217 P MX Amend SAC

Case 1:07-cv-00026-OWW-TAG Document 217 Filed 09/02/2008 Page 1 of 77
1 LAW OFFICE OF EUGENE LEE

Eugene D. Lee (SB#: 236812)
2 555 West Fifth Street, Suite 3100
Los Angeles, CA 90013
3 Phone: (213) 992-3299
Fax: (213) 596-0487
4 email: elee@LOEL.com
5 Attorney for Plaintiff
DAVID F. JADWIN, D.O.
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 FRESNO DIVISION
11 DAVID F. JADWIN, D.O., Civil Action No. 1:07-cv-00026 OWW TAG
12 Plaintiff, PLAINTIFF'S NOTICE OF MOTION AND
MOTION FOR LEAVE TO FILE SECOND
13 v. AMENDED COMPLAINT
14 COUNTY OF KERN, et al., Date: October 3, 2008
Time: 10:00 a.m.
15 Defendants. Courtroom: U.S. District Court, Crtrm. 3
2500 Tulare St, Fresno, CA
16 Complaint Filed: January 6, 2007
Trial Date: December 2, 2008
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 1
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 Please take notice that on October 3, 2008, at 10:00 a.m., or as soon thereafter as the parties may
3 be heard, Plaintiff DAVID F. JADWIN, D.O. will and hereby does move this Court U.S. Dist. Ct.,
4 Bankr. Crtrm., 1300 18th St., Bakersfield, CA, for leave to file the Second Amended Complaint.
5 For the reasons set forth in the accompanying Memorandum of Points and Authorities and
6 Declaration of Eugene Lee, Plaintiff respectfully requests that this Court grant it leave to file the Second
7 Amended Complaint, and for such other relief as may be just.
8
9 RESPECTFULLY SUBMITTED on September 2, 2008.
10 /s/ Eugene D. Lee
LAW OFFICE OF EUGENE LEE
12 Phone: (213) 992-3299
Fax: (213) 596-0487
Attorney for Plaintiff DAVID F. JADWIN, D.O.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 MEMORANDUM OF POINTS & AUTHORITIES

2 I. BACKGROUND
3 Plaintiff has attempted without success to obtain Defendants’ stipulation to file the Second
4 Amended Complaint (“SAC”) and the revised Second Amended Complaint ("RSAC").
5 On January 6, 2007, Plaintiff filed the Complaint initiating this action.
6 On April 24, 2007 and on June 13, 2007, Plaintiff supplemented the Complaint to reflect events
7 occurring after the date of the last-filed Complaint.
8 On January 4, 2008, Plaintiff sent the draft Third Supplemental Complaint (“TSC”) –almost
9 identical to the SAC – to Defendants for their review. Defendants never responded.
10 On January 22, 2008, Plaintiff noted Defendants had not responded. Defendants replied that they
11 were inclined not to so stipulate but would reconsider subject to certain conditions.
12 On April 17, 2008, after further discussion between the parties, Plaintiff again sent the draft TSC
13 to Defendants for their review. Defendants never responded.
14 On May 4, 2008, Plaintiff again requested Defendants’ stipulation to filing the TSC. On May 5,
15 Defendants refused and stated “the pleadings are done.”
16 On June 30, 2008, Plaintiff filed with this Court his notice of withdrawal of motion for leave to
17 file the TSC, stating:
18 Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to file
and serve the Second Amended Complaint, naming the County of Kern . . . as
19 defendants in their personal and official capacities under Count Ten [sic] of Plaintiff’s
Complaint (42 U.S.C. 1983 procedural due process).
20 Doc. 159, 1:24 – 2:1.
21 On July 1, 2008, Plaintiff requested Defendants’ stipulation to filing the SAC. Later that day,
22 Defendants stated that they refused.
23 Discovery in this action closed on August 18, 2008, except for depositions per the stipulation and
24 order of the parties.
25 On August 29, during the deposition of Philip Dutt, the parties met and conferred regarding
26 withdrawal of Plaintiff’s prior motion for leave to file the Second Amended Complaint so that Plaintiff
27 could further add additional claims arising out of facts which were newly discovered during the course
28 of Plaintiff’s depositions. Defendants refused to stipulate to the filing of the revised Second Amended
Complaint. Plaintiff therefore had no choice but to bring this motion seeking leave to file the second
1 amended complaint.
2 II. ARGUMENT
3 Plaintiff seeks to effect the following items with the filing of the SAC:
4 A. Item 1: Supplement the Complaint regarding events that occurred after the filing of
Plaintiff’s second supplemental complaint.
5
1. Requested Change
6
Plaintiff filed the Second Supplemental Complaint on June 13, 2007. Plaintiff now seeks to
7
supplement the Complaint regarding events occurring subsequently, including: (a) Defendant County’s
8
lifting of Plaintiff’s home restriction on April 30, 2007, (b) Defendant County’s non-renewal of
9
Plaintiff’s employment contract on October 4, 2007 and (c) Plaintiff’s exhaustion of administrative
10
remedies. Accordingly, Plaintiff seeks to make additions to the Complaint including the following:
11
20. Just before Thanksgiving of 2006, Plaintiff confided to Gilbert Martinez, the
12 Laboratory Manager at KMC, that he intended to blow the whistle on KMC to
appropriate outside agencies. Days later, Defendant Harris met with Philip Dutt, M.D.,
13 Interim Chair of the Pathology Department at KMC (“Dutt”), to discuss what steps the
Pathology Department should take in anticipation of Plantiff’s whistleblowing to these
14 outside agencies.
15 27. On April 30, 2007, Defendant County sent a letter to Plaintiff notifying him of its
decision to lift the home restriction. To date, Plaintiff has received no formal explanation
16 for the involuntary leave or the restriction to his home.
17 28. On May 1, 2007, Defendant County sent an email to Plaintiff notifying him of its
decision not to renew Plaintiff’s employment contract, which was not due to expire until
18 October 4, 2007, and to “let the contract run out”. To date, Plaintiff has received no
formal explanation for the decision not to renew his contract.
19
29. On October 4, 2007, Defendant County failed to renew Plaintiff’s employment
20 contract, which therefore expired.
21 30. On August 15, 2008, Ray Watson, Chair of the Board of Supervisors of
Defendant County, testified in deposition that Defendant County had decided during the
22 course of several KMC Joint Conference Committee meetings not to renew Plaintiff’s
employment contract because he had filed the instant lawsuit.
23
138. On October 4, 2007, Defendant County failed to renew Plaintiff’s employment
25 142. During the time that Defendants placed Plaintiff on involuntary full-time leave,
including the period from December 7, 2006 to October 4, 2007, Defendants effectively
26 denied Plaintiff the opportunity to earn Professional Fees as set forth in Article II of the
Second Contract.
27
149. On October 10, 2007, Plaintiff again filed a supplemented Tort Claims Act
28 complaint with the County of Kern, supplemented to reflect events occurring after filing
of the supplemented Tort Claims Act complaint on April 23, 2007.
1 153. On October 16, 2007, Plaintiff again filed a supplemented complaint with the
DFEH, supplemented to reflect events occurring after filing of the supplemented
2 complaint with the DFEH on April 23, 2006.
3 154. On September 2, 2008, Plaintiff again filed a supplemented complaint with the
DFEH, supplemented to reflect additional claims for retaliation for opposing practices
4 made unlawful under CFRA and FEHA which arose after evidence was newly
discovered subsequent to the filing of the supplemented complaint with the DFEH on
5 October 16, 2007.
6
2. Why It Should be Permitted
7
Rule 15(d) of the Federal Rules of Civil Procedure provides, in pertinent part:
8
Upon motion of a party the court may, upon reasonable notice and upon such terms as
9 are just, permit the party to serve a supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of the pleading sought to be
10 supplemented.
11 A supplemental pleading is used to allege relevant facts occurring after the original pleading was
12 filed. Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 468. A supplemental pleading is designed to bring the
13 action “up to date” and to set forth new facts affecting the controversy that have occurred since the
14 original pleading was filed. Manning v. City of Auburn (11th Cir. 1992) 953 F.2d 1355, 1359–1360. A
15 supplemental pleading may properly allege events occurring after the original complaint was filed and
16 identify any new parties involved therein. Rule 15(d) “plainly permits supplemental amendments to
17 cover events happening after suit, and it follows, of course, that persons participating in these new
18 events may be added if necessary.” Griffin v. County School Board (1964) 377 U.S. 218, 226–227.
19 Supplemental pleadings can only be filed with leave of court and upon such terms as are just. Glatt v.
20 Chicago Park Dist. (7th Cir. 1996) 87 F.3d 190, 194. However, supplemental pleadings are favored
21 because they enable the court to award complete relief in the same action, avoiding the costs and delays
22 of separate suits. Therefore, absent a clear showing of prejudice to the opposing parties, they are
23 liberally allowed. See Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 473; Quaratino v. Tiffany & Co. (2nd
24 Cir. 1995) 71 F.3d 58, 66. The purpose of Rule 15(d) is to promote as complete an adjudication of the
25 dispute between the parties as is possible. LaSalvia v. United Dairymen of Arizona, 804 F.2d 1113,
26 1119 (9th Cir. 1986), cert. denied, 482 U.S. 928 (1987).
27 The supplements sought by Plaintiff promote a complete and efficient adjudication of the
28 disputes between the existing parties to this action. Item 1 – Plaintiff’s proposed supplements – allege a
series of adverse employment actions taken by Defendants against Plaintiff that were first referenced in
1 Plaintiff's original and subsequent complaints. For instance, Plaintiff’s Second Supplemental Complaint
2 had alleged in pertinent part:
3 102. On or about December 7, 2006, Culberson sent a letter addressed to Plaintiff
informing him that he was being placed on involuntary paid administrative leave
4 “pending resolution of a personnel matter”.
5 104. On April 4, 2007, Plaintiff placed Defendant County on notice that (i) he still had
yet to be provided any explanation for his involuntary leave or any indication as to
6 whether or when it would end so that he could return to work, (ii) the involuntary leave
requiring him to remain at home by his phone during working hours was threatening to
7 erode his pathology skills, jeopardizing his employability and career as a pathologist,
(iii) the involuntary leave was denying him the opportunity to earn income from
8 professional fee billing, and (iv) part-time work was deemed therapeutic for him by his
physician and that the confinement to his house during working hours was having the
9 opposite effect of severely exacerbating his depression.
10 105. To date, Plaintiff remains on involuntary leave, with no explanation therefore or
any indication as to whether or when it will end.
11
Plaintiff alleges that these actions constituted a continuing violation and/or a pattern and practice of
12
discrimination, harassment, and/or retaliation taken against Plaintiff because of his protected
13
characteristics and activities. If Plaintiff is denied leave to file the SAC, Plaintiff would be forced to file
14
a new law suit re-alleging most of the same claims contained in this action based on these new adverse
15
actions. Permitting the supplement would result in a more efficient use of scarce judicial resources.
16
More importantly, there is no risk of prejudice or surprise to Defendants. First, the supplements
17
comprise allegations of continuing injury or continuation of the wrongful conduct already alleged in
18
Plaintiff’s original or supplemental complaints. Second, Plaintiff has repeatedly apprised Defendants of
19
his desire to make the foregoing supplements to his complaint since January 4, 2008, when Plaintiff first
20
sent Defendants the draft TSC. Defendants initially refused to respond at all, then ultimately refused to
21
stipulate.
22
Third, Plaintiff served on Defendants copies of the supplemented complaint he filed with the
23
Department of Fair Employment & Housing on October 16, 2007 and supplemented Tort Claims Act
24
claim he filed with the County of Kern on October 10, 2007, each detailing the same supplemental
25
allegations which Plaintiff now proposes in the SAC.
26
Fourth, Plaintiff’s Initial Disclosure contained a Rule 26 report issued by Plaintiff’s forensic
27
economist which fully disclosed the harm that Plaintiff suffered and expected to suffer because of the
28
events which Plaintiff now seeks to supplementally allege.
1 Defendants cannot in good faith claim to be surprised or prejudiced by Plaintiff’s proposed

