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S RESPONSIVE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO

S MOTION FOR SUMMARY JUDGMENT 1

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Eugene D. Lee (SB#: 236812)LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487

email: [email protected] for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

FRESNO DIVISION

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN, et al.,

Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG

PLAINTIFFS RESPONSIVE STATEMENTOF MATERIAL FACTS IN OPPOSITION TODEFENDANTS MOTION FOR SUMMARYJUDGMENT[Fed. R. Civ. P. 56(a)]

Date: January 12, 2009Time: 10:00Judge: Hon. Oliver W. WangerCourtroom: 3

Complaint Filed: January 6, 2007Trial Date: March 24, 2009

Plaintiff DAVID F. JADWIN, D.O., hereby submits the following statement of disputed and

undisputed material facts in support of his Opposition to Defendants Motion for Summary Judgment

Case 1:07-cv-00026-OWW-TAG Document 282 Filed 12/01/2008 Page 1 of 115

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s MATERIAL FACTS

(DMF)

S

SOURCE

S RESPONSE

LEGAL RELATIONSHIP

BETWEEN KERN

MEDICAL CENTER AND

DAVID F. JADWIN, D.O.

1. First EmploymentContract between KernMedical Center (hereinafterreferred to as KMC) andDavid F. Jadwin, D.O.(hereinafter referred to asJadwin) was entered into onOctober 24, 2000.

DFJ00025-00046

Undisputed.

a) Article 1, 2 incorporatesattached Exhibit A as a partof the agreement

DFJ00043-46 Undisputed.

b) Article 5, 20 states, inpart, The parties recognizethat each is possessed oflegal knowledge and skill,and that this Agreement isfully understood by theparties, and is the result ofbargaining between theparties.

Undisputed that the document says what it says.

c) Article 5, 22 states, inpart, This Agreement,including all attachmentshereto, contains the entireagreement between theparties relating to theservices, rights, obligationsand covenants containedherein and assumed by theparties respectively.

Disputed only as to the word Agreement. Article 5 22actually uses the word document, This document,including all [.].Undisputed that the document sayswhat it says.

2. Employment Verificationletter gives original date of

hire as December 3, 2000.

DFJ00358 Undisputed.

3. Jadwin received theMedical Staff Bylaws.

0000202-203

See evidentiary objections.

4. Medical Staff Bylaws. 0000272-358

Undisputed.


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5. Responsibilities and dutiesof the pathology dept. chairare set out in the KMCMedical Staff Bylaws,sections 6. through 6.4-3.

DFJ00046 See evidentiary objections.

Disputed: Sections 6. through 6.4-3 of the Bylaws doNOT contain any such provisions.

6. Second EmploymentContract between KMC andJadwin was effective October5, 2002.

0001479-1499 Undisputed.

a) Exhibit A to the SecondEmployment Contract: JobDescription, David F.Jadwin, M.D., PathologyChairman.

Undisputed.

i) First paragraph, 3rd linereads This is a full-timeposition requiring 48 hoursof service, on average, perweek.

Disputed in that Article II.1.A. of the SecondEmployment Contract provides that Plaintiff was requiredto work no less than forty [40] hours per week. (Bates0001480). Otherwise, undisputed that the document sayswhat it says.

ii) Second page, paragraph 6states A standard workweekwill be 48 hours per week.Actual hours may vary week-to-week according to specificassignments; however, theobjective is to achieve 2112worked hours during atwelve-month period.

Disputed in that Article II.1.A. of the SecondEmployment Contract provides that Plaintiff was requiredto work no less than forty [40] hours per week. (Bates0001480). Otherwise, undisputed that the document sayswhat it says.

b) Section V, 10 statesCore physician shall beemployed by the County ofKern pursuant to the terms ofthis Agreement and themedical staff bylaws ofKMC. Core physicianacknowledges that he or shewill not be deemed aclassified employee, or haveany rights or protectionsunder the Countys CivilService Ordinance, rules or

regulations.


FMLA/CFRA

RETALIATION


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7. Letter to Peter Bryan(hereinafter referred to asBryan) from Jadwin, dated1/9/06, requestingadministrative leave with payuntil hostile environment is

corrected. He demandedaction on 1) sendingtransfusion Product ChartCopies (hereinafter referredto as PCCs) to the bloodbank; 2) KMCs alleged lackof compliance with theirweekly oncology conferencesby reporting themselves(KMC) to the AmericanCollege of Surgeons(hereinafter referred to asACS); 3) reviewing timelimits on pathology

presentations; and 4)implementing protocol ofcollection of Fine NeedleAspiration (hereinafterreferred to as FNA)specimens.

DFJ00723 See evidentiary objections.Disputed: Plaintiff states on DFJ000723 that Thisharassment had led me develop depression, anxiety andinsomnia.Although I enjoy much of my work at KMC, it is not

possible for me to continue towork under this form of harassment. Under FEHA, thisletter placed Defendants on notice that Plaintiff wassuffering a recurrence of his chronic depression and thatthe leave he was requesting was a reasonableaccommodation of his disability. See evidentiaryobjections. Otherwise, undisputed that the document sayswhat it says.

7A. Dutt recalled Jadwinsthreat of taking a leave ofabsence until the medicalstaff and the administrationapologized to him.

DuttDepo.,8/20/08,pgs. 52:5-53: 18

See evidentiary objections.Disputed: Jadwin never made such a threat. [Decl. ofDavid Jadwin in Opposition to Defendants Motion forSummary Judgment (Jadwin Opp. Decl.), para. 3].

8. Jadwin conducted avigorous job search in thefirst six months of 2006. Hewas actively looking foranother job as there areinquiries into at least sixother full-time positions.

DFJ02422-2459

See evidentiary objections: Irrelevant to proving disabilityunder FEHA vis--vis ADA.

a) You know, I wish I couldgo back because I enjoyedthat job. I mentionedmultiple times during myrecruitment and elsewhere

that that was the last positionthat I wanted to take, that Isaw myself retiring out ofthat position and not moving.And I was very disappointedwhen-when things-whenpeople that were in a positionto do the right thing didnt dothe right thing.

JadwinDepo.,10/21/08,pg.1087:9-17

See evidentiary objections: Irrelevant to proving disabilityunder FEHA vis--vis ADA.


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9. Sandi Chester effectivelyrefutes any argument thatJadwins letter to PeterBryan of January 9, 2006was notice to KMC thatJadwin needed medical

leave or that, byimplication, Jadwin wasabsolved of theresponsibility to notify HRthat he was taking a leaveof absence. As SandiChester said I mean,anybody can write aletter.

ChesterDepo.,8/28/08,pgs.135:12-137: 6

Pg.136:17-18

See evidentiary objections: Irrelevant to excusingDefendants liability under any of Plaintiffs counts, asevidenced by Defendants failure to cite this DMFanywhere in their motion brief (Doc. 262).

See evidentiary objections: Irrelevant to prove Plaintiff

failed to give reasonable notice on 3/16/06 of his need forextension of medical leave prior to being placed onForced FT Leave by Bryan on 4/28/06. Chester lateradmitted that Plaintiffs email to Bryan of 3/16/06constituted reasonable notice of his need for extension ofmedical leave.[Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22]

10. Certification of HealthCare Provider dated 1/13/06for Jadwin. Includes theduration of the medicalcondition (2-3 months) andthe expected date to return towork (3/16/06). It gives thedate the medical conditioncommenced as 12/16/05.

DFJ00726 Undisputed that the document says what it says.

11. Jadwin did notcommunicate with HumanResources (hereinafterreferred to as HR) at all, HRdiscovered that Jadwin ------had unilaterally assignedhimself to 1 to 2 workdays

per week but, per policy, anemployee must use vacation,sick time, or leave of absencewhen not working full-time.It was HR that broughtJadwin into compliance withCounty policy by putting himon leave of absence.

ChesterDepo.,8/28/08,pgs.75:19-76:10

See evidentiary objections: Irrelevant to excusingDefendants liability under any of Plaintiffs counts.

