal of Defendants’ assertion.
24 Defendants elsewhere state that the Nonrenewal was not an adverse action because “Plaintiff had
25 no right to a renewed employment agreement” and Plaintiff testified at his deposition that he did not
26 want to have his contract renewed anyway. (Doc. 262, 6:5-9).
27 First, Defendants misstate the law. Board of Regents v. Roth stands for the opposite proposition.
28 There, the court looked for something “approaching a common law of re-employment” a la Perry v
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 7
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 12 of 29

1 Sindermann and failed to find it. 408 U.S. 564, 578 n.16 (1972)(citing to Perry v Sindermann 408 U.S.
2 593, 602 (1972)). Here, it is incontrovertible that Plaintiff had the equivalent of tenure. His position at
3 KMC was “core physician”, a permanent position [PMF 69-70]. In fact, since October 2000, the contract
4 of only one member of KMC’s sizable medical staff has not been renewed [PMF 71], and that was due
5 to a breakdown in negotiations over compensation. [PMF 254].
6 Second, Defendants misstate Plaintiff’s deposition testimony by suggesting he did not want
7 renewal of his contract anyway. [DMF 46]. Plaintiff testified he had expected his contract to be renewed
8 as of October 4, 2007, and that he would have accepted such renewal, albeit under protest over his
9 demoted status and reduced Base Pay. [PMF 254].
10 C. COUNTS 1 & 2: WHISTLEBLOWER RETALIATION
11 Defendant County contends that Plaintiff engaged in only one instance of whistleblowing – on
12 November 28, 2006, when Plaintiff submitted complaints (“Outside WB Reports”) to the California
13 Department of Health (“DHS”), the College of American Pathologists (“CAP”) and the Joint
14 Commission for the Accreditation of Hospital Organizations (“JCAHO”). (Doc. 262, 4:12-15). But
15 California Health & Safety Code § 1278.5 also prohibits retaliation against any employee of a health
16 facility who complains to his employer about unsafe patient care or conditions. H&S § 1278.5(b)(1)(A);
17 see also Mendiondo v. Centinela Hosp. Medical Center 521 F.3d 1097, 1105 (9th Cir. 2008). Likewise,
18 California Labor Code § 1102.5(e) expressly protects employees of a government agency who make a
19 report to their employer.
20 Plaintiff submitted several complaints to KMC leadership, all of them within 120 days prior to
21 adverse employment actions, giving rise to a rebuttable presumption of retaliation which shifts the
22 burden of production to Defendants under H&S 1278.5(d). Under California Labor Code § 1102.6, the
23 proximity in time also shifts the burden of proof at trial to Defendants to demonstrate by clear and
24 convincing evidence that such adverse actions would have occurred for legitimate, independent reasons.
25 1. October Conference
26 At a monthly KMC oncology conference held on October 12, 2005 (“October Conference”),
27 Plaintiff made a protected report to medical staff leadership on the medical appropriateness of a radical
28 hysterectomy for a KMC patient that had relied on inaccurate outside pathology reports, as well as
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 8
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 13 of 29

1 unsafe conditions created for other patients by the lack of a KMC policy requiring internal confirmatory
2 review of all outside pathology reports prior to treatment (“IPR”) [PMF 89]. Defendants Harris and the
3 County made the Credential Threat just days later, on October 17, 2005, retaliating specifically against
4 his October Conference presentation. [DMF 106-116].
5 2. PCCs
6 Starting January 9, 2006, Plaintiff made protected reports to Bryan regarding noncompliance
7 with H&S § 1602.5, specifically failure to maintain accurate and complete records of patient blood
8 transfusions (so-called product chart copies or “PCCs”) in accordance with accreditation standards.
9 These reports culminated in Plaintiff’s demand to Bryan on April 17, 2006, to set up a meeting with
10 County Counsel to resolve the PCC issue. [PMF 96, 97]. That same day, Bryan sent a memo to Plaintiff
11 threatening to demote him. [PMF 99]. Then, on April 28, 2006, Bryan forced Plaintiff onto Forced FT
12 Leave [PMF 123] and on July 10, 2006, the County demoted him. The California Department of Health
13 Services later determined during the course of an inspection that KMC was failing to comply with PCC-
14 related regulations [PMF 98].
15 3. Radical Prostatectomy
16 On December 6, 2006, Plaintiff made a protected report to Culberson regarding a KMC patient
17 who was scheduled for imminent radical prostatectomy despite pathologic findings of cancer which
18 were inconclusive. [PMF 114]. The next day, Plaintiff was placed on Admin Leave. Subsequent biopsies
19 which were conducted ultimately came back negative for cancer, leading to conflicting diagnoses by
20 outside experts. [PMF 114]. The patient ultimately elected not to proceed with the prostatectomy. [PMF
21 266].
22 4. Martinez Tipoff
23 Defendants contend that Plaintiff’s tipoff of coming outside inspections to Gilbert Martinez
24 (“Martinez”), then-Manager of Laboratory Services, prior to Thanksgiving 2006 did not constitute
25 whistleblowing. But adverse actions against employees whom employers suspect or believe intend to
26 file workplace safety complaints constitutes whistleblower retaliation. Lujan v. Minagar 124
27 Cal.App.4th 1040, 1045-46 (2005). Martinez testified that Plaintiff warned him of coming outside
28 inspections around Thanksgiving and that he informed his supervisor, David Hill, Director of
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 9
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 14 of 29