2 supplements.
3 B. Item 2: To include an element of Plaintiff’s Count VI for disability discrimination
added to Plaintiff's Prima Facie Case by a decision of the California Supreme Court
4 issued after the filing of this lawsuit.
5 1. Requested Change
6 Plaintiff seeks to add Paragraph 125 to allege Plaintiff’s ability to perform the essential functions
7 of his job, which the California Supreme Court found to be an element of Plaintiff’s disability
8 discrimination claim in Green v. State of California, issued by the California Supreme Court on August
9 23, 2007. Paragraph 125 reads as follows:
10 125. At all times material here, excluding a portion of the time when he was out on
voluntary full-time medical leave, Plaintiff has been able to perform the essential
11 functions of the employment positions he held with Defendants and each of them, with
reasonable accommodation.
12
13
Rule 15 provides the parties with flexibility in presenting their claims and defenses. It assures
14
that cases will be heard on their merits and avoids injustices which sometimes resulted from strict
15
adherence to earlier technical pleading requirements. Foman v. Davis (1962) 371 U.S. 178, 182; Slayton
16
v. American Express Co. (2nd Cir. 2006) 460 F.3d 215, 228. Rule 15 reflects the limited role assigned to
17
federal pleadings: i.e., their purpose is simply to provide the parties with fair notice of the general nature
18
and type of the pleader's claim or defense. As long as such notice has been provided, the pleadings
19
should not limit the pleader's claims or defenses. Ibid.; see also Grier v. Brown (N.Dist. Cal. 2002) 230
20
F.Supp.2d 1108, 1111.
21
Plaintiff’s proposed correction of an omission does not allege any new facts; it arises out of the
22
same exact nucleus of facts alleged in Plaintiff’s original and supplemental complaints filed with the
23
Court. Simply put, it merely seeks to correct the omission of a legal pleading element required for
24
Plaintiff’s Counts VI through VIII for violation of California’s disability discrimination laws.
25
Defendants cannot claim to have been denied fair notice of the general nature of Plaintiff’s disability
26
discrimination claims or the alleged facts from which they arise. Permitting the correction would not
27
prejudice Defendants in any way. Conversely, denying the correction may prevent consideration of
28
Plaintiff’s disability discrimination claims on their merits and result in injustice.
1 C. Item 3: Add already-named and existing Defendants, the County of Kern and Irwin
Harris, to Plaintiff’s Count IX for 42 U.S.C. 1983 due process violation claim, based
2 upon events which were already alleged in the Complaint.
3 1. Requested Change
4 Plaintiff seeks to amend Count IX (See Paragraph 207 of the SAC) to add Defendants County of
5 Kern and Irwin Harris to that count. Both Defendants are already named and existing parties and no
6 joinder of new parties is required under Rule 19. Rather, joinder of a claim against an existing party is
7 required under Rule 18.
8 2. Why It Should be Permitted
9 Rule 15 requires that leave to amend should be freely given “when justice so requires.” Fed. R.
10 Civ. Proc. 15(a)(2); see Lone Star Ladies Invest. Club v. Schlotzsky's Inc. (5th Cir. 2001) 238 F.3d 363,
11 367 (policy favoring leave to amend “a necessary companion to notice pleading and discovery”.) This
12 policy is to be applied with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003)
13 316 F.3d 1048, 1051; Moore v. Baker (11th Cir. 1993) 989 F.2d 1129, 1131 (“justifying reasons must be
14 apparent for denial of a motion to amend”). Absent prejudice, or a strong showing of any of the other
15 reasons for denying leave to amend, “there exists a presumption under Rule 15(a) in favor of granting
16 leave to amend.” Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003) 316 F.3d 1048, 1052. While
17 “leave to amend should not be granted automatically,” the circumstances under which Rule 15(a)
18 “permits denial of leave to amend are limited.” Ynclan v. Department of Air Force (5th Cir. 1991) 943
19 F.2d 1388, 1391.
20 The opposing party may claim “prejudice” from any amendment, such as the expense of
21 responding to the amended pleading and possible delay in getting to trial; however, expense and delay
22 are probably not enough by themselves to deny leave to amend. There must be some showing of
23 inability to respond to the proposed amendment. Likewise, the need for additional discovery is
24 insufficient by itself to deny a proposed amended pleading. See U.S. v. Continental Illinois Nat'l Bank &
25 Trust (2nd Cir. 1989) 889 F.2d 1248, 1255; Genentech, Inc. v. Abbott Laboratories (N.Dist. Cal. 1989)
26 127 F.R.D. 529, 531.
27 Rule 18(a) expresses a philosophy of great liberality toward entertaining the broadest possible
28 scope of action consistent with fairness to parties; joinder of claims, parties, and remedies is strongly
encouraged. Lanier Business Products v Graymar Co. (1972, Dist. Md.) 342 F.Supp 1200. A party
1 should be able to join all claims he has against his opponent as matter of course to avoid a multiplicity of
2 litigation and possible claims of res judicata at later date. Ibid.
3 Joinder of Plaintiff’s Count IX for 42 U.S.C. 1983 due process violations against Defendants
4 County and Harris should be permitted. Both Defendants are already named in several of Plaintiff’s
5 Counts and are existing parties in this action. Joinder of Defendant County in County IX is clearly
6 warranted under Monell v Dept. of Social Services (1978) 436 U.S. 658 and would avoid multiplicity of
7 litigation and claims of res judicata at a later date. Joinder of Harris became warranted in light of the
8 deposition testimony of David Culberson, former Interim CEO of KMC, on August 21, 2008 wherein
9 Plaintiff learned for the first time of the extent of Dr. Harris’s participation in Defendant County’s
10 decision to place Plaintiff on administrative leave on December 7, 2006 and, subsequently, not to renew
11 Plaintiff’s employment contract.
12 There is no risk of prejudice or surprise to Defendants. Defendants have had fair notice of the
13 nucleus of facts underlying Defendant County’s and Harris’s liability under Count IX – e.g., demotion
14 of Plaintiff and reduction of his base salary, placement of Plaintiff on involuntary administrative leave
15 with home restriction, and non-renewal of Plaintiff’s contract – since at least January 2008 when
16 Plaintiff sent the draft TSC to Defendants. On June 30, 2008, Plaintiff filed with this Court his notice of
17 withdrawal of motion to file the TSC, expressly stating therein Plaintiff’s intention to seek joinder of
18 Count IX against Defendant County (Doc. 159). On July 1, 2008, Plaintiff again gave Defendants notice,
19 providing them a copy of the SAC along with a proposed stipulation (which Defendants rejected). With
20 discovery in this action due to close on August 18, 2008, Defendants had more than a month to conduct
21 whatever additional discovery they deem necessary in light of the SAC – although no additional
22 discovery should conceivably be necessary to parse out a Monell analysis.
23 More importantly, Plaintiff is not a percipient witness having knowledge of any facts regarding
24 Defendant County’s liability under Monell or Dr. Harris’s liability for his participation in adverse
25 employment actions against him, other than what was revealed by Defendants’ former and current
26 employees themselves during their depositions. No further discovery needs to be conducted by
27 Defendants in order to defend against the new claims proposed to be brought against Defendants County
28 and Harris. Even if such were the case, Defendants have ready access to County witnesses and Harris
himself – in contrast to Plaintiff who must engage in the formality of deposing them to access their
1 testimony.
2 Finally, under Cal. Gov’t. C. 995 et seq., Defendant County is required to indemnify its
3 employees against liability for violations alleged in Plaintiff’s Count IX as set forth in Plaintiff’s initial
4 complaint filed on January 6, 2008. The joinder of Count IX against Defendant County simply adds
5 direct liability where indirect liability for individually named employees under Count IX already exists.
6 D. Item 4: Joinder of new claims for CFRA retaliation (existing Count III), FEHA
retaliation (Gov’t C. 12940(h), new Count XI) and FMLA retaliation (29 U.S.C. §
7 2615(b), new Count X) against Defendant County and Does 1 through 10 based
upon newly-discovered evidence.
8
1. Requested Change
9
Plaintiff seeks to amend the complaint to add new Counts X and XI and a new claim for CFRA
10
retaliation under existing Count III against Defendant County and Does 1 through 10. Defendant County
11
is an already named and existing party and no joinder of new parties is required under Rule 19. Rather,
12
joinder of new claims against an existing party is required under Rule 18.
13
During the course of Plaintiff’s deposition of Supervisor Ray Watson on August 25, 2008,
14
Plaintiff for the first time heard testimony that Defendant County had decided not to renew Plaintiff’s
15
employment contract with the County due to the fact that Plaintiff had initiated this action. Based on this
16
newly-discovered evidence, Plaintiff requests leave to join new claims against Defendant County and
17
Does 1 through 10 for FEHA oppositional retaliation pursuant to Gov’t C. 12940(h) (new Count XI),
18
FMLA oppositional retaliation pursuant to 29 U.S.C. § 2615(b) (new Count X) and CFRA oppositional
19
retaliation (Count III). Plaintiff alleges that Plaintiff’s filing of this action on December 7, 2006
20
opposing practices made unlawful under FEHA, CFRA and FMLA has subjected him to retaliation in
21
the form of non-renewal of his employment contract on October 4, 2007.
22
Moreover, based on newly-discovered evidence in the form of Supervisor Watson’s foregoing
23
testimony as well as the testimony of former Interim CEO David Culberson in deposition conducted on
24
August 21, 2008, Plaintiff further alleges FEHA oppositional retaliation pursuant to Gov’t C. 12940(h)
25
(new Count XI) and CFRA oppositional retaliation (Count III) in that Defendants placed him on
26
administrative leave on October 7, 2006 subsequent to his filing of a FEHA/CFRA complaint with the
27
DFEH on July 31, 2006.
28
1 See discussion in Section II.C.2 above.

2 Defendants will not be prejudiced by the joinder of the above new claims against existing
3 Defendant County. Plaintiff is not a percipient witness having knowledge of any facts regarding
4 Defendant County’s liability for oppositional retaliation under FMLA, CFRA or FEHA, other than what
5 was revealed by Supervisor Watson and Mr. Culberson themselves during their depositions. No further
6 discovery needs to be conducted by Defendants in order to defend against the new claims proposed to be
7 brought against Defendant County. Even if such were the case, Defendants have ready access to Mr.
8 Watson and Mr. Culberson – in contrast to Plaintiff who must engage in the formality of deposing them
9 to access their testimony.
10 III. CONCLUSION
11 The foregoing items which Plaintiff seeks to effect via the SAC would promote a complete
12 adjudication of issues arising out of the same nucleus of transactions and occurrences and a resolution of
13 disputes on their merits. At the same time, they do not pose any risk of prejudice or surprise to
14 Defendants. Defendants have had fair notice of the proposed supplemental allegations, the general
15 nature of Plaintiff’s disability discrimination and due process claims, and the facts establishing
16 Defendant County’s liability thereunder, since at least January 2008. In light of Cal. Gov’t. C. 995 et
17 seq., the joinder of Count IX against Defendant County only adds direct liability where indirect liability
18 already exists. There is no need for a continuance of any sort.
19
20 For the foregoing reasons, Plaintiff DAVID F. JADWIN, D.O., respectfully requests that this
21 Court grant him leave to file the Second Amended Complaint.
22
23 RESPECTFULLY SUBMITTED on September 2, 2008.
24 /s/ Eugene D. Lee
26 Phone: (213) 992-3299
Fax: (213) 596-0487
28
1 DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION

2 I, Eugene D. Lee, declare and say, as follows:
3 1. I am an attorney at law duly licensed to practice before the Federal and State Courts of
4 California and admitted to practice before the United States District Court for the Eastern District of
5 California. I am the attorney representing Plaintiff David F. Jadwin in this matter.
6 2. I am making this declaration in support of Plaintiff David F. Jadwin, D.O.’s motion for
7 leave to file the Second Amended Complaint (“SAC”). The facts stated herein are personally known to
8 me and if called as a witness, I could and would competently testify to the truth of the facts set forth in
9 this declaration.
10 3. A true and correct copy of the SAC which Plaintiff seeks to file is attached hereto as
11 Exhibit 1.
12 4. On January 4, 2008, my co-counsel, Joan Herrington, sent the draft Third Supplemental
13 Complaint, which contained the nucleus of facts underlying all of the changes proposed in the SAC, to
14 defense counsel, Mark Wasser, for his review. He never responded. I was carbon-copied on Ms.
15 Herrington’s and Mr. Wasser’s emails. A true and correct copy of the emails is attached hereto as
16 Exhibit 2.
17 5. On January 22, 2008, I sent an email to Mr. Wasser noting Defendants had not responded
18 to Ms. Herrington’s previous email. Mr. Wasser sent an email replying that he was inclined not to so
19 stipulate but would reconsider subject to certain conditions. A true and correct copy of the emails is
20 attached hereto as Exhibit 3.
21 6. On April 17, 2008, after further discussion between the parties, I again sent the draft TSC
22 to Mr. Wasser for his review. He never responded. A true and correct copy of the emails is attached
23 hereto as Exhibit 4.
24 7. On May 4, 2008, I again requested Mr. Wasser’s stipulation to filing the TSC. On May 5,
25 he sent an email stating his refusal and stated “the pleadings are done.” A true and correct copy of the
26 emails is attached hereto as Exhibit 5.
27 8. On June 30, 2008, I filed with this Court Plaintiff’s notice of withdrawal of motion for
28 leave to file the TSC, which stated:
1 Unless Defendants stipulate otherwise, Plaintiff intends to file a motion for leave to file
and serve the Second Amended Complaint, naming the County of Kern . . . as
2 defendants in their personal and official capacities under Count Ten [sic] of Plaintiff’s
Complaint (42 U.S.C. 1983 procedural due process).
3 Doc. 159, 1:24 – 2:1.
4 A true and correct copy of the notice of withdrawal is attached hereto as Exhibit 6.
5 9. On July 1, 2008, I sent an email to Defendants requesting their stipulation to Plaintiff’s
6 filing the SAC. Later that day, Defendants emailed me, stating that they refused. Defendants’ lack of
7 cooperation has been characteristic in this action. A true and correct copy of the notice of withdrawal is
8 attached hereto as Exhibit 7.
9 10. Discovery in this action closed on August 18, 2008, except for depositions per the
10 stipulation and order of the parties.
11 11. On August 29, during the deposition of Philip Dutt, the parties met and conferred
12 regarding withdrawal of Plaintiff’s prior motion for leave to file the Second Amended Complaint so that
13 Plaintiff could add additional claims arising out of facts which were newly discovered during the course
14 of Plaintiff’s depositions. Defendants refused to stipulate to the filing of the revised Second Amended
15 Complaint; however, Defendants agreed to stipulate to an expedited briefing and hearing schedule on
16 the motion for leave to file the Second Amended Complaint which Plaintiff intended to re-file in revised
17 form.
18 12. Plaintiff’s ability to perform the essential functions of his job was found by the California
19 Supreme Court to be an element of Plaintiff’s disability discrimination claim in Green v. State of
20 California (2007) 42 Cal.4th 254, issued by the California Supreme Court on August 23, 2007.
21 13. There is no risk of prejudice or surprise to Defendants. Defendants have had fair notice of
22 the nucleus of facts underlying Defendant County’s and Harris’s liability under Count IX – e.g.,
23 demotion of Plaintiff and reduction of his base salary, placement of Plaintiff on involuntary
24 administrative leave with home restriction, and non-renewal of Plaintiff’s contract – since at least
25 January 2008 when Plaintiff sent the draft TSC to Defendants. On June 30, 2008, Plaintiff filed with this
26 Court his notice of withdrawal of motion to file the TSC, expressly stating therein Plaintiff’s intention to
27 seek joinder of Count IX against Defendant County (Doc. 159). On July 1, 2008, Plaintiff again gave
28 Defendants notice, providing them a copy of the SAC along with a proposed stipulation (which
Defendants rejected). With discovery in this action due to close on August 18, 2008, Defendants had
1 more than a month to conduct whatever additional discovery they deem necessary in light of the SAC –
2 although no additional discovery should conceivably be necessary to parse out a Monell analysis.
3 14. More importantly, Plaintiff is not a percipient witness having knowledge of any facts
4 regarding Defendant County’s liability under Monell or Dr. Harris’s liability for his participation in
5 adverse employment actions against him, other than what was revealed by Defendants’ former and
6 current employees themselves during their depositions. No further discovery needs to be conducted by
7 Defendants in order to defend against the new claims proposed to be brought against Defendants County
8 and Harris. Even if such were the case, Defendants have ready access to County witnesses and Harris
9 himself – in contrast to Plaintiff who must engage in the formality of deposing them to access their
10 testimony.
11 15. Finally, under Cal. Gov’t. C. 995 et seq., Defendant County is required to indemnify its
12 employees against liability for violations alleged in Plaintiff’s Count IX as set forth in Plaintiff’s initial
13 complaint filed on January 6, 2008. The joinder of Count IX against Defendant County simply adds
14 direct liability where indirect liability for individually named employees under Count IX already exists.
15 16. During the course of Plaintiff’s deposition of Supervisor Ray Watson on August 25,
16 2008, Plaintiff for the first time heard testimony that Defendant County had decided not to renew
17 Plaintiff’s employment contract with the County due to the fact that Plaintiff had initiated this action.
18 Based on this newly-discovered evidence, Plaintiff requests leave to join new claims against Defendant
19 County and Does 1 through 10 for FEHA oppositional retaliation pursuant to Gov’t C. 12940(h) (new
20 Count XI) and FMLA oppositional retaliation pursuant to 29 U.S.C. § 2615(b) (new Count X). Plaintiff
21 alleges that Plaintiff’s filing of this action on December 7, 2006 opposing practices made unlawful under
22 FEHA and FMLA has subjected him to retaliation in the form of non-renewal of his employment
23 contract on October 4, 2007.
24 17. Moreover, based on newly-discovered evidence in the form of Supervisor Watson’s
25 foregoing testimony as well as the testimony of former Interim CEO David Culberson in deposition
26 conducted on August 21, 2008, Plaintiff further alleges FEHA oppositional retaliation pursuant to Gov’t
27 C. 12940(h) (new Count XI) in that Defendants placed him on administrative leave on October 7, 2006
28 subsequent to his filing of a FEHA complaint with the DFEH on July 31, 2006.
18. Defendants will not be prejudiced by the joinder of the above new claims against existing
1 Defendant County. Plaintiff is not a percipient witness having knowledge of any facts regarding
2 Defendant County’s liability for oppositional retaliation under FMLA or FEHA, other than what was
3 revealed by Supervisor Watson and Mr. Culberson themselves during their depositions. No further
4 discovery needs to be conducted by Defendants in order to defend against the new claims proposed to be
5 brought against Defendant County. Even if such were the case, Defendants have ready access to Mr.
6 Watson and Mr. Culberson – in contrast to Plaintiff who must engage in the formality of deposing them
7 to access their testimony.
8 19. Defendant County's refusal to allow Plaintiff to return to work at Kern Medical Center;
9 failure to conduct an investigation into the "personnel matters" that purported necessitated Plaintiff's
10 administrative leave with home restriction; and its decision not to renew Plaintiff's employment contract
11 are part of a series of adverse employment actions taken by Defendants against Plaintiff, as alleged in
12 Plaintiff's original and subsequent complaints. Plaintiff alleges that this series of adverse actions
13 constitute a continuing violation and/or a pattern and practice of discrimination, harassment, and/or
14 retaliation taken against Plaintiff because of his protected characteristics and activities. An efficient
15 resolution of all issues raised by these subsequent events requires supplementation of the Complaint to
16 encompass all adverse employment actions taken by Defendant County against Plaintiff.
17 20. None of the Defendants can claim that they will suffer prejudice if leave is granted to file
18 the SAC.
19 21. If this Court denies Plaintiff leave to file the SAC, Plaintiff would be forced to file a new
20 law suit re-alleging most of the same claims contained in this action based on these new adverse actions.
21 22. Defendants have known since at least May 1, 2007, that Plaintiff would never be allowed
22 to return to work at Kern Medical Center.
23 23. Plaintiff notified Defendants that he would seek further leave to amend or supplement his
24 complaint if Defendant County carried out its threat to keep Plaintiff on administrative leave until his
25 employment contract expired.
26 24. Plaintiff provided further notice of his intent to seek relief for these adverse actions by
27 serving a copy of his supplemented Department of Fair Employment & Housing complaint and right to
28 sue letter and supplemented Tort Claims Act complaint on Defendant County.
25. Plaintiff has already disclosed documents reflecting the harm that Plaintiff suffered and
1 will continue to suffer because of these subsequent adverse employment actions, and Defendants have
2 conducted further discovery on these disclosures.
3
4 I declare under penalty of perjury under the laws of the State of California and of the United
5 States that the foregoing is true and correct.
6
Dated: September 2, 2008 LAW OFFICE OF EUGENE LEE
7
8
By: ____________________________________
9 Eugene D. Lee
Attorney for Defendant
10 DAVID F. JADWIN, D.O.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBITS TO DECLARATION OF EUGENE D. LEE
EXHIBIT 1. Draft Second Amended Complaint

