Case 1:07-cv-00026-OWW-TAG Document 291 Filed 12/08/2008 Page 1 of 11

1 Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 2640
Sacramento, CA 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasserlalmarkwasser.com

5 Bernard C. Barmann, Sr. CA SB #060508

KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy CA SB #101838
1115 Truxtuu Avenue, Fourth Floor
7 Bakersfield, CA 93301
Phone: (661) 868-3800
8 Fax: (661) 868-3805
E-mail: mnations@co.kern.ca.us
9
Attorneys for Defendants County of Kern,
10 Peter Bryan, and Irwin Harris

11

12 UNITED STATES DISTRICT COURT

13 EASTERN DISTRICT OF CALIFORNIA
14

15 DAVID F. JADWIN, D.O. Case No.: 1:07-cv-00026-0WW-TAG

16 Plaintiff, DEFENDANTS' MEMORANDUM OF
POINTS AND AUTHORITIES IN REPLY
17 vs. TO PLAINTIIF'S OPPOSITION TO
DEFENDANTS' MOTION FOR
18 COUNTY OF KERN, et ai., SUMMARY JUDGMENT
19 Defendants. Date: January 12,2009
Time: 10:00 a.m.
20 Place: U.S. District Court, Courtroom 3
2500 Tulare Street, Fresno, CA
21
Date Action Filed: January 6, 2007
22 Trial Date: March 24, 2009
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DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORlTIES IN REPLY TO PLAINTIFF'S

OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
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1 Defendants submit this memorandum of points and authorities in reply to Plaintiffs

2 opposition to Defendants' motion for summary judgment.
3 A. Spoliation
4 Raising in his opposition an issue he did not raise in his moving papers, Plaintiff alleges
5 three individuals employed by the County destroyed evidence in this case. This is specious.
6 With regard to David Culberson, KMC's interim Chief Executive Officer, the deposition
7 testimony Plaintiff cites ("PMF 242"), when read in its entirety, shows the notes Mr. Culberson
8 destroyed were inconsequential reminders about topics to be discussed at meetings. (Culberson
9 Depo., 8/21/08, pgs. 45: 17-46:11). Mr. Culberson testified it was his usual practice to discard
10 notes of this type. There is no indication his notes had anything to do with this case. (Culberson
11 Depo., 8/21/08, pg. 42:8-17; pgs. 45: 10-46: 11. See also, pg. 47: 10-51 :6). Furthermore, to the
12 extent Mr. Culberson attended meetings where minutes were kept, the minutes would be the best
13 evidence of what transpired at the meetings and the minutes have all been produced.
14 Supervisor Barbara Patrick does not recall whether she took notes at the Joint Conference
15 Committee meeting where the vote was taken to remove Plaintiff as Chair. (PSUF ~234, Patrick
16 Depo., 8/19/08, pgs. 70:8-73:7). She described any notes she might have written on her copies
17 of the agendas as "doodles." Id. Again, the minutes would be the best evidence of topics
18 discussed at the meetings and all the minutes have been produced.
19 Finally, Dr. Ragland testified that his standard and long-standing practice is to delete e-
20 mails after he reads them. The hard disk on the computer that had been assigned to Plaintiff was
21 both searched and produced and the e-mail exchange Plaintiff inquired about was not on
22 Plaintiffs computer, either. Thus, it is likely the e-mail exchange Plaintiff inquired about
23 occurred before Plaintiff asked the Defendants to preserve e-mails. Further, Plaintiff clearly had
24 control over the information in question because he discussed it during a Medical Executive
25 Committee meeting. (Ragland Depo., 8/22/08, pgs. 90:10-91:17)
26 B. Medical Leave
27 Plaintiff argues that Bachelder v. America West Airlines, Inc., (9 th Cir. 2001) 259 F.3d
28 1112 is controlling and establishes that Defendants interfered with his right to medical leave and
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I retaliated against him for taking medical leave. Bachelder actually supports the Defendants.
2 In Bachelder, the court held the plaintiff/employee's absences were protected by FMLA
3 because they occurred during her 12 workweeks of protected leave. Id. at 1132. The
4 defendant/employer had not specified which of the four "leave year" calculations, described in
5 29 C.F.R. §825.200, it would use to calculate FMLA leave. Id. at 1129. Consequently, the court
6 calculated the plaintiff/employee's leave under the method that was most advantageous to her.
7 Id. This was the "calendar year" method and, under that method, the absences for which the