1 Ambulatory Services (“Hill”), a few days later. [PMF 55]. Dr. Philip Dutt, Acting Chair of Pathology,
2 testified as PMK for the County that by the Monday following Thanksgiving 2006, he had had a
3 conversation with Harris regarding Plaintiff’s statement to Martinez that “he was going to report the
4 hospital to JCAHO, CNPS [sic] . . . either the Friday before Thanksgiving that year or the Monday after
5 that weekend.” [PMF 255]. Dutt then suggested to Harris that KMC retain someone who had experience
6 with CAP inspections to conduct a mock unannounced inspection. Harris quickly approved Dutt’s
7 proposal on either the Friday or the Monday before Thanksgiving. [PMF 256]. Two weeks later, on
8 December 7, 2006, Defendants Harris and the County placed Plaintiff on Admin Leave. [PMF 58, 229].
9 5. Skull Flaps
10 Included in the Outside WB Reports was Plaintiff’s protected report that patient skull flaps
11 (“Skull Flaps”) were being stored in an unlicensed KMC freezer in violation of H&S § 1635.1. [PMF
12 102, 110]. On January 4, 2007, Dutt received confirmation that Plaintiff had complained to CAP about
13 unlicensed tissue storage and informed Culberson. [PMF 111].
14 On May 1, 2007, 6 months after Defendants learned of Plaintiff’s tipoff to Martinez and 4
15 months after they learned of Plaintiff’s report to CAP about Skull Flaps, Defendant County informed
16 Plaintiff that it would not be renewing Plaintiff’s contract. [PMF 63]. During that time, Plaintiff was
17 continuously on Admin Leave, was restricted to his home during work hours, and was given no notice of
18 the charges against him, whether he would be permitted to respond or return to work, or even when the
19 leave would end. [PMF 59, 62].
20 6. Smear Campaign
21 In response to his whistleblowing, Defendants targeted Plaintiff with a smear campaign of
22 disparate treatment, heightened scrutiny, retaliatory peer review and baseless accusations to label him
23 “arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous, unfriendly, non-
24 collaborative, and uncooperative”. [Answer (Doc. 246), 12:14-22; Colarossi v. Coty USA, Inc. 97 Cal.
25 App. 4th 1142 (heightened scrutiny was retaliatory); Richards v. CH2M Hill, Inc. 26 Cal. 4th 798, 803
26 (baseless accusations that Plaintiff not disabled and “milking the system” were harassing.)] [DMF 69-
27 190].
28 D. COUNTS 3 & 4: MEDICAL LEAVE RETALIATION
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 10
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 15 of 29

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


2 First, Defendants suggest that the affirmative defense set forth in 2 C.C.R. § 7287.8(b) applies to
3 medical leave retaliation and then proceeds to launch into a discussion of Defendants’ allegedly
4 legitimate business reasons for their actions independent of medical leave retaliation. However, Section
5 7287.8(a) makes it clear that that regulation is related only to oppositional/participatory retaliation under
6 CFRA. The discussion in Defendants’ motion regarding Count 3 is irrelevant and insufficient.3 (Doc.
7 262, 7:7-9:7).
8 Second, Defendants’ motion suggests that FMLA interference analysis devolves to an analysis of
9 whether Plaintiff’s medical leave rights were “chilled”, which in Defendants’ view is satisfied by
10 exhaustively cataloging all of the many ways Defendant County allegedly complied – and Plaintiff
11 allegedly didn’t comply – with CFRA and FMLA. (Doc. 262, 10:8-12:13). This entire analysis has no
12 support in caselaw and is irrelevant to a leave retaliation analysis.
13 To establish medical leave retaliation, a plaintiff need only show: (1) his employer was covered
14 by CFRA/FMLA; (2) he was an employee eligible to take medical leave; (3) he exercised his right to
15 medical leave; and (4) thereafter, his employer subjected him to an adverse employment action because
16 of his exercise of his right to medical leave. See 2.C.C.R. § 7297.7; see also Bachelder v. America West
17 Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001).
18 Elements 1-3 are undisputed that [PMF 4, 36, 120, 121]. As for element 4, the 9th Circuit in
19 Bachelder v. Am. W. Airlines, Inc. established that Plaintiff need only prove by a preponderance of the
20 evidence that her taking of FMLA-protected leave constituted a “negative factor” in the decision to
21 terminate her. 259 F.3d 1112, 1124 (9th Cir. Ariz. 2001). Under this analysis, the McDonnell Douglas
22 burden shifting framework does not apply. Id. at 1131. While Defendants’ brief did not contend that
23 Defendant County would have taken the actions it did anyway for legitimate, independent reasons,
24 consideration of Plaintiff’s medical leaves notwithstanding, such argument would have been to no avail
25
26 3
Section 7287.8(a) states: “It is unlawful for an employer or other covered entity to demote [. . .] or
otherwise deny any employment benefit to an individual because that individual has opposed practices
27
prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an
28 investigation, proceeding, or hearing conducted by the Commission or Department or their staffs.”