Disputed: Plaintiff obtained permission in January 2006from Bryan before commencing his medical leave. Bryanpromised to contact HR and send Plaintiff the necessaryleave forms but was late in doing so. Plaintiff submitted

the form and medical certification promptly after beingprovided the forms and appropriate instructions from HR.[Jadwin Opp. Decl., para. 4].

Defendant County waived any such policy by allowingDr. Naderi and Dr. Dutt to take leave for knownFMLA/CFRA qualifying purposes without requiring themto contact HR, submit a request for family leavesupported by a doctor's certificate; HR did not designateeither of their leaves as family leave. [Lee Opp. Decl.,Exh. 56 (PMK Dutt Depo at 232:6-13, 237:1-9); Exh. 41(Naderi Depo. at 38:6-39:25, 43:2-10, 51:21-25); Exh. 29(McBride Depo. at 98:15-22) (Naderi's son's accident was

common knowledge at KMC)]. The fact that Defendantsapply it strictly against Plaintiff is further evidence ofretaliatory animus.


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12. KMC had to designateJadwins medical leaveretroactively because Jadwinwas late in giving appropriaterequests.

BryanDepo.,8/14/08,pgs.195:9-196: 14


Disputed: Plaintiffs timecards show that he took vacationfrom 12/16/05 to 1/2/06. Plaintiff obtained permission inJanuary 2006 from Bryan before commencing his medical

leave. Bryan promised to contact HR and send Plaintiffthe necessary leave forms but was late in doing so.Plaintiff submitted the form and medical certificationpromptly after being provided the forms and appropriateinstructions from HR. On 1/13/06, Plaintiffs therapist,Dr. Riskin, certified that Plaintiff's need for reduced workschedule began on 12/16/05. Accordingly, KMCretroactively deducted Jadwin's vacation days from hisFMLA/CFRA balance even though he worked full timefor approximately three weeks after returning fromvacation. [Lee Decl., Exh. 14 (Bryan Memo to Jadwin of4/28/06 at DFJ01155); [Declaration of Paul Riskin(Riskin Decl.), Exh. 1 (Certification of 1/13/06 atDFJ1810)].

[Jadwin Opp. Decl., para. 4].13. Jadwins submission ofhis healthcare providerscertification was not timelyand was only provided uponprompting from HR.

ChesterDepo.,8/28/08,pgs.113:23-114: 12


Disputed: Plaintiff obtained permission in January 2006from Bryan before commencing his medical leave. Bryanpromised to contact HR and send Plaintiff the necessaryleave forms but was late in doing so. Plaintiff submittedthe form and medical certification promptly after beingprovided the forms and appropriate instructions from HR.[Jadwin Opp. Decl., para.4].

14. Certification of HealthCare Provider, dated 4/26/06,

stating that Jadwins medicalcondition goes back to10/30/03. The Certificationstates that Jadwin requirespart-time or less to avoidworsening of his seriousmedical condition.

DFJ0l150 Disputed in that the form also states that Plaintiff canwork part-time, now, and is able to work for 1-2 days

per week; and Defendant did not engage in interactiveconsultation to clarify any confusion over the Riskinscertification.

15. Jadwins Request forLeave of Absence(hereinafter referred to asLOA), dated 3/2/06, notesthat the LOA started on

12/16/05.

DFJ00746 See evidentiary objections: Irrelevant to excusingDefendants liability under any of Plaintiffs counts.

Otherwise undisputed that the document says what it says.


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16. KMCs responsivedocument to the LOArequest, dated 3/2/06,indicating that the leave endson 3/15/06 and stating ..have the right to be reinstated

to the same or an equivalentjob with the same pay,benefits and terms andconditions of employment.

DFJ00747-748


17. E-mails dated 3/16/06.One to Peter Bryan fromJadwin telling him that he(Jadwin) will take Bryanssuggestion to take 2-3months additional leave;the other to Dr. Kercherfrom Jadwin telling himthat he (Jadwin) is havingsurgery and will need 2-3months of additional leavefor the surgery andrequesting apologies fromDr. Ragland (President-elect), Dr. Abraham andDr. Taylor and aninvestigation into Dr. Roy.

DFJ00752-753

Undisputed.

18. Notice from HumanResources to Jadwin, dated4/20/06, that his leave ofabsence expired on 3/15/06.

DFJ00796 See evidentiary objections: Irrelevant to prove Plaintifffailed to give reasonable notice on 3/16/06 of his need forextension of medical leave prior to being placed onForced FT Leave by Bryan on 4/28/06. This is also See

evidentiary objections: Irrelevant to excusing Defendantsliability under any other of Plaintiffs counts.

Chester admitted in Depo. that Plaintiffs email to Bryanof 3/16/06 constituted reasonable notice of his need forextension of medical leave.[Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22]

Otherwise, undisputed that the document says what itsays.

19. Jadwins request forLeave of Absence Extension,

dated 4/26/06, has a startingdate of 3/15/06 and anending date of 9/16/06.

DFJ01158 See evidentiary objections: Irrelevant to prove Plaintifffailed to give reasonable notice on 3/16/06 of his need for

extension of medical leave prior to being placed onForced FT Leave by Bryan on 4/28/06.

Chester admitted in Depo. that Plaintiffs email to Bryanof 3/16/06 constituted reasonable notice of his need forextension of medical leave.[Smith Depo., 8/19/08, pg. 65:2-13 and 74: 12-22]

Otherwise, undisputed that the document says what itsays.


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20. Memo from Bryan toJadwin, dated 4/28/06,notifying him that his leavewould be up on 6/16/06 andhe either returns fulltime orresigns. Also, it notes that

Jadwin was provided amedical leave history, alongwith the calculations andpolicies about his medicalleave.

DFJ0l121 Undisputed that the document says what it says.

21. Bryan noted that he gavethe option to Jadwin whetherto go on full-time leave,although full-time leave waspreferable to Bryan. Bryanasserts that it was Jadwinsdecision to go on fulltimeleave and that Jadwin nevercommunicated with Bryanany contrary intent.

BryanDepo.,8/14/08,pgs. 250:15- 251:6,Exhibit303

See evidentiary objections.Disputed: Plaintiff has testified multiple times that, afterhe requested an extension of his medically-required part-time medical leave in April 2006 [Jadwin Decl. (Doc.265), Exh. 6 (Jadwins Request for Leave Extension of4/26/06 at DFJ00157), Exh. 4 (Jadwins Email to Bryan,Chester, & Dutt of 3/16/06 at DFJ00752)], DefendantBryan refused and forced him onto full-time medicalleave on April 28, 2006, so as to exhaust his medicalleave as soon as possible. [Lee Opp. Decl., Exh. 2 (BryanDepo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23-985:4).]. Plaintiffs testimony is unrefuted: DefendantBryan admitted in Depo. that it was his idea that day tohave Plaintiff convert his part-time leave to full-time,based upon a perception that Plaintiffs part-time leavewas creating issues within the Pathology department(not a concern that part-time work might worsenPlaintiffs condition). [Lee Opp. Decl., Exh. 2 (BryanDepo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:9-

13); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23-985:4).].

It should be noted that the issues within the Pathologydepartment to which Bryan referred are clearly pretext.Less than 2 weeks before Bryan interfered with Plaintiffsleave, he wrote to him saying: Yes, the Department ofPathology continues to function well, as it has for manyyears, and, yes, you have made many positive changes tothe department [Lee Decl. (Doc. 266), Exh. 12 (Bryanmemo to Jadwin of 4/17/06 at DFJ795); Bryan Depo at332:12-22; Lee Decl. (Doc. 266), Exh. 14 (Bryans Memoto Jadwin of 4/28/06 at DFJ1152)]. Later, Bryan testified

that, as of April 28, 2006, actual functioning of thedepartment of [pathology] actually was fairly good. [LeeOpp. Decl., Exh. 3 (Bryan Depo at 332:12-22).].


