Professional Documents
Culture Documents
1 (Cal. 2003). The court of appeal affirmed, holding that the Poppink Act’s later-enacted broader
2 disability standard could not be applied retrospectively to a firing that had occurred 4 years prior. 29
3 Cal. 4th 1019, 1027-1028 (Cal. 2003).
4 The California Supreme Court reversed. The court held that the Poppink Act “merely clarified
5 the existing ‘limits’ test in the FEHA and, contrary to the conclusion of the Court of Appeal here, did
6 not retrospectively change that test”. 29 Cal. 4th 1019, 1031 (Cal. 2003). The court explained:
7 When a statute “merely clarifies, rather than changes, existing law [it] does not operate
retrospectively.” Even a material change in statutory language may demonstrate
8 legislative intent only to clarify the statute’s meaning. (Ibid.) If the legislative intent is to
clarify, an amendment has “no retrospective effect because the true meaning of the
9 statute remains the same.” (Ibid.)”
29 Cal. 4th 1019, 1024 (Cal. 2003) n. 2 (citation omitted).
10
In reaching the conclusion that the legislative intent of the Poppink Act was merely to clarify existing
11
law, the court cited: 1) legislative committee analyses which stated that the Poppink Act “‘standardizes’
12
the definition of physical disability ‘in California civil rights law, clarifying that California’s disability
13
protections are broader than federal protections’”, and 2) the fact that the pre-Poppink FEHA “used the
14
term ‘limits,’ not the federal law’s “substantially limits” language, before and after its amendment by
15
the Poppink Act.” 29 Cal. 4th 1019, 1027 (Cal. 2003) (citations omitted, emphases in original).
16
In the instant case, analogs of both of these elements exist. First, as in Colmaneres, legislative
17
committee analyses for AB 632 unequivocally state that the purpose of the Amendment is to clarify that
18
the Statute protects physicians who internally report patient care issues:
19
BACKGROUND AND DISCUSSION: According to the author [of AB 632], existing
20 law does not fully protect physicians and other health professionals from retaliation if
they make a complaint or grievance about a health facility. . . . Complaints about quality
21 of care issues pertaining to health facilities can be raised with a peer review body,
hospital governing board, or accrediting agency. However, the author and sponsor state
22 that, in some cases, physicians who raise a complaint to any of these bodies are not
protected under current law against retaliation and that AB 632 will clarify existing law
23 to prevent abuses against physicians and other health professionals.”
Sen. Health Com. Analysis of Ass. Bill 632, mem. prep. for hearing of June 13, 2007.
24
The legislative committee analyses further confirm that the terms “grievance or complaint” in the pre-
25
Amendment Statute encompassed internal reports:
26
Background: Complaints about the quality of care, services, or conditions of health care
27 facilities [under pre-Amendment § 1278.5] can be submitted in a number of ways. Any
person can present a complaint to the chief administrative officer of the health facility or
28 file a complaint with Department of Health Services’ (DHS) licensing and certification
unit by contacting the district office where that health facility is located.
USDC, ED Case No. 1:07-cv-00026 OWW TAG
PLAINTIFF’S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PURSUANT TO COURT’S
ORDER OF MARCH 2, 2009 2
Case 1:07-cv-00026-OWW-DLB Document 306 Filed 03/09/2009 Page 4 of 9
Sen. Rules Com. Analysis of Ass. Bill 632, mem. prep. for hearing of Sep. 5, 2007 (see
1 also Sen. Health Com. Analysis of Ass. Bill 632, mem. prep. for hearing of June 13,
2007).
2
The analyses also confirm that the pre-Amendment terms “grievance or complaint” encompassed the act
3
of merely providing information to a governmental entity (such as Kern County and KMC):
4
SB 97 (Burton), Chapter 155, Statutes of 1999 [the bill which enacted the pre-
5 Amendment Statute], extended the whistleblower protections then available to patients
and employees of a long-term health care facility to patients and employees of health
6 facilities (hospitals) for filing a grievance or providing information to a governmental
entity regarding care, services, or conditions at the facility.
7 Sen. Rules Com. Analysis of Ass. Bill 632, mem. prep. for hearing of Sep. 5, 2007
(emphasis added).
8
Second, as in Colmaneres, the pre-Amendment Statute is sufficiently ambiguous that it could be
9
interpreted to encompass internal reports by physicians.1 The pre-Amendment Statute simply stated:
10
“No health facility shall discriminate or retaliate in any manner against any patient or employee of the
11
health facility because that patient or employee, or any other person, has presented a grievance or
12
complaint . . . relating to the care, services, or conditions of that facility.” § 1278.5(b)(1). As the Court
13
itself observed, “The old version of the statute did not explicitly specify to whom the ‘grievance or
14
complaint’ had to be made”. Order at 5:21-22. The Statute also did not define the terms “grievance or
15
complaint”. Adding to the ambiguity, the declaratory language contained in § 1278.5(a) includes a
16
statement that “it is the public policy of the State of California to encourage patients, nurses, and other
17
health care workers to notify government entities of suspected unsafe patient care and conditions” and
18
further states that the Legislature encourages this reporting . . . .” (emphasis added). In short, the
19
ambiguous language contained in the pre-Amendment Statute is consistent with the clarification
20
instituted by AB 632 that physicians who make an internal report to a health facility are protected
21
whistleblowers.
22
It should further be noted that the legislative history makes clear that the Amendment’s inclusion
23
of the critical phrase “to the facility” after the phrase “presented a grievance or complaint” in the Statute
24
was merely a clarifying amendment. The legislative analysis of the Assembly Committee on Health for
25
26
1
See also Carter v. California Dept. of Veterans Affairs, 38 Cal. 4th 914, 924, 926 (Cal. 2006) (finding
27 that a FEHA amendment extending employer liability to sexual harassment committed by nonemployees
28 merely clarified existing law in part based on the fact that former provision was sufficiently ambiguous
to support an interpretation that it imposed liability on employers for harassment by nonemployees).
1 hearing of April 10, 2007 stated, “this bill would clarify an ambiguity in existing law.” Ass. Com. on
2 Health Analysis of Ass. Bill 632, mem. prep. for hearing of April 10, 2007. That same analysis
3 contained a section called “SUGGESTED AMENDMENTS” which stated, “On page 3, line 11, before
4 the comma add “to the health facility.” Ass. Com. on Health Analysis of Ass. Bill 632, mem. prep. for
5 hearing of April 10, 2007. The phrase “to the facility” language was then added to the actual bill shortly
6 thereafter. Draft AB 632, amended by Senate on June 6, 2007. No controversy or discussion attended the
7 inclusion of the phrase “to the health facility” in the amended bill, which occurred early in the legislative
8 process.
9 Moreover, the uncodified preamble to AB 632 neglects to even mention the addition of the
10 phrase “to the health facility”, underscoring the fact that it was merely a clarifying change.2 AB 632’s
11 uncodified preamble instead highlights the Amendment’s (1) extension of the Statute’s protections to
12 physicians, (2) inclusion of reports to accreditation bodies, and (3) broadening of remedies to include
13 court discretionary remedies. See p. 113/116 of AB 632 legislative history (Lee Dec. Exh. 5).
14 Finally, the clarifying nature of an amendment is indicated where the legislature acts promptly to
15 correct ambiguities revealed through caselaw interpreting the original statute. Carter v. California Dept.
16 of Veterans Affairs (2006) 38 Cal.4th 914, 920, 923. Here, the legislative history specifically cited to
17 Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal. App. 4th 515, a case that had
18 occurred only a year before enactment of the Amendment, in which a hospital retaliated against a doctor
19 after he sent an internal email raising concerns whether the hospital was going bankrupt:
20 One way is a direct retaliation for a statement made by a physician regarding concerns of
quality of care. According to CMA, the most recent example occurred at Western
21 Medical Center Santa Ana, when the new owners Integrated Healthcare Holdings Inc.
(IHHI) sued Michael Fitzgibbons, M.D. . . when [he] expressed concerns about the
22 financial viability of the hospital.
Ass. Com. on Health Analysis of Ass. Bill 632, mem. prep. for hearing of April 10,
23 2007.
24 In short, a review of legislative history and the ambiguous language of the pre-Amendment
25
2
26 See Carter v. Cal. Dept. of Vet. Aff., 38 Cal. 4th 914, 925 (Cal. 2006) (“An uncodified section is part of
the statutory law. ‘In considering the purpose of legislation, statements of the intent of the enacting body
27 contained in a preamble, while not conclusive, are entitled to consideration. Although such statements in
28 an uncodified section do not confer power, determine rights, or enlarge the scope of a measure, they
properly may be utilized as an aid in construing a statute.’”) (citations and quotations omitted).
1 Statute establishes that the Amendment’s extension of protections to physicians who make internal
2 reports to a health facility was a clarifying change that has no retrospective effect because the “true
3 meaning” of the pre-Amendment Statute remained the same.
4 2. The Statute Encompassed Plaintiff’s Internal Complaint Even Before Amendment
5 Even if the foregoing discussion on clarification were disregarded, Plaintiff’s internal report to
6 KMC at the October Oncology Conference would still qualify as protected activity under the pre-
7 Amendment Statute. It is undisputed that (A) KMC and Kern County are “governmental entities”.
8 (Response to RFA No. 19-20, Doc. 267-2 at 5:11-17); (B) the October Oncology Conference is a
9 monthly “proceeding” of KMC; and (C) Plaintiff’s report at the conference on a hysterectomy of a
10 patient (no. 1142693) that was almost conducted based on flawed outside pathology reports “initiated”
11 an “investigation” of that patient’s case whereby Kern County Counsel sent her case to a retained expert
12 named William Colburn, M.D. (See Colburn Report, Doc. 277-3 at p. 38 of 191).
13 B. Plaintiff Was at All Times an “Employee” Protected by the Statute Both Before
and After the Amendment
14
As the Court has noted, the Statute in effect at all relevant times prohibited retaliation against
15
any “employee of the health facility”; however, the Court questions whether a physician such as Plaintiff
16
may qualify as an actual employee of the health facility. Order at 6:26-28.
17
Plaintiff submits that he did so qualify. The Scheduling Order establishes that “Plaintiff has
18
continuously been an employee of Defendant Kern County since October 24, 2000.” (Doc. 29 at 7:28-
19
8:1). Defendants have also judicially admitted that KMC is a health facility. (Response to RFA No. 18,
20
Doc. 267-2 at 5:7-10).
21
Moreover, the legislative committee analyses for AB 632 make clear that, even under the pre-
22
Amendment Statute, physicians who work at teaching hospitals like KMC may be deemed employees.
23
Current state law prohibits the employment of physicians by corporations or other
24 entities that are not controlled by physicians. For that reason, most members of the
medical staff are not considered employees of a hospital and must establish contractual
25 relationships with the hospital, either individually or through medical groups. Some
exceptions are teaching hospitals, certain clinics, and hospitals owned and operated by a
26 health care district.
Sen. Rules Com. Analysis of Ass. Bill 632, mem. prep. for hearing of Sep. 5, 2007
27 (emphasis added).
28 Finally, the legislative committee analyses for AB 632 disclose that the “stated need for the bill”
1 arises from the exploitation by “enterprising attorneys” of the “nebulous term” “or any other person”
2 contained in the pre-Amendment Statute so as to deny protections to physicians by arguing that a
3 physician is neither an “employee” nor a “patient”. The analyses then state: “As such this section must
4 be clarified and strengthened” to close this legal loophole. (Sen. Jud. Com. Analysis of Ass. Bill 632,
5 mem. prep. for hearing of July 10, 2007). A clarifying statute does not operate retrospectively.
6 Colmenares v. Braemar Country Club, 29 Cal. 4th 1019, 1022 (Cal. 2003).
7 In short, Plaintiff clearly qualifies as an “employee” under the Statute, both before and after the
8 Amendment.
9 C. Plaintiff’s § 1278.5 Claims Encompass More than Just the October Oncology
Conference
10
Plaintiff’s § 1278.5 claims involve more than just Plaintiff’s internal complaint at the October
11
Oncology Conference. They also encompass, among other things: A) the decision of Kern Medical
12
Center’s (“KMC”) CEO to force Plaintiff from part-time medical leave onto involuntary full-time
13
medical leave on April 28, 2006 in retaliation for his email to the CEO of April 17, 2006 complaining
14
that KMC was not complying with blood documentation regulations and requesting that the non-
15
compliance be elevated to the Board of Supervisors of Kern County (Plaintiff’s Motion for Summary
16
Judgment (“MSJ”, Doc. 272) at 10:11-11:2); Plaintiff Material Fact (“PMF”) 97, Plaintiff’s Separate
17
Statement (Doc. 272.-2)); as well as B) the decision of KMC’s Chief Medical Officer to place Plaintiff
18
on a 10-month administrative leave – restricting him to his home for 5 of those months – 2 to 3 weeks
19
after Plaintiff’s (i) filing of complaints with the California Department of Health Services and various
20
accreditation bodies (MSJ at 11:3-12:9) and (ii) email to KMC leadership complaining about a radical
21
prostatectomy that was scheduled to occur based on patently inconclusive pathology findings (MSJ at
22
12:10-13:3). Even if the Court were to summarily dispose of Plaintiff’s § 1278.5 claim with respect to
23
the October Oncology Conference, Plaintiff’s other § 1278.5 claims would survive.
24
D. The Ninth Circuit Has Already Addressed The Instant Issue
25
The exact issue before this Court – whether an internal whistleblowing report pre-dating the
26
Amendment is protected by § 1278.5 – has already been considered by the 9th Circuit. In Mendiondo v.
27
Centinela Hosp. Med. Ctr., a nurse complained internally to the hospital CEO and her supervisor about
28
patient care concerns and then sued under § 1278.5 before the Amendment. 521 F.3d 1097, 1105 (9th
USDC, ED Case No. 1:07-cv-00026 OWW TAG
PLAINTIFF’S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PURSUANT TO COURT’S
ORDER OF MARCH 2, 2009 6
Case 1:07-cv-00026-OWW-DLB Document 306 Filed 03/09/2009 Page 8 of 9
1 Cir. 2008). Her complaints all pre-dated January 1, 2008 and she never blew the whistle to an outside
2 governmental entity. Centinela’s Answering Brief – which was itself filed well before the enactment of
3 the Amendment – argued that, under the pre-Amendment Statute:
4 Mendiondo cannot deny that she never alleged that she “notif[ied] government entities”
about any “suspected unsafe patient care and conditions” at CHMC. Mendiondo simply
5 is not a whistleblower deserving of protection under California law, and the trial court’s
dismissal of this claim should be affirmed.
6 2006 U.S. 9th Cir. Briefs 55981, 25-26 (9th Cir. Feb. 2, 2007) (citation omitted).
7 The 9th Circuit rejected Centinela’s argument that an external report was required and held that § 1278.5
8 is “intended to encourage medical staff and patients to notify government entities of ‘suspected unsafe
9 patient care and conditions.’ The statute prohibits retaliation against any employee who complains to an
10 employer or a government agency about unsafe patient care or conditions.”
11 III. IF RETROSPECTIVE, WHAT IS THE IMPACT ON DEFENDANTS’ MJOP?
12 Under the California Tort Claims Act, Kern County was required to give timely written notice to
13 Plaintiff of any deficiencies in his submitted claims, such as insufficient disclosures and/or untimely
14 submission. Cal. Gov. C. §§ 910.8; 911.3(a). Failure to give such written notice of deficiencies to
15 Plaintiff waives any associated defenses. Cal. Gov. C. §§ 911; 911.3(b). Here, Kern County never gave
16 Plaintiff any such written notices of deficiencies. Defendants have therefore waived all associated
17 defenses and their Motion for Judgment on the Pleadings should be denied.
18 Moreover, caselaw establishes that employees who allege continuing violations, as Plaintiff is
19 doing, may comply with the Tort Claims Act by filing a series of tort claims, as Plaintiff has done here.
20 In Murray v. Oceanside Unified Sch. Dist., the court considered the case of a plaintiff who had filed tort
21 claims three times regarding continuous alleged harassment that pre-dated the tort claims by more than 6
22 months. 79 Cal. App. 4th 1338, 1360-1361 (2000). The court referenced the “continuing violation”
23 doctrine set forth in Accardi v. Sup. Ct., 17 Cal. App. 4th 341 (1993) in concluding “that the purposes of
24 the Tort Claims Act have been adequately protected by the procedures followed here.” 79 Cal. App. 4th
25 1338, 1360-1361 (2000). Moreover, according to the holding in Morgan v. Regents of the Univ. of Cal.,
26 the plaintiff need only “demonstrate that at least one act [of the continuing violation] occurred within the
27 filing period....” (2000) 88 Cal.App.4th 52, 64.
28
1 For the foregoing reasons, Plaintiff respectfully requests the Court deny Defendants’ Motion for
2 Judgment on the Pleadings in its entirety.
3
4 RESPECTFULLY SUBMITTED on March 9, 2009.
5
/s/ Eugene D. Lee
6 LAW OFFICE OF EUGENE LEE
555 West Fifth Street, Suite 3100
7 Los Angeles, CA 90013
Phone: (213) 992-3299
8 Fax: (213) 596-0487
email: elee@LOEL.com
9 Attorney for Plaintiff DAVID F. JADWIN, D.O.
10
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20 1. I am an attorney at law duly licensed to practice before the Federal and State Courts of
21 California and admitted to practice before the U.S. District Court for the Eastern District of California. I
24 Defendants’ Motion for Summary Judgment. I have personal knowledge of the matters set forth below
25 and I could and would competently testify thereto if called as a witness in this matter.
26 3. I filed all of the Tort Claims Act claims in this action on Plaintiff’s behalf. In each case, I
27 indicated my law firm address as the desired mailing address for notices from Kern County.
28 4. Kern County never at any time delivered to me any written notices of any deficiencies in
any of Plaintiff’s Tort Claims Act claims which I filed on his behalf. Had it done so, I would have taken
1 any and all appropriate steps to cure or resolve any such deficiencies or minimize the prejudice to
2 Plaintiff. I was never afforded such opportunity.
3 5. Attached hereto as Exhibits are true and correct copies of the following documents which
4 were either served on me, filed by me or transmitted by me on or around the dates indicated:
5
Exh. Date Description
6
1 7/3/2006 Plaintiff’s Tort Claims Act Claim
7
8 2 9/15/2006 Letter from Kern County to Eugene Lee re Plaintiff’s Tort
Claims Act Claim
9 3 4/23/2007 Plaintiff’s First Supplemented Tort Claims Act Claim
4 10/16/2007 Plaintiff’s Second Supplemented Tort Claims Act Claim
10
11 6. On March 2, 2009, at approximately 4:30 p.m., I navigated my internet browser to the
13 number “632”, session “2007-2008 PRIOR” and house “Assembly” in the appropriate search fields. I
14 then downloaded and printed out all AB 632 legislative history files that resulted from the search.
