161 P MX Amend Complaint

Case 1:07-cv-00026-OWW-TAG Document 161 Filed 07/07/2008 Page 1 of 76
1 LAW OFFICE OF EUGENE LEE

Eugene D. Lee (SB#: 236812)
2 555 West Fifth Street, Suite 3100
Los Angeles, CA 90013
3 Phone: (213) 992-3299
Fax: (213) 596-0487
4 email: elee@LOEL.com
5 Attorney for Plaintiff
DAVID F. JADWIN, D.O.
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 FRESNO DIVISION
11 DAVID F. JADWIN, D.O., Civil Action No. 1:07-cv-00026 OWW TAG
12 Plaintiff, PLAINTIFF'S NOTICE OF MOTION AND
MOTION FOR LEAVE TO FILE SECOND
13 v. AMENDED COMPLAINT
14 COUNTY OF KERN, et al., Date: September 8, 2008
Time: 10:00 a.m.
15 Defendants. Courtroom: U.S. District Court, Crtrm. 3
2500 Tulare St, Fresno, CA
16 Complaint Filed: January 6, 2007
Trial Date: December 2, 2008
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DATE CLEARED WITH CRD
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21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
22 Please take notice that on Sept. 8, 2008, at 10:00 a.m., or as soon thereafter as the parties may
23 be heard, Plaintiff DAVID F. JADWIN, D.O. will and hereby does move this Court, at the U.S. District
24 Court, Crtrm. 3, 2500 Tulare St, Fresno, CA, for leave to file the Second Amended Complaint.
25 For the reasons set forth in the accompanying Memorandum of Points and Authorities and
26 Declaration of Eugene Lee, Plaintiff respectfully requests that this Court grant it leave to file the Second
27 Amended Complaint, and for such other relief as may be just.
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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER;
MOTION TO QUASH TWO RECORDS SUBPOENAS RE PLAINTIFF’S PSYCHIATRIC RECORDS. 1
1 RESPECTFULLY SUBMITTED on July 7, 2008.

2 /s/ Eugene D. Lee
LAW OFFICE OF EUGENE LEE
4 Phone: (213) 992-3299
Fax: (213) 596-0487
Attorney for Plaintiff DAVID F. JADWIN, D.O.
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1 MEMORANDUM OF POINTS & AUTHORITIES

2 I. BACKGROUND
3 Plaintiff has attempted without success to obtain Defendants’ stipulation to file the Second
4 Amended Complaint (“SAC”).
5 On January 6, 2007, Plaintiff filed the Complaint initiating this action.
6 On April 24, 2007 and on June 13, 2007, Plaintiff supplemented the Complaint to reflect events
7 occurring after the date of the last-filed Complaint.
8 On January 4, 2008, Plaintiff sent the draft Third Supplemental Complaint (“TSC”) –almost
9 identical to the SAC – to Defendants for their review. Defendants never responded.
10 On January 22, 2008, Plaintiff noted Defendants had not responded. Defendants replied that they
11 were inclined not to so stipulate but would reconsider subject to certain conditions.
12 On April 17, 2008, after further discussion between the parties, Plaintiff again sent the draft TSC
13 to Defendants for their review. Defendants never responded.
14 On May 4, 2008, Plaintiff again requested Defendants’ stipulation to filing the TSC. On May 5,
15 Defendants refused and stated “the pleadings are done.”
16 On June 30, 2008, Plaintiff filed with this Court his notice of withdrawal of motion for leave to
17 file the TSC, stating:
18 Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to file
and serve the Second Amended Complaint, naming the County of Kern . . . as
19 defendants in their personal and official capacities under Count Ten [sic] of Plaintiff’s
Complaint (42 U.S.C. 1983 procedural due process).
20 Doc. 159, 1:24 – 2:1.
21 On July 1, 2008, Plaintiff requested Defendants’ stipulation to filing the SAC. Later that day,
22 Defendants stated that they refused.
23 Discovery in this action will close on August 18, 2008, more than a month from now.
24 Plaintiff was therefore compelled to bring this motion. Defendants’ lack of cooperation has been
25 characteristic in this action.
26 II. ARGUMENT
27 Plaintiff seeks to effect the following items with the filing of the SAC:
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1 A. Item 1: Supplement the Complaint regarding events that occurred after the filing of
Plaintiff’s second supplemental complaint.
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1. Requested Change
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Plaintiff filed the Second Supplemental Complaint on June 13, 2007. Plaintiff now seeks to
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supplement the Complaint regarding events subsequent to June 13, 2007: (a) Defendant County’s lifting
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of Plaintiff’s home restriction on April 30, 2007, (b) Defendant County’s non-renewal of Plaintiff’s
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employment contract on October 4, 2007 and (c) Plaintiff’s exhaustion of administrative remedies.
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Accordingly, Plaintiff seeks to make additions to the Complaint including the following:
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27. On April 30, 2007, Defendant County sent a letter to Plaintiff notifying him of its
9 decision to lift the home restriction. To date, Plaintiff has received no explanation for the
involuntary leave or the restriction to his home.
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28. On May 1, 2007, Defendant County sent an email to Plaintiff notifying him of its
11 decision not to renew Plaintiff’s employment contract, which was not due to expire until
October 4, 2007, and to “let the contract run out”. To date, Plaintiff has received no
12 explanation for the decision not to renew his contract as in the past and as customary at
KMC.
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29. On October 4, 2007, Defendant County failed to renew Plaintiff’s employment
14 contract, which therefore expired.
15 142. During the time that Defendants placed Plaintiff on involuntary full-time leave,
including the period from December 7, 2006 to October 4, 2007, Defendants effectively
16 denied Plaintiff the opportunity to earn Professional Fees as set forth in Article II of the
Second Contract.
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149. On October 10, 2007, Plaintiff filed a supplemented Tort Claims Act complaint
18 with the County of Kern, supplemented to reflect events occurring after filing of the
supplemented Tort Claims Act complaint on April 23, 2007.
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153. On October 16, 2007, Plaintiff filed a supplemented complaint with the DFEH,
20 supplemented to reflect events occurring after filing of the supplemented complaint with
the DFEH on April 23, 2006.
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216. On December 7, 2006, Defendants placed Plaintiff on administrative leave, denying
22 him the opportunity to earn clearly established, constitutionally protectable professional
fees. In so doing, Defendants failed to give Plaintiff adequate due process and violated
23 his clearly established right to procedural due process.
24 217. On October 4, 2007, Defendant County failed to renew Plaintiff’s employment
contract, denying him clearly established, constitutionally protectable continued
25 employment. In so doing, Defendants failed to give Plaintiff adequate due process and
violated his clearly established right to procedural due process.
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2. Why It Should be Permitted
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Rule 15(d) of the Federal Rules of Civil Procedure provides, in pertinent part:
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1 Upon motion of a party the court may, upon reasonable notice and upon such terms as
are just, permit the party to serve a supplemental pleading setting forth transactions or
2 occurrences or events which have happened since the date of the pleading sought to be
supplemented.
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A supplemental pleading is used to allege relevant facts occurring after the original pleading was
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filed. Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 468. A supplemental pleading is designed to bring the
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action “up to date” and to set forth new facts affecting the controversy that have occurred since the
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original pleading was filed. Manning v. City of Auburn (11th Cir. 1992) 953 F.2d 1355, 1359–1360. A
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supplemental pleading may properly allege events occurring after the original complaint was filed and
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identify any new parties involved therein. Rule 15(d) “plainly permits supplemental amendments to
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cover events happening after suit, and it follows, of course, that persons participating in these new
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events may be added if necessary.” Griffin v. County School Board (1964) 377 U.S. 218, 226–227.
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Supplemental pleadings can only be filed with leave of court and upon such terms as are just. Glatt v.
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Chicago Park Dist. (7th Cir. 1996) 87 F.3d 190, 194. However, supplemental pleadings are favored
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because they enable the court to award complete relief in the same action, avoiding the costs and delays
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of separate suits. Therefore, absent a clear showing of prejudice to the opposing parties, they are
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liberally allowed. See Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 473; Quaratino v. Tiffany & Co. (2nd
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Cir. 1995) 71 F.3d 58, 66. The purpose of Rule 15(d) is to promote as complete an adjudication of the
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dispute between the parties as is possible. LaSalvia v. United Dairymen of Arizona, 804 F.2d 1113,
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1119 (9th Cir. 1986), cert. denied, 482 U.S. 928 (1987).
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The supplements sought by Plaintiff promote a complete and efficient adjudication of the
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disputes between the existing parties to this action. Item 1 – Plaintiff’s proposed supplements – allege a
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series of adverse employment actions taken by Defendants against Plaintiff that were first referenced in
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Plaintiff's original and subsequent complaints. For instance, Plaintiff’s Second Supplemental Complaint
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had alleged in pertinent part:
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102. On or about December 7, 2006, Culberson sent a letter addressed to Plaintiff
25 informing him that he was being placed on involuntary paid administrative leave
“pending resolution of a personnel matter”.
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104. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had
27 yet to be provided any explanation for his involuntary leave or any indication as to
whether or when it would end so that he could return to work, (ii) the involuntary leave
28 requiring him to remain at home by his phone during working hours was threatening to
erode his pathology skills, jeopardizing his employability and career as a pathologist,
1 (iii) the involuntary leave was denying him the opportunity to earn income from
professional fee billing, and (iv) part-time work was deemed therapeutic for him by his
2 physician and that the confinement to his house during working hours was having the
opposite effect of severely exacerbating his depression.
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105. To date, Plaintiff remains on involuntary leave, with no explanation therefore or
4 any indication as to whether or when it will end.
5 Plaintiff alleges that these actions constituted a continuing violation and/or a pattern and practice of
6 discrimination, harassment, and/or retaliation taken against Plaintiff because of his protected
7 characteristics and activities. If Plaintiff is denied leave to file the SAC, Plaintiff would be forced to file
8 a new law suit re-alleging most of the same claims contained in this action based on these new adverse
9 actions. Permitting the supplement would result in a more efficient use of scarce judicial resources.
10 More importantly, there is no risk of prejudice or surprise to Defendants. First, the supplements
11 comprise allegations of continuing injury or continuation of the wrongful conduct already alleged in
12 Plaintiff’s original or supplemental complaints. Second, Plaintiff has repeatedly apprised Defendants of
13 his desire to make the foregoing supplements to his complaint since January 4, 2008, when Plaintiff first
14 sent Defendants the draft TSC. Defendants initially refused to respond at all, then ultimately refused to
15 stipulate.
16 Third, Plaintiff served on Defendants copies of the supplemented complaint he filed with the
17 Department of Fair Employment & Housing on October 16, 2007 and supplemented Tort Claims Act
18 claim he filed with the County of Kern on October 10, 2007, each detailing the same supplemental
19 allegations which Plaintiff now proposes in the SAC. Fourth, Plaintiff’s Initial Disclosure contained a
20 Rule 26 report issued by Plaintiff’s forensic economist which fully disclosed the harm that Plaintiff
21 suffered and expected to suffer because of the events which Plaintiff now seeks to supplementally
22 allege.
23 Defendants cannot in good faith claim to be surprised or prejudiced by Plaintiff’s proposed
24 supplements.
25 B. Item 2: Correct an omission of an element of Plaintiff’s Count VI for disability
discrimination.
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1. Requested Change
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Plaintiff seeks to add Paragraph 125 to allege Plaintiff’s ability to perform the essential functions
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of his job, which is an element of Plaintiff’s disability discrimination claim. Paragraph 125 reads as
1 follows:
2 125. At all times material here, excluding a portion of the time when he was out on
voluntary full-time medical leave, Plaintiff has been able to perform the essential
3 functions of the employment positions he held with Defendants and each of them, with
reasonable accommodation.
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Rule 15 provides the parties with flexibility in presenting their claims and defenses. It assures
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that cases will be heard on their merits and avoids injustices which sometimes resulted from strict
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adherence to earlier technical pleading requirements. Foman v. Davis (1962) 371 U.S. 178, 182; Slayton
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v. American Express Co. (2nd Cir. 2006) 460 F.3d 215, 228. Rule 15 reflects the limited role assigned to
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federal pleadings: i.e., their purpose is simply to provide the parties with fair notice of the general nature
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and type of the pleader's claim or defense. As long as such notice has been provided, the pleadings
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should not limit the pleader's claims or defenses. Ibid.; see also Grier v. Brown (N.Dist. Cal. 2002) 230
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F.Supp.2d 1108, 1111.
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Plaintiff’s proposed correction of an omission does not allege any new facts; it arises out of the
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same exact nucleus of facts alleged in Plaintiff’s original and supplemental complaints filed with the
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Court. Simply put, it merely seeks to correct the omission of a legal pleading element required for
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Plaintiff’s Counts VI through VIII for violation of California’s disability discrimination laws.
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Defendants cannot claim to have been denied fair notice of the general nature of Plaintiff’s disability
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discrimination claims or the alleged facts from which they arise. Permitting the correction would not
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prejudice Defendants in any way. Conversely, denying the correction may prevent consideration of
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Plaintiff’s disability discrimination claims on their merits and result in injustice.
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C. Item 3: Add already-named and existing Defendant, the County of Kern, to
22 Plaintiff’s Count IX for 42 U.S.C. 1983 due process violation claim, based upon
events which were already alleged in the Complaint.
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1. Requested Change
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Plaintiff seeks to amend Count IX (See Paragraph 207 of the SAC) to add Defendant County of
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Kern to that count. Defendant County is an already named and existing party and no joinder of new
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parties is required under Rule 19. Rather, joinder of a claim against an existing party is required under
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Rule 18.
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1 Rule 15 requires that leave to amend should be freely given “when justice so requires.” Fed. R.
2 Civ. Proc. 15(a)(2); see Lone Star Ladies Invest. Club v. Schlotzsky's Inc. (5th Cir. 2001) 238 F.3d 363,
3 367 (policy favoring leave to amend “a necessary companion to notice pleading and discovery”.) This
4 policy is to be applied with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003)
5 316 F.3d 1048, 1051; Moore v. Baker (11th Cir. 1993) 989 F.2d 1129, 1131 (“justifying reasons must be
6 apparent for denial of a motion to amend”). Absent prejudice, or a strong showing of any of the other
7 reasons for denying leave to amend, “there exists a presumption under Rule 15(a) in favor of granting
8 leave to amend.” Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003) 316 F.3d 1048, 1052. While
9 “leave to amend should not be granted automatically,” the circumstances under which Rule 15(a)
10 “permits denial of leave to amend are limited.” Ynclan v. Department of Air Force (5th Cir. 1991) 943
11 F.2d 1388, 1391.
12 The opposing party may claim “prejudice” from any amendment, such as the expense of
13 responding to the amended pleading and possible delay in getting to trial; however, expense and delay
14 are probably not enough by themselves to deny leave to amend. There must be some showing of
15 inability to respond to the proposed amendment. Likewise, the need for additional discovery is
16 insufficient by itself to deny a proposed amended pleading. See U.S. v. Continental Illinois Nat'l Bank &
17 Trust (2nd Cir. 1989) 889 F.2d 1248, 1255; Genentech, Inc. v. Abbott Laboratories (N.Dist. Cal. 1989)
18 127 F.R.D. 529, 531.
19 Rule 18(a) expresses a philosophy of great liberality toward entertaining the broadest possible
20 scope of action consistent with fairness to parties; joinder of claims, parties, and remedies is strongly
21 encouraged. Lanier Business Products v Graymar Co. (1972, Dist. Md.) 342 F.Supp 1200. A party
22 should be able to join all claims he has against his opponent as matter of course to avoid a multiplicity of
23 litigation and possible claims of res judicata at later date. Ibid.
24 Joinder of Plaintiff’s Count IX for 42 U.S.C. 1983 due process violations against Defendant
25 County should be permitted. Defendant County is already named in several of Plaintiff’s Counts and is
26 an existing party in this action. Joinder of Defendant County in County IX is clearly warranted under
27 Monell v Dept. of Social Services (1978) 436 U.S. 658 and would avoid multiplicity of litigation and
28 claims of res judicata at a later date.
1 There is no risk of prejudice or surprise to Defendants. Defendants have had fair notice of the
2 nucleus of facts underlying Defendant County’s liability under Count IX – e.g., demotion of Plaintiff
3 and reduction of his base salary, placement of Plaintiff on involuntary administrative leave with home
4 restriction, and non-renewal of Plaintiff’s contract – since at least January 2008 when Plaintiff sent the
5 draft TSC to Defendants. On June 30, 2008, Plaintiff filed with this Court his notice of withdrawal of
6 motion to file the TS, expressly stating therein Plaintiff’s intention to seek joinder of Count IX against
7 Defendant County (Doc. 159). On July 1, 2008, Plaintiff again gave Defendants notice, providing them a
8 copy of the SAC along with a proposed stipulation (which Defendants rejected). With discovery in this
9 action due to close on August 18, 2008, Defendants have more than a month to conduct whatever
10 additional discovery they deem necessary in light of the SAC – although no additional discovery should
11 conceivably be necessary to parse out a Monell analysis.
12 Finally, under Cal. Gov’t. C. 995 et seq., Defendant County is required to indemnify its
13 employees against liability for violations alleged in Plaintiff’s Count IX as set forth in Plaintiff’s initial
14 complaint filed on January 6, 2008. The joinder of Count IX against Defendant County simply adds
15 direct liability where indirect liability for individually named employees under Count IX already exists.
16 III. CONCLUSION
17 The foregoing items which Plaintiff seeks to effect via the SAC would promote a complete
18 adjudication of issues arising out of the same nucleus of transactions and occurrences and a resolution of
19 disputes on their merits. At the same time, they do not pose any risk of prejudice or surprise to
20 Defendants. Defendants have had fair notice of the proposed supplemental allegations, the general
21 nature of Plaintiff’s disability discrimination and due process claims, and the facts establishing
22 Defendant County’s liability thereunder, since at least January 2008. In light of Cal. Gov’t. C. 995 et
23 seq., the joinder of Count IX against Defendant County only adds direct liability where indirect liability
24 already exists. In the implausible event Defendants require additional discovery as a consequence of the
25 SAC, they have the time to do so prior to the close of discovery on August 18, 2008. There is no need
26 for a continuance of any sort.
27 There should not be a need for this motion either. However, Defendants remain as uncooperative
28 as ever as they pursue their scorched earth litigation strategy. Plaintiff regrets this imposition on the
1 Court’s limited time and that Defendants’ steadfast refusal of Plaintiff’s multiple requests for stipulation
2 have made it necessary.
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4 For the foregoing reasons, Plaintiff DAVID F. JADWIN, D.O., respectfully requests that this
5 Court grant him leave to file the Second Amended Complaint.
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7 RESPECTFULLY SUBMITTED on July 7, 2008.
8 /s/ Eugene D. Lee
10 Phone: (213) 992-3299
Fax: (213) 596-0487
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1 DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION