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

3 Los Angeles, California 90013
Telephone: (213) 992-3299
4 Facsimile: (213) 596-0487
Email: elee@LOEL.com
5
6 Attorneys for Plaintiff
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10 DAVID F. JADWIN, D.O. Case No. 1:07-cv-26-OWW-TAG
11 Plaintiff
vs. SECOND AMENDED COMPLAINT FOR
12 DAMAGES & INJUNCTIVE RELIEF
COUNTY OF KERN; PETER BRYAN
13 (both individually and in his former official I. Retaliation [Health & Safety Code §
capacity as Chief Executive Officer Of 1278.5];
14 Kern Medical Center); IRWIN HARRIS,
M.D; and DOES 1 through 10, inclusive. II. Retaliation [Lab. Code § 1102.5];
15 III. Retaliation [Gov’t Code §§ 12945.1, et
Defendants. seq; 12949(f); 2 C.C.R. § 7297.7(a)];
16 IV. Interference with FMLA Rights [29
17 U.S.C. §§ 2601, et seq.];
V. Violation of CFRA Rights. [Gov’t Code
18 §§ 12945.1, et seq.];
VI. Disability Discrimination [Gov’t. Code
19 § 12940(a)];
20 VII. Failure to Provide Reasonable
Accommodation [Gov’t Code §
21 12940(m)];
VIII. Failure to Engage in Good Faith In An
22 Interactive Process [Gov’t Code §
23 12940(n)];
IX. Procedural Due Process Violation [14th
24 Amendment of U.S. Constitution; 42
U.S.C. § 1983];
25 X. FMLA Retaliation [29 U.S.C. § 2615];
26 and
XI. FEHA Retaliation [Gov’t Code §
27 12940(h)]
JURY TRIAL DEMANDED
28
SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 1/43

1
NATURE OF THE ACTION
2
This is an individual action brought by Plaintiff David F. Jadwin, D.O., a whistleblowing
3
physician with disabilities, against his employer, (i) the County of Kern (“Defendant County” or
4
“the County”); ) (ii) individual Defendants Peter Bryan (“Bryan”), former Chief Executive
5
Officer of Kern Medical Center (“KMC”); Irwin Harris, M.D., former Chief Medical Officer of
6
KMC (“Harris”);; and DOES 1 through 10.
7
Plaintiff’s claims against his employer, Defendant County, allege violations of section
8
1278.5 of the Health & Safety Code1 which prohibits retaliation against a health care provider
9
who reports suspected unsafe care and conditions of patients in a health care facility; section
10
1102.5 of the Labor Code which prohibits retaliation against an employee for reporting or
11
refusing to participate in suspected violations of the law; the California Family Rights Act
12
(sections 12945.1, et seq., of the Government Code) (“CFRA”) and the Family and Medical
13
Leave Act (sections 2601, et seq. of the United States Code) (“FMLA”) which prohibit
14
interference with an employee’s right to medical leave and retaliation for an employee’s exercise
15
of the right to medical leave and for opposing any practice made unlawful by the CFRA/FMLA,
16
including filing any charge or instituting a proceeding under the CFRA/FMLA; and the Fair
17
Employment and Housing Act [subdivisions (a), (h), (m) & (n) of section 12940 of the
18
Government Code] (“FEHA”) which prohibits discrimination against an employee with a
19
disability, retaliation for opposing employment practices prohibited by the FEHA, failure to
20
provide reasonable accommodation, and failure to engage in an interactive process; and recovery
21
of wrongfully deducted wages under the Fair Labor Standards Act (29 U.S.C. §§ 201, et seq.)
22
(“FLSA”).
23
Plaintiff sues Defendants County and Harris, and Defendant Bryan – both in his personal
24
capacity and in his official capacity as a member of the KMC Joint Conference Committee
25
(“JCC”) – for violation of Plaintiff’s 14th Amendment of the United States Constitution right to
26
procedural due process pursuant to 42 U.S.C. § 1983 (“Due Process”).
27
28 1
All statutory references are to California Codes unless otherwise specified.

1 Plaintiff brings this action for general, compensatory, and punitive damages; prejudgment
2 interest, costs and attorneys’ fees; injunctive and declaratory relief; and other appropriate and
3 just relief resulting from Defendants’ unlawful conduct, and as grounds therefor alleges:
4 JURISDICTION AND VENUE
5 1. This Court has federal question jurisdiction over the FMLA and Due Process
6 claims pursuant to 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Plaintiff’s
7 transactionally-related state claims pursuant to 28 U.S.C. § 1367.
8 2. Venue is proper in Fresno in the Eastern District of California, as a substantial
9 part of the events and omissions giving rise to this claim occurred in the County of Kern,
10 California.
11 INTRADISTRICT ASSIGNMENT
12 3. Assignment to Bakersfield is proper pursuant to Civil Local Rule 3-120
13 (Appendix A) because the events giving rise to this civil action occurred in Bakersfield in the
14 County of Kern, California.
15 PARTIES
16 4. At all material times herein, Plaintiff David F. Jadwin, D.O. (“Plaintiff”) has
17 continuously been an employee of Defendant County, a citizen of the United States and
18 California; and a resident of Los Angeles County, California.
19 5. At all material times herein, Plaintiff was an individual with disabilities within the
20 meaning of Section 12926(i) & (k) of the Government Code.
21 6. On information and belief, at all material times herein, Defendant County is a
22 local public entity within the meaning of sections 811.2 & 900.4 of the Government Code and is
23 operating in Kern County, California.
24 7. At all material times herein, the County has continuously been an employer
25 within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Government Code §
26 12945.2(b)(2)], FEHA [Government Code § 12926(d)], and FLSA [29 U.S.C. § 203], engaged in
27 interstate commerce and regularly employing more than fifty employees within seventy-five
28 miles of Plaintiff’s workplace.

1 8. On information and belief, at all material times herein, Defendant Peter Bryan is a
2 citizen of Colorado, and a resident of Denver, Colorado, and was Chief Executive Officer of
3 KMC, and a member of the JCC.
4 9. On information and belief, at all material times herein, Defendant Irwin Harris is
5 a citizen of California, and a resident of Kern County, California, and Chief Medical Officer at
6 KMC, and a non-voting member of the JCC.
7 10. The true names and capacities of Defendants DOES 1 through 10, inclusive, are
8 presently unknown to Plaintiff, who therefore sues said Defendants by such fictitious names.
9 Plaintiff will amend this complaint to set forth the true names and capacities of said Defendants
10 when they are ascertained. Plaintiff is informed and believes, and upon such information and
11 belief alleges, that at all times relevant, each of the fictitiously-named Defendants was an agent,
12 employee, or co-conspirator of one or more of the named Defendants, and was acting within the
13 course and scope of said agency or employment. Plaintiff is further informed and believes, and
14 upon such information and belief alleges, that each of the fictitiously named Defendants aided,
15 assisted, approved, acknowledged and/or ratified the wrongful acts committed by Defendants as
16 alleged herein, and that Plaintiff’s damages, as alleged herein, were legally caused by such
17 Defendants.
18 FACTUAL BACKGROUND
19 A. STATEMENT OF THE CASE
20 11. Plaintiff is a highly-qualified and capable pathologist with numerous professional
21 accomplishments that have included leadership roles in national, state and local pathology and
22 medical societies. Plaintiff received extensive education and training at reputable academic and
23 medical institutions. Plaintiff has managed several clinical laboratories and pathology
24 departments that have achieved accreditation by the College of American Pathologists,
25 frequently “with distinction.” Plaintiff has also been recognized by numerous pathologists and
26 physicians for his professional leadership and commitment to set and uphold rigorous and ethical
27 standards for patient care quality and safety.
28 12. In late 2000, Plaintiff was recruited to assume the position of Chair of the

1 Pathology Department at KMC, a teaching hospital owned and operated by Defendant County.
2 Plaintiff was recruited in part to raise standards of patient care quality and safety at KMC.
3 Plaintiff immediately set about implementing, among other things, a best-practices peer review
4 system in the Pathology Department.
5 13. In 2001, Plaintiff began to report concerns to key members of KMC’s medical
6 staff and administration about the unacceptably high levels of unsatisfactory or non-diagnostic
7 fine needle aspirations (“FNA”) – a method of using a needle and syringe to obtain deep internal
8 tissue samples of vital organs – being taken by the Radiology Department at KMC for diagnosis
9 by the Pathology Department. In 2003, Plaintiff began to report concerns to key members of
10 KMC’s medical staff and administration about ineffective and unnecessary blood transfusions
11 and an unacceptably high incidence of lost or incomplete product chart copy certifications
12 (“PCC”) required for accurate tracking of dangerous blood transfusions. In 2004, Plaintiff began
13 to report concerns to key members of KMC’s medical staff and administration about the need for
14 instituting a policy of requiring KMC Pathology Department review prior to undertaking
15 significant surgical procedures based upon the reports of outside pathologists (“Internal
16 Pathology Review”). In 2005, Plaintiff reported a concern to key members of KMC’s medical
17 staff and administration about an inappropriate radical hysterectomy (cancer surgical procedure
18 for removal of all female reproductive organs and regional lymph nodes) performed by Roy on a
19 patient with a benign endometriotic cyst (“Roy Hysterectomy”). Also in 2005, Plaintiff began to
20 report concerns to key members of KMC’s medical staff and administration about the need to
21 review a series of serious diagnostic errors committed by a former KMC pathologist, including
22 the failure to identify invasive adenocarcinoma in several prostate needle biopsies (“Prostate
23 Biopsy Errors”). Also in 2005, Plaintiff reported concerns to KMC administration that KMC
24 physicians had performed surgery on a wrong patient due to an error which Plaintiff believed
25 would have been less likely had KMC implemented Internal Pathology Review per Plaintiff’s
26 recommendation. Plaintiff reported several other concerns about inappropriate patient care and
27 noncompliance with quality control standards. In February of 2006, Plaintiff met with Bernard
28 Barmann, County Counsel for the County of Kern (“Barmann”), to report the foregoing

1 concerns.
2 14. In 2005, Roy began a campaign of making statements impugning Plaintiff’s
3 professional competence. Events culminated in October of 2005, when Kercher, Harris, Ragland
4 and Abraham harshly reprimanded Plaintiff, based on false allegations, resulting from a 15- to
5 20-minute presentation given by Plaintiff during a monthly KMC oncology conference that
6 allegedly exceeded conference time limits by approximately ten minutes. Plaintiff’s presentation
7 had attempted to highlight several of Plaintiff’s above-mentioned concerns regarding Internal
8 Pathology Review and their potential impact upon deciding the correct surgical procedure for the
9 patient under discussion. The presentation was stopped before Plaintiff could present the key
10 diagnostic conclusions of his presentation.
11 15. After the conference, Harris solicited letters of disapprobation from conference
12 participants, including Roy. Roy submitted a letter (“Roy Letter”) containing several false
13 statements of fact which impugned Plaintiff to other members of KMC’s medical staff and
14 administration. On information and belief, Harris and DOES 1 through 10 republished the Roy
15 Letter to third parties. Several KMC medical and administration officers including Bryan and
16 Kercher were aware of Roy’s, Harris’s and DOES 1 through 10’s acts of unwarranted criticism,
17 but refused to intercede, and possibly approved or encouraged them.
18 16. In December of 2005, Plaintiff began medical leave initially in the form of
19 medically necessary reduced work schedule due to severe depression which was later extended
20 to June 16, 2006. It was not until on or about March 2, 2006, that Plaintiff was finally provided
21 with a Request for Leave of Absence form which he then submitted to KMC’s HR Department.
22 Plaintiff also received a document entitled “Designation of Leave (Serious Health Condition of
23 Employee-Intermittent)” from the HR Department at KMC, which included a written guarantee
24 of Plaintiff’s reinstatement to his same or equivalent position with same pay, benefits and terms
25 and conditions of employment upon his return from his leave.
26 17. During Plaintiff’s sick leave, Bryan issued a series of verbal and written
27 ultimatums to Plaintiff which threatened him with termination or demotion upon return from his
28 leave, thereby giving notice that Plaintiff was not in fact guaranteed reinstatement to his same or

1 equivalent position. In a meeting in April of 2006, Bryan ordered Plaintiff to cease his reduced
2 work schedule and begin full-time leave, despite the fact that just days before, Plaintiff had
3 submitted a written request for extension of his reduced work schedule for an additional six
4 months to one year because of his serious medical condition. On June 14, 2006, two days before
5 Plaintiff’s medical leave was allegedly due to end, Bryan informed Plaintiff that he was
6 demoting Plaintiff to a staff pathologist position, effective June 17, 2006, because Plaintiff had
7 taken excessive sick leaves; Plaintiff’s base salary was also ultimately reduced over $100,000
8 (over 35%) as a result (such demotion and pay reduction are hereinafter referred to collectively
9 as “demotion” or “demoted”).
10 18. On July 10, 2006, the Joint Conference Committee (“JCC”) at KMC voted and
11 approved Bryan’s recommendation that Plaintiff be removed from chairmanship of the
12 Pathology department due to his physical absence from KMC.
13 19. Plaintiff resumed full-time work as a staff pathologist on October 4, 2006.
14 Plaintiff continued to suffer a hostile work environment and retaliation.
15 20. Just before Thanksgiving of 2006, Plaintiff confided to Gilbert Martinez, the
16 Laboratory Manager at KMC, that he intended to blow the whistle on KMC to appropriate
17 outside agencies. Days later, Defendant Harris met with Philip Dutt, M.D., Interim Chair of the
18 Pathology Department at KMC (“Dutt”), to discuss what steps the Pathology Department should
19 take in anticipation of Plantiff’s whistleblowing to these outside agencies.
20 21. On or about November 28, 2006, after almost six years of trying to reform KMC
21 from within, Plaintiff finally blew the whistle on KMC, formally reporting his Concerns to the
22 Joint Commission on Accreditation of Hospital Organizations, the College of American
23 Pathologists, and the California Department of Health Services (“Authorities”).
24 22. On or about December 4, 2006, Plaintiff submitted a written complaint to KMC
25 leadership about numerous additional concerns regarding the quality of patient care and the
26 deterioration of the pathology department.
27 23. On December 7, Plaintiff was placed on involuntary administrative leave
28 allegedly “pending resolution of a personnel matter”.

