398 ORDER Bench Trial

Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 1 of 36
1
2 UNITED STATES DISTRICT COURT
3 EASTERN DISTRICT OF CALIFORNIA
4 DAVID F. JADWIN, D.O., 1:07-CV-00026-OWW-DLB
5 Plaintiff, FINDINGS OF FACT AND
6 CONCLUSIONS OF LAW
v.
7 COUNTY OF KERN,
8 Defendant.
9
10 I. INTRODUCTION
11 This matter is before the court pursuant to the parties’
12 stipulation to submit certain claims asserted by Plaintiff David F.
13 Jadwin, D.O. (“Plaintiff”) to the court for decision, each party
14 having voluntarily waived trial by jury. The other claims asserted
15 by Plaintiff were tried to and decided by a jury.
16 The jury returned verdicts, entered on June 8, 2009, in favor
17 of Plaintiff. (Doc. 384) The jury found that Defendant County of
18 Kern (“County”): (1) retaliated against Plaintiff for engaging in
19 certain activities in violation of the Family and Medical Leave Act
20 (“FMLA”) and the California Fair Employment and Housing Act
21 (“FEHA”); (2) retaliated against Plaintiff for taking medical leave
22 under the FMLA and the California Family Rights Act (“CFRA”); (3)
23 discriminated against Plaintiff on the basis of his mental
24 disability in violation of the FEHA; (4) failed to reasonably
25 accommodate Plaintiff’s mental disability in violation of the FEHA;
26 and (5) failed to engage in an interactive process with Plaintiff
27 in violation of the FEHA. The jury found against the County on its
28 defense that Plaintiff’s employment contract was not renewed by
1
1 reason of his conduct and alleged violation of the employer’s rules

2 and contract requirements and/or that Plaintiff’s behavior was the
3 cause of the nonrenewal of his contract.
4 The jury awarded damages as follows:
5 Mental and emotional distress and $0.00
6 suffering.
Reasonable value of necessary medical $30,192.00
7 care, treatment, and service received to
the present time.
8
Reasonable value of necessary medical $0.00
9 care, treatment and services which with
reasonable probability will be required in
10 the future.
11 Reasonable value of earnings and $321,285.00
professional fees lost to the present
12 time.
13 Reasonable value of earnings and $154,080.00
professional fees with which reasonable
14 probability will be lost in the future.
Total damages. $505,457.00
15
16
Certain claims were not submitted to the jury. The parties
17
stipulated that these claims shall be tried by the court sitting
18
without a jury, and each party, pursuant to Federal Rule of Civil
19
Procedure 38(d), voluntarily and knowingly waived on the record in
20
open court any right they had to try these claims to a jury. The
21
stipulation was accepted on the twelfth day of jury trial, June 6,
22
2009, and an order entered thereon.
23
On the final day of jury trial, the parties were instructed to
24
submit briefing on the claims submitted for trial by court; namely,
25
their legal positions, proposed findings of fact and proposed
26
conclusions of law by June 19, 2006. The parties timely made their
27
submissions.
28
2
1 II. THE CLAIMS SUBJECT TO BENCH TRIAL DETERMINATION

2 The claims to be decided by the court without a jury included
3 Plaintiff’s claim for interference with his rights under the
4 FMLA/CFRA and a deprivation of Plaintiff’s due process rights under
5 the Fourteenth Amendment (made actionable via 42 U.S.C. § 1983).
6 The parties submitted the testimony of witnesses and exhibits from
7 the jury trial, and legal briefing. In some respects, Plaintiff’s
8 bench trial briefing exceeds the scope of the claims, and attendant
9 issues, jointly submitted for bench trial determination.
10 A. “Miscellaneous Relief”
11 In a section entitled “Miscellaneous Relief” Plaintiff
12 requests when a final judgment is entered in this case that: (1)
13 the amount of economic damages awarded by the jury be doubled on
14 the ground that the jury found that Defendant’s violations of the
15 FMLA were “willful”; (2) Plaintiff be awarded pre-judgment and
16 post-judgment interest; (3) Plaintiff be awarded the costs of
17 litigation as the prevailing party according to proof per
18 Plaintiff’s Bill of Costs; (4) Plaintiff be awarded attorney’s fees
19 pursuant to the FEHA/CFRA/FMLA, and, if Plaintiff prevails on his
20 due process claim, attorney’s fees under 42 U.S.C. § 1988, all
21 according to proof per Plaintiff’s forthcoming application for
22 attorney’s fees.
23 Plaintiff’s items of “Miscellaneous Relief” exceed the scope
24 of the issues reserved for the bench trial portion of the case and
25 have not been briefed. They are not properly before the court for
26 decision at this time and will not be addressed herein. The issues
27 of enhanced damages, interest, costs, and attorney’s fees must be
28 addressed in accordance with the Federal Rules of Civil Procedure
3
1 and other applicable law. These findings of fact and conclusions

2 of law deal exclusively with Plaintiff’s remaining claims for
3 relief submitted for decision as agreed at the close of the jury
4 trial.
5 B. The Claims
6 With respect to his FMLA/CFRA claim, Plaintiff contends that
7 the County interfered with (or violated) his rights under the
8 FMLA/CFRA by: (i) requiring him to take more FMLA/CFRA leave than
9 medically necessary to address the circumstance that precipitated
10 his need for leave (i.e., that the County required Plaintiff to
11 take full-time leave instead of extending Plaintiff’s reduced work
12 schedule leave); and (ii) mislabeling some of his medical leave as
13 “personal necessity leave” instead of properly designating it
14 FMLA/CFRA leave.1 With respect to the Fourteenth Amendment,
15
1
16 In Plaintiff's bench trial briefing, Plaintiff has advanced
another claim under the CFRA. Plaintiff quotes California
17 Government Code § 12945.2(a) which provides in pertinent part:
"Family care and medical leave requested pursuant to this
18
subdivision shall not be deemed to have been granted unless the
19 employer provides the employee, upon granting the leave request, a
guarantee of employment in the same or a comparable position upon
20 the termination of the leave." Plaintiff argues that, in
21 connection with his request for an extension of his medical leave,
which ultimately lead to Plaintiff taking full-time medical leave,
22 the County failed to guarantee employment in the same or a
comparable position upon its conclusion. According to Plaintiff,
23 the result of this failure is that Plaintiff's requested extension
24 of leave is "deemed DENIED by operation of law." This theory of
CFRA liability, regardless of whether it has any merit, is not
25 encompassed within the Final Pretrial Order (Doc. 328), entered May
6, 2009. "A pretrial order generally supersedes the pleadings, and
26 the parties are bound by its contents." Patterson v. Hughes
27 Aircraft Co., 11 F.3d 948, 950 (9th Cir. 1993). The Final Pretrial
Order did not encompass Plaintiff's claim that by operation of law,
28 the County's purported failure to guarantee employment in the same
4
1 Plaintiff claims that his placement on administrative leave with

2 pay deprived him of property without due process in violation of
3 the Fourteenth Amendment. Plaintiff has requested injunctive
4 relief with respect to his FMLA/CFRA claim and damages ($116,501)
5 with respect to his due process claim. All of these claims are
6 encompassed in the Final Pretrial Order.
7 The Court has considered all the submissions of the parties
8 and enters the following Findings of Fact and Conclusions of Law.
9 To the extent that any finding of fact may be interpreted as a
10 conclusion of law, or the converse, the finding is so intended.
11 III. Findings Of Fact
12 1. Pursuant to contract, Defendant County employed Plaintiff
13 from October 24, 2000, to October 4, 2007. Plaintiff worked for
14 the County as a core physician, specifically a pathologist, at Kern
15 Medical Center.
16 2. Kern Medical Center (“KMC”) is a hospital owned and
17 operated by the County.
18 3. On October 24, 2000, Plaintiff and the County executed a
19 term employment contract. (Pl. Ex. 120.) Attached to this term
20
21
or comparable position constituted a denial of his request for an
22 extension of his medical leave. Not only is this claim absent from
the Final Pretrial Order, it also does not appear in Plaintiff's
23 Second Amended Complaint (Doc. 241) or in Plaintiff's Trial Brief
24 (Doc. 325). More importantly no evidence was adduced at trial on
this claim. The County would be manifestly prejudiced by
25 introduction of a new claim at this late stage after the trial
evidence is closed. The parties did not stipulate to submit this
26 particular claim to a bench trial, and no motion was made to
27 include this claim within the confines of the case. Accordingly,
Plaintiff cannot assert this claim and it is not a proper subject
28 of the bench trial portion of this case.
5
1 employment contract is Exhibit “A” which is part of the agreement.

