Professional Documents
Culture Documents
10 FRESNO DIVISION
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Plaintiff DAVID F. JADWIN, D.O., hereby submits the following statement of disputed and
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undisputed material facts in support of his Opposition to Defendants’ Motion for Summary Judgment
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1
Δ’s MATERIAL FACTS Δ’S Π’S RESPONSE
2 (“DMF”) SOURCE
3 LEGAL RELATIONSHIP
4 BETWEEN KERN
MEDICAL CENTER AND
5 DAVID F. JADWIN, D.O.
6 1. First Employment DFJ00025 Undisputed.
Contract between Kern -00046
7 Medical Center (hereinafter
referred to as KMC) and
8 David F. Jadwin, D.O.
(hereinafter referred to as
9 Jadwin) was entered into on
October 24, 2000.
10
a) Article 1, ¶2 incorporates DFJ00043 Undisputed.
11 attached Exhibit A as a part -46
of the agreement
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b) Article 5, ¶20 states, in Undisputed that the document says what it says.
13 part, “The parties recognize
that each is possessed of
14 legal knowledge and skill,
and that this Agreement is
15 fully understood by the
parties, and is the result of
16 bargaining between the
parties.”
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c) Article 5, ¶22 states, in Disputed only as to the word “Agreement”. Article 5 ¶ 22
18 part, “This Agreement, actually uses the word “document”, “This document,
including all attachments including all [….]”.Undisputed that the document says
19 hereto, contains the entire what it says.
agreement between the
20 parties relating to the
services, rights, obligations
21 and covenants contained
herein and assumed by the
22 parties respectively.”
23 2. Employment Verification DFJ00358 Undisputed.
letter gives original date of
24 hire as December 3, 2000.
25 3. Jadwin received the 0000202- See evidentiary objections.
Medical Staff Bylaws. 203
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4. Medical Staff Bylaws. 0000272- Undisputed.
27 358
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9 10. Certification of Health DFJ00726 Undisputed that the document says what it says.
Care Provider dated 1/13/06
10 for Jadwin. Includes the
duration of the medical
11 condition (2-3 months) and
the expected date to return to
12 work (3/16/06). It gives the
date the medical condition
13 commenced as 12/16/05.
14 11. Jadwin did not Chester See evidentiary objections: Irrelevant to excusing
communicate with Human Depo., Defendants’ liability under any of Plaintiff’s counts.
15 Resources (hereinafter 8/28/08,
referred to as HR) at all, HR pgs. Disputed: Plaintiff obtained permission in January 2006
16 discovered that Jadwin ------ 75:19- from Bryan before commencing his medical leave. Bryan
had unilaterally assigned 76:10 promised to contact HR and send Plaintiff the necessary
17 himself to 1 to 2 workdays leave forms but was late in doing so. Plaintiff submitted
per week but, per policy, an the form and medical certification promptly after being
18 employee must use vacation, provided the forms and appropriate instructions from HR.
sick time, or leave of absence [Jadwin Opp. Decl., para. 4].
19 when not working full-time.
It was HR that brought Defendant County waived any such policy by allowing
20 Jadwin into compliance with Dr. Naderi and Dr. Dutt to take leave for known
County policy by putting him FMLA/CFRA qualifying purposes without requiring them
21 on leave of absence. to contact HR, submit a request for family leave
supported by a doctor's certificate; HR did not designate
22 either of their leaves as family leave. [Lee Opp. Decl.,
Exh. 56 (PMK Dutt Depo at 232:6-13, 237:1-9); Exh. 41
23 (Naderi Depo. at 38:6-39:25, 43:2-10, 51:21-25); Exh. 29
(McBride Depo. at 98:15-22) (Naderi's son's accident was
24 common knowledge at KMC)]. The fact that Defendants
apply it strictly against Plaintiff is further evidence of
25 retaliatory animus.
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1 12. KMC had to designate Bryan See evidentiary objections: Irrelevant to excusing
Jadwin’s medical leave Depo., Defendants’ liability under any of Plaintiff’s counts.
2 retroactively because Jadwin 8/14/08,
was late in giving appropriate pgs. Disputed: Plaintiff’s timecards show that he took vacation
3 requests. 195:9- from 12/16/05 to 1/2/06. Plaintiff obtained permission in
196: 14 January 2006 from Bryan before commencing his medical
4 leave. Bryan promised to contact HR and send Plaintiff
the necessary leave forms but was late in doing so.
5 Plaintiff submitted the form and medical certification
promptly after being provided the forms and appropriate
6 instructions from HR. On 1/13/06, Plaintiff’s therapist,
Dr. Riskin, certified that Plaintiff's need for reduced work
7 schedule began on 12/16/05. Accordingly, KMC
retroactively deducted Jadwin's vacation days from his
8 FMLA/CFRA balance even though he worked full time
for approximately three weeks after returning from
9 vacation. [Lee Decl., Exh. 14 (Bryan Memo to Jadwin of
4/28/06 at DFJ01155); [Declaration of Paul Riskin
10 (“Riskin Decl.”), Exh. 1 (Certification of 1/13/06 at
DFJ1810)].
11 [Jadwin Opp. Decl., para. 4].
13. Jadwin’s submission of Chester See evidentiary objections: Irrelevant to excusing
12 his healthcare provider’s Depo., Defendants’ liability under any of Plaintiff’s counts.
certification was not timely 8/28/08,
13 and was only provided upon pgs. Disputed: Plaintiff obtained permission in January 2006
prompting from HR. 113:23- from Bryan before commencing his medical leave. Bryan
14 114: 12 promised to contact HR and send Plaintiff the necessary
leave forms but was late in doing so. Plaintiff submitted
15 the form and medical certification promptly after being
provided the forms and appropriate instructions from HR.
16 [Jadwin Opp. Decl., para.4].
14. Certification of Health DFJ0l150 Disputed in that the form also states that Plaintiff can
17 Care Provider, dated 4/26/06, work “part-time, now”, and is able to “work for 1-2 days
stating that Jadwin’s medical per week”; and Defendant did not engage in interactive
18 condition goes back to consultation to clarify any confusion over the Riskin’s
10/30/03. The Certification certification.
19 states that Jadwin requires
“part-time or less to avoid
20 worsening of his serious
medical condition.”
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15. Jadwin’s Request for DFJ00746 See evidentiary objections: Irrelevant to excusing
22 Leave of Absence Defendants’ liability under any of Plaintiff’s counts.
(hereinafter referred to as
23 LOA), dated 3/2/06, notes Otherwise undisputed that the document says what it says.
that the LOA started on
24 12/16/05.
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23 19. Jadwin’s request for DFJ01158 See evidentiary objections: Irrelevant to prove Plaintiff
Leave of Absence Extension, failed to give reasonable notice on 3/16/06 of his need for
24 dated 4/26/06, has a starting extension of medical leave prior to being placed on
date of 3/15/06 and an Forced FT Leave by Bryan on 4/28/06.
25 ending date of 9/16/06.
Chester admitted in Depo. that Plaintiff’s email to Bryan
26 of 3/16/06 constituted reasonable notice of his need for
extension of medical leave.
27 [Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22]
28 Otherwise, undisputed that the document says what it
says.
1 20. Memo from Bryan to DFJ0l121 Undisputed that the document says what it says.
Jadwin, dated 4/28/06,
2 notifying him that his leave
would be up on 6/16/06 and
3 he either returns fulltime or
resigns. Also, it notes that
4 Jadwin was provided a
medical leave history, along
5 with the calculations and
policies about his medical
6 leave.
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4 26. Mortgage verification of DFJ01343 See evidentiary objections: Irrelevant and immaterial to
employment for Jadwin, excusing Defendants' liability under any of Plaintiff's
5 dated 6/22/06, noting that the counts.
probability of continued
6 employment for Jadwin was Bryan had solicited Plaintiff’s resignation earlier on
good and he was okay to 4/28/06. [Lee Decl., Exh. 14 (Bryan Memo to Jadwin of
7 return to work when well. 4/28/06 at DFJ001152)].
8 27. Letter from Dr. Harris 0001424 See evidentiary objections: Irrelevant to excusing
(writing on behalf of Defendants’ liability under any of Plaintiff’s counts, as
9 Bryan) to Jadwin, dated evidenced by Defendants’ failure to cite this DMF
6/26/06, stating that he anywhere in their motion brief (Doc. 262).
10 (Jadwin) has been seen in
and around KMC and that Disputed: Bryan testified in deposition that this letter was
11 while he (Jadwin) is on drafted by him (not Harris). [Lee Opp. Decl., Exh. 2
leave, he is not to enter the (Bryan Depo., 261:7-262:19)].
12 hospital except for seeking
medical attention. He is
13 also not to contact any
employee or faculty
14 member of KMC while on
leave.
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28. In his letter of June 14, Bryan See evidentiary objections: Irrelevant to excusing
16 2006, Bryan notifies Jadwin Depo., Defendants’ liability under any of Plaintiff’s counts, as
that Jadwin will be 8/14/08, evidenced by Defendants’ failure to cite this DMF
17 removed as chair and tells pg. 257:9- anywhere in their motion brief (Doc. 262).
Jadwin to call him if he has 15
18 questions. Bryan states that Disputed: Bryan is not an impartial adjudicator. Offering
put the burden of Plaintiff to contact him was not adequate due process.
19 challenging the action or [Lee Decl. (Doc. 266), Exh. 15 (Bryan Letter to Jadwin of
asking for reconsideration 6/14/06 at DFJ1181); Lee Decl. (Doc. 266), Exh. 16
20 on Jadwin who never called (Bryan Letter to Jadwin of 6/26/06 at DFJ1346); Lee
him about the letter. Decl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at
21 0009821); Jadwin Decl. (Doc. 265), Exh. 1 (Jadwin email
to Bryan of 2/28/05 at DFJ355); Lee Supp. Decl. (Doc.
22 267), Exh. 13 (Ragland Depo at 332:14-21); Lee Decl.
(Doc. 266), Exh. 8 (Bryan email to Harris of 11/8/05 at
23 0000503); Lee Decl. (Doc. 266), Exh. 11 (Ragland email
to Bryan of 2/23/06 at 0000507)].
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1 32. Tort Claims Act Exhibit 2 See evidentiary objections: Irrelevant to excusing
Complaint, dated 7/3/06, to Second Defendants’ liability under any of Plaintiff’s counts.
2 Jadwin admits that he had Amended
used up his CFRA leave by Complaint
3 June 14th, 2006. Page 1 of
the Attachment (page 3 of
4 the entire complaint), Section
A, paragraph 1, last sentence
5 reads “As of June 14, 2006,
Complainant had taken 12
6 weeks of CFRA sick leave
and approximately 3-4 weeks
7 of County sick leave based
on doctor’s certifications
8 which he submitted.”
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24 39. Letter to Dr. Harris from DFJ01388 Undisputed that the document says what it says.
Jadwin, dated 9111/06, -1389
25 stating that he (Jadwin) will
be returning to work on
26 9/18/06 and enclosed was a
doctor’s certification that he
27 was able to return to work
full-time.
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4 41. Letter from David DFJ01482 Undisputed that the document says what it says.
Culberson to Jadwin, dated
5 12/7/06, putting Jadwin on
administrative leave with pay
6 and confining him to his
home during business hours,
7 pursuant to Kern County
Policy and Administrative
8 Procedures Manual section
124.3.
9
a) Kern County Policy and 0016941 See evidentiary objections.
10 Administrative Procedures
Manual, pg. 1:22, Section Undisputed that the document says what it says.
11 titled “Administrative Leave
with Pay.” “During the
12 administrative leave, the
employee shall be ordered to
13 remain at home and available
by telephone .. “.
14
42. Letter from Mark DFJ01701 See evidentiary objections: Irrelevant to excusing
15 Wasser to Eugene Lee, Defendants’ liability under any of Plaintiff’s counts, as
dated 4/30/07, allowing evidenced by Defendants’ failure to cite this DMF
16 Jadwin to pursue his own anywhere in their motion brief (Doc. 262).
activities during the work
17 week and retaining him, at Undisputed that the document says what it says.
his usual salary, for
18 consulting. Disputed: Defendant County was not “retaining” Plaintiff
for consulting. Rather, the intent was to “run out’ the term
19 of his existing contract, which was due to expire on
October 4, 2007.
20 [Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 43 at
53:3-9); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No.
21 44, 28:17-22); Lee Supp. Decl. (Doc. 267), Exh. 6
(Wasser Email to Lee of 5/1/07 at DFJ01705)].
22
See evidentiary objections.
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43. Letter to Mark Wasser DFJ01703 Undisputed that the document says what it says.
24 from Eugene Lee, dated -1704
5/1/07, noting that on
25 4/28/07 and in several
following e-mails he was
26 notified that KMC wanted to
terminate Jadwin’s contract
27 and would not renew it on
10/4/07.
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1 45. The last two pages of Jadwin See evidentiary objections: Irrelevant to excusing
Exhibit 581 is Exhibit A Depo., Defendants’ liability under any of Plaintiff’s counts.
2 which is a job description. 3/12/08,
Jadwin confirms that he read 974:3~97 Disputed: Plaintiff had requested reasonable
3 it at the time of signing the 6:l2 accommodation of his disability by asking to extend his
amendment. Jadwin looked part-time medical leave. Bryan refused on 4/28/06,
4 at the tasks listed and does forcing Plaintiff onto Forced FT Leave.
not believe that any of those [Jadwin Decl. (Doc. 265), Exh. 6 (Jadwin’s Request for
5 tasks require Leave Extension of 4/26/06 at DFJ00157), Exh. 4
accommodation. Jadwin does (Jadwin’s Email to Bryan, Chester, & Dutt of 3/16/06 at
6 not recall asking anyone with DFJ00752)]
the County for an
7 accommodation of any of the [Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19;
tasks listed in Exhibit A. Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo.
8 at 983:23-984:1, 94:23-985:4).]
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1 JADWIN’S
ALLEGATIONS OF
2 REGULATORY
3 VIOLATIONS
1 63. Jadwin told Dr. Kolb that Jadwin See evidentiary objections.
he suffered from depression Depo.,
2 when he notified him of the 1/9108, Undisputed.
weekly half-day medical pgs.
3 leave day off to see his 491:1-
therapist. 493:17
4
64. Jadwin asked Dr. Kolb Jadwin See evidentiary objections.
5 for accommodations for his Depo.,
disability by requesting time 1/9108, Undisputed.
6 off for his therapist visits. Dr. pgs. 506:
Kolb granted that 16-507: 1
7 accommodation.
1 JADWIN’S ERRORS
Failure to Produce Timely
2 or Correct Diagnoses
3
69. Dr. Ragland brings up the Ragland See evidentiary objections.
4 issue that a stack of FNA Depo.,
reports that Jadwin had given 8/22/08, Disputed: Ragland testified that he never even bothered to
5 him had issue dates after the pgs. investigate his serious fraud concern by speaking with
date of a double read, in each 171:5- Plaintiff or UCLA or even Dutt directly. Had he done so,
6 case, was done by UCLA. 172:5 and Plaintiff would have explained that the he issued
This raises the possibility 328:7- diagnoses to clinicians PRIOR to sending reports out to
7 that Jadwin waited to enter a 329: 14 UCLA for confirmatory review and that when he later
diagnosis until the double received UCLA’s confirmatory reports, he entered them
8 read had come back from into the KMC computer system, which automatically
UCLA so that he could be in updates the “Completed” report date to the date of the last
9 100% agreement with modification. The “Completed” date does not equate to
UCLA. the date when Plaintiff issued his own diagnosis that was
10 later confirmed by UCLA. This quickness to conclude
Plaintiff had engaged in wrongdoing -- by fraudulently
11 withholding diagnoses until UCLA issued their reports so
that he could issue parallel diagnoses -- without informing
12 Plaintiff of the suspicions or allowing him to explain
himself was typical of how Ragland and KMC officers
13 dealt with Plaintiff. [Lee Opp. Decl., Exh. 9 (Ragland
Depo. at 171:22-172:7; 173:19-23; 174:7-175:24; 177:15-
14 176:12; 181:20-182:3); [Jadwin Opp. Decl., para. 5].
Even worse, Ragland spread rumors of Plaintiff’s
15 suspected FNA fraud so that he was tried and convicted in
the court of opinion. [(Lee Opp. Decl., Exh. 27 (Abraham
16 Depo. at 73:15-74:16)]. Abraham admitted she still
doesn’t trust Jadwin's competence. [Id. at 77:10-18].
17 70. Letter from Dr. Ang to 0000690- See evidentiary objections: Irrelevant to excusing
Dr. Perez, Peter Bryan, Dr. 691, Defendants’ liability under any of Plaintiff’s counts. It
18 Kolb, and Dr. Munoz, dated 0000736 predates the October Conference of 12/16/05 by several
2/20/02, containing formal years. Also, it is pretext. On 12/26/03, Defendant County
19 complaints of misconduct increased Plaintiff’s biweekly base salary from
against Jadwin. Complaint #3 $10,679.43 to $11,021.08 establishing that Defendant
20 states that Jadwin failed to County was satisfied with Plaintiff’s performance as of
pass the quarterly proficiency that date. [Lee Opp. Decl., Exh. 21 (Change of Employee
21 tests on cervical pap smears Status of 12/26/03 at Bates DFJ00247).
so those tests are sent out. It
22 states that this was an Disputed: Plaintiff’s proficiency with cervical pap smears
unnecessary cost and delay is irrelevant. KMC had outsourced Pap smear analysis and
23 because the other three was no longer conducting them by 2002. Moreover,
pathologists in the Kolb’s investigative report concluded that there was no
24 department could examine basis for any of Ang’s accusations. [Lee Opp. Decl., Exh.
the pap smears because they 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676-
25 have maintained their 677)].
proficiency.
26
27
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13
b) Jadwin’s actual (failing) See evidentiary objections:
14 test for cervical pap smears.
This test is conducted by the Irrelevant to excusing Defendants’ liability under any of
15 College of American Plaintiff’s counts. It predates the October Conference of
Pathologists (CAP). Of 12/16/05 by several years. Also, it is pretext. On 12/26/03,
16 interest, on Case #3 Jadwin Defendant County increased Plaintiff’s biweekly base
marked “unsatisfactory for salary from $10,679.43 to $11,021.08 establishing that
17 evaluation” when the Defendant County was satisfied with Plaintiff’s
accurate diagnosis was performance as of that date. [Lee Opp. Decl., Exh. 21
18 “squamous cell carcinoma.” (Change of Employee Status of 12/26/03 at Bates
DFJ00247).