15 Attached hereto as Exhibit 5 is a full and accurate computer printout of all such AB 632 legislative
16 history files.
17 7. Attached as Exhibit 6 is a true and correct copy of the answering brief submitted by
18 defendants-appellees to the 9th Circuit in Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1105
19 (9th Cir. 2008). The Lexis-Nexis cite for the brief is 2006 U.S. 9th Cir. Briefs 55981; 2007 U.S. 9th Cir.
21
22 RESPECTFULLY SUBMITTED on March 9, 2009.
23
/s/ Eugene D. Lee
24 LAW OFFICE OF EUGENE LEE
555 West Fifth Street, Suite 3100
25 Los Angeles, CA 90013
Phone: (213) 992-3299
26 Fax: (213) 596-0487
email: elee@LOEL.com
27 Attorney for Plaintiff DAVID F. JADWIN, D.O.
28
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EXHIBIT 1: Plaintiff’s Tort Claims Act Claim
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This claim must be filed with the Clerk of the Board of Supervisors, 1115 Truxtun
A ve., 6 Floor, Bakersfield, California 93301. If it is a claim for death, iniuw to
person, iniury to personal pro~ertyor iniury to growins crops, it must be filed within six
months after the accident or event giving rise to the claim. If it is a claim for any
other cause of action, it must be fled within one year afier the evenf(s) giving rise to the
claim. You must complete both sides and sign the claim form for the claim to be valid.
Complete information must be provided. If the space provided is inadequate, please
use additional paper and identify information by paragraph number.
2. State the mailing address to which claimant desires notices from the County to
be sent:
Law Office
O f f i c e of
o f Eugene
E u g e n e Lee,
L e e , 445
4 4 5 South
S o u t h Figueroa
F i g u e r o a Street,
S t r e e t , Suite
S u i t e 2700,
2 7 0 0 , Los
L o s Angeles,
A n g e l e s , CA 90071
90071
3. State the date, place and other circumstances of the accident or event(s) giving
rise to the claim.
See
See attachment.
attachment.
5. Provide the name or names of the public employee or employees causing the
injury, damage or loss, if known:
Mr. Peter Bryan, D r . I r w i n H a r r i s , D r . Eugene Kercher, Dr. Scott Ragland,
PS. J e n n i f e r A&ih-m. Dr. W i l l iam Rov. ~t al-
If more than ten thousand dollars, would the claim be a limited civil case (less
than $25,ODO)? (Circle one)
7.
Ye6
@
Please state any additional information which may be helpful in considering this
claim:
Complainant met w i t h Mr. Bernard Barmann with respect to the foregolng on
e b r u a r v 9. 2006.
I F
CLAIMANT'S SIGNATURE
3. State the date, place and other circumstances of the accident or event(s)
giving rise to the claim.
A. Breach of Contract
With respect to the County of Kern and each KMC officer or staff
member as appropriate:
Pro rata loss or reduction of employment compensation of approx.
$400,000 per annum for the period from (i) on or about Dec. 2005
to Oct. 4, 2007 (end of current contract employment period) due
to demotion, sick leaves and vacation time, and (ii) from Oct.
2007 until such time as complainant is able to secure comparable
position with comparable pay after engaging in a diligent job
search. Complainant believes his career as a pathologist is
effectively at an end due to his age and the dearth of pathology
chair positions in the US.
Loss of reputation.
2
Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 8 of 205
3
Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 9 of 205
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EXHIBIT 2: Letter from Kern County to Eugene Lee re Plaintiff’s Tort Claims Act Claim
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Administrative Center
1115 Truxtun Avenue, 4th Floor
Bakersfield, CA 93301
Telephone: (661) 8683801
Fax: (661) 8683875
EUGENE LEE
LAW OFFICE OF EUGENE LEE
445 SOUTH FIGUEROA ST SUITE 2700
LOS ANGELES CA 90071
NOTICE IS HEREBY GIVEN that the claim you submitted to the Clerk of the Kern County
Board of Supervisors on 7-5-2006 was not acted upon by the Board. The claim is deemed
rejected by operation of law forty-five (45) days after the date the claim was so presented.
WARNING
Subject to certain exceptions, you have only six (6) months from the date this notice was
deposited in the mail to file a court action on this claim. (See Government Code 945.6.)
You may seek the advice of an attorney of your choice in connection with this matter. If
you desire to consult an attorney, you should do so immediately.
,,
Tom Newell, Service Representative
Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 11 of 205
STATE OF CALIFORNIA )
) ss
COUNTY OF KERN )
Eugene Lee
Law Office of Eugene Lee
445 So. Figueroa St., Suite 2700
Los Angeles, CA. 90071
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Tom Newell
Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 12 of 205
Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 13 of 205
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EXHIBIT 3: Plaintiff’s First Supplemented Tort Claims Act Claim
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SUPPLEMENTED
CLAIM AGAINST THE COUNTY OF KERN
(Government Code §§ 910,910.2 I\; 910.4)
This claim must be filed with the Clerk of the Board of Supervisors, 1115 Truxtun
Ave., 5'" Floor, Bakersfield, California 93301. ff it is a claim for death. injury to
person, iniYrx to personal property or inlurv to growing crops, it must be filed within six
months after the accident or event giving rise to the claim. ff it is a claim for any
other causa of action, it must be filed within one year after the event(sJ giving rise to the
claim. You must complete both sides and sign the claIm form for the cleim to be valid.
Complete information must be provided. If the spece provided is inadequate, please
use additional paper and identify information by paragraph number.
2. State the mailing address to which claimant desires notices from the County to
be sent:
Law Office of Eugene Lee, 555 W 5th St, Ste 3100, LOS Angeles, CA 90013
3_ State the date, place and other circumstances of the <lcciqent or event(s} giving
rise to the claim.
See attachment.
1
04/23/2007 15:35 18182443550 JADWIN CHA PAGE 02/02
5. Provide the name or names of the public employee or employees causing the
injury, damage or loss, if known:
Peter B~yan, Irwin Harris, Eugene Kercher, Scott Ragland, Jennifer Abraham,
William Roy, Toni Smith
If more than ten thousand dollars, would the claim be a limited civil case (less
than $25,000)7 (Circle one)
Yes
7. Please state any additional information which may be helpful in considering this
claim:
Complainant met with Eernard B~~mann, Kern CQunty Counsel, with respect
to the foregoing on February 9, 2006.
rd /l..-{
B. Signed this 2- ""b day of {'let-, ,2°4.
~~k
SIGN;:A~TU::::R':':E""----
CLAIMANT'S
2
Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 16 of 205
3. State the date, place and other circumstances of the accident or event(s)
giving rise to the claim.
Punitive damages.
8
DAVID F. JADWIN, D.O. Case No. 1:07-cv-26
9
Plaintiff
vs. FIRST AMENDED COMPLAINT FOR
10 DAMAGES AND INJUNCTIVE RELIEF.
COUNTY OF KERN; PETER BRYAN
11 (both individually and in his former official I. Retaliation [Health & Safety Code §
capacity as Chief Executive Officer Of 1278.5];
Kern Medical Center); IRWIN HARRIS,
12 M.D; EUGENE KERCHER, M.D. (both II. Retaliation [Lab. Code § 1102.5];
individually and in his official capacity as a III. Retaliation [Gov’t Code §§ 12945.1, et
13 President of Medical Staff of Kern Medical seq; 2 C.C.R. § 7297.7(a)];
Center); JENNIFER ABRAHAM, M.D. IV. Interference with FMLA Rights [29
(both individually and in her official
14 capacity as Immediate Past President of U.S.C. §§ 2601, et seq.];
Medical Staff at Kern Medical Center); V. Violation of CFRA Rights. [Gov’t Code
15 SCOTT RAGLAND, M.D. (both §§ 12945.1, et seq.];
individually and in his official capacity as VI. Disability Discrimination [Gov’t. Code
16 President-Elect of Medical Staff of Kern § 12940(a)];
Medical Center); TONI SMITH, (both
individually and in her official capacity as VII. Failure to Provide Reasonable
17 Chief Nurse Executive of Kern Medical Accommodation [Gov’t Code §
Center); WILLIAM ROY, M.D.; and 12940(m)];
18 DOES 1 through 10, inclusive. VIII. Failure to Engage in Good Faith In An
Defendants. Interactive Process [Gov’t Code §
19 12940(n)];
IX. Defamation [Civ. Code §§ 45- 47]; and
20 X. Procedural Due Process Violation [14th
Amendment of U.S. Constitution; 42
21 U.S.C. § 1983].
XI. Violation of FLSA [29 U.S.C. §201 et
22 seq.]
24
1
NATURE OF THE ACTION
2
This is an individual action brought by Plaintiff David F. Jadwin, D.O., a whistleblowing
3
physician with disabilities, against his employer, (i) the County of Kern (“Defendant County” or
4
“the County”); ) (ii) individual Defendants Peter Bryan (“Bryan”), Chief Executive Officer of
5
Kern Medical Center (“KMC”); Eugene Kercher, M.D., President of Medical Staff at KMC
6
(“Kercher”); Jennifer Abraham, M.D., Immediate Past President of Medical Staff at KMC
7
(“Abraham”); Scott Ragland, M.D., President-Elect of Medical Staff at KMC (“Ragland”); and
8
Toni Smith, Chief Nurse Executive of KMC, (“Smith”), both personally and in their official
9
capacities; and (iii) individual Defendants Irwin Harris, M.D., Chief Medical Officer of KMC
10
(“Harris”); William Roy, M.D., Chief of the Division of Gynecologic Oncology at KMC
11
(“Roy”); and DOES 1 through 10.
12
Plaintiff’s claims against his employer, Defendant County, allege violations of section
13
1278.5 of the Health & Safety Code 1 which prohibits retaliation against a health care provider
14
who reports suspected unsafe care and conditions of patients in a health care facility; section
15
1102.5 of the Labor Code which prohibits retaliation against an employee for reporting or
16
refusing to participate in suspected violations of the law; the California Family Rights Act
17
(sections 12945.1, et seq., of the Government Code) (“CFRA”) and the Family and Medical
18
Leave Act (sections 2601, et seq. of the United States Code) (“FMLA”) which prohibit
19
interference with an employee’s right to medical leave and retaliation for an employee’s exercise
20
of the right to medical leave; and the Fair Employment and Housing Act [subdivisions (a), (m) &
21
(n) of section 12940 of the Government Code] (“FEHA”) which prohibits discrimination against
22
23
1
All statutory references are to California Codes unless otherwise specified.
24
2 engage in an interactive process; and recovery of wrongfully deducted wages under the Fair
4 Plaintiff sues Defendants County, Roy, Harris and DOES 1 through 10, for defamation;
5 and also sues each of the individual Defendants except for Roy and Harris, both in their personal
6 capacity and in their official capacity as members of the KMC Joint Conference Committee
7 (“JCC”), for violation of Plaintiff’s 14th Amendment of the United States Constitution right to
9 Plaintiff brings this action for general, compensatory, and punitive damages; prejudgment
10 interest, costs and attorneys’ fees; injunctive and declaratory relief; and other appropriate and
11 just relief resulting from Defendants’ unlawful conduct, and as grounds therefor alleges:
13 1. This Court has federal question jurisdiction over the FMLA, Due Process, and
14 FLSA claims pursuant to 28 U.S.C. § 1331. The Court has supplemental jurisdiction over
17 part of the events and omissions giving rise to this claim occurred in the County of Kern,
18 California.
19 INTRADISTRICT ASSIGNMENT
21 (Appendix A) because the events giving rise to this civil action occurred in Bakersfield in the
23
24
1 PARTIES
2 4. At all material times herein, Plaintiff David F. Jadwin, D.O. (“Plaintiff”) has
3 continuously been an employee of Defendant County, a citizen of the United States and
5 5. At all material times herein, Plaintiff was an individual with disabilities within the
8 local public entity within the meaning of sections 811.2 & 900.4 of the Government Code and is
10 7. At all material times herein, the County has continuously been an employer
11 within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Government Code §
12 12945.2(b)(2)], FEHA [Government Code § 12926(d)], and FLSA [29 U.S.C. § 203], engaged in
13 interstate commerce and regularly employing more than fifty employees within seventy-five
15 8. On information and belief, at all material times herein, Defendant Peter Bryan is a
16 citizen of Colorado, and a resident of Denver, Colorado, and was Chief Executive Officer of
18 9. On information and belief, at all material times herein, Defendant Eugene Kercher
19 is a citizen of California, a resident of Kern County, California, and President of KMC Medical
21 10. On information and belief, at all material times herein, Defendant Irwin Harris is
22 a citizen of California, and a resident of Kern County, California, and Chief Medical Officer at
24
1 11. On information and belief, at all material times herein, Defendant Jennifer
2 Abraham is a citizen of California, and a resident of Kern County, California and Immediate Past
4 12. On information and belief, at all material times herein, Defendant Scott Ragland
7 13. On information and belief, at all material times herein, Defendant Toni Smith is a
8 citizen of California, and a resident of Kern County, California, and Chief Nurse Executive of
10 14. On information and belief, at all material times herein, Defendant William Roy is
11 a citizen of California, and a resident of Kern County, California and Chief of the Division of
13 15. The true names and capacities of Defendants DOES 1 through 10, inclusive, are
14 presently unknown to Plaintiff, who therefore sues said Defendants by such fictitious names.
15 Plaintiff will amend this complaint to set forth the true names and capacities of said Defendants
16 when they are ascertained. Plaintiff is informed and believes, and upon such information and
17 belief alleges, that at all times relevant, each of the fictitiously-named Defendants was an agent,
18 employee, or co-conspirator of one or more of the named Defendants, and was acting within the
19 course and scope of said agency or employment. Plaintiff is further informed and believes, and
20 upon such information and belief alleges, that each of the fictitiously named Defendants aided,
21 assisted, approved, acknowledged and/or ratified the wrongful acts committed by Defendants as
22 alleged herein, and that Plaintiff’s damages, as alleged herein, were legally caused by such
23 Defendants.
24
1 FACTUAL BACKGROUND
4 accomplishments that have included leadership roles in national, state and local pathology and
5 medical societies. Plaintiff received extensive education and training at reputable academic and
6 medical institutions. Plaintiff has managed several clinical laboratories and pathology
8 frequently "with distinction.” Plaintiff has also been recognized by numerous pathologists and
9 physicians for his professional leadership and commitment to set and uphold rigorous and ethical
11 17. In late 2000, Plaintiff was recruited to assume the position of Chair of the
12 Pathology Department at KMC, a teaching hospital owned and operated by Defendant County.
13 Plaintiff was recruited in part to raise standards of patient care quality and safety at KMC.
14 Plaintiff immediately set about implementing, among other things, a best-practices peer review
16 18. In 2001, Plaintiff began to report concerns to key members of KMC’s medical
17 staff and administration about the unacceptably high levels of unsatisfactory or non-diagnostic
18 fine needle aspirations (“FNA”) – a method of using a needle and syringe to obtain deep internal
19 tissue samples of vital organs – being taken by the Radiology Department at KMC for diagnosis
20 by the Pathology Department. In 2003, Plaintiff began to report concerns to key members of
21 KMC’s medical staff and administration about ineffective and unnecessary blood transfusions
22 and an unacceptably high incidence of lost or incomplete product chart copy certifications
23 (“PCC”) required for accurate tracking of dangerous blood transfusions. In 2004, Plaintiff began
24
1 to report concerns to key members of KMC’s medical staff and administration about the need for
3 significant surgical procedures based upon the reports of outside pathologists (“Internal
4 Pathology Review”). In 2005, Plaintiff reported a concern to key members of KMC’s medical
5 staff and administration about an inappropriate radical hysterectomy (cancer surgical procedure
6 for removal of all female reproductive organs and regional lymph nodes) performed by Roy on a
7 patient with a benign endometriotic cyst (“Roy Hysterectomy”). Also in 2005, Plaintiff began to
8 report concerns to key members of KMC’s medical staff and administration about the need to
9 review a series of serious diagnostic errors committed by a former KMC pathologist, including
10 the failure to identify invasive adenocarcinoma in several prostate needle biopsies (“Prostate
11 Biopsy Errors”). Also in 2005, Plaintiff reported concerns to KMC administration that KMC
12 physicians had performed surgery on a wrong patient due to an error which Plaintiff believed
13 would have been less likely had KMC implemented Internal Pathology Review per Plaintiff’s
14 recommendation. Plaintiff reported several other concerns about inappropriate patient care and
15 noncompliance with quality control standards. In February of 2006, Plaintiff met with Bernard
16 Barmann, County Counsel for the County of Kern (“Barmann”), to report the foregoing
17 concerns.
20 Harris, Ragland and Abraham harshly reprimanded Plaintiff, based on false allegations, resulting
21 from a 15- to 20-minute presentation given by Plaintiff during a monthly KMC oncology
22 conference that allegedly exceeded conference time limits by approximately ten minutes.
24
1 concerns regarding Internal Pathology Review and their potential impact upon deciding the
2 correct surgical procedure for the patient under discussion. The presentation was stopped before
4 20. After the conference, Harris solicited letters of disapprobation from conference
5 participants, including Roy. Roy submitted a letter (“Roy Letter”) containing several false
6 statements of fact which defamed Plaintiff to other members of KMC’s medical staff and
7 administration. On information and belief, Harris and DOES 1 through 10 republished the Roy
8 Letter to third parties. Several KMC medical and administration officers including Bryan and
9 Kercher were aware of Roy’s, Harris’s and DOES 1 through 10’s acts of defamation, but refused
11 21. In December of 2005, Plaintiff began medical leave initially in the form of
12 medically necessary reduced work schedule due to severe depression which was later extended
13 to June 16, 2006. It was not until on or about March 2, 2006, that Plaintiff was finally provided
14 with a Request for Leave of Absence form which he then submitted to KMC’s HR Department.
15 Plaintiff also received a document entitled “Designation of Leave (Serious Health Condition of
17 of Plaintiff’s reinstatement to his same or equivalent position with same pay, benefits and terms
19 22. During Plaintiff’s sick leave, Bryan issued a series of verbal and written
20 ultimatums to Plaintiff which threatened him with termination or demotion upon return from his
21 leave, thereby giving notice that Plaintiff was not in fact guaranteed reinstatement to his same or
22 equivalent position. In a meeting in April of 2006, Bryan ordered Plaintiff to cease his reduced
23 work schedule and begin full-time leave, despite the fact that just days before, Plaintiff had
24
1 submitted a written request for extension of his reduced work schedule for an additional six
2 months to one year because of his serious medical condition. On June 14, 2006, two days before
3 Plaintiff’s medical leave was allegedly due to end, Bryan informed Plaintiff that he was denying
4 Plaintiff reinstatement to his same or equivalent position, and that he was in fact demoting
5 Plaintiff to a staff pathologist position, effective June 17, 2006, because Plaintiff had taken
6 excessive sick leaves; Plaintiff’s base salary was also ultimately reduced over $100,000 (over
7 35%) as a result (such demotion and pay reduction are hereinafter referred to collectively as
8 “demotion” or “demoted”).