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22. Memo from Bryan toJadwin dated 4/28/06,summarizing a meeting heldwith Bryan, Karen Barnes,Steve OConnor, and Jadwin.The meeting was held to

insure that [Jadwin] had allinformation availableconcerning his status andwhat was possible and notpossible according to Countypolicies for leaves ofabsence. It was not adisciplinary meeting.

BryanDepo.,8114/08,pgs.240:9-244: 2,

Exhibit303 pg243:22-25pg.244:1-2

See evidentiary Objections

Disputed: Plaintiff has testified multiple times that, afterhe requested an extension of his medically-required part-time medical leave in April 2006 [Jadwin Decl. (Doc.265), Exh. 6 (Jadwins Request for Leave Extension of

4/26/06 at DFJ00157), Exh. 4 (Jadwins Email to Bryan,Chester, & Dutt of 3/16/06 at DFJ00752)], DefendantBryan refused and forced him onto full-time medicalleave on April 28, 2006, so as to exhaust his medicalleave as soon as possible. [Lee Opp. Decl., Exh. 2 (BryanDepo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23-985:4).]. Plaintiffs testimony is unrefuted: DefendantBryan admitted in Depo. that it was his idea that day tohave Plaintiff convert his part-time leave to full-time,based upon a perception that Plaintiffs part-time leavewas creating issues within the Pathology department(not a concern that part-time work might worsenPlaintiffs condition). [Lee Opp. Decl., Exh. 2 (Bryan

Depo at 249:24-250:19; Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo. at 983:23-984:1, 94:23-985:4).].

Disputed that it was not a disciplinary meeting. [Lee Opp.Decl., Exh. 57 (OConnor Depo. at 68:4-11). Meetingsthat Defendant Bryan ordered him to attend were typicallythose involving employee discipline. [Id. at 73:23-74:11].OConnor also testified that his role at the meeting did notinclude offering any input, and that he did not do so.


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25. Bryan artfully explainedwhy the Chair of theDepartment of Pathologyneeds to be present full-time.Its not just the taskorientation of handling a

duty. Its being presentwithin the organization toinfluence the organizationspolicies and practices.Organizations tend to driftwithout the constancy ofleadership, because that ispart of what a leader does ismonitor the performance toensure things stay on track,and without that constantdialogue present, you canfind yourself getting offtrack. In the medical arena

when patient care isinvolved, you dont allow itto get to the point where youdont have the leadershipnecessary. So thats inferredin it being a full-timeposition.

BryanDepo.,8/14/08,pg.216:322.

See evidentiary objections.Disputed: This is pretext. On 4/17/06, just prior to placingPlaintiff on Forced FT Leave, Bryan admitted to Plaintiff:Yes, the Department of Pathology continues to functionwell, as it has for many years, and, yes, you have made

many positive changes to the department. [Lee Decl.(Doc. 266), Exh. 12 (Bryan memo to Jadwin of 4/17/06 atDFJ795); Bryan Depo at 332:12-22; Lee Decl. (Doc.266), Exh. 14 (Bryans Memo to Jadwin of 4/28/06 atDFJ1152)]. Later, Bryan testified that, as of April 28,2006, actual functioning of the department of[pathology] actually was fairly good. [Lee Opp. Decl.,Exh. 3 (Bryan Depo at 332:12-22).].

But in Bryans letter to the DHS of 7/25/06, he contradictshimself when explaining to the DHS that Plaintiff hadbeen demoted as follows: Quality of care issueswas not the basis for making this decision. To thecontrary, Dr. Jadwin has been on an extended leave of

absence from the hospital and there was a need to provideconsistent administrative leadership within thedepartment. In compliance with section 1265 and CLIA,Philip Lee Dutt, M.D., has been selected as the interimdirector of the laboratory and will serve in that capacityuntil a permanent replacement is appointed.[Lee Decl., Exh. 19 (Bryan letter to DHS of 7/25/06 atBates 0001619)(emphasis added)]. Bryan made nomention in his letter of a failure to influence policiesand practices outside of the pathology department oracross KMC as an organization.

Moreover, this responsibility to influence policies and

procedures outside of the Pathology department, acrossKMC as an organization, is conspicuously absent fromPlaintiffs job description. In fact, the job descriptionsonly reference to policies and procedures is as follows:Oversees the development, implementation andmaintenance of department policies and procedures forthe clinical laboratory and pathology department,including surgical pathology, cytopathology and autopsypathology. [Lee Decl., Exh. 2 (Second EmploymentContract of 11/12/2002 at Section 2.a. of Exhibit A onBates DFJ00171)].

Bryan's "explanation" is a pretext for discrimination in

that Dr. Tai Yoo, Chair of Psychiatry, is a chair eventhough he is not present full-time. Yoo testified that hetypically spent 25 to 30 hours per week at KMC [LeeOpp. Decl., Exh. 46 (Yoo Depo. at 20:4-15)], dividing histime 50/50 between KMC and Kern Mental Health [Id. at9:11-16; 20:4-11]. He has been employed by DefendantCounty as a part-time chair since 8/1/01. [Id. at 9:25-10:9]. He remains a chair and has not been removed.


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a) Responsibilities and dutiesof the pathology dept. chairare set out in the KMCMedical Staff Bylaws,sections 6. through 6.4-3.


Disputed: Sections 6. through 6.4-3 of the Bylaws doNOT contain any such provisions.

26. Mortgage verification ofemployment for Jadwin,dated 6/22/06, noting that theprobability of continuedemployment for Jadwin wasgood and he was okay toreturn to work when well.

DFJ01343 See evidentiary objections: Irrelevant and immaterial toexcusing Defendants' liability under any of Plaintiff'scounts.

Bryan had solicited Plaintiffs resignation earlier on4/28/06. [Lee Decl., Exh. 14 (Bryan Memo to Jadwin of4/28/06 at DFJ001152)].

27. Letter from Dr. Harris(writing on behalf ofBryan) to Jadwin, dated6/26/06, stating that he(Jadwin) has been seen inand around KMC and thatwhile he (Jadwin) is onleave, he is not to enter thehospital except for seekingmedical attention. He isalso not to contact anyemployee or facultymember of KMC while onleave.

0001424 See evidentiary objections: Irrelevant to excusingDefendants liability under any of Plaintiffs counts, asevidenced by Defendants failure to cite this DMFanywhere in their motion brief (Doc. 262).

Disputed: Bryan testified in deposition that this letter wasdrafted by him (not Harris). [Lee Opp. Decl., Exh. 2(Bryan Depo., 261:7-262:19)].

28. In his letter of June 14,2006, Bryan notifies Jadwinthat Jadwin will beremoved as chair and tells

Jadwin to call him if he hasquestions. Bryan states thatput the burden ofchallenging the action orasking for reconsiderationon Jadwin who never calledhim about the letter.

BryanDepo.,8/14/08,pg. 257:9-

15


Disputed: Bryan is not an impartial adjudicator. OfferingPlaintiff to contact him was not adequate due process.[Lee Decl. (Doc. 266), Exh. 15 (Bryan Letter to Jadwin of6/14/06 at DFJ1181); Lee Decl. (Doc. 266), Exh. 16(Bryan Letter to Jadwin of 6/26/06 at DFJ1346); LeeDecl. (Doc. 266), Exh. 17 (JCC Minutes of 7/1/06 at0009821); Jadwin Decl. (Doc. 265), Exh. 1 (Jadwin emailto Bryan of 2/28/05 at DFJ355); Lee Supp. Decl. (Doc.267), Exh. 13 (Ragland Depo at 332:14-21); Lee Decl.(Doc. 266), Exh. 8 (Bryan email to Harris of 11/8/05 at0000503); Lee Decl. (Doc. 266), Exh. 11 (Ragland emailto Bryan of 2/23/06 at 0000507)].


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29. According to Exhibit303, Jadwins leave and allallowances by the Countyexpired by June 16th. Afterthat date, Bryan had noauthority to extend

Jadwins employmentrelationship.