USDC, ED Case No. 1:07-cv-00026 OWW TAG


Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 11
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 16 of 29

1 anyway. Id. at 1131 (9th Cir. Ariz. 2001). In short, once Plaintiff establishes that his medical leaves
2 were a negative factor in the Demotion and the Nonrenewal, the analysis ends there. Liability is
3 established.
4 The 9th Circuit further stated in a footnote that the defendant’s consideration of the plaintiff’s
5 “continued unavailability” further established that the plaintiff’s medical leave had been a negative
6 factor in her termination:
7 We note that it appears fairly clear in any event that Bachelder would not have been
fired had she not taken the protected leave. The supervisor who recommended that
8 Bachelder be fired admitted in his deposition that “the basis for her termination, for the
most part, was availability,” and characterized her on-time performance and Employee
9 of the Month deficiencies as “minor performance issues.” Moreover, America West’s
witnesses testified at the trial that Bachelder’s attendance was the primary reason for
10 firing her, and the district court ultimately found that Bachelder failed to contradict their
testimony that “the likely reason for her termination …was because of her continued
11 unavailability in 1996.”
Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1131 (9th Cir. Ariz. 2001) n22
12 (emphasis added).
13 Here, it is incontrovertible that Defendant County considered Plaintiff’s medical leave as a
14 negative factor in the Demotion and Nonrenewal. In the case of the Demotion, Plaintiff’s “continued
15 unavailability” due to medical leave wasn’t just a negative factor, it was the only factor. Defendants’
16 own motion asserts: “The evidence is undisputed that Defendants removed Plaintiff from the
17 chairmanship only because of his physical absence from the hospital.” (Doc. 262, 31:9-10) (emphasis
18 added). When Bryan initiated the KMC procedure to demote Plaintiff, his memo to the JCC stated that
19 his recommendation was based on Plaintiff’s “unavailability for service because of extended medical
20 leaves” and “solely based on his continued non-availability”. [PMF 17] (emphasis added). The JCC
21 then “took Bryan’s advice and they did it for the reason that he gave in his memorandum”. [DMF 33].
22 As in the case of Bachelder, it is incontrovertible that Plaintiff was demoted for “continued non-
23 availability” due to protected leave.
24 Regarding the Nonrenewal, Watson testified: “My understanding was that [Plaintiff] had -- he
25 had been on medical leave, family leave, and had requested even more leave, and that for that reason
26 and the fact that he was suing us, that we decided not to renew his contract.” [PMF 68]. It is
27 incontrovertible that Plaintiff’s medical leave was also a negative factor in the Nonrenewal.
28 In fact, Defendant County, through its PMK, testified that punishing employees for taking
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 12
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 17 of 29

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


2 E. COUNTS 4 & 5: MEDICAL LEAVE DENIAL/INTERFERENCE
3 Defendants contend that “Every request for leave that Plaintiff made was granted.” (Doc.
4 262:10:10) and exhaustively catalog all of the many ways Defendants allegedly complied with medical
5 leave laws (Doc. 262, 11:7-12:13). However, even if true, 99 instances of compliance won’t blot out 1
6 instance of egregious non-compliance. And the evidence establishes that such egregious non-compliance
7 did occur. Defendants’ discussion is therefore insufficient.
8 An employer’s suggestion that an employee take different dates of leave in order to
9 accommodate the employer can constitute impermissible FMLA interference. See Williams v. Shenango,
10 Inc. 986 F. Supp. 309, 320-21 (W.D. Pa. 1997) (employer’s motion for summary judgment denied where
11 suggestion of rescheduling leave may constitute interference with FMLA rights). The evidence
12 establishes that, after Plaintiff requested an extension of his medically-required part-time medical leave
13 on April 26, 2006 [PMF 13, 14], Defendant Bryan refused and forced him onto full-time medical leave
14 on April 28, 2006, so as to exhaust his medical leave as soon as possible. [PMF 228].
15 Defendants take special pains in their brief to smear Plaintiff with many alleged violations of
16 Defendant County’s internal procedures. (Doc. 262, 10:11-13; 11:2-112). Plaintiffs disputes them [DMF
17 11-22]; moreover, they have no relevance to Counts 4 and 5 and are insufficient. Plaintiff was required
18 only to provide reasonable notice to Defendant County of his need for medical leave, including its
19 expected timing and length, and that was all he was legally required to do. Gov’t C. § 12945.2; CACI
20 No. 2600; Mora v. Chem-Tronics Inc., 16 F.Supp. 2d 1192, 1202, 1217 (S.D. Cal. 1998); see also 2
21 C.C.R. § 7297.1(2). Sandra Chester, Defendant County’s then-HR Director, testified in deposition that
22 Plaintiff’s email request to Bryan for extension of part-time medical leave on March 16, 2006, the day
23 after his initial medical leave expired, was timely:
24 Q: You know, so this e-mail, under your normal program in your tenure at KMC, would
constitute reasonable notice of the need for an extension of his medical leave that should
25 have generated an employee information packet being sent to him at that time. Is that
correct?
26 A. Absolutely.
[PMF 128].
27
It is incontrovertible that Plaintiff gave reasonable notice of his need for an extension of medical
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 13
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 18 of 29