10 Plaintiff continued to suffer a hostile work environment and retaliation. On or about November
11 28, 2006, after almost six years of trying to reform KMC from within, Plaintiff finally blew the
12 whistle on KMC, formally reporting his Concerns to the Joint Commission on Accreditation of
13 Hospital Organizations, the College of American Pathologists, and the California Department of
15 KMC leadership about numerous additional concerns regarding the quality of patient care and
18 24. On December 13, 2006, Plaintiff sent a letter to David Culberson (“Culberson”),
19 interim Chief Executive Officer of KMC, and carbon-copied to members of KMC’s medical staff
20 leadership, informing him that he had reported his Concerns to the Authorities.
21 25. On March 28, 2007, KMC authorized Plaintiff to access his office in order to
22 retrieve his personal computer files. Upon his arrival, Dr. Dutt informed him that his office was
23 now locked and that Dr. Dutt now had custody of the key, that Plaintiff’s file cabinet and
24
1 computer had been physically removed and retasked for other purposes at KMC, and that
2 Plaintiff would not be able to access his personal computer files after all.
3 26. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had
4 yet to be provided any explanation for his involuntary leave or any indication as to whether or
5 when it would end so that he could return to work, (ii) the involuntary leave requiring him to
6 remain at home by his phone during working hours was threatening to erode his pathology skills,
7 jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was
8 denying him the opportunity to earn income from professional fee billing, and (iv) part-time
9 work was deemed therapeutic for him by his physician and that the confinement to his house
10 during working hours was having the opposite effect of severely exacerbating his depression.
13 B. EMPLOYMENT RELATIONSHIP
14 28. On October 24, 2000, the County entered into an employment contract with
15 Plaintiff (“Initial Contract”), hiring him to a full-time position as Chair of the Pathology
16 Department at KMC and as Medical Director of the KMC clinical laboratory (“Lab Director”)
17 for an employment term ending on November 30, 2006. As Lab Director, Plaintiff’s job duties
19 29. On or about November 12, 2002, the County modified Plaintiff’s employment
20 contract to reflect an increase in his compensation and leave accrual rate, among other things.
21 This second employment contract dated as of October 5, 2002 (“Second Contract”) extended
22 Plaintiff’s employment term to October 4, 2007. A true and correct copy of the Second Contract
24
2 customarily referred to as “the conscience of a hospital”, and Plaintiff’s job duties extended
3 “beyond (his) own department and (he was) expected to be an effective contributor to the overall
4 improvement efforts of the hospital as a whole.” Such duties included participation in many
6 31. According to Exhibit A of the Initial Contract, the County expected Plaintiff to
7 spend 80 to 90% of his time on clinical duties of a pathologist, and 10 to 20% of his time on
8 administrative duties as Chair of the Department of Pathology (“Chair of Pathology”) and Lab
9 Director.
10 32. Article V.10 of the Second Contract provides that Plaintiff will not be deemed a
11 classified employee, or have any rights or protections under the County's Civil Service
13 33. Article II.3(B)(1) of the Second Contract guarantees that Plaintiff’s base salary
14 will be based on a benchmark salary in proportion to his full-effort commitment. In turn, the
15 benchmark salary will be based on a national standard with four steps (A-D) with three criteria
16 for step placement: clinical experience, teaching and administrative duties as set forth in the
18 34. On information and belief, at the time of his hire, the County placed Plaintiff’s
20 35. Article III.4 of the Second Contract entitles Plaintiff to the same right to unpaid
21 leave of absence as those provided to a regular County employee under the County’s policy,
22 including six months cumulative unpaid leave of absence for illness or disability pursuant to
23 Rule 1201.20 of the Rules of the Civil Service Commission for the County of Kern (“CSC
24
1 Rules”).
2 36. Article IV.1(B) of the Second Contract requires “cause” for termination of
5 37. Article IV.3 of the Second Contract entitles Plaintiff to administrative review of
6 any corrective action for unsatisfactory clinical performance pursuant to the Bylaws of the
7 Medical Staff of KMC (“Bylaws”); and for administrative review of any corrective action for
8 violation of administrative policies of the County or KMC pursuant to the KAPP Manual.
9 C. WHISTLEBLOWING
10 38. Throughout the course of his employment by KMC, Plaintiff has advocated for
11 appropriate patient care and compliance with the quality accreditation standards of the Joint
13 Pathologists, the American Association of Blood Banks and the American College of Surgeons
14 Commission on Cancer as well as applicable state and federal regulations designed to ensure safe
16 39. Plaintiff reported his various concerns (“Concerns”) about inappropriate and/or
17 suspected unsafe patient care and conditions and non-compliance with applicable laws and
18 regulations and accreditation standards to Bryan and key members of KMC’s medical staff,
19 including but not limited to the following: (i) beginning in 2001, Plaintiff reported the
20 unacceptably high levels of unsatisfactory or non-diagnostic FNAs being taken by the Radiology
21 Department at KMC; (ii) beginning in 2003, Plaintiff reported the unacceptably high incidence
22 of lost or incomplete PCC; (iii) beginning in 2004, Plaintiff reported the need for Internal
23 Pathology Review; (iv) beginning in 2005, Plaintiff reported the Roy Hysterectomy; (v)
24
1 beginning in 2005, Plaintiff reported the need to review the Prostate Biopsy Errors; and (vi)
2 beginning in 2005, Plaintiff reported that KMC physicians had performed surgery on a wrong
3 patient due to an error which Plaintiff believed would have been less likely had KMC
4 implemented Internal Pathology Review. Unfortunately, Plaintiff’s reports not only appeared to
5 fall on deaf ears, but also generated resentment and hostility among his peers at KMC.
6 40. On or about December 12, 2005, Plaintiff’s former attorney, Michael Young
7 (“Young”), sent a letter to Barmann, requesting Barmann meet with Plaintiff to discuss his
8 Concerns.
9 41. On or about February 9, 2006, Barmann and Barnes met with Plaintiff. Plaintiff
10 reported his various Concerns, as well as the retaliation, defamation and hostile work
12 42. Finally, on or about November 28, 2006, after almost six years of trying to reform
13 KMC from within in vain, Plaintiff formally reported his Concerns to the Authorities.
14 43. On December 13, 2006, Plaintiff sent a letter addressed to Culberson, and carbon-
15 copied to members of KMC’s medical staff leadership, informing him that “KMC leadership has
16 left me no choice but to report the above issues to the appropriate state and accrediting
17 agencies”.
18 D. DEFAMATION
19 44. In 2005, Plaintiff had reported the need for Internal Pathology Review to key
20 members of KMC medical staff and administration. Roy refused to submit outside pathology
21 reports for Internal Pathology Review prior to surgery, preferring instead to refer all of his
24
1 45. On or about April 15, 2005, Roy sent a letter which was addressed to Plaintiff and
2 carbon-copied to Dr. Leonard Perez (“Perez”), Chair of the OB-GYN Department at KMC. The
1 49. On or about June 30, 2005, Martin and Harris told Plaintiff that Roy was making
3 50. On or about June 30, 2005, Plaintiff sent a letter addressed to Roy and carbon-
4 copied to Perez, Martin, Harris, Kercher and Bryan. The letter stated:
5 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
6 department. You are reported by others to claim that several of KMC pathology
diagnoses do not agree with outside diagnoses rendered by other outside
7 pathologists and that these discrepancies have or would have changed patient
management. It would appear from these actions that you are claiming that our
8 diagnoses are not correct. I do not recollect any true, substantial discrepancies
between diagnoses rendered by this department and outside pathology
9 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
10 such reports detailing incorrect diagnoses rendered by our department. It is also
my understanding that you have been asked on several occasions to produce
11 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
12 accuracy of your claims, I request that you produce copies of these reports for my
review by July 15, 2005.
13
51. Roy’s statements of fact regarding incorrect diagnoses by the Pathology
14
Department were false. The key members of the KMC medical staff who heard the statements
15
reasonably understood that the statements were about Plaintiff and reasonably understood the
16
statements to mean that Plaintiff was not managing the Pathology Department in a competent
17
manner. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy
18
acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a
19
significant loss of reputation and confidence among his peers at KMC. As officers of KMC,
20
Harris, Kercher and Bryan approved, accepted, and/or failed to intercede against Roy’s
21
defamatory acts and in so doing, ratified them.
22
52. On or about July 15, 2005, Roy sent a letter addressed to Plaintiff and carbon-
23
copied to Harris, Bryan and Perez. The letter stated:
24
1 I was quite surprised to receive your letter of June 5th. The "discrepancies" should
be well known to you as I have brought them to your attention many times, both
2 in the presence of Dr. Perez, and in a letter to you a couple of months ago, as well
as multiple phone conversations. The inaccuracies, delays and refusals to refer
3 specimens for outside review continue. The matter has been appropriately
reported to the administration for a quality assurance review, as I have had no
4 success in my pleadings to you directly.
5 53. Roy’s statements of fact regarding the existence of “discrepancies” and the
6 bringing of them to Plaintiff’s attention “many times” and “in the presence of Dr. Perez” were
7 false. Harris, Bryan and Perez reasonably understood that the statements were about Plaintiff and
8 reasonably understood the statements to mean that Plaintiff was neither managing the Pathology
9 Department in a competent manner nor being truthful about Roy’s disclosures of the facts and
10 circumstances underlying his defamatory statements. Roy failed to use reasonable care to
11 determine the truth or falsity of the statements. Roy acted with malice in publishing the false
13 confidence among his peers at KMC. As officers of KMC, Harris and Bryan approved, accepted,
14 and/or failed to intercede against Roy’s defamatory acts and in so doing, ratified them.
15 54. Moreover, Roy’s statement of fact that he had reported the matter to KMC
16 administration for quality assurance review was false. Harris, Bryan and Perez reasonably
17 understood that the statement was about Plaintiff and reasonably understood the statements to
18 mean that Plaintiff was not managing the Pathology Department in a competent manner. Roy
19 failed to use reasonable care to determine the truth or falsity of the statements. Roy acted with
21 loss of reputation and confidence among his peers at KMC. As officers of KMC, Harris and
22 Bryan approved, accepted, and/or failed to intercede against Roy’s defamatory acts and in so
24
1 55. On October 12, 2005, Plaintiff gave a presentation at the monthly KMC oncology
2 conference (“Oncology Conference”) highlighting concerns regarding a patient that might need a
5 alleged conference time limits by approximately ten minutes. Plaintiff was stopped before he
6 could present his final slides stating his patient care quality conclusions.
9 58. Roy, Bill Taylor, Vice-Chair of Surgery, and Albert McBride, the Cancer
10 Committee Liaison, attended Plaintiff’s presentation at the October 12 Oncology Conference and
11 were requested by Harris to give him letters criticizing Plaintiff’s time infraction.
12 59. In response, Roy sent a letter (“Roy Letter”), dated October 13, 2005, addressed
14 With respect, Dr. Jadwin is a small rural community hospital pathologist, with
very limited experience and no specialty training in regard to Gynecologic
15 Oncologic Pathology…. Dr. Jadwin is not a clinician, and has neither the fund of
knowledge nor the experience to make any recommendations regarding the
16 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
17 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
18 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
19 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
20 possibility of having all specimens from the Gynecologic Oncology service
evaluated outside, as is currently done for the Neurosurgery service…. I have
21 discussed these issues with Dr. Perez, Chairman of the Department of Obstectrics
and Gynecology, and he assures me of his full support.
22
60. The Roy Letter contained the following false statements of fact: (i) Plaintiff is a
23
small rural community hospital pathologist, (ii) Plaintiff has very limited experience in
24
1 Gynecologic Oncologic Pathology, (iii) Plaintiff is not a clinician, (iv) Plaintiff has neither the
2 fund of knowledge nor the experience to make any recommendations regarding the treatment of
3 patients, much less criticize the care given by doctors such as Roy, (v) it is not infrequent that
4 Plaintiff’s diagnoses are in err when reviewed by outside specialists, as in this particular case,
5 (vi) the management of the patient would have been inappropriate if Plaintiff’s report had been
6 accepted, and (vii) Plaintiff’s report was different from two other pathologists in his own
7 department, suggesting the deficiency of his report. Harris reasonably understood that the
8 statements were about Plaintiff and reasonably understood the statements to mean that Plaintiff’s
9 credentials and abilities as a pathologist and physician were deficient. Roy failed to use
10 reasonable care to determine the truth or falsity of the statements. Roy acted with malice in
11 publishing the false statements. The Roy Letter exceeded the scope of Harris’s request. Roy
12 defamed Plaintiff despite Plaintiff’s numerous prior requests to stop defaming him. As a
13 consequence, Plaintiff experienced a significant loss of reputation and confidence among his
14 peers at KMC. As an officer of KMC, Harris approved, accepted, and/or failed to intercede
16 61. Plaintiff is informed and believes, and thereupon alleges, that Harris subsequently
17 republished the Roy Letter to DOES 1 through 10, and that DOES 1 through 10 further
18 republished the Roy Letter to other members of KMC staff. Such other members of KMC staff
19 reasonably understood that the statements contained in the Roy Letter were about Plaintiff and
20 reasonably understood such statements to mean that Plaintiff’s credentials and abilities as a
21 pathologist and physician were deficient. Harris and DOES 1 through 10 failed to use reasonable
22 care to determine the truth or falsity of the statements. Harris and DOES 1 through 10 acted with
24
1 significant loss of reputation and confidence among his peers at KMC. As officers of KMC,
2 Harris, and DOES 1 through 10 accepted, and/or failed to intercede against Roy’s defamatory
4 62. On or about October 17, 2005, Plaintiff was ordered to attend a meeting with
5 Kercher, Harris and Ragland who subjected Plaintiff to humiliating ridicule, yelling and
7 limits. Kercher, Harris and Ragland informed Plaintiff that they had received letters of
8 disapprobation (“Disapprobation Letters”) from three conference participants – one of which was
9 the Roy Letter – and would be issuing a letter of reprimand later that day which would be entered
10 into Plaintiff’s medical staff file. When Plaintiff asked to see the Disapprobation Letters,
11 Kercher, Harris and Ragland refused to provide them. As officers of KMC, Harris, Kercher,
12 Ragland and Abraham approved, accepted, and/or failed to intercede against Roy’s defamatory
13 acts or their subsequent republication by Harris and DOES 1 through 10, and in so doing, ratified
15 63. Later that day, Harris, Kercher, Ragland and Abraham issued a formal letter of
16 reprimand addressed to Plaintiff (“Reprimand Letter”). The Reprimand Letter stated: “Your
17 repeated misconduct at the Tumor Conference on October 12, 2005 was noted by numerous
18 attendants, three of which have written letters of their dissatisfaction, which will be entered into
19 your medical staff file.” The three letters to be entered into Plaintiff’s medical staff file included
20 the Roy Letter. As officers of KMC, Harris, Kercher, Ragland and Abraham approved, accepted,
21 and/or failed to intercede against Roy’s defamatory acts or their subsequent republication by
22 Harris and DOES 1 through 10, and in so doing, ratified such defamatory acts.
23 64. During the period from on or about October 17, 2005 to on or about January
24
1 2007, Plaintiff submitted numerous requests to Harris, Ms. Karen Barnes, Deputy County
2 Counsel for the County of Kern (“Barnes”), and Bryan to see the Disapprobation Letters. He was
3 continuously refused. As officers of KMC, Harris and Bryan approved, accepted, and/or failed to
4 intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1
6 65. On or about December 12, 2005, Young sent a letter to Barmann stating:
7 Recently, Dr. Jadwin was advised that several of the staff physicians had written
letters of dissatisfaction regarding Dr. Jadwin’s professionalism and was advised
8 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
9 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
10 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
11 emotionally distraught over the present state of affairs.
12 66. On or about January 6, 2006, Barnes sent a letter on behalf of Barmann and
13 addressed to Young. The letter included as an attachment a copy of the Roy Letter, redacted to
14 conceal Roy’s identity. This letter afforded Plaintiff his first opportunity to see the Roy Letter
16 67. On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan, stating:
1 submitted. As of today, I have not received notice of any deficient reports from you.” Plaintiff
2 further challenged the truthfulness of other defamatory statements contained in the Roy Letter
3 and demanded “immediate proof of these allegations within 14 days”. Plaintiff went on to state
4 that if Roy failed to produce such proof, then Roy should issue an apology meeting Plaintiff’s
5 specifications.
6 69. On or about February 21, 2006, Bryan sent a letter addressed to Plaintiff, stating
7 in relevant part:
8 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
9 in sending the letter. You feel that Dr. Roy besmirched your reputation and
challenged your professional competency. Furthermore, you feel that there is no
10 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
11 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
12 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
13 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
14 meeting to happen between you and Dr. Roy and Dr. Perez to further clarify the
basis of Dr. Roy's concerns.
15
70. As an officer of KMC, Bryan approved, accepted, and/or failed to intercede
16
against Roy’s defamatory acts or their subsequent republication by Harris and DOES 1 through
17
10, and in so doing, ratified them.
18
71. On or about March 16, 2006, Plaintiff sent an email addressed to Kercher and
19
carbon-copied to Bryan, stating:
20
I am further requesting an investigation of Dr. Roy’s professional behavior by the
21 medical staff… [H]e has made outrageous false statements about the pathology
department and myself, which cause great concern about his ethical integrity…. I
22 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
23 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.
24
1
72. On or about March 30, 2006, Young sent a letter addressed to Roy, stating:
2
Dr. Jadwin is very upset with the alleged statements attributable to you regarding
3 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.
4 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
5 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
6 one’s reputation.”
7 73. To date, Plaintiff is informed and believes and thereupon alleges: (i) Roy has
8 never responded to Plaintiff’s repeated requests for factual substantiation of Roy’s numerous
9 defamatory statements; (ii) KMC never conducted an investigation into Roy’s professional
10 misconduct; and (iii) Harris, Kercher, Bryan and Abraham have approved, accepted, and refused
11 to intercede against Roy’s defamatory acts or their subsequent republication by Harris and DOES
12 1 through 10.