2 I, Eugene D. Lee, declare and say, as follows:
3 1. I am an attorney at law duly licensed to practice before the Federal and State Courts of
4 California and admitted to practice before the United States District Court for the Eastern District of
5 California. I am the attorney representing Plaintiff David F. Jadwin in this matter.
6 2. I am making this declaration in support of Plaintiff David F. Jadwin, D.O.’s motion for
7 leave to file the Second Amended Complaint (“SAC”). The facts stated herein are personally known to
8 me and if called as a witness, I could and would competently testify to the truth of the facts set forth in
9 this declaration.
10 3. A true and correct copy of the SAC which Plaintiff seeks to file is attached hereto as
11 Exhibit 1.
12 4. On January 4, 2008, my co-counsel, Joan Herrington, sent the draft Third Supplemental
13 Complaint, which contained the nucleus of facts underlying all of the changes proposed in the SAC, to
14 defense counsel, Mark Wasser, for his review. He never responded. I was carbon-copied on Ms.
15 Herrington’s and Mr. Wasser’s emails. A true and correct copy of the emails is attached hereto as
16 Exhibit 2.
17 5. On January 22, 2008, I sent an email to Mr. Wasser noting Defendants had not responded
18 to Ms. Herrington’s previous email. Mr. Wasser sent an email replying that he was inclined not to so
19 stipulate but would reconsider subject to certain conditions. A true and correct copy of the emails is
20 attached hereto as Exhibit 3.
21 6. On April 17, 2008, after further discussion between the parties, I again sent the draft TSC
22 to Mr. Wasser for his review. He never responded. A true and correct copy of the emails is attached
23 hereto as Exhibit 4.
24 7. On May 4, 2008, I again requested Mr. Wasser’s stipulation to filing the TSC. On May 5,
25 he sent an email stating his refusal and stated “the pleadings are done.” A true and correct copy of the
26 emails is attached hereto as Exhibit 5.
27 8. On June 30, 2008, I filed with this Court Plaintiff’s notice of withdrawal of motion for
28 leave to file the TSC, which stated:
1 Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to file
and serve the Second Amended Complaint, naming the County of Kern . . . as
2 defendants in their personal and official capacities under Count Ten [sic] of Plaintiff’s
Complaint (42 U.S.C. 1983 procedural due process).
3 Doc. 159, 1:24 – 2:1.
4 A true and correct copy of the notice of withdrawal is attached hereto as Exhibit 6.
5 9. On July 1, 2008, I sent an email to Defendants requesting their stipulation to Plaintiff’s
6 filing the SAC. Later that day, Defendants emailed me, stating that they refused. Defendants’ lack of
7 cooperation has been characteristic in this action. A true and correct copy of the notice of withdrawal is
8 attached hereto as Exhibit 7.
9 10. Defendant County's refusal to allow Plaintiff to return to work at Kern Medical Center;
10 failure to conduct an investigation into the "personnel matters" that purported necessitated Plaintiff's
11 administrative leave with home restriction; and its decision not to renew Plaintiff's employment contract
12 are part of a series of adverse employment actions taken by Defendants against Plaintiff, as alleged in
13 Plaintiff's original and subsequent complaints. Plaintiff alleges that this series of adverse actions
14 constitute a continuing violation and/or a pattern and practice of discrimination, harassment, and/or
15 retaliation taken against Plaintiff because of his protected characteristics and activities. An efficient
16 resolution of all issues raised by these subsequent events requires supplementation of the Complaint to
17 encompass all adverse employment actions taken by Defendant County against Plaintiff.
18 11. None of the Defendants can claim that they will suffer prejudice if leave is granted to file
19 the SAC.
20 12. If this Court denies Plaintiff leave to file the SAC, Plaintiff would be forced to file a new
21 law suit re-alleging most of the same claims contained in this action based on these new adverse actions.
22 13. Defendants have known since at least May 1, 2007, that Plaintiff would never be allowed
23 to return to work at Kern Medical Center.
24 14. Plaintiff notified Defendants that he would seek further leave to amend or supplement his
25 complaint if Defendant County carried out its threat to keep Plaintiff on administrative leave until his
26 employment contract expired.
27 15. Plaintiff provided further notice of his intent to seek relief for these adverse actions by
28 serving a copy of his supplemented Department of Fair Employment & Housing complaint and right to
1 sue letter and supplemented Tort Claims Act complaint on Defendant County.
2 16. Plaintiff has already disclosed documents reflecting the harm that Plaintiff suffered and
3 will continue to suffer because of these subsequent adverse employment actions, and Defendants have
4 conducted further discovery on these disclosures.
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6 I declare under penalty of perjury under the laws of the State of California and of the United
7 States that the foregoing is true and correct.
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Dated: July 7, 2008 LAW OFFICE OF EUGENE LEE
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By: ____________________________________
11 Eugene D. Lee
Attorney for Defendant
12 DAVID F. JADWIN, D.O.
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EXHIBITS TO DECLARATION OF EUGENE D. LEE
EXHIBIT 1. Draft Second Amended Complaint

EXHIBIT 2. Meet and confer emails between Plaintiff’s attorney and Defendants’
attorney, dated 1/4/08
attorney, dated 5/4/08 to 5/5/08
EXHIBIT 6. Plaintiff’s Notice of Withdrawal of Motion to File TSC (Doc. 159)
SAC000001
EXHIBIT 1:
Draft Second Amended Complaint
SAC000002
1 Eugene D. Lee SB# 236812

3 Los Angeles, California 90013
Telephone: (213) 992-3299
4 Facsimile: (213) 596-0487
Email: elee@LOEL.com
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6 Attorneys for Plaintiff
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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10 DAVID F. JADWIN, D.O. Case No. 1:07-cv-26-OWW-TAG
11 Plaintiff
vs. SECOND SUPPLEMENTAL AMENDED
12 COMPLAINT FOR DAMAGES &
COUNTY OF KERN; PETER BRYAN INJUNCTIVE RELIEF
13 (both individually and in his former official
capacity as Chief Executive Officer Of I. Retaliation [Health & Safety Code §
14 Kern Medical Center); IRWIN HARRIS,
M.D; EUGENE KERCHER, M.D. (both 1278.5];
15 individually and in his official capacity as a II. Retaliation [Lab. Code § 1102.5];
President of Medical Staff of Kern Medical III. Retaliation [Gov’t Code §§ 12945.1, et
16 Center); JENNIFER ABRAHAM, M.D. seq; 2 C.C.R. § 7297.7(a)];
(both individually and in her official
17 capacity as Immediate Past President of IV. Interference with FMLA Rights [29
Medical Staff at Kern Medical Center); U.S.C. §§ 2601, et seq.];
18 SCOTT RAGLAND, M.D. (both V. Violation of CFRA Rights. [Gov’t Code
individually and in his official capacity as §§ 12945.1, et seq.];
19 President-Elect of Medical Staff of Kern VI. Disability Discrimination [Gov’t. Code
Medical Center); TONI SMITH, (both
20 individually and in her official capacity as § 12940(a)];
Chief Nurse Executive of Kern Medical VII. Failure to Provide Reasonable
21 Center); WILLIAM ROY, M.D.; and Accommodation [Gov’t Code §
DOES 1 through 10, inclusive. 12940(m)];
22 VIII. Failure to Engage in Good Faith In An
Defendants.
23 Interactive Process [Gov’t Code §
12940(n)];
24 IX. Procedural Due Process Violation [14th
Amendment of U.S. Constitution; 42
25 U.S.C. § 1983].
26 X. Defamation [Civ. Code §§ 45- 47]; and
XI. Violation of FLSA [29 U.S.C. §201 et
27 seq.]
28 JURY TRIAL DEMANDED
SAC000003
SECOND SUPPLEMENTALAMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 1/47
1
2 NATURE OF THE ACTION
3 This is an individual action brought by Plaintiff David F. Jadwin, D.O., a whistleblowing
4 physician with disabilities, against his employer, (i) the County of Kern (“Defendant County” or
5 “the County”); ) (ii) individual Defendants Peter Bryan (“Bryan”), Chief Executive Officer of
6 Kern Medical Center (“KMC”); Eugene Kercher, M.D., President of Medical Staff at KMC
7 (“Kercher”); Jennifer Abraham, M.D., Immediate Past President of Medical Staff at KMC
8 (“Abraham”); Scott Ragland, M.D., President-Elect of Medical Staff at KMC (“Ragland”); and
9 Toni Smith, Chief Nurse Executive of KMC, (“Smith”), both personally and in their official
10 capacities; and (iii) individual Defendants Irwin Harris, M.D., Chief Medical Officer of KMC
11 (“Harris”); William Roy, M.D., Chief of the Division of Gynecologic Oncology at KMC
12 (“Roy”); and DOES 1 through 10.
13 Plaintiff’s claims against his employer, Defendant County, allege violations of section
14 1278.5 of the Health & Safety Code1 which prohibits retaliation against a health care provider
15 who reports suspected unsafe care and conditions of patients in a health care facility; section
16 1102.5 of the Labor Code which prohibits retaliation against an employee for reporting or
17 refusing to participate in suspected violations of the law; the California Family Rights Act
18 (sections 12945.1, et seq., of the Government Code) (“CFRA”) and the Family and Medical
19 Leave Act (sections 2601, et seq. of the United States Code) (“FMLA”) which prohibit
20 interference with an employee’s right to medical leave and retaliation for an employee’s exercise
21 of the right to medical leave; and the Fair Employment and Housing Act [subdivisions (a), (m) &
22 (n) of section 12940 of the Government Code] (“FEHA”) which prohibits discrimination against
23 an employee with a disability, failure to provide reasonable accommodation, and failure to
24 engage in an interactive process; and recovery of wrongfully deducted wages under the Fair
25 Labor Standards Act (29 U.S.C. §§ 201, et seq.) (“FLSA”).
26 Plaintiff sues Defendants County, Roy, Harris and DOES 1 through 10, for defamation;
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28 1
All statutory references are to California Codes unless otherwise specified.
SAC000004
1 and also sues Defendant County and each of the individual Defendants except for Roy, and
2 Harris, both in their personal capacity and in their official capacity as members of the KMC Joint
3 Conference Committee (“JCC”), for violation of Plaintiff’s 14th Amendment of the United States
4 Constitution right to procedural due process pursuant to 42 U.S.C. § 1983 (“Due Process”).
5 Plaintiff brings this action for general, compensatory, and punitive damages; prejudgment
6 interest, costs and attorneys’ fees; injunctive and declaratory relief; and other appropriate and
7 just relief resulting from Defendants’ unlawful conduct, and as grounds therefor alleges:
8 JURISDICTION AND VENUE
9 1. This Court has federal question jurisdiction over the FMLA, Due Process, and
10 FLSA claims pursuant to 28 U.S.C. § 1331. The Court has supplemental jurisdiction over
11 Plaintiff’s transactionally-related state claims pursuant to 28 U.S.C. § 1367.
12 2. Venue is proper in Fresno in the Eastern District of California, as a substantial
13 part of the events and omissions giving rise to this claim occurred in the County of Kern,
14 California.
15 INTRADISTRICT ASSIGNMENT
16 3. Assignment to Bakersfield is proper pursuant to Civil Local Rule 3-120
17 (Appendix A) because the events giving rise to this civil action occurred in Bakersfield in the
18 County of Kern, California.
19 PARTIES
20 4. At all material times herein, Plaintiff David F. Jadwin, D.O. (“Plaintiff”) has
21 continuously been an employee of Defendant County, a citizen of the United States and
22 California; and a resident of Los Angeles County, California.
23 5. At all material times herein, Plaintiff was an individual with disabilities within the
24 meaning of Section 12926(i) & (k) of the Government Code.
25 6. On information and belief, at all material times herein, Defendant County is a
26 local public entity within the meaning of sections 811.2 & 900.4 of the Government Code and is
27 operating in Kern County, California.
28 7. At all material times herein, the County has continuously been an employer
SAC000005
1 within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Government Code §
2 12945.2(b)(2)], FEHA [Government Code § 12926(d)], and FLSA [29 U.S.C. § 203], engaged in
3 interstate commerce and regularly employing more than fifty employees within seventy-five
4 miles of Plaintiff’s workplace.
5 8. On information and belief, at all material times herein, Defendant Peter Bryan is a
6 citizen of Colorado, and a resident of Denver, Colorado, and was Chief Executive Officer of
7 KMC, and a member of the JCC.
8 9. On information and belief, at all material times herein, Defendant Eugene Kercher
9 is a citizen of California, a resident of Kern County, California, and President of KMC Medical
10 Staff, and a member of the JCC.
11 10. On information and belief, at all material times herein, Defendant Irwin Harris is
12 a citizen of California, and a resident of Kern County, California, and Chief Medical Officer at
13 KMC, and a non-voting member of the JCC.
14 11. On information and belief, at all material times herein, Defendant Jennifer
15 Abraham is a citizen of California, and a resident of Kern County, California and Immediate Past
16 President of KMC Medical Staff, and a member of the JCC.
17 12. On information and belief, at all material times herein, Defendant Scott Ragland
18 is a citizen of California, and a resident of Kern County, California, President-Elect of KMC
19 Medical Staff, and a member of the JCC.
20 13. On information and belief, at all material times herein, Defendant Toni Smith is a
21 citizen of California, and a resident of Kern County, California, and Chief Nurse Executive of
22 KMC, and a member of the JCC.
23 14. On information and belief, at all material times herein, Defendant William Roy is
24 a citizen of California, and a resident of Kern County, California and Chief of the Division of
25 Gynecologic Oncology at KMC.
26 15. The true names and capacities of Defendants DOES 1 through 10, inclusive, are
27 presently unknown to Plaintiff, who therefore sues said Defendants by such fictitious names.
28 Plaintiff will amend this complaint to set forth the true names and capacities of said Defendants
SAC000006
1 when they are ascertained. Plaintiff is informed and believes, and upon such information and
2 belief alleges, that at all times relevant, each of the fictitiously-named Defendants was an agent,
3 employee, or co-conspirator of one or more of the named Defendants, and was acting within the
4 course and scope of said agency or employment. Plaintiff is further informed and believes, and
5 upon such information and belief alleges, that each of the fictitiously named Defendants aided,
6 assisted, approved, acknowledged and/or ratified the wrongful acts committed by Defendants as
7 alleged herein, and that Plaintiff’s damages, as alleged herein, were legally caused by such
8 Defendants.
9 FACTUAL BACKGROUND
10 A. STATEMENT OF THE CASE
11 16. Plaintiff is a highly-qualified and capable pathologist with numerous professional
12 accomplishments that have included leadership roles in national, state and local pathology and
13 medical societies. Plaintiff received extensive education and training at reputable academic and
14 medical institutions. Plaintiff has managed several clinical laboratories and pathology
15 departments that have achieved accreditation by the College of American Pathologists,
16 frequently “with distinction.” Plaintiff has also been recognized by numerous pathologists and
17 physicians for his professional leadership and commitment to set and uphold rigorous and ethical
18 standards for patient care quality and safety.
19 17. In late 2000, Plaintiff was recruited to assume the position of Chair of the
20 Pathology Department at KMC, a teaching hospital owned and operated by Defendant County.
21 Plaintiff was recruited in part to raise standards of patient care quality and safety at KMC.
22 Plaintiff immediately set about implementing, among other things, a best-practices peer review
23 system in the Pathology Department.
24 18. In 2001, Plaintiff began to report concerns to key members of KMC’s medical
25 staff and administration about the unacceptably high levels of unsatisfactory or non-diagnostic
26 fine needle aspirations (“FNA”) – a method of using a needle and syringe to obtain deep internal
27 tissue samples of vital organs – being taken by the Radiology Department at KMC for diagnosis
28 by the Pathology Department. In 2003, Plaintiff began to report concerns to key members of
SAC000007
1 KMC’s medical staff and administration about ineffective and unnecessary blood transfusions
2 and an unacceptably high incidence of lost or incomplete product chart copy certifications
3 (“PCC”) required for accurate tracking of dangerous blood transfusions. In 2004, Plaintiff began
4 to report concerns to key members of KMC’s medical staff and administration about the need for
5 instituting a policy of requiring KMC Pathology Department review prior to undertaking
6 significant surgical procedures based upon the reports of outside pathologists (“Internal
7 Pathology Review”). In 2005, Plaintiff reported a concern to key members of KMC’s medical
8 staff and administration about an inappropriate radical hysterectomy (cancer surgical procedure
9 for removal of all female reproductive organs and regional lymph nodes) performed by Roy on a
10 patient with a benign endometriotic cyst (“Roy Hysterectomy”). Also in 2005, Plaintiff began to
11 report concerns to key members of KMC’s medical staff and administration about the need to
12 review a series of serious diagnostic errors committed by a former KMC pathologist, including
13 the failure to identify invasive adenocarcinoma in several prostate needle biopsies (“Prostate
14 Biopsy Errors”). Also in 2005, Plaintiff reported concerns to KMC administration that KMC
15 physicians had performed surgery on a wrong patient due to an error which Plaintiff believed
16 would have been less likely had KMC implemented Internal Pathology Review per Plaintiff’s
17 recommendation. Plaintiff reported several other concerns about inappropriate patient care and
18 noncompliance with quality control standards. In February of 2006, Plaintiff met with Bernard
19 Barmann, County Counsel for the County of Kern (“Barmann”), to report the foregoing
20 concerns.
21 19. In 2005, Roy began a campaign of making defamatory statements impugning
22 Plaintiff’s professional competence. Events culminated in October of 2005, when Kercher,
23 Harris, Ragland and Abraham harshly reprimanded Plaintiff, based on false allegations, resulting
24 from a 15- to 20-minute presentation given by Plaintiff during a monthly KMC oncology
25 conference that allegedly exceeded conference time limits by approximately ten minutes.
26 Plaintiff’s presentation had attempted to highlight several of Plaintiff’s above-mentioned
27 concerns regarding Internal Pathology Review and their potential impact upon deciding the
28 correct surgical procedure for the patient under discussion. The presentation was stopped before
SAC000008
1 Plaintiff could present the key diagnostic conclusions of his presentation.