2 Exhibit A provides that Plaintiff “shall not bill or retain
3 proceeds for any professional services performed by Core Physician
4 [Plaintiff] at [Kern] Medical Center until such time as this
5 Agreement is amended . . . .” The agreement further provides that
6 “KMC shall bill and retain all professional fees for professional
7 services performed at [Kern] Medical Center.”
8 4. Plaintiff and the County executed another term employment
9 contract effective October 5, 2002 (Pl. Ex. 139), which terminated
10 the prior contract. This new contract provided for a term of
11 October 5, 2002, to October 4, 2007. Unlike the prior agreement,
12 this agreement granted Plaintiff the right to earn and receive
13 professional fees.
14 5. The employment contract contains no provision about
15 renewal.
16 6. At all relevant times, the FMLA/CFRA applied to the
17 County.
18 7. The County provided Plaintiff with a reduced work
19 schedule medical leave under the FMLA/CFRA from December 16, 2005,
20 to April 16, 2006.
21 8. In April 2006, Plaintiff submitted a request to extend
22 his medical leave. (Pl. Ex. 250). In connection with his request,
23 Plaintiff submitted a form entitled Certification of Health Care
24 Provider, Medical Leave Of Absence. (Pl. Ex. 249). This form is
25 signed by Paul Riskin, M.D., a psychiatrist, and dated April 26,
26 2006. On the form, there is a question which asks whether “it is
27 medically necessary for employee/patient to be off work on an
28 intermittent basis or to work less than the employee’s normal work
6
1 schedule in order to be treated for [a] serious health condition.”

2 This question is answered “yes” followed by the statement: “[t]his
3 employee is unable to work full time and requires part-time or less
4 to avoid worsening of his serious medical condition.” Another part
5 of the form asks Dr. Riskin to provide the estimated number of
6 hours per day the employee (Plaintiff) is able to work and the
7 written response indicates “1-2” days per week.
8 9. On April 28, 2006, Plaintiff attended a meeting regarding
9 his medical leave situation. Those present at the meeting included
10 Plaintiff and three other individuals: Peter Bryan, then CEO of
11 KMC, Karen Barnes, the County Counsel, and Steve O’Connor from
12 Human Resources.
13 10. After the April 28 meeting, Plaintiff went on full-time
14 medical leave under the FMLA/CFRA until June 16, 2006. As the
15 parties stipulated, Plaintiff took medical leave from December 16,
16 2005, to June 16, 2006.
17 11. In connection with the April 28 meeting, Bryan composed
18 a memorandum (Pl. Ex. 251) summarizing the meeting in his words. In
19 the memorandum, Bryan states: “I also mentioned that after Monday
20 [May 1, 2006], it would be preferable for you not to have an
21 intermittent work schedule and it would be easier on the department
22 to just have you on leave until your status is resolved.” Bryan
23 testified that it was Plaintiff’s idea to go on full-time medical
24 leave. This trial testimony conflicts with Bryan’s deposition
25 testimony, which counsel read in open court, that Bryan did not
26 recollect Plaintiff saying, either way, whether he (Plaintiff)
27 wanted to go on full-time leave or not.
28 12. Plaintiff testified that he requested an extension of
7
1 his modified work schedule and that, during the meeting, Bryan
2 conveyed a desire to have a full-time department chair. Plaintiff
3 described Bryan’s communication as one-way. Plaintiff testified
4 that he really had no choice to refuse full-time leave and he did
5 not believe raising an objection to the full-time leave would do
6 any good.
7 13. Bryan required Plaintiff to inform him (Bryan) by June
8 16, 2006, whether Plaintiff would resign or return to work full-
9 time. Prior to that date, Plaintiff sent a correspondence to Bryan
10 (Pl. Ex. 256) in which Plaintiff explained that he underwent nasal
11 surgery in May and subsequently fractured his foot. In the
12 correspondence, Plaintiff asked for an extension on the June 16
13 deadline. Bryan responded to Plaintiff’s correspondence in an e-
14 mail dated June 13 (Pl. Ex. 267 at 0001526) followed up by a letter
15 dated June 14 (Pl. Ex. 267 at 0001525). Bryan informed Plaintiff
16 that he would grant Plaintiff a Personal Necessity Leave for ninety
17 (90) days. Plaintiff took that Personal Necessity Leave. As Bryan
18 testified, the Personal Necessity Leave started June 16, 2006.
19 14. After going on Personal Necessity Leave, Plaintiff and
20 the County executed an amendment to Plaintiff’s employment
21 agreement effective October 3, 2006. (Pl. Ex. 283.) The amendment
22 reduced Plaintiff’s base salary and altered his job duties. The
23 amendment changed Section 1 of Article II (Compensation) in the
24 employment agreement and also replaced Exhibit “A” to the
25 employment agreement with Exhibit “A” of the amendment. The
26 amendment did not change the other terms of the employment
27 agreement, which remained in full force and effect.
28 15. Plaintiff resumed working for the County at KMC under the
8
1 employment agreement as amended.
2 16. Defendant County subsequently placed Plaintiff on paid
3 administrative leave on December 7, 2006.
4 17. David Culberson, the Interim Chief Executive Officer,
5 decided to place Plaintiff on paid administrative leave. He made
6 the decision with the input and participation of Steve O’Connor
7 from Human Resources, Dr. Dutt (Chair of the Pathology Department),
8 Karen Barnes (County Counsel), and Margo Raison (Labor Counsel).
9 18. The County placed Plaintiff on paid administrative leave
10 via letter dated December 7, 2006, signed by Steve O’Connor on
11 behalf of Culberson. (Pl. Ex. 317.) The letter reads:
12 This is to notify you that you are being placed on

administrative leave with pay effective immediately. You
13 will remain in this status pending resolution of a
personnel matter. Pursuant to Kern County Policy and
14 Administrative Procedures Manual section 124.3, during
this period of paid administrative leave, you are to
15 remain at home and available by telephone during normal
business hours, specifically, Monday through Friday
16 between the hours of 8 a.m. and 5 p.m. Further, during
this leave period, you are not to come to Kern Medical
17 Center (KMC) or its satellite facilities or contact any
employee or faculty member of KMC for any reason other
18 than seeking medical attention. In accordance with KMC
policy, access to and usage of any and all equipment or
19 systems has been suspended.
20 Failure to comply with the instructions of this letter is

grounds for disciplinary action up to and including
21 termination of your employment with the County of Kern.
22 Please bring to my attention any request you may have to

access hospital premises or personnel during this time.
23 I may be reached through my assistant . . . .
24 19. Then-existing section 124 of the Kern County Policy and
25 Administrative Procedures Manual (Pl. Ex. 104) is entitled
26 “Disciplinary Actions” and contains three subsections (124.1,
27 124.2, 124.3). Section 124.3 entitled “Administrative Leave with
28 Pay” provides:
9
1 A department head may place an employee on administrative

leave with pay if the department head determines that the
2 employee is engaged in conduct posing a danger to County
property, the public or other employees, or the continued
3 presence of the employee at the work site will hinder an
investigation of the employee's alleged misconduct or
4 will severely disrupt the business of the department.
5 During the administrative leave, the employee shall be