8 plaintiff had been terminated occurred within the protected 12-week period.
9 Here, the facts are different. The County had designated a "rolling leave year" for the
10 purpose of calculating FMLA leave. (Bates Nos. 0018974-0018976; 29 C.F.R. §825.200(b)).
II Plaintiff exhausted his 12 weeks leave by June 14,2006 (DSUF ~~30, 32, and 38) but was not
12 removed as Chair until July 10, after he refused the COlmty's invitation to return to work.
13 (DSUF ~~19, 23, and 33). The relevant language from Bachelder is the court's comment that "it
14 should be obvious" that FMLA offers no protection for absences that exceed those authorized by
15 the statute. Bachelder, 259 FJd at 1125. Thus, it offers no protection for Plaintiff.
16 c. Due Process
17 Plaintiff erroneously asserts Defendants have "expressly recognized" the constitutional
18 right of chairs to not be demoted without due process. (Pltf.'s Opp. to Defts.' Motion for
19 Summary Judgment, pg. 14, ~4). In "support", he relies on minutes of the Joint Conference
20 Committee meeting of September 10, 2007 during which someone said, with reference to Dr.
21 Leonard Perez, "Dr. Perez is entitled to a due process hearing." (PSUF ~257). That was true.
22 However, Dr. Leonard Perez's employment was terminated for cause. (Id.; JCC Meeting
23 Minutes of 9/1 0/07 at Agenda Item 6 on Bates 0009221). Plaintiff would also have been entitled
24 to a hearing ifhe had been terminated. (See, Plaintiffs employment agreement, DSUF '[6,
25 Section IV, ~3, pg. 14).
26 But, Plaintiff was not terminated. He was simply removed as department chair.
27 Plaintiffs employment was subject to the KMC medical staff bylaws (DSUF ~~4 and 6b) and the
28 Bylaws provide that chairs can be removed without cause on recommendation of the Chief
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DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S

