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

1 Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite 2640Sacramento, CA 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: mwasserlalmarkwasser.com5 Bernard C. Barmann, Sr. CA SB #060508KERN COUNTY COUNSEL6 Mark Nations, ChiefDeputy CA SB #1018381115 Truxtuu Avenue, Fourth Floor7 Bakersfield, CA 93301Phone: (661) 868-38008 Fax: (661) 868-3805E-mail: [email protected] Attorneys for Defendants County ofKern,

10 Peter Bryan, and Irwin Harris111213

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

1415 DAVID F. JADWIN, D.O.16 Plaintiff,17 vs.18 COUNTYOF KERN, et ai.,

Case No.: 1:07-cv-00026-0WW-TAGDEFENDANTS' MEMORANDUM OFPOINTS AND AUTHORITIES IN REPLYTO PLAINTIIF'S OPPOSITION TODEFENDANTS' MOTION FORSUMMARY JUDGMENT

19 Defendants.202122232425262728

Date: January 12,2009Time: 10:00 a.m.Place: U.S. District Court, Courtroom 32500 Tulare Street, Fresno, CADate Action Filed: January 6, 2007Trial Date: March 24, 2009- - - - - - - - - - - - -

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1 Defendants submit this memorandum of points and authorities in reply to Plaintiffs2 opposition to Defendants' motion for summary judgment.3 A. Spoliation4 Raising in his opposition an issue he did not raise in his moving papers, Plaintiffalleges5 three individuals employed by the County destroyed evidence in this case. This is specious.6 With regard to David Culberson, KMC's interim ChiefExecutive Officer, the deposition7 testimony Plaintiff cites ("PMF 242"), when read in its entirety, shows the notes Mr. Culberson8 destroyed were inconsequential reminders about topics to be discussed at meetings. (Culberson9 Depo., 8/21/08, pgs. 45: 17-46:11). Mr. Culberson testified it was his usual practice to discard

10 notes of this type. There is no indication his notes had anything to do with this case. (Culberson11 Depo., 8/21/08, pg. 42:8-17; pgs. 45:10-46:11. See also, pg. 47: 10-51 :6). Furthermore, to the12 extent Mr. Culberson attended meetings where minutes were kept, the minutes would be the best13 evidence ofwhat transpired at the meetings and the minutes have all been produced.14 Supervisor Barbara Patrick does not recall whether she took notes at the Joint Conference15 Committee meeting where the vote was taken to remove Plaintiff as Chair. (PSUF ~ 2 3 4 , Patrick16 Depo., 8/19/08, pgs. 70:8-73:7). She described any notes she might have written on her copies17 of the agendas as "doodles." Id. Again, the minutes would be the best evidence of topics18 discussed at the meetings and all the minutes have been produced.19 Finally, Dr. Ragland testified that his standard and long-standing practice is to delete e-20 mails after he reads them. The hard disk on the computer that had been assigned to Plaintiff was21 both searched and produced and the e-mail exchange Plaintiff inquired about was not on22 Plaintiffs computer, either. Thus, it is likely the e-mail exchange Plaintiff inquired about23 occurred before Plaintiff asked the Defendants to preserve e-mails. Further, Plaintiff clearly had24 control over the information in question because he discussed it during a Medical Executive25 Committee meeting. (Ragland Depo., 8/22/08, pgs. 90:10-91:17)26 B. Medical Leave27 Plaintiff argues that Bachelder v. America West Airlines, Inc., (9 th Cir. 2001) 259 F.3d28 1112 is controlling and establishes that Defendants interfered with his right to medical leave and

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I retaliated against him for taking medical leave. Bachelder actually supports the Defendants.2 In Bachelder, the court held the plaintiff/employee's absences were protected by FMLA3 because they occurred during her 12 workweeks of protected leave. Id. at 1132. The4 defendant/employer had not specified which of the four "leave year" calculations, described in5 29 C.F.R. 825.200, it would use to calculate FMLA leave. Id. at 1129. Consequently, the court6 calculated the plaintiff/employee's leave under the method that was most advantageous to her.7 Id. This was the "calendar year" method and, under that method, the absences for which the8 plaintiff had been terminated occurred within the protected 12-week period.9 Here, the facts are different. The County had designated a "rolling leave year" for the