BryanDepo.,8/14/08,pg. 244:6-16



Disputed: Bryan did not lack authority to extend leave oremployment beyond June 16, 2006. Kern County CivilService Commission rule 1201.20 provided that Plaintiffwas permitted to have medical or recuperative leave of upto 6 months CUMULATIVELY. [Lee Decl., Exh. 18(CSC Rules, Rule 1201.20 on Bates 0001501)]. June 16 isexactly 6 calendar months after Plaintiffs leave allegedlybegan (December 16, 2005). Since Plaintiff had been onpart-time leave from 12/16/05 to 4/28/06, he had not usedup 6 months of cumulative leave by 6/16/06. On June 29,2006, Plaintiffs counsel informed County CounselBarnes of this error. [Lee Opp. Decl., Exh. 16 (Lee Letterto Barnes of 6/29/06 at sec. III)]. Defendant County

responded by demoting Plaintiff on July 10, 2006anyway.


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30. By June 2006, Jadwinhad fully exhausted his rightsand the institutionalobligation to grant himmedical leave.

BryanDepo.,8/14/08,pgs.280:21-281:4



Disputed: Bryan testified that, towards the end of hisleave, Plaintiff was requesting extension of his leave even

though he had fully his medical leave right under law andCounty policy. This is pretext.

First, Bryan did not lack authority to extend leave oremployment beyond June 16, 2006. Kern County CivilService Commission rule 1201.20 provided that Plaintiffwas permitted to have medical or recuperative leave of upto 6 months CUMULATIVELY. [Lee Decl., Exh. 18(CSC Rules, Rule 1201.20 on Bates 0001501)]. June 16 isexactly 6 calendar months after Plaintiffs leave allegedlybegan (December 16, 2005). Since Plaintiff had been onpart-time leave from 12/16/05 to 4/28/06, he had not usedup 6 months of cumulative leave by 6/16/06. On June 29,2006, Plaintiffs counsel informed County Counsel

Barnes of this error. [Lee Opp. Decl., Exh. 16 (Lee Letterto Barnes of 6/29/06 at sec. III)]. Defendant Countyresponded by demoting Plaintiff on July 10, 2006anyway.

Second, Plaintiff was not asking for an extension of hisleave. As Defendants own Separate Statement (Doc. 259)admits Plaintiffs letter to Bryan of May 31, 2006 wasrequesting more time to decide whether he would bereturning full-time or resigning, not more leave pastSeptember 16, 2006. [Defendants Separate Statement(Doc. 259), DMF 23]. Bryans testimony is pretextmanufactured after the fact to justify the Demotion.

31. Adherence to theMedical Staff Bylawsafforded Jadwin the dueprocess that he was entitledto.

BryanDepo.,8/14/08,pg. 258:7-16


Disputed: The Bylaws failure to provide for due processin connection with the Demotion is a violation of dueprocess. Because the Bylaws were ratified by the KernBoard of Superviors, it establishes the 42 USC 1983liability of Defendant County underMonell.

Disputed: JCC minutes regarding the contemplated

demotion of the chair of the OB-GYN department stated:The problem is we have tied a portion of the chairscompensation to that position, that is a property right. Dr.Perez is entitled to due process hearing for this reason.[Lee Opp. Decl., Exh. 18 (JCC Meeting Minutes of9/10/07 at Agenda Item 6 on Bates 0009221)].



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32. Tort Claims ActComplaint, dated 7/3/06,Jadwin admits that he hadused up his CFRA leave byJune 14th, 2006. Page 1 ofthe Attachment (page 3 of

the entire complaint), SectionA, paragraph 1, last sentencereads As of June 14, 2006,Complainant had taken 12weeks of CFRA sick leaveand approximately 3-4 weeksof County sick leave basedon doctors certificationswhich he submitted.

Exhibit 2to SecondAmendedComplaint


33. Memorandum to the JointConference Committee(JCC) from Bryan, dated7/10106, recommending thatthe Committee approve thedemotion of Jadwin fromchair of the pathologydepartment to staffpathologist. Thisrecommendation to rescindDr. Jadwins appointment asChairman, Department ofPathology, is based solely onhis continued non-availability to provide theleadership necessary for acontributing member of the

medical staff leadershipgroup. KMC must have itskey personnel available, andDr. Jadwin has provided noindication that he iscommitted to return to workor resume his duties aschairman. Also, Dr. Jadwinhas made no attempt tocontact me concerning mydecision to relieve him of hischairman duties nor has heindicated any desire to

negotiate a new contract.JCC meeting minutesconfirm that the committeetook Bryans advice and theydid it for the reason that hegave in his memorandum.

0001476-15650000073-75


Undisputed that the JCC took [Bryans] advice.

Disputed: Evidence establishes that the JCC voted todemote Plaintiff not only for the reasons that he gave inhis memorandum, but also for whistleblower retaliationand disability discrimination, as well asoppositional/participatory retaliation for threatening to filelawsuit.


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34. Ray Watson (hereinafterreferred to as Watson)testified that he onlyremembers a discussion onremoving Jadwin from thedepartment chair position; he

was quite clear (and he wasasked three times) that he didnot remember any discussionabout Jadwinstermination. Heaffirmatively stated that heknew of no discussions aboutJadwin resigning or beingdenied privileges.

WatsonDepo.,8125/08,pgs.13:17-14:14

See evidentiary objections.Disputed: Watson testified at his deposition that he clearlyrecalled Defendant County had decided not to renewPlaintiffs contract. [Lee Opp. Decl., Exh. 10 (WatsonDepo. at 30:10-13).].Watson was asked twice if he

recalled clearly whether it was to punish Plaintiff forbring suit and each time he answered yes:

Q. Okay. What about the nonrenewal? I mean, do yourecall Dr. Jadwins physical absence being a reason forhis nonrenewal of his contract?A. Well, it could be that. It could be the fact that I thinkby then he was -- probably was suing us. So why wouldyou want to establish a contractual relationship withsomebody whos suing you.Q. Okay. Well, he was also suing you at the time of hisremoval or actually at the time of his --no, he wasnt. Hewasnt. Okay. But I mean, you say why would youestablish a contractual relationship with someone whos

suing you, right?A. Right.Q. Was that -- does that mean -- are you just speculatingnow, just guessing, or was that a consideration for hisnonrenewal?A. Well, I remember it being discussed.[]Q. Okay. But you recall it being discussed at the JCCmeetings?A. Yes.[Id. at 110:12-111:5; 111:15-24].

Watson then re-affirmed a third time volunteering it on

his own initiative that oppositional retaliation was anadditional motivating factor for the Nonrenewal:

Q. So the question is: Youve mentioned that for thenonrenewal one of the reasons was that Dr. Jadwin wasntavailable for work; is that correct or --A. My understanding was that he had -- he had been onmedical leave, family leave, and had requested even moreleave, and that for that reason and the fact that he wassuing us, that we decided not to renew his contract.[Id. at 113:15-114:4).].

Watson failure to recall discussion of Plaintiffs

termination or denial of his medical privileges provesnothing about the Nonrenewal and whether a discussionabout it occurred. A discussion of one doesnt necessitateor preclude a discussion of the others. Moreover, thetestimony Defendants cite to appeared over 100 pagesand 2 hours earlier in the deposition transcript than theNonrenewal discussion and arose in response to acompletely unrelated line of questioning. [Id. at 12:10-14;13:17-14:2)].


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35. Watson testified that hebecame aware that Jadwinscontract was not renewedalthough he could not give atimeline as to when thingshappened. He also testified

strongly that he does notrecall a vote taken on thenonrenewal although [he]imagine[s] it was,

WatsonDepo.,8/25/08,pgs. 28:6-30:23

See evidentiary objections.Disputed: For sake of economy, see Item 34 supra, whichis incorporated in its entirety herein.