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I Executive Officer. (DSUF ~4, Article IX, Section 9.7-4, pg. 48). Procedures that applied to the
2 termination of Dr. Perez's employment do not apply to Plaintiffs removal as Chair.
3 Other provisions of Plaintiff's contract provided that he was not a classified employee,
4 did not have rights under the County's Civil Service system (DSUF ~6, Article V, ~IO, pg. 16),
5 and was required to comply "with all applicable KMC and County policies and procedures" (Id.,
6 Article V, ~7, pg. 15). Administrative leave is expressly authorized by the County's policies. Id.
7 On July 10,2006, after Plaintiff had been absent from the hospital on self-imposed exile
8 for 8 months, the Joint Conference Committee, acting on the recommendation of the hospital's
9 chief executive officer and in accordance with the Bylaws, voted to remove Plaintiff as Chair of
10 the Department of Pathology. (DSUF ~33). Plaintiff had been previously told he had to be
II present ifhe wanted to continue to be Chair. (DSUF ~~20 and 22).
12 Plaintiff was not "demoted" as that term is used in the Bylaws. "Demotion" is
13 referenced in Section 12.2 as one of several possible corrective actions. (DSUF ~4, Article XII,
14 ~12.2, pg. 71). It means moving a medical staff member to a "lower staff category or
15 membership status." Id. The categories of medical staff are also defined in the Bylaws (See,
16 Article V, "Categories of Membership," DSUF ~4, pgs.18-28) and are: Active, Courtesy,
17 Consulting, Provisional, Honorary, Retired, Advisory, Administrative, and Associate. Id.
18 Plaintiff was always in the "Active" category with full rights of membership and clinical
19 privileges. (KMC Letter to Jadwin, dated 8/14/01 to 9/12/08).
20 D. Plaintiff's Alleged Disability.
21 Plaintiff alleges he is a "disabled physician." He is not. He testified at his deposition that
22 he is not limited in any major life functions. (Jadwin Depo., 1/9/08, pgs. 465:3-467:18). He said
23 he could perform all the essential functions of this job without accommodation. (Jadwin Depo.,
24 1/9/08, pg. 416:6-7). His forensic psychologist was quite emphatic in his deposition testimony
25 that Plaintiff is not disabled within the meaning of either the ADA or FEHA. Dr. Reading
26 testified that it was "unequivocal" that Plaintiff "was asymptomatic when starting work at Kern
27 and so did not bring with him to the job any nascent depressive vulnerability." (PSUF ~134,
28 Reading Decl., pg. 59, ~3). Reading added that the "depressive disorder" Plaintiff experienced
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1 while working at KMC "would be considered to have been a first occurrence." ld.
2 Reading's opinion is consistent with Plaintiffs admission that he first complained about
3 depression in 2003 to Dr. Marvin Kolb, KMC's Chief Medical Officer at the time. (DSUF ~~65
4 and 67) Plaintiff bluntly asserts his "disability" was caused by working at KMC. (Second
5 Amended Complaint ~109). (See, e.g., DSUF ~~7, 65, and 67).
6 These facts, undisputed, establish that Plaintiff is not "disabled" within the meaning of
7 any of the applicable statutes. According to his own expert, Plaintiff was just "depressed." He
8 became "depressed" because of his on-the-job experiences at KMC. Because he did not bring
9 "any nascent depressive vulnerability" with him to KMC and his depression developed on the
10 job, it is clearly a work-related injury and his exclusive remedy is under the California Workers
11 Compensation Act.
12 Despite claiming he is not limited in any major life function and able to perform all
13 essential functions of his job, there is one thing he cannot do: He cannot work at KMC. (DSUF
14 ~~7, 65, 67, and 68; Jadwin Depo., 10/21/08, pp. 1051: 11 - 1052:5). This means he cannot
15 perform the most essential function of the job he had - which is to simply show up to work and
16 do his job. And that means he is not a "qualified individual" under either the ADA or FEHA.
17 E. Failure to Accommodate and Discrimination.
18 Plaintiff put himself on leave beginning in December, 2005. (DSUF ~l 0). Although he
19 told another physician he was going to stay on leave until the hospital's chief executive officer
20 "apologized" to him and asked him to come back to work (DSUF ~7 A), he has also testified he
21 put himself on leave because he was too "depressed" to work. He remained out of the hospital
22 for over 10 months, from December 15, 2005 to October 4,2006. (DSUF ~15; PSUF ~49).
23 Plaintiff did not tell KMC management he was on leave until January 9, 2006 and he
24 never told the County's Human Resources Department. (DSUF ~~7, 11). Human Resources had
25 to scramble to bring Plaintiff into compliance with County policy. ld.
26 Plaintiffs physician certification gave an expected return-to-work date of March 16,
27 2006. ld. However, Plaintiff took no steps after March 16 to either return to work or submit a
28 request for more leave. Human Resources finally notified him, on April 20, 2006, that his leave
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DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO PLAINTIFF'S

OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
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1 had expired. (DSDP ~18). Plaintiff then requested an extension of his leave of absence until
2 September 16, 2006. (DSDP ~19). He submitted a certification from his health care provider,
3 dated April 26, 2006, stating he required "part-time or less to avoid worsening of his serious
4 medical condition." [emphasis added] (DSDP ~14).
5 On April 28, 2006, KMC management met with Plaintiff and gave him a summary of his
6 medical leave history along with policies about medical leave. (DSDF ~20). He was reminded
7 that his responsibilities as Chair required him to be physically present at the hospital. (DSDF
8 ~20). The meeting was held to "insure that [PlaintiffJ had all information available concerning
9 his status and what was possible and not possible according to County policies." (DSDP ~22).

10 Plaintiffs medical certification that he required a "part-time or less" work schedule was a
11 sufficient basis for the County to propose full-time leave to Plaintiff. (DSDP ~~20 and 22).
12 Peter Bryan told Plaintiff he had the option to go on full-time leave (DSDP ~20) and Plaintiff
13 chose to do so - without complaint. (DSDP ~2l).