1 24. On December 13, 2006, Plaintiff sent a letter to David Culberson (“Culberson”),
2 interim Chief Executive Officer of KMC, and carbon-copied to members of KMC’s medical staff
3 leadership, informing him that he had reported his Concerns to the Authorities.
4 25. On March 28, 2007, KMC authorized Plaintiff to access his office in order to
5 retrieve his personal computer files. Upon his arrival, Defendant Dutt informed him that his
6 office was now locked and that Defendant Dutt now had custody of the key, that Plaintiff’s file
7 cabinet and computer had been physically removed and retasked for other purposes at KMC, and
8 that Plaintiff would not be able to access his personal computer files after all.
10 yet to be provided any explanation for his involuntary leave or any indication as to whether or
11 when it would end so that he could return to work, (ii) the involuntary leave requiring him to
12 remain at home by his phone during working hours was threatening to erode his pathology skills,
13 jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was
14 denying him the opportunity to earn income from professional fee billing, and (iv) part-time
15 work was deemed therapeutic for him by his physician and that the confinement to his house
16 during working hours was having the opposite effect of severely exacerbating his depression.
17 27. On April 30, 2007, Defendant County sent a letter to Plaintiff notifying him of its
18 decision to lift the home restriction. To date, Plaintiff has received no formal explanation for the
19 involuntary leave or the restriction to his home.
20 28. On May 1, 2007, Defendant County sent an email to Plaintiff notifying him of its
21 decision not to renew Plaintiff’s employment contract, which was not due to expire until October
22 4, 2007, and to “let the contract run out”. To date, Plaintiff has received no formal explanation
23 for the decision not to renew his contract.
24 29. On October 4, 2007, Defendant County failed to renew Plaintiff’s employment
26 30. On August 15, 2008, Ray Watson, Chair of the Board of Supervisors of
27 Defendant County, testified in deposition that Defendant County had decided during the course
28 of several KMC Joint Conference Committee meetings not to renew Plaintiff’s employment

1 contract because he had filed the instant lawsuit.

2 B. EMPLOYMENT RELATIONSHIP
3 31. On October 24, 2000, the County entered into an employment contract with
4 Plaintiff (“Initial Contract”), hiring him to a full-time position as Chair of the Pathology
5 Department at KMC and as Medical Director of the KMC clinical laboratory (“Lab Director”)
6 for an employment term ending on November 30, 2006. As Lab Director, Plaintiff’s job duties
7 included Medical Director of KMC’s blood bank and transfusion service.
8 32. On or about November 12, 2002, the County modified Plaintiff’s employment
9 contract to reflect an increase in his compensation and leave accrual rate, among other things.
10 This second employment contract dated as of October 5, 2002 (“Second Contract”) extended
11 Plaintiff’s employment term to October 4, 2007. A true and correct copy of the Second Contract
12 is attached hereto as Exhibit 1, and incorporated by reference herein.
13 33. The Pathology Department and consequently the Chair of Pathology is
14 customarily referred to as “the conscience of a hospital”, and Plaintiff’s job duties extended
15 “beyond (his) own department and (he was) expected to be an effective contributor to the overall
16 improvement efforts of the hospital as a whole.” Such duties included participation in many
17 hospital committees including KMC’s Quality Management Committee.
18 34. According to Exhibit A of the Initial Contract, the County expected Plaintiff to
19 spend 80 to 90% of his time on clinical duties of a pathologist, and 10 to 20% of his time on
20 administrative duties as Chair of the Department of Pathology (“Chair of Pathology”) and Lab
21 Director.
22 35. Article V.10 of the Second Contract provides that Plaintiff will not be deemed a
23 classified employee, or have any rights or protections under the County’s Civil Service
24 Ordinance, rules or regulation.
25 36. Article II.3(B)(1) of the Second Contract guarantees that Plaintiff’s base salary
26 will be based on a benchmark salary in proportion to his full-effort commitment. In turn, the
27 benchmark salary will be based on a national standard with four steps (A-D) with three criteria
28 for step placement: clinical experience, teaching and administrative duties as set forth in the

1 KMC Administrative Policies and Procedures Manual (“KAPP Manual”).

2 37. On information and belief, at the time of his hire, the County placed Plaintiff’s
3 salary level at Step C .
4 38. Article III.4 of the Second Contract entitles Plaintiff to the same right to unpaid
5 leave of absence as those provided to a regular County employee under the County’s policy,
6 including six months cumulative unpaid leave of absence for illness or disability pursuant to
7 Rule 1201.20 of the Rules of the Civil Service Commission for the County of Kern (“CSC
8 Rules”).
9 39. Article IV.1(B) of the Second Contract requires “cause” for termination of
10 Plaintiff’s employment, which cause is defined as “serious administrative violation and/or
11 unsatisfactory clinical performance.”
12 40. Article IV.3 of the Second Contract entitles Plaintiff to administrative review of
13 any corrective action for unsatisfactory clinical performance pursuant to the Bylaws of the
14 Medical Staff of KMC (“Bylaws”); and for administrative review of any corrective action for
15 violation of administrative policies of the County or KMC pursuant to the KAPP Manual.
16 C. WHISTLEBLOWING
17 41. Throughout the course of his employment by KMC, Plaintiff has advocated for
18 appropriate patient care and compliance with the quality accreditation standards of the Joint
19 Commission for the Accreditation of Hospital Organizations, the College of American
20 Pathologists, the American Association of Blood Banks and the American College of Surgeons
21 Commission on Cancer as well as applicable state and federal regulations designed to ensure safe
22 care and conditions of patients.
23 42. Plaintiff reported his various concerns (“Concerns”) about inappropriate and/or
24 suspected unsafe patient care and conditions and non-compliance with applicable laws and
25 regulations and accreditation standards to Bryan and key members of KMC’s medical staff,
26 including but not limited to the following: (i) beginning in 2001, Plaintiff reported the
27 unacceptably high levels of unsatisfactory or non-diagnostic FNAs being taken by the Radiology
28 Department at KMC; (ii) beginning in 2003, Plaintiff reported the unacceptably high incidence

1 of lost or incomplete PCC; (iii) beginning in 2004, Plaintiff reported the need for Internal
2 Pathology Review; (iv) beginning in 2005, Plaintiff reported the Roy Hysterectomy; (v)
3 beginning in 2005, Plaintiff reported the need to review the Prostate Biopsy Errors; and (vi)
4 beginning in 2005, Plaintiff reported that KMC physicians had performed surgery on a wrong
5 patient due to an error which Plaintiff believed would have been less likely had KMC
6 implemented Internal Pathology Review. Unfortunately, Plaintiff’s reports not only appeared to
7 fall on deaf ears, but also generated resentment and hostility among his peers at KMC.
8 43. On or about December 12, 2005, Plaintiff’s former attorney, Michael Young
9 (“Young”), sent a letter to Barmann, requesting Barmann meet with Plaintiff to discuss his
10 Concerns.
11 44. On or about February 9, 2006, Barmann and Barnes met with Plaintiff. Plaintiff
12 reported his various Concerns, as well as the retaliation, unwarranted criticism, and hostile work
13 environment Plaintiff was experiencing at KMC.
14 45. Finally, on or about November 28, 2006, after almost six years of trying to reform
15 KMC from within in vain, Plaintiff formally reported his Concerns to the Authorities.
16 46. On December 13, 2006, Plaintiff sent a letter addressed to Culberson, and carbon-
17 copied to members of KMC’s medical staff leadership, informing him that “KMC leadership has
18 left me no choice but to report the above issues to the appropriate state and accrediting
19 agencies”.
20 D. UNWARRANTED CRITICISMS
21 47. In 2005, Plaintiff had reported the need for Internal Pathology Review to key
22 members of KMC medical staff and administration. Roy refused to submit outside pathology
23 reports for Internal Pathology Review prior to surgery, preferring instead to refer all of his
24 pathology cases to an acquaintance at the University of Southern California without intereference
25 from KMC’s Pathology Department.
26 48. On or about April 15, 2005, Roy sent a letter which was addressed to Plaintiff and
27 carbon-copied to Dr. Leonard Perez (“Perez”), Chair of the OB-GYN Department at KMC. The
28 letter contained the following statements of fact:

1 Additionally, I cannot institute adjuvant therapy in a timely manner when it takes

weeks and sometimes months to get an accurate diagnosis from your
2 department…. Most importantly, delays in instituting appropriate adjuvant
therapy due to delays in obtaining an accurate diagnosis, or instituting
3 inappropriate therapy based on an inaccurate diagnosis can negatively affect
patient survival.
4
49. Roy’s statements regarding delays of weeks and months were false. Perez
5
reasonably understood that the statements were about Plaintiff. Perez reasonably understood the
6
statements to mean that Plaintiff was not managing the Pathology Department in a competent
7
manner. As a consequence, Plaintiff experienced a significant loss of confidence of his peers at
8
KMC.
9
50. On or about April 20, 2005, Plaintiff sent a letter addressed to Roy and carbon-
10
copied to Perez, Dr. Maureen Martin, Chair of Surgery (“Martin”), Kercher and Bryan. The letter
11
stated: “Please refrain from making statements such as it takes weeks and sometimes months to
12
get an accurate diagnosis from your department without citing specific instances. In my
13
experience, such statements are typically untrue and consequently are unethical if not supported
14
by facts.” As officers of KMC, Kercher and Bryan approved, accepted, and/or failed to intercede
15
to protect Plaintiff from Roy’s unwarranted criticisms, and in so doing, ratified them.
16
51. In May of 2005, Harris informed Plaintiff that Roy had voiced concerns about the
17
Pathology Department and had submitted certain pathology reports for second-level peer review
18
and investigation. Plaintiff requested that Harris identify the pathology reports in question but
19
Harris refused. Later, Plaintiff determined that no second-level peer review ever occurred.
20
52. On or about June 30, 2005, Martin and Harris told Plaintiff that Roy was making
21
negative comments about the Pathology Department.
22
53. On or about June 30, 2005, Plaintiff sent a letter addressed to Roy and carbon-
23
copied to Perez, Martin, Harris, Kercher and Bryan. The letter stated:
24
It has come to my attention that you are making negative statements to numerous
25 key members of the medical staff regarding pathology reports issued by this
department. You are reported by others to claim that several of KMC pathology
26 diagnoses do not agree with outside diagnoses rendered by other outside
pathologists and that these discrepancies have or would have changed patient
27 management. It would appear from these actions that you are claiming that our
diagnoses are not correct. I do not recollect any true, substantial discrepancies
28 between diagnoses rendered by this department and outside pathology
departments based upon retrospective review of our cases since my arrival in

1 December 2000. It is reported that you claim to have in your possession several
such reports detailing incorrect diagnoses rendered by our department. It is also
2 my understanding that you have been asked on several occasions to produce
examples of these discrepancies, and as of yet have not produced any such reports
3 to individuals that have made these requests. To demonstrate and support the
accuracy of your claims, I request that you produce copies of these reports for my
4 review by July 15, 2005.
5 54. Roy’s statements of fact regarding incorrect diagnoses by the Pathology
6 Department were false. The key members of the KMC medical staff who heard the statements
7 reasonably understood that the statements were about Plaintiff and reasonably understood the
8 statements to mean that Plaintiff was not managing the Pathology Department in a competent
9 manner. As a consequence, Plaintiff experienced a significant loss of confidence of his peers at
10 KMC. As officers of KMC, Harris, Kercher and Bryan approved, accepted, and/or failed to
11 intercede against Roy’s unwarranted criticisms and in so doing, ratified them.
12 55. On or about July 15, 2005, Roy sent a letter addressed to Plaintiff and carbon-
13 copied to Harris, Bryan and Perez. The letter stated:
14 I was quite surprised to receive your letter of June 5th. The “discrepancies”
should be well known to you as I have brought them to your attention many times,
15 both in the presence of Dr. Perez, and in a letter to you a couple of months ago, as
well as multiple phone conversations. The inaccuracies, delays and refusals to
16 refer specimens for outside review continue. The matter has been appropriately
reported to the administration for a quality assurance review, as I have had no
17 success in my pleadings to you directly.
18 56. Roy’s statements of fact regarding the existence of “discrepancies” and the
19 bringing of them to Plaintiff’s attention “many times” and “in the presence of Dr. Perez” were
20 false. Harris, Bryan and Perez reasonably understood that the statements were about Plaintiff and
21 reasonably understood the statements to mean that Plaintiff was neither managing the Pathology
22 Department in a competent manner nor being truthful about Roy’s disclosures of the facts and
23 circumstances underlying his unwarranted criticisms. As a consequence, Plaintiff experienced a
24 significant loss of confidence of his peers at KMC. As officers of KMC, Harris and Bryan
25 approved, accepted, and/or failed to intercede against Roy’s unwarranted criticisms and in so
26 doing, ratified them.
27 57. Moreover, Roy’s statement of fact that he had reported the matter to KMC
28 administration for quality assurance review was false. Harris, Bryan and Perez reasonably

