318 Plaintiffs Supp PTC Statement

USDC, ED Case No. 1:07-cv-00026 OWW DLBPLAINTIFF’S SUPPLEMENTED PRETRIAL STATEMENT 1

12345678910111213141516171819202122232425262728Eugene D. Lee (SB#: 236812)L

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,

Defendant.Case No. 1:07-cv-00026 OWW DLB

PLAINTIFF’S SUPPLEMENTED PRETRIALSTATEMENT

TRIAL: May 12, 2009Complaint Filed: January 6, 2007Pursuant to the Court’s minute order of April 20, 2009, Plaintiff hereby submit his supplementedpretrial statement, accompanied by transmission via email toowworders@caed.uscourts.govandDPell@caed.uscourts.gov.The parties were unable to successfully meet and confer on the undisputed facts and the points of law. Plaintiff had cut and pasted adjudicated facts wholesale from the Court’s Ruling on the cross-MSAs(Doc. 311). In contending that these were "undisputed facts", Plaintiff relied on the fact that during thepretrial conference, the Court assured Plaintiff that he did not have to re-litigate facts and elements thathave already been adjudicated by this Court in the Ruling. During meet and confer, Defendant objectedto the writing style of the excerpts from the Ruling, citing it as inappropriate for a pre-trial statement.Plaintiff asked Defendant to make whatever stylistic revisions it felt was necessary, but Defendant

Case 1:07-cv-00026-OWW-DLB Document 318 Filed 04/22/2009 Page 1 of 80

USDC, ED Case No. 1:07-cv-00026 OWW DLBPLAINTIFF’S SUPPLEMENTED PRETRIAL STATEMENT 2

12345678910111213141516171819202122232425262728refused. Plaintiff now understands from the Court's Order of April 22, 2009 (Doc. 317) that the findingsof undisputed facts made in the Court's cross-MSA Ruling of April 8, 2009 do not relate to the parties'cross-motions for summary adjudication, but relate only to their cross-motions for summary judgment;and that Plaintiff cannot rely on the findings of fact made by the Court in denying summary judgment as"undisputed facts". In the interests of judicial efficiency and fairness, Plaintiff respectfully requests thatthe Court either issue a ruling on the cross-motions for summary adjudication or adopt all of the findingsof fact it made in its Cross-MSA Ruling of April 8, 2009 (Doc. 311) as undisputed findings of fact.Because Plaintiff must preserve his right to appeal that these facts are "undisputed", Plaintiff cannot agree to the filing of a joint pre-conference statement. Consequently, Plaintiff is filing thissupplemental pretrial statement.

I.

UNDISPUTED FACTSA.

FROM THE SCHEDULING ORDER (DOC. 29) (Admitted Facts Which AreDeemed Proven Without Further Proceedings)

1.

At all material times, Defendant Kern County was a local public entity within themeaning of sections 811.2 and 900.4 of the Government Code and is operating in Kern County,California.2.

2. During the entire course of Plaintiff’s employment, Defendant Kern County hascontinuously been an employer within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Gov’tCode § 12945.2(b)(2)] FEHA (Gov’t Code § 12926(d)], and FLSA [29 U.S.C. § 203] engaged ininterstate commerce, and regularly employing more than fifty employees within seventy-five miles of Plaintiff’s workplace.3.

Plaintiff has continuously been an employee of Defendant Kern County since October 24,2000.4.

Plaintiff is a pathologist whom Defendant County hired as a pathologist at KMC andappointed to the position of Chair of the Pathology Department.5.

Plaintiff was compensated and provided with certain benefits pursuant to a writtenemployment agreement, the terms of which speak for themselves.6.

Defendant Kern County placed Plaintiff’s initial salary level at Step C.7.

Plaintiff requested and received leaves of absence and reduced work schedules, the terms

Case 1:07-cv-00026-OWW-DLB Document 318 Filed 04/22/2009 Page 2 of 80

USDC, ED Case No. 1:07-cv-00026 OWW DLBPLAINTIFF’S SUPPLEMENTED PRETRIAL STATEMENT 3

12345678910111213141516171819202122232425262728and conditions of and reasons for which are memorialized in writings that speak for themselves.8.

Plaintiff’s former attorney sent a letter to Kern County Counsel Bernard Barmann andMr. Barmann met with Plaintiff on or about February 9, 2006.9.

Defendant Bryan and Plaintiff exchanged written communications regarding Plaintiff’sreduced work schedule and requests for leaves of absence. Plaintiff met with Defendant Bryan andothers to discuss those subjects.10.

Defendant Bryan and Plaintiff exchanged written correspondence regarding Plaintiff’stenure and performance as Chair of the Pathology Department at KMC. All the writings speak forthemselves.11.

On or about July 10, 2006, the JCC voted to remove Plaintiff from his position as Chairof the Pathology Department at Kern Medical Center.12.

Plaintiff was removed from his position as Chair of the Pathology Department in partbecause he was neither working full-time nor present in the hospital.13.

Defendant County subsequently amended Plaintiff’s employment agreement to reducePlaintiff’s base compensation.14.

Defendant County appointed Dr. Philip Dutt Acting Chair of the Pathology Department.15.

Plaintiff returned to work as a staff pathologist at KMC on October 4, 2006.16.

Plaintiff exchanged written correspondence with KMC Interim CEO David Culbersonand those writings speak for themselves.17.

Defendant Kern County placed Plaintiff on paid administrative leave, which continues tothis date.18.

Plaintiff filed a claim with Defendant Kern County and the claim was rejected.19.

Any acts or omissions of the individual Defendants were under color of law.

B.

PLAINTIFF’S EMPLOYMENT

20.

Pursuant to his employment contract, Plaintiff was a “core physician.”21.

On October 24, 2000, Plaintiff signed an employment contract with the County. The termof Plaintiff’s employment was set to expire on November 30, 2006. According to Exhibit A, Plaintiff, inhis role as Pathology Chairman, was expected to serve as the medical director for the anatomic

Case 1:07-cv-00026-OWW-DLB Document 318 Filed 04/22/2009 Page 3 of 80