13 E. MEDICAL LEAVE
14 74. As of December 16, 2005, Plaintiff was eligible for twelve weeks of medical
15 leave under FMLA and CFRA pursuant to 29 C.F.R. § 825.110 and 2 C.C.R. § 72970(e),
16 respectively, in that he had been regularly employed by Defendant County for 1,250 hours in the
17 twelve months immediately prior to the start of his leave and had not taken any medical or
19 75. An eligible employee’s rights under CFRA and FMLA include a “reduced work
21 825.117.
22 76. On or about December 16, 2005, Plaintiff submitted to KMC a copy of his
23 psychiatrist’s certification stating that Plaintiff needed a reduced work schedule leave until at
24
2 77. Plaintiff’s notice to KMC of his need for medical leave was reasonable under the
3 circumstances.
4 78. On or about December 16, 2005 Plaintiff began his medically necessary reduced
5 work schedule that permitted him to perform all of his duties as Chair of Pathology, and reduced
7 79. On or about March 2, 2006, Plaintiff was finally provided with a Request for
13 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
14 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
15 eligible for more than the twelve (12) weeks of unpaid leave described above.”
16 81. On or about April 10, 2006, Plaintiff sent an email to Bryan stating: “I believe
17 that we have a meeting this Thursday at 1500. I can discuss a schedule with you. I have been
18 working only to help out Phil and Savita during periods of shortage, and to keep on top of some
19 administrative work. I am always available for necessary discussions. Just have Arlene or Tracy
20 call me.”
21 82. On or about April 17, 2006, Bryan wrote a letter addressed to Plaintiff,
22 purportedly memorializing Bryan’s April 13, 2006 meeting with Plaintiff in which he
23 acknowledged, “Yes, the Department of Pathology continues to function well as it has for many
24
1 years, and yes, you have made many positive changes in the department.” Bryan also
2 acknowledged that Plaintiff’s whistleblowing activity had created “the dysfunctional relationship
3 you have with some key members of the staff” and asked for Plaintiff to either cease upsetting
4 staff with his whistleblowing activity or to step down as Chairman on his return from medical
5 leave.
6 83. On or about April 20, 2006, Plaintiff received notice from KMC’s HR
7 Department that his “Intermittent Leave of Absence” had expired on March 15 and that in order
8 to extend his leave, he would need to submit a “Request for Leave of Absence” form to the HR
10 84. On or about April 26, 2006, Plaintiff submitted a Request for Leave of Absence
11 form to KMC’s HR Department, along with a copy of his psychiatrist’s certification that Plaintiff
12 needed an extension of his reduced work schedule leave for six months to one year because of
14 85. However, on or about April 28, 2006, Bryan met with Plaintiff, Barnes and Steve
15 O’Conner of the HR Department (“O’Conner”) and ordered Plaintiff to convert his reduced work
16 schedule to involuntary full-time medical leave despite the fact that Plaintiff was ready, willing,
17 and able to continue working his reduced work schedule (“Forced FT Leave”). Bryan further told
18 Plaintiff that he needed to know by June 16, 2006 whether Plaintiff would resign as Chair; and
19 that if he resigned he would be in the same position as Adam Lang, a former staff pathologist at
20 KMC, who retained only hospital privileges but whose employment contract had been
21 terminated. Hence, Bryan threatened Plaintiff not only with removal from chairmanship, but
22 termination of the Second Contract, thereby giving notice that he would not honor any guarantee
24
1 86. On or about April 28, 2006, Bryan wrote a letter to Plaintiff purportedly
2 memorializing the April 26, 2006 meeting and stating that he required Plaintiff to go on full-time
3 leave from May 1, 2006 to June 16, 2006 when Plaintiff’s right to medical leave would
4 purportedly expire; and required Plaintiff to either return to work full-time on June 17, 2006 or
7 difficult recovery which limited his ability to breathe and exert himself for approximately one
8 month.
9 88. On or about May 29, 2006, Plaintiff fractured his foot and avulsed a ligament
10 from his ankle in an accident which limited his ability to walk, stand or sit without elevating his
12 89. On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan, stating:
13 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
14 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
15 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
16 to the office by June 16.
17 90. On or about June 14, 2006, Bryan sent an email addressed to Plaintiff informing
18 Plaintiff that Bryan was unilaterally removing Plaintiff from his position as Chair of Pathology,
19 thereby denying Plaintiff reinstatement to his same or equivalent position despite written
21 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
22 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
23 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
24
8 91. Later, on or about June 14, 2006, Bryan sent a letter addressed to Plaintiff
9 reiterating that Bryan was rescinding Plaintiff’s Chairmanship of the Pathology Department
10 because Plaintiff had “essentially been out on either full or part-time leave for the past eight or
11 nine months” – an inaccurate statement – and because “the Department of Pathology needs a
12 full-time chairman.”
13 92. On information and belief, on or about July 10, 2006, the JCC approved
17 94. On or about September 18, 2006, Barnes sent Plaintiff’s attorney a proposed
18 amendment (“Amendment”) to the Second Contract which included a base salary reduction of
20 95. On or about September 18, 2006, Plaintiff sent an email addressed to Barnes
3 96. On or about September 20, 2006, Culberson sent a letter addressed to Plaintiff
7 98. On or about October 3, 2006, the Board of Supervisors for Defendant County
9 99. On October 4, 2006, Plaintiff’s 90-day personal necessity leave ended and
10 Plaintiff returned to work at KMC as a staff pathologist. Plaintiff’s former subordinate, Philip
12 100. Between on or about October 4, 2006 until on or about December 7, 2006, Dutt
13 yelled at, harassed, insulted and ridiculed Plaintiff, both verbally and in a series of emails.
14 101. On or about December 4, 2006, Plaintiff sent a letter addressed to Culberson and
15 carbon-copied to key members of KMC’s medical staff and administration, protesting Dutt’s
16 behavior and raising additional concerns about patient care quality, safety and legal
17 noncompliance.
19 informing him that he was being placed on involuntary paid administrative leave “pending
21 103. On March 28, 2007, KMC authorized Plaintiff to access his office in order to
22 retrieve his personal computer files. Upon his arrival, Dr. Dutt informed him that his office was
23 now locked and that Dr. Dutt now had custody of the key, that Plaintiff’s file cabinet and
24
1 computer had been physically removed and retasked for other purposes at KMC, and that
2 Plaintiff would not be able to access his personal computer files after all.
3 104. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had
4 yet to be provided any explanation for his involuntary leave or any indication as to whether or
5 when it would end so that he could return to work, (ii) the involuntary leave requiring him to
6 remain at home by his phone during working hours was threatening to erode his pathology skills,
7 jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was
8 denying him the opportunity to earn income from professional fee billing, and (iv) part-time
9 work was deemed therapeutic for him by his physician and that the confinement to his house
10 during working hours was having the opposite effect of severely exacerbating his depression.
13 F. DISABILITY DISCRIMINATION
14 106. In 2003, Plaintiff had notified KMC that he suffered from depression due to work-
15 related hostility and KMC’s failure to resolve Plaintiff’s compliance and patient care concerns.
18 107. By December 16, 2005, Plaintiff was suffering extreme stress from the hostile
19 work environment created by the harassment, defamation, discrimination, and retaliatory adverse
20 actions of Defendants and each of them. Plaintiff’s depression subsequently became disabling in
22 108. On or about December 16, 2005, Plaintiff submitted to KMC a copy of his
23 psychiatrist’s certification that Plaintiff needed a reduced work schedule leave because of his
24
2 109. On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan, stating:
3 “This harassment has led me develop depression, anxiety and insomnia. Most recent issue
4 involving the October Oncology Conference is still unresolved. I request administrative leave
6 110. On or about January 9, 2006, Plaintiff met with Bryan regarding his request for a
7 medically necessary reduced work schedule, and clarified that it was necessary because of the
8 reoccurrence of his disabling depression. Bryan orally approved Plaintiff’s reduced work
9 schedule.
10 111. Defendants, and each of them, knew or should have known that Plaintiff was an
11 individual with a disability that limited his major life activities of taking pleasure in life, without
12 experiencing anxiety, insomnia or difficulty breathing and moving, and/or was perceived by
14 112. On or about March 2, 2006, Plaintiff sent an email to Bryan, repeating his
15 previous verbal request weeks earlier that KMC hire a locum tenens pathologist to assist with the
17 113. On or about March 24, 2006, Plaintiff sent an email to Bryan, expressing his
18 disappointment that KMC had not yet hired a locum tenens pathologist to assist with the
19 Pathology Department’s workload during Plaintiff’s reduced work leave, as Plaintiff had
20 previously requested.
21 114. On or about April 10, 2006, Plaintiff sent an email to Bryan, stating that he had
22 not been informed that KMC had finally hired a locum tenens pathologist. The email stated:
23 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
24
1 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.
2
115. On or about April 17, 2006, Bryan wrote a letter addressed to Plaintiff in which
3
he acknowledged that “Yes, the Department of Pathology continues to function well as it has for
4
many years, and yes, you have made many positive changes in the department [emphasis
5
added]”.
6
116. On or about April 26, 2006, Plaintiff submitted a Request for Leave of Absence
7
form to KMC’s HR Department, along with a copy of his psychiatrist’s certification that Plaintiff
8
needed an extension of his reduced work schedule leave for six months to one year because of
9
his serious medical condition.
10
117. Nevertheless, on or about April 28, 2006, Bryan met with Plaintiff, Barnes and
11
O’Conner, and ordered Plaintiff to convert his reduced work schedule to involuntary full-time
12
medical leave despite the fact that Plaintiff was ready, willing, and able to continue working his
13
reduced work schedule, thereby removing an accommodation of Plaintiff’s disability and
14
refusing to engage in good faith in an interactive process with Plaintiff.
15
118. On or about May 5, 2006, Plaintiff underwent nasal surgery followed by a
16
difficult recovery, which limited his ability to breathe and exert himself for approximately one
17
month.
18
119. On or about May 29, 2006, Plaintiff fractured his foot and avulsed a ligament
19
from his ankle in an accident which limited his ability to stand, sit without elevating his ankle, or
20
walk for approximately three months.
21
120. On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan, requesting an
22
extension of Plaintiff’s leave, which was due to expire on June 16, 2006, because of Plaintiff’s
23
nasal surgery and foot injury.
24
1 121. On or about June 14, 2006, Bryan sent an email addressed to Plaintiff informing
2 Plaintiff that Bryan was unilaterally removing Plaintiff from his position as Chair of Pathology
3 purportedly because “[t]his institution needs to have full-time leadership in the department and
4 because of your leave you have not been able to provide it.”
5 122. Later, on or about June 14, 2006, Bryan sent a letter address to Plaintiff
6 containing statements similar to those contained in Bryan’s email of earlier that day, and
8 123. On April 4, 2007, after KMC had placed Plaintiff on involuntary paid leave,
9 Plaintiff placed Defendant County on notice that (i) he still had yet to be provided any
10 explanation for his involuntary leave or any indication as to whether or when it would end so that
11 he could return to work, (ii) the involuntary leave requiring him to remain at home by his phone
12 during working hours was threatening to erode his pathology skills, jeopardizing his
13 employability and career as a pathologist, (iii) the involuntary leave was denying him the
14 opportunity to earn income from professional fee billing, and (iv) part-time work was deemed
15 therapeutic for him by his physician and that the confinement to his house during working hours
18 any indication as to whether or when it will end.At all times material here, excluding a portion of
19 the time when he was out on voluntary full-time medical leave, Plaintiff has been able to perform
20 the essential functions of the employment positions he held with Defendants and each of them,
23 and each of them, in the form of a reduced work schedule and/or recuperative leave.
24
1 126. Allowing Plaintiff to take the medical and/or recuperative leave that he requested
3 127. Holding open Plaintiff’s position as Chair of Pathology while he was on leave
5 128. Holding open Plaintiff’s position as Chair of Pathology while he was on leave
6 would not have been unduly burdensome for the County or KMC.
7 G. DUE PROCESS
8 129. Pursuant to 9.6-4 of the Bylaws, Bryan was not authorized to remove Plaintiff
9 from his position as Chair of Pathology, but could only recommend such removal to the JCC.
10 130. It is customary for the County and/or KMC to remove a Department Chair
12 131. It is customary for the County and/or KMC to provide a hearing and opportunity
13 to be heard before removing a Department Chair of KMC from office, and before a demotion
15 132. When necessary, it is customary for the County and/or KMC to appoint a
16 temporary replacement as “Acting” senior manager in the place and stead of a senior manager,
17 such as Plaintiff, when the senior manager’s position is left vacant because of a leave of absence
18 or termination of employment.
19 133. Defendants, and each of them except Roy, demoted and reduced the
21 134. Defendants, and each of them except Roy, demoted and the reduced the
22 compensation of Plaintiff without providing him with the customary hearing or notice thereof.
23
24
1 H. ADVERSE ACTIONS
2 135. Defendants, and each of them, have taken adverse employment actions against
3 Plaintiff, willfully and intentionally creating a hostile work environment, subjecting him to acts
4 of defamation and ratification thereof, demotion and excessive reduction in pay, disparate
5 treatment, unwarranted criticism and reprimands, threats, requests for his resignation,
6 interference with and denial of his right to medical leave, refusing to engage in good faith in an
7 interactive process and denying him reasonable accommodation and procedural due process
10 136. As a result of Defendants' acts and omissions alleged herein, Plaintiff has suffered
11 pecuniary losses, such as loss of wages and benefits, and has been required to incur medical and
12 legal expenses and to hire attorneys in order (i) to enforce Plaintiff's rights, (ii) to enforce
13 provisions of the law protecting whistleblowers, employees who exercise their right to medical
14 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
17 137. After Plaintiff’s returned from leave on October 4, 2006, Defendants and each of
18 them except Roy and Harris placed Plaintiff in the position of staff pathologist and excessively
20 138. On information and belief, Plaintiff’s salary for his work as a staff pathologist for
21 KMC is less than the benchmark National Medical Group Association (“NMGA”) median salary
22 for a clinical and anatomic pathologist with Plaintiff’s qualifications and experience, in breach of
24
1 139. During the time that Defendants placed Plaintiff on involuntary full-time leave,
2 including the period from December 7, 2006 to date, Defendants effectively denied Plaintiff the
3 opportunity to earn Professional Fees as set forth in Article II of the Second Contract.
4 140. As a further result of Defendants’ acts and omissions alleged herein, Plaintiff has
5 suffered and continues to suffer non-economic damages, such as emotional distress, anxiety,
7 141. The acts and omissions of Defendants, and each of them, alleged herein were and
9 142. The acts and omissions of Defendants Bryan, Harris, and Roy alleged herein are
10 despicable, oppressive and were done in conscious disregard of the rights of individuals and
11 whistleblowers, such as Plaintiff, and of the safety of public patients, and have evidenced actual
12 or implied malicious intent toward Plaintiff, thereby entitling him to an award of punitive
13 damages against Defendants Bryan, Harris and Roy pursuant to §3294 Civil Code in an amount
14 sufficient to make an example of Defendants Bryan, Harris, and Roy and discourage others from
15 conscious disregard for the rights of individuals and whistleblowers and for the safe care and
16 condition of public patients. Plaintiff does not know the financial worth of Defendants Bryan,
17 Harris, or Roy or the amount of punitive damages sufficient to accomplish the public purposes of
18 §3294 Civil Code and will seek leave to amend this complaint when such facts are known or
20 143. Plaintiff has mitigated his damages by seeking and maintaining medical and
21 psychiatric treatment and by taking progressive steps to try to protect his reputation and restore
23
24
1 EXHAUSTION OF REMEDIES
2 144. On July 3, 2006, Plaintiff filed a Tort Claims Act complaint with the County of
3 Kern. The complaint disclosed Plaintiff’s claims of defamation against Roy, Harris and
4 Defendants DOES 1 through 10, and of retaliation against Defendant County for engaging in
5 whistleblowing activity concerning unsafe patient care and conditions at KMC and his refusal to
7 true and correct copy of which is attached hereto as Exhibit 2 and incorporated by reference
8 herein). The Office of the County Counsel for the County of Kern sent a letter to Plaintiff’s
9 counsel, dated September 15, 2006 (a true and correct copy of which is attached hereto as
10 Exhibit 3 and incorporated by reference herein), giving notice that Plaintiff’s complaint was
11 deemed rejected by operation of law and informing Plaintiff that he had six months from the date
12 of such notice to file a court action on his claims. Plaintiff continues to be employed by KMC as
13 a staff pathologist and continues to be subject to a hostile work environment and retaliation on an
14 ongoing basis.
15 145. On April 23, 2007, Plaintiff filed a supplemented Tort Claims Act complaint with
16 the County of Kern, supplemented to reflect events occurring after filing of the initial Tort
17 Claims Act complaint on July 3, 2006. A true and correct copy is attached hereto as Exhibit
19 146. Plaintiff intends to file amended Tort Claims Act complaints with the County of
21 147. On August 3, 2006, Plaintiff filed a complaint with the California Department of
23 November 14, 2006. The complaint stated claims against Defendant County for discrimination
24
1 on the basis of disability, as well as failure to engage in good faith in an interactive process,
3 Plaintiff received a right-to-sue notice from the DFEH, true and correct copies of which are
5 148. On April 23, 2007, Plaintiff filed a supplemented complaint with the DFEH,
6 supplemented to reflect events occurring after filing of the initial complaint with the DFEH on
7 August 3, 2006. A true and correct copy is attached hereto as Exhibit XXX and incorporated by
8 reference herein.
9 149. Plaintiff intends to file amended complaints with the DFEH on a periodic and
10 continuing basis.
11 150. Plaintiff filed a notice of intent to sue under Section 1102.5 of the Labor Code,
12 without seeking any penalties, with the Labor and Workforce Development Agency (“LWDA”)
13 on January 5, 2007, a true and correct copy of which is attached hereto as Exhibit 5 and
14 incorporated by reference herein. On February 15, 2007, the LWDA mailed notice to Plaintiff
15 that it was in receipt of Plaintiff’s notice of intent to sue. To date, Plaintiff has not received any
17 151. On January 24, 2007, Plaintiff gave notice to the U.S. Department of Labor that
18 he had filed a complaint and initiated this action in US district court, alleging interference with
19 Plaintiff’s right to family and medical leave under FMLA. No right-to-sue notice has issued as
21 STATEMENT OF CLAIMS
22 FIRST CLAIM
1
152. Plaintiff alleges this first and separate claim for Retaliation in violation of Health
2
& Safety Code § 1278.5 against Defendant County.
3
153. Plaintiff incorporates by reference herein the allegations set forth in Paragraphs 1
4
through 141, inclusive, above.
5
154. At all material times herein, Health & Safety Code § 1278.5 provided protection
6
from discrimination and retaliation for health care workers who reported suspected unsafe care
7
and conditions of patients in health care facilities.
8
155. Defendants and each of them knew of Plaintiff’s whistleblowing activity
9
regarding suspected unsafe care and conditions of patients at KMC.