2 20. After the conference, Harris solicited letters of disapprobation from conference
3 participants, including Roy. Roy submitted a letter (“Roy Letter”) containing several false
4 statements of fact which defamed Plaintiff to other members of KMC’s medical staff and
5 administration. On information and belief, Harris and DOES 1 through 10 republished the Roy
6 Letter to third parties. Several KMC medical and administration officers including Bryan and
7 Kercher were aware of Roy’s, Harris’s and DOES 1 through 10’s acts of defamation, but refused
8 to intercede, and possibly approved or encouraged them.
9 21. In December of 2005, Plaintiff began medical leave initially in the form of
10 medically necessary reduced work schedule due to severe depression which was later extended
11 to June 16, 2006. It was not until on or about March 2, 2006, that Plaintiff was finally provided
12 with a Request for Leave of Absence form which he then submitted to KMC’s HR Department.
13 Plaintiff also received a document entitled “Designation of Leave (Serious Health Condition of
14 Employee-Intermittent)” from the HR Department at KMC, which included a written guarantee
15 of Plaintiff’s reinstatement to his same or equivalent position with same pay, benefits and terms
16 and conditions of employment upon his return from his leave.
17 22. During Plaintiff’s sick leave, Bryan issued a series of verbal and written
18 ultimatums to Plaintiff which threatened him with termination or demotion upon return from his
19 leave, thereby giving notice that Plaintiff was not in fact guaranteed reinstatement to his same or
20 equivalent position. In a meeting in April of 2006, Bryan ordered Plaintiff to cease his reduced
21 work schedule and begin full-time leave, despite the fact that just days before, Plaintiff had
22 submitted a written request for extension of his reduced work schedule for an additional six
23 months to one year because of his serious medical condition. On June 14, 2006, two days before
24 Plaintiff’s medical leave was allegedly due to end, Bryan informed Plaintiff that he was denying
25 Plaintiff reinstatement to his same or equivalent position, and that he was in fact demoting
26 Plaintiff to a staff pathologist position, effective June 17, 2006, because Plaintiff had taken
27 excessive sick leaves; Plaintiff’s base salary was also ultimately reduced over $100,000 (over
28 35%) as a result (such demotion and pay reduction are hereinafter referred to collectively as
SAC000009
1 “demotion” or “demoted”).
2 23. Plaintiff resumed full-time work as a staff pathologist on October 4, 2006.
3 Plaintiff continued to suffer a hostile work environment and retaliation. On or about November
4 28, 2006, after almost six years of trying to reform KMC from within, Plaintiff finally blew the
5 whistle on KMC, formally reporting his Concerns to the Joint Commission on Accreditation of
6 Hospital Organizations, the College of American Pathologists, and the California Department of
7 Health Services (“Authorities”). On or about December 4, 2006, Plaintiff submitted a written
8 complaint to KMC leadership about numerous additional concerns regarding the quality of
9 patient care and the deterioration of the pathology department. On December 7, Plaintiff was
10 placed on involuntary administrative leave allegedly “pending resolution of a personnel matter”.
11 24. On December 13, 2006, Plaintiff sent a letter to David Culberson (“Culberson”),
12 interim Chief Executive Officer of KMC, and carbon-copied to members of KMC’s medical staff
13 leadership, informing him that he had reported his Concerns to the Authorities.
14 25. On March 28, 2007, KMC authorized Plaintiff to access his office in order to
15 retrieve his personal computer files. Upon his arrival, Defendant Dutt informed him that his
16 office was now locked and that Defendant Dutt now had custody of the key, that Plaintiff’s file
17 cabinet and computer had been physically removed and retasked for other purposes at KMC, and
18 that Plaintiff would not be able to access his personal computer files after all.
19 26. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had
20 yet to be provided any explanation for his involuntary leave or any indication as to whether or
21 when it would end so that he could return to work, (ii) the involuntary leave requiring him to
22 remain at home by his phone during working hours was threatening to erode his pathology skills,
23 jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was
24 denying him the opportunity to earn income from professional fee billing, and (iv) part-time
25 work was deemed therapeutic for him by his physician and that the confinement to his house
26 during working hours was having the opposite effect of severely exacerbating his depression.
27 27. On April 30, 2007, Defendant County sent a letter to Plaintiff notifying him of its
28 decision to lift the home restriction. To date, Plaintiff has received no explanation for the
SAC000010
1 involuntary leave or the restriction to his home.

2 28. On May 1, 2007, Defendant County sent an email to Plaintiff notifying him of its
3 decision not to renew Plaintiff’s employment contract, which was not due to expire until October
4 4, 2007, and to “let the contract run out”. To date, Plaintiff has received no explanation for the
5 decision not to renew his contract as in the past and as customary at KMC.
8 B. EMPLOYMENT RELATIONSHIP
9 27.30. On October 24, 2000, the County entered into an employment contract with
10 Plaintiff (“Initial Contract”), hiring him to a full-time position as Chair of the Pathology
11 Department at KMC and as Medical Director of the KMC clinical laboratory (“Lab Director”)
12 for an employment term ending on November 30, 2006. As Lab Director, Plaintiff’s job duties
13 included Medical Director of KMC’s blood bank and transfusion service.
14 28.31. On or about November 12, 2002, the County modified Plaintiff’s employment
15 contract to reflect an increase in his compensation and leave accrual rate, among other things.
16 This second employment contract dated as of October 5, 2002 (“Second Contract”) extended
17 Plaintiff’s employment term to October 4, 2007. A true and correct copy of the Second Contract
18 is attached hereto as Exhibit 1, and incorporated by reference herein.
19 29.32. The Pathology Department and consequently the Chair of Pathology is
20 customarily referred to as “the conscience of a hospital”, and Plaintiff’s job duties extended
21 “beyond (his) own department and (he was) expected to be an effective contributor to the overall
22 improvement efforts of the hospital as a whole.” Such duties included participation in many
23 hospital committees including KMC’s Quality Management Committee.
24 30.33. According to Exhibit A of the Initial Contract, the County expected Plaintiff to
25 spend 80 to 90% of his time on clinical duties of a pathologist, and 10 to 20% of his time on
26 administrative duties as Chair of the Department of Pathology (“Chair of Pathology”) and Lab
27 Director.
28 31.34. Article V.10 of the Second Contract provides that Plaintiff will not be deemed a
SAC000011
1 classified employee, or have any rights or protections under the County’s Civil Service
2 Ordinance, rules or regulation.
3 32.35. Article II.3(B)(1) of the Second Contract guarantees that Plaintiff’s base salary
4 will be based on a benchmark salary in proportion to his full-effort commitment. In turn, the
5 benchmark salary will be based on a national standard with four steps (A-D) with three criteria
6 for step placement: clinical experience, teaching and administrative duties as set forth in the
7 KMC Administrative Policies and Procedures Manual (“KAPP Manual”).
8 33.36. On information and belief, at the time of his hire, the County placed Plaintiff’s
9 salary level at Step C .
10 34.37. Article III.4 of the Second Contract entitles Plaintiff to the same right to unpaid
11 leave of absence as those provided to a regular County employee under the County’s policy,
12 including six months cumulative unpaid leave of absence for illness or disability pursuant to
13 Rule 1201.20 of the Rules of the Civil Service Commission for the County of Kern (“CSC
14 Rules”).
15 35.38. Article IV.1(B) of the Second Contract requires “cause” for termination of
16 Plaintiff’s employment, which cause is defined as “serious administrative violation and/or
17 unsatisfactory clinical performance.”
18 36.39. Article IV.3 of the Second Contract entitles Plaintiff to administrative review of
19 any corrective action for unsatisfactory clinical performance pursuant to the Bylaws of the
20 Medical Staff of KMC (“Bylaws”); and for administrative review of any corrective action for
21 violation of administrative policies of the County or KMC pursuant to the KAPP Manual.
22 C. WHISTLEBLOWING
23 37.40. Throughout the course of his employment by KMC, Plaintiff has advocated for
24 appropriate patient care and compliance with the quality accreditation standards of the Joint
25 Commission for the Accreditation of Hospital Organizations, the College of American
26 Pathologists, the American Association of Blood Banks and the American College of Surgeons
27 Commission on Cancer as well as applicable state and federal regulations designed to ensure safe
28 care and conditions of patients.
SAC000012
1 38.41. Plaintiff reported his various concerns (“Concerns”) about inappropriate and/or
2 suspected unsafe patient care and conditions and non-compliance with applicable laws and
3 regulations and accreditation standards to Bryan and key members of KMC’s medical staff,
4 including but not limited to the following: (i) beginning in 2001, Plaintiff reported the
5 unacceptably high levels of unsatisfactory or non-diagnostic FNAs being taken by the Radiology
6 Department at KMC; (ii) beginning in 2003, Plaintiff reported the unacceptably high incidence
7 of lost or incomplete PCC; (iii) beginning in 2004, Plaintiff reported the need for Internal
8 Pathology Review; (iv) beginning in 2005, Plaintiff reported the Roy Hysterectomy; (v)
9 beginning in 2005, Plaintiff reported the need to review the Prostate Biopsy Errors; and (vi)
10 beginning in 2005, Plaintiff reported that KMC physicians had performed surgery on a wrong
11 patient due to an error which Plaintiff believed would have been less likely had KMC
12 implemented Internal Pathology Review. Unfortunately, Plaintiff’s reports not only appeared to
13 fall on deaf ears, but also generated resentment and hostility among his peers at KMC.
14 39.42. On or about December 12, 2005, Plaintiff’s former attorney, Michael Young
15 (“Young”), sent a letter to Barmann, requesting Barmann meet with Plaintiff to discuss his
16 Concerns.
17 40.43. On or about February 9, 2006, Barmann and Barnes met with Plaintiff. Plaintiff
18 reported his various Concerns, as well as the retaliation, defamation and hostile work
19 environment Plaintiff was experiencing at KMC.
20 41.44. Finally, on or about November 28, 2006, after almost six years of trying to reform
21 KMC from within in vain, Plaintiff formally reported his Concerns to the Authorities.
22 42.45. On December 13, 2006, Plaintiff sent a letter addressed to Culberson, and carbon-
23 copied to members of KMC’s medical staff leadership, informing him that “KMC leadership has
24 left me no choice but to report the above issues to the appropriate state and accrediting
25 agencies”.
26 D. DEFAMATION
27 43.46. In 2005, Plaintiff had reported the need for Internal Pathology Review to key
28 members of KMC medical staff and administration. Roy refused to submit outside pathology
SAC000013
1 reports for Internal Pathology Review prior to surgery, preferring instead to refer all of his
2 pathology cases to an acquaintance at the University of Southern California without intereference
3 from KMC’s Pathology Department.
4 44.47. On or about April 15, 2005, Roy sent a letter which was addressed to Plaintiff and
5 carbon-copied to Dr. Leonard Perez (“Perez”), Chair of the OB-GYN Department at KMC. The
6 letter contained the following statements of fact:
7 Additionally, I cannot institute adjuvant therapy in a timely manner when it takes
weeks and sometimes months to get an accurate diagnosis from your
8 department…. Most importantly, delays in instituting appropriate adjuvant
therapy due to delays in obtaining an accurate diagnosis, or instituting
9 inappropriate therapy based on an inaccurate diagnosis can negatively affect
patient survival.
10
45.48. Roy’s statements regarding delays of weeks and months were false. Perez
11
reasonably understood that the statements were about Plaintiff. Perez reasonably understood the
12
statements to mean that Plaintiff was not managing the Pathology Department in a competent
13
manner. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy
14
acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a
15
significant loss of reputation and confidence among his peers at KMC.
16
46.49. On or about April 20, 2005, Plaintiff sent a letter addressed to Roy and carbon-
17
copied to Perez, Dr. Maureen Martin, Chair of Surgery (“Martin”), Kercher and Bryan. The letter
18
stated: “Please refrain from making statements such as it takes weeks and sometimes months to
19
get an accurate diagnosis from your department without citing specific instances. In my
20
experience, such statements are typically untrue and consequently are unethical if not supported
21
by facts.” As officers of KMC, Kercher and Bryan approved, accepted, and/or failed to intercede
22
to protect Plaintiff from Roy’s defamatory acts, and in so doing, ratified them.
23
47.50. In May of 2005, Harris informed Plaintiff that Roy had voiced concerns about the
24
Pathology Department and had submitted certain pathology reports for second-level peer review
25
and investigation. Plaintiff requested that Harris identify the pathology reports in question but
26
Harris refused. Later, Plaintiff determined that no second-level peer review ever occurred.
27
48.51. On or about June 30, 2005, Martin and Harris told Plaintiff that Roy was making
28
negative comments about the Pathology Department.
SAC000014
1 49.52. On or about June 30, 2005, Plaintiff sent a letter addressed to Roy and carbon-
2 copied to Perez, Martin, Harris, Kercher and Bryan. The letter stated:
3 It has come to my attention that you are making negative statements to numerous
key members of the medical staff regarding pathology reports issued by this
4 department. You are reported by others to claim that several of KMC pathology
diagnoses do not agree with outside diagnoses rendered by other outside
5 pathologists and that these discrepancies have or would have changed patient
management. It would appear from these actions that you are claiming that our
6 diagnoses are not correct. I do not recollect any true, substantial discrepancies
between diagnoses rendered by this department and outside pathology
7 departments based upon retrospective review of our cases since my arrival in
December 2000. It is reported that you claim to have in your possession several
8 such reports detailing incorrect diagnoses rendered by our department. It is also
my understanding that you have been asked on several occasions to produce
9 examples of these discrepancies, and as of yet have not produced any such reports
to individuals that have made these requests. To demonstrate and support the
10 accuracy of your claims, I request that you produce copies of these reports for my
review by July 15, 2005.
11
50.53. Roy’s statements of fact regarding incorrect diagnoses by the Pathology
12
Department were false. The key members of the KMC medical staff who heard the statements
13
reasonably understood that the statements were about Plaintiff and reasonably understood the
14
statements to mean that Plaintiff was not managing the Pathology Department in a competent
15
manner. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy
16
acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a
17
significant loss of reputation and confidence among his peers at KMC. As officers of KMC,
18
Harris, Kercher and Bryan approved, accepted, and/or failed to intercede against Roy’s
19
defamatory acts and in so doing, ratified them.
20
51.54. On or about July 15, 2005, Roy sent a letter addressed to Plaintiff and carbon-
21
copied to Harris, Bryan and Perez. The letter stated:
22
I was quite surprised to receive your letter of June 5th. The “discrepancies”
23 should be well known to you as I have brought them to your attention many times,
both in the presence of Dr. Perez, and in a letter to you a couple of months ago, as
24 well as multiple phone conversations. The inaccuracies, delays and refusals to
refer specimens for outside review continue. The matter has been appropriately
25 reported to the administration for a quality assurance review, as I have had no
success in my pleadings to you directly.
26
52.55. Roy’s statements of fact regarding the existence of “discrepancies” and the
27
bringing of them to Plaintiff’s attention “many times” and “in the presence of Dr. Perez” were
28
false. Harris, Bryan and Perez reasonably understood that the statements were about Plaintiff and
SAC000015
1 reasonably understood the statements to mean that Plaintiff was neither managing the Pathology
2 Department in a competent manner nor being truthful about Roy’s disclosures of the facts and
3 circumstances underlying his defamatory statements. Roy failed to use reasonable care to
4 determine the truth or falsity of the statements. Roy acted with malice in publishing the false
5 statements. As a consequence, Plaintiff experienced a significant loss of reputation and
6 confidence among his peers at KMC. As officers of KMC, Harris and Bryan approved, accepted,
7 and/or failed to intercede against Roy’s defamatory acts and in so doing, ratified them.
8 53.56. Moreover, Roy’s statement of fact that he had reported the matter to KMC
9 administration for quality assurance review was false. Harris, Bryan and Perez reasonably
10 understood that the statement was about Plaintiff and reasonably understood the statements to
11 mean that Plaintiff was not managing the Pathology Department in a competent manner. Roy
12 failed to use reasonable care to determine the truth or falsity of the statements. Roy acted with
13 malice in publishing the false statements. As a consequence, Plaintiff experienced a significant
14 loss of reputation and confidence among his peers at KMC. As officers of KMC, Harris and
15 Bryan approved, accepted, and/or failed to intercede against Roy’s defamatory acts and in so
16 doing, ratified them.
17 54.57. On October 12, 2005, Plaintiff gave a presentation at the monthly KMC oncology
18 conference (“Oncology Conference”) highlighting concerns regarding a patient that might need a
19 hysterectomy, and the need for Internal Pathology Review.
20 55.58. Plaintiff’s presentation lasted approximately 15 to 20 minutes, which exceeded
21 alleged conference time limits by approximately ten minutes. Plaintiff was stopped before he
22 could present his final slides stating his patient care quality conclusions.
23 56.59. On information and belief, presenters at prior and subsequent Oncology
24 Conferences frequently exceeded time limits without interruption, incident, or reprimand.
25 57.60. Roy, Bill Taylor, Vice-Chair of Surgery, and Albert McBride, the Cancer
26 Committee Liaison, attended Plaintiff’s presentation at the October 12 Oncology Conference and
27 were requested by Harris to give him letters criticizing Plaintiff’s time infraction.
28 58.61. In response, Roy sent a letter (“Roy Letter”), dated October 13, 2005, addressed
SAC000016
1 to Harris. The Roy Letter stated in relevant part:

2 With respect, Dr. Jadwin is a small rural community hospital pathologist, with
very limited experience and no specialty training in regard to Gynecologic
3 Oncologic Pathology…. Dr. Jadwin is not a clinician, and has neither the fund of
knowledge nor the experience to make any recommendations regarding the
4 treatment of patients, much less criticize the care provided by those, such as
myself, whose training and experience were attained at some of the highest seats
5 of learning in the U.S and abroad. Additionally, as you are aware, it is not
infrequent that Dr. Jadwin’s diagnoses are in err when reviewed by outside
6 specialists, as in this particular case. The management of the patient would have
been inappropriate if we accepted Dr. Jadwin’s report, which as you know, was
7 different from two other pathologists in his own department (three different
opinions). I have no confidence in Dr. Jadwin and I am actively pursuing the
8 possibility of having all specimens from the Gynecologic Oncology service
evaluated outside, as is currently done for the Neurosurgery service…. I have
9 discussed these issues with Dr. Perez, Chairman of the Department of Obstectrics
and Gynecology, and he assures me of his full support.
10
59.62. The Roy Letter contained the following false statements of fact: (i) Plaintiff is a
11
small rural community hospital pathologist, (ii) Plaintiff has very limited experience in
12
Gynecologic Oncologic Pathology, (iii) Plaintiff is not a clinician, (iv) Plaintiff has neither the
13
fund of knowledge nor the experience to make any recommendations regarding the treatment of
14
patients, much less criticize the care given by doctors such as Roy, (v) it is not infrequent that
15
Plaintiff’s diagnoses are in err when reviewed by outside specialists, as in this particular case,
16
(vi) the management of the patient would have been inappropriate if Plaintiff’s report had been
17
accepted, and (vii) Plaintiff’s report was different from two other pathologists in his own
18
department, suggesting the deficiency of his report. Harris reasonably understood that the
19
statements were about Plaintiff and reasonably understood the statements to mean that Plaintiff’s
20
credentials and abilities as a pathologist and physician were deficient. Roy failed to use
21
reasonable care to determine the truth or falsity of the statements. Roy acted with malice in
22
publishing the false statements. The Roy Letter exceeded the scope of Harris’s request. Roy
23
defamed Plaintiff despite Plaintiff’s numerous prior requests to stop defaming him. As a
24
consequence, Plaintiff experienced a significant loss of reputation and confidence among his
25
peers at KMC. As an officer of KMC, Harris approved, accepted, and/or failed to intercede
26
against Roy’s defamatory acts and in so doing, ratified them.
27
60.63. Plaintiff is informed and believes, and thereupon alleges, that Harris subsequently
28
republished the Roy Letter to DOES 1 through 10, and that DOES 1 through 10 further
SAC000017
1 republished the Roy Letter to other members of KMC staff. Such other members of KMC staff
2 reasonably understood that the statements contained in the Roy Letter were about Plaintiff and
3 reasonably understood such statements to mean that Plaintiff’s credentials and abilities as a
4 pathologist and physician were deficient. Harris and DOES 1 through 10 failed to use reasonable
5 care to determine the truth or falsity of the statements. Harris and DOES 1 through 10 acted with
6 actual malice in publishing the false statements. As a consequence, Plaintiff experienced a
7 significant loss of reputation and confidence among his peers at KMC. As officers of KMC,
8 Harris, and DOES 1 through 10 accepted, and/or failed to intercede against Roy’s defamatory
9 acts or their subsequent republication, and in so doing, ratified them.
10 61.64. On or about October 17, 2005, Plaintiff was ordered to attend a meeting with
11 Kercher, Harris and Ragland who subjected Plaintiff to humiliating ridicule, yelling and
12 inappropriate questioning regarding Plaintiff’s alleged violation of Oncology Conference time
13 limits. Kercher, Harris and Ragland informed Plaintiff that they had received letters of
14 disapprobation (“Disapprobation Letters”) from three conference participants – one of which was
15 the Roy Letter – and would be issuing a letter of reprimand later that day which would be entered
16 into Plaintiff’s medical staff file. When Plaintiff asked to see the Disapprobation Letters,
17 Kercher, Harris and Ragland refused to provide them. As officers of KMC, Harris, Kercher,
18 Ragland and Abraham approved, accepted, and/or failed to intercede against Roy’s defamatory
19 acts or their subsequent republication by Harris and DOES 1 through 10, and in so doing, ratified
20 such defamatory acts.
21 62.65. Later that day, Harris, Kercher, Ragland and Abraham issued a formal letter of
22 reprimand addressed to Plaintiff (“Reprimand Letter”). The Reprimand Letter stated: “Your
23 repeated misconduct at the Tumor Conference on October 12, 2005 was noted by numerous
24 attendants, three of which have written letters of their dissatisfaction, which will be entered into
25 your medical staff file.” The three letters to be entered into Plaintiff’s medical staff file included
26 the Roy Letter. As officers of KMC, Harris, Kercher, Ragland and Abraham approved, accepted,
27 and/or failed to intercede against Roy’s defamatory acts or their subsequent republication by
28 Harris and DOES 1 through 10, and in so doing, ratified such defamatory acts.
SAC000018
1 63.66. During the period from on or about October 17, 2005 to on or about January
2 2007, Plaintiff submitted numerous requests to Harris, Ms. Karen Barnes, Deputy County
3 Counsel for the County of Kern (“Barnes”), and Bryan to see the Disapprobation Letters. He was
4 continuously refused. As officers of KMC, Harris and Bryan approved, accepted, and/or failed to
5 intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1
6 through 10, and in so doing, ratified such defamatory acts.
7 64.67. On or about December 12, 2005, Young sent a letter to Barmann stating:
8 Recently, Dr. Jadwin was advised that several of the staff physicians had written
letters of dissatisfaction regarding Dr. Jadwin’s professionalism and was advised
9 that these letters were placed into his personnel/medical staff file. When the
doctor asked to see these letters, he was refused access to them and was
10 subsequently told that the letters had not been placed into his file. Dr. Jadwin then
sent an e-mail to Deputy County Counsel, Karen Barnes, copy attached, regarding
11 an opinion with respect to his right to inspect the file. At this juncture, there has
been no reply to his request. Needless to say, Dr. Jadwin is extremely upset and
12 emotionally distraught over the present state of affairs.
13 65.68. On or about January 6, 2006, Barnes sent a letter on behalf of Barmann and
14 addressed to Young. The letter included as an attachment a copy of the Roy Letter, redacted to
15 conceal Roy’s identity. This letter afforded Plaintiff his first opportunity to see the Roy Letter
16 and the defamatory statements contained therein.
17 66.69. On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan, stating:
18 I have been victim of professional mistreatment by a few members of medical
staff. You are aware of these instances. I believe this harassment is in response to
19 the many quality management issues that I have raised. This harassment has led
me develop depression, anxiety and insomnia. Most recent issue involving the
20 October Oncology Conference is still unresolved. I request administrative leave
with pay until this issue is resolved.
21
67.70. On or about February 10, 2006, Plaintiff sent a letter addressed to Roy,
22
challenging the truthfulness of the claims contained in Roy’s letter of July 15, 2005, that Roy had
23
reported certain patient cases handled by the Pathology Department to the KMC administration
24
for quality assurance review. Plaintiff stated “to my knowledge no credible report has been
25
submitted. As of today, I have not received notice of any deficient reports from you.” Plaintiff
26
further challenged the truthfulness of other defamatory statements contained in the Roy Letter
27
and demanded “immediate proof of these allegations within 14 days”. Plaintiff went on to state
28
that if Roy failed to produce such proof, then Roy should issue an apology meeting Plaintiff’s
SAC000019
1 specifications.
2 68.71. On or about February 21, 2006, Bryan sent a letter addressed to Plaintiff, stating
3 in relevant part:
4 I received a copy of your letter to Dr. Roy dated February 10, 2006 and I must say
that I am disappointed in your decision to send it… I know that you felt justified
5 in sending the letter. You feel that Dr. Roy besmirched your reputation and
challenged your professional competency. Furthermore, you feel that there is no
6 evidence to support his characterizations of you and you are demanding that he
recant his comments and apologize. All of these things may or may not be as you
7 say. However, your decision to confront the issues this way is not a good one…. It
is not your message that people react to but rather how you deliver it…. Dr. Roy’s
8 letter was correspondence submitted through the medical staff structure, and the
staff officers and Chief Medical Officer have the obligation to decide what to do
9 with that input. They can either ignore that correspondence because of a lack of
supporting evidence, call for a review of the quality of your work, or cause a
10 meeting to happen between you and Dr. Roy and Dr. Perez to further clarify the
basis of Dr. Roy’s concerns.
11
69.72. As an officer of KMC, Bryan approved, accepted, and/or failed to intercede
12
against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1 through
13
10, and in so doing, ratified them.
14
70.73. On or about March 16, 2006, Plaintiff sent an email addressed to Kercher and
15
carbon-copied to Bryan, stating:
16
I am further requesting an investigation of Dr. Roy’s professional behavior by the
17 medical staff… [H]e has made outrageous false statements about the pathology
department and myself, which cause great concern about his ethical integrity…. I
18 think it is outrageous that the medical staff sits by and lets this individual act in
such a pompous, destructive manner. I feel a personal duty to the pathology
19 department (and the hospital) to push the issue of his bad conduct in whatever
venue may be needed to control the actions of this individual.
20
71.74. On or about March 30, 2006, Young sent a letter addressed to Roy, stating:
21
Dr. Jadwin is very upset with the alleged statements attributable to you regarding
22 his reputation in the medical community. Unless you come forward with facts in
support of your position to show the truth thereof or issue a written apology to Dr.
23 Jadwin, he will have no alternative but to seek recourse against you for damaging
his reputation. While professionals may justifiably have a difference of opinion
24 regarding complex issues in the field of medicine, there is really no place for
publishing statements about a colleague that are not true and intended to tarnish
25 one’s reputation.”
26 72.75. To date, Plaintiff is informed and believes and thereupon alleges: (i) Roy has
27 never responded to Plaintiff’s repeated requests for factual substantiation of Roy’s numerous
28 defamatory statements; (ii) KMC never conducted an investigation into Roy’s professional
SAC000020
1 misconduct; and (iii) Harris, Kercher, Bryan and Abraham have approved, accepted, and refused
2 to intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES
3 1 through 10.
4 E. MEDICAL LEAVE
5 73.76. As of December 16, 2005, Plaintiff was eligible for twelve weeks of medical
6 leave under FMLA and CFRA pursuant to 29 C.F.R. § 825.110 and 2 C.C.R. § 72970(e),
7 respectively, in that he had been regularly employed by Defendant County for 1,250 hours in the
8 twelve months immediately prior to the start of his leave and had not taken any medical or
9 family leave during that time.
10 74.77. An eligible employee’s rights under CFRA and FMLA include a “reduced work
11 schedule” pursuant to 29 C.F.R. § 825.203 that is “medically necessary” pursuant to 29 C.F.R.
12 825.117.
13 75.78. On or about December 16, 2005, Plaintiff submitted to KMC a copy of his
14 psychiatrist’s certification stating that Plaintiff needed a reduced work schedule leave until at
15 least March 16, 2006 because of his serious medical condition.
16 76.79. Plaintiff’s notice to KMC of his need for medical leave was reasonable under the
17 circumstances.
18 77.80. On or about December 16, 2005 Plaintiff began his medically necessary reduced
19 work schedule that permitted him to perform all of his duties as Chair of Pathology, and reduced
20 his schedule only as to his duties as a regular pathologist.
21 78.81. On or about March 2, 2006, Plaintiff was finally provided with a Request for
22 Leave of Absence form which he then submitted to KMC’s HR Department. KMC’s HR
23 Department formally approved the leave on March 13, 2006.
24 79.82. Also on or about March 2, 2006, Plaintiff received a document entitled
25 “Designation of Leave (Serious Health Condition of Employee-Intermittent)” (“Leave
26 Designation Notice”) from the HR Department at KMC that informed Plaintiff:
27 You also have the right to be reinstated to the same or an equivalent job with the
same pay, benefits and terms and conditions of employment on your return from
28 leave. Please note that the leave provisions for County employees are more
generous than those mandated by FMLA and CFRA and, accordingly, you may be
SAC000021
1 eligible for more than the twelve (12) weeks of unpaid leave described above.”
2 80.83. On or about April 10, 2006, Plaintiff sent an email to Bryan stating: “I believe
3 that we have a meeting this Thursday at 1500. I can discuss a schedule with you. I have been
4 working only to help out Phil and Savita during periods of shortage, and to keep on top of some
5 administrative work. I am always available for necessary discussions. Just have Arlene or Tracy
6 call me.”
7 81.84. On or about April 17, 2006, Bryan wrote a letter addressed to Plaintiff,
8 purportedly memorializing Bryan’s April 13, 2006 meeting with Plaintiff in which he
9 acknowledged, “Yes, the Department of Pathology continues to function well as it has for many
10 years, and yes, you have made many positive changes in the department.” Bryan also
11 acknowledged that Plaintiff’s whistleblowing activity had created “the dysfunctional relationship
12 you have with some key members of the staff” and asked for Plaintiff to either cease upsetting
13 staff with his whistleblowing activity or to step down as Chairman on his return from medical
14 leave.
15 82.85. On or about April 20, 2006, Plaintiff received notice from KMC’s HR
16 Department that his “Intermittent Leave of Absence” had expired on March 15 and that in order
17 to extend his leave, he would need to submit a “Request for Leave of Absence” form to the HR
18 Department by “no later than Tuesday, April 25, 2006”.
19 83.86. On or about April 26, 2006, Plaintiff submitted a Request for Leave of Absence
20 form to KMC’s HR Department, along with a copy of his psychiatrist’s certification that Plaintiff
21 needed an extension of his reduced work schedule leave for six months to one year because of
22 his serious medical condition.
23 84.87. However, on or about April 28, 2006, Bryan met with Plaintiff, Barnes and Steve
24 O’Conner of the HR Department (“O’Conner”) and ordered Plaintiff to convert his reduced work
25 schedule to involuntary full-time medical leave despite the fact that Plaintiff was ready, willing,
26 and able to continue working his reduced work schedule (“Forced FT Leave”). Bryan further told
27 Plaintiff that he needed to know by June 16, 2006 whether Plaintiff would resign as Chair; and
28 that if he resigned he would be in the same position as Adam Lang, a former staff pathologist at
SAC000022
1 KMC, who retained only hospital privileges but whose employment contract had been
2 terminated. Hence, Bryan threatened Plaintiff not only with removal from chairmanship, but
3 termination of the Second Contract, thereby giving notice that he would not honor any guarantee
4 of reinstatement to Plaintiff’s same or equivalent position.
5 85.88. On or about April 28, 2006, Bryan wrote a letter to Plaintiff purportedly
6 memorializing the April 26, 2006 meeting and stating that he required Plaintiff to go on full-time
7 leave from May 1, 2006 to June 16, 2006 when Plaintiff’s right to medical leave would
8 purportedly expire; and required Plaintiff to either return to work full-time on June 17, 2006 or
9 resign, purportedly because “the hospital needs you here full-time.”
10 86.89. On or about May 5, 2006, Plaintiff underwent nasal surgery followed by a
11 difficult recovery which limited his ability to breathe and exert himself for approximately one
12 month.
13 87.90. On or about May 29, 2006, Plaintiff fractured his foot and avulsed a ligament
14 from his ankle in an accident which limited his ability to walk, stand or sit without elevating his
15 ankle for approximately three months.
16 88.91. On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan, stating:
17 Unfortunately, I underwent sinus surgery in early May which took some time to
recover from. Then last Monday, I suffered a serious fall down a staircase that
18 will require a cast on my left ankle and impose serious restrictions on my mobility
for at least four weeks. I would greatly appreciate an extension of the June 16
19 deadline as my physical ailments of late simply have not permitted me to consider
and render such an important decision nor do they physically permit me to come
20 to the office by June 16.
21 89.92. On or about June 14, 2006, Bryan sent an email addressed to Plaintiff informing
22 Plaintiff that Bryan was unilaterally removing Plaintiff from his position as Chair of Pathology,
23 thereby denying Plaintiff reinstatement to his same or equivalent position despite written
24 guarantees to the contrary. The email stated:
25 My response to your request for an extension of medical leave has a two part
answer. First, I will extend leave to a Personal Necessity Leave for your
26 employment status only. This means that you have 90 days of extended leave
which will protect your overall employment status. At the end of this 90 day
27 period, you must either return to duty or resign from employment. Second, I will
not extend your leave as it relates to your appointment as Chairman, Department
28 of Pathology. I am implementing the provisions of paragraph 9.6-4, REMOVAL,
Medical Staff Bylaws, and withdrawing your appointment as Chairman,
SAC000023
1 Department of Pathology. This institution needs to have full-time leadership in the