19
Disputed: Plaintiff’s proficiency with cervical pap smears
20 is irrelevant. KMC had outsourced Pap smear analysis and
was no longer conducting them by 2002. Moreover,
21 Kolb’s investigative report concluded that there was no
basis for any of Ang’s accusations. [Lee Opp. Decl., Exh.
22 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676-
677)].
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1
JADWIN’S INABILITY
2 TO GET ALONG WITH
OR COMMUNICATE
3
WELL WITH OTHERS
4 Policy
5 87. Policy Statement of the 0010685- Undisputed that the document says what it says.
Disruptive Behavior, 10688
6 Discrimination & Disputed: This is pretext. This policy is irrelevant as it
Harassment Policy “It is the was ratified in May 2007 during Plaintiff’s Admin Leave.
7 policy of Kern Medical It could not have served as the basis for any of
Center that all associates are Defendants’ actions prior to 2007.
8 expected to conduct
themselves at all times while
9 on hospital premises in a
courteous, professional,
10 respectful, collegial, and
cooperative manner. This
11 applies to interactions and
communications with or
12 relating to physicians,
nursing and technical
13 personnel, other caregivers,
other hospital personnel, .. “
14 [emphasis added]
15 88. Section V Item A of the 0010686- Undisputed that the document says what it says.
Kern Medical Center 10687
16 Procedure on Disruptive Disputed: This is pretext. This policy is irrelevant as it
Behavior, Discrimination and was ratified in May 2007 during Plaintiff’s Admin Leave.
17 Harassment Policy It could not have served as the basis for any of
“Examples of prohibited Defendants’ actions prior to 2007.
18 conduct include but are not
limited to the following ..
19
a) 6. Use of racial, ethnic, 0010686 Undisputed that the document says what it says.
20 epithetic or derogatory
comments.. Disputed: This is pretext. This policy is irrelevant as it
21 was ratified in May 2007 during Plaintiff’s Admin Leave.
It could not have served as the basis for any of
22 Defendants’ actions prior to 2007.
23 b) 8. Use of medical record 0010686 Undisputed that the document says what it says.
entries to criticize KMC
24 associates, policies or Disputed: This is pretext. This policy is irrelevant as it
equipment, other was ratified in May 2007 during Plaintiff’s Admin Leave.
25 practitioners, or others; It could not have served as the basis for any of
Defendants’ actions prior to 2007.
26
27
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1 c) 14. Persisting to criticize, 0010687 Undisputed that the document says what it says.
or to discuss performance or
2 quality concerns with, Disputed: This is pretext. This policy is irrelevant as it
particular KMC associates or was ratified in May 2007 during Plaintiff’s Admin Leave.
3 others after being asked to It could not have served as the basis for any of
direct such comments Defendants’ actions prior to 2007.
4 exclusively through other
channels; .. “
5
89. Jadwin was dealt with Harris Undisputed that the document says what it says.
6 pursuant to the Disruptive Depo.,
Physician Policy. 8/13/08, Disputed: This is pretext. This policy is irrelevant as it
7 pgs. was ratified in May 2007 during Plaintiff’s Admin Leave.
330:21- It could not have served as the basis for any of
8 332: 3 Defendants’ actions prior to 2007.
1 a) Portion of Jadwin’s 0000061- For sake of economy, see Plaintiff’s Response to DMF 90
interview blaming Dr. Lau 63 supra.
2 for the incident, alleging a
prior history of Dr. Lau being
3 afraid of him because Jadwin
(allegedly) points out Dr.
4 Lau’s many mistakes.
5 b) During Jadwin’s 0000063 For sake of economy, see Plaintiff’s Response to DMF 90
interview, conducted on supra.
6 10/17/03, Jadwin accepts that
he pulled the tie, says he
7 cannot really remember.
8 c) The investigator finds, by 0000034 For sake of economy, see Plaintiff’s Response to DMF 90
a preponderance of the supra.
9 evidence, that (Item #2)
Jadwin violated the
10 Workplace Violence Policy
of the County of Kern and
11 potentially endangered the
quality or efficiency of
12 patient care (because both
Jadwin and Lau testified that
13 Lau told Jadwin that he could
not accompany him because
14 he had patient work to do).
15 92. Letter from Dr. Kolb to DFJ00246 For sake of economy, see Plaintiff’s Response to DMF 90
Jadwin, dated 11/26/03, supra.
16 reprimanding him for pulling
Dr. Lau by his tie.
17
93. Letter to Dr. Lau from DFJ00590 For sake of economy, see Plaintiff’s Response to DMF 90
18 Jadwin, dated 10/19/05, supra.
apologizing for past wrongs.
19
20 Dispute with Radiology
21
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1 95. Dr. Abraham, while Abraham See Plaintiff’s Response to DMF 94 supra, which is
discussing the FNA Depo., incorporated in its entirety herein.
2 Consulting Report, 8/18/08,
mentioned that the pgs. 59:6- See evidentiary objections.
3 radiologists were upset with 60:2
Jadwin because he was
4 accusing them of too many
inadequate specimens
5 (“unsatisfactory for
evaluation”) when there were
6 relatively few complaints of
that before Jadwin arrived.
7
a) Jadwin’s actual (failing) 0000737 See evidentiary objections.
8 test for cervical pap smears.
This test is conducted by the Irrelevant to excusing Defendants’ liability under any of
9 College of American Plaintiff’s counts. It predates the October Conference of
Pathologists (CAP). Of 12/16/05 by several years. Also, it is pretext. On 12/26/03,
10 interest, on Case #3 Jadwin Defendant County increased Plaintiff’s biweekly base
marked “unsatisfactory for salary from $10,679.43 to $11,021.08 establishing that
11 evaluation” when the Defendant County was satisfied with Plaintiff’s
accurate diagnosis was performance as of that date. [Lee Opp. Decl., Exh. 21
12 “squamous cell carcinoma.” (Change of Employee Status of 12/26/03 at Bates
DFJ00247).
13
Disputed: Plaintiff’s proficiency with cervical pap smears
14 is irrelevant. KMC had outsourced Pap smear analysis and
was no longer conducting them by 2002. Moreover,
15 Kolb’s investigative report concluded that there was no
basis for any of Ang’s accusations. [Lee Opp. Decl., Exh.
16 20 (Kolb memo to Perez of 3/12/02 at Bates 0000676-
677)].
17
18 96. Dr. Abraham talked Abraham See Plaintiff’s Response to DMF 94 supra, which is
about the lack of trust Depo., incorporated in its entirety herein.
19 between the other doctors 8/18/08,
and Jadwin, which the FNA pgs. 62: See evidentiary objections.
20 Consulting Project report 16-64:3
addresses as communication
21 problems.
1 b) Consultant agreed with DFJ00257 Disputed: for sake of economy, see Plaintiff’s Response
radiologists that long clinical to DMF 94 supra, which is incorporated in its entirety
2 history on the FNA reports herein.
was unnecessary.
3 See evidentiary objections.
4 c) “ .. Dr. Jadwin and DF100260 Disputed: for sake of economy, see Plaintiff’s Response
radiologists do not to DMF 94 supra, which is incorporated in its entirety
5 communicate at this level. herein.
This suggests that a
6 breakdown in
communication is the
7 fundamental problem. This
bridge was burned down long
8 ago.”
9 d) “Finally, both radiology DFJ00269 Disputed: for sake of economy, see Plaintiff’s Response
and pathology will work to DMF 94 supra, which is incorporated in its entirety
10 together to find the best herein.
needle for deep FNAs.”
11
98. E-mail to Drs. Kercher DFJ00289 Disputed: for sake of economy, see Plaintiff’s Response
12 and Kolb from Jadwin, dated -290 to DMF 94 supra, which is incorporated in its entirety
9/3/04, stating “You cannot herein.
13 dictate the size of the needle
by policy” and calling Dr.
14 Lieu “unjustifiably
pompous,”
15
99. E-mail to Peter Bryan DFJ00319 Disputed: for sake of economy, see Plaintiff’s Response
16 from Jadwin, dated 2/2/05, -320 to DMF 94 supra, which is incorporated in its entirety
listing his suggestions for herein.
17 improvement on the FNA
issue. Jadwin also states that
18 the radiology department was
“substantially at fault” for the
19 conflict between the
departments. He requested a
20 formal apology from the
radiology department to
21 himself and the pathology
department. He also
22 requested (in bold lettering) a
public announcement at the
23 next Medical Executive
Committee (hereinafter
24 referred to as MEC) meeting
that there are no quality
25 issues involving the
pathology department and
26 Drs. Amin, Abraham, Munoz
and Naderi should be
27 standing at the podium
during the announcement.
28
1 100. Exchange of e-mails DFJ00353 Disputed: for sake of economy, see Plaintiff’s Response
between Dr. Ragland and -354 to DMF 94 supra, which is incorporated in its entirety
2 Jadwin, dated 2/25/05, in herein.
which Jadwin complains
3 about some comments made Despite the fact that Ragland was chair of the quality
by the radiologists at the committee and the fact that, as he himself testified, he
4 February QM meeting and knew from the beginning that the FNA issue was a patient
informing Dr. Ragland to be care issue, he refused to let Plaintiff address it at the
5 prepared for Jadwin to Quality Management meeting. He retaliated against
request him to call for Plaintiff by dismissing the issue as “battling doctors” and
6 supporting documentation attacking Plaintiff for his “poor” communication skills.
from radiology or announce
7 that the previous comments
were unsupported. Dr.
8 Ragland shot back his
displeasure at the continuing
9 conflict between radiology
and pathology, and stated
10 that his committee will not
become a battleground for
11 this conflict.
12
Length of
13 Presentations/October 2005
Oncology Conference
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 103. Memo from Dr. DFJ00381 Disputed: For sake of economy, see Plaintiff’s Response
McBride to Jadwin, dated to DMF 104 and DMF 106 infra.
2 5/9/05, requesting that the
time required for the Disputed: McBride stated that the purpose of the memos
3 pathology presentation at the from the Cancer Committee to Plaintiff was NOT to
oncology conference be kept reprimand Plaintiff or anybody in particular. [Lee Opp.
4 to a minimum. Decl., Exh. 29 (McBride Depo. at 28:3-8)].
5 104. Instructions for the Patel Disputed: The document specifies NO time limits for the
Cancer Conference Depo., pathology portion of the presentation, contrary to
6 presenters 1) the presentation 12/6/07, Defendants’ claims and consistent with what Plaintiff
is to contain less than 10 Exhibit 25 claims. Defendants fundamentally misconstrue this
7 slides, 2) length not to document. The guidelines are directed to the RESIDENT
exceed 20 minutes for who will be introducing the case, giving the background
8 comprehensive background and going through preliminary slides at the beginning, as
and overview of testing, and evidenced by the instruction “You will be required to
9 3) all physicians involved in meet with both the Pathologist and Radiologist to discuss
the case being presented the case to be presented at least 4 working days before the
10 must be notified beforehand. conference. It is also your responsibility to notify ALL
physicians involved in the case you are presenting.” It is
11 NOT directed at the pathologists.
[Lee Opp. Decl., Exh. 28 (Conference Guidelines at Bates
12 0000804); Lee Opp. Decl., Exh. 29 (McBride Depo. at
362-16)].
13
105. Pathology Dept.’s DFJ00508 Disputed: See Plaintiff’s Response to DMF 104 supra and
14 oncology conference -574 DMF 106 infra, which are incorporated in their entirety
presentation--67 slides-by herein.
15 Jadwin, reviewing
gynecology cases and alleged
16 errors in diagnosis by
University of Southern
17 California (hereinafter
referred to as USC).
18
19
20
21
22
23
24
25
26
27
28
1 106. Memo from the Cancer DFJ00578 Disputed: For sake of economy, see Plaintiff’s Response
Committee (Drs. Patel, to DMF 104 supra, which is incorporated in its entirety
2 Johnson, and McBride) to herein.
Jadwin, dated 10/12/05,
3 insisting that his presentation McBride testified that: 1) McBride was the timekeeper
take no more than 5 minutes and there was no one better positioned to keep track of the
4 per patient case. timing of events at the October Conference [Id. at 32:2-5;
33:19-22]; 2) Plaintiff and the resident presenter together
5 spoke at the October Conference for a total of 20 minutes,
during which the resident typically spoke for “roughly” 5
6 minutes [Id. at 37:18-21; 39:10-20]; hence, Plaintiff’s
presentation only took 15 minutes max; 3) the total
7 conference time was typically 1 hour [Id. at 15:16-19]; 4)
he did not disagree with Plaintiff when Plaintiff informed
8 him that the director of a preeminent cancer center had
stated that it is not reasonable to limit the time of the
9 pathology presentation, that the “pathology department
has presented concise, well organized presentations for
10 years”, that Plaintiff’s October Conference presentation
detailed “problems encountered with this patient’s care
11 and hopefully improve general awareness about important
KMC patient care issues”, that “other oncology
12 conferences have run over without incident and most
other conferences throughout [KMC] run over all of the
13 time”, etc. [Lee Opp. Decl., Exh. 29 (McBride Depo. at
54:24-55:16; 57:7-8); Lee Opp. Decl., Exh. 30 (Jadwin
14 letter to McBride of 10/19/05 re October Conference at
DFJ00591)]; 5) “I was not unhappy with [Plaintiff’s
15 October Conference] presentation. He had a lot of good
material to present.” [Id. at 46:11-14)]; 6) He had
16 moderated “many, many” Cancer Conferences [Id. at
37:2-6)], 7) the first presentation on the morning of the
17 October Conference ran over by about 5 minutes without
incident and that “it was not uncommon” for time
18 overruns to occur at Cancer Conferences. [Id. at 49:17-
25)]; 8) he could not recall any other physician receiving
19 a letter of reprimand for running over time at a Cancer
Conference; 9) he had moderated “many, many” Cancer
20 Conferences [Id. at 50:1-7)]; 10) Harris had forced him to
write a letter of dissatisfaction against Plaintiff at the end
21 of the October Conference [Id. at 29:11-13]; 11) he didn’t
want to do write the letter [Id. at 30:1-8]; 12) that he was
22 not upset with Plaintiff for going over time [Id. 33:19-
34:6].
23
Plaintiff’s expert, Lawrence Weiss, Chair of Pathology at
24 City of Hope in Duarte, CA, stated re Plaintiff’s time
overrun: “Customarily, if an Oncology Conference runs
25 over the time scheduled, those attendees who need to
leave to perform other duties simply do so…. In all my
26 years of experience, I have never seen a physician’s
privileges threatened for such an insignificant and
27 patently unwarranted reason.” [Decl. of Lawrence Weiss
(“Weiss Decl.”) at pp. 4-5.
28
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 a) Bryan criticizes Jadwin’s Bryan Disputed: For sake of economy, see Plaintiff’s Response
57 memos to Toni Smith, Depo., to DMF 117.
2 R.N. as a “way of flooding 8/14/08,
the system and seeing what pg. 226: See evidentiary objections.
3 sticks and what doesn’t.” 10-16
4 125. Memo to Peter Bryan 0000401- Disputed: For sake of economy, see Plaintiff’s Response
from Toni Smith, dated 403 to DMF 117.
5 4/17/06, responding to
Jadwin’s e-mail to Peter See evidentiary objections.
6 Bryan of 4/17/06,
disagreeing with Jadwin’s
7 characterization of the PCC
situation and stating that
8 Jadwin’s proposals on this
issue were strategies that
9 have previously been
rejected by KMC.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28
1 127. Toni Smith, R.N. Smith D Disputed: For sake of economy, see Plaintiff’s
explained that the reason that Depo., Response to DMF 117.
2 some PCCs looked like they 8/19/08,
were not complete is that the pgs. 59:4- Disputed: Even as of 8/19/08, Smith took no
3 PCC form was actually in 60: 13 responsibility for her role in failing to get KMC into
duplicate and the nurses were compliance with H&S 1602.5. Instead, she focuses on
4 not consistent about writing Plaintiff’s alleged dysfunction and unsubstantiated
on only one copy and speculation that one of Plaintiff’s proposed solutions
5 throwing the blank copy might run afoul of a regulation.
away.
6 See evidentiary objections.
128. Toni Smith said that Smith D Disputed: For sake of economy, see Plaintiff’s
7 Jadwin was never interested Depo., Response to DMF 117.
or willing to listen to her 8/19/08,
8 ideas. When asked what pg. 65:2- Disputed: Even as of 8/19/08, Smith took no
Jadwin’s physical demeanor 13 and 74: responsibility for her role in failing to get KMC into
9 was like in these 12-22 compliance with H&S 1602.5. Instead, she focuses on
conversations in which he Plaintiff’s alleged dysfunction and unsubstantiated
10 was allegedly uncooperative, speculation that one of Plaintiff’s proposed solutions
she said “He was obviously might run afoul of a regulation.
11 frustrated, obviously not
going to change his mind, See evidentiary objections.
12 obviously not willing to
listen to anything. I presented
13 cases from other hospitals,
some of the lab directors that
14 I hold in high esteem. [He]
had no interest in any of
15 that.”
16 129. Jadwin’s idea to have Smith D Disputed: For sake of economy, see Plaintiff’s
the PCCs stored in his Depo., Response to DMF 117.
17 department may violate 8/19/08,
California law, Title 22, by pg. 71:2- Disputed: Even as of 8/19/08, Smith took no
18 fragmenting the medical 21 responsibility for her role in failing to get KMC into
record. Jadwin’s idea was compliance with H&S 1602.5. Instead, she focuses on
19 opposed by Toni Smith, Plaintiff’s alleged dysfunction and unsubstantiated
R.N., the medical records speculation that one of Plaintiff’s proposed solutions
20 department, and the medical might run afoul of a regulation.
records committee which
21 ultimately determines what See evidentiary objections.
the contents of a medical
22 record will be.
23
24
25
26
27
28
1 130. Toni Smith, R.N. Smith D Disputed: For sake of economy, see Plaintiff’s
offered a succinct description Depo., Response to DMF 117.
2 of her conversations with 8/19/08,p
Jadwin on the issue of PCCs. gs.72:19- Disputed: Even as of 8/19/08, Smith took no
3 The conversations were not 73:17 responsibility for her role in failing to get KMC into
professional conversations- compliance with H&S 1602.5. Instead, she focuses on
4 ”It just was a dead-end Plaintiff’s alleged dysfunction and unsubstantiated
conversation. I mean, he had speculation that one of Plaintiff’s proposed solutions
5 his mind made up that those might run afoul of a regulation.
things-he had never seen an
6 organization where they See evidentiary objections.
hadn’t been stored in the lab.