ordered to remain at home and available by telephone
6 during the normally assigned work day. A department head
may, if necessary, adjust the employee's work schedule to
7 provide availability during normal business hours, Monday
through Friday, 8:00 AM to 5:00 PM. A department head may
8 not order an administrative leave with pay for a period
in excess of five assigned workdays within a single pay
9 period without the written authorization of the Employee
Relations Officer in the County Administrative Office.
10 Changes in duty status following the issuance of a notice
of proposed action are as provided in Civil Service Rule
11 1700 st. seq., not this section.
12
20. Plaintiff’s operative employment agreement provides that
13
Plaintiff is subject to “all applicable KMC and County policies and
14
procedures.” (Pl. Ex. 139 at 139.014.)
15
21. Plaintiff remained on paid administrative leave until his
16
employment agreement expired on October 4, 2007.
17
22. Plaintiff continued to receive his base salary while on
18
administrative leave. Culberson acknowledged, however, that he was
19
aware that by placing Plaintiff on administrative leave, Plaintiff
20
would not be able to earn professional fees (which Plaintiff could
21
earn in accordance with his employment agreement). Plaintiff's
22
expert witness, Stephanie Rizzardi, testified that Plaintiff lost
23
professional fees while on paid administrative leave.
24
23. The jury awarded damages for lost professional fees and
25
earnings.
26
24. In connection with Plaintiff’s placement on paid
27
administrative leave, the County did not provide Plaintiff with a
28
10
1 hearing, whether before or after his paid administrative leave
2 commenced, and did not provide him with an explanation of the
3 “personnel matter” or reason for the leave.
4 IV. CONCLUSIONS OF LAW
5 A. FMLA/CFRA Claim
6 1. “Article III, § 2, of the Constitution confines federal
7 courts to the decision of ‘Cases’ or ‘Controversies.’” Arizonans
8 for Official English v. Arizona, 520 U.S. 43, 64 (1997). Standing
9 and mootness are aspects of the case-or-controversy requirement.
10 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
11 528 U.S. 167, 180 (2000); Arizonans for Official English, 520 U.S.
12 at 64, 67; ACLU v. Lomax, 471 F.3d 1010, 1015-16 (9th Cir. 2009).
13 2. In terms of standing, “Article III's ‘case’ or
14 ‘controversy’ provision creates an irreducible constitutional
15 minimum of standing for all federal court plaintiffs.” M-S-R Pub.
16 Power Agency v. Bonneville Power Admin., 297 F.3d 833, 843 (9th
17 Cir. 2002) (internal quotation marks omitted). Whether a plaintiff
18 has standing is evaluated as of time the operative complaint is
19 filed. See County of Riverside v. McLaughlin, 500 U.S. 44, 51
20 (1991) (analyzing standing as of the time the “second amended
21 complaint was filed”); Thomas v. Mundell, __ F.3d __, 2009 WL
22 2032335, at *4 (9th Cir. July 15, 2009). In terms of mootness,
23 Article III’s case-or-controversy provision also creates a
24 restriction, “at all stages of [litigation], not merely at the time
25 the complaint is filed,” as to which cases are “fit for federal-
26 court adjudication.” Arizonans for Official English, 520 U.S. at
27 67.
28 3. “The federal courts are under an independent obligation
11
1 to examine their own jurisdiction, and standing is perhaps the most
2 important of [the jurisdictional] doctrines.” FW/PBS, Inc. v. City
3 of Dallas, 493 U.S. 215, 231 (1990) (alteration in original)
4 (internal quotation marks omitted). The independent obligation to
5 examine jurisdiction extends to mootness. Lomax, 471 F.3d at 1015-
6 16.
7 4. A plaintiff in federal court “must demonstrate standing
8 separately for each form of relief sought,” Friends of the Earth,
9 Inc., 528 U.S. at 185, “whether it be injunctive relief, damages or
10 civil penalties,” Bates v. United Parcel Service, Inc., 511 F.3d
11 974, 985 (9th Cir. 2007). Likewise, such claims must be analyzed
12 to determine whether they are moot. See, e.g., Consejo de
13 Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d
14 1157, 1170 (9th Cir. 2007).
15 5. Standing requires that “(1) the plaintiff suffered an
16 injury in fact, i.e., one that is sufficiently ‘concrete and
17 particularized’ and ‘actual or imminent, not conjectural or
18 hypothetical,’ (2) the injury is ‘fairly traceable’ to the
19 challenged conduct, and (3) the injury is ‘likely’ to be ‘redressed
20 by a favorable decision.’” Bates, 511 F.3d at 985 (quoting Lujan v.
21 Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
22 6. “[F]or a plaintiff seeking prospective injunctive
23 relief,” such as Plaintiff here, for standing to exist, the
24 plaintiff
25 “must demonstrate that he has suffered or is threatened