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


2 F. COUNT 9: DEPRIVATION WITHOUT DUE PROCESS
3 Defendants allege Plaintiff cannot show he had a constitutional property right to chairmanship
4 and Base Pay, Professional Fees, or continued employment. Plaintiff can show by incontrovertible
5 evidence that he did.
6 1. Demotion
7 Plaintiff had a constitutional property right to his Base Pay. The Demotion and Paycut resulted in
8 a reduction and deprivation of over $100,000 of his Base Pay.
9 Under California law, a contract-based entitlement constitutes a constitutionally protectable
10 interest. Roberts v. College of Desert 870 F.2d 1411, 1416 (9th Cir. 1988). Plaintiff’s employment
11 contract expressly set forth a mutually explicit understanding with Defendant County that Plaintiff
12 would receive Base Pay of $287,529, and that Plaintiff would be chair of KMC’s pathology department
13 [PMF 176]. Moreover, the employment contract barred Defendant County from reducing Plaintiff’s
14 Base Pay, removing Plaintiff from chair or terminating or otherwise modifying the Contract at will,
15 without cause, or without Plaintiff’s consent [PMF 177].
16 To date, Defendant County has not removed a department chair without cause. [PMF 178]. In
17 fact, Defendant County has expressly recognized the constitutional right of chairs not to be demoted
18 without due process. JCC minutes regarding the contemplated demotion of the chair of the OB-GYN
19 department stated: “The problem is we have tied a portion of the chair’s compensation to that position,
20 that is a property right. Dr. Perez is entitled to due process hearing for this reason.” [PMF 257]. It is
21 undisputed that a portion of Plaintiff’s chair compensation was likewise tied to his chair position. [PMF
22 47]. Plaintiff was likewise entitled to due process.
23 Moreover, Defendants’ contention that a Base Pay reduction without cause was already
24 encompassed and provided for in Plaintiff’s contract is contradicted by Defendants’ own repeated
25 insistence that the Paycut Amendment was in fact necessary after the Demotion. [PMF 47, 48]. If
26 Defendants’ contention were correct, no contract modification should have been necessary. However,
27 Defendants were acutely aware that the opposite was true, that the Demotion and Paycut in fact
28 necessitated an amendment. Defendants therefore preconditioned Plaintiff’s continued employment on
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 14
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 19 of 29

1 his execution of just such an amendment. [PMF 47, 48, 179]. In short, it is incontrovertible that Plaintiff
2 had a constitutional property right to the over $100,000 reduction in his Base Pay.
3 Defendants state an affirmative defense that the Paycut Amendment was a new contract that
4 completely supplanted and extinguished all rights under the old one. However, an amendment of a
5 contract cannot be presumed to be a novation; that requires evidence that the parties intended the rights
6 and obligations of a new contract be substituted for those of the old one. Ayoob v. Ayoob (1946) 74
7 Cal.App.2d 236, 250-251; Blumer v. Madden (1932) 128 Cal.App. 22, 24. Defendants present no such
8 evidence. In fact, Plaintiff placed Defendants on notice by letter dated June 29, 2006, that he intended to
9 file suit challenging the Demotion. [PMF 184].
10 Defendants further argue frivolously that Defendant Bryan had no part in the Demotion and is
11 therefore relieved of liability. However, it is undisputed that Bryan initiated the demotion process in the
12 first place by submitting a recommendation to the JCC that Plaintiff be removed from chairmanship, and
13 that the JCC “took Bryan’s advice and they did it for the reason that he gave in his memorandum”.
14 [DMF 33].
15 2. Admin Leave
16 Plaintiff had a constitutional property right to Professional Fees. His employment contract
17 expressly set forth a mutually explicit understanding with Defendant County that Plaintiff would be paid
18 Professional Fees [PMF 190]. Plaintiff’s Professional Fees historically amounted to over $100,000 per
19 year. [PMF 25]. When Defendants County and Harris decided to place Plaintiff on Admin Leave [PMF
20 229], they barred him from earning Professional Fees, depriving him of his constitutional property right
21 to them. [PMF 25, 56].
22 In fact, Defendant County was acutely aware of Plaintiff’s contractual interest in Professional
23 Fees. In his letter to Plaintiff regarding the Paycut, Culberson explained that, as a demoted staff
24 pathologist with a drastically reduced base salary, Plaintiff would nevertheless be able to take advantage
25 of his reduced administrative duties in order to increase his Professional Fees-based income [PMF 191].
26 Ironically, it was Culberson who then denied Plaintiff the opportunity to earn those same Professional
27 Fees when he decided to place Plaintiff on Admin Leave [PMF 192].
28 More importantly, Defendant County’s own policy explicitly states that Defendants were not
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 15
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 20 of 29

1 permitted to place Plaintiff on Admin Leave, and thereby deprive Plaintiff of Professional Fees, in the
2 absence of “good cause”. “The hallmark of property ... is an individual entitlement grounded in state
3 law, which cannot be removed except ‘for cause.’” Shoemaker v County of Los Angeles (1995 2d. Dist.)
4 37 Cal.App.4th 618, 630 (citing Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 430).
5 Defendants’ motion admits: “Plaintiff was placed on paid administrative leave on December 7, 2006
6 pursuant to the Kern County Policy and Procedures Manual” (“Manual”). (Doc. 262, 33:11-12).
7 Paragraph 139 (“Disciplinary Actions”) of the Manual states in relevant part:
8 Any employee may be dismissed, suspended, reduced in rank and/or compensation,
reprimanded or otherwise disciplined for any action or conduct which in the judgment of
9 the appointing authority provides good cause for discipline under the Civil Service
Rules or other laws, regulations, or policies [. . . .] .6 Administrative Leave with Pay. A
10 department head may place an employee on administrative leave with pay if the
department head determines that the employee is engaged in conduct posing a danger to
11 County property, the public or other employees, or the continued presence of the
employee at the work site will hinder an investigation of the employee’s alleged
12 misconduct or will severely disrupt the business of the department [. . . .]
[PMF 258] (emphasis added).
13
It is incontrovertible that Plaintiff had a contractual right to earn Professional Fees and that
14
Defendants Harris and County were not permitted to place Plaintiff on Admin Leave, and deprive
15
Plaintiff of Professional Fees, without cause. Plaintiff thus had a constitutional property right to those
16
Professional Fees and was entitled to due process relating to their deprivation.
17
Defendants make a frivolous argument that Defendant Harris had no part in placing Plaintiff on
18
Admin Leave and is therefore relieved of liability. (Doc. 262, 32:19-21). However, in its verified
19
response to Plaintiff’s Interrogatory No. 42, Defendant County identified Harris as one of 4 participants
20
in the decision to place Plaintiff on administrative leave [PMF 229], depriving him of Professional Fees
21
without any due process whatsoever. [PMF 24, 26, 60].
22
3. Nonrenewal
23
A party’s expectation of continued employment may be based on rules or understandings,
24
entitling him to constitutional due process. Roth v. Veteran’s Admin. of United States 856 F.2d 1401,
25
1409 (“If Roth was a permanent, non-probationary VA employee, he was clearly entitled to procedural
26
protections before being deprived of his job”.) (emphasis added). In Board of Regents v. Roth, a case
27
which Defendants incorrectly cite in support of their motion, the court considered the question of
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 16
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 21 of 29