7 I had indicated-I indicated to
him that I had never seen an
8 organization where they were
stored in the lab. And I
9 questioned him as to how he
was going to be able to locate
10 that if we needed it for
patient care purposes. I think
11 he said he was going to store
them in binders or in
12 notebooks or boxes or
something. You know, it was
13 See evidentiary objections:
Irrelevantas far as I was
14 concerned. I felt that it was
very important to have that
15 information-one, we needed
to know that the patient had-
16 had received the blood. We
needed the vital sign
17 information during the blood
transfusion part, which
18 would leave a huge gaping
hole in patient information if
19 that was stored somewhere in
the lab.”
20
131. Toni Smith considered Smith D Disputed: For sake of economy, see Plaintiff’s
21 Jadwin’s conduct at the MEC Depo., Response to DMF 117.
meeting as uncooperative, 8/19/08,
22 refusal to consider other pg. 77:9- Disputed: Even as of 8/19/08, Smith took no
points of view or 20 responsibility for her role in failing to get KMC into
23 suggestions, etc. compliance with H&S 1602.5. Instead, she focuses on
Plaintiff’s alleged dysfunction and unsubstantiated
24 speculation that one of Plaintiff’s proposed solutions
might run afoul of a regulation.
25
See evidentiary objections.
26
27
28
1 132. Jadwin’s charges of Smith D Disputed: For sake of economy, see Plaintiff’s
being out of compliance with Depo., Response to DMF 117.
2 regulatory agencies were 8/19/08,
unfounded, and regulatory pgs. 84: Disputed: Even as of 8/19/08, Smith took no
3 agencies found no jeopardy 11-85:7 responsibility for her role in failing to get KMC into
of KMC’s level of compliance with H&S 1602.5. Instead, she focuses on
4 compliance. Plaintiff’s alleged dysfunction and unsubstantiated
speculation that one of Plaintiff’s proposed solutions
5 might run afoul of a regulation.
1 133. Dr. Abraham gradually Abraham Disputed: Mr. Bryan (Former CEO), Dr. Abraham
had fewer and fewer Depo., (Former President of Medical Staff), Dr. Ragland (Former
2 interactions with Jadwin 8/18/08, President of Medical Staff), Dr. Kercher (Former
because his attitude was pgs. 49: President of Medical Staff), Ms. Smith (Nurse Executive),
3 pompous and arrogant. Since 16-52:9 and Dr. Dutt (Acting Chair of Pathology and Plaintiff’s
the conversations with and former subordinate) were in the minority of people who
4 Jadwin were not cordial, it 75:22-76: were detractors of Plaintiff.
negatively affected patient 19
5 care. She didn’t discuss The vast majority of people – Dr. Martin (Surgery Chair),
Jadwin’s attitude with other Ms. Gallegos (Histotech), Dr. Kolb (Former CMO), Ms.
6 doctors because she thought Lindsey (Secretary), Ms. Lopez (Clerk), Dr. Mansour
his attitude was evident to (OB-GYN physician), Mr. Martinez (Former Lab
7 everyone. Manager), Dr. McBride (Former Cancer Conference
Director), Dr. Naderi (Radiology Chair), Dr. Patel
8 (Cancer Committee Chair), Ms. Ramos (Secretary), Dr.
Taylor (Surgeon), Dr. Wrobel (Neurosurgeon), and Dr.
9 Yoo (Psychiatry Chair) – liked Plaintiff, reported having
no or few bad interactions with him and found he
10 generally conducted himself professionally.
[Lee Opp. Decl., Exh. 36 (Martin Depo. at 34:24-35:2;
11 91:14-19); Exh. 37 (Gallegos Depo. at 23:19-25; 24:17;
28:7-9); Exh. 38 (Kolb Depo. at 17:12-16; 19:17-21:18;
12 22:19-23:1; 75:11-76:10; 62:10-19; 36:21-19); Exh. 39
(Lindsey Depo. at 8:23-10:3); Exh. 40 (Lopez Depo. at
13 8:19-20; 10:4-8; 11:3-8; 12:4-19; 15:20-16:13); Exh. 33
(Mansour Depo. at 10:2-4); Exh. 8 (Martinez Depo. at
14 121:2-7; 122:8-123:1; 124:18-21; 127:18-21; 130:12-16;
133:17-22); Exh. 29 (McBride Depo. at 91:3-92:24);
15 Exh. 41 (Naderi Depo. at 63:18-64:19; 75:17-22); Exh. 42
(Patel Depo. at 16:2-6; 16:17-19); Exh. 43 (Ramos Depo.
16 at 47:9-48:9; 48:22-49:2; 49:10-12); Exh. 44 (Taylor
Depo. at 88:23-89:25; 90:16-90); Exh. 45 (Wrobel Depo.
17 at 12:15-13:18); Exh. 46 (Yoo Depo. at 10:20-11:23;
12:4-6; 12:22-24).
18
Even Dr. Kercher testified “I don’t ever remember
19 [Plaintiff] specifically treating me in a sassy, mean,
horrible way” and “he was always nice to me”. [Lee Opp.
20 Decl., Exh. 14 (Kercher PMK Depo at 32:9-13; 32:25-
33:3)].
21
Disputed: For sake of economy, see Plaintiff’s Response
22 to DMF 94.
1 135. Jadwin’s Bryan Disputed: For sake of economy, see Plaintiff’s Response
communication style was, to Depo., to DMF DMF 94, 101, 117, 126, 127, 133, 176. Bryan,
2 some people, offensive and 8/14/08, Harris, Kercher, Ragland, Abraham, Smith and Dutt were
abrasive, and he had a hard pgs. 90:4- intolerant in accepting the patient care and noncompliance
3 time accepting differing 92:2 issues Plaintiff was blowing the whistle on.
opinions from others.
4 Disputed: This is pretext. On 12/26/03, Defendant County
increased Plaintiff’s biweekly base salary from
5 $10,679.43 to $11,021.08 establishing that Defendant
County was satisfied with Plaintiff’s performance 3 years
6 into his tenure. [Lee Opp. Decl., Exh. 21 (Change of
Employee Status of 12/26/03 at Bates DFJ00247).
7
See evidentiary objections.
8 136. “Compromise” was not Bryan Disputed: For sake of economy, see Plaintiff’s Response
in Jadwin’s vocabulary. It is Depo., to DMF DMF 94, 101, 117, 126, 127, 133, 176. Bryan,
9 not enough to be right; a 8114/08, Harris, Kercher, Ragland, Abraham, Smith and Dutt were
department chair must pgs. 100: just as intolerant in accepting the patient care and
10 exercise judgment on how to 12102: 1 noncompliance issues Plaintiff was blowing the whistle
deal with others. on.
11
Disputed: This is pretext. On 12/26/03, Defendant County
12 increased Plaintiff’s biweekly base salary from
$10,679.43 to $11,021.08 establishing that Defendant
13 County was satisfied with Plaintiff’s performance 3 years
into his tenure. [Lee Opp. Decl., Exh. 21 (Change of
14 Employee Status of 12/26/03 at Bates DFJ00247).
1 139. Bryan recalls private Bryan Disputed: For sake of economy, see Plaintiff’s Response
conversations with Jadwin Depo., to DMF 94, 101, 117, 126, 127, 133, 176. Bryan did not
2 where Jadwin challenged 8/14/08, display similar concern when Plaintiff’s FNA competency
Toni Smith’s competency as pg. 230: was being attacked in retaliatory fashion by Ragland,
3 chief nursing officer. 10-15 Abraham, Kercher, Harris, Smith, and others.
8 140. Jadwin was so obsessed Harris Disputed: For sake of economy, see Plaintiff’s Response
with personnel actions or Depo., to DMF 94, 101, 117, 126, 127, 133, 176. Harris leveled
9 inactions that he was 8/13/08, far more severe charges of assault, intimidation and
distracted in his duties. “ .. pgs. 171: violence at Mansour, yet Mansour was not subjected to
10 his behavior threatened a 16174: 8 administrative leave or nonrenewal as Plaintiff was.
healthy, productive work pg. 173:9-
11 environment at the hospital.” 10 Disputed: This is pretext. On 12/26/03, Defendant County
increased Plaintiff’s biweekly base salary from
12 $10,679.43 to $11,021.08 establishing that Defendant
County was satisfied with Plaintiff’s performance 3 years
13 into his tenure. [Lee Opp. Decl., Exh. 21 (Change of
Employee Status of 12/26/03 at Bates DFJ00247).
14
See evidentiary objections.
15 141. In most cases, doctors Harris Disputed: For sake of economy, see Plaintiff’s Response
know how to calm each other Depo., to DMF 94, 101, 117, 126, 127, 133, 176. Harris leveled
16 down and act professionally 8/13/08,p far more severe charges of assault, intimidation and
and collegially. Jadwin was gs.212:16 violence at Mansour, yet Mansour was not subjected to
17 “unusual.” Jadwin was 218: 11 administrative leave or nonrenewal as Plaintiff was.
unable to interact collegially pg.215:18
18 and professionally to create a -21 Disputed: This is pretext. On 12/26/03, Defendant County
healthy, collaborative increased Plaintiff’s biweekly base salary from
19 working environment. $10,679.43 to $11,021.08 establishing that Defendant
County was satisfied with Plaintiff’s performance 3 years
20 into his tenure. [Lee Opp. Decl., Exh. 21 (Change of
Employee Status of 12/26/03 at Bates DFJ00247).
21
See evidentiary objections.
22 142. Jadwin denied referring Jadwin See evidentiary objections.
to Dr. Epstein as cavalier. Depo.,
23 Jadwin said that on another 3/12/08,9 Disputed: Pathologists disagree with outside experts all
matter, at another time, he 01:12- the time. That was the basis for the policy of internal
24 said that Dr. Epstein’s 903: 1 pathology review of outside expert reports which Plaintiff
diagnoses were a little was espousing at the October Conference. Dr. Patel, Chair
25 cavalier. of the Cancer Committee, enthusiastically supported
Plaintiff’s advocacy. [Lee Opp. Decl., Exh. 42 (Patel
26 Depo. at 38:3-7; 38:20-22; 41:11-21)].
27
28
1 143. Dr. Ragland testified Ragland Disputed: For sake of economy, see Plaintiff’s Response
that Jadwin acted Depo., to DMF 94, 101, 117, 126, 127, 133, 176. Ragland’s
2 inappropriately in several 8/22/08, retaliatory animus against Plaintiff is so extreme, it
instances. pg. 12:8- approaches hatred.
3 23
Disputed: This is pretext. On 12/26/03, Defendant County
4 increased Plaintiff’s biweekly base salary from
$10,679.43 to $11,021.08 establishing that Defendant
5 County was satisfied with Plaintiff’s performance 3 years
into his tenure. [Lee Opp. Decl., Exh. 21 (Change of
6 Employee Status of 12/26/03 at Bates DFJ00247).
a) The first incident was pg.16:15- See evidentiary objections.
7 when Jadwin, in a meeting, 16.
said Dr. Ragland was Disputed: For sake of economy, see Plaintiff’s Response
8 incompetent and shouldn’t be to DMF 94, 101, 117, 126, 127, 133, 176. Ragland had no
the medical staff president. hesitation launching more severe retaliatory attacks
9 against Plaintiff. Ragland’s retaliatory animus against
Plaintiff is so extreme, it approaches hatred.
10 b) The second incident was pgs. See evidentiary objections.
Jadwin taking over the blood 59:21-60:
11 usage committee and not 17 and Disputed: For sake of economy, see Plaintiff’s Response
letting any other physicians 86:5-25 to DMF 94, 101, 117, 126, 127, 133, 176. Ragland
12 on it. Jadwin sent Dr. spoliated the emails referenced here and testified he was
Ragland an e-mail stating never contacted by anybody with instructions not to
13 that he thought having other spoliate or to produce documents responsive to Plaintiff’s
physicians on the committee discovery requests.
14 was a waste of time because
“they will all rubber stamp
15 it.” Dr. Ragland interpreted
this to mean that Jadwin did
16 not think that anyone else at
KMC had the competence or
17 experience to sit on the
committee.
18
c) The third incident was pg. 94:16 Disputed: For sake of economy, see Plaintiff’s Response
19 Jadwin’s fighting with the 95:15 and to DMF 94, 101, 117, 126, 127, 133, 176. The
radiologists and calling them 155:2- radiologists, Ragland and Abraham numerous times aired
20 incompetent. According to 156:13 their suspicions that the Pathology department was
Dr. Ragland, Jadwin was incompetent. According to Abraham, that is what led up
21 wrong because the to the retention of David Lieu to conduct an outside
procedurist (the radiologist) review.
22 should chose the equipment
he uses (gauge of needle is See evidentiary objections.
23 an example) as that is who is
performing the task.
24
d) The fourth incident was pgs. 106: See evidentiary objections.
25 Jadwin hijacking the 18-109:
presentation at the October 14 and Disputed: For sake of economy, see Plaintiff’s Response
26 2005 oncology conference. 156:14-25 to DMF 94, 101, 117, 126, 127, 133, 176. Ragland was
not even in attendance.
27
28
16
17
18
19
20
21
22
23
24
25
26
27
28
23
24
25
26
27
28
1 150. E-mail to Peter Bryan DFJ00319 Disputed: For sake of economy, see Plaintiff’s Response
from Jadwin, dated 2/2/05, -320 to DMF 94, 101, 117, 126, 127, 133, 176. Plaintiff
2 listing his suggestions for requested his name be cleared of the radiologists’
improvement on the FNA accusations of incompetence after Dr. Lieu’s outside
3 issue. Jadwin also states that report exonerated him. That never happened. As
the radiology department was Abraham’s testimony showed, even to this day, Plaintiff’s
4 “substantially at fault” for the competence remains in question. [Lee Opp. Decl., Exh. 27
conflict between the (Abraham Depo. at 56:16-22)].
5 departments. He requested a
formal apology from the
6 radiology department to
himself and the pathology
7 department. He also
requested (in bold lettering) a
8 public announcement at the
next MEC meeting that there
9 are no quality issues
involving the pathology
10 department and Drs. Amin,
Abraham, Munoz and Naderi
11 should be forced to stand at
the podium during the
12 announcement.
13 151. Exchange of e-mails DFJ00353 Disputed: For sake of economy, see Plaintiff’s Response
between Dr. Ragland and -354 to DMF 94, 101, 117, 126, 127, 133, 176.
14 Jadwin, dated 2/25/05, in
which Jadwin complains Ragland admitted in depo that the FNA concerns Plaintiff
15 about some comments made had raised were not just a communication issue but a valid
by the radiologists at the “patient care issue” and that he had always known that
16 February QM meeting and even from the beginning. [Lee Opp. Decl., Exh. 9
informing Dr. Ragland to be (Ragland Depo. at 361:3-18)]. Yet here he is minimizing
17 prepared for Jadwin to the issue as “battling doctors” in retaliatory fashion.
request him to call for
18 supporting documentation
from radiology or announce
19 that the previous comments
were unsupported. Dr.
20 Ragland shot back his
displeasure at the continuing
21 conflict between radiology
and pathology, and stated
22 that his committee will not
become a battleground for
23 this conflict.
24
25
26
27
28
1 152. E-mail to Peter Bryan DFJ00355 Disputed: Plaintiff was making a confidential report of
and Dr. Kercher from genuine concern regarding Ragland to Bryan and Kercher.
2 Jadwin, dated 2/28/05, He expected it to be kept confidential. [Lee Opp. Decl.,
forwarding Dr. Ragland’s e- Exh. 53 (Jadwin Depo. at 618:8-9; 622:21-623:4; 621: 14-
3 mail of 2/25/05 and asserting 17)]. They had a duty to keep the report confidential.
that because of spelling, Instead, the report was leaked to Ragland, leading to
4 grammar, and syntax errors predictable escalation of animosity just prior to the
in it that Dr. Ragland may be October Conference. [Lee Opp. Decl., Exh. 9 (Ragland
5 an “impaired physician” with Depo. at 332:9-21; 333:11-17; 334:2-8)]. Amazingly,
a “level of intellectual Bryan and Kercher then turned around and chided
6 functioning well below the Plaintiff for not getting along better with Ragland.
high school graduate level”
7 and thought processes that
are “chaotic and almost
8 incoherent.” Jadwin alleges
that Dr. Ragland may have a
9 substance abuse, emotional
and/or cognitive function
10 disorder, and suggests
monitored drug testing and
11 that Dr. Ragland’s patient
care duties be monitored as
12 well.
25
26
27
28
11 154. E-mail to Dr. Kercher DFJ00427 Disputed: For sake of economy, see Plaintiff’s Response
from Jadwin, dated 6/7/05, to DMF 94, 101, 117, 126, 127, 133, 176. Kercher was
12 complaining about Dr. quick to criticize Plaintiff, but looked the other way when
Abraham’s conduct at an Abraham attacked Plaintiff in public.
13 MEC meeting and accusing
her of an “inappropriate
14 personality defect.”
15 155. E-mail to Dr. Kercher DFJ00436 Disputed: For sake of economy, see Plaintiff’s Response
from Jadwin, dated 6/27/05, to DMF 94, 101, 117, 126, 127, 133, 176. Abraham
16 demanding that Dr. Abraham harbored retaliatory animus against Plaintiff for pointing
publicly apologize to Jadwin out that the radiologists were not receptive to addressing
17 at the next MEC meeting. the FNA problem. She testified that she still questions
Plaintiff’s competence to this day, despite all the contrary
18 evidence.
7 158. Email to Peter Bryan DFJ00744 Undisputed that the document says what it says.
from Jadwin, dated 2/23/06, -745
8 following the meeting of
2/22/06 urging Bryan to take
9 the moral high ground and
called Drs. Ragland and
10 Abraham “disgruntled,
vindictive individuals.”
11
159. Exchange of e-mails DFJ00783 Disputed: As is apparent from the email of 3/24/06,
12 with Peter Bryan from Plaintiff was protesting the delay in getting temporary
Jadwin, dated 3/24/06, help hired to assist his department during his medical
13 3/27/06, 4/5/06, criticizing leave. Plaintiff’s expert, Regina Levison, stated in her
Karen Barnes for insisting on report: “According to the documents I read and my
14 vicarious liability of staffing conversations with Dr. Jadwin, it is my opinion that Kern
agency before placing a County could have arranged for locum tenens coverage
15 temporary pathologist. Also, for the Pathology Department at Kern Medical Center
Jadwin postponed his own much more quickly than they did. Kern County could
16 surgery indefinitely because have contacted several other locum tenens firms if they
his mother was ill. were not able to reach contractual agreement with
17 CompHealth or any other companies in a reasonable
amount of time…Over the past 10-15 years, I have seen it
18 become more common for organizations needing locum
tenens coverage to place the request with several locum
19 tenens search firms simultaneously. If Kern County had
followed this practice, there would have been several
20 firms working to fill the Pathology Department's need for
locum tenens coverage. Kern County would not have been
21 liable to pay every firm for recruiting for a Pathologist
locum tenens, only the firm that found the Pathologist that
22 took the assignment”. [Declaration of Regina Levison
(Doc. 268) (“Levison Decl.”), Exh. 1 at Section 5 on p.8].