10 purpose of calculating FMLA leave. (Bates Nos. 0018974-0018976; 29 C.F.R. 825.200(b)).II Plaintiff exhausted his 12 weeks leave by June 14,2006 (DSUF ~ ~ 3 0 , 32, and 38) but was not12 removed as Chair until July 10, after he refused the COlmty's invitation to return to work.13 (DSUF ~ ~ 1 9 , 23, and 33). The relevant language from Bachelder is the court's comment that "it14 should be obvious" that FMLA offers no protection for absences that exceed those authorized by15 the statute. Bachelder, 259 FJd at 1125. Thus, it offers no protection for Plaintiff.16 c. Due Process17 Plaintiff erroneously asserts Defendants have "expressly recognized" the constitutional18 right of chairs to not be demoted without due process. (Pltf.'s Opp. to Defts.' Motion for19 Summary Judgment, pg. 14, ~ 4 ) . In "support", he relies on minutes of the Joint Conference20 Committee meeting of September 10, 2007 during which someone said, with reference to Dr.21 Leonard Perez, "Dr. Perez is entitled to a due process hearing." (PSUF ~ 2 5 7 ) . That was true.22 However, Dr. Leonard Perez's employment was terminated for cause. (Id.; JCC Meeting23 Minutes of 9/1 0/07 at Agenda Item 6 on Bates 0009221). Plaintiff would also have been entitled24 to a hearing ifhe had been terminated. (See, Plaintiffs employment agreement, DSUF '[6,25 Section IV, ~ 3 pg. 14).26 But, Plaintiff was not terminated. He was simply removed as department chair.27 Plaintiffs employment was subject to the KMC medical staff bylaws (DSUF ~ ~ and 6b) and the28 Bylaws provide that chairs can be removed without cause on recommendation of the Chief

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I Executive Officer. (DSUF ~ 4 Article IX, Section 9.7-4, pg. 48). Procedures that applied to the2 termination of Dr. Perez's employment do not apply to Plaintiffs removal as Chair.3 Other provisions of Plaintiff's contract provided that he was not a classified employee,4 did not have rights under the County's Civil Service system (DSUF ~ 6 Article V, ~ I O , pg. 16),5 and was required to comply "with all applicable KMC and County policies and procedures" (Id.,6 Article V, ~ 7 pg. 15). Administrative leave is expressly authorized by the County's policies. Id.7 On July 10,2006, after Plaintiffhad been absent from the hospital on self-imposed exile8 for 8 months, the Joint Conference Committee, acting on the recommendation of the hospital's9 chief executive officer and in accordance with the Bylaws, voted to remove Plaintiff as Chair of

10 the Department of Pathology. (DSUF ~ 3 3 ) . Plaintiff had been previously told he had to beII present ifhe wanted to continue to be Chair. (DSUF ~ ~ 2 0 and 22).12 Plaintiff was not "demoted" as that term is used in the Bylaws. "Demotion" is13 referenced in Section 12.2 as one of several possible corrective actions. (DSUF ~ 4 Article XII,14 ~ 1 2 . 2 , pg. 71). It means moving a medical staffmember to a "lower staffcategory or15 membership status." Id. The categories ofmedical staff are also defined in the Bylaws (See,16 Article V, "Categories ofMembership," DSUF ~ 4 pgs.18-28) and are: Active, Courtesy,17 Consulting, Provisional, Honorary, Retired, Advisory, Administrative, and Associate. Id.18 Plaintiffwas always in the "Active" category with full rights ofmembership and clinical19 privileges. (KMC Letter to Jadwin, dated 8/14/01 to 9/12/08).20 D. Plaintiff's Alleged Disability.21 Plaintiffalleges he is a "disabled physician." He is not. He testified at his deposition that22 he is not limited in any major life functions. (Jadwin Depo., 1/9/08, pgs. 465:3-467:18). He said23 he could perform all the essential functions of this job without accommodation. (Jadwin Depo.,24 1/9/08, pg. 416:6-7). His forensic psychologist was quite emphatic in his deposition testimony25 that Plaintiff is not disabled within the meaning of either the ADA or FEHA. Dr. Reading26 testified that it was "unequivocal" that Plaintiff"was asymptomatic when starting work at Kern27 and so did not bring with him to the job any nascent depressive vulnerabili ty." (PSUF ~ 1 3 4 ,28 Reading Decl., pg. 59, ~ 3 ) . Reading added that the "depressive disorder" Plaintiff experienced

