Case 1:07-cv-00026-OWW-DLB

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LAW OFFICE OF EUGENE LEE Eugene D. Lee (SB#: 236812) 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: elee@LOEL.com Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: jh@baelo.com Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION DAVID F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN, et al., Defendants. Civil Action No. 1:07-cv-00026 OWW DLB Plaintiff's Request for Judicial Notice. Date: May 29, 2009 Time: 8:30 a.m. Courtroom: 3 Complaint Filed: January 5, 2007 Trial Date: May 14, 2009

The court shall take notice of adjudicative facts if requested by a party and supplied with the 19 necessary information. [FRE, 201(a) & (b)]. Pursuant to Rule 201 of the Federal Rules of Evidence, 20 Plaintiff DAVID F. JADWIN, D.O. hereby requests judicial notice of the following facts set forth 21 below. 22 A. JUDICIAL NOTICE OF UNDISPUTED FACTS IN THE PRETRIAL ORDER 23 Plaintiff requests judicial notice of the following undisputed facts listed in the Court's Final 24 Pretrial Order (Doc 328, Final Pretrial Order at 2:13-8:23) herein: 25
1. Plaintiff was a “core physician” at KMC.

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2. On October 24, 2000, Plaintiff signed an employment contract with the County. The term of

27 Plaintiff’s employment was set to expire on November 30, 2006. According to Exhibit A, Plaintiff, in 28 USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE

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his role as Pathology Chairman, was expected to serve as the medical director for the anatomic pathology service and clinical laboratories at KMC, and report to the KMC Medical Director.
3. Defendant Kern County placed Plaintiff’s initial salary level at Step C. 4. On October 5, 2002, Plaintiff executed a second employment contract which called for a term

ending October 4, 2007. The contract provided that, as a Core Physician, Plaintiff must perform certain services as set forth in Exhibit A.
5. Plaintiff returned to work as a staff pathologist at KMC on October 4, 2006. 6. In a letter to David Culberson dated December 13, 2006, Plaintiff informed hospital

administration that he had notified outside authorities of alleged violations. Plaintiff remained on administrative leave until his contract expired on October 4, 2007.
7. The County employed Plaintiff and the County is a “government agency.” 8. As of 12/16/05, Plaintiff was eligible for medical leave under FMLA/CFRA. 9. The County is an employer subject to the FMLA/CFRA. 10. Plaintiff took FMLA/CFRA medical leave. 11. The County explicitly, in writing, approved Plaintiff’s first “FMLA” leave request. 12. Plaintiff took a second FMLA leave of absence after he submitted a second Request For Leave

Of Absence form on April 26, 2006. In his second request (April 26, 2006), Plaintiff asked that his initial leave be extended. Then, after his meeting with Bryan and others on April 28, 2006, he was granted full-time FMLA leave until June 16, 2006.
13. Plaintiff was on FMLA leave at minimum through the “06-09” pay period, which spanned from

April 29, 2006 through May 12, 2006.
14. The County accommodated Plaintiff’s disability for four months, “from December 16, 2005 to

April 16, 2006, by providing him with the reduced work schedule medical leave” that he had requested.
15. At all material times, Defendant Kern County was a local public entity within the meaning of §§

811.2 and 900.4 of the Government Code and is operating in Kern County, California
16. During the entire course of Plaintiff’s employment, Defendant Kern County has continuously

been an employer within the meaning of FMLA [29 C.F.R. § 825.105(C)], CFRA [Gov’t Code §

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12945.2(b)(2)] and FEHA (Gov’t Code § 12926(d)] engaged in interstate commerce, and regularly employing more than fifty employees within seventy-five miles of Plaintiff’s workplace.
17. Plaintiff was an employee of Defendant Kern County from October 24, 2000, to October 4,

2007.
18. Plaintiff is a pathologist whom Defendant County hired as a pathologist at KMC and appointed

to the position of Chair of the Pathology Department.
19. Plaintiff was compensated and provided with certain benefits pursuant to a written employment

agreement, the terms of which speak for themselves.
20. On or about July 10, 2006, the JCC voted to remove Plaintiff from his position as Chair of the