1 whether a plaintiff had a constitutional right to due process with respect to continued employment by
2 looking for something “approaching a common law of re-employment” a la Perry v Sindermann. 408
3 U.S. 564, 578 n.16 (1972). Perry v Sindermann established:
4 A teacher, like the respondent, who has held his position for a number of years, might be
able to show from the circumstances of this service -- and from other relevant facts --
5 that he has a legitimate claim of entitlement to job tenure. Just as this Court has found
there to be a “common law of a particular industry or of a particular plant” that may
6 supplement a collective-bargaining agreement, Steelworkers v. Warrior & Gulf Co., 363
U.S. 574, 579, so there may be an unwritten “common law” in a particular university
7 that certain employees shall have the equivalent of tenure.
408 U.S. 593, 602 (1972).
8
Here, it is incontrovertible that Plaintiff had the equivalent of “tenure” and was a “permanent”,
9
non-probationary employee of Defendant County. His position at KMC was “core physician”, a
10
permanent position as acknowledged by Bryan in deposition testimony. [PMF 69]. There was a mutually
11
explicit understanding that his contract would be continuously renewed [PMF 70]. Defendant County
12
had a policy of renewing the contracts of all of its non-probationary physicians [PMF 70] – since
13
October 2000, the contract of only one member of KMC’s sizable medical staff has not been renewed
14
[PMF 71] , and that was due to a breakdown in negotiations over compensation. [PMF 254].
15
It is incontrovertible that there was a “common law of re-employment” at KMC, that Plaintiff
16
was a “permanent”, non-probationary employee, and that Plaintiff therefore had a constitutional property
17
right to continued employment by Defendant County.
18
4. Qualified Immunity
19
Defendants argue Bryan and Harris enjoy qualified immunity because they did not violate a
20
clearly established right. (Doc. 262, 32:1-23). However, the 9th Circuit has established that when a
21
property interest is determined to be constitutionally protected under the Perry v Sindermann “mutually
22
explicit understandings” standard, it is clearly established and the defendant is not entitled to qualified
23
immunity. Roberts v. College of Desert 870 F.2d 1411, 1416-17 (9th Cir. 1988) (“Because we have
24
found that the understanding between Roberts and Dr. Stout satisfies the Perry standard, the defendants
25
are not entitled to immunity from liability for the College’s failure to provide Roberts the rudiments of
26
due process.”). Moreover, where pre- and post-deprivation procedures are absent, the offending officials
27
are not entitled to qualified immunity. Brewster v. Bd. of Educ. 149 F.3d 971, 987, fn.9. (9th Cir. 1998)
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 17
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 22 of 29

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


2 hearing at which to contest the taking of his property, his clearly established due process rights have
3 been violated, because under no reading of Mathews could such a taking be constitutional. In that case,
4 the offending officials would not be entitled to qualified immunity.”).
5 Plaintiff has already established supra that Plaintiff and Defendants had a mutually explicit
6 understanding that (i) Plaintiff would not be subjected to demotion and Base Pay reduction absent cause,
7 and (ii) Plaintiff would not be placed on administrative leave and deprived of his contractual right to
8 Professional Fees absent cause. It is also undisputed that Defendants gave Plaintiff neither a
9 predeprivation nor a postdeprivation hearing in the case of either the Demotion or the Admin Leave (In
10 the interests of economy, Plaintiff hereby incorporates the discussions contained in Sections II.L.4 and 5
11 of his motion for summary judgment (Doc. 272, 28:2-29:3; 29:20-27)). Hence, Plaintiff has
12 incontrovertibly established that neither Bryan nor Harris is entitled to qualified immunity with respect
13 to the Demotion and Admin Leave, respectively.
14 5. Stigma
15 Defendants’ discussion regarding stigma is inapposite. Stigma is relevant to establishing a
16 deprivation of liberty, not property. Smith v Siegelman (2003, 11th Cir. Ala) 322 F.3d 1290, 1296.
17 Plaintiff does not allege deprivation of liberty.
18 G. COUNTS 3, 10 AND 11: OPPOSITIONAL/PARTICIPATORY RETALIATION
19 Both FEHA and FMLA provide protection for an employee who opposes any discriminatory
20 practices or participates in any proceeding under Gov’t C. §§ 12900 to 12996. [Gov’t. C. § 12940(h); 29
21 U.S.C. § 2615(b)]. The protected activity of “participation” is expressly defined within the code as “filed
22 a complaint, testified, or assisted in any proceeding under [Gov’t C. §§ 12900 through 12996].” Id.;
23 U.S.C. § 2615(b)(1).
24 Defendant County asserts a statutory affirmative defense to oppositional retaliation liability
25 under FEHA (but not FMLA) pursuant to 2 C.C.R. § 7287.8(b). As for Defendants’ allegedly
26 “legitimate business reasons” for the Demotion and the Admin Leave, Defendants cannot satisfy their
27 burden of proof with incontrovertible evidence. Regarding the Demotion, it is undisputed that
28 Defendants demoted Plaintiff solely due to unavailability for medical leave. [DMF 33, PMF 17].
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 18
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 23 of 29