23
24
25
26
27
28
21
22
23
24
25
26
27
28
7
Meeting on February 22,
8 2006
9 166. Dr. Abraham recalled Abraham See evidentiary objections.
how Jadwin insulted her and Depo.,
10 how he had insulted Dr. 8/18/08, Disputed: For sake of economy, see Plaintiff’s Response
Ragland and, in general, that pgs. to DMF 94, 101, 117, 126, 127, 133, 156, 176.
11 he managed to insult 198:24-
everyone who was there but 207: 17 Harris testified that he sincerely apologized to Plaintiff
12 she did not remember after the meeting. [Lee Opp. Decl., Exh. 24 (Harris Depo.
specific statements beyond at 199:1-6)]. He also testified that negative things were
13 those directed at her and Dr. said to Plaintiff at the meeting as well. [Id. at 232:19-21].
Ragland. Kercher was asked if he apologized to Plaintiff at the
14 meeting, and he responded “I apologize all the time,
sir…I do it all the time.” [Lee Opp. Decl., Exh. 14
15 (Kercher PMK Depo. at 93:19-24)].
16 Kercher also testified, “I don’t ever remember David
specifically treating me in a sassy, mean, horrible way…I
17 mean, he was always nice to me.” [Lee Opp. Decl., Exh.
14 (Kercher PMK Depo at 32:9-13)]. Bryan testified that
18 Plaintiff did not insult him at the meeting. [Lee Opp.
Decl., Exh. 3 (Bryan Depo at 110:11-13)]. Abraham
19 testified that Plaintiff called her a “fat doctor” but Kercher
testified “I don’t recall that comment any time”. [Lee
20 Opp. Decl., Exh. 14 (Kercher PMK Depo at 92:24-93:1)].
21 Plaintiff denied insulting anyone at the meeting. [Lee
Opp. Decl., Exh. 55 (Jadwin Depo. at 222:14-223:7;
22 223:15-17). He also confirmed that Harris and Kercher
had both apologized to him after the meeting. [Lee Opp.
23 Decl., Exh. 4 (Jadwin Depo. at 290:16-19)].
24 167. Jadwin insulted, Bryan For sake of economy, see Plaintiff’s Responses to DMF
literally, everyone at the Depo., 166 supra.
25 meeting face-to-face. 8/14/08,
pgs. 109:
26 12-111:10
27
28
1 174. E-mail from Dr. 0000507 Disputed: Defendants are quoting out of context. In that
Ragland to Peter Bryan, email exchange, Ragland specifically expressed his
2 dated 2/23/06, stating that the disdain for Plaintiff’s whistleblowing efforts: “that was
meeting with Jadwin on one of the most distasteful event I have ever participated
3 2/22/06 was “one of the most in [Plaintiff] has fixed his department so now he is going
distasteful events I have ever to fix us?” [Lee Decl., Exh. 11 (Ragland email to Bryan
4 participated in.” of 2/23/06 at 0000507)].
1 176. Exchange of e-mails DFJ01430 Disputed: For sake of economy, Plaintiff’s Response to
between Dr. Dutt and DMF 112 is incorporated in its entirety herein.
2 Jadwin, dated 11/6/06,
regarding a container of Disputed: This is pretext for retaliatory motive and
3 specimen left sitting out. To disparate treatment of Plaintiff. Dr. Mansour, an OB-
remedy the situation, Dr. GYN core physician, is a direct comparator to Plaintiff
4 Dutt instructed that only after his demotion – both reported to respective
Evangeline “Vangie” department chairs at KMC. Mansour was the subject of a
5 Gallegos was to process the staggering number of serious complaints of disruptive
placentas. behavior from 5/10/2006 to 4/12/2007. Yet, he was not
6 put on administrative leave or subjected to nonrenewal.
Harris reported in numerous memos to file that: 1)
7 Mansour had used an “angry and raised voice” at him.
[Lee Opp. Decl., Exh. 34 (Harris memos to file, Exh. 736
8 at Bates 0027083)]; 2) Roy went to Harris to “complain
about abuses by Dr. Mansour” including “ridicule and
9 criticism” and threatened to leave KMC [Id. at Exh. 740
at Bates 0027094]; 3) Harris concluded “the comments
10 made by Dr. Mansour [about Roy] were unprofessional,
inappropriate, and of malicious intent.” [Id. at Exh. 740 at
11 Bates 0027094]; 4) Harris counseled Mansour “on the
spot” regarding his inappropriate criticism of nursing staff
12 in front of residents - [Id. at Exh. 742 at Bates 0027097];
5) Harris noted that Mansour’s actions were so egregious
13 to the “NRP Team” and medical staff officers that
Ragland and Jose Perez contemplated suspending him, “if
14 for no other reason than for ‘possible assault’ on the
respiratory therapist.” [Id. at Exh. 746 at Bates 0027102];
15 6) Harris noted that he remained skeptical of Mansour’s
ability to “communicate constructively and to engender
16 the support of others with whom he works”. [Id. at Exh.
746 at Bates 0027103]; 7) Harris faulted Mansour’s
17 “communication style” as not contributing to a
“communicative, helpful, collegial, and effective
18 environment at the hospital”. [Id. at Exh. 746 at Bates
0027104]; 8) Harris noted that only once or twice had his
19 blood pressure “gotten up” at KMC but that Mansour had
become “truly exasperating” and that Mansour “can never
20 be legitimately criticized, because anyone who would
criticize him would have to be out to get him”. [Id. at Exh.
21 746 at Bates 0027104]; 9) Harris noted that he and
Culberson presented to Mansour five complaints of
22 quality concerns and one patient complaint. [Id. at Exh.
747 at Bates 0027105]; 10) Mansour responded that “all
23 of this is a remnant of Peter Bryan. It was Mansour who
got rid of Peter Bryan”. [Id. at Exh. 747 at Bates
24 0027106]; 11) Harris noted a complaint that Mansour had
improperly thrown surgical instruments. [Id. at Exh. 749
25 at Bates 0027109].
1 177. E-mail from Evangeline 0000824 Disputed: Dutt himself was the target of complaints
“Vangie” Gallegos to Dr. within the Pathology department. Yet he was not
2 Dutt, dated 11/6/06, thanking subjected to disciplinary action. As late as 2/6/07, Harris
him for his support and noted in his memos to file that Dutt himself had not
3 complaining about Jadwin “embraced the broad support of the pathology department
interfering in her work area and lab” and has been the target of complaints from other
4 and “creating more work for medical staff members in the pathology department.
everybody.” She asked if she Harris decided Dutt should not be promoted from Acting
5 could go home early as she to full Chair of Pathology until he could demonstrate
was feeling sick. “those administrative demeanors desired of a Chair under
6 conditions of lower environmental stress.” [Lee Opp.
Decl., Exh. 34 (Harris memos to file, Exh. 745 at Bates
7 0027100-27101].
1 180. E-mail from Dr. Dutt to DFJ01448 For sake of economy, see Plaintiff’s Responses to DMF
Jadwin, dated 11/22/06, (0000850) 176 and 177 supra, which are incorporated in their
2 discussing their disagreement entirety herein.
on the necessity for
3 privileges for FNA and the See evidentiary objections.
necessity for proctoring.
4 Disputed: Plaintiff disputes this account by Dutt. [Jadwin
Opp. Decl., para. 14].
5
181. E-mail from Dr. Dutt to DFJ01449 For sake of economy, see Plaintiff’s Responses to DMF
6 Jadwin, dated 11/22/06, (000085]) 176 and 177 supra, which are incorporated in their
reminding him of a rush case entirety herein.
7 that Jadwin failed to process
promptly and counseling See evidentiary objections.
8 Jadwin to remember it when
criticizing others. Disputed: Plaintiff disputes this account by Dutt. [Jadwin
9 Opp. Decl., para. 15].
10 182. E-mail from Dr. Dutt to 0000827 For sake of economy, see Plaintiff’s Responses to DMF
Jadwin, dated 12/4/06, 176 and 177 supra, which are incorporated in their
11 chastising Jadwin for entirety herein.
criticizing Dr. Shertukde’s
12 diagnosis without consulting See evidentiary objections.
others first; chastising him
13 for refusing to get outside Disputed: Plaintiff disputes this account by Dutt. [Jadwin
consult on a hard case; and Opp. Decl., para. 16].
14 chastising him for failing to
remove the sharps from the
15 cutting area when he was
done.
16
a) Minutes of the meeting of 0000899 For sake of economy, see Plaintiff’s Responses to DMF
17 the pathology/histology 176 and 177 supra, which are incorporated in their
department on 10/17/06. It entirety herein.
18 was noted that Dr. Shertukde
was concerned that blades See evidentiary objections.
19 were not being removed once
grossing was done. She and Disputed: Plaintiff disputes this account by Dutt. [Jadwin
20 Dr. Dutt remove and discard Opp. Decl., para. 16].
the blades immediately.
21
b) E-mail from Dr. Dutt to 0000862 For sake of economy, see Plaintiff’s Responses to DMF
22 Yolanda Figueroa, dated 176 and 177 supra, which are incorporated in their
12/7/06, acknowledging her entirety herein.
23 report that Jadwin had left
two long blades and a scalpel Disputed: Figueroa disputes this hearsay account reported
24 out after he was finished. by Dutt. [Jadwin Opp. Decl., para. 6].
25 See evidentiary objections.
26
27
28
1 183. E-mail from Dr. Dutt to DFJ01465 For sake of economy, see Plaintiff’s Responses to DMF
Jadwin, dated 12/5/06, (0000856) 176 and 177 supra, which are incorporated in their
2 regarding Jadwin’s entirety herein.
uncooperativeness with him
3 and general failure to adhere See evidentiary objections.
to a chain of command.
4 Disputed: Plaintiff disputes this account by Dutt. [Jadwin
Opp. Decl., para. 17].
5
184. E-mails between Dr. DFJ01476 For sake of economy, see Plaintiff’s Responses to DMF
6 Dutt and Jadwin, dated -1478 176 and 177 supra, which are incorporated in their
12/6/06, arguing over a (0000857- entirety herein.
7 criticism Jadwin made of a 858)
diagnosis that Dr. Shertukde See evidentiary objections.
8 did and involving alleged
defamatory and retaliatory Disputed: Plaintiff disputes this account by Dutt. [Jadwin
9 statements made by Jadwin. Opp. Decl., para. 18].
Dr. Dutt tells Jadwin that
10 people are afraid of him
because of his hostility and
11 that it is Jadwin’s fault for
how he treats others.
12
185. E-mail from Dr. Dutt to 0001466 For sake of economy, see Plaintiff’s Responses to DMF
13 David Culberson, dated 176 and 177 supra, which are incorporated in their
12/6/06, stating that he had entirety herein.
14 counseled Jadwin for not
sending out a case for See evidentiary objections.
15 consultation that, in fact,
turned out to be a missed Disputed: Plaintiff disputes this account by Dutt. [Jadwin
16 endometrial cancer and now Opp. Decl., para. 19].
Jadwin was pushing a lot of
17 cases out for consultation,
burdening the staffs time and
18 budget.
19 186. E-mail from Dr. Dutt to 0000863 For sake of economy, see Plaintiff’s Responses to DMF
Jadwin, dated 12/7/06, 176 and 177 supra, which are incorporated in their
20 chastising him for entirety herein.
commanding Yolanda to
21 treat the placentas when in Disputed: Figueroa disputes this hearsay account reported
his e-mail of 11/6/06 by Dutt. [Jadwin Opp. Decl., para. 20].
22 (0000825 above) specifically
said that only Vangie was to See evidentiary objections.
23 work with placentas.
24 187. Jadwin was Dutt For sake of economy, see Plaintiff’s Responses to DMF
uncooperative after returning Depo., 176 and 177 supra, which are incorporated in their
25 from leave. He was asked 8/20/08, entirety herein.
specifically to resume doing pg.
26 the blood bank reviews and 284:25- See evidentiary objections.
he did not do them. 285:5
27 Disputed: Plaintiff disputes this account by Dutt. [Jadwin
Opp. Decl., para. 21].
28
1 188. Dr. Dutt, acting Chair of Dutt For sake of economy, see Plaintiff’s Responses to DMF
the Pathology Department Depo., 176 and 177 supra, which are incorporated in their
2 had concerns that Jadwin was 8/20/08, entirety herein.
creating a hostile work pgs.
3 environment. This prompted 286:6- See evidentiary objections.
meetings with Dr. Perez, 289: 1;
4 David Culberson, and Dr. 290:14-20 Disputed: Plaintiff disputes this account by Dutt. [Jadwin
Harris. Opp. Decl., para. 22].
5
189. Dr. Dutt would try to Dutt For sake of economy, see Plaintiff’s Responses to DMF
6 counsel Jadwin one-on-one Depo., 176 and 177 supra, which are incorporated in their
but Jadwin would avoid the 8/20/08, entirety herein.
7 conversation. He would pgs.296:2
make an excuse to leave the 0-297:13 See evidentiary objections.
8 room or leave the hospital.
Because Jadwin made it Disputed: Plaintiff disputes this account by Dutt. [Jadwin
9 difficult for Dr. Dutt to talk Opp. Decl., para. 23].
to him, Dr. Dutt had no
10 alternative but to send his
concerns about Jadwin’s
11 work to the Peer Review
Committee.
12
190. E-mail to Dr. Dutt from DFJ01479 Undisputed.
13 Jadwin, dated 12/6/06, with -1480
copies to David Culberson,
14 Dr. Harris and Karen Barnes,
alleging that he has been
15 “singled out for non-
transparent ‘PCC r review’”
16 as well as personal attacks,
and he requests the KMC
17 administration to initiate a
formal review.
18
19
20
21
22
23
24
25
26
27
28
1
Π’S MATERIAL FACTS (“PMF”) Π’S SOURCE
2 2
3 3 A. INTRODUCTION
4 4
5 5 Plaintiff is the former Chief of Pathology at Kern Medical Supplemental Decl. of Eugene
Center (“KMC” or “the hospital”), an acute care teaching Lee in Support of Plaintiff’s
6 hospital and health care facility that is owned and operated Motion for Summary Judgment
by Defendant County of Kern (“Defendant County” or “the (“Lee Supp. Decl.”, Doc. 267),
7 County”). Exh. 19 (Scheduling Order
(“SCO”) at 8:2-4); Exh. 20 (RFA
8 No. 18 at 5:7-10, RFA No. 19 at
13-15; RFA No. 24 at 6:7-10).
9
10
11
12
13 6
14 7 B. STATEMENT OF FACTS
15 8 In October 2000, Dr. Jadwin began full-time employment at Lee Supp. Decl. (Doc. 267), Exh.
KMC as chair of the pathology department. Plaintiff was an 19 (Scheduling Order (“SCO”) at
16 employee of Defendant County from October 24, 2000 to 8:2-4), Decl. of Eugene Lee in
October 4, 2007. Support of Plaintiff’s Motion
17 for Summary Judgment (“Lee
Decl.”, Doc. 266) Exh. 22
18 (Amendment 1 to Jadwin
Employment Contract of
19 11/12/02 at (a) on DFJ1416)
20 9 Throughout the course of his employment at KMC, Dr. Lee Supp. Decl. (Doc. 267), Exh.
Jadwin tried to ensure that patient care was based on 10 (Bryan’s Letter to Supervisors
21 adequate and accurate pathology. of 1/17/06 at No. 10 on 0001567)
22
10 In May 2005, Dr. Jadwin began formally expressing his Decl. of David F. Jadwin in
23 concerns that KMC was not complying with state Support of Plaintiff’s Motion
regulations regarding blood transfusion documentation. for Summary Judgment
24 (“Jadwin Decl.” Doc. 265), Exh.
2 (Jadwin Email to Ramos-
25 Aninion of 5/19/05 at DFJ00407)
26
27
28
1 11 In October 2005, Dr. Jadwin presented at an intra-hospital Jadwin Decl. (Doc. 265), Exh. 2
conference where he reported on uncaught pathology report (Presentation at DFJ481-484,
2 errors that potentially jeopardized the care of a 494-495)
hysterectomy patient and the need for a policy to address
3 the problem.
4
5 12 Defendants responded by calling him into a meeting, Lee Decl. (Doc. 266), Exh. 4
severely reprimanding him, and informing him that letters (Taylor Letter to Harris of
6 of reprimand would be placed in his physician credentials 10/12/05 at DFJ00580); Exh. 5
file. (McBride Letter to Harris of
7 10/12/055 at DFJ00581); Exh. 6
(Roy Letter to Harris of 10/12/05
8 at DFJ00583); Exh. 7 (Kercher et
al Letter to Jadwin of 10/17/05 at
9 DFJ00588))
10
11
13 Defendants’ retaliatory conduct exacerbated Dr. Jadwin’s Lee Decl. (Doc. 266) Exh. 9
12 chronic depression and proved so disabling that, at the end (Jadwin’s Letter to Bryan of
of 2005, he was forced to take a reduced work schedule 1/9/06 at 0001140); Decl. of Paul
13 medical leave as an accommodation and seek psychiatric Riskin, M.D. Authenticating
therapy. Documents (“Riskin Decl.”, Doc.
14 270) (Certification of 1/13/06 at
DFJ1810); Lee Supp. Decl. (Doc.
15 267), Exh. 8 (Jadwin Depo. at
495:2-496:20)
16
17 14 In April 2006, Dr. Jadwin requested an extension of his Jadwin Decl. (Doc. 265), Exh. 6
reduced work schedule leave. (Jadwin’s Request for Leave
18 Extension of 4/26/06 at
DFJ00157), Exh. 4 (Jadwin’s
19 Email to Bryan, Chester, & Dutt
of 3/16/06 at DFJ00752)
20
21
15 On April 28, 2006, Defendant Bryan responded by placing Lee Supp. Decl. (Doc. 267), Exh.
22 him on full-time “personal necessity leave” under the 22 (Rog. No. 36, 27:1-4); Lee
County’s leave policy and, a few months later, ordered him Decl. (Doc. 266), Exh. 14
23 not to contact anybody at KMC or he would be fired (Bryan’s Memo to Jadwin of
(“Forced FT Leave”). 4/28/06 at DFJ01152, DFJ01155-
24 1159, DFJ01164); Lee Decl.