14 It is undisputed Plaintiff had exhausted his 12 weeks ofFMLA and CPRA leave by June

15 14,2006. (DSDP ~~30, 32, and 38). Plaintiff had been told his leave would expire in June, 2006
16 and that he needed to notify the County of his intention to either return to work or resign.
17 (DSDP ~20). Plaintiff, again, failed to respond as requested and, instead, asked for more leave.
18 (DSDP ~23). On June 14,2006, the County notified Plaintiff he could have more leave but
19 could not continue as Chair. (DSDP ~24).
20 By the time Plaintiff finally returned to work on October 4, 2006, he had effectively
21 destroyed his career as a pathologist. He had not practiced in over 10 months and, combined
22 with the personality traits that had destroyed his working relationships with the KMC medical
23 staff, (see discussion below) he could simply no longer do his job.
24 (While he was on leave because he was too "depressed" to work, Plaintiff actively
25 pursued at least six other full-time pathology positions, further showing there was only one place
26 he could not work. (DSDP ~8).)
27 Because Plaintiffs decisions to put himself on leave and choose which duties he would
28 do and which he would not do were made unilaterally and without input from the County (DSDP
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~~12 and 15; Second Amended Complaint ~80), when he returned to work the County reasonabl
2 imposed certain on him. (PSUF ~267, Lee Decl., Exh. 22). These were not "discriminatory."
3 During the brief period between October 4, 2006 and December 7, 2006, when he tried to
4 return, Plaintiff usurped the jobs of the lab techs in the pathology laboratory (DSUF ~177), and
5 further isolated himself from the medical staff. (DSUF ~~83, 177, 182, 184, and 186). When he
6 was asked to resume doing the blood bank reviews, he refused. (DSUF ~187). When counseled
7 about his performance, he blamed other staff members and verbally attacked them. (DSUF
8 ~179). He avoided the interim chair of the Department until he was finally counseled about his
9 lack of cooperation and failure to follow Departmental protocol. (DSUF ~~183 and 189).
10 Because he refused to talk with the interim chair about his work, some of Plaintiffs cases were
11 referred to the Peer Review Committee. (DSUF ~189). Plaintiff responded by complaining he
12 was being singled out for special treatment. (DSUF ~190).
13 Plaintiff was sloppy in his work habits. Other members of the pathology department
14 began to notice he was not removing "sharps" (i.e., blades) from the grossing (i.e. working) area.
15 (DSUF ~~82, 85, and 182, l82a, l82b). He mislabeled specimens. (DSUF ~84). After he
16 refused to send one specimen to an outside reviewer, he responded by sending almost all his
17 cases out, thereby taxing the Department's budget. (DSUF ~185). He failed to correctly proctor
18 another staff member who lacked the privileges to do fine needle aspiration. (DSUF ~180).
19 Plaintiffs attitude stressed his co-workers. He interfered in their work. (DSUF ~177).

20 He ordered other staff members to perform tasks outside of their job duties. (DSUF ~186). He
21 retaliated against doctors he did not like. (DSUF ~164). He was counseled for being hostile to at
22 least one other physician. (DSUF ~184). The interim chair of the Department was sufficiently
23 concerned about Plaintiff s behavior that he met with KMC management about it. (DSUF ~188).
24 The County was concerned that other staff members would file hostile work environment claims
25 because of their mistreatment by Plaintiff. (DSUF ~165).
26 The only responsible thing for the County to do was remove him from the work
27 environment in a way that would do the least damage to him and those around him. (DSUF
28 ~4l). The County pnt Plaintiff on paid administrative leave and let his employment contract run
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lout. There were no "charges" against Plaintiff and he suffered no stigma. He was just sent home
2 and was paid for staying there.
3 G. Defendants Had Legitimate Business Reasons For The Actions They Took.
4 During his tenure as Chair of the Pathology Department, Plaintiff behaved in an
5 increasingly confrontational and hostile way towards members ofthe KMC medical and non-
6 medical staff. (DSUF ~~69-190). As early as 2003, Plaintiff was counseled by the Chief
7 Medical Officer that his leadership style should be "kinder and gentler." (DSUF '1147). In
8 February, 2005, Plaintiff was told that "he was not acting like a team member." (DSUF ~149).
9 In October 2005, Plaintiff was described as lacking communication skills and failing to "extend
10 basic courtesy to his colleagues." (DSUF ~114). In April, Peter Bryan wrote Plaintiff that he
II must either improve his relationships with staff or step down as Chair. (DSUF ~160). Mr. Bryan
12 told him, "you have made many derogatory comments about some of the staff members." Ibid.
13 From the beginning, Plaintiff exhibited no self-awareness and little sensitivity to the
14 effect his behavior had on others. As early as 2003, Plaintiff wrote that complaints his behavior
15 were "irresponsible attempts by a few inadequate individuals." (DSUF ~147). He called Dr.
16 Irwin Harris, the Chief Medical Officer, an "idiot" on several occasions and he questioned Toni
17 Smith's competency as chief nursing officer. (DSUF ~~137 and 139).
18 Plaintiff wrote an e-mail accusing Dr. Abraham, the former medical staff president, of no
19 being "honest, objective or impartial." (DSUF ~148). In a later e-mail, he accused Dr. Abraham
20 of having an "inappropriate personality defect." (DSUF ~154). In another e-mail, he called Dr.
21 Abraham and Dr. Ragland "disgruntled, vindictive individuals." (DSUF ~158). In a letter to Dr.
22 Perticucci, Plaintiff called him "dishonest." (DSUF ~153).