1 Plaintiff’s unavailability due to medical leave cannot be a legitimate business reason for employment
2 action, as established in Section II.D supra and by Bachelder v. America West Airlines, Inc., 259 F.3d
3 1112 (9th Cir. 2001).
4 Regarding the Admin Leave, Plaintiff disproves Defendants’ alleged reasons as non-credible
5 pretext supra at •.
6 Regarding the Nonrenewal, Defendants’ brief does not even bother to allege a “legitimate
7 business reason” (Doc. 262, at 8:24-9:7). Instead, Defendants focus their efforts on contradicting the
8 sworn deposition testimony of Ray Watson, former Chair of the Board of Supervisors (“Watson”),
9 through use of “sham” declarations. However, a party cannot create an issue of fact by a declaration
10 contradicting his or her own deposition or other sworn testimony. See Block v. City of Los Angeles (9th
11 Cir. 2001) 253 F3d 410, 419, fn. 2. The same rule applies to postdeposition affidavits that contradict the
12 affiant’s deposition testimony. Aerel, S.R.L. v. PCC Airfoils, LLC (6th Cir. 2006) 448 F3d 899, 907–908;
13 Bank of Ill. v. Allied Signal Safety Restraint Systems (7th Cir. 1996) 75 F3d 1162, 1169.
14 Here, Watson testified at his deposition that Defendant County decided not to renew Plaintiff’s
15 contract in retaliation for his filing the instant lawsuit. Watson was asked twice if he recalled clearly that
16 this was the case and each time he answered yes:
17 Q. Okay. What about the nonrenewal? I mean, do you recall Dr. Jadwin’s physical
absence being a reason for his nonrenewal of his contract?
18 A. Well, it could be that. It could be the fact that I think by then he was -- probably was
suing us. So why would you want to establish a contractual relationship with somebody
19 who’s suing you.
Q. Okay. Well, he was also suing you at the time of his removal or actually at the time
20 of his --no, he wasn’t. He wasn’t. Okay. But I mean, you say why would you establish a
contractual relationship with someone who’s suing you, right?
21 A. Right.
Q. Was that -- does that mean -- are you just speculating now, just guessing, or was that
22 a consideration for his nonrenewal?
A. Well, I remember it being discussed.
23
[…]
24
Q. Okay. But you recall it being discussed at the JCC meetings?
25 A. Yes.
[PMF 259].
26
Watson then re-affirmed a third time – volunteering it on his own initiative – that oppositional
27
retaliation was an additional motivating factor for the Nonrenewal:
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 19
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 24 of 29

Q. So the question is: You’ve mentioned that for the nonrenewal one of the reasons was
1 that Dr. Jadwin wasn’t available for work; is that correct or --
A. My understanding was that he had -- he had been on medical leave, family leave, and
2 had requested even more leave, and that for that reason and the fact that he was suing us,
that we decided not to renew his contract.
3 [PMF 260].
4 Defendants resort to frivolous arguments in their bid to contradict Watson’s testimony, setting up
5 fallacious strawman arguments and knocking them down one-by-one.
6 • Defendants point out Watson testified that he didn’t recall discussion of Plaintiff’s termination or
7 denial of his medical privileges. This proves nothing about the Nonrenewal and whether a
8 discussion about it occurred. Defendant County could have contemplated nonrenewal without
9 considering immediate termination or medical privileges denial. A discussion of one doesn’t
10 necessitate or preclude a discussion of the others. Moreover, the testimony Defendants cite to
11 appeared over 100 pages and 2 hours earlier in the deposition transcript than the Nonrenewal
12 discussion and arose in response to a completely unrelated line of questioning. [PMF 261].
13 • Defendants then point out Watson couldn’t recall a formal JCC vote to not renew Plaintiff’s
14 contract. This proves nothing about whether or not the JCC decided to not renew Plaintiff’s
15 contract A JCC decision is not preconditioned on a JCC vote occurring. In any event, Watson
16 confirmed several times that he clearly recalled the JCC deciding on the Nonrenewal.
17 • Defendants then reference declarations submitted by members of the Kern County Board of
18 Supervisors asserting that the Board never discussed or made any decision regarding nonrenewal
19 or expiration of Plaintiff’s contract. This proves nothing about whether such a decision or
20 discussion occurred at the JCC level. The absence of a decision by the Board of Supervisors in
21 no way precludes a decision being made by the JCC. Again, Watson confirmed several times that
22 he clearly recalled the JCC deciding on the Nonrenewal.
23 Watson’s testimony is more than clear. Defendants’ sham declarations should be disregarded.
24 There is no question that Defendant County engaged in oppositional/participatory retaliation against
25 Plaintiff when it decided not to renew his contract. Defendants’ motion should be denied.
26 H. COUNT 6: DISABILITY DISCRIMINATION
27 Plaintiff incorporates by reference the points and authorities set forth in Sections II (I) & III (I)
28 of Plaintiff’s Corrected Motion for Full or Partial Summary Judgment regarding his Sixth Claim for
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 20
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 25 of 29