with a concrete and particularized legal harm coupled
26 with a sufficient likelihood that he will again be
wronged in a similar way. As to the second inquiry, he
27 must establish a real and immediate threat of repeated
injury. . . . In addition, the claimed threat of injury
28 must be likely to be redressed by the prospective
12
1 injunctive relief.”
2 Bates, 511 F.3d at 985 (citations and internal quotation marks
3 omitted). With respect to the last inquiry, “Art. III judicial
4 power exists only to redress or otherwise to protect against injury
5 to the complaining party.” Vermont Agency of Natural Resources v.
6 United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (emphasis
7 in original) (internal quotation marks omitted).2
8 7. Even if a plaintiff has standing with respect to a claim
9 for relief at the time the complaint is filed, mootness
10 considerations “require courts to look to changing circumstances
11 that arise after the complaint is filed,” and “[i]f a live
12 controversy no longer exists, the claim is moot.” Lomax, 471 F.3d
13 at 1016 (internal quotation marks omitted). “The
14 case-or-controversy requirement demands that, through all stages of
15 federal judicial proceedings, the parties continue to have a
16 personal stake in the outcome of the lawsuit.” Carty v. Nelson, 426
17 F.3d 1064, 1071 (9th Cir. 2005).
18 8. With respect to his FMLA/CFRA claim, Plaintiff does not
19
2
Without citing any authority, Plaintiff argues that the
20 federal concern for standing is “ameliorated where state law
21 specifically authorizes injunctive relief.” The case-or-
controversy requirement, mandated by the United States Constitution
22 and applicable in federal court, is not “ameliorated” by state law.
In federal court, Article III standing requirements are equally
23 applicable to state law claims. See Qwest Corp. v. City of
24 Surprise, 434 F.3d 1176, 1180 (9th Cir. 2006); Hangarter v.
Provident Life & Accident Ins. Co., 373 F.3d 998, 1021-22 (9th Cir.
25 2004) (reversing district court’s conclusion that plaintiff had
standing to pursue an injunctive relief claim under state law); Lee
26 v. Am. Nat’l Ins. Co., 260 F.3d 997, 1001-02 (9th Cir. 2001);
27 Cantrell v. City of Long Beach, 241 F.3d 674, 683 (9th Cir. 2001).
Plaintiff’s claim for injunctive relief under the CFRA is not
28 exempt from Article III standing requirements.
13
1 seek damages; rather he seeks “prospective injunctive relief in the
2 form of an order requiring [Kern County] to train its staff to
3 proficiency regarding compliance” with “reduced work schedule leave
4 rights” under the FMLA/CFRA.
5 9. In Walsh v. Nevada Department of Human Resources, the
6 Ninth Circuit concluded that the plaintiff, Nancy Walsh, “lacked
7 standing to request injunctive relief to force the Department to
8 adopt and enforce lawful policies regarding discrimination based on
9 disability.” 471 F.3d 1033, 1036 (9th Cir. 2006). The court
10 determined that the plaintiff failed to satisfy the redressability
11 requirement of standing that she “is likely to be redressed by the
12 relief she seeks.” Id. at 1037. The court noted that the
13 plaintiff “is no longer an employee of the Department” and “there
14 is no indication in the complaint that [she] has any interest in
15 returning to work” for the defendant. Id. “Therefore, she would not
16 stand to benefit from an injunction requiring the anti-
17 discriminatory policies she requests at her former place of work.”
18 Id. She thus “lacked standing to sue for injunctive relief from
19 which she would not likely benefit.” Id.; cf. Arizonans for
20 Official English, 520 U.S. at 67 (concluding that a plaintiff’s
21 claim for injunctive relief as to an Arizona constitutional
22 provision, Article XXVIII, was moot; provision applied only to
23 public employees, and after the commencement of litigation
24 plaintiff “left her state job in April 1990 to take up employment
25 in the private sector, where her speech was not governed by Article
26 XXVIII” at which “point, it became plain that she lacked a still
27 vital claim for prospective relief.”).
28 10. Judicial notice of the Second Amended Complaint, filed
14
1 October 7, 2008, is taken.
2 11. Plaintiff’s employment relationship with the County ended
3 on October 4, 2007, well before he filed his Second Amended
4 Complaint. The Second Amended Complaint does not request
5 Plaintiff’s reinstatement or allege any intent to resume employment
6 with the County.
7 12. The evidence at trial did not demonstrate that Plaintiff
8 sought re-employment with the County at or around the time he filed
9 the Second Amended Complaint (or thereafter). The County had no
10 interest in renewing Plaintiff’s employment contract when it
11 expired in October 2007 or in retaining him as an employee at or
12 around the time he filed the Second Amended Complaint (or
13 thereafter).
14 13. Viewing the circumstances as they existed at the time of
15 the operative pleading, the evidence shows no “sufficient
16 likelihood that [Plaintiff] will again be wronged [by the County]
17 in a similar way,” Bates, 511 F.3d at 985 (internal quotation marks
18 omitted), as the County no longer employs him and there is no
19 reasonable prospect that Plaintiff will resume employment with the
20 County.
21 14. In addition, just as in Walsh, Plaintiff “would not stand
22 to benefit from an injunction,” 471 F.3d at 1037, that requires the
23 County to train its staff regarding reduced work schedule leave
24 rights under the FMLA/CFRA. "Art. III judicial power exists only
25 to redress or otherwise to protect against injury to the
26 complaining party." Vermont Agency of Natural Resources, 529 U.S.
27 at 771 (emphasis in original) (internal quotation marks omitted).
28 Plaintiff’s requested injunction would not provide him, the
15
1 complaining party, any redress or protection against a future
2 violation of the FMLA/CFRA as he is no longer employed, and not
3 likely to be employed, by the County and subject to the staff whom
4 he requests be “trained.”3
5 15. Plaintiff lacks standing to request injunctive relief to
6 require the staff of the County to be trained on reduced work
7 schedule leave rights under the FMLA/CFRA.
8 16. Even assuming, arguendo, that Plaintiff had standing at
9 the time of the operative pleading, Plaintiff’s claim for
10 injunctive relief is moot. He is not an employee of the County, is
11 not seeking reinstatement, and there is no reasonable likelihood
12 that he will resume employment with the County. He has no personal
13 stake in an injunction which requires staff of the County to be
14 trained. See Arizonans for Official English, 520 U.S. at 68 n.22
15 (“Mootness has been described as the doctrine of standing set in a
16 time frame: The requisite personal interest that must exist at the
17 commencement of the litigation (standing) must continue throughout
18 its existence (mootness).”) (internal quotation marks omitted).
19
3
Plaintiff argues that Armstrong v. Davis, 275 F.3d 849, 861
20 (9th Cir. 2001) supports the conclusion that Plaintiff has
21 standing. In Armstrong, however, it was clear that the plaintiffs
(there disabled prisoners and parolees) faced the prospect of
22 further discrimination by the State of California during the parole
and parole revocation hearing process. Here, by contrast, Plaintiff
23 does not face the prospect of further FMLA/CFRA-proscribed activity
24 by the County. Moreover, consistent with the Ninth Circuit’s later
decision in Bates, Armstrong expressly recognized that, for
25 standing purposes, where a “plaintiff seeks injunctive relief, he
must demonstrate that he is realistically threatened by a
26 repetition of [the violation].” Armstrong, 275 F.3d at 860-861
27 (emphasis added) (alteration in original) (internal quotation marks
omitted). Plaintiff does not face a realistic threat of repetition
28 of the alleged FMLA/CFRA violations.
16
1 17. Plaintiff lacks standing to pursue his injunctive relief
2 claim under the FMLA/CFRA or, if arguendo standing exists, the
3 claim is moot. Accordingly, the claim is dismissed.4
4 B. § 1983 Claim – Procedural Due Process
5 18. Section 1983 creates a federal cause of action for the
6 deprivation, under color of state law, of rights guaranteed by the
7 United States Constitution. San Bernardino Physicians' Servs. Med.
8 Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1407 (9th
9 Cir. 1987). At issue here is the right to procedural due process
10 under the Fourteenth Amendment. Plaintiff claims that his
11 placement on paid administrative leave deprived him of a property
12 interest without due process and he requests damages. Plaintiff
13 has standing to assert this claim for relief, and it is not moot.
14 19. “The Fourteenth Amendment protects individuals against
15 deprivation of liberty or property by the government without due
16 process.” Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th
17 Cir. 1993). In this case, Plaintiff claims a deprivation of a
18 property interest (and not a liberty interest). To prevail on his
19
4
In his briefing, Plaintiff also requests an injunction
20 requiring the County to train its staff to proficiency regarding
21 “compliance with disability rights under FEHA” and “protection
against retaliation under” the FMLA/CFRA. The parties did not
22 stipulate to submit the FEHA disability claims or the FMLA/CFRA
retaliation claims, or the associated relief, to a bench trial.
23 Plaintiff’s requested injunctive relief – to train County staff to
24 proficiency regarding compliance with disability rights under FEHA
and protection against FMLA/CFRA retaliation – goes beyond the
25 confines of the stipulated bench trial and cannot be considered.
Plaintiff also lacks standing with respect to these claims for
26 injunctive relief (and even assuming he had standing, these claims
27 are moot). Nonetheless, as a practical matter, it is inconceivable
that the County is not knowledgeable of its employment law duties
28 placed in issue by the entirety of this case.
17
1 constitutional claim, Plaintiff must establish: “(1) a property
2 interest protected by the Constitution; (2) a deprivation of the
3 interest by the government; and a (3) lack of required process.”
4 Ulrich v. City & County of San Francisco, 308 F.3d 968, 974 (9th
5 Cir. 2002).
6 i. Property Interest
7 20. “Property interests, of course, are not created by the
8 Constitution. Rather they are created and their dimensions are
9 defined by existing rules or understandings that stem from an
10 independent source such as state law-rules or understandings that
11 secure certain benefits and that support claims of entitlement to
12 those benefits.” Bd of Regents of State Colls. v. Roth, 408 U.S.
13 564, 577 (1972). Federal constitutional law, however, helps
14 determine “whether that interest rises to the level of ‘legitimate
15 claim of entitlement,’” i.e., a cognizable property interest, for
16 Fourteenth Amendment purposes. Loehr v. Ventura County Cmty. Coll.
17 Dist., 743 F.2d 1310, 1314 (9th Cir. 1984) (internal quotation
18 marks omitted); see also Town of Castle Rock, Colo. v. Gonzales,
19 545 U.S. 748, 756-57 (2005).
20 21. No cognizable property interest “can exist in the outcome
21 of a decision unmistakably committed . . . to the discretion of the
22 [public entity].” Ulrich, 308 F.3d at 976 (alteration in original)
23 (internal quotation marks omitted). Accordingly, to have a
24 legitimate claim of entitlement to something, such as a benefit,
25 the decision to grant or take it away must be removed from agency
26 discretion. See Peacock v. Bd. of Regents of the Univs. & State
27 Colls. of Ariz., 510 F.2d 1324, 1327 (9th Cir. 1975); see also
28 Gonzales, 545 U.S. at 756; Logan v. Zimmerman Brush Co., 455 U.S.
18
1 422, 430 (1982). Thus, “a state law which limits the grounds upon
2 which an employee may be discharged, such as conditioning dismissal
3 on a finding of cause, creates a constitutionally protected
4 property interest” in continued employment. Dyack v. Commonwealth
5 of the Northern Mariana Islands, 317 F.3d 1030, 1033 (9th Cir.
6 2003) (internal quotation marks omitted). On the other hand, where
7 “a state employee serves at will, he or she has no reasonable
8 expectation of continued employment, and thus no property right.”
9 Id. at 1033; see also Clements v. Airport Auth. Of Washoe County,
10 69 F.3d 321, 331 (9th Cir. 1995). “The hallmark of property . . .
11 is an individual entitlement” “which cannot be removed except ‘for
12 cause.’” Logan, 455 U.S. at 430.
13 22. Independent sources from which property interests or
14 individual entitlements can arise include, among others, a
15 municipality’s personnel rules, McGraw v. City of Huntington Beach,
16 882 F.2d 384, 390 (9th Cir. 1989), or the terms of an employment
17 contract, San Bernardino Physicians’ Services Medical Group, Inc.,
18 825 F.2d at 1407-08; Walker v. Northern San Diego County Hospital
19 District, 135 Cal. App. 3d 896, 901 (1982).
20 a. Property Interest At Stake
21 23. Plaintiff entered into a written employment agreement
22 with the County in October 2000 (Pl. Ex. 120) setting a term of
23 employment from October 24, 2000, to November 30, 2006. This
24 written agreement was voluntarily terminated by the parties’
25 consent on October 5, 2002.
26 24. Plaintiff entered into a subsequent written employment
27 agreement with the County effective October 5, 2002 through October
28 4, 2007. This agreement was in effect at the time of Plaintiff’s
19
1 placement on paid administrative leave (with the amendments as