1 understood that the statement was about Plaintiff and reasonably understood the statements to
2 mean that Plaintiff was not managing the Pathology Department in a competent manner. As a
3 consequence, Plaintiff experienced a significant loss of confidence of his peers at KMC. As
4 officers of KMC, Harris and Bryan approved, accepted, and/or failed to intercede against Roy’s
5 unwarranted criticisms and in so doing, ratified them.
6 58. On October 12, 2005, Plaintiff gave a presentation at the monthly KMC oncology
7 conference (“Oncology Conference”) highlighting concerns regarding a patient that might need a
8 hysterectomy, and the need for Internal Pathology Review.
9 59. Plaintiff’s presentation lasted approximately 15 to 20 minutes, which exceeded
10 alleged conference time limits by approximately ten minutes. Plaintiff was stopped before he
11 could present his final slides stating his patient care quality conclusions.
12 60. On information and belief, presenters at prior and subsequent Oncology
13 Conferences frequently exceeded time limits without interruption, incident, or reprimand.
14 61. Roy, Bill Taylor, Vice-Chair of Surgery, and Albert McBride, the Cancer
15 Committee Liaison, attended Plaintiff’s presentation at the October 12 Oncology Conference and
16 were requested by Harris to give him letters criticizing Plaintiff’s time infraction.
17 62. In response, Roy sent a letter (“Roy Letter”), dated October 13, 2005, addressed
18 to Harris. The Roy Letter stated in relevant part:
19 With respect, Dr. Jadwin is a small rural community hospital pathologist, with
very limited experience and no specialty training in regard to Gynecologic
20 Oncologic Pathology…. Dr. Jadwin is not a clinician, and has neither the fund of
knowledge nor the experience to make any recommendations regarding the
21 treatment of patients, much less criticize the care provided by those, such as
myself, whose training and experience were attained at some of the highest seats
22 of learning in the U.S and abroad. Additionally, as you are aware, it is not
infrequent that Dr. Jadwin’s diagnoses are in err when reviewed by outside
23 specialists, as in this particular case. The management of the patient would have
been inappropriate if we accepted Dr. Jadwin’s report, which as you know, was
24 different from two other pathologists in his own department (three different
opinions). I have no confidence in Dr. Jadwin and I am actively pursuing the
25 possibility of having all specimens from the Gynecologic Oncology service
evaluated outside, as is currently done for the Neurosurgery service…. I have
26 discussed these issues with Dr. Perez, Chairman of the Department of Obstectrics
and Gynecology, and he assures me of his full support.
27
63. The Roy Letter contained the following false statements of fact: (i) Plaintiff is a
28
small rural community hospital pathologist, (ii) Plaintiff has very limited experience in

1 Gynecologic Oncologic Pathology, (iii) Plaintiff is not a clinician, (iv) Plaintiff has neither the
2 fund of knowledge nor the experience to make any recommendations regarding the treatment of
3 patients, much less criticize the care given by doctors such as Roy, (v) it is not infrequent that
4 Plaintiff’s diagnoses are in err when reviewed by outside specialists, as in this particular case,
5 (vi) the management of the patient would have been inappropriate if Plaintiff’s report had been
6 accepted, and (vii) Plaintiff’s report was different from two other pathologists in his own
7 department, suggesting the deficiency of his report. Harris reasonably understood that the
8 statements were about Plaintiff and reasonably understood the statements to mean that Plaintiff’s
9 credentials and abilities as a pathologist and physician were deficient. Roy impugned Plaintiff
10 despite Plaintiff’s numerous prior requests to stop doing so. As a consequence, Plaintiff
11 experienced a significant loss of confidence of his peers at KMC. As an officer of KMC, Harris
12 approved, accepted, and/or failed to intercede against Roy’s unwarranted criticisms and in so
13 doing, ratified them.
14 64. Plaintiff is informed and believes, and thereupon alleges, that Harris subsequently
15 republished the Roy Letter to members of KMC staff, and that such staff further republished the
16 Roy Letter to other members of KMC staff. Such other members of KMC staff reasonably
17 understood that the statements contained in the Roy Letter were about Plaintiff and reasonably
18 understood such statements to mean that Plaintiff’s credentials and abilities as a pathologist and
19 physician were deficient. As a consequence, Plaintiff experienced a significant loss of confidence
20 of his peers at KMC. As officers of KMC, Harris, and DOES 1 through 10 accepted, and/or
21 failed to intercede against Roy’s unwarranted criticisms or their subsequent republication, and in
22 so doing, ratified them.
23 65. On or about October 17, 2005, Plaintiff was ordered to attend a meeting with
24 Kercher, Harris and Ragland who subjected Plaintiff to humiliating ridicule, yelling and
25 inappropriate questioning regarding Plaintiff’s alleged violation of Oncology Conference time
26 limits. Kercher, Harris and Ragland informed Plaintiff that they had received letters of
27 disapprobation (“Disapprobation Letters”) from three conference participants – one of which was
28 the Roy Letter – and would be issuing a letter of reprimand later that day which would be entered

1 into Plaintiff’s medical staff file. When Plaintiff asked to see the Disapprobation Letters,
2 Kercher, Harris and Ragland refused to provide them. As officers of KMC, Harris, Kercher,
3 Ragland and Abraham approved, accepted, and/or failed to intercede against Roy’s unwarranted
4 criticisms or their subsequent republication by Harris and other members of KMC staff, and in so
5 doing, ratified such unwarranted criticisms.
6 66. Later that day, Harris, Kercher, Ragland and Abraham issued a formal letter of
7 reprimand addressed to Plaintiff (“Reprimand Letter”). The Reprimand Letter stated: “Your
8 repeated misconduct at the Tumor Conference on October 12, 2005 was noted by numerous
9 attendants, three of which have written letters of their dissatisfaction, which will be entered into
10 your medical staff file.” The three letters to be entered into Plaintiff’s medical staff file included
11 the Roy Letter. As officers of KMC, Harris, Kercher, Ragland and Abraham approved, accepted,
12 and/or failed to intercede against Roy’s unwarranted criticisms or their subsequent republication
13 by Harris and members of KMC staff, and in so doing, ratified such unwarranted criticisms.
14 67. During the period from on or about October 17, 2005 to on or about January
15 2007, Plaintiff submitted numerous requests to Harris, Ms. Karen Barnes, Deputy County
16 Counsel for the County of Kern (“Barnes”), and Bryan to see the Disapprobation Letters. He was
17 continuously refused. As officers of KMC, Harris and Bryan approved, accepted, and/or failed to
18 intercede against Roy’s uwarranted criticisms or their subsequent republication by Harris and
19 members of KMC staff, and in so doing, ratified such unwarranted criticisms.
20 68. On or about December 12, 2005, Young sent a letter to Barmann stating:
21 Recently, Dr. Jadwin was advised that several of the staff physicians had written
letters of dissatisfaction regarding Dr. Jadwin’s professionalism and was advised
22 that these letters were placed into his personnel/medical staff file. When the
doctor asked to see these letters, he was refused access to them and was
23 subsequently told that the letters had not been placed into his file. Dr. Jadwin then
sent an e-mail to Deputy County Counsel, Karen Barnes, copy attached, regarding
24 an opinion with respect to his right to inspect the file. At this juncture, there has
been no reply to his request. Needless to say, Dr. Jadwin is extremely upset and
25 emotionally distraught over the present state of affairs.
26 69. On or about January 6, 2006, Barnes sent a letter on behalf of Barmann and
27 addressed to Young. The letter included as an attachment a copy of the Roy Letter, redacted to
28 conceal Roy’s identity. This letter afforded Plaintiff his first opportunity to see the Roy Letter

1 and the unwarranted criticisms contained therein.

2 70. On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan, stating:
3 I have been victim of professional mistreatment by a few members of medical
staff. You are aware of these instances. I believe this harassment is in response to
4 the many quality management issues that I have raised. This harassment has led
me develop depression, anxiety and insomnia. Most recent issue involving the
5 October Oncology Conference is still unresolved. I request administrative leave
with pay until this issue is resolved.
6
71. On or about February 10, 2006, Plaintiff sent a letter addressed to Roy,
7
challenging the truthfulness of the claims contained in Roy’s letter of July 15, 2005, that Roy had
8
reported certain patient cases handled by the Pathology Department to the KMC administration
9
for quality assurance review. Plaintiff stated “to my knowledge no credible report has been
10
submitted. As of today, I have not received notice of any deficient reports from you.” Plaintiff
11
further challenged the truthfulness of other unwarranted criticisms contained in the Roy Letter
12
and demanded “immediate proof of these allegations within 14 days”. Plaintiff went on to state
13
that if Roy failed to produce such proof, then Roy should issue an apology meeting Plaintiff’s
14
specifications.
15
72. On or about February 21, 2006, Bryan sent a letter addressed to Plaintiff, stating
16
in relevant part:
17
I received a copy of your letter to Dr. Roy dated February 10, 2006 and I must say
18 that I am disappointed in your decision to send it… I know that you felt justified
in sending the letter. You feel that Dr. Roy besmirched your reputation and
19 challenged your professional competency. Furthermore, you feel that there is no
evidence to support his characterizations of you and you are demanding that he
20 recant his comments and apologize. All of these things may or may not be as you
say. However, your decision to confront the issues this way is not a good one…. It
21 is not your message that people react to but rather how you deliver it…. Dr. Roy’s
letter was correspondence submitted through the medical staff structure, and the
22 staff officers and Chief Medical Officer have the obligation to decide what to do
with that input. They can either ignore that correspondence because of a lack of
23 supporting evidence, call for a review of the quality of your work, or cause a
meeting to happen between you and Dr. Roy and Dr. Perez to further clarify the
24 basis of Dr. Roy’s concerns.
25 73. As an officer of KMC, Bryan approved, accepted, and/or failed to intercede
26 against Roy’s unwarranted criticisms or their subsequent republication by Harris and members of
27 KMC staff, and in so doing, ratified them.
28 74. On or about March 16, 2006, Plaintiff sent an email addressed to Kercher and

1 carbon-copied to Bryan, stating:

2 I am further requesting an investigation of Dr. Roy’s professional behavior by the
medical staff… [H]e has made outrageous false statements about the pathology
3 department and myself, which cause great concern about his ethical integrity…. I
think it is outrageous that the medical staff sits by and lets this individual act in
4 such a pompous, destructive manner. I feel a personal duty to the pathology
department (and the hospital) to push the issue of his bad conduct in whatever
5 venue may be needed to control the actions of this individual.
6 75. On or about March 30, 2006, Young sent a letter addressed to Roy, stating:
7 Dr. Jadwin is very upset with the alleged statements attributable to you regarding
his reputation in the medical community. Unless you come forward with facts in
8 support of your position to show the truth thereof or issue a written apology to Dr.
Jadwin, he will have no alternative but to seek recourse against you for damaging
9 his reputation. While professionals may justifiably have a difference of opinion
regarding complex issues in the field of medicine, there is really no place for
10 publishing statements about a colleague that are not true and intended to tarnish
one’s reputation.”
11
76. To date, Plaintiff is informed and believes and thereupon alleges: (i) Roy has
12
never responded to Plaintiff’s repeated requests for factual substantiation of Roy’s numerous
13
unwarranted criticisms; (ii) KMC never conducted an investigation into Roy’s professional
14
misconduct; and (iii) Harris, Kercher, Bryan and Abraham have approved, accepted, and refused
15
to intercede against Roy’s unwarranted criticisms or their subsequent republication by Harris and
16
DOES 1 through 10.
17
E. MEDICAL LEAVE
18
77. As of December 16, 2005, Plaintiff was eligible for twelve weeks of medical
19
leave under FMLA and CFRA pursuant to 29 C.F.R. § 825.110 and 2 C.C.R. § 72970(e),
20
respectively, in that he had been regularly employed by Defendant County for 1,250 hours in the
21
twelve months immediately prior to the start of his leave and had not taken any medical or
22
family leave during that time.
23
78. An eligible employee’s rights under CFRA and FMLA include a “reduced work
24
schedule” pursuant to 29 C.F.R. § 825.203 that is “medically necessary” pursuant to 29 C.F.R.
25
825.117.
26
79. Plaintiff’s notice to KMC of his need for medical leave was reasonable under the
27
circumstances.
28

1 80. On or about December 16, 2005 Plaintiff began his medically necessary reduced
2 work schedule that permitted him to perform all of his duties as Chair of Pathology, and reduced
3 his schedule only as to his duties as a regular pathologist.
4 81. On or about January 13, 2006, Plaintiff submitted to KMC a copy of his
5 psychiatrist’s certification stating that Plaintiff needed a reduced work schedule leave from
6 December 16, 2005 until at least March 16, 2006 because of his serious medical condition.
7 82. On or about March 2, 2006, Plaintiff was finally provided with a Request for
8 Leave of Absence form which he then submitted to KMC’s HR Department. KMC’s HR
9 Department formally approved the leave on March 13, 2006.
10 83. Also on or about March 2, 2006, Plaintiff received a document entitled
11 “Designation of Leave (Serious Health Condition of Employee-Intermittent)” (“Leave
12 Designation Notice”) from the HR Department at KMC that informed Plaintiff:
13 You also have the right to be reinstated to the same or an equivalent job with the
same pay, benefits and terms and conditions of employment on your return from
14 leave. Please note that the leave provisions for County employees are more
generous than those mandated by FMLA and CFRA and, accordingly, you may be
15 eligible for more than the twelve (12) weeks of unpaid leave described above.”
16 84. On or about March 16, 2006, Plaintiff sent an email to Bryan stating in pertinent
17 part: “Peter: I will be taking you (sic) suggestion and take 2 to 3 more months of leave. I am
18 scheduled to have surgery on March 22, 2006 with a several week recovery time...”. Plaintiff
19 also sent an email that same day to Dr. Kercher, stating in pertinent part: “Gene: I will be out of
20 the hospital for 2 or 3 more months. I am having surgery next week and will need several weeks
21 to recover…”.
22 85. On or about April 10, 2006, Plaintiff sent an email to Bryan stating: “I believe
23 that we have a meeting this Thursday at 1500. I can discuss a schedule with you. I have been
24 working only to help out Phil and Savita during periods of shortage, and to keep on top of some
25 administrative work. I am always available for necessary discussions. Just have Arlene or Tracy
26 call me.”
27 86. On or about April 17, 2006, Bryan wrote a letter addressed to Plaintiff,
28 purportedly memorializing Bryan’s April 13, 2006 meeting with Plaintiff in which he

1 acknowledged, “Yes, the Department of Pathology continues to function well as it has for many
2 years, and yes, you have made many positive changes in the department.” Bryan also
3 acknowledged that Plaintiff’s whistleblowing activity had created “the dysfunctional relationship
4 you have with some key members of the staff” and asked for Plaintiff to either cease upsetting
5 staff with his whistleblowing activity or to step down as Chairman on his return from medical
6 leave.
7 87. On or about April 20, 2006, Plaintiff received notice from KMC’s HR
8 Department that his “Intermittent Leave of Absence” had expired on March 15 and that in order
9 to extend his leave, he would need to submit a “Request for Leave of Absence” form to the HR
10 Department by “no later than Tuesday, April 25, 2006”.
11 88. On or about April 26, 2006, Plaintiff submitted a Request for Leave of Absence
12 form to KMC’s HR Department, along with a copy of his psychiatrist’s certification that Plaintiff
13 needed an extension of his reduced work schedule leave for six months to one year because of
14 his serious medical condition.
15 89. However, on or about April 28, 2006, Bryan met with Plaintiff, Barnes and Steve
16 O’Conner of the HR Department (“O’Conner”) and ordered Plaintiff to convert his reduced work
17 schedule to involuntary full-time medical leave despite the fact that Plaintiff was ready, willing,
18 and able to continue working his reduced work schedule (“Forced FT Leave”). Bryan further told
19 Plaintiff that he needed to know by June 16, 2006 whether Plaintiff would resign as Chair; and
20 that if he resigned he would be in the same position as Adam Lang, a former staff pathologist at
21 KMC, who retained only hospital privileges but whose employment contract had been
22 terminated. Hence, Bryan threatened Plaintiff not only with removal from chairmanship, but
23 termination of the Second Contract, thereby giving notice that he would not honor any guarantee
24 of reinstatement to Plaintiff’s same or equivalent position.
25 90. On or about April 28, 2006, Bryan wrote a letter to Plaintiff purportedly
26 memorializing the April 26, 2006 meeting and stating that he required Plaintiff to go on full-time
27 leave from May 1, 2006 to June 16, 2006 when Plaintiff’s right to medical leave would
28 purportedly expire; and required Plaintiff to either return to work full-time on June 17, 2006 or

1 resign, purportedly because “the hospital needs you here full-time.”