(Doc. 266), Exh. 16 (Nunn’s
25 Cover Email to Jadwin of 6/26/06
at DFJ01346)
26
27
28
1 16 On June 14, 2006, Defendant Bryan told Dr. Jadwin that he Lee Decl. (Doc. 266), Exh. 15
had decided to “rescind your appointment as chairman” and (Bryan’s Letter to Jadwin of
2 that “This decision is effective June 17, 2006”. 6/14/06 at DFJ01181)
3
17 On July 10, 2006, Defendant Bryan recommended to Lee Decl. (Doc. 266), Exh. 18
4 KMC’s Joint Conference Committee (“JCC”) that Plaintiff (Bryan’s Memo to JCC of
be removed from his position as Chair of the pathology 7/10/06 at 0001476-77); Lee
5 department “based on Dr. Jadwin’s unavailability for Supp. Decl. (Doc. 267), Exh. 21
service because of extended medical leaves for non-work (Rog No. 37 at 51:20-23); Lee
6 related ailments” and “solely based on his continued non- Supp. Decl. (Doc. 267), Exh. 22
availability to provide the leadership necessary for a (Rog. No. 37, 27:9-11)
7 contributing member of the medical staff leadership
group..Dr. Jadwin has provided no indication that he is
8 committed to return to work or resume his duties as chair.
Other than his latest written communication requesting an
9 extension of his medical leave, Dr. Jadwin has made no
attempt in the last two months to contact me concerning his
10 employment status or how the Department of Pathology
should be managed during his absence”.
11
12
13
14
15
16
17
18 18 At a meeting of the JCC on July 10, 2006, Defendant Lee Supp. Decl. (Doc. 267), Exh.
County approved the demotion of Plaintiff from chair of the 14 (Watson Depo. at 113:15-
19 pathology department for “unavailability”. Members of the 114:4); Lee Decl. (Doc. 266),
JCC based their vote on his unavailability due in part to his Exh. 17 (JCC Minutes of 7/10/06
20 medical leave. at 0009819-21); Lee Decl. (Doc.
266), Exh. 18 (Bryan’s Memo to
21 JCC of 7/10/06 at 0001476-77)
22
23 19 Defendant County then conditioned Dr. Jadwin’s return to Lee Supp. Decl. (Doc. 267), Exh.
work as a regular pathologist on his medical release to full 21 (Rog1 No. 33 at 50:16-26;
24 time work and entry into an amendment to his contract that Rog1 Nos. 38-41 at 51:26-52:23);
contained restrictive terms and conditions and reduced Dr. Lee Decl. (Doc. 266), Exh. 22
25 Jadwin’s base pay from roughly $300,000 to $200,000. (Amendment 1 to Jadwin
Employment Contract of
26 11/12/02 at (a) & (f) on DFJ1416,
(i) on DFJ1417, & DFJ1420 at
27 “Assignments”)
28
1 20 When demoting Dr. Jadwin, Defendants Bryan and the Jadwin Decl. (Doc. 265), para 9)
County did not notify Dr. Jadwin of the hospital committee
2 vote to demote him or give him a chance to defend himself
prior to, at or after the vote.
3
4
21 On his return to work as a demoted pathologist in late 2006, Lee Supp. Decl. (Doc. 267), Exh.
5 Dr. Jadwin was placed beneath a former subordinate whom 19 (SCO at 9:10-11); Lee Supp.
he had hired and trained the year before. Decl. (Doc. 267), Exh. 22 (Rog.
6 No. 10, 4:10-11)
7
8
22 After about two months, Dr. Jadwin decided to go outside Jadwin Decl. (Doc. 265), Exh. 8
9 the hospital and report his ongoing suspicions of legal (JCAHO’s Email to Jadwin of
noncompliance and illegal and/or unsafe care and 11/29/06 at DFJ01454); Exh. 9
10 conditions of patients at KMC to regulatory and (DHS Letter to Jadwin of
accreditation agencies, as well as KMC senior management. 12/1/06); Exh. 12 (Jadwin Decl.
11 (Doc. 265), Exh. 12 (Jadwin’s
Email to CAP of 1/15/07 at
12 DFJ02463-DFJ02499)
13
14 23 Plaintiff also complained to KMC’s senior management Jadwin Decl. (Doc. 265), Exh. 11
about the harsh treatment he was receiving. (Jadwin Email to Culberson of
15 12/13/06 at DFJ01488-DFJ1491)
16
17 24 The following day, on December 7, 2006, Defendant Lee Supp. Decl. (Doc. 267), Exh.
County placed Dr. Jadwin on administrative leave “pending 21 (Rog1 No. 42 at 52:24-53:1);
18 resolution of a personnel matter.” Lee Decl. (Doc. 266), Exh. 24
(Culberson Letter to Jadwin of
19 12/7/06 at DFJ01482)
20 25 The leave denied Plaintiff the opportunity to earn patient- Decl. of Stephanie Rizzardi in
based professional fees, which had amounted to roughly Support of Plaintiff’s Motion for
21 $100,000 per year (“Professional Fees”) prior to his taking Summary Judgment (“Rizzardi
of reduced work schedule leave. Decl.”, Doc. 271), Exh. 1, Table
22 7; Jadwin Decl. para 14
23
26 Dr. Jadwin formally notified KMC of his whistle-blowing Jadwin Decl. (Doc. 265), Exh. 10
24 reports to the outside regulatory and accreditation agencies. (Jadwin Letter to Culberson of
12/6/06 at DFJ01488-91)
25
26
27
28
1 27 Dr. Jadwin remained on administrative leave for another ten Lee Decl. (Doc. 266), Exh. 22
months until his contract expired on October 4, 2007. (Amendment 1 to Jadwin
2 Employment Contract of
11/12/02 at (a) on DFJ1416);
3 Jadwin Decl. para 12
4 28 During six of those months, Dr. Jadwin was physically Lee Supp. Decl. (Doc. 267), Exh.
restricted to his home during work hours. 5 (Wasser Letter to Lee of
5 4/30/07 at DFJ01701)
6 29 The county decided not to renew Dr. Jadwin’s contract, Lee Supp. Decl. (Doc. 267), Exh.
which expired on October 4, 2007. 14 (Watson Depo. at 113:15-
7 114:4);Lee Decl. (Doc. 266),
Exh. 22 (Amendment 1 to Jadwin
8 Employment Contract of
11/12/02 at Recital (a))
9
10 30 From October 2000 to the present, KMC – a hospital with Lee Supp. Decl. (Doc. 267), Exh.
roughly 60 full-time faculty physicians – had failed to 22 (Rog. No. 28, 20:8-21)
11 renew the contract of only 1 other KMC physician.
12
13 31 Plaintiff’s position had been that of a permanent, core Lee Supp. Decl. (Doc. 267), Exh.
physician, whose contracts are customarily renewed. 10 (Bryan Depo, 39:6-8); Lee
Decl. (Doc. 266), Exh. 2 (Jadwin
14 Employment Contract, p.1);
Jadwin Decl. para 7
15
16 32 Defendant County based its nonrenewal decision on Dr. Lee Decl. (Doc. 266), Exh. 18
Jadwin’s medical and recuperative leave, and the fact he (Bryan’s Memo to JCC of
had brought a lawsuit opposing employment practices 7/10/06 at 0001476-77)
17 prohibited by the Family & Medical Leave Act (“FMLA”),
the California Family Rights Act (“CFRA”), and the Fair
18 Employment & Housing Act (“FEHA”).
19
20
21
22 33 To this day, Dr. Jadwin has not personally received an Jadwin Decl. (Doc. 265), para 13
explanation from Defendants as to why he was placed on
23 administrative leave or why his contract was not renewed,
despite repeated requests for an explanation. Defendants
24 never notified Dr. Jadwin of the charges against him or
permitted him to defend himself.
25
26
27
34
28
1 35 B. THRESHOLD ISSUES
2 36 During the entire tenure of Plaintiff’s employment, Lee Supp. Decl. (Doc. 267), Exh.
Defendant County was continuously an employer within the 19 (SCO at 6:25-7:3)
3 meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Gov’t
C. § 12945.2 (b)(2)], and FEHA [Gov’t C. § 12926(d)]
4 engaged in interstate commerce, and regularly employing
more than fifty employees within seventy-five miles of
5 Plaintiff’s regular workplace at KMC.
6
7
8
9 37 Defendant County is a government agency. Lee Supp. Decl. (Doc. 267), Exh.
20 (RFA No. 20, 5:16-19)
10
11
38
12
39 1. Threats to Plaintiff’s Credentials
13
40 On October 12, 2005, Defendant Harris solicited and Lee Decl. (Doc. 266), Exh. 4
14 received letters of dissatisfaction from three KMC core (Taylor Letter to Harris of
physicians, criticizing Dr. Jadwin’s presentation at a KMC 10/12/05 at DFJ00580); Exh. 5
15 monthly Oncology Conference. (McBride Letter to Harris of
10/12/055 at DFJ00581); Exh. 6
16 (Roy Letter to Harris of 10/12/05
at DFJ00583); Exh. 7 (Kercher et
17 al Letter to Jadwin of 10/17/05 at
DFJ00588))
18
19
20 41 On October 17, 2005, KMC’s senior medical staff wrote to Lee Decl. (Doc. 266), Exh. 7
Dr. Jadwin notifying him that these letters of dissatisfaction (Kercher et al Letter to Jadwin of
21 would be placed in his credentialing file (“Credential 10/17/05 at DFJ00588)
Threat”).
22
23
42 Some of the medical staff involved later apologized to Dr. Lee Decl. (Doc. 266), Exh. 12
24 Jadwin. (Bryan Letter to Jadwin of
4/17/06 at DFJ00794
25
43
26
44 2. Demotion & Pay Cut
27
28
1 45 Dr. Jadwin’s employment contract expressly provided that Lee Supp. Decl. (Doc. 267), Exh.
Dr. Jadwin would be chair of the KMC pathology 20 (RFA No. 243 at 49:22-27)
2 department and paid base compensation of $287,529 (“Base
Pay”).
3
4
46 On July 10, 2006, Bryan recommended and the JCC Lee Supp. Decl. (Doc. 267), Exh.
5 approved Jadwin’s demotion from department chair to staff 20 (RFA No. 229 at 47:4-9); Lee
pathologist (“Demotion”). Supp. Decl. (Doc. 267), Exh. 20
6 (RFA No. 228 at 46:27-47:1)
7
8
9
10
47 It is uncontested that Defendants considered a portion of Lee Supp. Decl. (Doc. 267), Exh.
Dr. Jadwin’s pay to be tied to his chair position, and that 20 (RFA No. 228 at 58:6-10);
11 the demotion therefore made the paycut a foregone Lee Supp. Decl. (Doc. 267), Exh.
conclusion. The JCC vote to demote Plaintiff was 21 (Rog No. 11 at 13:10-21); Lee
12 effectively a vote to reduce his Base Pay as well. Supp. Decl. (Doc. 267), Exh. 3
(Barnes Letter to Lee of 9/15/06
13 at DFJ1390); Lee Decl. (Doc.
266), Exh. 22 (Amendment No. 1
14 to Employment Contract dated
10/3/06 at (a) & (f) on DFJ01416,
15 (i) on DFJ01417)
16
48 Defendants County and Harris informed Dr. Jadwin that his Lee Supp. Decl. (Doc. 267), Exh.
17 return to work at KMC was conditioned on his entry into an 20 (RFA No. 246 at 50:12-16)
amendment to his employment contract, instituting a
18 reduction in Base Pay from $287,529 to $186,687
(“Paycut”).
19
20
49 On October 3, 2006, Plaintiff executed the amendment to Lee Decl. (Doc. 266), Exh. 22
21 his employment contract. (Amendment No. 1 to
Employment Contract dated
22 10/3/06 at DFJ01418)
23 50
24 51 3. Administrative Leave
25 52 A pathologist is valued according to the efficacy of his Decl. of Regina Levison in
“eye”, i.e., the training and experience that allows him to Support of Plaintiff’s Motion
26 spot minute patterns and telltale abnormalities in for Summary Judgment
microscopic and gross tissue samples. (“Levison Decl.”, Doc. 268) Exh.
27 1 At p 6
28
1 53 Developing and maintaining the pathologist “eye” requires Levison Decl. (Doc. 268), Exh. 1
years of daily pathology work; however, it takes only a few At p 6
2 months of being away from work to lose enough efficacy to
threaten a pathologist’s career.
3
4
54 Moreover, Dr. Jadwin’s contract expressly provided that he Lee Decl. (Doc. 266), Exh. 2
5 was to earn patient billing-based professional fees, separate (Jadwin Employment Contract of
and apart from his fixed Base Pay. 11/12/02 at No. 4 on DFJ00156-
6 157)
7 55 In order to earn Professional Fees, Dr. Jadwin needed to Lee Decl. (Doc. 266), Exh. 2
process and bill patient cases. (Jadwin Employment Contract of
8 11/12/02 at No. 4 on DFJ00156-
157 (“direct patient
9 care”…through “an agreement
for services with the County”);
10 Jadwin Decl. para 14
11
12 56 Restriction to his workplace at KMC by placement on leave Lee Decl. (Doc. 266), Exh. 2
denied him the opportunity to earn such fees. (Jadwin Employment Contract of
11/12/02 at No. 4 on DFJ00156-
13 157 (“direct patient
care”…through “an agreement
14 for services with the County”)
15
16
57 Dr. Jadwin’s professional fee income amounted to Rizzardi Decl. (Doc. 271), Exh.
17 approximately $100,000 per year. 1, Table 7; Jadwin Decl. para 14
18
58 On December 7, 2006, Defendant County placed Plaintiff Lee Supp. Decl. (Doc. 267), Exh.
19 on paid administrative leave “pending resolution of a 20 (RFA No. 252 at 51:16-20);
personnel matter” (“Admin Leave”). Lee Supp. Decl. (Doc. 267), Exh.
20 22 (Rog. No. 42, 28:3-9); Lee
Decl. (Doc. 266), Exh. 24
21 (Culberson Letter to Jadwin of
12/7/06 at DFJ01482)
22
59 Defendant County further ordered Plaintiff to “remain at Lee Decl. (Doc. 266), Exh. 24
23 home and available by telephone during normal business (Culberson Letter to Jadwin of
hours” and not to contact anyone at KMC, else he could be 12/7/06 at DFJ01482)
24 terminated. There was no further indication of what
Plaintiff was being charged with, whether he would be
25 permitted to respond to charges, or when the leave would
end.
26
27
28
2
61 On April 4, 2007, Plaintiff notified Defendant County that Lee Supp. Decl. (Doc. 267), Exh.
3 the long leave was exacerbating his depression, eroding his 4 (Lee Letter to Barnes of 4/4/07
pathology skills and employability, and denying him the at DFJ01619)
4 opportunity to earn professional fees.
5
6
62 On April 30, 2007, Defendant County informed Dr. Jadwin Lee Supp. Decl. (Doc. 267), Exh.
7 that he remained on administrative leave but removed the 22 (Rog. No. 43, 28:10-16); Lee
home restriction. Supp. Decl. (Doc. 267), Exh. 5
8 (Wasser Letter to Lee of 4/30/07
at DFJ01701)
9
63 On May 1, 2007, Defendant County informed Dr. Jadwin Lee Supp. Decl. (Doc. 267), Exh.
10 that they intended to keep Dr. Jadwin on leave and “let his 21 (Rog No. 43 at 53:3-9); Lee
contract run out”. Supp. Decl. (Doc. 267), Exh. 22
11 (Rog. No. 44, 28:17-22); Lee
Supp. Decl. (Doc. 267), Exh. 6
12 (Wasser Email to Lee of 5/1/07 at
DFJ01705)
13
14
15
16
17
18
19
64 Dr. Jadwin remained on administrative leave until his Lee Decl. (Doc. 266), Exh. 22
employment contract expired on October, 4, 2007. (Amendment 1 to Jadwin
20 Employment Contract of
11/12/02 at (a) on DFJ01416, (i)
21 on DFJ01417; Jadwin Decl. (Doc.
265), para. 12
22
23 65
24 66 4. Nonrenewal
25 67 Supervisor Ray Watson, then-Chair of the Board of Lee Supp. Decl. (Doc. 267), Exh.
Supervisors, voted as a member of the JCC to demote Dr. 14 (Watson Depo. at 113:15-
26 Jadwin and effectively cut his pay, and also participated in 114:4)
the decision not to renew Plaintiff’s employment contract
27
28
1 68 Ray Watson, Chair of the Board Supervisors at the time of Lee Supp. Decl. (Doc. 267), Exh.
the Nonrenewal, testified in Depo.: “My understanding was 14 (Watson Depo. at 113:15-
2 that [Plaintiff] had -- he had been on medical leave, family 114:4)
leave, and had requested even more leave, and that for that
3 reason and the fact that he was suing us, that we decided
not to renew his contract.” (“Nonrenewal”).
4
5
6
7 69 Moreover, Dr. Jadwin was a “core physician” at KMC, a Lee Supp. Decl. (Doc. 267), Exh.
permanent position. 10 (Bryan Depo, 39:6-8); Lee
8 Decl. (Doc. 266), Exh. 2 (Jadwin
Employment Contract, p.1);
9 Jadwin Decl. para 7
10
70 There was a mutually explicit understanding that, as a core Lee Supp. Decl. (Doc. 267), Exh.
11 physician, Plaintiff’s contract would be continuously 10 (Bryan Depo, 39:6-8); Jadwin
renewed. Decl. para 7; Lee Supp. Decl.
12 (Doc. 267), Exh. 22 (Rog. No. 28,
20:8-21)
13
71 In fact, from October 2000 to present, only one other Lee Supp. Decl. (Doc. 267), Exh.
14 physician besides Dr. Jadwin has not had his contract 20 (RFA No. 275 at 55:22-26)
renewed.
15
16
17 72
18 73 D. CAUSATION
19 74 Credential Threat was a substantial cause of Dr. Jadwin’s Decl. of Anthony Reading,
emotional distress leading to recurrence of his chronic Ph.D. (“Reading Decl.”, Doc.
20 major depressive disorder. 269) Exh. 1, p. 58 - 59 at Overall
Conclusions
21
22
75 Credential Threat was a substantial cause of Dr. Jadwin’s Reading Decl. (Doc. 269), Exh. 1,
23 reduced work schedule medical/recuperative leave and loss p. 58 - 59 at Overall Conclusions;
of opportunity to earn Professional Fees from December 16, Supplemental Decl. of David F.