23 He called Dr. Epstein's independent, outside diagnoses "cavalier." (DSUF ~142). He

24 called the radiologists at KMC "incompetent." (DSUF ~143c). Plaintiff publicly criticized the
25 pathology staff at the University of Southern California and Stanford University medical schools
26 at an Oncology Conference in October, 2005. (DSUF '(111).
27 In one particularly egregious incident, Plaintiff accused Dr. Ragland of being an
28 "impaired physician" with a "level of intellectual functioning well below the high school
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1 graduate level" and mental processes that are "chaotic and almost incoherent." He alleged that
2 Dr. Ragland might have a substance abuse, emotional and/or cognitive function disorder. He
3 suggested that Dr. Ragland be drug tested and his patient care duties monitored. (DSUF ~152).
4 This was all because Dr. Ragland sent Plaintiff an e-mail that contained spelling and
5 grammatical mistakes. ld. Plaintiff contacted the licensing board with these same accusations,
6 and he turned Dr. Ragland's e-mail over to KMC's psychiatry department. (DSUF ~152a).

7 Dr. Ragland was, in fact, not "impaired" and Plaintiff later wrote a letter of apology to
8 him. (DSUF ~152b). (Ironically, Plaintiffs letter of apology contains spelling and grammatical
9 mistakes, including the phrase: " ... and I have never treated you and your patients exceptionally
10 well ... " [italics added] ld.
11 Once, Plaintiff became angry because he missed an inspection of his department and the
12 laboratory manager reported Plaintiff as saying, "If he had a gun-a gun he would have shot
13 someone." (DSUF ~163). In 2003, Plaintiff became so enraged at a radiologist, Dr. Lau, that he
14 grabbed him by his tie and pulled him out ofa room at KMC. (DSUF ~~90-93). Plaintiff
15 blamed Dr. Lau for the incident, saying Dr. Lan was afraid of "data" Plaintiff was going to show
16 him. (DSUF ~91a). Plaintiff was found to have violated the County's Workplace Violence
17 Policy and was given a written reprimand. (DSUF ~91c and 92).
18 Plaintiff was unable to work cooperatively with the Radiology Department. There had
19 been relatively few complaints about the radiologists before Plaintiff arrived at KMC. (DSUF
20 ~95). An independent outside consultant, Dr. Lieu, was brought in to study the problem and
21 recommend a resolution. Plaintiff rejected Dr. Lieu's recommendation (DSUF ~98) and called
22 Dr. Lieu, "unjustifiably pompous." (DSUF ~98).

23 Plaintiff had a penchant for demanding apologies from others. He demanded an apology
24 from the Radiology Department and specified it had to occur at a staff meeting, with Dr. Amin,
25 Dr. Abraham, Dr. Munoz, and Dr. Naderi standing at the podium while he received the apology.
26 (DSUF ~~99 and 150). He demanded an apology from Dr. Perticucci for pointing out mistakes
27 the Pathology Department had made. (DSUF ~153). He demanded an apology from Dr.
28 Abraham, again to occur at a staff meeting, because he found her behavior objectionable.
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1 (DSUF ~155). He demanded an apology "meeting [his] specifications" from Dr. Roy for not
2 providing documentary evidence of deficiencies in the Pathology Department by a deadline
3 Plaintiff imposed. (DSUF ~156). Even after he put himself on leave, Plaintiff s demands for
4 apologies from Dr. Ragland, Dr. Abraham, Dr. Taylor, ffi1d Dr. Roy, did not abate. (DSUF ~18).