2 91. On or about May 5, 2006, Plaintiff underwent nasal surgery followed by a
3 difficult recovery which limited his ability to breathe and exert himself for approximately one
4 month.
5 92. On or about May 29, 2006, Plaintiff fractured his foot and avulsed a ligament
6 from his ankle in an accident which limited his ability to walk, stand or sit without elevating his
7 ankle for approximately three months.
8 93. On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan, stating:
9 Unfortunately, I underwent sinus surgery in early May which took some time to
recover from. Then last Monday, I suffered a serious fall down a staircase that
10 will require a cast on my left ankle and impose serious restrictions on my mobility
for at least four weeks. I would greatly appreciate an extension of the June 16
11 deadline as my physical ailments of late simply have not permitted me to consider
and render such an important decision nor do they physically permit me to come
12 to the office by June 16.
13 94. On or about June 14, 2006, Bryan sent an email addressed to Plaintiff informing
14 Plaintiff that Bryan was unilaterally removing Plaintiff from his position as Chair of Pathology,
15 thereby denying Plaintiff reinstatement to his same or equivalent position despite written
16 guarantees to the contrary. The email stated:
17 My response to your request for an extension of medical leave has a two part
answer. First, I will extend leave to a Personal Necessity Leave for your
18 employment status only. This means that you have 90 days of extended leave
which will protect your overall employment status. At the end of this 90 day
19 period, you must either return to duty or resign from employment. Second, I will
not extend your leave as it relates to your appointment as Chairman, Department
20 of Pathology. I am implementing the provisions of paragraph 9.6-4, REMOVAL,
Medical Staff Bylaws, and withdrawing your appointment as Chairman,
21 Department of Pathology. This institution needs to have full-time leadership in the
department and because of your leave you have not been able to provide it.
22 Should you return to work after the completion of your Personal Necessity Leave
then your employment contract will be modified as mutually agreed to reflect that
23 you are still an employed pathologist (should you choose this option), but you will
not retain the duties and appointment of a chairman. My decision to do this, Dr.
24 Jadwin, is based solely on your inability to provide consistent and stable
leadership in the department for most of the past eight to nine months. You have
25 used all of your sick and vacation time in addition to using all available time
under the medical leave provisions of County policy. It is unfortunate that you
26 had your accident which delayed your return but the hospital needs to move on.
27 95. Later, on or about June 14, 2006, Bryan sent a letter addressed to Plaintiff
28 reiterating that Bryan was rescinding Plaintiff’s Chairmanship of the Pathology Department

1 because Plaintiff had “essentially been out on either full or part-time leave for the past eight or
2 nine months” – an inaccurate statement – and because “the Department of Pathology needs a
3 full-time chairman.”
4 96. On information and belief, on or about July 10, 2006, the JCC approved
5 Plaintiff’s removal from Chairmanship by a majority vote.
6 97. Plaintiff’s demotion breached the guarantee of reinstatement contained in the
7 Leave Designation Notice.
8 98. On or about September 18, 2006, Barnes sent Plaintiff’s attorney a proposed
9 amendment (“Amendment”) to the Second Contract which included a base salary reduction of
10 over 35% (“Paycut”), allegedly as a consequence of Plaintiff’s removal from Chairmanship.
11 99. On or about September 18, 2006, Plaintiff sent an email addressed to Barnes
12 protesting the Paycut. The email stated:
13 Mr. Bryan stated in his letter to me that his decision to strip me of my
chairmanship was based on the sick leaves I was taking. KMC’s proposed
14 reduction of my base salary seems to have the purpose of punishing me further. I
wish to return to work at KMC, but I believe the proposed drastic reduction in my
15 base salary as benchmarked against Dr. Dutt’s is utterly unfair on numerous
levels. I am left feeling that this is simply another retaliatory effort on the part of
16 KMC.
17 100. On or about September 20, 2006, Culberson sent a letter addressed to Plaintiff
18 explaining the Paycut.
19 101. On or about September 22, 2006, Plaintiff executed the Amendment
20 memorializing the Paycut and submitted it to Barnes.
21 102. On or about October 3, 2006, the Board of Supervisors for Defendant County
22 voted to approve the Amendment.
23 103. On October 4, 2006, Plaintiff’s 90-day personal necessity leave ended and
24 Plaintiff returned to work at KMC as a staff pathologist. Plaintiff’s former subordinate,
25 Defendant Dutt, was chosen to replace Plaintiff as Acting Chair of Pathology.
26 104. Between on or about October 4, 2006 until on or about December 7, 2006,
27 Defendant Dutt yelled at, harassed, insulted, ridiculed Plaintiff, both verbally and in a series of
28 emails.

1 105. On or about December 4, 2006, Plaintiff sent a letter addressed to Culberson and
2 carbon-copied to key members of KMC’s medical staff and administration, protesting Defendant
3 Dutt’s behavior and raising additional concerns about patient care quality, safety and legal
4 noncompliance.
5 106. On or about December 7, 2006, Culberson sent a letter addressed to Plaintiff
6 informing him that he was being placed on involuntary paid administrative leave “pending
7 resolution of a personnel matter”.
8 107. On March 28, 2007, KMC authorized Plaintiff to access his office in order to
9 retrieve his personal computer files. Upon his arrival, Defendant Dutt informed him that his
10 office was now locked and that Defendant Dutt now had custody of the key, that Plaintiff’s file
11 cabinet and computer had been physically removed and retasked for other purposes at KMC, and
12 that Plaintiff would not be able to access his personal computer files after all.
14 yet to be provided any explanation for his involuntary leave or any indication as to whether or
15 when it would end so that he could return to work, (ii) the involuntary leave requiring him to
16 remain at home by his phone during working hours was threatening to erode his pathology skills,
17 jeopardizing his employability and career as a pathologist, (iii) the involuntary leave was
18 denying him the opportunity to earn income from professional fee billing, and (iv) part-time
19 work was deemed therapeutic for him by his physician and that the confinement to his house
20 during working hours was having the opposite effect of severely exacerbating his depression.
21 F. DISABILITY DISCRIMINATION
22 109. In 2003, Plaintiff had notified KMC that he suffered from depression due to work-
23 related hostility and KMC’s failure to resolve Plaintiff’s compliance and patient care concerns.
24 KMC subsequently permitted Plaintiff to undertake a medically necessary reduced work
25 schedule leave as a reasonable accommodation.
26 110. By December 16, 2005, Plaintiff was suffering extreme stress from the hostile
27 work environment created by the harassment, unwarranted criticisms, discrimination, and
28 retaliatory adverse actions of Defendants and each of them. Plaintiff’s depression subsequently

1 became disabling in that it limited his ability to enjoy life, without anxiety or insomnia..
2 111. On or about December 16, 2005, Plaintiff submitted to KMC a copy of his
3 psychiatrist’s certification that Plaintiff needed a reduced work schedule leave because of his
4 serious medical condition.
5 112. On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan, stating:
6 “This harassment has led me develop depression, anxiety and insomnia. Most recent issue
7 involving the October Oncology Conference is still unresolved. I request administrative leave
8 with pay until this issue is resolved.”
9 113. On or about January 9, 2006, Plaintiff met with Bryan regarding his request for a
10 medically necessary reduced work schedule, and clarified that it was necessary because of the
11 reoccurrence of his disabling depression. Bryan orally approved Plaintiff’s reduced work
12 schedule.
13 114. Defendants, and each of them, knew or should have known that Plaintiff was an
14 individual with a disability that limited his major life activities of taking pleasure in life, without
15 experiencing anxiety, insomnia or difficulty breathing and moving, and/or was perceived by
16 Defendants as having such limitations.
17 115. On or about March 2, 2006, Plaintiff sent an email to Bryan, repeating his
18 previous verbal request weeks earlier that KMC hire a locum tenens pathologist to assist with the
19 Pathology Department’s workload during Plaintiff’s reduced work leave.
20 116. On or about March 24, 2006, Plaintiff sent an email to Bryan, expressing his
21 disappointment that KMC had not yet hired a locum tenens pathologist to assist with the
22 Pathology Department’s workload during Plaintiff’s reduced work leave, as Plaintiff had
23 previously requested.
24 117. On or about April 10, 2006, Plaintiff sent an email to Bryan, stating that he had
25 not been informed that KMC had finally hired a locum tenens pathologist. The email stated:
26 I don’t know of Dr. Bhargava and didn’t know that a contract with Dr. Bhargava
was signed. Had I known, I would have placed him on the call schedule for the
27 coming months. I felt obligated to take some of the call, even though I am off,
because there would not be enough resources for the call schedule.
28
118. On or about April 17, 2006, Bryan wrote a letter addressed to Plaintiff in which

1 he acknowledged that “Yes, the Department of Pathology continues to function well as it has for
2 many years, and yes, you have made many positive changes in the department [emphasis
3 added]”.
4 119. On or about April 26, 2006, Plaintiff submitted a Request for Leave of Absence
5 form to KMC’s HR Department, along with a copy of his psychiatrist’s certification that Plaintiff
6 needed an extension of his reduced work schedule leave for six months to one year because of
7 his serious medical condition.
8 120. Nevertheless, on or about April 28, 2006, Bryan met with Plaintiff, Barnes and
9 O’Conner, and ordered Plaintiff to convert his reduced work schedule to involuntary full-time
10 medical leave despite the fact that Plaintiff was ready, willing, and able to continue working his
11 reduced work schedule, thereby removing an accommodation of Plaintiff’s disability and
12 refusing to engage in good faith in an interactive process with Plaintiff.
13 121. On or about May 5, 2006, Plaintiff underwent nasal surgery followed by a
14 difficult recovery, which limited his ability to breathe and exert himself for approximately one
15 month.
16 122. On or about May 29, 2006, Plaintiff fractured his foot and avulsed a ligament
17 from his ankle in an accident which limited his ability to stand, sit without elevating his ankle, or
18 walk for approximately three months.
19 123. On or about June 2, 2006, Plaintiff sent a letter addressed to Bryan, requesting an
20 extension of Plaintiff’s leave, which was due to expire on June 16, 2006, because of Plaintiff’s
21 nasal surgery and foot injury.
22 124. On or about June 14, 2006, Bryan sent an email addressed to Plaintiff informing
23 Plaintiff that Bryan was unilaterally removing Plaintiff from his position as Chair of Pathology
24 purportedly because “[t]his institution needs to have full-time leadership in the department and
25 because of your leave you have not been able to provide it.”
26 125. Later, on or about June 14, 2006, Bryan sent a letter address to Plaintiff
27 containing statements similar to those contained in Bryan’s email of earlier that day, and
28 reiterating that “the Department of Pathology needs a full-time chairman.”

1 126. On April 4, 2007, after KMC had placed Plaintiff on involuntary paid leave,
2 Plaintiff placed Defendant County on notice that (i) he still had yet to be provided any
3 explanation for his involuntary leave or any indication as to whether or when it would end so that
4 he could return to work, (ii) the involuntary leave requiring him to remain at home by his phone
5 during working hours was threatening to erode his pathology skills, jeopardizing his
6 employability and career as a pathologist, (iii) the involuntary leave was denying him the
7 opportunity to earn income from professional fee billing, and (iv) part-time work was deemed
8 therapeutic for him by his physician and that the confinement to his house during working hours
9 was having the opposite effect of severely exacerbating his depression.
10 127. At all times material here, excluding a portion of the time when he was out on
11 voluntary full-time medical leave, Plaintiff has been able to perform the essential functions of the
12 employment positions he held with Defendants and each of them, with reasonable
13 accommodation.
14 128. Plaintiff requested reasonable accommodation of his disabilities from Defendants,
15 and each of them, in the form of a reduced work schedule and/or recuperative leave.
16 129. Allowing Plaintiff to take the medical and/or recuperative leave that he requested
17 would have been a reasonable accommodation of Plaintiff’s disabilities.
18 130. Holding open Plaintiff’s position as Chair of Pathology while he was on leave
19 would have been a reasonable accommodation of Plaintiff’s disabilities.
20 131. Holding open Plaintiff’s position as Chair of Pathology while he was on leave
21 would not have been unduly burdensome for the County or KMC.
22 G. DUE PROCESS
23 132. Pursuant to 9.6-4 of the Bylaws, Bryan was not authorized to remove Plaintiff
24 from his position as Chair of Pathology, but could only recommend such removal to the JCC.
25 133. On July 10, 2006, Defendants County and Bryan demoted and reduced the base
26 annual compensation of Plaintiff by over $100,000 as provided for in Plaintiff’s employment
27 contract with Defendant County without providing Plaintiff impartial adjudicators, meaningful
28 notice of the JCC vote to remove Plaintiff from chairmanship or a meaningful opportunity to

1 respond to the charges against him or tell his side of the storya.
2 134. On December 7, 2006, Defendants County and Harris placed Plaintiff on
3 administrative leave, denying him the opportunity to earn professional fees of roughly $100,000
4 per year as provided for in Plaintiff’s employment contract, without providing Plaintiff impartial
5 adjudicators, meaningful notice of the meetings at which it was decided to place Plaintiff on
6 administrative leave, or a meaningful opportunity to respond to the charges against him or tell his
7 side of the story.
9 contract with Defendant County, denying him continued employment pursuant to a mutually
10 explicit understanding between Plaintiff and Defendant County, without providing Plaintiff
11 impartial adjudicators, meaningful notice of the JCC meetings at which it was decided not to
12 renew Plaintiff’s contract, or a meaningful opportunity to respond to the charges against him or
13 tell his side of the story.
14 H. ADVERSE ACTIONS
15 136. Defendants, and each of them, have taken adverse employment actions against
16 Plaintiff, willfully and intentionally creating a hostile work environment, subjecting him to acts
17 of unwarranted criticism and ratification thereof, demotion and excessive reduction in pay,
18 disparate treatment, unwarranted criticism and reprimands, threats, requests for his resignation,
19 interference with and denial of his right to medical leave, refusing to engage in good faith in an
20 interactive process and denying him reasonable accommodation and procedural due process
21 because of his protected characteristics and/or activities alleged herein.
22 137. On May 1, 2007, Defendant County notified Plaintiff that he would remain on
23 paid administrative leave until his employment contract expired on October 4, 2007; and that,
24 contrary to its prior and customary practice, Defendant County did not intend to renew his
25 employment contract. Although Plaintiff was no longer restricted to the confines of his home
26 during working hours, he still could not enter KMC’s premises or access his office without prior
27 written permission.