Disputed: The fact that Watson couldnt recall a formal

JCC vote to not renew Plaintiffs contract proves nothingabout whether or not the JCC decided to not renewPlaintiffs contract. JCC decision do not all require aformal JCC vote. In any event, Watson confirmed severaltimes that he clearly recalled the JCC deciding on theNonrenewal.

36. Watson testified that thefact that Jadwin was suingKMC was brought up indiscussions of whether torenew Jadwins contractalthough he would not say itwas a consideration, onlythat it was discussed. Inaddition, it became obviousafter a few questions thatWatson was confused aboutthe sequence of events whichcan lead to the inference thathe does not recall anythingspecifically or correctly.

WatsonDepo.,8/25/08,pgs.110:12112: 13

See evidentiary objections.Disputed: For sake of economy, see Item 34 supra, whichis incorporated in its entirety herein.

Disputed: On the one hand, Defendants argue thatWatsons testimony is confused and unreliable. Yet, Intheir own motion, Defendants cite liberally to Watsonssupposedly unreliable testimony when it suits them.[Defendants Separate Statement (Doc. 259) at DMF 34on 9:16-22; at DMF 35 on 9:23-27; at DMF 145 on 34:4-5; DFM 36 on 34:6-9]. Defendants argument is a badfaith attempt to controvert Watsons testimony when it isdamaging, but to otherwise rely on it when it suits them.

Watson was scrupulous about stating in his depositionwhen he did or did not have clear or certain recall. [LeeOpp. Decl., Exh. 10 (Watson depo. at 13:17-14:19, at38:9-40:5)]. Watson confirmed several times that heclearly recalled the JCC deciding on the Nonrenewal forthe reasons he stated.

[Lee Opp. Decl., Exh. 10 (Watson Depo. at 110:12-111:5;111:15-24; at 113:15-114:4)].


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a) Kern County Board ofSupervisors did not discussthe non-renewal of Jadwinsemployment agreement ormade any decisionsregarding the non-renewal of

the employment agreement.The subject never camebefore the Board ofSupervisors.

Decl. ofMichaelRubio,11/10/08,2; Decl.of

RaymondWatson,11/10/08,3, 4 and5; Decl. ofMikeMaggard,11/10/08,2; Decl.of JonMcQuiston,11/10/08,2; Decl.

of DonMaben,11/10/08,2

See evidentiary objections.Disputed: Defendants declarations submitted bymembers of the Kern County Board of Supervisorsasserting that the Board never discussed or made anydecision regarding nonrenewal or expiration of Plaintiffs

contract proves nothing about whether such a decision ordiscussion occurred at the JCC level. The absence of adecision by the Board of Supervisors in no way precludesa decision being made by the JCC. Again, Watsonconfirmed several times that he clearly recalled the JCCdeciding on the Nonrenewal.[Lee Opp. Decl., Exh. 10 (Watson Depo. at 30:10-13;110:12-111:5; 111:15-24; 113:15-114:4)].

Disputed: a party cannot create an issue of fact by adeclaration contradicting his or her own deposition orother sworn testimony. SeeBlock v. City of Los Angeles(9th Cir. 2001) 253 F3d 410, 419, fn. 2. The same ruleapplies to postdeposition affidavits that contradict the

affiants deposition testimony.Aerel, S.R.L. v. PCCAirfoils, LLC(6th Cir. 2006) 448 F3d 899, 907908;Bankof Ill. v. Allied Signal Safety Restraint Systems (7th Cir.1996) 75 F3d 1162, 1169.

37. Letter from Karen Barnes(hereinafter referred to asBarnes) to Plaintiffs attorneyEugene Lee, dated 7118/06,in which she mentions (pg. 2)that Jadwin was removed aspathology department chairon 7/10/06 at a regularly

scheduled meeting of theJoint Conference Committee,pursuant to Bylaws articleIX, section 9.7-4 removal ofa department chair may occurwith or without cause ..

DFJ01359-1361


Disputed: The Bylaws failure to provide for due processin connection with the Demotion is a violation of dueprocess. Because the Bylaws were ratified by the KernBoard of Superviors, it establishes the 42 USC 1983liability of Defendant County underMonell.

38. Plaintiffs attorneyEugene Lee agrees thatJadwin was not removed aschair during his medicalleave.

BryanDepo.,8/14/08,pg. 222:8-13


39. Letter to Dr. Harris fromJadwin, dated 9111/06,stating that he (Jadwin) willbe returning to work on9/18/06 and enclosed was adoctors certification that hewas able to return to workfull-time.

DFJ01388-1389 Undisputed that the document says what it says.


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40. Letter from DavidCulberson to Jadwin, dated9/20/06, explaining thereasons for reduction inpay.


41. Letter from DavidCulberson to Jadwin, dated12/7/06, putting Jadwin onadministrative leave with payand confining him to hishome during business hours,pursuant to Kern CountyPolicy and AdministrativeProcedures Manual section124.3.

DFJ01482 Undisputed that the document says what it says.

a) Kern County Policy andAdministrative ProceduresManual, pg. 1:22, Sectiontitled Administrative Leavewith Pay. During theadministrative leave, theemployee shall be ordered toremain at home and availableby telephone .. .

0016941 See evidentiary objections.


42. Letter from MarkWasser to Eugene Lee,dated 4/30/07, allowingJadwin to pursue his ownactivities during the workweek and retaining him, at

his usual salary, forconsulting.

DFJ01701 See evidentiary objections: Irrelevant to excusingDefendants liability under any of Plaintiffs counts, asevidenced by Defendants failure to cite this DMFanywhere in their motion brief (Doc. 262).


Disputed: Defendant County was not retaining Plaintifffor consulting. Rather, the intent was to run out the termof his existing contract, which was due to expire onOctober 4, 2007.[Lee Supp. Decl. (Doc. 267), Exh. 21 (Rog No. 43 at53:3-9); Lee Supp. Decl. (Doc. 267), Exh. 22 (Rog. No.44, 28:17-22); Lee Supp. Decl. (Doc. 267), Exh. 6(Wasser Email to Lee of 5/1/07 at DFJ01705)].


43. Letter to Mark Wasser

from Eugene Lee, dated5/1/07, noting that on4/28/07 and in severalfollowing e-mails he wasnotified that KMC wanted toterminate Jadwins contractand would not renew it on10/4/07.

DFJ01703

-1704



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44. Exhibit 644 is an e-mailwith an amendment attachedto it. The amendment is acontract amendment whichJadwin had to sign beforereturning to work. Exhibit

581 is also the same contractamendment although Exhibit581 is signed. There aredifferences between Exhibit644 and 581, insubparagraphs h and i.Jadwin confirmed that he haddiscussions with his attorneyabout the amendment;Jadwin does not know if hisattorney negotiated any ofthe terms in it. Jadwin doesnot know if his attorneymade proposals to KMC with

suggested changes in thelanguage of the amendment.Jadwin was aware of thechanges at the time theyoccurred but he does notrecall how the changes cameabout. One change thatJadwin recalls talking aboutis the cut in his salary whichhe didnt agree with.

JadwinDepo.,3/12/08,pgs.969:1-974:2

(Exhibits644 and581)


Undisputed that the amendment is a contract amendmentwhich Jadwin had to sign before returning to work.

Disputed: Plaintiffs confirmation of discussions with his

attorney about the amendment proves nothing, much lessthat Plaintiff negotiated the amendment with Defendants.In fact, later, Plaintiff confirmed he did not know whetherhis attorney had engaged in negotiations or madeproposals regarding the amendment.

Disputed: Defendants cite DMF 44 in support of anaffirmative defense that the Paycut Amendment was anovation of Plaintiffs employment contract, thusextinguishing all prior claims. This is an unpleadedaffirmative defense which Defendants failed to plead asrecently as October 27, 2008, when they filed theirAnswer to the Second Amended Complaint. It should bestricken.