10
156. Defendants and each of them have violated Section 1278.5 of the Health & Safety
11
Code by engaging in a continuous and ongoing pattern and practice of discrimination and
12
retaliation against Plaintiff because he engaged in whistleblowing activity protected by Section
13
1278.5 of the Health & Safety Code.
14
157. A motivating factor for the acts and omissions of Defendants and each of them
15
described herein was Plaintiff’s reports to his employer, Barmann, and Authorities regarding
16
what he reasonably believed to be unsafe patient care and conditions.
17
WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.
18
SECOND CLAIM:
19
(Retaliation In Violation Of Lab. Code § 1102.5)
20 (Against Defendants County and DOES 1 through 10)
21 158. Plaintiff alleges this second and separate claim for Retaliation in violation of
22 Labor Code § 1102.5 against Defendant County and DOES 1 through 10, inclusive
23 159. Plaintiff incorporates by reference herein the allegations contained in Paragraphs
24
2 160. At all material times herein, Labor Code § 1102.5 was in effect, and provides in
3 pertinent part:
4 1102.5. (a) An employer may not make, adopt, or enforce any rule, regulation, or
policy preventing an employee from disclosing information to a government or
5 law enforcement agency, where the employee has reasonable cause to believe that
the information discloses a violation of state or federal statute, or a violation or
6 noncompliance with a state or federal rule or regulation.
(b) An employer may not retaliate against an employee for disclosing
7 information to a government or law enforcement agency, where the employee has
reasonable cause to believe that the information discloses a violation of state or
8 federal statute, or a violation or noncompliance with a state or federal rule or
regulation.
9 (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,
10 or a violation or noncompliance with a state or federal rule or regulation.
11 161. Plaintiff reported his reasonable suspicions about illegal, non-compliant, and
12 unsafe care and conditions of patients at KMC to his employer, Barmann, and Authorities.
15 163. Defendants, and each of them, engaged in a continuous and ongoing pattern and
18 164. Plaintiff's activity protected by Section 1102.5 of the Labor Code was a
19 contributing factor in the continuous pattern and practice of discrimination and retaliation of
22
23
24
1 THIRD CLAIM
2 FOURTH CLAIM
1 177. Plaintiff's exercise of his rights under FMLA was a motivating reason for
4 FIFTH CLAIM
1 leave within 10 days of notice of the employee’s need for leave; but the greater protections of 29
2 C.F.R. § 825.208 which require an employer to do so “within two days absent extenuating
4 184. In Bachelder v. America West Airlines, 259 F.3d 1112 (9th Cir. 2001), the court
5 construed 29 C.F.R. Sec. 825.200(e) and held that where an employer does not designate the
6 method used in calculating employees’ entitlement to leave, “the option that provides the most
9 leave requested is not be deemed to have been granted unless the employer provides the
10 employee, upon granting the leave request, a written guarantee of employment in the same or a
12 186. Pursuant to 2 C.C.R. § 7297.2(a), CFRA requires that upon granting of leave, an
13 employer shall guarantee to reinstate an employee to the same or comparable position, and must
15 187. At all material times herein, the County lacked “justification” pursuant to 2
16 C.C.R.C § 7297.7(c) for refusing to reinstate Plaintiff to the same or comparable position on his
18 188. Defendants, and each of them, discriminated against Plaintiff and otherwise
19 interfered with his CFRA rights because he exercised, or tried to exercise, his CFRA rights,
20 including untimely designation of the initial leave as CFRA leave without providing notice of the
21 method of calculation, untimely notice of how KMC calculated Plaintiff’s entitlement to the
22 extension of his CFRA leave; interference with and denial of Plaintiff’s right to a medically
23 necessary reduced work schedule; requiring Plaintiff to take full-time medical leave when he was
24
1 ready, willing, and able to work part-time which exhausted his medical leave more rapidly than
2 permitted; unjustified notice of Defendants’ intent not to reinstate Plaintiff to his former or
3 comparable position on his return from leave; Defendant’s unjustified refusal to reinstate
4 Plaintiff to his former or comparable position on his return from leave; and Defendants’
6 189. These violations may also mean that Defendant further violated Plaintiff’s CFRA
7 rights by informing him that his medical leave was exhausted as of June 16, 2005, while Plaintiff
8 may have been entitled to medical leave even as of October 4, 2006 when he returned to work.
9 190. Plaintiff's exercise of, or attempt to exercise, his CFRA rights was a motivating
12 SIXTH CLAIM
15 violation of Government Code § 12940(a) against Defendant County and DOES 1 through 10,
16 inclusive.
20 194. Defendants, and each of them, through their course of conduct denied Plaintiff a
23 195. In addition to the adverse actions alleged above, Defendants, and each of them,
24
1 discriminated against Plaintiff, denied him reasonable accommodation, and refused to engage in
4 SEVENTH CLAIM
18
199. Plaintiff alleges this Eighth and separate claim for Failure to Engage in Good
19 Faith in an Interactive Consultation in violation of Government Code § 12940(n) against
20
Defendant County and DOES 1 through 10, inclusive.
21
200. Plaintiff incorporates by reference herein the allegations contained in Paragraphs
22
1 through 141 above, inclusive.
23
201. Defendants, and each of them, failed to engage in good faith in a prompt,
24
4 NINTH CLAIM
1 with a conscious disregard of, Plaintiff’s Constitutional rights, denied Plaintiff his right to
2 procedural due process guaranteed by the Fourteenth Amendment of the United States
3 Constitution when they decided to demote Plaintiff and substantially and excessively reduced his
5 207. 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.
11 208. When Plaintiff complained to Bryan that he had been deprived of the customary
12 hearing regarding his demotion and excessive reduction in pay, the JCC met and ratified Bryan’s
13 decision to demote Plaintiff and substantially and excessively reduced his salary in breach of the
14 Second Contract without providing Plaintiff with prior notice of the hearing or an opportunity to
15 be heard.
16 209. Defendants and each of them, were acting or purporting to act under color of law
17 in the performance of their official duties as members of the JCC when they arbitrarily and
18 capriciously decided to demote Plaintiff and substantially and excessively reduced his salary in
19 breach of the Second Contract without providing Plaintiff with the customary notice of hearing
21 210. Thereafter, the Kern County Board of Supervisors met and voted to confirm
22 Plaintiff’s demotion and the excessive reduction in Plaintiff’s salary in breach of the Second
23 Contract without providing Plaintiff with notice of the hearing or an opportunity to be heard.
24
1 211. The conduct of Defendants, and each of them, violated Plaintiff’s 14th
3 212. As a legal result of the conduct of Defendants, and each of them, Plaintiff was
4 harmed.
5 213. Defendants’ denial of Plaintiff’s procedural due process right was a substantial
8 TENTH CLAIM
1 219. The hearers of the defamatory statements reasonably understood that they were
2 about Plaintiff and understood them to mean that Plaintiff’s professional credentials, competence
4 220. As a result of Defendants' wrongful conduct, Plaintiff has suffered harm to his
8 222. Defendants failed to use reasonable care to determine the truth or falsity of the
9 statements.
10 223. 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.
14 224. Defendants Harris, Kercher, Bryan and Abraham have approved, accepted, and
15 refused to intercede against Roy’s defamatory acts or their subsequent republication by Harris
18 ELEVENTH CLAIM
19 (Violation of FLSA)
(Against Defendants County and DOES 1 through 10 inclusive)
20
225. Plaintiff alleges this Eleventh and separate claim for reimbursement of deductions
21
from his salary made in violation of FLSA against Defendant County and DOES 1 through 10,
22
inclusive.
23
226. Plaintiff incorporates by reference herein the allegations contained in Paragraphs
24
3 salary basis” if deductions from his predetermined compensation are made for absences
6 interpretations is inadvertent, or is made for reasons other than lack of work, the exemption will
7 not be considered to have been lost if the employer reimburses the employee for such deductions
9 229. From April 28 to October 3, 2006, Defendants, and each of them, unlawfully
10 required Plaintiff to take involuntary full-time unpaid leave rather than reduced scheduled leave
11 even though he was occasionally ready, willing, and able to work part-time during that period of
12 time.
13 230. During the period from April 28 to October 3, 2006, clinical pathology work was
15 231. Plaintiff is entitled to reimbursement of salary for those periods of time during the
16 period from April 28, 2006 to October 3, 2006 when he was ready, willing, and able to work, and
17 was prevented from doing so by the County; and also entitled to a promise that the County will
19 WHEREFORE Plaintiff prays for relief as stated herein and in pertinent part hereinafter.
20
22 Plaintiff prays for judgment against Defendants, and each of them, jointly and severally,
23 as follows:
24
1 1. Reinstatement to his former position as Chair of Pathology and reimbursement for lost
2 wages and work benefits caused by the acts of his employer pursuant to Section
3 1278.5(g) of the Health & Safety Code and Section 12965 of the Government Code.
4 2. Recovery of all reasonable attorneys' fees, litigation expenses and costs incurred,
5 pursuant to Section 2699 of the Labor Code for violation of Section 1102.5 of the Labor
6 Code, 1278.5(g) of the Health & Safety Code, Section 1021.5 of the Code of Civil
7 Procedure, Section 12965 of the Government Code, 29 U.S.C. § 2617(a)(3) [FMLA], and
8 42 U.S.C. § 1988.
10 of Section 1278.5 of the Health & Safety Code and Section 1102.5 of the Labor Code.
11 4. That Defendant County be required to expunge from Plaintiff's personnel records any and
12 all references to Plaintiff’s having "poor relationships" with staff, displaying poor
14 5. That Defendant County be required to comply with all of the provisions of the FEHA
18 6. That Defendant County be required to provide training to the managerial staff at KMC
19 regarding compliance with Section 1278.5 of the Health & Safety Code, Section 1102.5
20 of the Labor Code, Sections 12940(m) and (n) of the Government Code, and CFRA
24
1 9. Punitive damages against Defendants Roy, Harris, and Bryan pursuant to §3294 Civil
2 Code;
4 11. For such other and further relief as the court may deem proper.
5
Dated: January 8, 2006 LAW OFFICES OF EUGENE LEE
6
7 By: ___________________________________
Eugene D. Lee
8 Attorney for Plaintiff
DAVID F. JADWIN, D.O.
9
11
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands
12
trial by jury for all issues and claims triable as of right by a jury.
13
Dated: January 8, 2006 LAW OFFICES OF EUGENE LEE
14
15 By: ___________________________________
Eugene D. Lee
16 Attorney for Plaintiff
DAVID F. JADWIN, D.O.
17
18
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20
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24
1
2
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9
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EXHIBIT 4: Plaintiff’s Second Supplemented Tort Claims Act Claim
26
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28
SUPPLEMENTED
CLAIM AGAINST THE COUNTY OF KERN
(Government Code §§ 910,9102 & 810.4)
This claim must be flied with the Clerk of the Board of Supervisors, 1115 Truxtun
Ave" 5 Floor, Bakersfield, California 93301. Iritis a claim for ~ injury to
th
person, inrury to personal property or inrury to growing crops, it must be filed within six
months after the accident or event gIving rise to the claim. If it is a claim for any
other cause of action, it must be filed within one year after the event(s) giving rise to the
claim. You must complete both sides and sign the claim form for the claim to be valid.
Complete information must be provided. If the space provided is inadequate, please
use additional paper and identify information by paragraph number.
2. State the mailing address to which claimant desires notices from the County to
be sent:
Law Office of Eugene Lee, 555 W 5th St, Ste 3100, Los Angeles, CA 90013
3. State the date, place and other circumstances of the accident or event(s) giving
rise to the claim.
See attachment.
1
10/16/2007 02:46 FAX 141 002/002
5. Provide the name or names of the public employee or employees causing the
injljry, damage or loss, if known:
Peter Bryan, Irwin Barris, Eugene Kcrcher, Scott Ragland, Jennifer Abraham,
william ROy, philip Dutt 1 Toni smith , David Culberson
If less than ten thousand dollars ($10,000), state the amount: $~_~~~_,
If more than ten thousand dollars, would the claim be a limited civil case (less
than $25,000)? (Circle one)
Yes No
7. Please state any additional information which may be helpful in considering this
claim:
Complainant rn~t with Bernard Ba'l':'lTlann, Kern County CounBe.l., with reapec:::t
to the foregoing on F~bruaLY 9, 2006.
,
....
CLAIMANT'S SIGNATURE
2
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On April 28, 2006, I had a meeting with Mr. Bryan, during which
he announced his unilateral decision to revoke my reduced work
schedule medical leave. Discussion was neither invited nor
permitted. I was therefore forced to comply with the order. Mr.
Bryan followed the meeting up with a toned-down memo that stated,
“I also mentioned that after Monday it would be preferable for
you not to have an intermittent work schedule and it would be
easier on the department to just have you on leave until your
status is resolved.” From that point on, I was no longer
permitted to take reduced work schedule medical leave or work
part-time as an accommodation of my disability.
On June 13, 2006, 3 days prior to the June 16, 2006 deadline he
had promised me, Mr. Peter Bryan (CEO of KMC) summarily informed
me by email that I was being stripped of chairmanship effective
June 17, 2006, due to my taking excessive
sick/medical/recuperative leaves and my resulting alleged
“inability to provide consistent and stable leadership in the
department for most of the past eight to nine months”. Mr. Bryan
further stated that he was going to grant me 90 days of personal
leave, despite the fact that I had not yet exhausted the 6
months’ of cumulative sick leave permitted under Kern County
rules.
Prior to June 13, 2006, Mr. Bryan had not communicated to me his
concerns regarding my sick/medical/recuperative leaves. In fact,
as noted above, Mr. Bryan had in at least two written
communications told me that I would have until June 16, 2006 to
decide whether to continue or resign my position at KMC.
On June 26, 2006, Mr. Bryan stated that I had “recently been seen
on the hospital campus” while on leave of absence. He then took
the drastic measure of ordering me to “refrain from entering the
facility for any reason other than seeking medical attention”,
“refrain from contacting any employee or faculty member of Kern
Medical Center for any reason other than seeking medical
attention”, and stated that “usage of any and all equipment as
well as access to any and all systems has been suspended while
[on my] approved personal necessity leave of absence”. I
discovered that this included suspension of my email and voice
mail accounts, to which I require access in order to manage
ongoing patient care issues. Mr. Bryan concluded his letter by
saying that “Failure to comply with the instructions of this
letter, are grounds for disciplinary actions up to and including
termination of your contract with the County of Kern.”
2
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On July 3, 2006, I filed a Tort Claims Act form with the County
of Kern, describing my related tort and contractual breach claims.
In that form, I specifically named as potential defendants Mr.
Bryan, Dr. Irwin Harris, Dr. Eugene Kercher, Dr. Scott Ragland,
and Dr. Jennifer Abraham, all KMC officers and employees, and Dr.
William Roy, a contract physician.
3
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EXHIBIT 5: AB 632 Legislative History
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1 by the acts of the facility or its affiliate, and the legal costs
2 associated with pursuing the case.
3 (h) For purposes of this section, “affiliate” means a health
4 facility that is directly or indirectly, through one or more
5 intermediaries, controlled by another health facility.
6 (h)
7 (i) This section shall not apply to an inmate of a correctional
8 facility or juvenile facility of either the Department of the Youth
9 Authority or the Department of Corrections and Rehabilitation,
10 or to an inmate housed in a local detention facility including a
11 county jail or a juvenile hall, juvenile camp, or other juvenile
12 detention facility.
13 (i)
14 (j) This section shall not apply to a health facility that is a
15 long-term health care facility, as defined in Section 1418. A health
16 facility that is a long-term health care facility shall remain subject
17 to Section 1432.
18 (j)
19 (k) Nothing in this section abrogates or limits any other theory
20 of liability or remedy otherwise available at law.
21 SEC. 2. No reimbursement is required by this act pursuant to
22 Section 6 of Article XIIIB of the California Constitution because
23 the only costs that may be incurred by a local agency or school
24 district will be incurred because this act creates a new crime or
25 infraction, eliminates a crime or infraction, or changes the penalty
26 for a crime or infraction, within the meaning of Section 17556 of
27 the Government Code, or changes the definition of a crime within
28 the meaning of Section 6 of Article XIII B of the California
29 Constitution.
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AB 632
Page 1
AB 632
Page 2
EXISTING LAW :
AB 632
Page 3
11)States that #8), #9), and #10) above should not be construed
to prohibit the governing body of a hospital from taking
disciplinary actions against a physician and surgeon as
authorized in the Medical Practice Act, as specified.
COMMENTS :
AB 632
Page 5
AB 632
Page 6
4)SUGGESTED AMENDMENTS .
a) The definition of and reference to "affiliate" is vague
and may not be necessary. The author may wish to consider
deleting it.
b) On page 3, line 11, before the comma add "to the health
facility."
Support
Opposition
None on file.
AB 632
Page 7
AYES
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NOES
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De La Torre
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Page 1
SUMMARY
FISCAL EFFECT
COMMENTS
AB 632
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AYES
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NOES
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Ma Vacancy
AYES
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NOES
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Plescia Sharon
Case Runner Ruskin
1:07-cv-00026-OWW-DLB Soto306-2
Document Filed 03/09/2009 Page 100 of 205
Spitzer Vacancy
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AB 632 —2—
the facility and any other facility owned or operated by that entity from
retaliating or discriminating against the physician and surgeon because
of taking those actions (1) has presented a grievance, complaint, or
report to an entity or agency responsible for accrediting or evaluating
the facility or to any other governmental entity; or (2) has initiated,
participated, or cooperated in an investigation or administrative
proceeding related to the quality of care, services, or conditions at the
facility, as provided.
Because the bill would expand the conduct subject to criminal
prosecution by extending the whistleblower protection to a physician
and surgeon definition of a crime, it would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act
for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
97
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AB 632 —4—
1 the action was taken by the health facility in retaliation for the
2 filing of the grievance or complaint.
3 (d) Any discriminatory treatment of an employee or of a
4 physician and surgeon who has presented a grievance or complaint
5 to the health facility, peer review body, or any other agency or
6 entity responsible for reviewing health care quality, or who has
7 initiated, participated, or cooperated in an investigation or
8 proceeding of any governmental entity as specified in subdivision
9 (b), if the health facility had knowledge of the initiation,
10 participation, or cooperation by the employee or by the physician
11 and surgeon, shall raise a rebuttable presumption that the
12 discriminatory action was taken by the health facility in retaliation,
13 if the discriminatory action occurs within 120 days of the filing of
14 the grievance or complaint. For purposes of this section,
15 “discriminatory treatment of an employee or of a physician and
16 surgeon” shall include discharge, demotion, suspension, any other
17 unfavorable changes in the terms or conditions of employment or
18 of the privileges of the physician and surgeon at the health facility,
19 or the threat of any of these actions.