24 2005 to on or around April 28, 2006. Jadwin in Support of Plaintiff’s
Motion for Summary Judgment
25 (“Jadwin Supp. Decl.” Doc. 272)
5, 6
26
27
28
1 76 Forced FT Leave was a substantial cause of Dr. Jadwin’s Reading Decl. (Doc. 269), Exh. 1,
emotional distress, leading to worsening of Dr. Jadwin’s p. 59-60 at Overall Conclusions;
2 major depression. Jadwin Supp. Decl. 6
3
4 77 Forced FT Leave was a substantial cause of Plaintiff’s loss Lee Decl. (Doc. 266), Exh. 2
of opportunity to earn Professional Fees as provided for in (Jadwin Employment Contract, at
5 his employment contract from on or around April 28, 2006 DFJ00154, 156); Jadwin Supp.
to June 17, 2006. Decl. 6
6
7
78 Demotion and Paycut were substantial causes of Dr. Reading Decl. (Doc. 269), Exh. 1,
8 Jadwin’s emotional distress, leading to worsening of Dr. p. 58 - 59 at Overall Conclusions
Jadwin’s major depression.
9
10
11 79 Demotion and Paycut were substantial causes of Base Pay Lee Decl. (Doc. 266), Exh. 22
reduction from $287,529 to $186,687 from October 3, 2006 (Amendment 1 to Lee Decl.
12 onward. (Doc. 266)); Exh. 2 (Jadwin
Employment Contract of
13 11/12/02 at (i) on DFJ1417)
14 80 Demotion and Paycut were substantial causes of Levison Decl. (Doc. 268), Exh. 1
termination of Plaintiff’s career as a pathology department At p 6
15 chair due to unemployability.
16
17 81 Admin Leave, during 5 months of which Plaintiff was Reading Decl. (Doc. 269), Exh. 1,
restricted full-time to his home, was a substantial cause of p. 59-60 at Overall Conclusions
Dr. Jadwin’s emotional distress, leading to worsening of
18 Dr. Jadwin’s major depression.
19
20 82 Admin Leave was a substantial cause of Plaintiff’s loss of Lee Decl. (Doc. 266), Exh. 22
opportunity to earn Professional Fees as provided for in his (Amendment 1 to Jadwin
21 employment contract from on or around December 7, 2006 Employment Contract of
to October 4, 2007 11/12/02 at (i) on DFJ1417);
22 Jadwin Decl. (Doc. 265), para 14
23
83 Admin Leave was a substantial cause of loss of Plaintiff’s Levison Decl. (Doc. 268), Exh. 1
24 pathologist “eye”, causing him to become unemployable as At p 6
a pathologist.
25
84 Nonrenewal was a substantial cause of Dr. Jadwin’s Reading Decl. (Doc. 269), Exh. 1,
26 emotional distress, leading to worsening of Dr. Jadwin’s p. 59-60 at Overall Conclusions
major depression.
27
28
1 85 Nonrenewal was a substantial cause of Plaintiff’s lost Base Lee Decl. (Doc. 266), Exh. 2
Pay of $186,687 and Professional Fees of roughly $100,000 (Jadwin Employment Contract of
2 per year, as provided for in his employment contract, from 11/12/02 at No. 4 on DFJ00156-
on or around October 4, 2007 onward. 157); Lee Decl. (Doc. 266), Exh.
3 22 (Amendment 1 to Jadwin
Employment Contract of
4 11/12/02 at (i) on DFJ1417)
5
6 86
7 87 E. COUNTS 2&3: DEFENDANT COUNTY’S
8 WHISTLEBLOWER RETALIATION
9
88 1. Oncology Conference
10
89 Dr. Jadwin made a protected report to KMC’s medical staff Jadwin Decl. (Doc. 265), Exh. 2
11 leadership about (a) the medical appropriateness of a (Presentation at DFJ481-484,
radical hysterectomy for a KMC patient (Patient No. 494-495)
12 1142693) based on inaccurate outside pathology reports –
which case was the subject of Plaintiff’s presentation at the
13 monthly KMC oncology conference held on October 12,
2005 (“October Conference”) – and (b) the unsafe
14 conditions created for other patients by the lack of a KMC
policy requiring internal pathology review of all outside
15 pathology reports prior to treatment (“IPR”).
16
17
18
19
20 90 Defendant County knew of Dr. Jadwin’s whistleblowing Lee Decl. (Doc. 266), Exh. 7
report at the October Conference since Defendant Harris, (Kercher et al Letter to Jadwin of
21 then-CMO of KMC, and Jennifer Abraham, then- 10/17/05 at DFJ00588)
Immediate Past President, were in attendance.
22
23
24
25
26
27
28
1 91 Each of the letters of reprimand which Defendant County Lee Decl. (Doc. 266), Exh. 4
decided to place into Plaintiff’s medical credential file (Taylor Letter to Harris of
2 specifically reference Dr. Jadwin’s presentation at the 10/12/05 at DFJ00580); Exh. 5
October Conference. (McBride Letter to Harris of
3 10/12/055 at DFJ00581); Exh. 6
(Roy Letter to Harris of 10/12/05
4 at DFJ00583); Exh. 7 (Kercher et
al Letter to Jadwin of 10/17/05 at
5 DFJ00588)
6
7
92
8
93 2. PCCs
9
94 On January 9, 2006, Dr. Jadwin made a protected report to Lee Decl. (Doc. 266), Exh. 9
10 Bryan regarding KMC’s noncompliance with state (Jadwin’s Letter to Bryan of
regulations regarding blood transfusion related 1/9/06 at 0001141)
11 documentation called product chart copies (“PCCs”),
jeopardizing patient safety.
12
13
95 Improper documentation of blood transfusions creates Jadwin Supp. Decl. (Doc. 272),
14 patient risk of morbidity and mortality. para 3
15
16 96 Dr. Jadwin reasonably suspected that KMC’s ongoing Jadwin Decl. (Doc. 265), Exh. 12
failure to maintain accurate and complete records of patient (Jadwin’s Email to CAP of
blood transfusions did not comply with H&S § 1602.5, 1/15/07 at DFJ02499); Jadwin
17 which requires PCC documentation to conform to AABB Decl. (Doc. 265), Exh. 13
accreditation standards. (DHS’s Fax to Jadwin of 8/11/08
18 at E264 on pages 2-4 (finding
almost 50% noncompliance at
19 KMC)); Jadwin Supp. Decl.
(Doc. 272), Exh. 1 at DFJ793
20
21 97 During his reduced work schedule medical leave, Dr. Jadwin Decl. (Doc. 265), Exh. 12
Jadwin audited PCCs, and continued to report (Jadwin’s Email to CAP of
noncompliant incomplete or missing PCCs to Defendant 1/15/07 at both DFJ02463-
22 Bryan, Toni Smith, KMC Nurse Executive, and Risk DFJ02499); pages in between
Management and Quality Assurance through at least April show Dr. Jadwin’s audits of
23 17, 2006, when Plaintiff asked Defendant Bryan to set up a PCCs & his efforts to correct
meeting with Bernard Barmann, County Counsel, to discuss noncompliance internally);
24 his concerns regarding PCC noncompliance. Jadwin Supp. Decl. (Doc. 272),
Exh. 1 at DFJ793 (subject line
25 states “Compliance with
Regulations”)
26
27
28
1 98 The California Department of Health Services later Jadwin Decl. (Doc. 265), Exh. 13
determined during the course of an inspection that KMC (DHS’s Fax to Jadwin of 8/11/08
2 was indeed failing to comply with PCC-related regulations. at E264 on pages 2-4 (finding
almost 50% noncompliance))
3
4
99 On April 17, 2006, Defendant Bryan threatened to demote Lee Decl. (Doc. 266), Exh. 12
5 Plaintiff. (Bryan Letter to Jadwin of
4/17/06 at DFJ00795)
6
100
7
101 3. Skull Flaps
8
102 Dr. Jadwin reasonably believed that storage of patient skull Lee Supp. Decl. (Doc. 267), Exh.
9 caps occurring in an unlicensed laboratory freezer at KMC 9 (Martinez Depo at 14:2-22);
violated H&S § 1635.1. Lee Supp. Decl. (Doc. 267), Exh.
10 12 (Dutt Depo at 244:6-9)
11
12 103 Unlicensed skull flap storage could give rise to a risk of Jadwin Decl. (Doc. 265), at para
patient morbidity or mortality. 15
13
104 Gilbert Martinez, the Manager of Laboratory Services at Lee Supp. Decl. (Doc. 267), Exh.
KMC (“Martinez”) confirmed that there were typically 9 (Martinez Depo At 10:2-7,
14 seven to nine skull flaps being stored in the lunlicensed 16:6-21)
aboratory freezer.
15
16
105 At times, upwards of 15 to 20 skull flaps were being stored Lee Supp. Decl. (Doc. 267), Exh.
17 in KMC’s unlicensed freezer. 12 (Dutt Depo at 244:6-9)
18
19
20 106 Martinez shared Plaintiff’s concerns about unlicensed skull Lee Supp. Decl. (Doc. 267), Exh.
flap storage in the laboratory freezer. 9 (Martinez Depo 14:2-12)
21
22
23
107 When Dr. Jadwin discovered skull flaps being illegally Lee Supp. Decl. (Doc. 267), Exh.
stored in the laboratory freezer, he discussed the problem 9 (Martinez Depo 14:2-22)
24 with Gilbert Martinez, the Manager of Laboratory Services
at KMC (“Martinez”).
25
26
27
28
1 108 Around Thanksgiving 2006, Dr. Jadwin tipped Martinez off Lee Supp. Decl. (Doc. 267), Exh.
that he intended to blow the whistle about his unresolved 9 (Martinez Depo at 111:12-
2 complaints about unsafe patient care and conditions, 112:4)
including unlicensed skull flap storage, and that inspections
3 of KMC by regulatory and accreditation agencies was
likely.
4
5
6 109 Within a few days, Martinez relayed this information to his Lee Supp. Decl. (Doc. 267), Exh.
supervisor, David Hill, the Director of Ambulatory Care; 9 (Martinez Depo at 113:8-
who in turn relayed it to a pathologist, Philip Dutt, and/or 114:23)
7 Defendant Harris.
8
9
110 Beginning November 28, 2006, Dr. Jadwin formally Lee Supp. Decl. (Doc. 267), Exh.
10 reported his suspicions of illegal and/or unsafe care and 20 (RFA No. 35 at 8:10-14); Lee
conditions of patients at KMC – including unlicensed skull Supp. Decl. (Doc. 267), Exh. 20
11 flap storage, noncompliant PCCs, and an inappropriate (RFA No. 21 at 5:22-24 (DHS));
radical prostatectomy (see below) – to the Joint Lee Supp. Decl. (Doc. 267), Exh.
12 Commission on Accreditation of Hospital Organizations 20 (RFA No. 22 at 5:25-6:2
(“JCAHO”), the College of American Pathologists (JCAHO); Lee Supp. Decl. (Doc.
13 (“CAP”), and the California Department of Health Services 267), Exh. 20 (RFA No. 23 at
(“DHS”). (“Outside WB Reports”). 6:3-6 (CAP))
14
15
16
17
18
19
20
21 111 On January 4, 2007, Dr. Dutt received confirmation that Dr. Jadwin Supp. Decl. (Doc. 272),
Jadwin had in fact complained to CAP about the unlicensed Exh. 2 (Dutt’s Email to
22 tissue storage and noncompliant PCCs, and shared this with Culberson of 1/4/07 at 0001330)
then-CEO Mr. Culberson.
23
24
112
25
113 4. Radical Prostatectomy
26
27
28
1 114 At 12:54 p.m. on December 6, 2006, Dr. Jadwin formally Jadwin Decl. (Doc. 265), Exh. 10
reported to KMC leadership his concerns regarding a KMC (Jadwin’s email to Dutt,
2 patient who was scheduled for immediate radical Culberson et al. of 12/6/06 at
prostatectomy to treat possible cancer. Plaintiff had DFJ1479); Lee Supp. Decl. (Doc.
3 recommended the attending physician delay the 267), Exh. 20 (RFA No. 61 at
prostatectomy because he believed the pathologic findings 13:19-25); Lee Supp. Decl. (Doc.
4 of cancer were inconclusive. Instead, Plaintiff had 267), Exh. 24 (Rog 67 at 14:22-
recommended the findings be validated by outside experts. 23 (noting difficulties outside
5 reviewers had reaching
conclusions about the diagnosis)
6
7
8
9 115 Radical prostatectomies pose numerous risks to patient Jadwin Decl. (Doc. 265), Exh. 10
care, including incontinence, impotence and other morbid (Jadwin’s email to Dutt,
factors. Culberson et al. of 12/6/06 at
10 DFJ1479)
11
116 In his report to KMC leadership, Dr. Jadwin also Jadwin Decl. (Doc. 265), Exh. 10
12 complained of a pattern of non-transparent “peer review” (Jadwin’s email to Dutt,
being conducted against him and asked that the Board of Culberson et al. of 12/6/06 at
13 Supervisors be apprised of his concerns and initiate a DFJ1479-1480)
formal review.
14
15
117 Four minutes later, at 12:58 p.m., Dr. Dutt emailed Mr. (Lee Decl. (Doc. 266), Exh. 23
16 Culberson complaining about Dr. Jadwin’s competency, (Dutt Email to Culberson dated
and insistence on outside review of numerous cases after 12/6/07 at 0001466)
17 Dr. Dutt had counseled him on failing to send a case out for
consultation. Dr. Dutt also complained about alleged “other
18 problems” involving Dr. Jadwin which he worried might
lead to loss of staff and the pathology department’s ability
19 to serve patients and doctors in a timely manner.
20
21
22
23 118 The patient ultimately decided not to proceed with the
prostatectomy.
24
119 G. COUNTS 3 & 4: DEFENDANT COUNTY’S
25 MEDICAL LEAVE RETALIATION
26
27
28
1 120 Plaintiff was eligible to take medical leave as of December Lee Supp. Decl. (Doc. 267), Exh.
16, 2006 20 (RFA NO. Nos. 134-138 at
2 28:15-29:10)
3
4
5 121 Plaintiff requested and took reduced work schedule CFRA Lee Decl. (Doc. 266), Exh. 14
medical leave from December 16, 2005 to at least March (Bryan’s Memo to Jadwin of
6 15, 2006. 4/28/06 at DFJ1152, 1154); Exh.
18 (Bryan memo to JCC at 1476-
7 1477, paras 6,7); Riskin Dec,
Exh. 1 & 2
8
9 122 Members of the JCC subsequently voted to demote Lee Supp. Decl. (Doc. 267), Exh.
Plaintiff, basing their decision on his unavailability due in 19 (SCO at 8:28-9:5); Lee Decl.
10 part to his medical leave. Mr. Bryan told the JCC at the (Doc. 266), Exh. 17 (JCC
removal vote: “This recommendation [for removal] is based Meeting Minutes of 7/10/06 at
11 on Dr. Jadwin’s unavailability for service because of item 10 on 0009820 to 0009821);
extended medical leaves..” Exh. 18 (Bryan’s Memo to JCC
12 of 7/10/06 at 0001476).
13
14
123 Previously on April 17, 2006, 4 months into Plaintiff’s Lee Decl. (Doc. 266), Exh. 12
15 reduced work schedule medical leave, Bryan admitted to (Bryan memo to Jadwin of
Dr. Jadwin, “Yes the Department of Pathology continues to 4/17/06 at DFJ795); Bryan Depo
16 function well as it has for many years, and yes, you have at 332:12-22; Lee Decl. (Doc.
made many positive changes in the department.” Yet on 266), Exh. 14 (Bryan’s Memo to
17 April 28, 2006, Bryan ordered Dr. Jadwin onto full-time Jadwin of 4/28/06 at DFJ1152)
leave unti lJune 16, 2006.
18
19
20
21 124 Plaintiff also has direct evidence that Plaintiff’s medical Lee Supp. Decl. (Doc. 267), Exh.
leave was a negative factor in the Nonrenewal 14 (Watson Depo. at 113:19-
22 114:4)
23
24
25 125
1 127 On April 28, 2006, Defendant Bryan represented to Dr. Lee Decl. (Doc. 266), Exh. 14
Jadwin that he was still entitled to 137 hours of medical (Bryan Memo to Jadwin of
2 leave. 4/28/06 at DFJ1152, 1154)
3 128 Sandra Chester, Defendant County’s then-HR Director, Lee Supp. Decl. (Doc. 267), Exh.
testified in Depo. that Plaintiff’s request for medical leave 15 (Chester Depo at 120:1-16)
4 in his email to Bryan and herself on March 16, 2006; and
provision by Dr. Jadwin’s treating therapist, Dr. Riskin, of
5 leave certification on April 29, 2006 was timely under
Defendant County’s customary practice.
6
7
8
9 129 Dr. Riskin’s certifications notified it that Plaintiff’s Riskin Decl. (Doc. 270), Exh. 1
depression was serious enough to require a reduced work &2
10 schedule leave and regular treatment from December 16,
2005 to September 16, 2006
11
12
130 Nonetheless, Defendant Bryan denied Plaintiff reduced Lee Decl. (Doc. 266), Exh. 14
13 work schedule medical leave, and forced him to take full- (Bryan Memo to Jadwin of
time “personal necessity leave” under the County’s leave 4/28/06 at DFJ1152); Lee Decl.
14 policy. (Doc. 266), Exh. 18 (Bryan
Memo to JCC of 7/10/06 at No. 9
15 on 001476); No. 1201.20 on
0001501; No 1201.30 on
16 0001501-1502; No. 1202.20 at
0001523-1524
17
131
18
132 I. COUNT 6: DEFENDANT COUNTY’S DISABILITY
19
DISCRIMINATION
20
21 133 1. Jadwin Was An Individual With Disabilities
22 134 Dr. Jadwin was an individual with a mental disability Reading Decl. (Doc. 269), Exh. 1
because of his chronic major depressive disorder. Dr. at “Diagnostic Impressions” on p.
23 Reading, Plaintiff’s forensic psychologist, diagnosed Dr. 58; Reading Decl. (Doc. 269),
Jadwin as having Major Depressive Disorder. Dr. Reading Exh. 1 at “Structured Clinical
24 also noted Dr. Jadwin reported developing depressed mood, Interview” at p. 57-58
pervasive anhedonia, suicidal ideation, sleep disturbance,
25 and other symptoms while working at KMC.
26
27
28
1 135 Dr. Jadwin’s depression limited his ability to take pleasure Reading Decl. (Doc. 269), Exh. 1
from life, and to engage full-time in, and take pleasure at “Structured Clinical Interview”
2 from, the medical work to which he had devoted his life. at p. 57-58
3
136 Likewise, Defendant County has admitted, by and through Lee Supp. Decl. (Doc. 267), Exh.
4 the PMK Depo. testimony of its representative, Eugene 17 (Kercher Depo at 95:13-22,
Kercher, a psychiatrist, that it was familiar with the 96:3-8)
5 symptoms of depression and believed that Dr. Jadwin was
depressed over several years during the tenure of his
6 employment at KMC.