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45. The last two pages ofExhibit 581 is Exhibit Awhich is a job description.Jadwin confirms that he readit at the time of signing theamendment. Jadwin looked

at the tasks listed and doesnot believe that any of thosetasks requireaccommodation. Jadwin doesnot recall asking anyone withthe County for anaccommodation of any of thetasks listed in Exhibit A.

JadwinDepo.,3/12/08,974:3~976:l2


Disputed: Plaintiff had requested reasonableaccommodation of his disability by asking to extend hispart-time medical leave. Bryan refused on 4/28/06,

forcing Plaintiff onto Forced FT Leave.[Jadwin Decl. (Doc. 265), Exh. 6 (Jadwins Request forLeave Extension of 4/26/06 at DFJ00157), Exh. 4(Jadwins Email to Bryan, Chester, & Dutt of 3/16/06 atDFJ00752)]

[Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19;Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo.at 983:23-984:1, 94:23-985:4).]

Plaintiffs testimony is unrefuted: Defendant Bryanadmitted in Depo. that it was his idea that day to havePlaintiff convert his part-time leave to full-time, basedupon a perception that Plaintiffs part-time leave was

creating issues within the Pathology department (not aconcern that part-time work might worsen Plaintiffscondition).[Lee Opp. Decl., Exh. 2 (Bryan Depo at 249:24-250:19;Exh. 4 (Jadwin Depo. at 384:9-13); Exh. 5(Jadwin Depo.at 983:23-984:1, 94:23-985:4).].

46. Jadwin testified that he

wanted his employmentcontract renewed, but whenpresented with the fact thathis employment contract inplace at the time ofnonrenewal contained hisreduced salary, he deniedwanting to renew thatcontract.

Jadwin

Depo.,10/21/08,pg. 1011:161016:19

See evidentiary objections. Completely misstates

Plaintiffs testimony.

47. Jadwin said that thecontract he wanted renewedwas his Department Chair

contract.

JadwinDepo.,10/21/08,

pgs.1032:161033: 3; pg.1043:12-20

See evidentiary objections. Completely misstatestestimony.

Disputed: What Plaintiff wanted is irrelevantto establishing what he was willing to agree to in terms ofcontract renewal. Plaintiff testified on the record that heexpected his contract to be renewed on 10/4/07 and thathe would have continued prosecuting his lawsuit, had itbeen renewed. [Lee Opp. Decl., Exh. 6 (Jadwin Depo. at1096:9-14; 1096:22-1097:3)].


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JADWINS

ALLEGATIONS OF

REGULATORY

VIOLATIONS

48. Approved CancerProgram PerformanceReport for KMC, dated7/14/04, with a rating of Imeaning KMCs Cancerprogram-including numberof meetings-is approved forthree years withcommendation.

0000623-630



Disputed: See evidentiary objections: Irrelevantas this isallegedly a report issued as of 7/14/04, more than a yearbefore the October Conference of 10/12/05 and theCredential Threat and before Plaintiff reported concernsthat the monthly oncology conference was not compliantwith accreditation requirements.

49. Exchange of e-mails

between Toni Smith andJadwin, dated 6/15/05,about the PCC issues. In0000423, Jadwin states thata PCC must not be signeduntil the time of theinfusion, or KMC is notmeeting AmericanAssociation of BloodBanks (hereinafterreferred to as AABB)accreditation standards.

0000421-

424

See evidentiary objections: Irrelevant to excusing

Defendants liability under any of Plaintiffs counts, asevidenced by Defendants failure to cite this DMFanywhere in their motion brief (Doc. 262).


50. Typed notes, dated1/10/06, of interviews doneto rebut Jadwins claimthat the meeting frequencystandard set by theAmerican College ofSurgeons (hereinafterreferred to as ACS) was notbeing met at KMC.

0000575 See evidentiary objections:

Irrelevant to excusing Defendants liability under any ofPlaintiffs counts, as evidenced by Defendants failure tocite this DMF anywhere in their motion brief (Doc. 262).

51. In meeting on 2/22/06,Jadwin alleges that KMC isnot meeting the ACS

standard for frequency ofstaff meetings; wasrebutted during themeeting that KMC ismeeting standard based on2 surveys and paperwork.


Irrelevant to excusing Defendants liability under any of

Plaintiffs counts, as evidenced by Defendants failure tocite this DMF anywhere in their motion brief (Doc. 262).


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52. In an e-mail to PeterBryan dated 4/10/06,Jadwin brings up non-compliance with stateregulations, JointCommission for the

Accreditation of HospitalOrganizations (hereinafterreferred to as JCAHO),and AABB on the issues ofthe PCCs.


53. Notes of meeting withPeter Bryan, Karen Barnesand Jadwin on 4/13/06.There is no problem withthe PCCs because 5 chartswere reviewed (andapproved) by JCAHO.

DFJ00788 See evidentiary objections:Irrelevant to excusing Defendants liability under any ofPlaintiffs counts, as evidenced by Defendants failure tocite this DMF anywhere in their motion brief (Doc. 262).

54. E-mail to Peter Bryanfrom Jadwin, dated4/17/06, claiming that theJCAHO review was toosmall of a sample so KMCwas not in compliance ontheir handling of the PCCsand there was a need foraction.


55. Gilbert Martinez, theLaboratory manager, recallsJadwin telling him before

Thanksgiving in 2006 toprepare the laboratory forpossible inspections (sosometime before 11/22/06).He does not recall if Jadwintold him how Jadwin mightknow about it. He remembersinspectors coming in fromthe California Dept. ofHealth Services (hereinafterreferred to as DHS) andreceiving written inquiriesfrom the CAP. These

inspections occurred severalmonths after Jadwin hadmentioned it. Jadwin did notconfide in him or tell himthat the inspections werehappening because ofwhistleblowing by Jadwin.

MartinezDepo.,4/16/08,

pgs. 111:12-118:22

See evidentiary objections.Disputed: Dr. Philip Dutt, Acting Chair of Pathology,

testified as PMK for the County on 8/29/08 that by theMonday following Thanksgiving 2006, he had had aconversation with Harris regarding Plaintiffs statement toMartinez that he was going to report the hospital toJCAHO, CNPS [sic] . . . either the Friday beforeThanksgiving that year or the Monday after thatweekend. [Lee Opp. Decl., Exh. 12 (Dutt Depo. at 10:5-24)].


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a) CAP conducts routineinspections, unannounced, ona known periodic basis.

MartinezDepo.,4/16/08,pgs.118:23-120:19


56. Jadwin first reportedconcerns to JCAHO, CAP,and DHS in November 28,2006 (more than five yearsafter noticing allegedviolations).

Disputed only as to the statement more than five yearsafter noticing alleged violations. There is no support forthis statement.

a) Actual complaint filedwith JCAHO by Jadwin.

DFJ02540-2541

Undisputed.

b) E-mail from JCAHO toJadwin, dated 11/29/06,acknowledging receipt ofcomplaint about KMC.


c) Letter from DHS toJadwin, dated 12/1/06,acknowledging receipt ofcomplaint.


57. E-mail to JCAHO fromJadwin, dated 12/8/06,wanting to talk with theJCAHO investigator andrequesting quickness on the

investigation because KMCmight be covering upnoncompliance evidence.He brings up the issue ofskull flaps being stored on-site.

DFJ02538-2539


Misstates the evidence.

58. Letter to KMC fromJadwin dated 12/13/06notifying hospitaladministration that he hasnotified governmental andenforcement agencies of

alleged violations.

0001455-1458

Undisputed.


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59. Letter from Dr. Dutt toGerald Hoeltge of the CAP,dated 1/11/07, telling himthat Jadwin had neverinformed him (Dutt) thatsome tissue handling and

storage was occurring butthe situation has been takencare of.



Undisputed that unlicensed tissue handling and storagewas occurring.

60. Letter to Dr. Dutt fromCAP, dated 3/22/07,informing him that theKMC laboratory continuesto be in compliance withthe CAP Standards forLaboratory Accreditation.