department and because of your leave you have not been able to provide it.
2 Should you return to work after the completion of your Personal Necessity Leave
then your employment contract will be modified as mutually agreed to reflect that
3 you are still an employed pathologist (should you choose this option), but you will
not retain the duties and appointment of a chairman. My decision to do this, Dr.
4 Jadwin, is based solely on your inability to provide consistent and stable
leadership in the department for most of the past eight to nine months. You have
5 used all of your sick and vacation time in addition to using all available time
under the medical leave provisions of County policy. It is unfortunate that you
6 had your accident which delayed your return but the hospital needs to move on.
7 90.93. Later, on or about June 14, 2006, Bryan sent a letter addressed to Plaintiff
8 reiterating that Bryan was rescinding Plaintiff’s Chairmanship of the Pathology Department
9 because Plaintiff had “essentially been out on either full or part-time leave for the past eight or
10 nine months” – an inaccurate statement – and because “the Department of Pathology needs a
11 full-time chairman.”
12 91.94. On information and belief, on or about July 10, 2006, the JCC approved
13 Plaintiff’s removal from Chairmanship by a majority vote.
14 92.95. Plaintiff’s demotion breached the guarantee of reinstatement contained in the
15 Leave Designation Notice.
16 93.96. On or about September 18, 2006, Barnes sent Plaintiff’s attorney a proposed
17 amendment (“Amendment”) to the Second Contract which included a base salary reduction of
18 over 35% (“Paycut”), allegedly as a consequence of Plaintiff’s removal from Chairmanship.
19 94.97. On or about September 18, 2006, Plaintiff sent an email addressed to Barnes
20 protesting the Paycut. The email stated:
21 Mr. Bryan stated in his letter to me that his decision to strip me of my
chairmanship was based on the sick leaves I was taking. KMC’s proposed
22 reduction of my base salary seems to have the purpose of punishing me further. I
wish to return to work at KMC, but I believe the proposed drastic reduction in my
23 base salary as benchmarked against Dr. Dutt’s is utterly unfair on numerous
levels. I am left feeling that this is simply another retaliatory effort on the part of
24 KMC.
25 95.98. On or about September 20, 2006, Culberson sent a letter addressed to Plaintiff
26 explaining the Paycut.
27 96.99. On or about September 22, 2006, Plaintiff executed the Amendment
28 memorializing the Paycut and submitted it to Barnes.
SAC000024
1 97.100.On or about October 3, 2006, the Board of Supervisors for Defendant County
2 voted to approve the Amendment.
3 98.101.On October 4, 2006, Plaintiff’s 90-day personal necessity leave ended and
4 Plaintiff returned to work at KMC as a staff pathologist. Plaintiff’s former subordinate,
5 Defendant Dutt, was chosen to replace Plaintiff as Acting Chair of Pathology.
6 99.102.Between on or about October 4, 2006 until on or about December 7, 2006,
7 Defendant Dutt yelled at, harassed, insulted, ridiculed Plaintiff, both verbally and in a series of
8 emails.
9 100.103. On or about December 4, 2006, Plaintiff sent a letter addressed to
10 Culberson and carbon-copied to key members of KMC’s medical staff and administration,
11 protesting Defendant Dutt’s behavior and raising additional concerns about patient care quality,
12 safety and legal noncompliance.
13 101.104. On or about December 7, 2006, Culberson sent a letter addressed to
14 Plaintiff informing him that he was being placed on involuntary paid administrative leave
15 “pending resolution of a personnel matter”.
16 102.105. On March 28, 2007, KMC authorized Plaintiff to access his office in order
17 to retrieve his personal computer files. Upon his arrival, Defendant Dutt informed him that his
18 office was now locked and that Defendant Dutt now had custody of the key, that Plaintiff’s file
19 cabinet and computer had been physically removed and retasked for other purposes at KMC, and
20 that Plaintiff would not be able to access his personal computer files after all.
21 103.106. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he
22 still had yet to be provided any explanation for his involuntary leave or any indication as to
23 whether or when it would end so that he could return to work, (ii) the involuntary leave requiring
24 him to remain at home by his phone during working hours was threatening to erode his
25 pathology skills, jeopardizing his employability and career as a pathologist, (iii) the involuntary
26 leave was denying him the opportunity to earn income from professional fee billing, and (iv)
27 part-time work was deemed therapeutic for him by his physician and that the confinement to his
28 house during working hours was having the opposite effect of severely exacerbating his
SAC000025
1 depression.
2 F. DISABILITY DISCRIMINATION
3 104.107. In 2003, Plaintiff had notified KMC that he suffered from depression due
4 to work-related hostility and KMC’s failure to resolve Plaintiff’s compliance and patient care
5 concerns. KMC subsequently permitted Plaintiff to undertake a medically necessary reduced
6 work schedule leave as a reasonable accommodation.
7 105.108. By December 16, 2005, Plaintiff was suffering extreme stress from the
8 hostile work environment created by the harassment, defamation, discrimination, and retaliatory
9 adverse actions of Defendants and each of them. Plaintiff’s depression subsequently became
10 disabling in that it limited his ability to enjoy life, without anxiety or insomnia..
11 106.109. On or about December 16, 2005, Plaintiff submitted to KMC a copy of his
12 psychiatrist’s certification that Plaintiff needed a reduced work schedule leave because of his
13 serious medical condition.
14 107.110. On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan,
15 stating: “This harassment has led me develop depression, anxiety and insomnia. Most recent
16 issue involving the October Oncology Conference is still unresolved. I request administrative
17 leave with pay until this issue is resolved.”
18 108.111. On or about January 9, 2006, Plaintiff met with Bryan regarding his
19 request for a medically necessary reduced work schedule, and clarified that it was necessary
20 because of the reoccurrence of his disabling depression. Bryan orally approved Plaintiff’s
21 reduced work schedule.
22 109.112. Defendants, and each of them, knew or should have known that Plaintiff
23 was an individual with a disability that limited his major life activities of taking pleasure in life,
24 without experiencing anxiety, insomnia or difficulty breathing and moving, and/or was perceived
25 by Defendants as having such limitations.
26 110.113. On or about March 2, 2006, Plaintiff sent an email to Bryan, repeating his
27 previous verbal request weeks earlier that KMC hire a locum tenens pathologist to assist with the
28 Pathology Department’s workload during Plaintiff’s reduced work leave.
SAC000026
1 111.114. On or about March 24, 2006, Plaintiff sent an email to Bryan, expressing
2 his disappointment that KMC had not yet hired a locum tenens pathologist to assist with the
3 Pathology Department’s workload during Plaintiff’s reduced work leave, as Plaintiff had
4 previously requested.
5 112.115. On or about April 10, 2006, Plaintiff sent an email to Bryan, stating that
6 he had not been informed that KMC had finally hired a locum tenens pathologist. The email
7 stated:
8 I don’t know of Dr. Bhargava and didn’t know that a contract with Dr. Bhargava
was signed. Had I known, I would have placed him on the call schedule for the
9 coming months. I felt obligated to take some of the call, even though I am off,
because there would not be enough resources for the call schedule.
10
113.116. On or about April 17, 2006, Bryan wrote a letter addressed to Plaintiff in
11
which he acknowledged that “Yes, the Department of Pathology continues to function well as it
12
has for many years, and yes, you have made many positive changes in the department [emphasis
13
added]”.
14
114.117. On or about April 26, 2006, Plaintiff submitted a Request for Leave of
15
Absence form to KMC’s HR Department, along with a copy of his psychiatrist’s certification
16
that Plaintiff needed an extension of his reduced work schedule leave for six months to one year
17
because of his serious medical condition.
18
115.118. Nevertheless, on or about April 28, 2006, Bryan met with Plaintiff, Barnes
19
and O’Conner, and ordered Plaintiff to convert his reduced work schedule to involuntary full-
20
time medical leave despite the fact that Plaintiff was ready, willing, and able to continue working
21
his reduced work schedule, thereby removing an accommodation of Plaintiff’s disability and
22
refusing to engage in good faith in an interactive process with Plaintiff.
23
116.119. On or about May 5, 2006, Plaintiff underwent nasal surgery followed by a
24
difficult recovery, which limited his ability to breathe and exert himself for approximately one
25
month.
26
117.120. On or about May 29, 2006, Plaintiff fractured his foot and avulsed a
27
ligament from his ankle in an accident which limited his ability to stand, sit without elevating his
28
ankle, or walk for approximately three months.
SAC000027
1 118.121. On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan,

2 requesting an extension of Plaintiff’s leave, which was due to expire on June 16, 2006, because
3 of Plaintiff’s nasal surgery and foot injury.
4 119.122. On or about June 14, 2006, Bryan sent an email addressed to Plaintiff
5 informing Plaintiff that Bryan was unilaterally removing Plaintiff from his position as Chair of
6 Pathology purportedly because “[t]his institution needs to have full-time leadership in the
7 department and because of your leave you have not been able to provide it.”
8 120.123. Later, on or about June 14, 2006, Bryan sent a letter address to Plaintiff
9 containing statements similar to those contained in Bryan’s email of earlier that day, and
10 reiterating that “the Department of Pathology needs a full-time chairman.”
11 121.124. On April 4, 2007, after KMC had placed Plaintiff on involuntary paid
12 leave, Plaintiff placed Defendant County on notice that (i) he still had yet to be provided any
13 explanation for his involuntary leave or any indication as to whether or when it would end so that
14 he could return to work, (ii) the involuntary leave requiring him to remain at home by his phone
15 during working hours was threatening to erode his pathology skills, jeopardizing his
16 employability and career as a pathologist, (iii) the involuntary leave was denying him the
17 opportunity to earn income from professional fee billing, and (iv) part-time work was deemed
18 therapeutic for him by his physician and that the confinement to his house during working hours
19 was having the opposite effect of severely exacerbating his depression.
20 125. At all times material here, excluding a portion of the time when he was out on
21 voluntary full-time medical leave, Plaintiff has been able to perform the essential functions of the
22 employment positions he held with Defendants and each of them, with reasonable
23 accommodation.
24 122.126. Plaintiff requested reasonable accommodation of his disabilities from
25 Defendants, and each of them, in the form of a reduced work schedule and/or recuperative leave.
26 123.127. Allowing Plaintiff to take the medical and/or recuperative leave that he
27 requested would have been a reasonable accommodation of Plaintiff’s disabilities.
28 124.128. Holding open Plaintiff’s position as Chair of Pathology while he was on
SAC000028
1 leave would have been a reasonable accommodation of Plaintiff’s disabilities.