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1 while working at KMC "would be considered to have been a first occurrence." ld.2 Reading's opinion is consistent with Plaintiffs admission that he first complained about3 depression in 2003 to Dr. Marvin Kolb, KMC's ChiefMedical Officer at the time. (DSUF ~ ~ 6 54 and 67) Plaintiff bluntly asserts his "disability" was caused by working at KMC. (Second5 Amended Complaint ~ 1 0 9 ) . (See, e.g., DSUF ~ ~ 7 , 65, and 67).6 These facts, undisputed, establish that Plaintiff is not "disabled" within the meaning of7 any of the applicable statutes. According to his own expert, Plaintiff was just "depressed." He8 became "depressed" because of his on-the-job experiences at KMC. Because he did not bring9 "any nascent depressive vulnerability" with him to KMC and his depression developed on the

10 job, it is clearly a work-related injury and his exclusive remedy is under the CaliforniaWorkers11 Compensation Act.12 Despite claiming he is not limited in any major life function and able to perform all13 essential functions of his job, there is one thing he cannot do: He cannot work at KMC. (DSUF14 ~ ~ 7 , 65, 67, and 68; Jadwin Depo., 10/21/08, pp. 1051: 11 - 1052:5). This means he cannot15 perform the most essential function of the job he had - which is to simply show up to work and16 do his job. And that means he is not a "qualified individual" under either the ADA or FEHA.17 E. Failure to Accommodate and Discrimination.18 Plaintiff put himself on leave beginning in December, 2005. (DSUF ~ 0). Although he19 told another physician he was going to stay on leave until the hospital's chief executive officer20 "apologized" to him and asked him to come back to work (DSUF ~ A), he has also testified he21 put himself on leave because he was too "depressed" to work. He remained out of the hospital22 for over 10 months, from December 15, 2005 to October 4,2006. (DSUF ~ 1 5 ; PSUF ~ 4 9 ) .23 Plaintiff did not tell KMC management he was on leave until January 9, 2006 and he24 never told the County's Human Resources Department. (DSUF ~ ~ 7 , 11). Human Resources had25 to scramble to bring Plaintiff into compliance with County policy. ld.26 Plaintiffs physician certification gave an expected return-to-work date ofMarch 16,27 2006. ld. However, Plaintifftook no steps after March 16 to either return to work or submit a28 request for more leave. Human Resources finally notified him, on April 20, 2006, that his leave

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1 had expired. (DSDP ~ 1 8 ) . Plaintiff then requested an extension ofhis leave of absence until2 September 16, 2006. (DSDP ~ 1 9 ) . He submitted a certification from his health care provider,3 dated April 26, 2006, stating he required "part-time or less to avoid worsening of his serious4 medical condition." [emphasis added] (DSDP ~ 1 4 ) .5 On April 28, 2006, KMC management met with Plaintiff and gave him a summary of his6 medical leave history along with policies about medical leave. (DSDF ~ 2 0 ) . He was reminded7 that his responsibilities as Chair required him to be physically present at the hospital. (DSDF8 ~ 2 0 ) . The meeting was held to "insure that [PlaintiffJ had all information available concerning9 his status and what was possible and not possible according to County policies." (DSDP ~ 2 2 ) .