61. Dr. Dutt believed thatJadwin, after returningfrom leave, might beintentionally issuing wrongopinions to prove he was awhistleblower.

DuttDepo.,8/20/08,pg. 296:10- 19

See evidentiary objections:


DEPRESSION

DISABILITY,

REASONABLE

ACCOMMODATION,

INTERACTIVE

PROCESS62. Jadwin described hisdisability as severedepression, manifested by alack of ability to concentrate;loss of joy in his work;extreme anxiety anddifficulty sleeping. Jadwintestified that he told Dr.Kolb, during a meeting hehad with him in 2003, that hewas depressed. Jadwinthought this meeting was a

one-on-one weekly meetingthat each department chairhad with Dr. Kolb. Jadwinsaid that Dr. Kolb must havenoticed that he was depressedbecause he would often askhim if he was alright.

JadwinDepo.,1/9/08,pgs.414:24-418:12

See evidentiary objections.Undisputed.


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63. Jadwin told Dr. Kolb thathe suffered from depressionwhen he notified him of theweekly half-day medicalleave day off to see histherapist.

JadwinDepo.,1/9108,pgs.491:1-493:17


64. Jadwin asked Dr. Kolbfor accommodations for hisdisability by requesting timeoff for his therapist visits. Dr.Kolb granted thataccommodation.

JadwinDepo.,1/9108,pgs. 506:16-507: 1


65. Jadwin had an episode ofdepression in the 1990sbefore coming to work atKMC. Jadwin affirmed hisearlier testimony that hisrecent depression started in2002 or 2003. Jadwin saidthat he was taking weeklyhalf-day leaves starting in orabout 2003 and he told Dr.Kolb it was because of hisproblems with radiology andothers.

JadwinDepo.,1/9/08,pgs.452:4-455:19Pg. 455:8-13


66. Bryan does not recallJadwin mentioning to himabout depression,sleeplessness, etc. nor didBryan notice behavior that

he would call mentalillness.

BryanDepo.,8/14/08,pgs. 1ll:12113: 2

and128:16-129:3



Disputed: This is pretext. Bryan testified that he recalledreceiving a letter from Plaintiff on 1/9/06 in whichPlaintiff stated he was depressed and requested leavedue to his depression. [Lee Supp. Decl., Exh. 10 (BryanDepo at 105:7-106:2); Lee Decl., Exh. 9 (Jadwin letter toBryan of 1/9/05 on Bates 0001140)]. Defendants alsoadmit that Plaintiff had told Kolb he was depressed in2003 and was accommodated in the form of part-timeleave so he could obtain treatment. [Defendants Motion(Doc. 262) at 27:12-14 (Plaintiff first complained ofdepression in 2003. He told Dr. Marvin Kolb, ChiefMedical Officer at the time, that he suffered from an

inability to concentrate, anxiety, and sleeplessness);Defendants Separate Statement (Doc. 259) at DMF 62-64]. On 1/17/06, Bryan also sent a letter to the KernBoard of Supervisors in which he stated he had becomeconcerned about Plaintiffs emotional health. [LeeDecl., Exh. 10 (Bryan memo to BOS of 1/17/06 at item 8on Bates 0001567)].


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67. Jadwin only discussed hisdisability with Dr. Kolb.When asked whether he hadever told Peter Bryan, Jadwinsaid that subsequently duringone-on-one meetings with

Bryan he had mentionedbeing depressed by lack ofaction on the concernsJadwin was raising. Whenpressed on whether he hadever actually told PeterBryan he was disabled,Jadwin said that in late 2005or early 2006, he told Bryanthat sometimes he was sodepressed he couldnt workat KMC anymore until itfixed some of his concerns.Jadwin said that he also told

Dr. Yoo, head of psychiatry,that he was depressed fromworking at the hospital.Jadwin does not recalltalking to Dr. Dutt about thisissue. Jadwin could not recallany other people at KMCthat he talked to about hisdisability. In fact, Jadwinwould not use the termdisabled just that he couldnot work there.

JadwinDepo.,3/12/08,pgs. 976:13983: 2lines

977:5-8and lines977:24-978:8 andlines 981:17-982: 1and lines982: 18-24 lines978: 15-979:1lines979:24-980:8

lines982:9-24

See evidentiary objections.Disputed: Bryan testified that he recalled receiving a letterfrom Plaintiff on 1/9/06 in which Plaintiff stated he wasdepressed and requested leave due to his depression.[Lee Supp. Decl., Exh. 10 (Bryan Depo at 105:7-106:2);

Lee Decl., Exh. 9 (Jadwin letter to Bryan of 1/9/05 onBates 0001140)].

On 1/17/06, Bryan also sent a letter to the Kern Board ofSupervisors in which he stated he had become concernedabout Plaintiffs emotional health. [Lee Decl., Exh. 10(Bryan memo to BOS of 1/17/06 at item 8 on Bates0001567)].

Defendants also admit that Plaintiff had told Kolb he wasdepressed in 2003 and was accommodated in the form ofpart-time leave so he could obtain treatment. [DefendantsMotion (Doc. 262) at 27:12-14 (Plaintiff firstcomplained of depression in 2003. He told Dr. Marvin

Kolb, Chief Medical Officer at the time, that he sufferedfrom an inability to concentrate, anxiety, andsleeplessness); Defendants Separate Statement (Doc.259) at DMF 62-64]. Once Plaintiff informed Kolb, theCMO, of his disability, Defendant County was legally onnotice of his disability.

68. When asked whatconsiderations there werein renewing a contract withKMC, Jadwin replied Allof the workingenvironment situations.The patient quality issues,the administration, what-what type of administrativeoperation is there. Theemphasis on quality,interest in quality. Interestin patient safety. The

collaborative workingenvironment. Are the otherphysicians going to beresponsible in working forthe betterment of patientcare, or are they just goingto be working for their ownself-interest.

JadwinDepo.,10/21/08,pgs.1055:13-1056: 15




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JADWINS ERRORS

Failure to Produce Timely

or Correct Diagnoses

69. Dr. Ragland brings up theissue that a stack of FNAreports that Jadwin had givenhim had issue dates after thedate of a double read, in eachcase, was done by UCLA.This raises the possibilitythat Jadwin waited to enter adiagnosis until the doubleread had come back fromUCLA so that he could be in100% agreement withUCLA.

RaglandDepo.,8/22/08,pgs.171:5-172:5 and328:7-329: 14

See evidentiary objections.Disputed: Ragland testified that he never even bothered toinvestigate his serious fraud concern by speaking withPlaintiff or UCLA or even Dutt directly. Had he done so,Plaintiff would have explained that the he issueddiagnoses to clinicians PRIOR to sending reports out toUCLA for confirmatory review and that when he laterreceived UCLAs confirmatory reports, he entered theminto the KMC computer system, which automaticallyupdates the Completed report date to the date of the lastmodification. The Completed date does not equate tothe date when Plaintiff issued his own diagnosis that waslater confirmed by UCLA. This quickness to concludePlaintiff had engaged in wrongdoing -- by fraudulently

withholding diagnoses until UCLA issued their reports sothat he could issue parallel diagnoses -- without informingPlaintiff of the suspicions or allowing him to explainhimself was typical of how Ragland and KMC officersdealt with Plaintiff. [Lee Opp. Decl., Exh. 9 (RaglandDepo. at 171:22-172:7; 173:19-23; 174:7-175:24; 177:15-176:12; 181:20-182:3); [Jadwin Opp. Decl., para. 5].Even worse, Ragland spread rumors of Plaintiffssuspected FNA fraud so that he was tried and convicted inthe court of opinion. [(Lee Opp. Decl., Exh. 27 (AbrahamDepo. at 73:15-74:16)]. Abraham admitted she stilldoesnt trust Jadwin's competence. [Id. at 77:10-18].