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


2 Preemption.
3 Contrary to Defendant’s assertion, Plaintiff has expressly stated that his Sixth Claim for
4 Disability Discrimination if brought against Defendant County. [Defendants’ Motion (Doc. 262) at
5 22:14-23; SAC (Doc. 241) at ¶188, 35:16-18].
6 Also contrary to Defendants’ assertion, the FEHA covers both industrial and non-industrial
7 injuries. [Defendants’ Motion (Doc. 262) at 13:7-9; City of Moorpark v. Superior Court, 18 Cal. 4th
8 1143 (1998). Further, Defendants’analysis of Plaintiff’s disability claim under the ADA is inapposite
9 because Plaintiff is bringing his claim under the FEHA. [SAC (Doc. 241) at ¶ 188, 35:16-18]. The
10 California Legislature has rejected both the ADA “substantially limits” test and the work limitation test
11 relied on by Defendants. [Gov’t C. §§ 12926.1(c), 12926(i)(1)(B); Defendants’ Motion (Doc. 262) at
12 14:10-13].
13 It is undisputed that Plaintiff suffered from known chronic depression that limited his ability to
14 work full-time as Chair of Pathology at KMC from December 16, 2005 to September 6, 2006, requiring
15 accommodation in the form of reduced work schedule medical/recuperative leave. [DMF 10, 14, 65 &
16 67; PMF (1/9/06 memo) 144-148 & 154]. It is undisputed that Defendant County accommodated
17 Plaintiff’s chronic depression from December 16, 2005 to April 28, 2006, when Defendant Bryan forced
18 Plaintiff to take full-time leave until October 4, 2006. [DMF 20-21; PMF 155, 159]. The evidence shows
19 that Plaintiff was “otherwise qualified” because Defendant Bryan admitted that Plaintiff was
20 successfully performing his duties as Chair of Pathology with accommodation just prior to revoking
21 Plaintiff’s accommodation. [PMF 141, 227 ].
22 Defendants’ own admissions establish that Defendant Bryan’s revoking of Jadwin’s
23 accommodation was the sole reason for the Demotion and Paycut, and a motivating reason for the
24 Nonrenewal, and are direct evidence of disability discrimination. [Humphrey v. Memorial Hosps. Assn.
25 (9 Cir. 2001) 239 F. 3d 1128, 1139-1140 (“…the conduct resulting from a disability is considered part of
26 the disability, rather than a separate basis for termination. The link between the disability and the
27 termination is particularly strong where it is the employer’s failure to reasonably accommodate a known
28 disability that leads to discharge for performance inadequacies resulting from that disability”); PMF
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 21
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 26 of 29

1 150].
2 A prima facie case of age discrimination may be established by either (a) direct evidence of
3 discriminatory intent, Transworld Airlines v. Thurston, 469 U.S. 111, 105 (1985), or (b) by proof of
4 disparate treatment based upon circumstantial evidence using the standards set forth in McDonnell
5 Douglas v. Green, 411 U.S. 792 (1973). Direct evidence of discriminatory intent cannot be rebutted by
6 articulating or producing evidence of legitimate, non-discriminatory reasons. [Brown v. Sierra Nevada
7 Memorial Hospital, 849 F.2d 1186 (9th Cir. 1988)]. Because Plaintiff relies on direct evidence to
8 establish Defendant County’s discriminatory motive, the McDonnell-Douglas burden-shifting
9 framework does not apply, and Defendant County is precluded from arguing that it had a “legitimate”
10 reason for the Demotion, Paycut, and Nonrenewal.
11 If the court does not strike Defendants’ improper Section E, then it must consider Defendants’
12 post-hoc attempt to attribute the Demotion, Paycut, and Non-renewal to any reasons than those already
13 admitted as evidence of pretext. [EEOC v. Sears Roebuck Co. (4th Cir. 2001) 243 F.3d 846, 853 ("[A]
14 factfinder could infer from the late appearance of [the employer's] current justification that it is a post-
15 hoc rationale, not a legitimate explanation for [its] decision not to hire [the employee]."); Payne v.
16 Norwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080 ("A rational trier of fact could find that [the
17 employer's] varying reasons shows that the stated reason was pretextual, for one who tells the truth need
18 not recite different versions of the supposedly same event.").
19 To the extent that Defendants offer evidence of Plaintiff’s conduct to justify his placement on the
20 Admin Leave [DMF 69-190, PMF 150, 267], the Court view the totality of the circumstances in the light
21 of the fact that both Defendant County and Dr. Dutt have admitted harboring unlawful animus towards
22 individuals with disabilities who may need to take medical/recuperative leave. [O’Mary v. Mitsubishi
23 Electronics of America, Inc., 59 Cal. App. 4th 563, 574-75 (1997) (“On occasions where there is
24 evidence of clear discriminatory intent, it is like a gold nugget which happens to be lying on the ground.
25 You do not throw it away as if it were so much dross. To put the idea in typical evidentiary terms,
26 evidence of clear discriminatory intent is overwhelmingly probative in a discrimination case because it
27 shines the spotlight on the very thing which is the focus of the litigation.”); [DMF 69-190, PMF 150]
28 Defendant County and Dr. Dutt acted on this unlawful animus as soon as Plaintiff indicated his intent to
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 22
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 27 of 29

