PLAINTIFF’S REPLY TO OPPOSITION TO MOTION FOR PARTIAL OR FULL SUMMARY JUDGMENT 1
12345678910111213141516171819202122232425262728Eugene D. Lee, No. 236812L
AW
O
FFICE OF
E
UGENE
L
EE
555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487Email: elee@LOEL.comAttorney for Plaintiff DAVID F. JADWIN, D.O.UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIAFRESNO DIVISION
DAVID F. JADWIN, D.O.,
Plaintiff,v.
COUNTY OF KERN, and PETER BRYANand IRWIN HARRIS in their individual andofficial capacities,
Defendants.Case No. 1:07-cv-00026 OWW TAG
PLAINTIFF’S REPLY TO OPPOSITION TOMOTION FOR PARTIAL OR FULLSUMMARY JUDGMENT
DATE: January 12, 2008TIME: 10:00 a.m.CTRM: U.S. District Court, Ctrm. 32500 Tulare St., Fresno, CATRIAL: March 24, 2008Complaint filed: January 6, 2007Plaintiff respectfully submits his reply to Defendants’ Opposition (“Opposition”) (Doc. 276) toPlaintiff’s Motion for Partial or Full Summary Judgment against Defendants. (Doc. 263).
Case 1:07-cv-00026-OWW-TAG Document 288 Filed 12/08/2008 Page 1 of 23
PLAINTIFF’S REPLY TO OPPOSITION TO MOTION FOR PARTIAL OR FULL SUMMARY JUDGMENT 1
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I.
ADVERSE EMPLOYMENT ACTIONSA.
“Totality of the Circumstances”
Contrary to what Defendants contend, Plaintiff’s Complaint asserts the “totality of thecircumstances” approach under
Yanowitz v. L’Oreal
36 Cal.4
th
1028, 1055. Plaintiff’s complaint severaltimes alleges Defendants’ creation of a “hostile work environment”. (e.g., Second Amended Complaint,Doc. 241 ¶¶ 19, 44, 110, 136, etc.). And the record establishes that, over a number of years, Defendantstargeted Plaintiff with a smear campaign of disparate treatment, heightened scrutiny, retaliatory peerreview and baseless accusations. [DMF 69-190].Defendants’ decisions to 1) place letters of reprimand into Plaintiff’s credentials file in October2005 for a minor time overrun at a monthly Cancer Conference (“Credential Threat”), 2) force Plaintiff from part-time onto full-time medical leave in April 2006 (“Forced FT Leave”), 3) remove Plaintiff from Pathology department chair (“Demotion”) in July 2006 and reduce his base pay by over $100,000in October 2006 (“Paycut”), 4) place Plaintiff on administrative leave in December 2006 for almost ayear, denying him professional fee income and restricting him to his home during work hours (“AdminLeave’
), and 5) not renew his contract which expired in October 2007 (“Nonrenewal”), must all beconsidered collectively under
Yanowitz
as part of a series of subtle – and not-so-subtle – damaginginjuries to Plaintiff motivated by illegal retaliation and discrimination.
B.
Discrete Adverse Employment Actions
However, caselaw also establishes that each of the foregoing stands on its own as a discreteadverse employment action. The California Supreme Court has held that an adverse employment actionmust materially affect the terms, conditions or privileges of employment.
Yanowitz v. L’Oreal
36 Cal.4
th
1028, 1036. In so doing, the court rejected the arguably broader federal “deterrence” standard.
Ibid
.However, the court further emphasized that the phrase “‘terms, conditions, or privileges’ of employmentmust be interpreted liberally and with a reasonable appreciation of the realities of the workplace in orderto afford employees the appropriate and generous protection against employment discrimination that theFEHA was intended to provide,”
Id.
at 1138, and that “adverse treatment that is reasonably likely toimpair a reasonable employee’s job performance” also constitutes an adverse employment action.
Id.
at1055-1056. The court further clarified that it was taking a “middle path between making actionable any
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION FOR PARTIAL OR FULL SUMMARY JUDGMENT 2
12345678910111213141516171819202122232425262728conduct that is merely offensive and requiring the conduct to
cause a tangible psychological injury
”.
Id
.at 1053 (emphasis added).
1. Credential Threat
. Here, the evidence incontrovertibly establishes that the Credential Threatdid cause Plaintiff a tangible psychological injury, and that it impaired his job performance so greatlythat he had to request reduced work schedule medical leave in January 2006. [PMF 75].
1
When FormerMedical Staff President Scott Ragland (“Ragland”) was asked “Is that a serious thing, for a physician atKern Medical Center, to have a letter of reprimand or dissatisfaction entered into their medical staff file?” he responded “Of course”. (Ragland Depo., 8/22/08, 264:25-265:4). Plaintiff’s expert, LawrenceWeiss, Chair of Pathology at City of Hope National Medical Center, observed of the Credential Threat:“I have never seen a physician’s privileges threatened for such an insignificant and patently unwarrantedreason.” [DMF 106].Worse yet, Defendants have admitted they were on notice since 2003 that Plaintiff suffered fromdepression.
2
[DMF 62, 63, 64, 65]. Former Medical Staff President and psychiatrist Eugene Kercher(“Kercher”) testified as PMK representative on behalf of Defendant County that he was familiar with thesymptoms of depression and had formed the opinion that Dr. Jadwin was depressed over the course of years of observing and working with him. [PMF 136]. Yet, Defendants engaged in a course of conductthat was calculated to wreak maximum havoc on Plaintiff’s disability.First, on October 17, 2005, days after the monthly 1-hour cancer conference held on October 12,2005 (“October Conference”) – at which Plaintiff had reported his patient care concerns to medical staff officers, doctors and residents regarding a radical hysterectomy that had been conducted based ondeficient outside pathology reports, as well as the need for systematic, confirmatory review of outsidepathology reports prior to undertaking surgery [PMF 89] – the medical staff officers retaliated by callingPlaintiff into a meeting where they humiliated him for making his “political statements” [DMF 114],
1
Note, a reprimand is an adverse action sufficient to trigger a
Skelly
hearing. See 2 Cal. C. Regs. § 51.1.
2
There is no legal requirement that Plaintiff notify each and every officer at KMC of his disability. In
Kimbro v. Atlantic Richfield Co.
889 F.2d 869 (9th Cir., 1989), the court held that notice to Plaintiff’ssupervisor was imputed to the person(s) who made the final decisions regarding the adverse action. Seealso
California Fair Employment and Housing Commission v. Gemini Aluminum Corp.
122 Cal.App.4th1004 (2004) (notice to ANY supervisor of plaintiff’s limitations is sufficient to trigger theaccommodation duty). It is undisputed that Plaintiff told his former supervisor, Marvin Kolb, in 2003 of his depression disability and was thereafter permitted to go on reduced work schedule medical leave.
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