2 noted above). According to the terms of this agreement (paragraph
3 10), and as testified to by Karen Barnes (County Counsel),
4 Plaintiff was not a civil service employee.
5 25. Pursuant to California Government Code Section 31000
6 (which is specifically referenced in Plaintiff’s employment
7 agreement) the County is expressly authorized to “contract” with
8 individuals for the provision of “special services” including
9 “medical” services.5 See Cal. Gov’t Code § 31000. Plaintiff’s
10 contract with the County was one for special services as authorized
11 by § 31000. In turn, Section 3.04.020 of Title 3 of the Kern
12 County Code provides that “[a]ll county employees shall be included
13 in the civil service system . . . except,” among others, “[a]ll
14
5
15 California Government Code § 31000 reads as follows: “The
board of supervisors may contract for special services on behalf of
16 the following public entities: the county, any county officer or
department, or any district or court in the county. Such contracts
17 shall be with persons specially trained, experienced, expert and
18 competent to perform the special services. The special services
shall consist of services, advice, education or training for such
19 public entities or the employees thereof. The special services
shall be in financial, economic, accounting (including the
20 preparation and issuance of payroll checks or warrants),
21 engineering, legal, medical, therapeutic, administrative,
architectural, airport or building security matters, laundry
22 services or linen services. They may include maintenance or
custodial matters if the board finds that the site is remote from
23 available county employee resources and that the county's economic
24 interests are served by such a contract rather than by paying
additional travel and subsistence expenses to existing county
25 employees. The board may pay from any available funds such
compensation as it deems proper for these special services. The
26 board of supervisors may, by ordinance, direct the purchasing agent
27 to enter into contracts authorized by this section within the
monetary limit specified in Section 25502.5 of the Government
28 Code.”
20
1 persons providing services to the county under contract . . . .” §

2 3.04.020.6 Plaintiff provided services to the County under
3 contract and was not governed by the civil service rules. Any
4 property interest Plaintiff had is not confined by, and must arise
5 from an authority other than, the civil service rules.
6 26. Plaintiff’s written employment agreement gave Plaintiff
7 a right to be employed as a core physician for five years (from
8 October 5, 2002 to October 4, 2007). According to the terms of his
9 agreement, the County could “terminate” the term employment
10 agreement “at any time for cause.” (Emphasis added.) No other part
11 of the agreement gave the County the right to terminate his
12 employment relationship without cause. Accordingly, Plaintiff had
13 a protected property interest in his continued employment through
14 October 4, 2007.
15 27. The County continuously employed Plaintiff at full pay,
16 albeit on leave, through the remainder of his term. Nonetheless,
17 Plaintiff can establish a due process violation based on his
18 placement on administrative leave if Plaintiff’s property interest
19 in continued employment included a property interest in “active
20 duty,” Deen v. Darosa, 414 F.3d 731, 734 (7th Cir. 2005), or a
21 “property interest in avoiding placement on administrative leave
22 with pay,” Qualls v. Cook, 245 F. App’x 624, 625 (9th Cir. 2007).”7
23 28. Plaintiff’s employment contract specified that he was
24 subject to “all applicable KMC and County policies and procedures.”
25
6
26 The Kern County Code is available on LexisNexis.
7
27 The facts in Deen are distinguishable but the terminology
“active duty” is borrowed as a useful alternative label for the
28 interest referred to in Qualls as the “property interest in
avoiding placement on administrative leave with pay.”
21
1 One such policy was the “Kern County Policy and Administrative
2 Procedures Manual.” Culberson’s letter notified Plaintiff that he
3 was being placed on administrative leave on December 7, 2006. The
4 letter invoked Kern County Policy and Administrative Procedures
5 Manual section 124.3.
6 29. The general heading of section 124 is “Disciplinary
7 Actions.” Section 124.3, entitled “Administrative Leave with Pay,”
8 specifies grounds on which an employee can be placed on paid
9 administrative leave:
10 A department head may place an employee on administrative
leave with pay if the department head determines that the
11 employee is engaged in conduct posing a danger to County
property, the public or other employees, or the continued
12 presence of the employee at the work site will hinder an
investigation of the employee's alleged misconduct or
13 will severely disrupt the business of the department.
14
30. No other provision of or governing Plaintiff's term
15
employment agreement granted the County the right to place
16
Plaintiff on paid administrative leave. By specifying the grounds
17
on which Plaintiff could be placed on paid administrative leave,
18
and by not contractually providing for any other right to place
19
Plaintiff on paid administrative leave, the County implicitly
20
limited its authority to place Plaintiff on paid leave to the
21
specified reasons. See Sanchez v. City of Santa Ana, 915 F.2d 424,
22
429 (9th Cir. 1990).
23
31. This conclusion – that the County limited its authority
24
to place Plaintiff on paid leave to the specified reasons - is also
25
bolstered by Culberson’s testimony. Mr. Culberson testified that
26
he, in conjunction with others, came upon section 124.3 when
27
determining whether there were grounds for placing someone on paid
28
22
1 administrative leave. This confirms that the County considered