5 By 2005, Plaintiff had alienated most members of the medical staff. Jd. Events cmne to
6 head at the October 12, 2005 Oncology Conference. Plaintiffs presentations at these
7 conferences had been problematic before. In 2003, Plaintiff was counseled to prioritize
8 information and present it succinctly. (DSUF ~I 01). In 2004, he was warned that a presentation
9 he wanted to make, consisting of 52 slides, would take more time than was allotted. (DSUF
10 '1l02). In May 2005, he was again requested to observe the time limits. (DSUF ~103).
11 Plaintiffs presentation at the October 12, 2005 oncology conference was inappropriate.
12 It greatly exceeded the allotted time, contained too many slides, did not conform to the

13 instructional purpose of the conference, included unprofessional criticisms of both the University
14 of Southern California and Stanford University, deteriorated into an argument between Plaintiff
15 and Dr. Roy over a specific case and monopolized the conference to such an extent that no one
16 else was able to make their presentations. (Taylor Depo., 12/5/07, pg. 14:19-21; pg. 15:1-4; pg.
17 27: 16-17; pgs. 31 :17-32:21; pg. 51: 12-25; pg. 55:7-23; pg. 62: 19-25; pg. 63:4-11; pg. 64: 12-19;
18 68:9-17 and DSUF ~~104, 105, 106 and 111 and PSUF ~89). After Plaintiff finally relinquished
19 the podium and sat down, he continued to argue with Dr. Roy. (DSUF ~112).

20 Three physicians who attended the conference wrote confidential letters to the Chief
21 Medical Officer about Plaintiff's behavior. (Harris Depo., 8/13/08, pgs. 113:14-16 and 116:4;
22 DSUF ~107; PSUF ~91). The chief of surgery also voiced a complaint. (DSUF ~108). The past-
23 president of the medical staff testified she was embarrassed by several things Plaintiff had said-
24 such as his criticisms of outside consultffi1tS. (DSUF ~III). Several residents and medical
25 students noted Plaintiff s unprofessional behavior on their evaluations. (DSUF ~I 09).
26 A few days after the conference, the Executive Board of the medical staff presented
27 Plaintiff with a confidential letter that both admonished and counseled him regarding his
28 behavior at the conference. The letter referenced Plaintiff s failure to observe the time limits, his
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failure to cooperate with the conference coordinator's instructions regarding time and his use of
2 the conference as a platform from which to advance his personal agenda. (DSUF ~113).

3 In a meeting with KMC' s Chief Executive Officer about a week later, Plaintiff made
4 loud, angry and derogatory comments about other members of the medical staff. (DSUF ~116).

5 When called to a meeting in February 2006 to try and resolve the interpersonal conflicts, Plaintif
6 insulted every other person in the meeting (DSUF ~~166-173) and refused their conciliatory
7 efforts to bring resolution to the issue. (DSUF ~~166-174). Plaintiff became increasingly
8 antagonistic and hostile. (DSUF '1~114; 166-174). He told Dr. Abraham she was nothing but a
9 "fat doctor." (DSUF ~166). He told Dr. Ragland, he was unfit to be president of the medical
10 staff. (DSUF ~~13 7, 143a, and 173). An attendee later wrote to defendant Peter Bryan that the
11 meeting was the "most distasteful event" the attendee had ever participated in. (DSUF ~174).

12 H. Plaintiff Suffered No Retaliation.

13 Plaintiff sent letters to the California Department of Health Services ("DHS") the College
14 of American Pathologists ("CAP") and the Joint Commission for the Accreditation of Hospital
15 Organizations ("JCAHO") on November 28, 2006 complaining about KMC. (DSUF ~~56a, 56b
16 and 56c). But, he did not inform the County of the letters until December 13, 2006. (DSUF ~58).

17 Although he claims he told Gilbert Martinez that he intended to "blow the whistle" on KMC
18 (Second Amended Complaint ~20) he actually only told Mr. Martinez to be prepared for an
19 inspection. (DSUF ~55). Gilbert Martinez had no idea why Plaintiff told him to prepare for
20 inspection and, in fact, the inspection did not happen until the next year. (DSUF ~55).
21 (The other incidents of "retaliation" that Plaintiff alleges (skull flaps, the oncology
22 conference, the prostatectomy, the "smear campaign") do not warrant further discussion.)
23 The County took no employment action against Plaintiff after he was put on administrative
24 leave on December 7, 2006. It is not possible for the Defendants to have retaliated against him.
25 Respectfully submitted,
26 Dated: December 8, 2008 LAW OFFICES OF MARK A. WASSER
27 By: /s/ Mark A. Wasser
Mark A. Wasser
28 Attorney for Defendants, County of Kern, et al.
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