7
8
9 137 Plaintiff also required sinus surgery and required a few Jadwin Decl. (Doc. 265), Exh. 7
weeks to recover from it during May of 2005. (Jadwin’s Letter to Bryan of
10 5/31/06 at DFJ1175)
11
138 Further, Plaintiff suffered an avulsed ankle at the end of Jadwin Decl. (Doc. 265), Exh. 7
May of 2005 that limited his ability to walk. (Jadwin’s Letter to Bryan of
12 5/31/06 at DFJ1175)
13
139 The limitations from these physical conditions contributed Riskin Decl. (Doc. 270), Exh. 3 at
14 to Plaintiff’s limitations from his chronic depression during DFJ1814
May through the first part of June of 2005.
15
16
17 140
18 141 2. Plaintiff Was “Otherwise Qualified” Lee Decl. (Doc. 266), Exh. 19
(Bryan’s Letter to DHS of
19 7/25/06 at 0001619); Exh. 18
(Bryan’s Letter to JCC of 7/10/06
20 at top of 001476 and end of
001457); Exh. 14 (Bryan’s Memo
21 to Jadwin of 4/28/06 at
DFJ01152, DFJ01155-1159,
22 DFJ01164); Exh. 16 (Nunn’s
Cover Email to Jadwin of 6/26/06
23 at DFJ01346); Exh. 10 (Bryan’s
Letter to Supervisors of 1/17/06
24 at No. 10 on 0001567)
25
26
142
27
143 3. Defendant County Knew Dr. Jadwin Was An
28 Individual with Disabilities
1 144 Plaintiff’s physician, Dr. Lempel, disclosed Plaintiff’s Lee Decl. (Doc. 266), Exh. 1
depression when he faxed his medical report to KMC’s HR (Lempel Medical Report of
2 Department on November 30, 2000, around the time of 11/30/00 at DFJ00102-103 and
Plaintiff’s hire. handwritten Zoloft prescription at
3 bottom of page)
4
145 Defendant Bryan admitted knowing that Dr. Jadwin needed Lee Decl. (Doc. 266), Exh. 9
5 leave because of his depression. (Jadwin’s Letter to Bryan of
1/9/06 at 0001140); Exh. 18
6 (Bryan Memo to JCC of 7/10/06
at 0001500 & 0001506)
7
146 Dr. Riskin’s certifications stated that Plaintiff needed Riskin Decl. (Doc. 270), Exh. 1
8 medical/recuperative leave for depression from December &2
16, 2005 to September 16, 2006
9
10
147 Supervisor Watson testified in Depo. that he knew Dr. Lee Supp. Decl. (Doc. 267), Exh.
11 Jadwin was in continuous need of extensions of his medical 14 (Watson Depo. at 80:22-81:2)
leave.
12
13
14 148 On April 4, 2007, during Plaintiff’s Admin Leave, Plaintiff Lee Supp. Decl. (Doc. 267), Exh.
expressly notified Defendant County in writing that 4 (Lee Letter to Barnes of 4/4/07
Plaintiff was depressed and that the Admin Leave was at DFJ01619)
15 exacerbating his chronic depression.
16
17 149
18
19
20
21
22
23
24
25
26
27
28
1 150 4. Disability Was A Motivating Factor in Demotion, Pay Lee Supp. Decl. (Doc. 267), Exh.
Cut & Nonrenewal 14 (Watson Depo. at 113:15-
2 114:4); Lee Decl. (Doc. 266),
Exh. 18 (Bryan’s Memo to JCC
3 of 7/10/06 at top of 001476; No.
9 on 001477; and end of 001457)
4
[Lee Decl., Exh. 17 (JCC Minutes
5 of 7/10/06 meeting at ¶ 10 on
0009830-9831); Lee Opp. Decl.,
6 Exh. 7 (Patrick Depo. at 27:5-8 &
30:2-20); Lee Opp. Decl., Exh.
7 14 (Kercher Depo. at 99:20-
100:17); Lee Opp. Decl., Exh. 35
8 (Smith Depo. at 14:22-15:8); Lee
Opp. Decl., Exh. 48 (emails
9 between Dutt & Barnes of
9/14/06 at 0000830)].
10
.
11
Lee Opp. Decl., Exh. 56 (PMK
12 Dutt Depo. at 243:7-11)
(sometimes appropriate to punish
13 an employee for taking medical
leave)].
14
151
15
152 J. COUNT 7: DEFENDANT COUNTY’S FAILURE TO
16 REASONABLY ACCOMMODATE
17
153 On January 9, 2006, Dr. Jadwin asked Defendant Bryan to Lee Decl. (Doc. 266), Exh. 9
18 allow him to work part-time and at home while he was (Jadwin’s Letter to Bryan of
recovering from his disabling depression. 1/9/06 at 0001140)
19
20
154 Dr. Riskin, Plaintiff’s psychiatrist, certified that part-time Riskin Decl. (Doc. 270), Exh. 1
21 work was medically necessary. &2
22
155 KMC accommodated Jadwin’s disability from December Lee Decl. (Doc. 266), Exh. 18
23 16, 2005 to April 28, 2006 by providing him with the (Bryan memo to JCC at 1476-
reduced work schedule medical/recuperative leave and 1477, paras 6,7); Riskin Dec,
24 ability to perform work at home that he requested during Exh. 1 & 2
his meeting with Defendant Bryan on January 9, 2006.
25
26
27
28
10
159 On April 28, 2006, Bryan refused to accommodate
11 Jadwin’s disability. Instead he forced him to take full-time
leave, and refused to hold his job open for him any longer
12 while he was on recuperative leave, and refused to allow
Dr. Jadwin to return to work until he could work full-time.
13 As a result, Dr. Jadwin was prevented continuing to carry
out his duties as Chair of Pathology.
14
15
16
17 160
24 163 Defendant Bryan also acted in bad faith when he Lee Decl. (Doc. 266), Exh. 18
represented to the JCC that Dr. Jadwin’s lack of (Bryan’s Memo to JCC of
25 communication with him led him to believe that Dr. Jadwin 7/10/06 at 0001500 & 0001506);
had essentially abandoned his job. Lee Decl. (Doc. 266), Exh. 14
26 (Bryan’s Memo to Jadwin of
4/28/06 at DFJ01152, DFJ01155-
27 1159, DFJ01164)
28 164
23 168 The Board of Supervisors of Defendant County ratified the Lee Supp. Decl. (Doc. 267),
Bylaws on December 13, 2004. Patrick depo, 40:1-4); Lee Supp.
24 Decl. (Doc. 267), Exh. 1 (Board
of Supervisor Minutes of
25 12/13/04 at p. 4, item 20); Lee
Decl. (Doc. 266), Exh. 3 (Bylaws
26 at 0011529)
27
28
1 169 When the Defendants failed to provide Plaintiff with Lee Supp. Decl. (Doc. 267), Exh.
adequate due process in connection with the Demotion, 20 (RFA Nos. 219-221 at 45:3-
2 Admin Leave and Nonrenewal, they were acting pursuant 21); Lee Supp. Decl. (Doc. 267),
to the Bylaws. Exh. 10 (Bryan Depo, 258:12-16)
3
4
170
5
171 2. 42 U.S.C. 1983 Requirements
6
172 It is incontrovertibly established that “Any acts or Lee Supp. Decl. (Doc. 267), Exh.
7 omissions of the individual Defendants were under color of 19 (SCO at 9:22-23)
law.” See Scheduling Order, 9:22-23.
8
9 173
10 174 3. 14th Amendment Elements
11
175 4. Demotion & Paycut
12
176 Plaintiff’s employment contract expressly set forth a Lee Decl. (Doc. 266), Exh. 2
mutually explicit understanding with Defendant County (Jadwin Employment Contract,
13 that Plaintiff would receive Base Pay of $287,529, and that p.2, 20)
Plaintiff would be chair of KMC’s pathology department.
14
15
16
177 Moreover, the employment contract barred Defendant Lee Supp. Decl. (Doc. 267), Exh.
17 County from reducing Plaintiff’s Base Pay, removing 20 (RFA No. 227 at 46:22-26);
Plaintiff from chair or terminating or otherwise modifying Lee Decl. (Doc. 266), Exh. 2
18 the Contract at will, without cause, or without Plaintiff’s (Jadwin Employment Contract at
consent. DFJ164, DFJ165, DFJ168,
19 DFJ169)
20
178 Defendant County has not removed a department chair Lee Supp. Decl. (Doc. 267), Exh.
21 without cause since at least October 2000 20 (RFA No. 227 at 46:22-26)
22
23
24 179 Defendants County and Harris told Plaintiff several times Lee Supp. Decl. (Doc. 267), Exh.
that the Demotion “necessitated” the Paycut, and that he 20 (RFA No. 228 at 46:27-47:3);
25 would have to agree to it to continue working at KMC. Lee Decl. (Doc. 266), Exh. 3
(Barnes email to Lee of 9/15/06
26 at DFJ1390); Lee Decl. (Doc.
266), Exh. 20 (Harris Letter to
27 Jadwin of 9/1/06 at DFJ1383)
28
1 180 Having no other choice, Plaintiff executed the Paycut Lee Supp. Decl. (Doc. 267), Exh.
amendment to his employment contract. 18 (Jadwin depo, 1025:4-7); Lee
2 Decl. (Doc. 266), Exh. 22
(Amendment No. 1 to
3 Employment Contract dated
10/3/06)
4
5
6
7
181 Defendant County was subjectively aware of Plaintiff’s Lee Supp. Decl. (Doc. 267), Exh.
8 contractual interest in Base Pay, as evidenced by the 3 (Barnes Letter to Lee of 9/15/06
numerous reminders by Defendants Bryan and County that at DFJ1390), Lee Decl. (Doc.
9 Plaintiff would have to expressly amend his employment 266), Exh. 20 (Harris Letter to
contract to implement the Paycut resulting from his Bryan of 9/1/06 at DFJ1383)
10 Demotion.
11
12
182 There was nearly a month gap between the time Defendant Lee Decl. (Doc. 266), Exh. 15
13 Bryan informed Plaintiff he was initiating demotion (Bryan Letter to Jadwin of
procedures to the time the JCC voted to demote Plaintiff. 6/14/06 at DFJ1181); Lee Decl.
14 (Doc. 266), Exh. 17 (JCC
Minutes of 7/1/06 at 0009820-
15 0009821, item 10)
16 183 Defendants never notified Plaintiff of the time or place of Jadwin Supp. Decl. (Doc. 272),
the JCC vote to demote Plaintiff, gave him an explanation para 3
17 of the evidence against him, or provided him an opportunity
to tell his side of the story,
18
19
184 Before the JCC vote occurred, Plaintiff sent a letter to Lee Supp. Decl. (Doc. 267), Exh.
Defendant County legally challenging the Demotion. 2 (Lee Letter to Barnes of 6/29/06
20 at DFJ1349)
21
185 Nor did Defendant County ever offer Plaintiff a post- Jadwin Decl. (Doc. 265), para 4,
22 deprivation hearing. Lee Decl. (Doc. 266), Exh. 17
(JCC Minutes of 7/1/06 at
23 0009820-0009821, item 10)
24
25
26
27
28
1 186 More importantly, the JCC did not constitute an impartial Lee Decl. (Doc. 266), Exh. 17
tribunal since it comprised individuals who had been (JCC Minutes of 7/1/06 at
2 harassing and retaliating against Dr. Jadwin and/or 0009819); Jadwin Decl. (Doc.
individuals on whom Dr. Jadwin was blowing the whistle. 265), Exh. 1 (Jadwin email to
3 Bryan of 2/28/05 at DFJ355); Lee
Decl. (Doc. 266), Exh. 8 (Bryan
4 email to Harris of 11/8/05 at
0000503); Lee Decl. (Doc. 266),
5 Exh. 11 (Ragland email to Bryan
of 2/23/06 at 0000507); Jadwin
6 Decl. (Doc. 265), Exh. 5 (Jadwin
memos to Smith of 3/23/06); Lee
7 Supp. Decl. (Doc. 267), Exh. 13
(Ragland depo, 332:14-21)
8
9
10
11
12
13
14
15
16
17
187 Nor was Defendant Bryan – who invited Plaintiff to contact Lee Decl. (Doc. 266), Exh. 15
him, and only, him regarding the Demotion he himself had (Bryan Letter to Jadwin of
18 instigated – an impartial adjudicator given his demonstrated 6/14/06 at DFJ1181); Lee Decl.
bias against Plaintiff. (Doc. 266), Exh. 16 (Bryan Letter
19 to Jadwin of 6/26/06 at
DFJ1346); Lee Decl. (Doc. 266),
20 Exh. 17 (JCC Minutes of 7/1/06
at 0009821); Jadwin Decl. (Doc.
21 265), Exh. 1 (Jadwin email to
Bryan of 2/28/05 at DFJ355); Lee
22 Supp. Decl. (Doc. 267), Exh. 13
(Ragland Depo at 332:14-21);
23 Lee Decl. (Doc. 266), Exh. 8
(Bryan email to Harris of 11/8/05
24 at 0000503); Lee Decl. (Doc.
266), Exh. 11 (Ragland email to
25 Bryan of 2/23/06 at 0000507)
26
188
27
189 5. Admin Leave
28
1 190 Plaintiff’s employment contract expressly set forth a Lee Decl. (Doc. 266), Exh. 2
mutually explicit understanding with Defendant County (Jadwin Employment Contract, at
2 that Plaintiff would be paid Professional Fees. DFJ00154, DFJ00156)
3
191 Defendant County was subjectively aware of Plaintiff’s Lee Decl. (Doc. 266), Exh. 21
4 contractual interest in Professional Fees, as evidenced by (Culberson Letter to Jadwin of
the then-CEO’s letter to Plaintiff regarding the Paycut. Mr. 9/20/06 at DFJ01398)
5 Culberson explained that, as a demoted staff pathologist
with a drastically reduced base salary, Plaintiff would
6 nevertheless be able to take advantage of his reduced
administrative duties in order to increase his Professional
7 Fees-based income.
8
9
10
11
192 Mr. Culberson participated in the decision to to place Lee Supp. Decl. (Doc. 267), Exh.
Plaintiff on Admin Leave, which denied Plaintiff the 22 (Rog. No. 42, 28:3-9)
12 opportunity to earn Professional Fees.
13
14 193 Defendants failed to provide Plaintiff any pre- or post- Jadwin Decl. para 5; Lee Decl.
deprivation procedure when placing him on Admin Leave. (Doc. 266), Exh. 24 (Culberson
15 Letter to Jadwin of 12/7/06 at
DFJ01482)
16
194 When Defendant County sent a letter to Plaintiff placing Lee Decl. (Doc. 266), Exh. 24
17 him on Admin Leave, the letter stated only that the Admin (Culberson Letter to Jadwin of
Leave was “pending resolution of a personnel matter”. 12/7/06 at DFJ01482)
18
19
195 At no time did Defendants County or Harris inform Jadwin Decl. para 6; Lee Supp.
20 Plaintiff of the nature of the charges against him, give him Decl. (Doc. 267), Exh. 4 (Lee
an explanation of the evidence against him, or provide him Letter to Barnes of 4/4/07 at
21 an opportunity to tell his side of the story. DFJ01619)
22
23 196 Even when Plaintiff protested the lack of due process, Lee Supp. Decl. (Doc. 267), Exh.
Defendant County refused to respond. 4 (Lee Letter to Barnes of 4/4/07
at DFJ01619)
24
25 197 Since 1995, only one other department chair at KMC had Lee Supp. Decl. (Doc. 267), Exh.
ever been placed on administrative leave in excess of 1 22 (Rog. No. 27, 19:23-20:6)
26 month.
27
28
1 198
2 199 6. Nonrenewal
3 200 Defendant County customarily renews the contracts of all Lee Supp. Decl. (Doc. 267), Exh.
of its KMC medical staff. 22 (Rog. No. 28, 20:8-21);
4 Jadwin Decl. para 7
5 201 When Plaintiff asked Defendant County to identify all Lee Supp. Decl. (Doc. 267), Exh.
members of the KMC medical staff – which comprises 22 (Rog. No. 28, 20:8-21
6 roughly 60 full-time faculty physicians at any given time –
who had employment contracts which were not renewed
7 during the period from October 24, 2000 to the present,
Defendant County was able to name only one doctor.
8
9
10
202 At no time did Defendant County inform Plaintiff of the Jadwin Decl. para 8
11 nature of the charges against him, give him an explanation
of the evidence against him, or provide him an opportunity
12 to tell his side of the story.
13
14 203 Defendant County denies that anyone even participated in a Lee Supp. Decl. (Doc. 267), Exh.
decision not to renew Plaintiff’s employment contract. 21 (Rog No. 45, 53:16-20
15
16
204 Even when Plaintiff protested the lack of due process, Lee Supp. Decl. (Doc. 267), Exh.
17 Defendant County refused to respond. 7 (Lee Letter to Wasser of 5/1/07
at DFJ1703-DFJ1704); Jadwin
18 Supp. Decl. para 4; Jadwin Decl.
para 13
19
205
20
206 F. SEVENTH DEFENSE: 2 YEAR SOL
21
207 Defendant County itself admits that no relevant event Lee Supp. Decl. (Doc. 267), Exh.
22 occurred on or before January 6, 2005. 23 (Rog. No. 5, 5:17-25)
23
24
208
25
209 G. EIGHTH DEFENSE: ADMINISTRATIVE
26 EXHAUSTION
27
28
1 210 Defendant County admits that Plaintiff has Exh.austed his Lee Supp. Decl. (Doc. 267), Exh.
administrative remedies as to all claims except for the new 20 (RFA1 at 4:23-27); Lee Supp.
2 FMLA/CFRA/FEHA retaliation claim added via the Decl. (Doc. 267), Exh. 23 (Rog.
Second Amended Complaint, filed on October 7, 2008 No. 6, 6:1-3); Lee Supp. Decl.
3 (Doc. 241). (Doc. 267) para 7
4
5 211 Plaintiff Exh.austed his CFRA & FEHA Lee Supp. Decl. (Doc. 267) para
oppositional/participation retaliation claims by filing a 7
6 timely complaint with the California Department of Fair
Employment & Housing (“DFEH”) on September 3, 2008,
7 and obtaining a right to sue letter that same day.
8
9
10 212
11 213 PERSONS
12 214 Defendant Bryan was the Chief Executive Officer at KMC Lee Supp. Decl. (Doc. 267), Exh.
from September of 2004 until September of 2006. 19 (SCO at 7:4-6); Lee Supp.