2 I. DAMAGES AND CAUSATION
3 139. As a result of Defendants’ acts and omissions alleged herein, Plaintiff has
4 suffered pecuniary losses, such as loss of wages and benefits, and has been required to incur
5 medical and legal expenses and to hire attorneys in order (i) to enforce Plaintiff’s rights, (ii) to
6 enforce provisions of the law protecting whistleblowers, employees who exercise their right to
7 medical leave under CFRA and oppose practice made unlawful under CFRA/FMLA, and
8 employees with disabilities that need reasonable accommodation and/or oppose practices made
9 unlawful under FEHA, and (iii) to take such action both in his own interest and in order to
10 enforce important rights affecting the public interest.
11 140. After Plaintiff returned from leave on October 4, 2006, Defendants and each of
12 them placed Plaintiff in the position of staff pathologist and excessively reduced his salary by
13 $100,842 or over 35%.
14 141. On information and belief, Plaintiff’s salary for his work as a staff pathologist for
15 KMC was less than the benchmark National Medical Group Association (“NMGA”) median
16 salary for a clinical and anatomic pathologist with Plaintiff’s qualifications and experience, in
17 breach of the Second Contract.
18 142. During the time that Defendants placed Plaintiff on involuntary full-time leave,
19 including the period from December 7, 2006 to October 4, 2007, Defendants effectively denied
20 Plaintiff the opportunity to earn Professional Fees as set forth in Article II of the Second
21 Contract.
22 143. As a further result of Defendants’ acts and omissions alleged herein, Plaintiff has
23 suffered and continues to suffer non-economic damages, such as emotional distress, anxiety, and
24 humiliation.
25 144. The acts and omissions of Defendants, and each of them, alleged herein were and
26 are a substantial factor in causing Plaintiff’s harm.
27 145. The acts and omissions of Defendants Bryan and Harris, alleged herein are
28 despicable, oppressive and were done in conscious disregard of the rights of individuals and

1 whistleblowers, such as Plaintiff, and of the safety of public patients, and have evidenced actual
2 or implied malicious intent toward Plaintiff, thereby entitling him to an award of punitive
3 damages against Defendants Bryan and Harris pursuant to §3294 Civil Code in an amount
4 sufficient to make an example of Defendants Bryan and Harris, and discourage others from
5 conscious disregard for the rights of individuals and whistleblowers and for the safe care and
6 condition of public patients. Plaintiff does not know the financial worth of Defendants Bryan and
7 Harris or the amount of punitive damages sufficient to accomplish the public purposes of §3294
8 Civil Code and will seek leave to amend this complaint when such facts are known or proceed
9 according to proof at trial.
10 146. Plaintiff has mitigated his damages by seeking and maintaining medical and
11 psychiatric treatment, seeking employment, and by taking progressive steps to try to restore
12 confidence in the Pathology Department at KMC.
13 EXHAUSTION OF REMEDIES
14 147. On July 3, 2006, Plaintiff filed a Tort Claims Act complaint with the County of
15 Kern. The complaint disclosed Plaintiff’s claims of retaliation against Defendant County for
16 engaging in whistleblowing activity concerning unsafe patient care and conditions at KMC and
17 his refusal to participate in activities that he reasonably believed to be unlawful against
18 Defendant County (a true and correct copy of which is attached hereto as Exhibit 2 and
19 incorporated by reference herein). The Office of the County Counsel for the County of Kern sent
20 a letter to Plaintiff’s counsel, dated September 15, 2006 (a true and correct copy of which is
21 attached hereto as Exhibit 3 and incorporated by reference herein), giving notice that Plaintiff’s
22 complaint was deemed rejected by operation of law and informing Plaintiff that he had six
23 months from the date of such notice to file a court action on his claims. Plaintiff continued to be
24 employed by KMC as a staff pathologist and continues to be subject to a hostile work
25 environment and retaliation on an ongoing basis.
26 148. On April 23, 2007, Plaintiff filed a supplemented Tort Claims Act complaint with
27 the County of Kern, supplemented to reflect events occurring after filing of the initial Tort
28 Claims Act complaint on July 3, 2006.

1 149. On October 10, 2007, Plaintiff again filed a supplemented Tort Claims Act
2 complaint with the County of Kern, supplemented to reflect events occurring after filing of the
3 supplemented Tort Claims Act complaint on April 23, 2007.
4 150. Plaintiff intends to file supplemented Tort Claims Act complaints with the County
5 of Kern on a periodic and continuing basis.
6 151. On August 3, 2006, Plaintiff filed a complaint with the California Department of
7 Fair Employment and Housing (“DFEH”), followed by an amended complaint filed on
8 November 14, 2006. The complaint stated claims against Defendant County for discrimination
9 on the basis of disability, as well as failure to engage in good faith in an interactive process,
10 failure to provide reasonable accommodation, violations of Plaintiff’s medical leave rights.
11 Plaintiff received a right-to-sue notice from the DFEH, true and correct copies of which are
12 attached hereto as Exhibit 4 and incorporated by reference herein.
13 152. On April 23, 2007, Plaintiff filed a supplemented complaint with the DFEH,
14 supplemented to reflect events occurring after filing of the initial complaint with the DFEH on
15 August 3, 2006.
16 153. On October 16, 2007, Plaintiff again filed a supplemented complaint with the
17 DFEH, supplemented to reflect events occurring after filing of the supplemented complaint with
18 the DFEH on April 23, 2006.
19 154. On September 2, 2008, Plaintiff again filed a supplemented complaint with the
20 DFEH, supplemented to reflect additional claims for retaliation for opposing practices made
21 unlawful under CFRA and FEHA which arose after evidence was newly discovered subsequent
22 to the filing of the supplemented complaint with the DFEH on October 16, 2007.
23 155. Plaintiff intends to file supplemented complaints with the DFEH on a periodic and
24 continuing basis.
25 156. Plaintiff filed a notice of intent to sue under Section 1102.5 of the Labor Code,
26 without seeking any penalties, with the Labor and Workforce Development Agency (“LWDA”)
27 on January 5, 2007, a true and correct copy of which is attached hereto as Exhibit 5 and
28 incorporated by reference herein. On February 15, 2007, the LWDA mailed notice to Plaintiff

1 that it was in receipt of Plaintiff’s notice of intent to sue. To date, Plaintiff has not received any
2 citation or notice that LWDA will investigate or pursue this claim.
3 157. On January 24, 2007, Plaintiff gave notice to the U.S. Department of Labor that
4 he had filed a complaint and initiated this action in US district court, alleging interference with
5 Plaintiff’s right to family and medical leave under FMLA. No right-to-sue notice has issued as
6 Plaintiff has a free-standing private right of action under FMLA.
7 STATEMENT OF CLAIMS
8 FIRST CLAIM
9 (Retaliation in Violation of Health & Safety Code § 1278.5)
(Against Defendants County and DOES 1 through 10)
10
158. Plaintiff alleges this first and separate claim for Retaliation in violation of Health
11
& Safety Code § 1278.5 against Defendant County.
12
159. Plaintiff incorporates by reference herein the allegations set forth in Paragraphs 1
13
through 157, inclusive, above.
14
160. At all material times herein, Health & Safety Code § 1278.5 provided protection
15
from discrimination and retaliation for health care workers who reported suspected unsafe care
16
and conditions of patients in health care facilities.
17
161. Defendants and each of them knew of Plaintiff’s whistleblowing activity
18
regarding suspected unsafe care and conditions of patients at KMC.
19
162. Defendants and each of them have violated Section 1278.5 of the Health & Safety
20
Code by engaging in a continuous and ongoing pattern and practice of discrimination and
21
retaliation against Plaintiff because he engaged in whistleblowing activity protected by Section
22
1278.5 of the Health & Safety Code.
23
163. A motivating factor for the acts and omissions of Defendants and each of them
24
described herein was Plaintiff’s reports to his employer, Barmann, and Authorities regarding
25
what he reasonably believed to be unsafe patient care and conditions.
26
WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.
27
SECOND CLAIM:
28
(Retaliation In Violation Of Lab. Code § 1102.5)

1 (Against Defendants County and DOES 1 through 10)

2 164. Plaintiff alleges this second and separate claim for Retaliation in violation of
3 Labor Code § 1102.5 against Defendant County and DOES 1 through 10, inclusive
4 165. Plaintiff incorporates by reference herein the allegations contained in Paragraphs
5 1 through 157 above, inclusive.
6 166. At all material times herein, Labor Code § 1102.5 was in effect, and provides in
7 pertinent part:
8 1102.5. (a) An employer may not make, adopt, or enforce any rule, regulation, or
policy preventing an employee from disclosing information to a government or
9 law enforcement agency, where the employee has reasonable cause to believe that
the information discloses a violation of state or federal statute, or a violation or
10 noncompliance with a state or federal rule or regulation.
(b) An employer may not retaliate against an employee for disclosing information
11 to a government or law enforcement agency, where the employee has reasonable
cause to believe that the information discloses a violation of state or federal
12 statute, or a violation or noncompliance with a state or federal rule or regulation.
(c) An employer may not retaliate against an employee for refusing to participate
13 in an activity that would result in a violation of state or federal statute, or a
violation or noncompliance with a state or federal rule or regulation.
14
167. Plaintiff reported his reasonable suspicions about illegal, non-compliant, and
15
unsafe care and conditions of patients at KMC to his employer, Barmann, and Authorities.
16
168. Defendants, and each of them, knew of Plaintiff’s whistleblowing reports
17
protected by Section 1102.5 of the Labor Code.
18
169. Defendants, and each of them, engaged in a continuous and ongoing pattern and
19
practice of discrimination and retaliation against Plaintiff because he engaged in activity
20
protected by Section 1102.5 of the Labor Code.
21
170. Plaintiff’s activity protected by Section 1102.5 of the Labor Code was a
22
contributing factor in the continuous pattern and practice of discrimination and retaliation of
23
Defendants, and each of them, against Plaintiff described in this complaint.
24
25
THIRD CLAIM
26
[Retaliation (CFRA - Gov’t Code §§ 12949(f); 12945.1, et seq.)]
27 (Against Defendants County and DOES 1 through 10, inclusive.)
28 171. Plaintiff alleges this third and separate claim for violations of Government Code

1 §§ 12945.1, et seq., against Defendants County and DOES 1 through 10, inclusive.
4 173. At all material times herein, Sections 12949(f), 12945.2(a)(1) of the Government
5 Code and 2 C.C.R. § 7297.7(a) prohibit any person from discriminating, discharging, or
6 retaliating against an employee for exercising his right to medical leave and/or for opposing
7 employment practices made unlawful under CFRA.
8 174. Defendants, and each of them, retaliated against Plaintiff for requesting and
9 taking medical leave, including denying him a medically necessary reduced work schedule;
10 ,demoting him; excessively reducing his salary and chance to earn professional fees, bonuses and
11 promotion; and non-renewal of his employment contract.
12 175. Plaintiff’s exercise of his right to medical leave and/or opposition to employment
13 practices made unlawful under CFRA was a motivating reason for Defendants’ adverse treatment
14 Plaintiff.
15 WHEREFORE Plaintiff prays for relief as stated in pertinent part hereinafter.
16 FOURTH CLAIM
17 [Interference With FMLA Rights in violation of 29 U.S.C. §§ 2601, et seq.]
(Against Defendants County, Bryan, and DOES 1 through 10, inclusive.)
18
176. Plaintiff alleges this fourth and separate claim for violations of 29 U.S.C. §§
19
2601, et seq. against Defendants County, Bryan, and DOES 1 through 10, inclusive, and each of
20
them.
21
177. Plaintiff incorporates by reference herein the allegations contained in Paragraphs
22
1 through 157 above, inclusive.
23
178. At all material times herein, FMLA was in effect and pursuant to 29 U.S.C. §
24
2611(4)(A)(ii)(I) imposed liability on covered employers and “any person who acts directly or
25
indirectly in the interest of the employer to any of the employees of such employer” for
26
interfering, restraining, or denying the exercise of, or attempt to exercise, any right provided
27
under FMLA pursuant to 29 U.S.C. § 2615(a), which prohibits any interference with (1) an
28
employee’s exercise of rights, and/or (2) discrimination against any individual for opposing any

1 practice made unlawful under FMLA .

2 179. Defendants, and each of them, interfered, restrained, or denied the exercise of, or
3 attempt to exercise, Plaintiff’s rights under FMLA, and discriminated against him for opposing
4 practices made unlawful under FMLA.
5 180. Defendants’ interference, restraint, or denial of the exercise of, or attempt to
6 exercise Plaintiff’s rights under FMLA, and discrimination against Plantiff for opposing
7 practices made unlawful under FMLA, included interference with and denial of Plaintiff’s right
8 to a medically necessary reduced work schedule; requiring Plaintiff to take full-time medical
9 leave when he was ready, willing, and able to work part-time, exhausting his medical leave more
10 rapidly than permitted; Defendants’ excessive reduction in Plaintiff’s salary; Defendants’
11 placement of Plaintiff on administrative leave, denying him the opportunity to earn professional
12 fees, bonuses and promotion; and Defendants’ decision not to renew Plaintiff’s employment
13 contract.
14 181. Plaintiff’s request for and taking of medical leave under FMLA and/or opposition
15 to practices made unlawful under FMLA was a negative factor in Defendants’ adverse treatment
16 of Plaintiff.
18 FIFTH CLAIM
19 [Violation of CFRA Rights in violation of Gov’t Code §§ 12945.1, et seq.]
(Against Defendants County and DOES 1 through 10, inclusive.)
20
182. Plaintiff alleges this fifth and separate claim for violations of Government Code
21
§§ 12945.1, et seq., against Defendants County and DOES 1 through 10, inclusive, and each of
22
them.
23
24
25
184. At all material times herein, the CFRA was in effect and made it an unlawful
26
employment practice for an employer to violate an employee’s rights under the CFRA pursuant
27
to section 12945.2(a) of the Government Code.
28
185. At all material times herein, the CFRA imposed strict liability on covered

1 employers who discriminated against an employee for exercising his right to leave or otherwise
2 interfered with an eligible employee’s CFRA rights pursuant to 2 C.C.R. § 7297.1 and Section
3 1615(a)(2) of the United States Code.
4 186. Defendants, and each of them, discriminated against Plaintiff and otherwise
5 interfered with his CFRA rights because he exercised, or tried to exercise, his CFRA rights,
6 including interference with and denial of Plaintiff’s right to a medically necessary reduced work
7 schedule; requiring Plaintiff to take full-time medical leave when he was ready, willing, and able
8 to work part-time which exhausted his medical leave more rapidly than permitted; and
9 Defendants’ demotion of Plaintiff and excessive reduction in Plaintiff’s salary.
10 187. Plaintiff’s exercise of, or attempt to exercise, his CFRA rights was a motivating
11 reason for Defendants’ adverse treatment of him.
13 SIXTH CLAIM
14 [Disability Discrimination in Violation of Gov’t Code § 12940(a)]
(Against Defendants County and DOES 1 through 10, inclusive)
15
188. Plaintiff alleges this sixth and separate claim for Disability Discrimination in
16
violation of Government Code § 12940(a) against Defendant County and DOES 1 through 10,
17
inclusive.
18
19
20
190. The FEHA prohibits discrimination on the basis of disability in employment.
21
191. Defendants, and each of them, through their course of conduct denied Plaintiff a
22
benefit of employment, in whole or in part, because he is an individual with known disabilities in
23
violation of Government Code 12940(a) and 2 C.C.R. §7293.7.
24
192. In addition to the adverse actions alleged above, Defendants, and each of them,
25
discriminated against Plaintiff, denied him reasonable accommodation, and refused to engage in
26
good faith in an interactive process because of his known disabilities.
27
28