1 return to work from medical/recuperative leave. Dr. Dutt asked County Counsel if he could prevent Dr.
2 Jadwin from taking any further leave as a condition of his return to work. [PMF 267]. The disparate
3 terms and conditions regarding Plaintiff's hours of work and productivity contained in Amendment 1 to
4 Dr. Jadwin’s employment contract of 11/12/02 achieve this goal. [PMF 267].
5 Defendant County's and Dr. Dutt's admitted unlawful animus also taints all of their dealings with
6 Plaintiff subsequent to his taking medical/recuperative leave. [Dee v. Vintage Petroleum, Inc. (2003)
7 106 Cal.App.4th 30 (supervisor's pattern of mistreatment is illuminated by a single racial remark);
8 Bowen v. Missouri Department of Social Services, 311 F.3d 878, 884 (2002) (Where supervisors and
9 other harassers used epithets with clear racial content, it can be inferred “that racial animus motivated
10 not only [their] overtly discriminatory conduct but all of [their] offensive behavior toward [plaintiffs]".
11 Dr. Dutt participated in the smear campaign targeting Dr. Jadwin in retaliation for his whistleblowing,
12 subjecting him to heightened scrutiny and unwarranted criticism until Plaintiff was placed on Admin
13 Leave. [DMF 69-190, PMF 267].
14 The evidence is so strongly in Plaintiff’s favor that the court must deny Defendants’ motion for
15 summary judgment, and should grant summary adjudication on all elements of Plaintiff’s disability
16 discrimination claim except the amount of damages.
17 I. COUNT 7: FAILURE TO ACCOMMODATE
18 Plaintiff incorporates by reference the points and authorities set forth in Section II(K) of
19 Plaintiff’s Corrected Motion for Full or Partial Summary Judgment, and Sections D, E, & H, infra.
20 An employer is required to modify it's policies and procedures to provide reasonable
21 accommodation. [Gov't Code § 12926(n) Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263
22 (holding job open while employee takes recuperative leave was reasonable accommodation).
23 Defendants’reliance on Swonke v. Sprint, Inc. 327 F.Supp.2d 1128(N.D. Cal. 2004) for support of its
24 contention that an employer may force an employee to take full-time leave is also misplaced. Swonke’s
25 doctor’s notes precluded him from performing any work, thus requiring his employer to place him on
26 full-time leave until he obtained a release to work. Plaintiff’s psychiatrist never precluded him from
27 performing any work. [PMF 146]. It was illegal for Defendant County to require Dr. Jadwin to take
28 more recuperative leave than medically necessary. DFEH v. California State University, FEHC Dec. No.
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 23
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 28 of 29

1 87-28 at page 9 (forcing complainant to take involuntary leave is not a reasonable accommodation);
2 DFEH v. Ford of Simi Valley, Inc. (2005) FEHC Dec. No. 06-02 at page 12 (employer failed to
3 accommodate complainant by failing to return him to work on his release to part-time work).
4 Raine v. City of Burbank 135 Cal.App. 4th 1215 (2006) is also distinguishable. In Raine, the City
5 was not required under FEHA to convert an injured police officer’s temporary, light-duty
6 accommodation in a front-desk position into a permanent position once the officer’s temporary disability
7 became permanent because the officer sought reclassification of front-desk position from a civilian
8 position to a sworn-officer position, and city was not required to reclassify the front-desk job to
9 accommodate the officer. Id. at 901, 1223-1124. Unlike Raine, Dr. Jadwin’s disability was “chronic” not
10 “permanent”; Dr. Jadwin did not request permanent light work as an accommodation, and no
11 reclassification of Dr. Jadwin’s position was required to allow him to work part-time as an
12 accommodation.
13 As an accommodation, an employer must provide an employee with disabilities with similar
14 assistance and benefits that it offers others. Prilliman v. United Air Lines, Inc. 53 Cal.App.4th 935, 950-
15 51 (1997). Defendant Bryan’s explanation” of why he conditioned Dr. Jadwin’s continuance as Chair of
16 Pathology on his full-time attendance at KMC is pretextual. Defendant County allowed Dr. Tai Yoo
17 attend KMC part-time as Chair of Psychiatry, so must also allow Dr. Jadwin to attend KMC part-time as
18 Chair of Pathology as an accommodation of his disabilities. [DMF 25]. Moreover, if Defendant County
19 believed that Plaintiff’s accommodation wasn’t working, then it had a duty to engage in an interactive
20 process regarding other possible accommodations. Humphries v. Memorial Hospitals
21 Association (9 Cir. 2001) 239 F.3d 1128, 1138 (“...the employer’s obligation to engage in the
22 interactive process extends beyond the first attempt at accommodation and continues when the employee
23 asks for a different accommodation or where the employer is aware that the initial accommodation is
24 failing and further accommodation is needed.”).
25 J. COUNT 8: INTERACTIVE PROCESS
26 Plaintiff incorporates by reference the points and authorities set forth in Section II(L) of
27 Plaintiff’s Corrected Motion for Full or Partial Summary Judgment. Plaintiff incorporates by reference
28 the points and authorities set forth in Sections D-F, infra.
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 24
Case 1:07-cv-00026-OWW-TAG Document 275 Filed 12/01/2008 Page 29 of 29

1 The ten minute meeting on April 26, 2006 was to inform Plaintiff of his leave balance, not to
2 engage in an interactive process. [DMF 20, 22,]. Nor was Steven O'Connor sufficiently knowledgeable
3 or prepared to answer any questions that Plaintiff might have regarding his leave.
4 Defendant County failed to engage in good faith in an interactive consultation with Plaintiff.
5 III. CONCLUSION
6 For the foregoing reasons, the Court should deny Defendants’ Motion for Summary Judgment in
7 its entirety and grant Plaintiff’s Motion for Summary Judgment.
8
9 RESPECTFULLY SUBMITTED on December 1, 2008.
10
/s/ Eugene D. Lee
11 LAW OFFICE OF EUGENE LEE
555 West Fifth Street, Suite 3100
12 Los Angeles, CA 90013
Phone: (213) 992-3299
13 Fax: (213) 596-0487
email: elee@LOEL.com
14 Attorney for Plaintiff DAVID F. JADWIN, D.O.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
Π’S OPPOSITION TO ∆s MOTION FOR SUMMARY JUDGMENT 25

You might also like