20 (d) (1) There shall be a rebuttable presumption that
21 discriminatory action was taken by the health facility, or by the
22 entity that owns or operates that health facility, or that owns or
23 operates any other health facility, in retaliation against an
24 employee, member of the medical staff, or any other health care
25 worker of the facility, if responsible staff at the facility or the entity
26 that owns or operates the facility had knowledge of the actions,
27 participation, or cooperation of the person responsible for any
28 acts described in paragraph (1) of subdivision (b), and the
29 discriminatory action occurs within 120 days of the filing of the
30 grievance or complaint by the employee, member of the medical
31 staff or any other health care worker of the facility.
32 (2) For purposes of this section, discriminatory treatment of an
33 employee, member of the medical staff, or any other health care
34 worker includes, but is not limited to, discharge, demotion,
35 suspension, or any other unfavorable changes in the terms or
36 conditions of employment or of the privileges of the employee,
37 member of the medical staff, or any other health care worker of
38 the health care facility, or the threat of any of these actions.
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SENATE HEALTH
COMMITTEE ANALYSIS
Senator Sheila J . Kuehl, Chair
CONSULTANT:
Diaz/Hansel/cjt
SUBJECT
SUMMARY
This bill:
This bill extends the protection from discrimination or
retaliation by a health care facility against persons who
present grievances or complaints, or who initiate an
investigation regarding the facility's quality of care,
services, or conditions, to members of the medical staff
and other health care workers of the facility. This bill
also extends the rebuttable presumption that a retaliatory
action has occurred, if discriminatory treatment occurs
within 120 days of the filing of the grievance or
complaint, to members of the medical staff and other health
care workers.
care facility.
FISCAL IMPACT
Arguments in support
CMA, the sponsor of this bill, states that AB 632 is
necessary to clarify existing law to protect physicians
from retaliation or discrimination related to raising
concerns about patient care. According to CMA, hospitals
may use a variety of methods to suppress physician
whistleblowers, including removing a physician from a
referral list, forcing a doctor out of a hospital-owned
complex, or underwriting the salary or practice expense of
a competing physician. As a result, physicians must decide
between reporting allegations of poor patient care and
Arguments in opposition
The California Hospital Association (CHA) believes there
are already sufficient whistleblower protections in
existing state and federal law for physicians and surgeons.
In addition, CHA states that there is no evidence that
physicians have been subject to retaliation or that current
statutory protections are inadequate. CHA further argues
that the statute that this bill seeks to amend was designed
to protect patients and employees from retaliation for
raising quality of care concerns, and was not designed to
protect physicians and surgeons. CHA argues that the
relationship between a hospital and physicians and surgeons
who have staff privileges at the hospital differs
significantly from the hospital's relationship with its
PRIOR ACTIONS
POSITIONS
-- END --
AYES
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NOES
****
AYES
****
NOES
****
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AB 632 A
Assemblymember Salas B
As Amended June 6, 2007
Hearing Date: July 10, 2007 6
Health and Safety Code 3
GMO:jd 2
SUBJECT
DESCRIPTION
(more)
AB 632 (Salas)
Page 2 of ?
facility.
BACKGROUND
AB 632 (Salas)
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AB 632 (Salas)
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AB 632 (Salas)
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AB 632 (Salas)
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AB 632 (Salas)
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AB 632 (Salas)
Page 8 of ?
AB 632 (Salas)
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AB 632 (Salas)
Page 10 of ?
?AB 632 would also add burdens to, and perhaps have
a chilling effect on, the critically important
medical staff peer review function within
hospitals. This process is an especially important
and crucial element of a hospital's responsibility.
Under existing California and federal law,
hospital governing boards must work closely with
their medical staff's elected leaders to review the
quality of care provided by physicians who hold
medical staff membership and privileges at the
hospital. That process is already governed by a
complex and well-developed body of law, including
multiple substantial protections for the physicians
who are subjected to discipline by their peers.
The volunteer physicians who participate in peer
review are already concerned about their potential
liability and the other burdens associated with
their involvement in that process. Adding
whistleblower
protections and penalties will
further complicate the process and may tend to
chill the frankness and candor necessary to allow
the peer review process to function effectively.
AB 632 (Salas)
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AB 632 (Salas)
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HISTORY
**************
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1 staff, or any other health care worker of the health facility who
2 because that person has done either of the following:
3 (A) Presented a grievance, complaint, or report to the facility,
4 to an entity or agency responsible for accrediting or evaluating the
5 facility, or the medical staff of the facility, or to any other
6 governmental entity.
7 (B) Has initiated, participated, or cooperated in an investigation
8 or administrative proceeding related to, the quality of care, services,
9 or conditions at the facility that is carried out by an entity or agency
10 responsible for accrediting or evaluating the facility or its medical
11 staff, or governmental entity.
12 (2) No entity that owns or operates a health facility, or which
13 owns or operates any other health facility, shall discriminate or
14 retaliate against any person who has taken any actions pursuant to
15 this subdivision.
16 (3) A violation of this section shall be subject to a civil penalty
17 of not more than twenty-five thousand dollars ($25,000). The civil
18 penalty shall be assessed and recovered through the same
19 administrative process set forth in Chapter 2.4 (commencing with
20 Section 1417) for long-term health care facilities.
21 (c) Any type of discriminatory treatment of a patient by whom,
22 or upon whose behalf, a grievance or complaint has been submitted,
23 directly or indirectly, to a governmental entity or received by a
24 health facility administrator within 180 days of the filing of the
25 grievance or complaint, shall raise a rebuttable presumption that
26 the action was taken by the health facility in retaliation for the
27 filing of the grievance or complaint.
28 (d) (1) There shall be a rebuttable presumption that
29 discriminatory action was taken by the health facility, or by the
30 entity that owns or operates that health facility, or that owns or
31 operates any other health facility, in retaliation against an
32 employee, member of the medical staff, or any other health care
33 worker of the facility, if responsible staff at the facility or the entity
34 that owns or operates the facility had knowledge of the actions,
35 participation, or cooperation of the person responsible for any acts
36 described in paragraph (1) of subdivision (b), and the
37 discriminatory action occurs within 120 days of the filing of the
38 grievance or complaint by the employee, member of the medical
39 staff or any other health care worker of the facility.
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AB 632 —4—
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1 (h)
2 (i) For purposes of this section, “health facility” means any
3 facility defined under this chapter, including, but not limited to,
4 the facility’s administrative personnel, employees, boards, and
5 committees of the board, and medical staff.
6 (i)
7 (j) This section shall not apply to an inmate of a correctional
8 facility or juvenile facility of the Department of Corrections and
9 Rehabilitation, or to an inmate housed in a local detention facility
10 including a county jail or a juvenile hall, juvenile camp, or other
11 juvenile detention facility.
12 (j)
13 (k) This section shall not apply to a health facility that is a
14 long-term health care facility, as defined in Section 1418. A health
15 facility that is a long-term health care facility shall remain subject
16 to Section 1432.
17 (k)
18 (l) Nothing in this section abrogates or limits any other theory
19 of liability or remedy otherwise available at law.
20 SEC. 2. No reimbursement is required by this act pursuant to
21 Section 6 of Article XIIIB of the California Constitution because
22 the only costs that may be incurred by a local agency or school
23 district will be incurred because this act creates a new crime or
24 infraction, eliminates a crime or infraction, or changes the penalty
25 for a crime or infraction, within the meaning of Section 17556 of
26 the Government Code, or changes the definition of a crime within
27 the meaning of Section 6 of Article XIII B of the California
28 Constitution.
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------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 632|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
ANALYSIS :
CONTINUED
AB 632
Page
2
Existing Law
taken.
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4.Provides that any discriminatory treatment of an
employee who has presented a grievance or complaint, or
has initiated, participated, or cooperated in an
investigation or proceeding, within 120 days of the
filing of the grievance or complaint, shall raise a
rebuttable presumption that a retaliatory action was
taken.
AB 632
Page
3
generally.
This bill:
AB 632
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AB 632
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5
law.
Background
AB 632
Page
6
Case
ARGUMENTS IN 1:07-cv-00026-OWW-DLB
SUPPORT : CMA, the Document 306-2
sponsor of Filed 03/09/2009
this bill, Page 149 of 205
states that this bill is necessary to clarify existing law
to protect physicians from retaliation or discrimination
related to raising concerns about patient care. According
to CMA, hospitals may use a variety of methods to suppress
physician whistleblowers, including removing a physician
from a referral list, forcing a doctor out of a
hospital-owned complex, or underwriting the salary or
practice expense of a competing physician. As a result,
physicians must decide between reporting allegations of
poor patient care and protecting their practice and
livelihood from harm.
AB 632
Page
7
ASSEMBLY FLOOR :
AYES: Adams, Aghazarian, Anderson, Bass, Beall, Berg,
Berryhill, Blakeslee, Brownley, Caballero, Charles
Calderon, Carter, Cook, Coto, Davis, De La Torre, De
Leon, DeSaulnier, DeVore, Duvall, Dymally, Emmerson, Eng,
Evans, Feuer, Fuller, Gaines, Galgiani, Garcia, Garrick,
Hancock, Hayashi, Hernandez, Horton, Houston, Huffman,
Jeffries, Jones, Karnette, Keene, Krekorian, La Malfa,
Laird, Leno, Levine, Lieber, Lieu, Ma, Maze, Mendoza,
Mullin, Nakanishi, Niello, Parra, Portantino, Price,
Richardson, Salas, Saldana, Silva, Smyth, Solorio,
Strickland, Swanson, Torrico, Tran, Villines, Walters,
Wolk, Nunez
NO VOTE RECORDED: Arambula, Benoit, Huff, Nava, Plescia,
Sharon Runner, Ruskin, Soto, Spitzer, Vacancy
AB 632
Page
8
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—5— AB 632
1 (h) The medical staff of the health facility may petition the court
2 for an injunction to protect a peer review committee from being
3 required to comply with evidentiary demands on a pending peer
4 review matters hearing from the complainant in member of the
5 medical staff who has filed an action pursuant to this section, if
6 the evidentiary demands from the complainant would impede the
7 peer review process or endanger the health and safety of patients
8 of the health facility during the peer review process. Prior to
9 granting an injunction, the court shall conduct an in camera review
10 of the evidence sought to be discovered to determine if a peer
11 review hearing, as authorized in Section 805 and Sections 809 to
12 809.5, inclusive, of the Business and Professions Code, would be
13 impeded. If it is determined that the peer review hearing will be
14 impeded, the injunction shall be granted until the peer review
15 hearing is completed. Nothing in this section shall preclude the
16 court, on motion of its own or by a party, from issuing an injunction
17 or other order under this subdivision in the interest of justice for
18 the duration of the peer review process to protect the person from
19 irreparable harm.
20 (i) For purposes of this section, “health facility” means any
21 facility defined under this chapter, including, but not limited to,
22 the facility’s administrative personnel, employees, boards, and
23 committees of the board, and medical staff.
24 (j) This section shall not apply to an inmate of a correctional
25 facility or juvenile facility of the Department of Corrections and
26 Rehabilitation, or to an inmate housed in a local detention facility
27 including a county jail or a juvenile hall, juvenile camp, or other
28 juvenile detention facility.
29 (k) This section shall not apply to a health facility that is a
30 long-term health care facility, as defined in Section 1418. A health
31 facility that is a long-term health care facility shall remain subject
32 to Section 1432.
33 (l) Nothing in this section shall be construed to limit the ability
34 of the medical staff to carry out its legitimate peer review activities
35 in accordance with Sections 809 to 809.5, inclusive, of the Business
36 and Professions Code.
37 (l)
38 (m) Nothing in this section abrogates or limits any other theory
39 of liability or remedy otherwise available at law.
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|SENATE RULES COMMITTEE | AB 632|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
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THIRD READING
AB 632
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2
ANALYSIS :
Existing Law
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Casethat
9.Provides 1:07-cv-00026-OWW-DLB Document
it is the public policy 306-2
of the state Filed
to 03/09/2009 Page 162 of 205
encourage physicians and surgeons to advocate for
medically appropriate health for their patients and
provides that no person shall terminate, retaliate
against, or otherwise penalize a physician and surgeon
for that advocacy, nor shall any person prohibit,
restrict, or in any way discourage a physician and
surgeon from communicating to a patient information in
furtherance of medically appropriate health care. For
purposes of existing law, advocating for medically
appropriate care is defined as the appeal of a payer's
decision to deny payment for a service pursuant to the
grievance or appeal procedure established by a medical
group, independent practice association, preferred
provider organization, foundation, hospital medical
staff and governing body, or payer, or to protest a
decision, policy, or practice that a physician believes
impairs his or her ability to provide medically
appropriate health care to his or her patients.
AB 632
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AB 632 Assembly Bill - Bill Analysis
Page
4 Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 163 of 205
This bill:
Casethat
7.Provides 1:07-cv-00026-OWW-DLB
an employee who has Document 306-2 Filed 03/09/2009
been discriminated Page 164 of 205
against in employment in violation of those provisions
shall be entitled to reinstatement, reimbursement for
AB 632
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5
Background
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6
Case 1:07-cv-00026-OWW-DLB
Current state Document
law prohibits the employment of 306-2 Filedby
physicians 03/09/2009 Page 166 of 205
corporations or other entities that are not controlled by
physicians. For that reason, most members of the medical
staff are not considered employees of a hospital and must
establish contractual relationships with the hospital,
either individually or through medical groups. Some
exceptions are teaching hospitals, certain clinics, and
hospitals owned and operated by a health care district.
AB 632
Page
7
Chapter
American Federation of State, County and Municipal
Employees
California Academy of Ophthalmology
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AB 632 Assembly Bill - Bill Analysis
AB 632
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8
ASSEMBLY FLOOR :
AYES: Adams, Aghazarian, Anderson, Bass, Beall, Berg,
Berryhill, Blakeslee, Brownley, Caballero, Charles
Calderon, Carter, Cook, Coto, Davis, De La Torre, De
Leon, DeSaulnier, DeVore, Duvall, Dymally, Emmerson, Eng,
Evans, Feuer, Fuller, Gaines, Galgiani, Garcia, Garrick,
Hancock, Hayashi, Hernandez, Horton, Houston, Huffman,
Jeffries, Jones, Karnette, Keene, Krekorian, La Malfa,
Laird, Leno, Levine, Lieber, Lieu, Ma, Maze, Mendoza,
Mullin, Nakanishi, Niello, Parra, Portantino, Price,
Richardson, Salas, Saldana, Silva, Smyth, Solorio,
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AB 632 Assembly Bill - Bill Analysis
AB 632
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AYES
****
NOES
****
Hollingsworth
Perata
AYES
****
NOES
****
BILL
ANALYSIS Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 174 of 205
AB 632
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|ASSEMBLY: |70-0 |(May 3, 2007) |SENATE: |38-1 |(September 10, |
| | | | | |2007) |
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FN: 0003293
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AB 632 Assembly Bill - Bill Analysis
of , 2007, at o’clock m.
CHAPTER
94
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AB 632 —4—
retaliate against any person because that person has taken any
actions pursuant to this subdivision.
(3) A violation of this section shall be subject to a civil penalty
of not more than twenty-five thousand dollars ($25,000). The civil
penalty shall be assessed and recovered through the same
administrative process set forth in Chapter 2.4 (commencing with
Section 1417) for long-term health care facilities.
(c) Any type of discriminatory treatment of a patient by whom,
or upon whose behalf, a grievance or complaint has been submitted,
directly or indirectly, to a governmental entity or received by a
health facility administrator within 180 days of the filing of the
grievance or complaint, shall raise a rebuttable presumption that
the action was taken by the health facility in retaliation for the
filing of the grievance or complaint.
(d) (1) There shall be a rebuttable presumption that
discriminatory action was taken by the health facility, or by the
entity that owns or operates that health facility, or that owns or
operates any other health facility, in retaliation against an
employee, member of the medical staff, or any other health care
worker of the facility, if responsible staff at the facility or the entity
that owns or operates the facility had knowledge of the actions,
participation, or cooperation of the person responsible for any acts
described in paragraph (1) of subdivision (b), and the
discriminatory action occurs within 120 days of the filing of the
grievance or complaint by the employee, member of the medical
staff or any other health care worker of the facility.
(2) For purposes of this section, discriminatory treatment of an
employee, member of the medical staff, or any other health care
worker includes, but is not limited to, discharge, demotion,
suspension, or any unfavorable changes in, or breach of, the terms
or conditions of a contract, employment, or privileges of the
employee, member of the medical staff, or any other health care
worker of the health care facility, or the threat of any of these
actions.
(e) The presumptions in subdivisions (c) and (d) shall be
presumptions affecting the burden of producing evidence as
provided in Section 603 of the Evidence Code.
(f) Any person who willfully violates this section is guilty of a
misdemeanor punishable by a fine of not more than twenty
thousand dollars ($20,000).
94
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—5— AB 632
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AB 632 —6—
94
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Approved , 2007
Governor
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CHAPTER 683
An act to amend Section 1278.5 of the Health and Safety Code, relating
to health care facilities.
93
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Ch. 683 —2—
This bill would provide that no reimbursement is required by this act for
a specified reason.
93
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—3— Ch. 683
against an employee, member of the medical staff, or any other health care
worker of the facility, if responsible staff at the facility or the entity that
owns or operates the facility had knowledge of the actions, participation,
or cooperation of the person responsible for any acts described in paragraph
(1) of subdivision (b), and the discriminatory action occurs within 120 days
of the filing of the grievance or complaint by the employee, member of the
medical staff or any other health care worker of the facility.
(2) For purposes of this section, discriminatory treatment of an employee,
member of the medical staff, or any other health care worker includes, but
is not limited to, discharge, demotion, suspension, or any unfavorable
changes in, or breach of, the terms or conditions of a contract, employment,
or privileges of the employee, member of the medical staff, or any other
health care worker of the health care facility, or the threat of any of these
actions.
(e) The presumptions in subdivisions (c) and (d) shall be presumptions
affecting the burden of producing evidence as provided in Section 603 of
the Evidence Code.
(f) Any person who willfully violates this section is guilty of a
misdemeanor punishable by a fine of not more than twenty thousand dollars
($20,000).