1 SEVENTH CLAIM
2 (Failure to Provide Reasonable Accommodation in Violation of Gov’t Code § 12940(m))
(Against Defendants County and DOES 1 through 10, inclusive)
3
193. Plaintiff alleges this seventh and separate claim for Failure to Provide Reasonable
4
Accommodation in violation of Government Code § 12940(m) against Defendant County and
5
DOES 1 through 10, inclusive.
6
7
8
195. Defendants, and each of them, failed to provide reasonable accommodation of
9
Plaintiff’s known disabilities in violation of Section 12904(m) of the Government Code and 2
10
C.C.R. § 7293.9.
11
12
EIGHTH CLAIM
13
(Failure to Engage In Interactive Consultation In Violation of Gov’t Code § 12940(n))
14 (Against Defendants County and DOES 1 through 10, inclusive)
15 196. Plaintiff alleges this Eighth and separate claim for Failure to Engage in Good
16 Faith in an Interactive Consultation in violation of Government Code § 12940(n) against
17 Defendant County and DOES 1 through 10, inclusive.
20 198. Defendants, and each of them, failed to engage in good faith in a prompt,
21 ongoing, interactive consultation regarding reasonable accommodation of Plaintiff’s disabilities
22 in violation of Section 12940(n) of the Government Code.
24 NINTH CLAIM
25 (Violation of Due Process Right under 42 U.S.C. § 1983)
(Against Defendants County of Kern; Harris; and Bryan both in his personal capacity and
26 in his official capacity as a member of the JCC of KMC)
27 199. Plaintiff alleges this Ninth and separate claim for violation of Plaintiff’s
28 Fourteenth Amendment of the United States Constitution Right of Procedural Due Process under

1 42 U.S.C. § 1983 against Defendants County of Kern; Harris; Bryan both in his personal
2 capacity and in his official capacity as a member of the JCC of KMC.
5 201. The Fourteenth Amendment of the United States Constitution protects a public
6 employee’s right of procedural due process regarding governmental actions that deprive him of
7 life, liberty, or property interest of constitutional magnitude.
8 202. At all material times herein, Plaintiff had a constitutionally protectable contractual
9 property right not to be deprived without cause of his position as Chair of Pathology and/or of
10 any portion of his base salary of constitutional magnitude as provided for in the Second Contract.
12 property right not to be deprived without cause of the opportunity to earn professional fees of
13 constitutional magnitude as provided for in the Second Contract.
15 right not to be deprived without cause of continued renewal of his employment contract with
16 Defendant County of constitutional magnitude pursuant to a mutually explicit understanding that
17 Plaintiff would be continuously employed by Defendant County absent for cause.
18 205. Defendants, and each of them, intentionally, or with deliberate indifference to, or
19 with a conscious disregard of, Plaintiff’s Constitutional rights, denied Plaintiff adequate
20 procedural due process guaranteed by the Fourteenth Amendment of the United States
21 Constitution when they decided to demote Plaintiff and substantially and excessively reduced his
22 salary by a sum of constitutional magnitude in breach of the Second Contract; to place Plaintiff
23 on administrative leave denying him the right to earn professional fees of constitutional
24 magnitude; and not to renew his employment contract inflicting economic losses of
25 constitutional magnitude.
26 206. The persons who voted to remove Plaintiff from chairmanship, who decided to
27 place Plaintiff on administrative leave, and/or who decided not to renew Plaintiff’s employment
28 contract were not impartial adjudicators. Defendants willfully and maliciously refused to give

1 Plaintiff notice of the JCC removal vote, of the meetings to decide whether to place Plaintiff on
2 administrative leave, and of the JCC meetings to decide whether to renew Plaintiff’s employment
3 contract. Defendants further willfully and maliciously denied Plaintiff a meaningful opportunity
4 to know or respond to the charges and allegations against him or to tell his side of the story.
5 207. Defendants and each of them, were acting or purporting to act under color of law
6 in the performance of their official duties, including as members of the JCC, when engaging in
7 the acts and omissions alleged herein.
8 208. Plaintiff’s right to due process in connection with his removal from chairmanship
9 and reduction of his contractually-provided for base annual compensation, and/or his placement
10 on administrative leave denying him the right to earn professional fees, and non-renewal of his
11 employment contract, was clearly established.
12 209. Defendants and each of them relied on the Bylaws of Kern Medical Center –
13 which had been ratified and approved by the Board of Supervisors for the County of Kern – in
14 determining that Plaintiff was not entitled to due process, and therefore denying him such due
15 process, in connection with his removal from chairmanship and reduction of his contractually-
16 provided for base annual compensation, his placement on administrative leave denying him the
17 right to earn professional fees, and non-renewal of his employment contract.
18 210. The conduct of Defendants, and each of them, deprived Plaintiff of his
19 constitutionally protectable interests without adequate due process in violation of Plaintiff’s 14th
20 Amendment right of procedural due process.
21 211. As a legal result of the conduct of Defendants, and each of them, Plaintiff was
22 harmed.
23 212. Defendants’ denial of Plaintiff’s procedural due process right was a substantial
24 factor in causing Plaintiff’s harm.
26 TENTH CLAIM
27 (FMLA Retaliation in Violation of 29 U.S.C. § 2615(b))
(Against Defendants County and DOES 1 through 10, and Each of Them)
28
213. Plaintiff alleges this Tenth and separate claim for FMLA Retaliation in violation

1 of 29 U.S.C. § 2615(b)) against Defendants County, and DOES 1 through 10, inclusive, and each
2 of them.
5 215. At all material times herein, FMLA was in effect and pursuant to 29 U.S.C. §
6 2611(4)(A)(ii)(I) imposed liability on covered employers and “any person who acts directly or
7 indirectly in the interest of the employer to any of the employees of such employer” for
8 interfering, restraining, or denying the exercise of, or attempt to exercise, any right provided
9 under FMLA pursuant to 29 U.S.C. § 2615(b)(1), which prohibits any discrimination against an
10 individual because such individual has filed any charge, or has instituted or caused to be
11 instituted any proceeding, under or related to FMLA..
12 216. Plaintiff opposed employment practices made unlawful by FMLA by filing this
13 lawsuit, which included claims brought under the FEHA.
14 217. Defendants, and each of them, discriminated against Plaintiff because he filed this
15 lawsuit herein, which included claims brought under the FMLA.
16 218. Defendants, and each of them, engaged in discriminatory conduct that, taken
17 separately and/or as a whole, materially and adversely affected the terms and conditions of
18 Plaintiff’s employment, including deciding not to renew Plaintiff’s employment contract.
19 219. Plaintiff’s filing of this lawsuit herein, which included claims brought under
20 FMLA, was a negative factor in Defendants’ adverse treatment of Plaintiff.
22 ELEVENTH CLAIM
23 (FEHA Retaliation in Violation of Gov’t Code § 12940(h))
(Against Defendants County and DOES 1 through 10 inclusive)
24
220. Plaintiff alleges this Eleventh and separate claim for FEHA retaliation in violation
25
of Gov’t Code § 12940(h) against Defendant County and DOES 1 through 10, inclusive.
26
27
28
222. Plaintiff opposed employment practices made unlawful by the FEHA by filing a

1 charge with the DFEH and filing this lawsuit, which included claims brought under the FEHA.
2 223. Defendants, and each of them, engaged in discriminatory conduct that, taken
3 separately and/or as a whole, materially and adversely affected the terms and conditions of
4 Plaintiff’s employment, including excessively reducing Plaintiff’s salary and chance to earn
5 professional fees, bonuses and promotion, close scrutiny, and not renewing Plaintiff’s
6 employment contract.
7 224. Plaintiff’s opposition to employment practices made unlawful by the FHEA was a
8 motivating reason for Defendants’ adverse treatment of Plaintiff.
9 WHEREFORE Plaintiff prays for relief as stated herein and in pertinent part
10 hereinafter.
11
12 PRAYER FOR RELIEF
13 Plaintiff prays for judgment against Defendants, and each of them, jointly and severally,
14 as follows:
15 1. Front pay in lieu of reinstatement and reimbursement for lost wages and work benefits
16 caused by the acts of his employer pursuant to Section 1278.5(g) of the Health & Safety
17
Code and Section 12965 of the Government Code.
18
2. Recovery of all reasonable attorneys’ fees, litigation expenses and costs incurred,
19
20 pursuant to Section 2699 of the Labor Code for violation of Section 1102.5 of the Labor
21 Code, 1278.5(g) of the Health & Safety Code, Section 1021.5 of the Code of Civil
22 Procedure, Section 12965 of the Government Code, 29 U.S.C. § 2617(a)(3) [FMLA], and
23
42 U.S.C. § 1988.
24
3. That Defendant County be enjoined from retaliating against whistleblowers in violation
25
26 of Section 1278.5 of the Health & Safety Code and Section 1102.5 of the Labor Code.
27 4. That Defendant County be required to expunge from Plaintiff’s personnel records any
28 and all references to Plaintiff’s having “poor relationships” with staff, displaying poor

1 teamwork or other words of similar effect.

2 5. That Defendant County be required to comply with all of the provisions of the FEHA
3
relating to providing reasonable accommodation and engaging in good faith in an
4
interactive consultation regarding reasonable accommodation [Government Code §§
5
6 12940 (m) & (n)].
7 6. That Defendant County be required to provide training to the managerial staff at KMC
8 regarding compliance with Section 1278.5 of the Health & Safety Code, Section 1102.5
9
of the Labor Code, Sections 12940(m) and (n) of the Government Code, and CFRA
10
(Government Code §§ 12945.1, et seq.).
11
12 7. General and compensatory damages according to proof.
13 8. Liquidated damages under FMLA/CFRA according to proof.

14 9. Punitive damages against Defendants Harris and Bryan pursuant to §3294 Civil Code and
15
42 U.S.C. § 1983;
16
10. Pre-judgment interest pursuant to §3291 of the Civil Code.
17
18 11. For such other and further relief as the court may deem proper.
19
Dated: September __, 2008 LAW OFFICE OF EUGENE LEE
20
21 By: ___________________________________
Eugene D. Lee
23
24
25
26
27
28

1 DEMAND FOR JURY TRIAL

2
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands
3
trial by jury for all issues and claims triable as of right by a jury.
4
Dated: September ___, 2008 LAW OFFICE OF EUGENE LEE
5
6 By: ___________________________________
Eugene D. Lee
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

EXHIBIT 2:
Meet and confer emails between Plaintiff’s attorney and Defendants’ attorney, dated 1/4/08
SAC000047
Eugene D. Lee
From: Mark Wasser [mwasser@markwasser.com]
Sent: Friday, January 04, 2008 5:11 PM
To: 'Joan Herrington'
Cc: 'Gene Lee'
Subject: RE: 080104 JEH-Wasser re 3d Supplemental Complaint - Redlined
Joan,
I can open the Stipulation but cannot open the Third Supplemental Complaint. Apparently it is in a different program.
Mark
From: Joan Herrington [mailto:jh@baelo.com]

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

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

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

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

No virus found in this outgoing message.

Checked by AVG Free Edition.
Version: 7.5.516 / Virus Database: 269.17.13/1209 - Release Date: 1/4/2008 12:05 PM
1
SAC000048
EXHIBIT 3:
SAC000049
Eugene D. Lee
Sent: Tuesday, January 22, 2008 9:01 AM
To: elee@LOEL.com
Subject: RE: Jadwin/KC: Supplemental Complaint
Follow Up Flag: Follow up

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

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

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

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This message is sent by a law firm and may contain information that is privileged or confidential. If you received this
transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

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

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

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

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

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

Mark,

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

Sincerely,
Gene Lee

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

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

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

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

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

I look forward to hearing from you.

Sincerely,
Gene Lee

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

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

From: Mark Wasser [mailto:mwasser@markwasser.com]
Sent: Sunday, May 04, 2008 12:07 PM
To: elee@LOEL.com
2
SAC000055
EXHIBIT 6:
Plaintiff’s Notice of Withdrawal of Motion to File TSC (Doc. 159)
SAC000056
Case
Case1:07-cv-00026-OWW-TAG
1:07-cv-00026-OWW-TAG Document
Document217
159 Filed
Filed09/02/2008
06/30/2008 Page
Page71
1 of 2
77

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

SAC000057
Case
Case1:07-cv-00026-OWW-TAG
1:07-cv-00026-OWW-TAG Document
Document217
159 Filed
Filed09/02/2008
06/30/2008 Page
Page72
2 of 2
77
1 official capacities under Count Ten of Plaintiff’s Complaint (42 U.S.C. 1983 procedural due process).
2
3 RESPECTFULLY SUBMITTED on June 30, 2008.
4 /s/ Eugene D. Lee
6 Phone: (213) 992-3299
Fax: (213) 596-0487
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF'S WITHDRAWAL OF MOTION FOR LEAVE TO FILE THIRD SUPPLEMENTAL COMPLAINT 2

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

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

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

Mark,

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

Sincerely,
Gene Lee

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

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

1
SAC000060
1 Eugene D. Lee SB#: 236812

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

217 P MX Amend SAC

Enviado por

Dados do documento

Descrição original:

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

217 P MX Amend SAC

Enviado por

Direitos autorais:

Formatos disponíveis

Case 1:07-cv-00026-OWW-TAG Document 217 Filed 09/02/2008 Page 1 of 77

1 LAW OFFICE OF EUGENE LEE

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

1 MEMORANDUM OF POINTS & AUTHORITIES

1 Defendants cannot in good faith claim to be surprised or prejudiced by Plaintiff’s proposed

1 See discussion in Section II.C.2 above.

1 DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION

EXHIBITS TO DECLARATION OF EUGENE D. LEE

EXHIBIT 1. Draft Second Amended Complaint

1 Eugene D. Lee SB# 236812

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 1/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 2/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 3/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 4/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 5/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 6/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 7/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 8/43

1 contract because he had filed the instant lawsuit.

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 9/43

1 KMC Administrative Policies and Procedures Manual (“KAPP Manual”).

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 10/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 11/43

1 Additionally, I cannot institute adjuvant therapy in a timely manner when it takes

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 12/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 13/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 14/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 15/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 16/43

1 and the unwarranted criticisms contained therein.

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 17/43

1 carbon-copied to Bryan, stating:

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 18/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 19/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 20/43

1 resign, purportedly because “the hospital needs you here full-time.”

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 21/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 22/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 23/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 24/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 25/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 26/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 27/43

1 contract, which therefore expired.

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 28/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 29/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 30/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 31/43

1 (Against Defendants County and DOES 1 through 10)

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 32/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 33/43

1 practice made unlawful under FMLA .

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 34/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 35/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 36/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 37/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 38/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 39/43

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 40/43

1 teamwork or other words of similar effect.

13 8. Liquidated damages under FMLA/CFRA according to proof.

SECOND AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 41/43