2 125.129. Holding open Plaintiff’s position as Chair of Pathology while he was on
3 leave would not have been unduly burdensome for the County or KMC.
4 G. DUE PROCESS
5 126.130. Pursuant to 9.6-4 of the Bylaws, Bryan was not authorized to remove
6 Plaintiff from his position as Chair of Pathology, but could only recommend such removal to the
7 JCC.
8 127.131. It is customary for the County and/or KMC to remove a Department Chair
9 pursuant to 9.6-4 of the Bylaws only for cause.
10 128.132. It is customary for the County and/or KMC to provide a hearing and
11 opportunity to be heard before removing a Department Chair of KMC from office, and before a
12 demotion that results in a substantial and/or excessive reduction in compensation
13 129.133. When necessary, it is customary for the County and/or KMC to appoint a
14 temporary replacement as “Acting” senior manager in the place and stead of a senior manager,
15 such as Plaintiff, when the senior manager’s position is left vacant because of a leave of absence
16 or termination of employment.
17 130.134. Defendants, and each of them except Roy, demoted and reduced the
18 compensation of Plaintiff without cause or justification.
19 131.135. Defendants, and each of them except Roy, demoted and the reduced the
20 compensation of Plaintiff without providing him with the customary hearing or notice thereof.
21 H. ADVERSE ACTIONS
22 132.136. Defendants, and each of them, have taken adverse employment actions
23 against Plaintiff, willfully and intentionally creating a hostile work environment, subjecting him
24 to acts of defamation and ratification thereof, demotion and excessive reduction in pay, disparate
25 treatment, unwarranted criticism and reprimands, threats, requests for his resignation,
26 interference with and denial of his right to medical leave, refusing to engage in good faith in an
27 interactive process and denying him reasonable accommodation and procedural due process
28 because of his protected characteristics and/or activities alleged herein.
SAC000029
1 133.137. On May 1, 2007, Defendant County notified Plaintiff that he would

2 remain on paid administrative leave until his employment contract expired on October 4, 2007;
3 and that, contrary to its prior and customary practice, Defendant County did not intend to renew
4 his employment contract. Although Plaintiff was no longer restricted to the confines of his home
5 during working hours, he still could not enter KMC’s premises or access his office without prior
6 written permission.
9 I. DAMAGES AND CAUSATION
10 134.139. As a result of Defendants’ acts and omissions alleged herein, Plaintiff has
11 suffered pecuniary losses, such as loss of wages and benefits, and has been required to incur
12 medical and legal expenses and to hire attorneys in order (i) to enforce Plaintiff’s rights, (ii) to
13 enforce provisions of the law protecting whistleblowers, employees who exercise their right to
14 medical leave under CFRA and FMLA, and employees with disabilities that need reasonable
15 accommodation, and (iii) to take such action both in his own interest and in order to enforce
16 important rights affecting the public interest.
17 135.140. After Plaintiff’s returned from leave on October 4, 2006, Defendants and
18 each of them except Roy, and Harris placed Plaintiff in the position of staff pathologist and
19 excessively reduced his salary by $100,842 or over 35%.
20 136.141. On information and belief, Plaintiff’s salary for his work as a staff
21 pathologist for KMC was less than the benchmark National Medical Group Association
22 (“NMGA”) median salary for a clinical and anatomic pathologist with Plaintiff’s qualifications
23 and experience, in breach of the Second Contract.
24 142. During the time that Defendants placed Plaintiff on involuntary full-time leave,
25 including the period from December 7, 2006 to October 4, 2007, Defendants effectively denied
26 Plaintiff the opportunity to earn Professional Fees as set forth in Article II of the Second
27 Contract.
28 137.143. As a further result of Defendants’ acts and omissions alleged herein,
SAC000030
1 Plaintiff has suffered and continues to suffer non-economic damages, such as emotional distress,
2 anxiety, humiliation, and loss of reputation.
3 138.144. The acts and omissions of Defendants, and each of them, alleged herein
4 were and are a substantial factor in causing Plaintiff’s harm.
5 139.145. The acts and omissions of Defendants Bryan, Harris, Roy alleged herein
6 are despicable, oppressive and were done in conscious disregard of the rights of individuals and
7 whistleblowers, such as Plaintiff, and of the safety of public patients, and have evidenced actual
8 or implied malicious intent toward Plaintiff, thereby entitling him to an award of punitive
9 damages against Defendants Bryan, Harris, Roy pursuant to §3294 Civil Code in an amount
10 sufficient to make an example of Defendants Bryan, Harris, Roy and Dutt and discourage others
11 from conscious disregard for the rights of individuals and whistleblowers and for the safe care
12 and condition of public patients. Plaintiff does not know the financial worth of Defendants
13 Bryan, Harris, Roy or the amount of punitive damages sufficient to accomplish the public
14 purposes of §3294 Civil Code and will seek leave to amend this complaint when such facts are
15 known or proceed according to proof at trial.
16 140.146. Plaintiff has mitigated his damages by seeking and maintaining medical
17 and psychiatric treatment and by taking progressive steps to try to protect his reputation and
18 restore confidence in the Pathology Department at KMC.
19 EXHAUSTION OF REMEDIES
20 141.147. On July 3, 2006, Plaintiff filed a Tort Claims Act complaint with the
21 County of Kern. The complaint disclosed Plaintiff’s claims of defamation against Roy, Harris
22 and Defendants DOES 1 through 10, and of retaliation against Defendant County for engaging in
23 whistleblowing activity concerning unsafe patient care and conditions at KMC and his refusal to
24 participate in activities that he reasonably believed to be unlawful against Defendant County (a
25 true and correct copy of which is attached hereto as Exhibit 2 and incorporated by reference
26 herein). The Office of the County Counsel for the County of Kern sent a letter to Plaintiff’s
27 counsel, dated September 15, 2006 (a true and correct copy of which is attached hereto as
28 Exhibit 3 and incorporated by reference herein), giving notice that Plaintiff’s complaint was
SAC000031
1 deemed rejected by operation of law and informing Plaintiff that he had six months from the date
2 of such notice to file a court action on his claims. Plaintiff continues to be employed by KMC as
3 a staff pathologist and continues to be subject to a hostile work environment and retaliation on an
4 ongoing basis.
5 142.148. On April 23, 2007, Plaintiff filed a supplemented Tort Claims Act
6 complaint with the County of Kern, supplemented to reflect events occurring after filing of the
7 initial Tort Claims Act complaint on July 3, 2006.
8 149. On October 10, 2007, Plaintiff filed a supplemented Tort Claims Act complaint
9 with the County of Kern, supplemented to reflect events occurring after filing of the
10 supplemented Tort Claims Act complaint on April 23, 2007.
11 143.150. Plaintiff intends to file supplemented Tort Claims Act complaints with the
12 County of Kern on a periodic and continuing basis.
13 144.151. On August 3, 2006, Plaintiff filed a complaint with the California
14 Department of Fair Employment and Housing (“DFEH”), followed by an amended complaint
15 filed on November 14, 2006. The complaint stated claims against Defendant County for
16 discrimination on the basis of disability, as well as failure to engage in good faith in an
17 interactive process, failure to provide reasonable accommodation, violations of Plaintiff’s
18 medical leave rights. Plaintiff received a right-to-sue notice from the DFEH, true and correct
19 copies of which are attached hereto as Exhibit 4 and incorporated by reference herein.
20 145.152. On April 23, 2007, Plaintiff filed a supplemented complaint with the
21 DFEH, supplemented to reflect events occurring after filing of the initial complaint with the
22 DFEH on August 3, 2006.
23 153. On October 16, 2007, Plaintiff filed a supplemented complaint with the DFEH,
24 supplemented to reflect events occurring after filing of the supplemented complaint with the
25 DFEH on April 23, 2006.
26 146.154. Plaintiff intends to file supplemented complaints with the DFEH on a
27 periodic and continuing basis.
28 147.155. Plaintiff filed a notice of intent to sue under Section 1102.5 of the Labor
SAC000032
1 Code, without seeking any penalties, with the Labor and Workforce Development Agency
2 (“LWDA”) on January 5, 2007, a true and correct copy of which is attached hereto as Exhibit 5
3 and incorporated by reference herein. On February 15, 2007, the LWDA mailed notice to
4 Plaintiff that it was in receipt of Plaintiff’s notice of intent to sue. To date, Plaintiff has not
5 received any citation or notice that LWDA will investigate or pursue this claim.
6 148.156. On January 24, 2007, Plaintiff gave notice to the U.S. Department of
7 Labor that he had filed a complaint and initiated this action in US district court, alleging
8 interference with Plaintiff’s right to family and medical leave under FMLA. No right-to-sue
9 notice has issued as Plaintiff has a free-standing private right of action under FMLA.
10 STATEMENT OF CLAIMS
11 FIRST CLAIM
12 (Retaliation in Violation of Health & Safety Code § 1278.5)
(Against Defendants County and DOES 1 through 10)
13
149.157. Plaintiff alleges this first and separate claim for Retaliation in violation of
14
Health & Safety Code § 1278.5 against Defendant County.
15
150.158. Plaintiff incorporates by reference herein the allegations set forth in
16
Paragraphs 1 through 163, inclusive, above.
17
151.159. At all material times herein, Health & Safety Code § 1278.5 provided
18
protection from discrimination and retaliation for health care workers who reported suspected
19
unsafe care and conditions of patients in health care facilities.
20
152.160. Defendants and each of them knew of Plaintiff’s whistleblowing activity
21
regarding suspected unsafe care and conditions of patients at KMC.
22
153.161. Defendants and each of them have violated Section 1278.5 of the Health
23
& Safety Code by engaging in a continuous and ongoing pattern and practice of discrimination
24
and retaliation against Plaintiff because he engaged in whistleblowing activity protected by
25
Section 1278.5 of the Health & Safety Code.
26
154.162. A motivating factor for the acts and omissions of Defendants and each of
27
them described herein was Plaintiff’s reports to his employer, Barmann, and Authorities
28
regarding what he reasonably believed to be unsafe patient care and conditions.
SAC000033
1 WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

2 SECOND CLAIM:
3 (Retaliation In Violation Of Lab. Code § 1102.5)
(Against Defendants County and DOES 1 through 10)
4
155.163. Plaintiff alleges this second and separate claim for Retaliation in violation
5
of Labor Code § 1102.5 against Defendant County and DOES 1 through 10, inclusive
6
156.164. Plaintiff incorporates by reference herein the allegations contained in
7
Paragraphs 1 through 163 above, inclusive.
8
157.165. At all material times herein, Labor Code § 1102.5 was in effect, and
9
provides in pertinent part:
10
1102.5. (a) An employer may not make, adopt, or enforce any rule, regulation, or
11 policy preventing an employee from disclosing information to a government or
law enforcement agency, where the employee has reasonable cause to believe that
12 the information discloses a violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.
13 (b) An employer may not retaliate against an employee for disclosing information
to a government or law enforcement agency, where the employee has reasonable
14 cause to believe that the information discloses a violation of state or federal
statute, or a violation or noncompliance with a state or federal rule or regulation.
15 (c) An employer may not retaliate against an employee for refusing to participate
in an activity that would result in a violation of state or federal statute, or a
16 violation or noncompliance with a state or federal rule or regulation.
17 158.166. Plaintiff reported his reasonable suspicions about illegal, non-compliant,
18 and unsafe care and conditions of patients at KMC to his employer, Barmann, and Authorities.
19 159.167. Defendants, and each of them, knew of Plaintiff’s whistleblowing reports
20 protected by Section 1102.5 of the Labor Code.
21 160.168. Defendants, and each of them, engaged in a continuous and ongoing
22 pattern and practice of discrimination and retaliation against Plaintiff because he engaged in
23 activity protected by Section 1102.5 of the Labor Code.
24 161.169. Plaintiff’s activity protected by Section 1102.5 of the Labor Code was a
25 contributing factor in the continuous pattern and practice of discrimination and retaliation of
26 Defendants, and each of them, against Plaintiff described in this complaint.
28
SAC000034
1 THIRD CLAIM
2 [Retaliation (CFRA - Gov’t Code §§ 12945.1, et seq.)]
(Against Defendants County and DOES 1 through 10, inclusive.)
3
162.170. Plaintiff alleges this third and separate claim for violations of Government
4
Code §§ 12945.1, et seq., against Defendants County and DOES 1 through 10, inclusive.
5
6
7
164.172. At all material times herein, Section 12945.2(a)(1) of the Government
8
Code and 2 C.C.R. § 7297.7(a) prohibit any person from discriminating, discharging, or
9
retaliating against an employee for exercising his right to medical leave.
10
165.173. Pursuant to 2 C.C.R. § 7297.2(a), CFRA requires that upon granting of
11
leave, an employer shall guarantee to reinstate an employee to the same or comparable position,
12
and must do so unless refusal to reinstate is “justified” by the defenses stated in 2 C.C.R. §
13
72972(c).
14
166.174. At all material times herein, the County lacked “justification” pursuant to
15
2 C.C.R. § 7297.7(c) for refusing to reinstate Plaintiff to the same or comparable position on his
16
return from medical leave.
17
167.175. Defendants, and each of them, retaliated against Plaintiff for exercising his
18
right to medical leave, including denying him a medically necessary reduced work schedule;
19
unjustified notice of Defendants’ intent not to reinstate Plaintiff to his former or comparable
20
position on his return from leave; Defendant’s unjustified refusal to reinstate Plaintiff to his
21
former or comparable position on his return from leave; demoting him; and excessively reducing
22
his salary and chance to earn professional fees, bonuses and promotion.
23
168.176. Plaintiff’s exercise of his right to medical leave was a motivating reason
24
for Defendants’ adverse treatment Plaintiff.
25
WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.
26
FOURTH CLAIM
27
[Interference With FMLA Rights in violation of 29 U.S.C. §§ 2601, et seq.]
28 (Against Defendants County, Bryan, and DOES 1 through 10, inclusive.)
SAC000035
1 169.177. Plaintiff alleges this fourth and separate claim for violations of 29 U.S.C.
2 §§ 2601, et seq. against Defendants County, Bryan, and DOES 1 through 10, inclusive, and each
3 of them.
4 170.178. Plaintiff incorporates by reference herein the allegations contained in
5 Paragraphs 1 through 163 above, inclusive.
6 171.179. At all material times herein, FMLA was in effect and pursuant to 29
7 U.S.C. § 2611(4)(A)(ii)(I) imposed liability on covered employers and “any person who acts
8 directly or indirectly in the interest of the employer to any of the employees of such employer”
9 for interfering, restraining, or denying the exercise of, or attempt to exercise, any right provided
10 under FMLA pursuant to 29 U.S.C. § 2615(a).
11 172.180. Defendants, and each of them, interfered, restrained, or denied the exercise
12 of, or attempt to exercise, Plaintiff’s rights under FMLA.
13 173.181. Defendants’ interference, restraint, or denial of the exercise of, or attempt
14 to exercise Plaintiff’s rights under FMLA included interference with and denial of Plaintiff’s
15 right to a medically necessary reduced work schedule; requiring Plaintiff to take full-time
16 medical leave when he was ready, willing, and able to work part-time, exhausting his medical
17 leave more rapidly than permitted; unjustified notice of Defendants’ intent not to reinstate
18 Plaintiff to his former or comparable position on his return from leave; Defendant’s unjustified
19 refusal to reinstate Plaintiff to his former or comparable position on his return from leave;
20 Defendants’ excessive reduction in Plaintiff’s salary.
21 174.182. Plaintiff’s exercise of his rights under FMLA was a motivating reason for
22 Defendants’ adverse treatment of Plaintiff.
24 FIFTH CLAIM
25 [Violation of CFRA Rights in violation of Gov’t Code §§ 12945.1, et seq.]
(Against Defendants County and DOES 1 through 10, inclusive.)
26
175.183. Plaintiff alleges this fifth and separate claim for violations of Government
27
Code §§ 12945.1, et seq., against Defendants County and DOES 1 through 10, inclusive, and
28
each of them.
SAC000036