Pathology Department at Kern Medical Center.
21. Plaintiff was removed from his position as Chair of the Pathology Department because he was

not physically present in the hospital.
22. Plaintiff’s employment agreement was subsequently amended to reduce Plaintiff’s base

compensation.
23. Defendant County placed Plaintiff on paid administrative leave on December 7, 2006. 24. Any acts or omissions of the County were under color of law. 25. Plaintiff exhausted all adequate administrative remedies for all of his claims. 26. At all times from 10/17/05 to 10/4/07, Defendant Kern County acted or omitted to act through its

officers and agents.
27. Defendant Kern County is the owner and operator of Kern Medical Center (“KMC”). 28. KMC is an acute care teaching hospital located in Bakersfield, CA. 29. The Joint Conference Committee (“JCC”) is the highest decision-making body at KMC,

comprised of two members of the Board of Supervisors of Kern County, the Chief Executive Officer, the President of the Medical Staff, the Immediate Past President of the Medical Staff, the President-elect of the Medical Staff, the Chief Medical Officer, the Nurse Executive, etc.
30. Bernard Barmann was County Counsel for Defendant Kern County from 1986 to March, 2009. 31. Karen Barnes is Chief Deputy County Counsel for Defendant Kern County.

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32. Peter Bryan was Chief Executive Officer of KMC, and a voting member of the Joint Conference

Committee at KMC, from 1995 to 9/15/06.
33. Sandra Chester was the Director of Human Resources of KMC for a portion of the period from

12/05 to 8/06 and was also the Chief Operating Officer.
34. David Culberson was the Interim Chief Executive Officer from 8/25/06 to 5/15/07. 35. Philip Dutt, M.D., was Acting Chair of Pathology at KMC from 7/14/06 to 1/09, and is currently

a staff pathologist at KMC.
36. Irwin Harris, M.D., was Chief Medical Officer of KMC, and a non-voting member of the Joint

Conference Committee at KMC, from 2005 to 8/31/07.
37. Royce Johnson, M.D., was Chair of Medicine at KMC from 1999 to the present. 38. Eugene Kercher, M.D., was President-elect of the KMC Medical Staff from 7/1/02 to 7/1/04,

President of the KMC Medical Staff from 7/1/04 to 7/1/06, Immediate Past President of the Medical Staff from 7/1/06 to 7/1/08, is currently the Chief Medical Officer of KMC, and has been a voting member of the JCC since 2002. He has also been Acting Chair of Pathology of KMC from 1/09 to present.
39. Marvin Kolb, M.D., was Chief Medical Officer of KMC from 1999 to 8/3/04. 40. Chester Lau, M.D., is a former radiologist of KMC. 41. Joseph Mansour, M.D., is a gynecologist at KMC, a core physician, and a member of the medical

staff.
42. Maureen Martin, M.D., is Chair of Surgery at KMC. 43. Gilbert Martinez was the manager of laboratory services at KMC from 1981 to 6/13/08. 44. Albert McBride, M.D., is a urologist at KMC and whether he was the Cancer Committee Liaison

until January 2008 is disputed.
45. Javad Naderi, M.D., is Chair of Radiology at KMC. 46. Mark Nations is Chief Deputy County Counsel for Defendant Kern County. 47. Steven O’Connor was Interim Director of Human Resources of KMC from June 2006 to June

2007 and Director of Human Resources of KMC from June 2007 to the present.