10 Plaintiffs medical certification that he required a "part-time or less" work schedule was a11 sufficient basis for the County to propose full-time leave to Plaintiff. (DSDP ~ ~ 2 0 and 22).12 Peter Bryan told Plaintiffhe had the option to go on full-time leave (DSDP ~ 2 0 ) and Plaintiff13 chose to do so - without complaint. (DSDP ~ 2 l ) .14 It is undisputed Plaintiff had exhausted his 12 weeks ofFMLA and CPRA leave by June15 14,2006. (DSDP ~ ~ 3 0 , 32, and 38). Plaintiffhad been told his leave would expire in June, 200616 and that he needed to notify the County of his intention to either return to work or resign.17 (DSDP ~ 2 0 ) . Plaintiff, again, failed to respond as requested and, instead, asked for more leave.18 (DSDP ~ 2 3 ) . On June 14,2006, the County notified Plaintiff he could have more leave but19 could not continue as Chair. (DSDP ~ 2 4 ) .20 By the time Plaintiff finally returned to work on October 4, 2006, he had effectively21 destroyed his career as a pathologist. He had not practiced in over 10 months and, combined22 with the personality traits that had destroyed his working relationships with the KMC medical23 staff, (see discussion below) he could simply no longer do his job.24 (While he was on leave because he was too "depressed" to work, Plaintiff actively25 pursued at least six other full-time pathology positions, further showing there was only one place26 he could not work. (DSDP ~ 8 ) . )27 Because Plaintiffs decisions to put himselfon leave and choose which duties he would28 do and which he would not do were made unilaterally and without input from the County (DSDP



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~ ~ 1 2 and 15; Second Amended Complaint ~ 8 0 ) , when he returned to work the County reasonabl2 imposed certain on him. (PSUF ~ 2 6 7 , Lee Decl., Exh. 22). These were not "discriminatory."3 During the brief period between October 4, 2006 and December 7, 2006, when he tried to4 return, Plaintiff usurped the jobs of the lab techs in the pathology laboratory (DSUF ~ 1 7 7 ) , and5 further isolated himself from the medical staff. (DSUF ~ ~ 8 3 , 177, 182, 184, and 186). When he6 was asked to resume doing the blood bank reviews, he refused. (DSUF ~ 1 8 7 ) . When counseled7 about his performance, he blamed other staffmembers and verbally attacked them. (DSUF8 ~ 1 7 9 ) . He avoided the interim chair of the Department until he was finally counseled about his9 lack of cooperation and failure to follow Departmental protocol. (DSUF ~ ~ 1 8 3 and 189).

10 Because he refused to talk with the interim chair about his work, some of Plaintiffs cases were11 referred to the Peer Review Committee. (DSUF ~ 1 8 9 ) . Plaintiff responded by complaining he12 was being singled out for special treatment. (DSUF ~ 1 9 0 ) .13 Plaintiffwas sloppy in his work habits. Other members of the pathology department14 began to notice he was not removing "sharps" (i.e., blades) from the grossing (i.e. working) area.15 (DSUF ~ ~ 8 2 , 85, and 182, l82a, l82b). He mislabeled specimens. (DSUF ~ 8 4 ) . After he16 refused to send one specimen to an outside reviewer, he responded by sending almost all his17 cases out, thereby taxing the Department's budget. (DSUF ~ 1 8 5 ) . He failed to correctly proctor18 another staffmember who lacked the privileges to do fine needle aspiration. (DSUF ~ 1 8 0 ) .19 Plaintiffs attitude stressed his co-workers. He interfered in their work. (DSUF ~ 1 7 7 ) .20 He ordered other staffmembers to perform tasks outside of their job duties. (DSUF ~ 1 8 6 ) . He21 retaliated against doctors he did not like. (DSUF ~ 1 6 4 ) . He was counseled for being hostile to at22 least one other physician. (DSUF ~ 1 8 4 ) . The interim chair of the Department was sufficiently23 concerned about Plaintiffs behavior that he met with KMC management about it. (DSUF ~ 1 8 8 ) .24 The County was concerned that other staffmembers would file hostile work environment claims25 because of their mistreatment by Plaintiff. (DSUF ~ 1 6 5 ) .26 The only responsible thing for the County to do was remove him from the work27 environment in a way that would do the least damage to him and those around him. (DSUF28 ~ 4 l ) . The County pnt Plaintiffon paid administrative leave and let his employment contract run