3 177.185. At all material times herein, the CFRA was in effect and made it an
4 unlawful employment practice for an employer to violate an employee’s rights under the CFRA
5 pursuant to section 12945.2(a) of the Government Code.
6 178.186. At all material times herein, the CFRA imposed strict liability on covered
7 employers who discriminated against an employee for exercising his right to leave or otherwise
8 interfered with an eligible employee’s CFRA rights pursuant to 2 C.C.R. § 7297.1 and Section
9 1615(a)(2) of the United States Code.
10 179.187. Pursuant to 2 C.C.R.§ 7297.10, CFRA expressly incorporates federal
11 implementing regulations for FMLA that are not inconsistent with CFRA. 29 C.F.R. 825 §
12 825.700(a) provides that “[i]f an employee takes paid or unpaid leave and the employer does not
13 designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA
14 entitlement.”
15 180.188. Pursuant to 2 C.C.R. § 7297.4(6), an employer must designate leave as
16 CFRA leave within 10 days of notice of the employee’s need for leave; but the greater
17 protections of 29 C.F.R. § 825.208 which require an employer to do so “within two days absent
18 extenuating circumstances” should apply.
19 181.189. In Bachelder v. America West Airlines, 259 F.3d 1112 (9th Cir. 2001), the
20 court construed 29 C.F.R. Sec. 825.200(e) and held that where an employer does not designate
21 the method used in calculating employees’ entitlement to leave, “the option that provides the
22 most beneficial outcome for the employee will be used.”
23 182.190. Pursuant to Government Code § 12945.2(a) and 2 C.C.R. § 7297.2(A),
24 medical leave requested is not be deemed to have been granted unless the employer provides the
25 employee, upon granting the leave request, a written guarantee of employment in the same or a
26 comparable position upon the termination of the leave.
27 183.191. Pursuant to 2 C.C.R. § 7297.2(a), CFRA requires that upon granting of
28 leave, an employer shall guarantee to reinstate an employee to the same or comparable position,
SAC000037
1 and must do so unless refusal to reinstate is “justified” by the defenses stated in 2 C.C.R. §
2 72972(c).
3 184.192. At all material times herein, the County lacked “justification” pursuant to
4 2 C.C.R.C § 7297.7(c) for refusing to reinstate Plaintiff to the same or comparable position on
5 his return from medical leave.
6 185.193. Defendants, and each of them, discriminated against Plaintiff and
7 otherwise interfered with his CFRA rights because he exercised, or tried to exercise, his CFRA
8 rights, including untimely designation of the initial leave as CFRA leave without providing
9 notice of the method of calculation, untimely notice of how KMC calculated Plaintiff’s
10 entitlement to the extension of his CFRA leave; interference with and denial of Plaintiff’s right
11 to a medically necessary reduced work schedule; requiring Plaintiff to take full-time medical
12 leave when he was ready, willing, and able to work part-time which exhausted his medical leave
13 more rapidly than permitted; unjustified notice of Defendants’ intent not to reinstate Plaintiff to
14 his former or comparable position on his return from leave; Defendant’s unjustified refusal to
15 reinstate Plaintiff to his former or comparable position on his return from leave; and Defendants’
16 excessive reduction in Plaintiff’s salary.
17 186.194. These violations may also mean that Defendant further violated Plaintiff’s
18 CFRA rights by informing him that his medical leave was exhausted as of June 16, 2005, while
19 Plaintiff may have been entitled to medical leave even as of October 4, 2006 when he returned to
20 work.
21 187.195. Plaintiff’s exercise of, or attempt to exercise, his CFRA rights was a
22 motivating reason for Defendants’ adverse treatment of him.
24 SIXTH CLAIM
25 [Disability Discrimination in Violation of Gov’t Code § 12940(a)]
(Against Defendants County and DOES 1 through 10, inclusive)
26
188.196. Plaintiff alleges this sixth and separate claim for Disability Discrimination
27
in violation of Government Code § 12940(a) against Defendant County and DOES 1 through 10,
28
inclusive.
SAC000038

3 190.198. The FEHA prohibits discrimination on the basis of disability in
4 employment.
5 191.199. Defendants, and each of them, through their course of conduct denied
6 Plaintiff a benefit of employment, in whole or in part, because he is an individual with known
7 disabilities in violation of Government Code 12940(a) and 2 C.C.R. §7293.7.
8 192.200. In addition to the adverse actions alleged above, Defendants, and each of
9 them, discriminated against Plaintiff, denied him reasonable accommodation, and refused to
10 engage in good faith in an interactive process because of his known disabilities.
12 SEVENTH CLAIM
13 (Failure to Provide Reasonable Accommodation in Violation of Gov’t Code § 12940(m))
(Against Defendants County and DOES 1 through 10, inclusive)
14
193.201. Plaintiff alleges this seventh and separate claim for Failure to Provide
15
Reasonable Accommodation in violation of Government Code § 12940(m) against Defendant
16
County and DOES 1 through 10, inclusive.
17
18
19
195.203. Defendants, and each of them, failed to provide reasonable
20
accommodation of Plaintiff’s known disabilities in violation of Section 12904(m) of the
21
Government Code and 2 C.C.R. § 7293.9.
22
WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.
23
EIGHTH CLAIM
24
(Failure to Engage In Interactive Consultation In Violation of Gov’t Code § 12940(n))
25 (Against Defendants County and DOES 1 through 10, inclusive)
26 196.204. Plaintiff alleges this Eighth and separate claim for Failure to Engage in
27 Good Faith in an Interactive Consultation in violation of Government Code § 12940(n) against
28 Defendant County and DOES 1 through 10, inclusive.
SAC000039

3 198.206. Defendants, and each of them, failed to engage in good faith in a prompt,
4 ongoing, interactive consultation regarding reasonable accommodation of Plaintiff’s disabilities
5 in violation of Section 12940(n) of the Government Code.
7 NINTH CLAIM
8 (Violation of Due Process Right under 42 U.S.C. § 1983)
(Against Defendants County of Kern; Bryan both personally and as former CEO of KMC;
9 Kercher both personally and as President of Medical Staff of KMC; Ragland both
personally and as President-Elect of Medical Staff of KMC; Abraham both personally and
10 as Immediate Past President of Medical Staff of KMC; and Smith both personally and as
Chief Nurse Executive of KMC, in their capacity as members of the JCC of KMC)
11
199.207. Plaintiff alleges this Ninth and separate claim for violation of Plaintiff’s
12
Fourteenth Amendment of the United States Constitution Right of Procedural Due Process under
13
42 U.S.C. § 1983 against Defendants County of Kern; Bryan both personally and as former CEO
14
of KMC; Kercher both personally and as President of Medical Staff of KMC; Ragland both
15
personally and as President-Elect of Medical Staff of KMC; Abraham both personally and as
16
Immediate Past President of Medical Staff of KMC; and Smith both personally and as Chief
17
Nurse Executive of KMC, in their capacity as members of the JCC of KMC.
18
19
20
201.209. The Fourteenth Amendment of the United States Constitution protects a
21
public employee’s right of procedural due process regarding governmental actions that deprive
22
him of life, liberty, or property interest of constitutional magnitude.
23
202.210. At all material times herein, Plaintiff had a property interest in his position
24
as Chair of Pathology and in the excessive reduction of his base salary of constitutional
25
magnitude as provided for in the Second Contract.
26
203.211. Defendants, and each of them, intentionally, or with deliberate
27
indifference to, or with a conscious disregard of, Plaintiff’s Constitutional rights, denied Plaintiff
28
his right to procedural due process guaranteed by the Fourteenth Amendment of the United
SAC000040
1 States Constitution when they decided to demote Plaintiff and substantially and excessively
2 reduced his salary by a sum of constitutional magnitude in breach of the Second Contract; placed
3 Plaintiff on administrative leave denying him the right to earn professional fees, and failed to
4 renew his employment contract.
5 204.212. Defendant Bryan, was acting or purporting to act under color of law in the
6 performance of his official duties as Chief Executive Officer of KMC when he unilaterally,
7 arbitrarily, and capriciously demoted Plaintiff and excessively reduced his salary by a sum of
8 constitutional magnitude in violation of the Bylaws and the Second Contract, without providing
9 Plaintiff with the customary notice of hearing and opportunity to be heard to which he was
10 entitled.
11 205.213. When Plaintiff complained to Bryan that he had been deprived of the
12 customary hearing regarding his demotion and excessive reduction in pay, the JCC met and
13 ratified Bryan’s decision to demote Plaintiff and substantially and excessively reduced his salary
14 in breach of the Second Contract without providing Plaintiff with prior notice of the hearing or
15 an opportunity to be heard.
16 206.214. Defendants and each of them, were acting or purporting to act under color
17 of law in the performance of their official duties as members of the JCC when they arbitrarily
18 and capriciously decided to demote Plaintiff and substantially and excessively reduced his salary
19 in breach of the Second Contract without providing Plaintiff with the customary notice of
20 hearing and opportunity to be heard to which he was entitled.
21 207.215. Thereafter, the Kern County Board of Supervisors met and voted to
22 confirm Plaintiff’s demotion and the excessive reduction in Plaintiff’s salary in breach of the
23 Second Contract without providing Plaintiff with notice of the hearing or an opportunity to be
24 heard.
25 216. On December 7, 2006, Defendants placed Plaintiff on administrative leave,
26 denying him the opportunity to earn clearly established, constitutionally protectable professional
27 fees. In so doing, Defendants failed to give Plaintiff adequate due process and violated his
28 clearly established right to procedural due process.
SAC000041

2 contract, denying him clearly established, constitutionally protectable continued employment. In
3 so doing, Defendants failed to give Plaintiff adequate due process and violated his clearly
4 established right to procedural due process.
5 208.218. The conduct of Defendants, and each of them, violated Plaintiff’s 14th
6 Amendment right of procedural due process.
7 209.219. As a legal result of the conduct of Defendants, and each of them, Plaintiff
8 was harmed.
9 210.220. Defendants’ denial of Plaintiff’s procedural due process right was a
10 substantial factor in causing Plaintiff’s harm.
12 TENTH CLAIM
13 (Defamation in Violation of Civ. Code §§ 45-47)
(Against Defendants County, Roy, Harris, Dutt, and DOES 1 through 10, and Each of
14 Them)
15 211.221. Plaintiff alleges this Tenth and separate claim for Defamation in violation
16 of Civil Code §§ 45 to 47 against Defendants Roy, Dutt, Harris, the County, and DOES 1
17 through 10, inclusive, and each of them.
20 213.223. On information and belief, Plaintiff alleges that Roy made several false
21 statements of fact, both orally and in writing, which defamed Plaintiff’s professional credentials,
22 competence and/or integrity to other members of KMC’s medical staff and administration, and
23 that Harris and DOES 1 through 10 republished such defamatory statements to other members of
24 KMC’s medical staff and administration.
25 214.224. On information and belief, Plaintiff alleges Defendants, and each of them,
26 included the Roy Letter in papers stored in Plaintiff’s personnel file, where they are continuously
27 republished to anyone who consults his personnel file.
28 215.225. The above-alleged defamatory statements have continuously been false.
SAC000042
1 216.226. The hearers of the defamatory statements reasonably understood that they
2 were about Plaintiff and understood them to mean that Plaintiff’s professional credentials,
3 competence and/or integrity were deficient.
4 217.227. As a result of Defendants’ wrongful conduct, Plaintiff has suffered harm
5 to his profession, reputation, and experienced feelings of shame, mortification, and hurt
6 218.228. Defendants’ wrongful conduct was a substantial factor in causing harm to
7 Plaintiff’s profession and reputation.
8 219.229. Defendants failed to use reasonable care to determine the truth or falsity of
9 the statements.
10 220.230. At all material times, Defendants, and each of them, either knew that each
11 statement was false or had serious doubts about the truth of each statement, and that they acted
12 with malice, oppression, or fraud, entitling Plaintiff to an award of punitive damages against the
13 individual Defendants.
14 221.231. Defendants Harris, Kercher, Bryan and Abraham have approved, accepted,
15 and refused to intercede against Roy’s defamatory acts or their subsequent republication by
16 Harris and DOES 1 through 10, thereby ratifying such acts.
18 ELEVENTH CLAIM
19 (Violation of FLSA)
(Against Defendants County and DOES 1 through 10 inclusive)
20
222.232. Plaintiff alleges this Eleventh and separate claim for reimbursement of
21
deductions from his salary made in violation of FLSA against Defendant County and DOES 1
22
through 10, inclusive.
23
24
25
224.234. Pursuant to 20 C.F.R. § 541.118(1), an employee will not be considered
26
“on a salary basis” if deductions from his predetermined compensation are made for absences
27
occasioned by the employer.
28
225.235. Pursuant to 20 C.F.R. § 541.118(6), where a deduction not permitted by
SAC000043
1 these interpretations is inadvertent, or is made for reasons other than lack of work, the exemption
2 will not be considered to have been lost if the employer reimburses the employee for such
3 deductions and promises to comply in the future.
4 226.236. From April 28 to October 3, 2006, Defendants, and each of them,
5 unlawfully required Plaintiff to take involuntary full-time unpaid leave rather than reduced
6 scheduled leave even though he was occasionally ready, willing, and able to work part-time
7 during that period of time.
8 227.237. During the period from April 28 to October 3, 2006, clinical pathology
9 work was always available to Plaintiff at KMC.
10 228.238. Plaintiff is entitled to reimbursement of salary for those periods of time
11 during the period from April 28, 2006 to October 3, 2006 when he was ready, willing, and able
12 to work, and was prevented from doing so by the County; and also entitled to a promise that the
13 County will comply in the future.
14 WHEREFORE Plaintiff prays for relief as stated herein and in pertinent part hereinafter.
15 PRAYER FOR RELIEF
16 Plaintiff prays for judgment against Defendants, and each of them, jointly and severally,
17 as follows:
18 1. Reinstatement to his former position as Chair of Pathology and reimbursement for lost
19 wages and work benefits caused by the acts of his employer pursuant to Section
20
1278.5(g) of the Health & Safety Code and Section 12965 of the Government Code.
21
2. Recovery of all reasonable attorneys’ fees, litigation expenses and costs incurred,
22
23 pursuant to Section 2699 of the Labor Code for violation of Section 1102.5 of the Labor
24 Code, 1278.5(g) of the Health & Safety Code, Section 1021.5 of the Code of Civil
25 Procedure, Section 12965 of the Government Code, 29 U.S.C. § 2617(a)(3) [FMLA], and
26
42 U.S.C. § 1988.
27
3. That Defendant County be enjoined from retaliating against whistleblowers in violation
28
SAC000044
1 of Section 1278.5 of the Health & Safety Code and Section 1102.5 of the Labor Code.
2 4. That Defendant County be required to expunge from Plaintiff’s personnel records any
3
and all references to Plaintiff’s having “poor relationships” with staff, displaying poor
4
teamwork or other words of similar effect.
5
6 5. That Defendant County be required to comply with all of the provisions of the FEHA
7 relating to providing reasonable accommodation and engaging in good faith in an