2 section 124.3 as the source of its authority to place Plaintiff on
3 paid administrative leave. Culberson further testified that, in
4 accordance with section 123.4 of the Kern County Policy and
5 Administrative Procedures Manual, the County had the ability to
6 place employees on paid administrative leave, that he and those who
7 aided his decision made sure the policy was followed, and he, in
8 fact, followed the policy in placing Plaintiff on administrative
9 leave.
10 32. Culberson testified that he determined Plaintiff's
11 continued presence would "severely disrupt the business of the
12 department" as stated in section 124.3. Culberson’s acknowledgment
13 that 124.3 provided the ability to place employees on paid
14 administrative leave, and Culberson’s claimed faithful adherence to
15 that policy, supports the conclusion that the County limited its
16 authority to place Plaintiff on administrative leave to the reasons
17 specified in section 124.3.
18 33. Testimony from County Counsel, Karen Barnes, does not
19 alter the conclusion. Barnes testified that, according to her
20 interpretation and that of the County Counsel’s office, section
21 124.3 provides “guidance” to the County as the employer for the
22 placement of an employee on paid administrative leave, which
23 includes placement of the employee at home. In its bench trial
24 briefing, the County does not squarely argue that Barnes’s
25 “guidance” testimony demonstrates that the County is not limited to
26 the grounds specified in section 124.3 when deciding whether to
27 place an employee on administrative leave. Any such argument
28
23
1 would, for several reasons, lack merit. Barnes did not testify
2 that there are additional grounds, besides those listed in section
3 124.3, on which an employee can be placed on paid administrative
4 leave or that the grounds listed in section 124.3 are otherwise not
5 exhaustive. Moreover, Barnes’s testimony is consistent with the
6 conclusion that the County’s authority to place Plaintiff on
7 administrative leave was limited to the grounds specified in
8 section 124.3. On its face, section 124.3 does provide “guidance”
9 in the sense that it tells the County when it may place an employee
10 on paid administrative leave. Finally, if the County wanted to
11 provide itself with broad discretion to place an employee on paid
12 administrative leave whenever the County saw fit, it could have
13 easily drafted such language. However, section 124.3 sets forth a
14 concrete set of grounds on which an employee may be placed on paid
15 administrative leave. Barnes’s testimony does not negate the
16 conclusion that the County limited its authority to place Plaintiff
17 on paid administrative leave to the reasons specified in section
18 124.3.
19 34. In its bench trial briefing, the County argues that no
20 language in section 124.3 grants rights to employees, and this
21 interpretation is consistent with Barnes’s testimony that the
22 section provides “guidance” to the County as the employer. This
23 argument misses the mark: the issue is not whether the provision,
24 on its face, grants an employee the right to due process; rather
25 the issue is whether section 124.3 creates a property right because
26 it limits the discretion of the County to place an employee on paid
27 administrative leave.
28
24
1 35. The evidence preponderates to show that by delineating

2 the grounds on which Plaintiff could be placed on paid
3 administrative leave and by not providing for any additional
4 grounds, the County limited its authority to place Plaintiff on
5 paid administrative leave to the grounds specified. The County did
6 not have unfettered discretion to place Plaintiff on paid
8 36. The presence of some limitation on a decision-maker’s
9 authority does not necessarily mean a property interest has been
10 created. Compare Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir.
11 1980) (concluding that a Nevada statute did not create a legitimate
12 claim of entitlement to a license where “[t]he only substantive
13 restriction imposed upon the [decision-maker’s] exercise of
14 authority [was] the requirement that the basis for its decision be
15 reasonable”) with Parks v. Watson, 716 F.2d 646, 657 (9th Cir.
16 1983) (concluding that a property interest existed where a
17 statutory scheme placed “significant substantive restrictions” on
18 the decision-maker’s authority to “vacate” city streets despite the
19 fact that the decision-maker was directed to consider “the public
20 interest;” and noting that “a determination as to whether the
21 public interest will be prejudiced, while obviously giving a
22 certain amount of play in the decisional process, defines an
23 articulable standard.”). The degree of the limitation on the
24 decision-making helps determine whether the limitation creates a
25 property interest. See Ressler v. Pierce, 692 F.2d 1212, 1215 (9th
26 Cir. 1982); see also Stiesberg v. California, 80 F.3d 353, 357 (9th
27 Cir. 1996) (recognizing that a “significant substantive restriction
28
25
1 on decision making” can create a property interest) (internal

2 quotation marks omitted).
3 37. In Cleveland Board of Education v. Loudermill, 470 U.S.
4 532, 539 (1985), the Supreme Court concluded that certain public
5 employees had a property interest in continued employment. The
6 limitation on decision-making authority in Loudermill provided that
7 employees could not be dismissed except “for incompetency,
8 inefficiency, dishonesty, drunkenness, immoral conduct,
9 insubordination, discourteous treatment of the public, neglect of
10 duty, violation of such sections or rules of the director of
11 administrator services or the commission, or any other failure of
12 good behavior, or any other acts of misfeasance, malfeasance, or
13 nonfeasance in office.” Id. at 539 n.4.
14 38. In Federal Deposit Insurance Corp. v. Henderson, 940 F.2d
15 465 (9th Cir. 1991), the court concluded that an employee had a
16 property interest in continued employment. The employment contract
17 provided that the decision-maker could terminate the employee
18 without cause upon ninety days advance notice; otherwise the
19 decision-maker could terminate the employee immediately for “cause”
20 and cause was defined in the agreement as including a “breach of
21 the Agreement, illegal activity, and misconduct injurious to the
22 Bank’s interest.” Id. at 470 (emphasis added). Based on the
23 contract provisions, the Ninth Circuit determined that the employee
24 had a property interest in continued employment for ninety days.
25 Id. at 476.
26 39. In Wheaton v. Webb-Petett, 931 F.2d 613, 616-17 (9th Cir.
27 1991), the court concluded that a management employee had a
28
26
1 property interest in continued employment. The limitation on the

2 decision-making authority in Wheaton provided that employees could
3 be removed if “unable or unwilling to fully and faithfully perform
4 the duties of the position satisfactorily.” Id.
5 40. Finally, in Williams v. County of Los Angeles, 22 Cal. 3d
6 731, 736 (1978) the court concluded that a public employee had a
7 property interest in employment where his discharge could occur
8 upon “a showing of unsatisfactory service.”
9 41. Here, the substantive grounds on which Plaintiff could be
10 placed on paid administrative leave set forth in section 124.3 were
11 just as limiting on decision-making authority as, if not more
12 restrictive than, the grounds for dismissal in Loudermill,
13 Henderson, Wheaton and Williams. Plaintiff has proved, by a
14 preponderance of the evidence, that the County’s authority to place
15 Plaintiff on administrative leave was constrained to a significant
16 degree. Section 124.3 sets forth “what is, in essence, a ‘for
17 cause standard,’” Logan, 455 U.S. at 431, for placing an employee
18 on paid administrative leave. “Once that characteristic is found,
19 the types of interests protected as ‘property’ are varied and, as
20 often as not, intangible, relating to the whole domain of social
21 and economic fact.” Id. at 430 (internal quotation marks omitted).
22 42. The evidence preponderates to show that Plaintiff had a
23 cognizable property interest, or a legitimate claim of entitlement
24 to, active duty (or in avoiding placement on administrative leave
25 with pay). This conclusion is supported by express language in
26 Plaintiff’s employment agreement.
27 43. Plaintiff’s term employment agreement with the County
28
27
1 could not be terminated by the County except “for cause.” Part of

2 the agreement included Plaintiff’s remuneration, which is referred
3 to in the agreement as his “compensation” plan. The total
4 “compensation” plan consists of “base salary,” “professional fee
5 payments” and “other income.” The agreement recognizes that the
6 “purpose of the [compensation] plan is to provide market-based,
7 performance-driven compensation.”
8 44. Given that his agreement expressly provided that he could
9 earn professional fees and that these fees were part of his
10 “performance-driven compensation,” the parties mutually understood
11 that Plaintiff’s compensation was tied to performance, and that
12 Plaintiff would be in a position to perform, i.e., on active duty.
13 Plaintiff’s express contractual right to earn and receive
14 professional fees as part of his total compensation naturally
15 included an ancillary entitlement to not be thwarted from actively
16 performing his services so that he could obtain the fruits of his
17 bargain.
18 45. Plaintiff has proved, by a preponderance of the evidence,
19 that Plaintiff had a cognizable property interest in active duty or
20 in avoiding placement on administrative leave with pay.
21 ii. Deprivation Of A Property Interest
22 46. The County placed Plaintiff on paid administrative leave
23 for several months and, in so doing, deprived him of his property
24 interest in active duty employment. The parties stipulated in the
25 Final Pretrial Order that any acts or omissions of the County were
26 under color of law.
28
28
1 that he was deprived of his property interest in active duty under