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l o u t . There were no "charges" against Plaintiffand he suffered no stigma. He was just sent home2 and was paid for staying there.3 G. Defendants Had Legitimate Business Reasons For The Actions They Took.4 During his tenure as Chair of the Pathology Department, Plaintiffbehaved in an5 increasingly confrontational and hostile way towards members ofthe KMC medical and non6 medical staff. (DSUF ~ ~ 6 9 - 1 9 0 ) . As early as 2003, Plaintiff was counseled by the Chief7 Medical Officer that his leadership style should be "kinder and gentler." (DSUF '1147). In8 February, 2005, Plaintiff was told that "he was not acting like a team member." (DSUF ~ 1 4 9 ) .9 In October 2005, Plaintiffwas described as lacking communication skills and failing to "extend

10 basic courtesy to his colleagues." (DSUF ~ 1 1 4 ) . In April, Peter Bryan wrote Plaintiff that heII must either improve his relationships with staffor step down as Chair. (DSUF ~ 1 6 0 ) . Mr. Bryan12 told him, "you have made many derogatory comments about some of the staffmembers." Ibid.13 From the beginning, Plaintiffexhibited no self-awareness and little sensitivity to the14 effect his behavior had on others. As early as 2003, Plaintiffwrote that complaints his behavior15 were "irresponsible attempts by a few inadequate individuals." (DSUF ~ 1 4 7 ) . He called Dr.16 Irwin Harris, the Chief Medical Officer, an "idiot" on several occasions and he questioned Toni17 Smith's competency as chief nursing officer. (DSUF ~ ~ 1 3 7 and 139).18 Plaintiffwrote an e-mail accusing Dr. Abraham, the former medical staff president, of no19 being "honest, objective or impartial." (DSUF ~ 1 4 8 ) . In a later e-mail, he accused Dr. Abraham20 ofhaving an "inappropriate personality defect." (DSUF ~ 1 5 4 ) . In another e-mail, he called Dr.21 Abraham and Dr. Ragland "disgruntled, vindictive individuals." (DSUF ~ 1 5 8 ) . In a letter to Dr.22 Perticucci, Plaintiff called him "dishonest." (DSUF ~ 1 5 3 ) .23 He called Dr. Epstein's independent, outside diagnoses "cavalier." (DSUF ~ 1 4 2 ) . He24 called the radiologists at KMC "incompetent." (DSUF ~ 1 4 3 c ) . Plaintiff publicly criticized the25 pathology staff at the University of Southern California and Stanford University medical schools26 at an Oncology Conference in October, 2005. (DSUF '(111).27 In one particularly egregious incident, Plaintiff accused Dr. Ragland of being an28 "impaired physician" with a "level of intellectual functioning well below the high school