70. Letter from Dr. Ang to

Dr. Perez, Peter Bryan, Dr.Kolb, and Dr. Munoz, dated2/20/02, containing formalcomplaints of misconductagainst Jadwin. Complaint #3states that Jadwin failed topass the quarterly proficiencytests on cervical pap smearsso those tests are sent out. Itstates that this was anunnecessary cost and delaybecause the other threepathologists in thedepartment could examinethe pap smears because theyhave maintained theirproficiency.

0000690-

691,0000736

See evidentiary objections: Irrelevant to excusing

Defendants liability under any of Plaintiffs counts. Itpredates the October Conference of 12/16/05 by severalyears. Also, it is pretext. On 12/26/03, Defendant Countyincreased Plaintiffs biweekly base salary from$10,679.43 to $11,021.08 establishing that DefendantCounty was satisfied with Plaintiffs performance as ofthat date. [Lee Opp. Decl., Exh. 21 (Change of EmployeeStatus of 12/26/03 at Bates DFJ00247).

Disputed: Plaintiffs proficiency with cervical pap smearsis irrelevant. KMC had outsourced Pap smear analysis andwas no longer conducting them by 2002. Moreover,Kolbs investigative report concluded that there was nobasis for any of Angs accusations. [Lee Opp. Decl., Exh.20 (Kolb memo to Perez of 3/12/02 at Bates 0000676-677)].


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a) Document assertingJadwins failing test scoresand the fact that theDepartment of Pathology hasnot been sued for medicalmalpractice in 23 years.

0000737 See evidentiary objections.See evidentiary objections: Irrelevant to excusingDefendants liability under any of Plaintiffs counts. Itpredates the October Conference of 12/16/05 by severalyears. Also, it is pretext. On 12/26/03, Defendant County

increased Plaintiffs biweekly base salary from$10,679.43 to $11,021.08 establishing that DefendantCounty was satisfied with Plaintiffs performance as ofthat date. [Lee Opp. Decl., Exh. 21 (Change of EmployeeStatus of 12/26/03 at Bates DFJ00247).


Whether or not the Department of Pathology has not beensued for malpractice is irrelevant to prove that suchmalpractice did or did not occur.

b) Jadwins actual (failing)test for cervical pap smears.This test is conducted by theCollege of AmericanPathologists (CAP). Ofinterest, on Case #3 Jadwinmarked unsatisfactory forevaluation when the

accurate diagnosis wassquamous cell carcinoma.


Irrelevant to excusing Defendants liability under any ofPlaintiffs counts. It predates the October Conference of12/16/05 by several years. Also, it is pretext. On 12/26/03,Defendant County increased Plaintiffs biweekly basesalary from $10,679.43 to $11,021.08 establishing thatDefendant County was satisfied with Plaintiffs

performance as of that date. [Lee Opp. Decl., Exh. 21(Change of Employee Status of 12/26/03 at BatesDFJ00247).



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71. Report to MaureenMartin from Jadwin, dated11/20/02, on the results ofthe evaluations of thepathologists (Jadwin andLang) by resident physicians

and staff physicians insurgery. On a three-pointscale, where 2 meanssatisfactory and 3 meansneeds improvement, Jadwinscored low on timeliness(lower than Lang), IOCquality, completeness, andclarity of diagnosis. Jadwinblamed unhappiness of a Dr.Prunes for his low scores.

0001059-1072

See evidentiary objections.Irrelevant to excusing Defendants liability under any ofPlaintiffs counts. It predates the October Conference of12/16/05 by several years. Also, it is pretext. On 12/26/03,Defendant County increased Plaintiffs biweekly base

salary from $10,679.43 to $11,021.08 establishing thatDefendant County was satisfied with Plaintiffsperformance as of that date. [Lee Opp. Decl., Exh. 21(Change of Employee Status of 12/26/03 at BatesDFJ00247).

Disputed: Defendants neglect to mention that Plaintiffscored higher than Lang on 14 out of 16 of the criteria andalso overall.

72. Twenty-nine (29)medical reports from 2004and 2005 with all of thefollowing in common: 1) allare FNA reports; 2) all wereprocessed in-house and thensent to outside labs forindependent diagnosis; and3) the turn-around time forthe final diagnosis rangedfrom three weeks to five orsix months.

0001163-1310

See evidentiary objections.Disputed: Ragland testified that he never even bothered toinvestigate his serious fraud concern by speaking withPlaintiff or UCLA or even Dutt directly. Had he done so,Plaintiff would have explained that the he issueddiagnoses to clinicians PRIOR to sending reports out toUCLA for confirmatory review and that when he laterreceived UCLAs confirmatory reports, he entered theminto the KMC computer system, which automaticallyupdates the Completed report date to the date of the lastmodification. The Completed date does not equate tothe date when Plaintiff issued his own diagnosis that waslater confirmed by UCLA. This quickness to concludePlaintiff had engaged in wrongdoing -- by fraudulently

withholding diagnoses until UCLA issued their reports sothat he could issue parallel diagnoses -- without informinghim of the suspicions or allowing him to explain himselfwas typical of how Ragland and KMC officers dealt withPlaintiff. [Lee Opp. Decl., Exh. 9: 171:22-172:7; 173:19-23; 174:7-175:24; 177:15-176:12; 181:20-182:3].


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73. Letter from Dr. Roy toJadwin, dated 4/15/05,complaining that samplesfrom 2 cases still had notbeen analyzed and diagnosedand were over one week late.


Defendant County retained outside pathology experts andsent out the pathology cases of which Roy complainedand several others to such experts for evaluation ofPlaintiffs performance. The experts determined that

Plaintiffs performance had been exemplary. Dr. WilliamColburn was retained by Kern County to evaluate 21 ofPlaintiffs pathology reports. [Lee Opp. Decl., Exh. 22(Colburn Agreement with Kern County of 5/15/06)]. Dr.Colburn issued an extensive report 3 months later thatconcluded that Plaintiffs overall performance was foundto exceed the usual standard of care exercised by apracticing surgical pathologist in a busy tertiarycommunity hospital, that Plaintiffs reports werecompleted in what I believe to be a timely manner, thathis reports were authoritative in all aspects renderingconcise tissue diagnoses, that he appropriately solicitedexpert extramural consultation opinions from notedpathologists, and to his credit constantly up-dated the

primary surgeon of record in all instances as to theirprogress. He also concurred with Plaintiffs finaldiagnoses in 20 of 21 cases. [Lee Opp. Decl., Exh. 23(Colburn Report to Barnes of 8/30/06 at Bates 0025924)].

Moreover, Harris, then-CMO, testified that before[Plaintiffs] leave of absence there was no qualityconcern. Ive said that four times now. There was noquality concern over the cases prior to October of 2006.[Lee Opp. Decl., Exh. 24 (Harris Depo at 192:7-13); seealso Lee Opp. Decl., Exh. 24 (Harris Depo at 409:21-410:3)]. Harris further testified: I wasnt even aware thathis competency was an issue in this case. When

Plaintiffs counsel responded: Well, it certainly wasntfrom our view, Mr. Wasser, defense counsel of record,volunteered: Its not from the defense either, but keepgoing, Counsel. We covered that before. [Lee Opp.Decl., Exh. 25 (Harris Depo at 411:4-20)].

Regarding the period after Plaintiffs return to work as astaff pathologist on 10/4/06, Harris testified that allcomplaints about Plaintiffs competency were directed tohim [Lee Opp. Decl., Exh. 24 (Harris Depo. at 60:14-22)];and that Defendant County never conducted any peerreview in response to any of those complaints. [Lee Opp.Decl., Exh. 24 (Harris Depo. at 58:4-59:1)].


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74. Letter to Dr. Roy fromJadwin, dated 4/20/05, inresponse to his complaintabout late diagnoses. Onpage 3 Jadwin writesPathology diagnoses are

consensus based, with fewgold standards to affirmaccuracy. Consultants offeropinions, not accuratediagnoses. There is nouniversally agreed upondefinition for whatconstitutes an accuratediagnosis.

DFJ00364-366

See

Documents

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