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390 P Closing Brief

390 P Closing Brief

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Published by Eugene D. Lee

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Categories:Types, Research, Law
Published by: Eugene D. Lee on Aug 13, 2009
Copyright:Traditional Copyright: All rights reserved

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02/06/2013

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USDC, ED Case No. 1:07-cv-00026 OWW DLBPLAINTIFF’S CLOSING BRIEF 1
12345678910111213141516171819202122232425262728L
AW
O
FFICE OF
E
UGENE
L
EE
 Eugene D. Lee (SB#: 236812)555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: elee@LOEL.comJoan Herrington, SB# 178988B
AY
A
REA
E
MPLOYMENT
L
AW
O
FFICE
 5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: jh@baelo.comOf Counsel to LAW OFFICE OF EUGENE LEEAttorneys for Plaintiff DAVID F. JADWIN, D.O.UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA
DAVID F. JADWIN, D.O.,
Plaintiff,v.
COUNTY OF KERN,
Defendants.Civil Action No. 1:07-cv-00026 OWW DLB
PLAINTIFF’S CLOSING BRIEF
Trial: May 14, 2009Complaint Filed: January 6, 2007
Case 1:07-cv-00026-OWW-DLB Document 390 Filed 06/19/2009 Page 1 of 21
 
 
USDC, ED Case No. 1:07-cv-00026 OWW DLBPLAINTIFF’S CLOSING BRIEF 1
12345678910111213141516171819202122232425262728Plaintiff hereby submits this closing brief, including legal positions, findings of fact andconclusions of law, pursuant to the Court’s order of June 5, 2009 (Doc. 385).
I.
 
PROCEDURAL DUE PROCESS CLAIM.A.
 
Issues
As established by the parties, the issues to be determined at this time are:1)
 
Whether Plaintiff had a constitutionally protectable interest in active duty (or avoidingplacement on administrative leave).2)
 
Whether Defendant Kern County provided Plaintiff with adequate procedural due processwhen placing Plaintiff on administrative leave.
B.
 
Plaintiff 
s Legal Position
Plaintiff contends that he had a constitutionally protectable interest in active duty and avoidingplacement on administrative leave. Defendant Kern County’s decision to place Plaintiff onadministrative leave on December 7, 2006 denied Plaintiff the opportunity to earn per-patientprofessional fees, which had historically amounted to over $134,987 per year since 2002. Plaintiff’scontract of November 12, 2002 expressly provided that Plaintiff would earn professional fees as amaterial part of his total compensation.Plaintiff contends that Defendant Kern County gave Plaintiff no procedural due processwhatsoever, whether pre- or post-deprivation.
C.
 
Plaintiff 
s Proposed Findings of Fact
1)
 
Plaintiff’s contract of November 12, 2002 (“Employment Contract”) expressly providedthat Plaintiff would earn professional fees as a material part of his total compensation by Defendant.Trial Exhibit 139.002 (Agreement for Professional Services of David F. Jadwin, dated 11/12/02)provides:Total compensation for Core Physicians will be composed of a base salary paid by theCounty,
professional fee payments from third-party payors
, and potential otherincome generated due to the individual's status as a physician. These three sources of income shall be referred to in this Agreement as total Core Physician compensation[emphasis added].The Employment Contract goes on to devote an entire page to discussion of “Professional Fees”, fromExh. 139.004 to 139.005.
Case 1:07-cv-00026-OWW-DLB Document 390 Filed 06/19/2009 Page 2 of 21
 
 
USDC, ED Case No. 1:07-cv-00026 OWW DLBPLAINTIFF’S CLOSING BRIEF 2
123456789101112131415161718192021222324252627282)
 
Plaintiff’s contract was amended on October 3, 2006, to institute a base pay reduction inaccordance with his removal from chairmanship. See Exh. 283. The amendment did not change the fixedterm of the contract, which was to expire on October 4, 2007.3)
 
Plaintiff’s professional fee compensation had historically amounted to $134,987 per yearsince 2002. Both Plaintiff and Plaintiff’s forensic economist, Stephanie Rizzardi, testified at trial thatthis was the case. See Exh. 451.3 (Rizzardi Calculation of Economic Losses). Defendant put on noevidence disputing this fact.4)
 
Then-Interim-CEO David Culberson decided to place Plaintiff on administrative leave,effective December 7, 2006. Mr. Culberson testified at trial that this was the case. Defendant neverdisputed this fact.5)
 
During the administrative leave, Plaintiff was prohibited from going to the hospital orcontacting any hospital employees. See Exh. 317.001 (Culberson Letter to Plaintiff, dated 12/7/06 readministrative leave). Plaintiff testified at trial that he complied fully with this prohibition.6)
 
In order to earn professional fees, Plaintiff needed to be physically present at the hospital.Defendant never disputed this fact.7)
 
Placement on administrative leave deprived Plaintiff of $116,501 in professional fees.Both Plaintiff and Plaintiff’s forensic economist, Stephanie Rizzardi, testified at trial that this was thecase. See Exh. 451.3 (Rizzardi Calculation of Economic Losses). Defendant put on no evidencedisputing this fact.8)
 
In placing Plaintiff on administrative leave, Defendant relied specifically upon the “KernCounty Policies and Administrative Procedures Manual” (Exh. 501) (“Manual”), a County-ratifiedpolicy. See Exh. 317.001 (Culberson Letter to Plaintiff, dated 12/7/06 re administrative leave).9)
 
Plaintiff’s Employment Contract specified that he was subject to “all applicable KMCand County policies and procedures”, such as the Manual. See Exh. 139.014.10)
 
Section 124.3 of the Manual provided that Plaintiff could be placed on paidadministrative leave with pay under certain specified circumstances including when “the departmenthead determines that the employee is engaged in conduct posing a danger to County property, the publicor other employees, or the continued presence of the employee at the work site will hinder an
Case 1:07-cv-00026-OWW-DLB Document 390 Filed 06/19/2009 Page 3 of 21

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