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1 graduate level" and mental processes that are "chaotic and almost incoherent." He alleged that2 Dr. Ragland might have a substance abuse, emotional and/or cognitive function disorder. He3 suggested that Dr. Ragland be drug tested and his patient care duties monitored. (DSUF ~ 1 5 2 ) .4 This was all because Dr. Ragland sent Plaintiff an e-mail that contained spelling and5 grammatical mistakes. ld. Plaintiffcontacted the licensing board with these same accusations,6 and he turned Dr. Ragland's e-mail over to KMC's psychiatry department. (DSUF ~ 1 5 2 a ) .7 Dr. Ragland was, in fact, not "impaired" and Plaintiff later wrote a letter of apology to8 him. (DSUF ~ 1 5 2 b ) . (Ironically, Plaintiffs letter of apology contains spelling and grammatical9 mistakes, including the phrase: "...and I have never treated you and your patients exceptionally10 well . . ." [italics added] ld.11 Once, Plaintiffbecame angry because he missed an inspection of his department and the12 laboratory manager reported Plaintiffas saying, "I fhe had a gun-a gun he would have shot13 someone." (DSUF ~ 1 6 3 ) . In 2003, Plaintiffbecame so enraged at a radiologist, Dr. Lau, that he14 grabbed him by his tie and pulled him out ofa room at KMC. (DSUF ~ ~ 9 0 - 9 3 ) . Plaintiff15 blamed Dr. Lau for the incident, saying Dr. Lan was afraid of "data" Plaintiffwas going to show16 him. (DSUF ~ 9 1 a ) . Plaintiffwas found to have violated the County's Workplace Violence17 Policy and was given a written reprimand. (DSUF ~ 9 1 c and 92).18 Plaintiffwas unable to work cooperatively with the Radiology Department. There had19 been relatively few complaints about the radiologists before Plaintiffarrived at KMC. (DSUF20 ~ 9 5 ) . An independent outside consultant, Dr. Lieu, was brought in to study the problem and21 recommend a resolution. Plaintiffrejected Dr. Lieu's recommendation (DSUF ~ 9 8 ) and called22 Dr. Lieu, "unjustifiably pompous." (DSUF ~ 9 8 ) .23 Plaintiff had a penchant for demanding apologies from others. He demanded an apology24 from the Radiology Department and specified it had to occur at a staffmeeting, with Dr. Amin,25 Dr. Abraham, Dr. Munoz, and Dr. Naderi standing at the podiumwhile he received the apology.26 (DSUF ~ ~ 9 9 and 150). He demanded an apology from Dr. Perticucci for pointing out mistakes27 the Pathology Department had made. (DSUF ~ 1 5 3 ) . He demanded an apology from Dr.28 Abraham, again to occur at a staffmeeting, because he found her behavior objectionable.

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1 (DSUF ~ 1 5 5 ) . He demanded an apology "meeting [his] specifications" from Dr. Roy for not2 providing documentary evidence of deficiencies in the Pathology Department by a deadline3 Plaintiff imposed. (DSUF ~ 1 5 6 ) . Even after he put himself on leave, Plaintiffs demands for4 apologies from Dr. Ragland, Dr. Abraham, Dr. Taylor, ffi1d Dr. Roy, did not abate. (DSUF ~ 1 8 ) .5 By 2005, Plaintiff had alienated most members of the medical staff. Jd. Events cmne to6 head at the October 12, 2005 Oncology Conference. Plaintiffs presentations at these7 conferences had been problematic before. In 2003, Plaintiffwas counseled to prioritize8 information and present it succinctly. (DSUF ~ 01). In 2004, he was warned that a presentation9 he wanted to make, consisting of 52 slides, would take more time than was allotted. (DSUF