(g) An employee who has been discriminated against in employment
pursuant to this section shall be entitled to reinstatement, reimbursement
for lost wages and work benefits caused by the acts of the employer, and
the legal costs associated with pursuing the case, or to any remedy deemed
warranted by the court pursuant to this chapter or any other applicable
provision of statutory or common law. A health care worker who has been
discriminated against pursuant to this section shall be entitled to
reimbursement for lost income and the legal costs associated with pursuing
the case, or to any remedy deemed warranted by the court pursuant to this
chapter or other applicable provision of statutory or common law. A member
of the medical staff who has been discriminated against pursuant to this
section shall be entitled to reinstatement, reimbursement for lost income
resulting from any change in the terms or conditions of his or her privileges
caused by the acts of the facility or the entity that owns or operates a health
facility or any other health facility that is owned or operated by that entity,
and the legal costs associated with pursuing the case, or to any remedy
deemed warranted by the court pursuant to this chapter or any other
applicable provision of statutory or common law.
(h) The medical staff of the health facility may petition the court for an
injunction to protect a peer review committee from being required to comply
with evidentiary demands on a pending peer review hearing from the member
of the medical staff who has filed an action pursuant to this section, if the
evidentiary demands from the complainant would impede the peer review
process or endanger the health and safety of patients of the health facility
during the peer review process. Prior to granting an injunction, the court
shall conduct an in camera review of the evidence sought to be discovered
to determine if a peer review hearing, as authorized in Section 805 and
93
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Ch. 683 —4—
93
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EXHIBIT 6: Defendants-Appellee’s Answering Brief in Mendiondo v. Centinela Hosp. Med. Ctr., 521
26
F.3d 1097, 1105 (9th Cir. 2008)
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2006 U.S. 9th Cir. Briefs 55981; 2007 U.S. 9th Cir. Briefs LEXIS 46
February 2, 2007
Appeal from the United States District Court for the Central District Of California, Hon.
Terry J. Hatter, Jr. Case No. CV 03-5757 TJH.
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. Circuit Court: Brief(s)
COUNSEL: [**1] Susan S. Azad (Bar No. 145471), Jennifer Blair (Bar No. 222125), LATHAM & WATKINS LLP,
633 West Fifth Street, Suite 4000, Los Angeles, CA 90071-2007, (213) 485-1234 (phone), (213) 891-8763 (fax).
Attorneys for Defendants and Appellees, Tenet Healthcare Corporation and Centinela Hospital Medical Center.
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Defendants and Appellees Tenet Healthcare
Corporation ("Tenet") and Centinela Hospital Medical Center, by and through their undersigned counsel, certify as
follows:
Tenet was the parent corporation of Centinela Hospital Medical Center at the time of the events at issue in this
appeal. Centinela Hospital Medical Center has since been sold to third-party Centinela Freeman HealthSystem, which,
to the best of Tenet's knowledge, owns and operates the hospital today. Another Tenet entity, CVHS Hospital
Corporation, retained liability relating to this lawsuit as part of the sale.
Respectfully submitted,
Susan S. Azad
Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 194 of 205
Page 2
2006 U.S. 9th Cir. Briefs 55981, *; 2007 U.S. 9th Cir. Briefs LEXIS 46, **1
Jennifer Blair
TEXT: I.
STATEMENT OF JURISDICTION
Defendants and Appellees Centinela Hospital Medical Center ("CHMC") and Tenet Healthcare Corporation
("Tenet") (collectively, the "Hospital") concur in Plaintiff and Appellant Marie Bernadette Mendiondo's ("Mendiondo")
jurisdictional statement.
II.
Mendiondo and two other relators (whose claims have since been abandoned or dismissed) filed a qui tam
complaint (the "Complaint") premised on alleged violations of the federal and California False Claims Act (the "FCA").
After the United States declined to intervene, Mendiondo voluntarily dismissed her substantive FCA claims with
prejudice. Mendiondo, the sole plaintiff left in the case, is thus left only with claims for wrongful termination under the
FCA, the California Whistleblower Protection Act, and public policy. In the Complaint, Mendiondo alleges she
complained to her supervisors about wrongful conduct by the Hospital. As a result, Mendiondo [**3] claims she was
fired by the Hospital.
[*2] Mendiondo cannot maintain her FCA wrongful termination claims. In order to plead FCA retaliation,
Mendiondo must plead facts demonstrating she was terminated because she was either investigating or pursuing a false
claims action, which was filed or to be filed. This means Mendiondo must be able to plead facts demonstrating four
things: First, that there were colorable false claims to begin with, involving actionable payments by the government;
second, that Mendiondo was investigating or pursuing a false claims action based on these payments; third, that the
Hospital knew Mendiondo was investigating or pursuing such claims; and fourth, that Mendiondo was fired because of
it.
Mendiondo cannot make these factual showings given what she has already pleaded. First, none of the claims
alleged in the Complaint demonstrate that colorable false claims exist or that Mendiondo knew about them. Mendiondo
alleges she signed false medical director timesheets and inventoried defective defibrillators. None of these activities
involve claims for payment by the government. There are no allegations that Mendiondo knew about or investigated any
false [**4] claims for payment made to the government. [*3] Nor does Mendiondo allege facts that demonstrate the
Hospital knew about any such investigation into any such hypothetical false claims.
More fundamentally, the facts Mendiondo alleges, taken in the light most favorable to Mendiondo, demonstrate she
was fired because she complained to her supervisors about, and refused to engage in, cost-cutting measures she felt
were illegal and might affect patient care. Mendiondo has alleged the reason she was fired -because she complained and
refused to do what her employer told her to do. The district court thus properly dismissed her FCA retaliation claims.
Having properly dismissed Mendiondo's FCA claims, the district court was within its discretion to dismiss Mendiondo's
Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 195 of 205
Page 3
2006 U.S. 9th Cir. Briefs 55981, *3; 2007 U.S. 9th Cir. Briefs LEXIS 46, **4
III.
STATEMENT OF FACTS
The Complaint references allegations by three purported relators, two of whom chose not to pursue the action any
further and are thus not involved in this appeal. See Excerpts of Record ("ER") 2, at P 4; Appellant's Opening Brief
("AOB"), at 11 n.3. In addition, all of the FCA allegations (claims 1 [**5] and 2) have been dismissed with [*4]
prejudice. See ER 33-37. Thus, the sole remaining claims in this case are the wrongful termination claims asserted by
Mendiondo against CHMC and its parent corporation, Tenet. See generally AOB.
Mendiondo alleges that she is a registered nurse who "was recruited by Apex Cardiology to build a new
cardio-vascular practice" at CHMC in March 2000. ER 13, at P 45. CHMC is an acute-care hospital located in Los
Angeles, California. See ER 3, at P 9. The parent corporation of CHMC at the time of Mendiondo's termination, Tenet,
owns and operates a number of hospitals in California and other states. See ER 3, at P 8. Mendiondo alleges that she
"was terminated [from her position at CHMC] by Tenet" on August 19, 2002. ER 14, at P 47; cf. AOB, at 10
("Mendiondo's employment at [CHMC] was terminated.").
The Complaint contains a section specifically addressing the facts supporting Mendiondo's wrongful termination
claims. This section is entitled "Facts Relating to Wrongful Termination of Mendiondo." ER 13-14, at PP 45-48. The
Complaint [**6] also mentions Mendiondo in two other paragraphs: paragraph 21 (alleging [*5] Mendiondo "signed
[false medical director] timesheets in fear of being fired if she refused") and paragraph 41 (alleging Mendiondo, while
taking inventory of defibrillators at CHMC, found "defibrillators so old they could not provide temporary pacemaker
support for patients in cardiac arrest"). ER 6, at P 21; ER 11-12, at P 41.
In support of her claims, Mendiondo alleges that "from the time Mendiondo started her employ, she was pressured
to cut costs and reduce services" and that she "was fired for her resistance to [Tenet's budget cuts that would jeopardize
patient care]." ER 13, at P 45. Mendiondo alleges that "she went to [CHMC] CEO, Harry Koenig, and warned that she
was 'being set up for failure' by being given mandates that were impossible to meet as to do [sic] would be below the
standard of care . . . and constitute civil and criminal violations." ER 13-14, at P 46. Mendiondo alleges that her
supervisor "demanded on a near daily basis that Mendiondo cut costs advising that if she did not she would be fired."
ER 14, at P 46.
Mendiondo alleges she was fired "for supposed failures to adequately [**7] perform her job," but then alleges this
reason was a ruse and that she was actually fired "because she demanded that minimum [*6] state and federal
standards of health care be maintained, and because of her investigation into facts relating to Tenet and CHMC's
submission of false claims and false records to the government." ER 14, at P 47. Mendiondo contends that the Hospital's
wrongful termination of her employment at CHMC amounts to retaliation against her in violation of (1) the federal
FCA, (2) the California FCA, (3) the California Whistleblower Protection Act, and (4) public policy. See ER 20-22, at
PP 77-93.
Notably, nowhere does Mendiondo allege facts demonstrating that the Hospital knowingly submitted false claims
for payment to the government, that Mendiondo ever investigated the submission of false claims for payment to the
government in furtherance of a potential FCA case or investigation, or that the Hospital ever had any knowledge of such
an investigation on Mendiondo's part. See ER 1-28.
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2006 U.S. 9th Cir. Briefs 55981, *6; 2007 U.S. 9th Cir. Briefs LEXIS 46, **7
D. Procedural History
On August 13, 2003, Mendiondo, her fellow nurse Beverly Panaro ("Panaro"), and an unnamed, California-licensed
physician filed a sealed [**8] Complaint as qui tam relators. See ER 1-2. [*7] The three plaintiffs brought eleven
claims for relief n1 against Apex Cardiology, the Arthritis Institute, Tenet, CHMC, and Daniel Freeman Memorial
Hospital ("Freeman"). See ER 1-27. n2
n1 Although the Complaint's caption lists twelve claims (see ER 1), the body of the Complaint only contains
eleven claims for relief (see ER 25-27).
n2 According to Mendiondo, defendants Apex Cardiology, the Arthritis Institute, and Freeman were never
served with the Complaint. See AOB, at 11 n.5. Thus, CHMC and Tenet are the only Appellees in this appeal.
On November 23, 2005, the district court ordered the Complaint unsealed after the United States declined to
intervene in this action. See ER 29-32. Thereafter, Mendiondo served the Hospital with the Complaint and the parties
entered into a stipulation to dismiss the first and second claims (violation of the federal and California FCAs) with
prejudice. The dismissal was entered on April 26, 2006. [**9] See ER 33-37.
The district court's docket reflects Mendiondo's purported filing of an ineffectual first amended complaint on
December 30, 2003, for which no summons was issued. See ER 90. Mendiondo contends that "no such complaint was
located in the court's unsealed records and it was never served on Defendants." [*8] FAOB, at 11 n.4. Hence,
Mendiondo asserts that the only "operative complaint is the original complaint." Id.
On May 22, 2006, the Hospital filed a motion to dismiss the remaining claims (the "Motion") in the Complaint for
failure to state a claim under Federal Rules of Civil Procedure 12(b)(6), 9(b), and 8(e) . See ER 38-55. On June 28,
2006, the district court granted the Hospital's Motion with respect to Mendiondo's wrongful termination claims, and
further "ordered, sua sponte, that the supplemental claims be, and hereby are, dismissed." n3 ER 78-79. Thus, the court
dismissed the remaining third through seventh claims in the Complaint, all of which concerned Mendiondo's former
employment at CHMC and Freeman n4 : wrongful [**10] termination in violation of the federal FCA, wrongful
termination in violation of the California FCA, wrongful termination in violation of the California Whistleblower
Protection Act, wrongful termination in violation of [*9] public policy, and constructive termination in violation of
public policy. See ER 20-23, at PP 77-93. n5 On July 19, 2006, Mendiondo filed a notice of appeal, giving rise to the
present appeal. See ER 80-85.
n3 Mendiondo criticizes the district court's "eight line order," in which the "court gave no explanation for its
decision." AOB, at 3. However, the federal rules explicitly state that conclusions of law and findings of fact are
not required for such decisions on a motion to dismiss. See Fed. R. Civ. P. 52 ("Findings of fact and conclusions
of law are unnecessary on decisions of motions under Rule 12.").
n4 Mendiondo contends that she was constructively terminated from a second nursing position at Freeman. See
ER 14, at P 48.
n5 The district court also dismissed the eighth through eleventh claims in the Complaint, all of which concerned
Panaro's former employment at CHMC: constructive termination, wrongful termination in violation of the
federal FCA, wrongful termination in violation of the California FCA, and wrongful termination in violation of
the California Whistleblower Protection Act. See ER 23-26, at PP 94-115; ER 79. Panaro has not appealed the
dismissal of these claims.
[**11]
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2006 U.S. 9th Cir. Briefs 55981, *9; 2007 U.S. 9th Cir. Briefs LEXIS 46, **11
IV.
Mendiondo's FCA claims were properly dismissed by the district court as futile. The federal and state FCAs impose
liability for knowingly submitting a false claim to the government in order to receive payment. Per the language of the
applicable statutes, civil actions under the FCA - including claims for retaliation - may be brought only against alleged
false claimants. Accordingly, an employee bringing a retaliation action must have been acting in furtherance of a
potential or realized FCA action in order to state a claim for relief. Moreover, a successful FCA retaliation claim cannot
[*10] be based on mere violations of laws, rules, or regulations in the absence of an actionable, fraudulent, knowingly
false misrepresentation to the government.
In this case, Mendiondo never alleges the requisite submission of a false claim by the Hospital to the government.
Instead, she alleges irrelevant, general wrongdoing on the part of the Hospital and further alleges that she was
terminated due to her complaints to her supervisors about such purported wrongdoing. Because of the anti-fraud nature
of the FCA, a heightened standard of specificity [**12] in pleading applies. However, the Complaint contains no
allegations that set forth specific facts about Mendiondo's investigation into or reporting of actionable false claims.
Moreover, Mendiondo never alleges that the Hospital was put on notice of her pursuit of an investigation under the
FCA, as is required to maintain this claim.
After the district court dismissed Mendiondo's only federal claim, it rightfully exercised its discretion to dismiss her
supplemental state law claims. Mendiondo's supplemental state law claims were also properly dismissed on the merits.
Mendiondo's California Whistleblower Protection Act claim fails because she does [*11] not and cannot allege any
facts that demonstrate she was terminated because of any complaints she made in connection to activities that
compromised the health and safety of patients at the Hospital. Further, the fate of Mendiondo's claims for wrongful
termination and constructive termination based on public policy depends upon her statement of proper statutory claim.
As Mendiondo failed to state such a claim, her dependent public policy claims likewise fail. Thus, the district court's
decision should be affirmed in its entirety. [**13]
V.
The Hospital concurs with Mendiondo's argument that the district court fully adjudicated the Motion and
demonstrated its intent to dispose of the entire action. See AOB, at 13-16. The Hospital further concurs with
Mendiondo's argument that the district court's failure to enter judgment does not preclude consideration of this appeal.
See AOB, at 16-17. Like Mendiondo, the Hospital believes that remanding this case for the sole purpose of obtaining
entry of judgment would result in the needless duplication of judicial [*12] efforts. Id. Therefore, the Hospital joins in
Mendiondo's request for a substantive review of this appeal.
Dismissal under Rule 12(b)(6) is proper when a complaint demonstrates a "lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696,
699 (9th Cir. 1990). In considering a motion to dismiss pursuant to Rule 12(b)(6), a court may assume the truth of the
factual allegations in the complaint, [**14] but "'conclusory allegations of law and unwarranted inferences are
insufficient to defeat a motion to dismiss."' In re Daou Sys., Inc. Sec. Litig., 411 F.3d 1006, 1013 (9th Cir. 2005)
(quoting In re VeriFone Sec. Litig., 11 F.3d 865, 868 (9th Cir. 1993)).
In federal court, most pleadings must contain merely "a short and plain statement of the claim showing that the
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2006 U.S. 9th Cir. Briefs 55981, *12; 2007 U.S. 9th Cir. Briefs LEXIS 46, **14
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001).
However, Rule 9(b) requires fraud allegations to be "stated with particularity." Fed. R. Civ. P. 9(b). Because the federal
FCA, 31 U.S.C. § 3729 et seq., is an "anti-fraud statute," Rule 9(b)'s heightened pleading standard applies [*13] to
claims for relief brought under both the federal and California FCAs. n6 Bly-Magee, 236 F.3d at 1018. Non-compliance
with Rule 9(b) justifies a court's dismissal of claims "grounded in fraud." Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1107 (9th Cir. 2003). n7
n6 Mendiondo alleges two wrongful termination claims: one under the federal FCA ("FFCA"), 31 U.S.C. § 3729
et seq., and one under the California FCA ("CFCA"), Cal. Gov't Code § 12651 et seq. Because the CFCA was
"patterned after the federal False Claims Act," it is "appropriate to look to precedent construing [the FFCA]" in
determining CFCA claims. Debro v. Los Angeles Raiders, 112 Cal. Rptr. 2d 329, 333 (Cal. App. 2001);
California v. Altus Finance, 36 Cal. 4th 1284, 1299 (2005). Therefore, the Hospital's analysis herein
encompasses both the FFCA and the CFCA and applies to both of Mendiondo's FCA wrongful termination
claims.
[**15]
n7 Federal Rule of Civil Procedure 8(e) provides another basis to justify the district court's dismissal of the
Complaint. The federal rules require each averment of a pleading to be "simple, concise, and direct." Fed. R.
Civ. P. 8(e); see McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). If a complaint is "confusing,"
"argumentative, prolix, replete with redundancy and largely irrelevant," it can be dismissed under Rule 8(e). See
McHenry, 84 F.3d at 1177-79 (affirming dismissal of a complaint under Rule 8(e) because it was rambling,
confusing, and made "sweeping allegations" against the defendant; such a complaint made it impossible to
"figure out which Appellees were allegedly liable for which wrongs" and did "not make clear connections
between specific allegations and individual Appellees"). The vagueness and unnecessarily confusing nature of
Mendiondo's Complaint makes it impossible for the Hospital to formulate a proper answer or defense; therefore,
Rule 8(e) provides an additional basis for the dismissal of the Complaint.
[**16]
On appeal, this Court reviews de novo a dismissal pursuant to Rules 9(b) or 12(b)(6). See Vess, 317 F.3d at 1102.
[*14] However, "[d]enial of leave to amend is reviewed for an abuse of discretion." Gompper v. VISX, Inc., 298 F.3d
893, 898 (9th Cir. 2002).
VI.
ARGUMENT
1. Mendiondo Failed to Allege a Viable Claim Under the Federal or California FCA
The federal and state FCAs impose liability for anyone who knowingly submits a false claim to the government in
order to receive payment. 31 U.S.C. § 3729(a)-(c); Cal. Gov't Code § 12651; see also United States ex rel. Hopper v.
Anton, 91 F.3d 1261, 1266 (9th Cir. 1996); Debro v. Los Angeles Raiders, 112 Cal. Rptr. 2d 329, 333 (Cal. App. 2001).