2 color of state law. This deprivation had an economic effect that
3 was more than de minimis. Bordelon v. Chi. Sch. Reform Bd. of
4 Trs., 233 F.3d 524, 530 (7th Cir. 2000) (recognizing that, to be
5 actionable, a deprivation of a property interest must have more
6 than de minimis impact).
7 iii. The Process Due
8 48. “[O]nce it is determined that the Due Process Clause
9 applies, the question remains what process is due.” See Loudermill,
10 470 U.S. at 541 (internal quotation marks omitted). Notice and an
11 opportunity to be heard are required fundamental aspects of due
12 process. See Dusenbery v. United States, 534 U.S. 161, 167 (2002)
13 (“[W]e have determined that individuals whose property interests
14 are at stake are entitled to notice and an opportunity to be
15 heard.”) (internal quotation marks omitted); United States v. James
16 Daniel Good Real Property, 510 U.S. 43, 53 (1993) (“The right to
17 prior notice and a hearing is central to the Constitution's command
18 of due process” and some exceptions “to the general rule requiring
19 predeprivation notice and hearing” are “tolerat[ed]” in
20 “extraordinary situations”) (internal quotation marks omitted);
21 Loudermill, 470 U.S. at 546 (“The essential requirements of due
22 process . . . are notice and an opportunity to respond. The
23 opportunity to present reasons, either in person or in writing, why
24 proposed action should not be taken is a fundamental due process
25 requirement.”); Matthews v. Eldrige, 424 U.S. 319, 333 (1976) (“The
26 fundamental requirement of due process is the opportunity to be
27 heard at a meaningful time and in a meaningful manner.”) (internal
28
29
1 quotation marks omitted); United States v. Alisal Water Corp., 431

2 F.3d 643, 657 (9th Cir. 2005) (“At its core, due process requires
3 that a party have adequate notice and opportunity to be heard.”).
4 49. The full scope or precise contours of what process was
5 due need not be determined. The County placed Plaintiff on paid
6 administrative leave summarily without any pre-deprivation or post-
7 deprivation opportunity to be heard. Plaintiff was not afforded
8 the bare minimum of due process.
10 that he was deprived of a property interest in active duty without
11 due process.
12 iv. Damages
13 a. Monell Liability
14 51. In a § 1983 case, a municipality cannot be liable for a
15 constitutional tort on the basis of respondeat superior. Monell v.
16 Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Rather,
17 "[l]iability may attach to a municipality only where the
18 municipality itself causes the constitutional violation." Ulrich,
19 308 F.3d at 984 (internal quotation marks omitted).
20 "[M]unicipalities may be held liable under § 1983 only for acts for
21 which the municipality itself is actually responsible, that is,
22 acts which the municipality has officially sanctioned or ordered."
23 Eggar v. City of Livingston, 40 F.3d 312, 314 (9th Cir. 1994)
24 (internal quotation marks omitted).
25 52. To impose liability on a municipality under § 1983, a
26 plaintiff must identify a municipal "policy" or "custom" that
27 caused the alleged constitutional deprivation. Bd. of the County
28
30
1 Comm’r of Bryan County v. Brown, 520 U.S. 397, 403 (1997); see also
2 Ulrich, 308 F.3d at 984.
3 53. A plaintiff can establish a municipal policy or custom in
4 a number of ways. "A plaintiff can establish a ‘policy or custom'
5 by showing: (1) an express policy that, when enforced, causes a
6 constitutional deprivation; (2) a widespread practice that,
7 although not authorized by written law or express municipal policy,
8 is so permanent and well settled as to constitute a custom or usage
9 with force of law; or (3) . . . that the constitutional injury was
10 caused by a person with final policymaking authority." Megargee v.
11 Wittman, 550 F. Supp. 2d 1190, 1205 (E.D. Cal. 2008). A plaintiff
12 can establish a municipal policy also by "showing that an official
13 with final policymaking authority either delegated that authority
14 to, or ratified the decision of, a subordinate." Menotti v. City of
15 Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (internal quotation
16 marks omitted). In addition, a decision by the municipal entity’s
17 governing body constitutes a policy for Monell purposes. See Brown,
18 520 U.S. at 403; Bateson v. Geisse, 857 F.2d 1300, 1303 (9th Cir.
19 1988); Evers v. Custer County, 745 F.2d 1196, 1203 (9th Cir. 1984).
20 54. The mere existence of a municipal policy or custom is not
21 enough to establish liability. The policy or custom must be the
22 "moving force" behind the alleged constitutional violation. Galen
23 v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007)
24 (quoting Monell, 436 U.S. at 694-95).
25 55. In the Final Pretrial Order, the parties stipulated that
26 "Defendant County placed Plaintiff on paid administrative leave on
27 December 7, 2006." (Emphasis added.) The County’s admission that
28
31
1 the "County" placed Plaintiff on paid administrative leave supports

2 a finding that the County ordered or ratified the placement of
3 Plaintiff on paid administrative leave, which occurred without any
4 attendant due process. In addition, the evidence also
5 preponderates to show that section 124.3 of the Kern County Policy
6 and Procedure Manual constitutes an express policy of the County,
7 and that Culberson, the Chief Executive Officer, relied upon that
8 County policy to place Plaintiff on paid administrative leave.
9 56. County Counsel, Karen Barnes, referred to the Kern County
10 Policy and Administrative Procedures Manual as the "County Policy"
11 and stated that it provided guidance to the County as the employer
12 with respect to placement of an employee on paid administrative
13 leave. This testimony establishes that the Kern County Policy and
14 Administrative Procedures Manual, including section 124.3,
15 constitutes County policy. Culberson’s reliance on the Manual
16 underscores this point. Plaintiff was notified that he was being
17 placed on administrative leave by a letter dated December 7, 2006,
18 issued by Culberson (and signed by Steven O’Connor). The letter
19 cited Kern County Policy and Administrative Procedures Manual
20 section 124.3. Culberson testified that he had the authority, in
21 accordance with 123.4 of the Kern County Policy and Administrative
22 Procedures Manual, to place any employee on administrative leave,
23 "we follow the policy," and the Manual was followed in placing
24 Plaintiff on paid administrative leave. Culberson testified that
25 he concluded that Plaintiff's continued presence would "severely
26 disrupt the business of the department" as stated in section 124.3.
27 57. The evidence preponderates to show that section 124.3 of
28
32
1 the Kern County Policy and Administrative Procedural Manual is an

2 express County policy and that it was the moving force behind
3 Plaintiff’s placement on administrative leave without due process.
4 Section 124.3, which Culberson relied upon, authorized the
5 placement of Plaintiff on paid administrative leave without notice
6 or a hearing, and Culberson testified that Plaintiff’s placement on
7 administrative leave was proper under section 124.3. See Vinyard
8 v. King, 728 F.2d 428, 433 (10th Cir. 1984) (municipal hospital
9 liable for deprivation of a property interest in continued
10 employment without due process where it authorized the employee’s
11 termination without affording due process protections); Kay v. N.
12 Lincoln Hosp. Dist., 555. F. Supp. 527, 529 (D. Or. 1982) (denying
13 summary judgment as to Monell liability where the municipal
14 entity’s written policy authorized the “immediate discharge” of the
15 plaintiff without due process protections); see also Lalvani v.
16 Cook County, No. 98 C 2847, 2000 WL 198459, at *7 n.6 (N.D. Ill.
17 Feb. 14, 2000).
19 that a County policy was actually responsible for the deprivation
20 of his property interest in active duty without due process, i.e.,
21 that a policy of the County was the moving force behind the
22 constitutional deprivation.
23 b. Amount Of Damages
24 59. Based on the evidence, the deprivation of Plaintiff’s
25 property interest in active duty had an economic impact on his
26 professional fees. Plaintiff requests a damages award in an amount
27 that represents the professional fees that he claims to have lost
28
33
1 during the period that he was on paid administrative leave.