13 Decl. (Doc. 267), Exh. 21 (Rog
No. 11 at 9:20)
14
215 Eugene Kercher, M.D. was the President of KMC Medical Lee Supp. Decl. (Doc. 267), Exh.
15 Staff from July 2004 to June 2006, and a member of the 19 (SCO at 7:7-10); Lee Supp.
JCC Decl. (Doc. 267), Exh. 21 (Rog
16 No. 11 at 9:4-5)
17 216 Defendant Irwin Harris, M. D., was Chief Medical Officer Lee Supp. Decl. (Doc. 267), Exh.
at KMC from July of 2005 to September of 2007 , and a 19 (SCO at 7:11-14); Lee Supp.
18 non-voting member of the JCC. Decl. (Doc. 267), Exh. 21 (Rog
No. 11 at 10:24)
19
20 217 Jennifer Abraham, M.D. was Immediate Past President of Lee Supp. Decl. (Doc. 267), Exh.
KMC Medical Staff during 2004-2006, and President Elect 19 (SCO at 7:15-17); Lee Supp.
21 in July 2006 to December of 2007 Decl. (Doc. 267), Exh. 21 (Rog
No. 11 at 9:4, 9:7, 10:2, 10:6)
22
23 218 Scott Ragland, D.O. was President-Elect of the KMC Lee Supp. Decl. (Doc. 267), Exh.
Medical Staff from 2004-2006, Chair of the Quality 19 (SCO at 7:18-21); Lee Supp.
24 Management Committee, and a member of the JCC. Decl. (Doc. 267), Exh. 21 (Rog
No. 11 at 9:3, 9:6, 10:1, 11:3-4)
25
26
27
28
1 219 Toni Smith was the Chief Nurse Executive of KMC, and a Lee Supp. Decl. (Doc. 267), Exh.
member of the JCC 19 (SCO at 7:22-24)
2
3
220 William Roy, M.D., was Chief of the Division of Lee Supp. Decl. (Doc. 267), Exh.
4 Gynecologic Oncology at KMC. 19 (SCO at 7:25-27)
5
6 221 Marvin Kolb, M.D. was former Chief Medical Officer at Lee Supp. Decl. (Doc. 267), Exh.
KMC who left in September of 2004. 21 (Rog No. 11 at 9:21)
7
8
9 222 Phillip Dutt, M.D., became Chair of Pathology at KMC in Lee Supp. Decl. (Doc. 267), Exh.
August of 2006 21 (Rog No. 11 at 10:16)
10
11
223 David Culberson was Interim Chief Executive Officer from Lee Supp. Decl. (Doc. 267), Exh.
12 September of 2006 to May of 2007. 21 (Rog No. 11 at 10:22)
13
14 224 Paul Hensler became Chief Executive Officer at in May of Lee Supp. Decl. (Doc. 267), Exh.
2007. 21 (Rog 11 at 10:23)
15
16
17 225 Gilbert Martinez was and is the Manager of Laboratory Lee Supp. Decl. (Doc. 267), Exh.
Services at KMC. 9 (Martinez Depo at 10:2-7)
18
19
20
21 OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
22
226 Beginning January 2006, Defendant County did not pay Decl. of Eugene Lee in
23 Plaintiff for the days he did not work. Opposition to Defendants’
Motion for Summary Judgment
24 (“Lee Opp. Decl.”), Exh.
Bryan’s Memo to JCC of
25 7/10/06 at 0001476); Rizzardi
Decl. (Doc. 271) at Table 6
26 showing dramatic Plaintiff’s
earnings decrease starting
27 1/17/06.
28
1 227 Bryan testified that testified that “actual functioning of the Lee Opp. Decl., Exh. 3 (Bryan
department of [pathology] actually was fairly good” as of Depo at 332:12-22).
2 April 17, 2006.
3
4 228 Plaintiff testified several times that Bryan had ordered him Lee Opp. Decl., Exh. 2 (Bryan
off of part-time and onto full-time medical leave on April Depo at 249:24-250:19; Exh. 4
5 28, 2006 so as to burn up Plaintiff’s medical leave (Jadwin Depo. at 384:9-13); Exh.
entitlement. Bryan’s Depo. testimony did not refute this. 5(Jadwin Depo. at 983:23-984:1,
6 94:23-985:4).
7
229 According to Defendant County’s verified response to Lee Supp. Decl. (Doc. 267), Exh.
8 Plaintiff’s Interrogatory No. 42, Harris participated in the 21 (Rog No. 42 at 52:24-53:2).
decision to place Plaintiff on Admin Leave.
9
10
11 230 On June 29, 2006, Plaintiff’s counsel sent a letter to Kern Lee Opp. Decl., Exh. 15 (Lee
County counsel Karen Barnes (“Barnes”) which was Letter to Barnes of 6/29/06 at pp.
captioned “Re: Preservation / no spoliation of evidence 1 and 2).
12 Jadwin v. County of Kern, Peter Bryan, et al.”. This letter
pre-dated the Demotion of July 10, 2006 by almost a
13 month.
14
231 Plaintiff’s counsel’s letter to Barnes of June 29, 2006 Lee Opp. Decl., Exh. 15 (Lee
15 outlined in detail Plaintiff’s pending claims for Letter to Barnes of 6/29/06 at pp.
whistleblower and medical leave retaliation and disability 1 and 2).
16 discrimination and formally demanded Defendant County
take all appropriate affirmative steps to preserve evidence
17 relating to those claims, including “notes taken at meetings
with or concerning Dr. Jadwin”.
18
232 On March 29, 2007, Plaintiff’s counsel again sent a letter to Lee Opp. Decl., Exh. 16 (Lee
19 Barnes stating, “I would like to remind you that KMC is Letter to Barnes of 3/29/07 at p.
under a strict legal obligation to preserve and prevent 2).
20 spoliation . . . .”.
21
233 Barbara Patrick is a former Chair of the Kern County Board Lee Opp. Decl., Exh. 7 (Patrick
22 of Supervisors and member of the JCC who voted to Depo. at 22:2-12; 26:20-27:3).
demote Plaintiff.
23
24
25 234 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that she Lee Opp. Decl., Exh. 7 (Patrick
had taken notes at every JCC meeting. Depo. at 70:8-73:7).
26
27
28
1 235 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that she Lee Opp. Decl., Exh. 7 (Patrick
had shredded all of her documents upon leaving office on Depo. at 70:8-73:7).
2 January 8, 2007.
3
4 236 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that she Lee Opp. Decl., Exh. 7 (Patrick
had thrown out documents which included JCC meeting Depo. at 70:8-73:7).
5 agendas on the margins of which she had taken notes.
6
7
237 At Plaintiff’s 8/19/08 Depo. of Patrick, she testified that Lee Opp. Decl., Exh. 7 (Patrick
8 Kern County counsel had never contacted her regarding Depo. at 70:8-73:7).
preservation of documents and evidence in connection with
9 Plaintiff’s lawsuit.
10
11 238 Defendants failed to produce a single JCC meeting agenda Lee Opp. Decl., para. 6; Exh. 17
in response to Plaintiff’s numerous discovery demands. (RPD No. 44 at 20:15-21).
12
13
14 239 At Plaintiff’s 8/19/08 Depo. of Patrick, she was able to Lee Opp. Decl., Exh. 7 (Patrick
recall very little in the absence of her spoliated notes about Depo. at 75:16-78:19).
15 the JCC meeting at which the Demotion was approved.
16
17
240 David Culberson is former CEO of KMC who decided to Lee Opp. Decl., Exh. 11
18 place Plaintiff on Admin Leave. (Culberson Depo. at 10:13-16;
10:23-11:1).
19
20
241 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that Lee Opp. Decl., Exh. 11
21 he had taken notes at each of up to 10 meetings of the KMC (Culberson Depo. at 42:24-47:9).
“leadership team” regarding Plaintiff and the Pathology
22 department.
23
24 242 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that Lee Opp. Decl., Exh. 11
Culberson destroyed those notes prior to January 2007, by (Culberson Depo. at 42:24-47:9).
25 shredding them, ripping them up, crumpling them up and
throwing them in the trash.
26
27
28
1 243 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that Lee Opp. Decl., Exh. 11
no one ever contacted him regarding preservation of (Culberson Depo. at 42:24-47:9).
2 documents and evidence in connection with Plaintiff’s
lawsuit.
3
4 244 At Plaintiff’s 8/21/08 Depo. of Culberson, Culberson – in Lee Opp. Decl., Exh. 11
the absence of his spoliated notes – was unable to recall (Culberson Depo. at 61:7-19;
5 important details regarding the allegations against Plaintiff 63:4-6).
that led to the Demotion as related to him by Harris.
6
7
245 At Plaintiff’s 8/21/08 Depo. of Culberson, Culberson – in Lee Opp. Decl., Exh. 11
8 the absence of his spoliated notes – was unable to recall (Culberson Depo. at 102:16-21;
important details regarding the HR director’s investigative 98:4-15; 99:2-10).
9 findings as to disruption and chaos in the Pathology
department at the end of 2006 just prior to the Admin
10 Leave.
11 246 At Plaintiff’s 8/21/08 Depo. of Culberson, Culberson – in Lee Opp. Decl., Exh. 11
the absence of his spoliated notes – was unable to recall (Culberson Depo. at 160:23-
12 important details regarding Dr. Dutt’s investigative findings 161:2; 159:9-13; 157:15-158:4).
regarding Plaintiff’s alleged misconduct at the end of 2006.
13
14
247 Scott Ragland is the former President of the Medical Staff Lee Opp. Decl., Exh. 9 (Ragland
15 and member of the JCC (“Ragland”). Depo. at 8:23-9:10).
16
17
248 Ragland testified at his 8/22/08 Depo. that no one ever Lee Opp. Decl., Exh. 9 (Ragland
18 contacted him regarding preservation of documents and Depo. at 61:10-25).
evidence in connection with Plaintiff’s lawsuit
19
20
21 249 Ragland testified at his 8/22/08 Depo. that he deleted all of Lee Opp. Decl., Exh. 9 (Ragland
his emails, including emails relating to Plaintiff, and Depo. at 63:13-23).
22 sneered at Plaintiff’s consternation over the spoliation
23
24 250 At Ragland’s 8/22/08 Depo., he sneered at Plaintiff’s Lee Opp. Decl., Exh. 9 (Ragland
consternation over the spoliation of evidence. Depo. at 63:13-23).
25
26
27
28
1 251 At Plaintiff’s 8/21/08 Depo. of Culberson, he testified that Lee Opp. Decl., Exh. 11
Ragland had investigated Plaintiff just prior to the Admin (Culberson Depo. at.73:9-18).
2 Leave.
3
4 252 Ragland testified at his 8/22/08 Depo. that he produced Lee Opp. Decl., Exh. 9 (Ragland
only a single document in all of discovery in this action, Depo. at 69:21-71:1).
5 and even that was not in response to any request from an
attorney (as he never received one) but on his own
6 initiative.
7
253 At Ragland’s 8/22/08 Depo., he was able to recall very little Lee Opp. Decl., Exh. 9 (Ragland
8 in the absence of his spoliated documents about material Depo. at 23:13-24:24).
events.
9
10
11 254 At the Depo. of PMK Eugene Kercher, he testified that Lee Opp. Decl., Exh. 14 (Kercher
KMC did not renew John Digges’ employment contract Depo. at 27:1-12).
because Digges was asking for an unacceptable salary
12 increase.
13
14 254 Plaintiff testified on 10/21/08 that he would have accepted Lee Opp. Decl., Exh. 6 (Jadwin
renewal of his contract as of October 4, 2007, albeit under Depo. at 1096:9-14; 1096:22-
15 protest over his demoted status and reduced Base Pay. 1097:3).
16
17
255 Dr. Philip Dutt, Acting Chair of Pathology, testified as Lee Opp. Decl., Exh. 12 (Dutt
18 PMK for the County on 8/29/08 that by the Monday Depo. at 10:5-24).
following Thanksgiving 2006, he had had a conversation
19 with Harris regarding Plaintiff’s statement to Martinez that
“he was going to report the hospital to JCAHO, CNPS [sic]
20 . . . either the Friday before Thanksgiving that year or the
Monday after that weekend.”
21
256 Dr. Philip Dutt, Acting Chair of Pathology, testified as Lee Opp. Decl., Exh. 12 (Dutt
22 PMK for the County on 8/29/08 that he had suggested to Depo. at 13:1-14:6).
Harris that KMC retain someone who had experience with
23 CAP inspections to conduct a mock unannounced
inspection. Harris quickly approved Dutt’s proposal on
24 either the Friday or the Monday before Thanksgiving 2006.
25 257 JCC minutes regarding the contemplated demotion of the Lee Opp. Decl., Exh. 18 (JCC
chair of the OB-GYN department stated: “The problem is Meeting Minutes of 9/10/07 at
26 we have tied a portion of the chair’s compensation to that Agenda Item 6 on Bates
position, that is a property right. Dr. Perez is entitled to due 0009221).
27 process hearing for this reason.”
28
1 258 Paragraph 139 (“Disciplinary Actions”) of the Manual Lee Opp. Decl., Exh. 19 (Kern
states in relevant part: County Policy & Administrative
2 Procedures Manual at Section
“Any employee may be dismissed, suspended, reduced in 139 (Disciplinary Actions) and
3 rank and/or compensation, reprimanded or otherwise 139.6 (Administrative Leave with
disciplined for any action or conduct which in the Pay) on Bates 0016940-16941).
4 judgment of the appointing authority provides good
cause for discipline under the Civil Service Rules or other
5 laws, regulations, or policies [. . . .] .6 Administrative Leave
with Pay. A department head may place an employee on
6 administrative leave with pay if the department head
determines that the employee is engaged in conduct
7 posing a danger to County property, the public or other
employees, or the continued presence of the employee at
8 the work site will hinder an investigation of the
employee’s alleged misconduct or will severely disrupt
9 the business of the department [. . . .]”. (emphasis added).
10 259 At his Depo. of 8/25/08, Watson testified that Defendant Lee Opp. Decl., Exh. 10 (Watson
County decided not to renew Plaintiff’s contract in Depo. at 110:12-111:5; 111:15-
11 retaliation for his filing the instant lawsuit. Watson was 24).
asked twice if he recalled clearly that this was the case and
12 each time he answered yes:
1 260 At his Depo. of 8/25/08, Watson re-affirmed a third time – Lee Opp. Decl., Exh. 10 (Watson
volunteering it on his own initiative – that oppositional Depo. at 113:15-114:4).
2 retaliation was an additional motivating factor for the
Nonrenewal:
3
Q. So the question is: You’ve mentioned that for the
4 nonrenewal one of the reasons was that Dr. Jadwin wasn’t
available for work; is that correct or --
5 A. My understanding was that he had -- he had been on
medical leave, family leave, and had requested even more
6 leave, and that for that reason and the fact that he was suing
us, that we decided not to renew his contract.
7
8 261 Defendants claim Watson gave confused testimony and Lee Opp. Decl., Exh. 10 (Watson
suggest that his testimony regarding Nonrenewal was Depo. at 12:10-14; 13:17-14:2).
9 likewise confused even though the allegedly confused
testimony is elicited by a completely different line of
10 questioning regarding Demotion that occurs over 100 pages
and 2 hours earlier in the Depo. transcript.
11
262 Bryan could not have “granted” Plaintiff 90-day personal
12 necessity leave because he never asked for it. His request
for extension of leave of absence of March 16, 2006 was
13 for extension of his reduced work schedule medical leave.
14
15 263 Plaintiff’s request of March 16, 2006 for leave extension
requested an extension of reduced work schedule leave, as
established by Plaintiff’s later submitted medical
16 certification.
17
18 264 Plaintiff’s leave extension request of March 16, 2006 asked Jadwin Decl. (Doc. 265), Exh. 6
for extension of Plaintiff’s protected medical leave, not (Jadwin’s Request for Leave
19 personal leave. Extension of 4/26/06 at
DFJ00157); Exh. 4 (Jadwin’s
20 Email to Bryan, Chester, & Dutt
of 3/16/06 at DFJ00752); Lee
21 Supp. Decl. (Doc. 267), Exh. 15
(Chester Depo at 120:1-16)
22
265 Defendants’ own Separate Statement (Doc. 259) admits, Defendants’ Separate Statement
23 Plaintiff’s letter to Bryan of May 31, 2006 was requesting (Doc. 259), DMF 23
more time to decide whether he would be returning full-
24 time or resigning. It was not requesting more leave past
September 16, 2006. [DMF 23]
25
26
27
28
1 266 The prostatectomy patient ultimately elected not to proceed Lee Opp. Decl., Exh. 52
with prostatectomy based on the second set of biopsies (Shertudke Depo. at 42:17-20)].
2 recommended by Plaintiff coming back negative for cancer.
3
4 267 Disability Was A Motivating Factor in Administrative Lee Decl. (Doc. 266), Exh. 22
Leave. (Amendment No. 1 to
5 Employment Contract dated
10/3/06 at “Assignments” on
6 DFJ01420); Lee Opp. Decl., Exh.
58 (Pathologist Chair Phlip Dutt
7 employment contract amendment
no. 1 of 10/10/05 at
8 “Assignments” on Bates
0026200; Exh. 59 (Pathologist
9 Savita Shertukde employment
contract of 11/1/05 at
10 “Assignments” on Bates
0026248; Exh. 60 (Pathologist
11 Gian Yakoub employment
contract of 6/19/07 at
12 “Assignments” on Bates
0026193.
13
[Lee Decl., Exh. 17 (JCC
14 Minutes of 7/10/06 meeting at ¶
10 on 0009830-9831); Lee Opp.
15 Decl., Exh. 7 (Patrick Depo. at
27:5-8 & 30:2-20); Lee Opp.
16 Decl., Exh. 14 (Kercher Depo. at
99:20-100:17); Lee Opp. Decl.,
17 Exh. 35 (Smith Depo. at 14:22-
15:8); Lee Opp. Decl., Exh. 48
18 (emails between Dutt & Barnes
of 9/14/06 at 0000830)].
19
Lee Opp. Decl., Exh. 56 (PMK
20 Dutt Depo. at 243:7-11)
(sometimes appropriate to punish
21 an employee for taking medical
leave)].
22
See DMF 69-190 re Defendants'
23 pattern and practice of subjecting
Plaintiff to smear campaign
24 continued on Jadwin's return
from medical leave on October 4,
25 2006.
26
27
28
1 268
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3
4 269
5
6
7
8 270
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10
11
12
13 Date: December 1, 2008
14
/s/ Eugene D. Lee
15 LAW OFFICE OF EUGENE LEE
555 West Fifth Street, Suite 3100
16 Los Angeles, CA 90013
Phone: (213) 992-3299
17 Fax: (213) 596-0487
email: elee@LOEL.com
18 Attorney for Plaintiff DAVID F. JADWIN, D.O.
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