A "claim" under Section 3729 is defined as "any request or demand" for money or reimbursement of monies paid that is
made to an agent of the U.S. government. 31 U.S.C. § 3729(c); Cal. Gov't Code § 12651; see also Hopper, 91 F.3d at
1266 (holding [*15] that the FCA "attaches liability, [**17] not to underlying fraudulent activity, but to the "claim for
payment'"). n8
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n8 Even if Mendiondo's vague, sweeping allegations assert the existence of fraudulent conduct on the part of the
Hospital, dismissal of the FCA claims was proper because Mendiondo's Complaint fails to identify any actual,
specific false claims submitted to the government by the Hospital. Such allegations fail to meet the Rule 9(b)
heightened pleading requirements for FCA claims. See United States ex rel. Lee v. Smithkline Beecham Clinical
Labs., 245 F.3d 1048, 1051-52 (9th Cir. 2001) (affirming dismissal of FCA complaint because the allegations of
violations were too broad); Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 563-64 (6th Cir. 2003) (affirming
dismissal of FCA complaint because plaintiff-employee did not cite a single false claim submitted directly to the
government in his complaint).
The following Section of the FCA provides for civil actions that may be brought against alleged violators [**18] of
Section 3729. See 31 U.S.C. § 3730. Among the possibilities of relief provided by this Section is a remedy for an
"employee who is discharged . . . because of lawful acts done by the employee . . . in furtherance of an action under this
section, including investigation for . . . an action filed or to be filed under this section . . . ." 31 U.S.C. § 3730(h)
(emphasis added); see also Cal. Gov't Code § 12653. To assert an FCA wrongful termination claim, the
plaintiff-employee must prove that: (1) the employee was engaging in conduct protected under the [*16] FCA; (2) the
employer must have known that the employee was engaging such conduct; and (3) the employer must have
discriminated against the employee because of her protected conduct. See Hopper, 91 F.3d at 1269.
In the Complaint, Mendiondo alleges numerous incidents of generally wrongful conduct, including that the
Hospital illegally induced physicians to join CHMC and Apex Cardiology by providing them directorships and reduced
rent on medical office space (see ER [**19] 5-9, at PP 16-34); manipulated patient care and admissions to maximize its
reimbursements (see ER 9-11, at PP 35-38); and attempted to maximize profits at the expense of patient care (see ER
11-13, at PP 39-44). However, Mendiondo never alleges the submission of a false claim by the Hospital to the
government, which is required in order to maintain a claim for relief under the FCA. n9
n9 Mendiondo's best effort at alleging an FCA violation (see ER 10-11, at P 38) states that the Hospital engaged
in billing fraud by placing patients in higher-paying ambulatory categories. However, Mendiondo provides no
facts regarding any actual ambulatory claims submitted by the Hospital to the government. Again, these generic
allegations do not satisfy the heightened pleading standard under Fed. R. Civ. P. 9(b). See Smithkline Beecham,
245 F.3d at 1051-52.
[*17] Mendiondo fails to make any connection between the Hospital's alleged wrongful [**20] conduct and the
actual submission of a false claim to Medicare or any other government program. Instead, Mendiondo relies solely on
broad and vague allegations of misconduct by the Hospital. Specifically, Mendiondo alleges that she was forced to sign
false medical director timesheets (which involve payments by the hospital to physicians) and that she inventoried
defective defibrillators. See ER 6, at P 21; ER 11-12, at P 41. She also makes vague allegations that she refused to abide
by cost-cutting measures that negatively would affect patient care. See ER 13, at P 45. These facts simply do not
demonstrate that a false claim for payment was made by the Hospital to the government.
Because the Complaint fails to allege facts demonstrating there were any colorable false claims for payment by the
Hospital to the government to begin with, Mendiondo does not (and cannot) allege the fraudulent underpinnings of her
case with sufficient particularity under Rule 9(b), on which to predicate her claims of FCA wrongful termination. See
United States ex rel. Lee v. Smithkline [*18] Beecham Clinical Labs., 245 F.3d 1048, 1051-52 (9th Cir. 2001)
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(affirming the dismissal [**21] of a FCA complaint under Fed. R. Civ. P. 9(b) because allegations of FCA violations
were too broad and provided no details of defendant's fraudulent behavior with regard to date, time, or place); Yuhasz v.
Brush Wellman, Inc., 341 F.3d 559, 563-64 (6th Cir. 2003) (affirming the dismissal of a FCA complaint pursuant to
Rules 12(b)(6) and 9(b) where plaintiff employee alleged fraudulent conduct on part of defendant employer, but did not
cite in his complaint a single false claim submitted directly to the government). n10
n10 Mendiondo cites the First Circuit case of United States ex rel. Karvelas v. Melrose-Wakefield Hosp., 360
F.3d 220 (1st Cir. 2004), for the proposition that a plaintiff does not need to meet the heightened Rule 9(b)
standard in order to state an FCA retaliation claim under Section 3730(h), as distinguished from claims brought
under the remaining provisions of Section 3730. See id. at 238 n.23. In turn, the Karvelas decision cites only one
ostensibly supporting case, which does not appear to address Rule 9(b). See ibid.; United States ex rel. Barrett v.
Columbia/HCA Healthcare Corp., 251 F. Supp. 2d 28 (D.D.C. 2003). The Hospital has been unable to locate
similar precedent in the Ninth Circuit, and submits that the more reasoned approach would be to require
specificity at least for pleading the underlying FCA violations that support Mendiondo's retaliation action, if not
also for the retaliation.
[**22]
At bottom, Mendiondo utterly fails to allege facts that demonstrate she was acting in furtherance of (investigating
or [*19] reporting) a potential FCA violation - i.e., the Hospital's knowing submission of a false claim for payment to
the government - as opposed to simply complaining to her supervisors. Mendiondo argues that the reach of the FCA
should be broader; however, "[v]iolations of laws, rules, or regulations alone do not create a cause of action under the
FCA" in the absence of an actionable, fraudulent, knowingly false misrepresentation to the government. See Hopper, 91
F.3d at 1266-67.
Thus, while Mendiondo argues that she need not show that a false claim was actually made by the Hospital,
Mendiondo has missed the point. Mendiondo must plead specific facts to demonstrate there was a colorable FCA
investigation in the first place. n11
n11 Mendiondo's citation to the factually inapposite case of Moore v. Cal. Inst. of Tech. Jet Propulsion Lab.,
275 F.3d 838 (9th Cir. 2002), is unavailing. In Moore, a former employee of a government contractor reported
his suspicions to NASA's Office of the Inspector General that his employer was engaged in fraud in connection
with the performance of the contractor's contract with NASA, a government agency. Id. at 846. The reported
fraud directly related to the contractor's right to receive payment under its contract with the government. Ibid.
Accordingly, the Ninth Circuit ruled that a reasonable jury could find an objective and subjective good-faith
belief that the government contractor "was attempting to defraud the government in violation of the False Claims
Act." Ibid. By contrast, Mendiondo complained to her supervisors that she did not want to engage in cost-cutting
measures that would affect patient care. Nothing in Mendiondo's allegations even remotely suggests that she was
pursuing colorable false claims for payment made to the government. Thus, unlike the plaintiff in Moore,
Mendiondo did not (and cannot) allege any facts that would suggest she was terminated because of protected
activity under the FCA.
[**23]
[*20] Mendiondo's conclusory allegation that she was "investigat[ing] . . . facts relating to Tenet and CHMC's
submission of false claims and false records to the government," in the absence of facts from which one could conclude
false claims for payment had been submitted by the Hospital to the government, is insufficient and can be disregarded
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by the court. See In re Daou Sys., Inc. Sec. Litig., 411 F.3d 1006, 1013 (9th Cir. 2005) ("'[C]onclusory allegations of
law and unwarranted inferences are insufficient to defeat a motion to dismiss.'") (citation omitted). Moreover,
Mendiondo's analysis completely ignores the premise of the FCA - and Section 3730, which permits her to bring actions
only in furtherance of the pursuit of a Section 3729 violation. See AOB, at 24-25. Mendiondo's vague allegations are
insufficient to proceed with her retaliatory discharge claims under the FCA. Regardless, the facts Mendiondo did plead
demonstrate that she was fired because she complained to her employer, not because she was investigating or pursuing a
false [*21] claims action. Given these facts, Mendiondo's Complaint cannot be "fixed" to state an FCA retaliation
[**24] claim. Thus, the district court properly exercised its discretion in dismissing Mendiondo's FCA retaliation
claims without leave to amend.
Even if the Court were to find that Mendiondo properly pleaded that she was engaged in an investigation under the
FCAs, Mendiondo's failure to plead facts demonstrating that the Hospital was on notice of her investigation is fatal to
her claims. See Hopper, 91 F.3d at 1269; see also United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d
1514, 1522 (10th Cir. 1996) ("When seeking legal redress for retaliatory discharge under the FCAs, plaintiff has the
burden of pleading facts which would demonstrate that the Hospital had been put on notice that plaintiff was either
taking action in furtherance of a private qui tam action or assisting in an FCA action brought by the government."
(emphasis added)). Mere complaints by employees to employers about suspected fraudulent behavior does not qualify
as putting the employer "on notice" that the employee was acting "in furtherance of an action" under the FCA. [*22]
See Hopper, 91 F.3d at 1269; [**25] see also McKenzie v. BellSouth Telecommunications, Inc., 219 F.3d 508, 518 (6th
Cir. 2000) (citing United States ex rel. Yesudian v. Howard University, 153 F.3d 731, 743 (D.C. Cir. 1998)) ("[A]
plaintiff . . . must show that his employer was aware of his protected activity. Merely grumbling to the employer about
job dissatisfaction or regulatory violations does not satisfy the requirement - just as it does not constitute protected
activity in the first place."). Even if an employee makes numerous complaints, both oral and written, regarding an
employer's lack of compliance with federal and state regulations, such action is not considered sufficient to put an
employer "on notice" of the employee's furtherance of an FCA action. See Hopper, 91 F.3d at 1269.
In this case, Mendiondo fails to show that she put CHMC or Tenet "on notice" that she was acting "in furtherance"
of an FCA action. Instead, Mendiondo alleges only that she told CHMC's CEO that "she was 'being set up for failure' by
being given mandates that were impossible to meet as to do [sic] would be below the standard of care . . . and constitute
civil and criminal violations. [**26] " ER 13-14, at P 46. Mendiondo also alleges that she warned CHMC's Chief
[*23] Nursing Officer that to cut costs "would go below well-established standards of care." ER 13-14, at P 46. Finally,
Mendiondo alleges she "was fired for her resistance to [Tenet's insistence on budget cuts that would jeopardize patient
care]." ER 14, at P 45.
Tellingly, Mendiondo does not allege that she was investigating specific false claims or records submitted to the
government by the Hospital, let alone that the Hospital was aware of her investigation. Nor does Mendiondo allege that
she cooperated with a government investigation, testified in support of such an investigation, or assisted in an action
filed or to be filed under the FCA, and that the Hospital knew about it. Mendiondo's allegations are patently insufficient
to demonstrate the Hospital was on notice that Mendiondo was pursuing an FCA investigation or claim.
In the absence of colorable facts, Mendiondo resorts to making conclusory legal statements that she was fired
"because of her investigation into facts relating to Tenet and CHMC's submission of false claims . . . ." ER 14, at P 47.
This allegation does not provide any detail as [**27] to what specific "facts" or "false claims" Mendiondo was
"investigating," nor is there an allegation that her employer was on notice of any alleged FCA investigation. Because
the allegation in [*24] paragraph 47 is so vague and conclusory, it does not even meet ordinary, let alone heightened,
pleading standards. See In re Daou Sys., Inc. Sec. Litig., 411 F.3d 1006, 1013 (9th Cir. 2005) ("'[C]onclusory
allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.'") (citation omitted). As
such, Mendiondo's FCA wrongful termination claims fail to state a claim on which relief can be granted.
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2. Mendiondo Failed to State a Claim Under the California Whistleblower Protection Act
As recognized by the district court when it granted the Hospital's Motion, Mendiondo failed properly to plead a
claim under the California Whistleblower Protection Act. The California Legislature enacted this law "to encourage
patients, nurses, and other healthcare workers to notify government entities of suspected unsafe patient care and
conditions." Cal. Health & Safety Code § 1278.5(a). In furtherance of this purpose, [**28] "[n]o health facility shall
discriminate or retaliate in any manner against any . . . employee of the health facility because that . . . employee . . . has
presented a grievance or complaint, or has initiated or cooperated in any investigation or proceeding of any
governmental entity, relating to the care, services, [*25] or conditions of that facility." Id. § 1278.5(b)). In other words,
a claim for violation of the California Whistleblower Protection Act requires a causal connection between an employee's
grievance, complaint, or investigation and that employee's job termination. See id. § 1278.5(b), (d).
While Mendiondo alleges that the Hospital performed activities that compromised the health and safety of patients
at CHMC, Mendiondo fails to allege any facts that demonstrate she was terminated because of any complaints she made
in connection with such activities. Rather, Mendiondo expressly alleges that she was terminated "for supposed failures
to adequately perform her job." ER 14, at P 47. Mendiondo's allegations are so vague that it is unclear if Mendiondo
contends that she complained about any specific activities regarding patient safety. n12 Regardless, [**29] Mendiondo
cannot deny that [*26] she never alleged that she "notif[ied] government entities" about any "suspected unsafe patient
care and conditions" at CHMC. Cal. Health & Safety Code § 1278.5(a). Mendiondo simply is not a whistleblower
deserving of protection under California law, and the trial court's dismissal of this claim should be affirmed.
n12 Mendiondo argues that paragraph 47 of the Complaint contains sufficient allegations of an "investigation"
by Mendiondo and her resulting termination. See AOB, at 28-29. Paragraph 47 of the Complaint asserts that
Mendiondo was terminated "because she demanded that minimum state and federal standards of health care be
maintained, and because of her investigation into facts relating to Tenet and CHMC's submission of false claims
and false records to the government." ER 14, at P 47. These allegations fail to specify what standards, what
investigation, which false claims, and which false records.
3. [**30] Because Mendiondo's Statutory Claims Failed, Her Dependent Claims for Termination in
Violation of Public Policy Likewise Failed
Because the trial court concluded that Mendiondo failed to state a claim for wrongful termination under any statute,
Mendiondo's dependent claims for wrongful termination and constructive termination based on public policy
necessarily failed. In order to prevail on a claim for wrongful termination in violation of public policy, a plaintiff must
show that the defendant terminated her employment in violation of a policy that is (1) embodied in a statute or
constitutional provision, (2) beneficial to the public, (3) articulated at the time of discharge, and (4) fundamental. See
Rivera v. Amtrak, 331 F.3d 1074, 1078 (9th Cir. 2003); see also Yuhasz, 341 F.3d at 568-69 (holding that because
plaintiff failed to state a claim for [*27] retaliation with respect to the FCA, plaintiff's common law public policy
claims should also be dismissed). Hence, the fate of Mendiondo's public policy claims must dovetail with her FCA and
California Whistleblower Protection Act claims. As Mendiondo failed properly to allege a violation [**31] of any of
these statutes, her claims for wrongful and constructive termination in violation of public policy rightly were dismissed
by the trial court.
B. The District Court Had Discretion to Dismiss Appellee's Pendent State Law Claims
Because the district court properly dismissed the sole federal claim in Mendiondo's action, it was well within its
discretion to also dismiss the state law claims over which it had only supplemental jurisdiction. See ER 78-79
(dismissing California law claims sua sponte). Thus, the district court's decision to decline jurisdiction serves as an
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The Ninth Circuit's "practice [is] to dismiss state law claims once the federal claim has been resolved." Danner v.
Himmelfarb, 858 F.2d 515, 523 (9th Cir. 1988); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)
("Needless decisions of [*28] state law should be avoided . . . . Certainly, if the federal claims are dismissed before
trial, . . . the state claims should be dismissed as well."). While a federal court may retain state law claims if doing so
promotes interests [**32] such as judicial economy and convenience, this Court has upheld a district court's discretion
to dismiss state law claims even "after 3 1/2 years of discovery and pretrial wrangling." Danner, 858 F.2d at 524.
Indeed, "Supreme Court and Ninth Circuit precedent teaches us that the district court is in the best position to judge the
extent of resources invested in a case and that, therefore, the district court's discretion ought not be lightly disturbed."
Schneider v. TRW, Inc., 938 F.2d 986, 993-94 (9th Cir. 1991). Accordingly, this Court "review[s] a district court's
decision not to accept pendent jurisdiction for abuse of discretion." Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70
F.3d 1095, 1102 (9th Cir. 1995).
In this case, the district court did not abuse its discretion in dismissing the supplemental state law claims, which
depended upon Mendiondo's ability to state a valid FCA claim. As discussed above, Mendiondo cannot save her only
federal claim; hence, her state law claims should be adjudicated in the California court system. Because this case did not
progress to the point of discovery, much less "pretrial [*29] [**33] wrangling," the interests of judicial economy and
duplication of effort are not implicated. Thus, the district court properly declined to retain the pendent claims, and its
decision should not be disturbed.
VII.
CONCLUSION
For the foregoing reasons, the Hospital respectfully requests that this Court affirm the dismissal of the Complaint
and each alleged claim for relief therein.
Respectfully submitted,
Susan S. Azad
Jennifer Blair
Defendants and Appellees Tenet Healthcare Corporation and Centinela Hospital Medical Center know of no case
pending in this Court that is related to this appeal, as defined in Circuit Rule 28-2.6.
Respectfully submitted,
Susan S. Azad
Jennifer Blair
I certify that pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached
Answering Brief is double-spaced (except for headings and footnotes), proportionately spaced, and has been prepared
using 14-point Times New Roman font. The main portion of this brief, which responds to Appellants' Opening Brief,
contains 5,832 words.
Susan S. Azad
Jennifer Blair
PROOF OF SERVICE
I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to
this action. My business address is Latham & Watkins LLP, 633 West Fifth Street, Suite 4000, Los Angeles, CA
90071-2007.
I am familiar with the office practice of Latham & Watkins LLP for collecting and processing documents for
mailing with the United States Postal Service. Under that practice, documents are deposited with the Latham & Watkins
LLP personnel responsible for depositing documents with the United States Postal Service; such documents are
delivered to the United States Postal Service on that same day in the ordinary course of business, with postage thereon
fully prepaid. I deposited in Latham & Watkins LLPs' interoffice mail a sealed envelope or package containing the
above-described document(s) and addressed as set forth below in accordance with the office practice of Latham &
Watkins LLP for collecting and processing documents for mailing with the United States Postal Service:
I declare that I am employed in the office of a member of the Bar of, or permitted to practice before, this Court at
whose direction the service was made and declare under penalty of perjury that the foregoing is true and correct.
/s/ [Signature]
Guadalupe Y. Soriano