2 Compensatory damages can be awarded for procedural due process
3 violations. See Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir.
4 1988). Plaintiff cannot be awarded additional amounts for his
5 claimed loss of professional fees as a result of his placement on
7 60. In the jury trial portion of this case, the jury
8 concluded that Plaintiff’s placement on paid administrative leave
9 was unlawful under the FMLA and the FEHA because it was effected in
10 retaliation for engaging in certain activities. The jury also
11 determined that Plaintiff was harmed by such retaliation, and the
12 jury awarded damages which included lost earnings and “professional
13 fees.” In both his FMLA/FEHA retaliation claim and in his
14 procedural due process claim, the underlying act which Plaintiff
15 claims damaged him is the same, i.e., his placement on paid
16 administrative leave. At this juncture, it cannot be concluded
17 that the deprivation of Plaintiff’s property interest in active
18 duty caused any identifiable harm separate and apart from the harm
19 caused by the County’s unlawful conduct under the FMLA/FEHA in
20 placing Plaintiff on paid administrative leave for retaliatory
21 reasons. Accordingly, to avoid double recovery, a damages award on
22 the procedural due process violation is inappropriate. Kassman v.
23 Am. Univ., 546 F.2d 1029, 1034 (D.C. Cir. 1967) (“Where there has
24 been only one injury, the law confers only one recovery,
25 irrespective of the multiplicity of parties whom or theories which
26 the plaintiff pursues.”).
27 61. Due regard for the jury verdict requires a denial of
28
34
1 damages on Plaintiff’s due process claim. The jury found that

2 Plaintiff’s placement on paid administrative leave was unlawful and
3 retaliatory under the FMLA/FEHA and that Plaintiff was harmed
4 thereby. The jury awarded damages on Plaintiff’s claims, including
5 his FMLA/FEHA retaliation claim, and this award included lost
6 professional fees. The jury has already determined that Plaintiff
7 was damaged by his placement on administrative leave and fully
8 compensated him to the extent he was damaged thereby. The court
9 must respect this jury determination as to the extent of the
10 damages and cannot depart from it by awarding additional or
11 different damages as a result of Plaintiff’s placement on paid
12 administrative leave. See Ag Servs. of Am., Inc. v. Nielsen, 231
13 F.3d 726, 732 (10th Cir. 2000) (“The true test is whether the jury
14 verdict by necessary implication reflects the resolution of a
15 common factual issue. If so, the district court may not ignore
16 that determination, and it is immaterial whether, as here, the
17 district court is considering equitable claims with elements
18 different from those of the legal claims which the jury had decided
19 (as may often be the case).”); Wade v. Orange County Sheriff’s
20 Office, 844 F.2d 951, 954 (2nd Cir. 1988) (“[W]hen the jury has
21 decided a factual issue, its determination has the effect of
22 precluding the court from deciding the same fact issue in a
23 different way.”).
24 62. Courts “should take all necessary steps to ensure that
25 the plaintiff is not permitted double recovery for what are
26 essentially two different claims for the same injury.” California
27 v. Chevron Corp, 872 F.2d 1410, 1414 (9th Cir. 1989); see also EEOC
28
35
1 v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (“[I]t goes without
2 saying that the courts can and should preclude double recovery by
3 an individual.”) (internal quotation marks omitted). To prevent
4 double recovery for the same injury – the wrongful placement of
5 Plaintiff on paid administrative – compensatory damages should not
6 be awarded on Plaintiff’s due process claim.
7 63. For these reasons, compensatory damages are not awarded
8 on Plaintiff’s procedural due process claim. Plaintiff is, by law,
9 fully compensated except for nominal damages. See Floyd v. Laws,
10 929 F.2d 1390, 1402 (9th Cir. 1991) (concluding that upon a finding
11 of a “constitutional violation, an award of nominal damages is
12 mandatory”). Plaintiff is entitled to an award of nominal damages
13 on his procedural due process claim.
14 64. Pursuant to Rule 58, a judgment will be entered
15 consistent with these Findings of Fact and Conclusions of Law.
16 65. Plaintiff shall lodge with the court a form of judgment
17 consistent with these Findings of Fact and Conclusions of Law
18 within five (5) days following electronic service of these
19 findings.
20
21 IT IS SO ORDERED.
22 Dated: August 5, 2009 /s/ Oliver W. Wanger
9i274f UNITED STATES DISTRICT JUDGE
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398 ORDER Bench Trial

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Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 1 of 36

11 This matter is before the court pursuant to the parties’

12 stipulation to submit certain claims asserted by Plaintiff David F.

13 Jadwin, D.O. (“Plaintiff”) to the court for decision, each party

14 having voluntarily waived trial by jury. The other claims asserted

15 by Plaintiff were tried to and decided by a jury.

16 The jury returned verdicts, entered on June 8, 2009, in favor

17 of Plaintiff. (Doc. 384) The jury found that Defendant County of

18 Kern (“County”): (1) retaliated against Plaintiff for engaging in

19 certain activities in violation of the Family and Medical Leave Act

20 (“FMLA”) and the California Fair Employment and Housing Act

21 (“FEHA”); (2) retaliated against Plaintiff for taking medical leave

23 discriminated against Plaintiff on the basis of his mental

24 disability in violation of the FEHA; (4) failed to reasonably

25 accommodate Plaintiff’s mental disability in violation of the FEHA;

26 and (5) failed to engage in an interactive process with Plaintiff

28 defense that Plaintiff’s employment contract was not renewed by

1 reason of his conduct and alleged violation of the employer’s rules

1 II. THE CLAIMS SUBJECT TO BENCH TRIAL DETERMINATION

1 and other applicable law. These findings of fact and conclusions

1 Plaintiff claims that his placement on administrative leave with

1 employment contract is Exhibit “A” which is part of the agreement.

1 schedule in order to be treated for [a] serious health condition.”

2 conveyed a desire to have a full-time department chair. Plaintiff

3 described Bryan’s communication as one-way. Plaintiff testified

4 that he really had no choice to refuse full-time leave and he did

5 not believe raising an objection to the full-time leave would do

7 13. Bryan required Plaintiff to inform him (Bryan) by June

8 16, 2006, whether Plaintiff would resign or return to work full-

9 time. Prior to that date, Plaintiff sent a correspondence to Bryan

10 (Pl. Ex. 256) in which Plaintiff explained that he underwent nasal

11 surgery in May and subsequently fractured his foot. In the

12 correspondence, Plaintiff asked for an extension on the June 16

13 deadline. Bryan responded to Plaintiff’s correspondence in an e-

14 mail dated June 13 (Pl. Ex. 267 at 0001526) followed up by a letter

15 dated June 14 (Pl. Ex. 267 at 0001525). Bryan informed Plaintiff

16 that he would grant Plaintiff a Personal Necessity Leave for ninety

17 (90) days. Plaintiff took that Personal Necessity Leave. As Bryan

18 testified, the Personal Necessity Leave started June 16, 2006.

19 14. After going on Personal Necessity Leave, Plaintiff and

20 the County executed an amendment to Plaintiff’s employment

21 agreement effective October 3, 2006. (Pl. Ex. 283.) The amendment

23 amendment changed Section 1 of Article II (Compensation) in the

24 employment agreement and also replaced Exhibit “A” to the

25 employment agreement with Exhibit “A” of the amendment. The

26 amendment did not change the other terms of the employment

27 agreement, which remained in full force and effect.

1 employment agreement as amended.

2 16. Defendant County subsequently placed Plaintiff on paid

3 administrative leave on December 7, 2006.

4 17. David Culberson, the Interim Chief Executive Officer,

5 decided to place Plaintiff on paid administrative leave. He made

6 the decision with the input and participation of Steve O’Connor

7 from Human Resources, Dr. Dutt (Chair of the Pathology Department),

8 Karen Barnes (County Counsel), and Margo Raison (Labor Counsel).

9 18. The County placed Plaintiff on paid administrative leave

10 via letter dated December 7, 2006, signed by Steve O’Connor on

11 behalf of Culberson. (Pl. Ex. 317.) The letter reads:

12 This is to notify you that you are being placed on

20 Failure to comply with the instructions of this letter is

22 Please bring to my attention any request you may have to

24 19. Then-existing section 124 of the Kern County Policy and

25 Administrative Procedures Manual (Pl. Ex. 104) is entitled

21 complaint was filed”); Thomas v. Mundell, F.3d , 2009 WL