10 '1l02). In May 2005, he was again requested to observe the time limits. (DSUF ~ 1 0 3 ) .11 Plaintiffs presentation at the October 12, 2005 oncology conference was inappropriate.12 It greatly exceeded the allotted time, contained too many slides, did not conform to the13 instructional purpose of the conference, included unprofessional criticisms of both the University14 of Southern California and Stanford University, deteriorated into an argument between Plaintiff15 and Dr. Roy over a specific case and monopolized the conference to such an extent that no one16 else was able to make their presentations. (Taylor Depo., 12/5/07, pg. 14:19-21; pg. 15:1-4; pg.17 27: 16-17; pgs. 31 :17-32:21; pg. 51:12-25; pg. 55:7-23; pg. 62: 19-25; pg. 63:4-11; pg. 64: 12-19;18 68:9-17 and DSUF ~ ~ 1 0 4 , 105, 106 and 111 and PSUF ~ 8 9 ) . After Plaintiff finally relinquished19 the podium and sat down, he continued to argue with Dr. Roy. (DSUF ~ 1 1 2 ) .20 Three physicians who attended the conference wrote confidential letters to the Chief21 Medical Officer about Plaintiff's behavior. (Harris Depo., 8/13/08, pgs. 113:14-16 and 116:4;22 DSUF ~ 1 0 7 ; PSUF ~ 9 1 ) . The chiefof surgery also voiced a complaint. (DSUF ~ 1 0 8 ) . The past23 president of the medical stafftestified she was embarrassed by several things Plaintiff had said-24 such as his criticisms of outside consultffi1tS. (DSUF ~ I I I ) . Several residents and medical25 students noted Plaintiffs unprofessional behavior on their evaluations. (DSUF ~ 09).26 A few days after the conference, the Executive Board of the medical staff presented27 Plaintiffwith a confidential letter that both admonished and counseled him regarding his28 behavior at the conference. The letter referenced Plaintiffs failure to observe the time limits, his



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failure to cooperate with the conference coordinator's instructions regarding time and his use of2 the conference as a platform from which to advance his personal agenda. (DSUF ~ 1 1 3 ) .3 In a meeting with KMC' s ChiefExecutive Officer about a week later, Plaintiffmade4 loud, angry and derogatory comments about other members of the medical staff. (DSUF ~ 1 1 6 ) .5 When called to a meeting in February 2006 to try and resolve the interpersonal conflicts, Plaintif6 insulted every other person in the meeting (DSUF ~ ~ 1 6 6 - 1 7 3 ) and refused their conciliatory7 efforts to bring resolution to the issue. (DSUF ~ ~ 1 6 6 - 1 7 4 ) . Plaintiff became increasingly8 antagonistic and hostile. (DSUF ' 1 ~ 1 1 4 ; 166-174). He told Dr. Abraham she was nothing but a9 "fat doctor." (DSUF ~ 1 6 6 ) . He told Dr. Ragland, he was unfit to be president of the medical

10 staff. (DSUF ~ ~ 1 3 7, 143a, and 173). An attendee later wrote to defendant Peter Bryan that the11 meeting was the "most distasteful event" the attendee had ever participated in. (DSUF ~ 1 7 4 ) .12 H. Plaintiff Suffered No Retaliation.13 Plaintiff sent letters to the California Department of Health Services ("DHS") the College14 ofAmerican Pathologists ("CAP") and the Joint Commission for the Accreditation of Hospital15 Organizations ("JCAHO") on November 28, 2006 complaining about KMC. (DSUF ~ ~ 5 6 a , 56b16 and 56c). But, he did not inform the County of the letters until December 13, 2006. (DSUF ~ 5 8 ) .17 Although he claims he told Gilbert Martinez that he intended to "blow the whistle" on KMC18 (Second Amended Complaint ~ 2 0 ) he actually only told Mr. Martinez to be prepared for an19 inspection. (DSUF ~ 5 5 ) . Gilbert Martinez had no idea why Plaintifftold him to prepare for20 inspection and, in fact, the inspection did not happen until the next year. (DSUF ~ 5 5 ) .21 (The other incidents of "retaliation" that Plaintiff alleges (skull flaps, the oncology22 conference, the prostatectomy, the "smear campaign") do not warrant further discussion.)23 The County took no employment action against Plaintiffafter he was put on administrative24 leave on December 7, 2006. It is not possible for the Defendants to have retaliated against him.25 Respectfully submitted,262728

Dated: December 8, 2008 LAW OFFICES OF MARK A. WASSERBy: /s/ Mark A. WasserMark A. WasserAttorney for Defendants, County of Kern, et al.

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