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48. Barbara Patrick was a member of the Board of Supervisors of Kern County from 1994 to 2007

and Chair in 1996, 2001 and 2006.
49. Jose Perez, M.D., was a voting member of the JCC from July 1, 2006, until he left employment

with the County of Kern.
50. Leonard Perez, M.D., was Chair of OB/GYN at KMC from some period of time until January

17, 2007.
51. Scott Ragland, D.O., was President-Elect of the KMC Medical Staff from 7/1/04 to 7/1/06 and

President of the KMC Medical Staff from 7/1/06 to 7/1/08, and a voting member of the JCC from 2004 to present.
52. William Roy, M.D., was Chief of the division of Gynecologic Oncology at KMC from early

2005 to early 2007.
53. Savita Shertudke, M.D., was a pathologist at KMC from 11/1/05 to present. 54. Toni Smith is Chief Nurse Executive of KMC, and a voting member of the JCC. 55. William Taylor, M.D., was a surgeon, core physician and member of the medical staff at KMC

until 12/6/08.
56. Raymond Watson was a member of the Board of Supervisors of Kern County from 2002 to the

present and Chair in 2006.
57. Gian Yakoub, M.D. is a staff Pathologist at KMC. 58. Tai Yoo, M.D. is Chair of Psychiatry at KMC.

B. JUDICIAL NOTICE OF UNDISPUTED FACTS IN THE RECORD HEREIN. Pursuant to Rule 201, Plaintiff requests judicial notice of the following facts contained in the records in this case:
59. Plaintiff filed a "Complaint of Discrimination" with the Department of Fair Employment and

Housing on August 3, 2006. [Doc. 15, Exhibits to the First Amended Complaint at Exhibit 4, DFEH Complaint].
60. Plaintiff served his Department of Fair Employment and Housing Complaint conformed on

August 3, 2006 by mail on Defendant County of Kern on August 3, 2006. [Decl., Eugene Lee @ ¶ 3].

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61. Plaintiff's First Amended Complaint was filed herein and served on Defendant on January 8,

2007. [Doc 15, First Amended Complaint at conformed caption].
62. Plaintiff's First Amended complaint included claims brought under the California Family Rights

Act. [Doc 15, First Amended Complaint at 36:16-37:16]
63. Plaintiff's First Amended complaint included claims brought under the Family and Medical

Leave Act. [Doc 15, First Amended Complaint at 37:17-38:18].
64. Plaintiff's First Amended complaint included claims brought under the Fair Employment and

Housing Act. [Doc 15, First Amended Complaint at 41:4-18]. C. JUDICIAL NOTICE OF FINDINGS OF THE DEPARTMENT OF HEALTH SERVICES.
65. The Department of Health Services found that the Transfusion Committee at Kern Medical

Center met as follows: "In 2006 there was (sic) 11 Blood Usage Committee meetings (July, August cancelled), two meetings in September 2006, and on February 2, 2007, the Blood usage Committee met only once for the entire year."
[Plaintiff's Exhibit 359.004 at E 242].

D. DEFENDANT'S DISCOVERY RESPONSES. Plaintiff has asked Defendant to agree to the admission of Exhibits 364-450 into evidence. These contain clean copies of Defendant's responses or supplemental responses to the following discovery requests: • • Interrogatory 3, 8, 11-18, 24, 27- 45, 48, 49, 56-63, 65-69, 74, 75, 80-84; and Request for Admission 1, 18-24, 35, 61, 134-138, 221, 227-229, 243, 246, 250, 253, 255262, 264, and 286-288. If these exhibits are not admitted into evidence, then Plaintiff respectfully requests that the court take read these discovery requests and responses into evidence. Respectfully submitted on May 29, 2009, s/Joan Herrington Attorney for Plaintiff DAVID F. JADWIN, D.O.

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DECLARATION OF EUGENE LEE I, Eugene Lee, declare as follows: 1. I have personal knowledge of the matters set forth in this declaration, and would testify competently to them if called as a witness.

5 2. I am one of the attorneys for Plaintiff David F. Jadwin, D.O. in this case. 6 3. As soon as I received a conformed copy of Plaintiff's Department of Fair Employment and 7 Housing Complaint of August 3, 2006, I served it by mail on Defendant County of Kern. 8 I declare under penalty of perjury under the laws of the United States that the foregoing is true 9 and correct. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 USDC, ED Case No. 1:07-cv-00026 OWW DLB PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE Executed at Fresno, California on May 29, 2009, Signed: _____________________________________ /s/Eugene Lee

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