8 interactive consultation regarding reasonable accommodation [Government Code §§
9
12940 (m) & (n)].
10
6. That Defendant County be required to provide training to the managerial staff at KMC
11
12 regarding compliance with Section 1278.5 of the Health & Safety Code, Section 1102.5
13 of the Labor Code, Sections 12940(m) and (n) of the Government Code, and CFRA
14 (Government Code §§ 12945.1, et seq.).
15
7. General and compensatory damages according to proof.
16
8. Liquidated damages under FMLA/CFRA and FLSA according to proof.
17
18 9. Punitive damages against Defendants Roy, Harris, and Bryan pursuant to §3294 Civil
19 Code;
20 10. Pre-judgment interest pursuant to §3291 of the Civil Code.
21
11. For such other and further relief as the court may deem proper.
22
23 Dated: August __, 2008 LAW OFFICE OF EUGENE LEE
24
25 By: ___________________________________
Eugene D. Lee
27
28
SAC000045
1 DEMAND FOR JURY TRIAL

2
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands
3
trial by jury for all issues and claims triable as of right by a jury.
4
Dated: August ___, 2008 LAW OFFICE OF EUGENE LEE
5
6 By: ___________________________________
Eugene D. Lee
8
9
10
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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SAC000046
EXHIBIT 2:
Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 1/4/08
SAC000047
Eugene D. Lee
From: Mark Wasser [mwasser@markwasser.com]
Sent: Friday, January 04, 2008 5:11 PM
To: 'Joan Herrington'
Cc: 'Gene Lee'
Subject: RE: 080104 JEH-Wasser re 3d Supplemental Complaint - Redlined
Joan,
I can open the Stipulation but cannot open the Third Supplemental Complaint. Apparently it is in a different program.
Mark
From: Joan Herrington [mailto:jh@baelo.com]

Sent: Friday, January 04, 2008 4:53 PM
To: Mark Wasser
Cc: Gene Lee
Subject: 080104 JEH-Wasser re 3d Supplemental Complaint - Redlined

Attached is a copy of the red‐lined proposed Third Supplemental Complaint and a proposed stipulation allowing Plaintiff
to file it. Although Defendants’ Answer to the Second Supplemental Complaint is deemed effective as to a Third
Supplemental Complaint by operation of law, I have included a paragraph covering this in the stipulation in an excess of
caution.

Please let us know if Defendants will stipulate to the filing of this Third Supplemental Complaint, or whether Plaintiff will
be forced to file a motion for leave to file it. In any case, Plaintiff will not object to Defendants deposing Plaintiff on any
allegations contained in the Third Supplemental Complaint.

Joan Herrington
Bay Area Employment Law Office
5032 Woodminster Lane
Oakland, CA 94602‐2614
(510) 530‐4078 ext 109
jh@baelo.com

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1
SAC000048
EXHIBIT 3:
SAC000049
Eugene D. Lee
Sent: Tuesday, January 22, 2008 9:01 AM
To: elee@LOEL.com
Subject: RE: Jadwin/KC: Supplemental Complaint
Follow Up Flag: Follow up

Flag Status: Completed
Gene,
We are not inclined to stipulate to the Third Supplemental Complaint. It seems late in the case to be changing the
pleadings and we view your proposed deletion of the references to “hostile work environment” as an attempt to limit
discovery into Dr. Jadwin’s behavior. We might reconsider our willingness to stipulate to the filing if you stipulate that the
Defendants remain free to inquire into Dr. Jadwin’s behavior.
Mark
From: Eugene D. Lee [mailto:elee@LOEL.com]

Sent: Monday, January 21, 2008 7:21 PM
To: mwasser@markwasser.com
Subject: Jadwin/KC: Supplemental Complaint
Mark,
Several weeks ago, we had sent over the supplemental complaint Plaintiff intends to file. We had asked whether
Defendants would stipulate to the supplement. If not, Plaintiff intends to file a motion for leave to file it. Please let
us know your thoughts on stipulating to the supplement.
Feel free to reach me at any time with any questions you may have.
Sincerely,
Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
EMPLOYMENT LAW
555 WEST FIFTH ST., STE. 3100
LOS ANGELES, CA 90013
Tel: (213)992-3299
Fax: (213)596-0487
E - m a i l : elee@LOEL.com
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B l o g : www.CaLaborLaw.com

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1
SAC000050
EXHIBIT 4:
SAC000051
Eugene D. Lee
From: Eugene D. Lee [elee@LOEL.com]
Sent: Thursday, April 17, 2008 7:58 PM
To: 'mwasser@markwasser.com'
Subject: Complaint
Attachments: Pleading - Third Supp Complaint_080417.doc
Follow Up Flag: Follow up

Flag Status: Flagged
Mark,
As we discussed, attached is a stipulation for leave to supplement the Second Supplemental Complaint. We’ve
highlighted in yellow the sections we are adding to the complaint.
If it’s ok with you, please let me know so I can go ahead and file it.
Sincerely,
Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
EMPLOYMENT LAW
Tel: (213)992-3299
Fax: (213)596-0487

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

1
SAC000052
EXHIBIT 5:
Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 5/4/08 to 5/5/08
SAC000053
Eugene D. Lee
Sent: Monday, May 05, 2008 10:48 AM
To: elee@LOEL.com
Subject: RE: Continuance of expert deadlines/DME
Fine, Gene. Whatever.

Mark,

I did NOT say I agreed to forego filing the supplemental complaint. I said I would think about it. Please do not suggest I
have committed to things I have not. Second, it is not an amended but supplemented complaint, supplemented to
reflect the fact of KMC’s non‐renewal of Dr. Jadwin’s contract on October 4, 2007. When I spoke to you, the
supplemental complaint was already done and I told you so. All I’m requesting is your stipulation. If you don’t want to
give it, that’s fine…and I hasten to add typical of your conduct in this action. We’ll file a motion. The motion is utterly
unnecessary and I see no reasonable basis for your refusal to stipulate, but that is your choice. The consequence will be
unnecessarily increased statutory attorney fees and costs.

Sincerely,
Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
EMPLOYMENT LAW
Tel: (213)992-3299
Fax: (213)596-0487

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From: Mark Wasser [mailto:mwasser@markwasser.com]
To: elee@LOEL.com
1
SAC000054
Gene,
Our motion will be submitted to whomever the Clerk directs it to. We simply file it. Neither you nor I control that.
Regarding the complaint, this is another example why we do not work together. We discussed that at our meet and
confer session before the Perez depo. I told you I did not think it was a necessary amendment and you said you agreed.
Pleadings do not need to be amended endlessly. I assumed the issue was resolved. Now, out of the blue, here it is
again. Sorry. No thanks. If you want to file another supplemental complaint, bring a motion. For all I know you will be
amending the complaint up to trial.
The pleadings are done.
Mark

Sent: Sunday, May 04, 2008 5:29 PM
Mark,

We’ll be pleased to stip to shortened time (giving Plaintiff 1 week for opposition and waiving Defendants’ reply)
provided 1) you are submitting the motion to Judge Wanger, whose scheduling order you are seeking relief from, and 2)
you sign the stipulation for leave for plaintiff to file the Third Supplemental Complaint, which I sent you on April 17 (see
attached) and regarding which I have not heard from you since.

I look forward to hearing from you.

Sincerely,
Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
EMPLOYMENT LAW
Tel: (213)992-3299
Fax: (213)596-0487

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Sunday, May 04, 2008 12:07 PM
To: elee@LOEL.com
2
SAC000055
EXHIBIT 6:
Plaintiff’s Notice of Withdrawal of Motion to File TSC (Doc. 159)
SAC000056
Case
Case1:07-cv-00026-OWW-TAG
1:07-cv-00026-OWW-TAG Document
Document161
159 Filed
Filed07/07/2008
06/30/2008 Page
Page70
1 of 2
76

Eugene D. Lee (SB#: 236812)
3 Phone: (213) 992-3299
Fax: (213) 596-0487
6
7
10 FRESNO DIVISION
12 Plaintiff, PLAINTIFF'S WITHDRAWAL OF MOTION
FOR LEAVE TO FILE THIRD
13 v. SUPPLEMENTAL COMPLAINT
14 COUNTY OF KERN, et al., Date: July 14, 2008
Time: 9:30 a.m.
15 Defendants. Courtroom: U.S. Dist. Ct., Bankr. Crtrm.
1300 18th St., Bakersfield, CA
16
Complaint Filed: January 6, 2007
17 Trial Date: December 2, 2008
18
19
20
21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
22 Please take notice that Plaintiff hereby withdraws the motion for leave to file third supplemental
23 complaint, scheduled to be heard on July 14, 2008, at 9:30 a.m.
24 Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to file and
25 serve the Second Amended Complaint, naming the County of Kern and additional members of the Joint
26 Conference Committee at Kern Medical Center – Barbara Patrick, Ray Watson, Peter Bryan, David
27 Culberson, Irwin Harris, Jose Perez, Ron Errea and Kent Johnson – as defendants in their personal and
28
USDC, ED Case No. 1:07-cv-00026 OWW TAG
PLAINTIFF'S WITHDRAWAL OF MOTION FOR LEAVE TO FILE THIRD SUPPLEMENTAL COMPLAINT 1

SAC000057
Case
Case1:07-cv-00026-OWW-TAG
1:07-cv-00026-OWW-TAG Document
Document161
159 Filed
Filed07/07/2008
06/30/2008 Page
Page71
2 of 2
76
1 official capacities under Count Ten of Plaintiff’s Complaint (42 U.S.C. 1983 procedural due process).
2
3 RESPECTFULLY SUBMITTED on June 30, 2008.
4 /s/ Eugene D. Lee
6 Phone: (213) 992-3299
Fax: (213) 596-0487
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF'S WITHDRAWAL OF MOTION FOR LEAVE TO FILE THIRD SUPPLEMENTAL COMPLAINT 2

SAC000058
EXHIBIT 7:
Meet and confer emails between Plaintiff’s attorney and Defendants’

SAC000059
Eugene D. Lee
Sent: Tuesday, July 01, 2008 4:27 PM
To: elee@LOEL.com
Cc: Karen Barnes
Subject: RE: Second Amended Complaint - Stipulation
Gene,
The Defendants will not stipulate to the filing of this amended complaint.
Mark

Sent: Tuesday, July 01, 2008 4:21 PM
Subject: Second Amended Complaint - Stipulation

Mark,

Attached is Plaintiff’s proposed Second Amended Complaint. I’ve highlighted changes in yellow. Please let me know if
Defendants will stipulate to the filing at your earliest convenience or whether a motion will be necessary.

Sincerely,
Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
EMPLOYMENT LAW
Tel: (213)992-3299
Fax: (213)596-0487

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

1
SAC000060
1 Eugene D. Lee SB#: 236812

3 Phone: (213) 992-3299
Fax: (213) 596-0487
5 Attorneys for Plaintiff DAVID F. JADWIN, D.O.
6 Mark A. Wasser CA SB #06160
LAW OFFICES OF MARK A. WASSER
7 400 Capitol Mall, Suite 1100
Sacramento, CA 95814
8 Phone: (916) 444-6400
Fax: (916) 444-6405
9 Email: mwasser@markwasser.com
10 Bernard C. Barmann, Sr.
KERN COUNTY COUNSEL
11 Mark Nations, Chief Deputy
1115 Truxton Avenue, Fourth Floor
12 Bakersfield, CA 93301
Phone: (661) 868-3800
13 Fax: (661) 868-3805
Email: mnations@co.kern.ca.us
14
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer
15 Abraham, Scott Ragland, Toni Smith, and William Roy.
16
19 FRESNO DIVISION
21 Plaintiff, STIPULATION RE PLAINTIFF’S LEAVE
TO FILE A SECOND AMENDED
22 v. COMPLAINT; & ORDER THEREON.
23 COUNTY OF KERN, et al., Complaint Filed: January 6, 2007
Trial Date: December 2, 2008
24 Defendants.
25
26
27
28
STIPULATION & ORDER RE PLAINTIFF'S LEAVE TO FILE A THIRD SUPPLEMENTAL
COMPLAINT; & ORDER THEREON 1
SAC000061
1 IT IS HEREBY STIPULATED by and between the parties hereto through their respective
2 attorneys of record that Plaintiff David F. Jadwin, D.O. may file the Second Amended Complaint, a
3 copy of which is attached hereto as Attachment 1.
4 IT IS FURTHER STIPULATED that Defendants waive notice and service of the Second
5 Amended Complaint.
6
7 Date: July , 2008
.
9
10 Date: July , 2008
11
_______________________________________
12 Mark A. Wasser
Attorneys for Defendants County of Kern, Peter Bryan,
13 Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott
Ragland, Toni Smith, and William Roy.
14
15
16 THE FOREGOING STIPULATION IS APPROVED AND IT IS SO ORDERED
17 Date:
18
19 _______________________________________
Hon. Oliver W. Wanger
20 United States District Court Judge
21
22
23
24
25
26
27
28
SAC000062
1
2
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6
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14
15
16
17
18
19
20
21
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23
24
ATTACHMENT A
25 SECOND AMENDED COMPLAINT
26
27
28
SAC000063

161 P MX Amend Complaint

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Case 1:07-cv-00026-OWW-TAG Document 161 Filed 07/07/2008 Page 1 of 76

1 LAW OFFICE OF EUGENE LEE

1 RESPECTFULLY SUBMITTED on July 7, 2008.

1 MEMORANDUM OF POINTS & AUTHORITIES

1 DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION

EXHIBITS TO DECLARATION OF EUGENE D. LEE

EXHIBIT 1. Draft Second Amended Complaint

1 Eugene D. Lee SB# 236812

1 Plaintiff could present the key diagnostic conclusions of his presentation.

1 involuntary leave or the restriction to his home.

1 to Harris. The Roy Letter stated in relevant part:

1 Department of Pathology. This institution needs to have full-time leadership in the

1 118.121. On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan,

1 leave would have been a reasonable accommodation of Plaintiff’s disabilities.

1 133.137. On May 1, 2007, Defendant County notified Plaintiff that he would

1 WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.

1 176.184. Plaintiff incorporates by reference herein the allegations contained in

1 189.197. Plaintiff incorporates by reference herein the allegations contained in

1 197.205. Plaintiff incorporates by reference herein the allegations contained in

1 217. On October 4, 2007, Defendant County failed to renew Plaintiff’s employment

7 relating to providing reasonable accommodation and engaging in good faith in an

1 DEMAND FOR JURY TRIAL

From: Joan Herrington [mailto:jh@baelo.com]

No virus found in this outgoing message.

Follow Up Flag: Follow up

From: Eugene D. Lee [mailto:elee@LOEL.com]

Follow Up Flag: Follow up

Fine, Gene. Whatever.

From: Eugene D. Lee [mailto:elee@LOEL.com]

The pleadings are done.

From: Eugene D. Lee [mailto:elee@LOEL.com]

Plaintiff’s Notice of Withdrawal of Motion to File TSC (Doc. 159)

1 LAW OFFICE OF EUGENE LEE

PLAINTIFF'S WITHDRAWAL OF MOTION FOR LEAVE TO FILE THIRD SUPPLEMENTAL COMPLAINT 1

PLAINTIFF'S WITHDRAWAL OF MOTION FOR LEAVE TO FILE THIRD SUPPLEMENTAL COMPLAINT 2

Meet and confer emails between Plaintiff’s attorney and Defendants’

From: Eugene D. Lee [mailto:elee@LOEL.com]

1 Eugene D. Lee SB#: 236812

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