Jadwin v. County of Kern (Full Text)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
1:07-CV-00026-OWW-DLB
DAVID F. JADWIN, D.O.,
AND
Plaintiff,
MEMORANDUM
DECISION
ORDER RE DEFENDANTS’ AND
PLAINTIFF’S
CROSS-MOTIONS
v.
FOR SUMMARY JUDGMENT OR, IN
COUNTY OF KERN; PETER BRYAN (BOTH
THE ALTERNATIVE, PARTIAL
individually and in his former
SUMMARY JUDGMENT
capacity as Chief Executive Of Kern
Medical Center); IRWIN HARRIS,
M.D.; and DOES 1 through 10,
inclusive,
Defendants.

I. INTRODUCTION
Before the court are cross-motions for summary judgment or, in
the alternative, partial summary judgment, brought by Plaintiff
David F. Jadwin, D.O. (“Plaintiff”) and, collectively, by
Defendants County of Kern (“County”), Peter Bryan (“Bryan”) and
Irwin Harris (“Harris”), M.D., on all eleven claims in Plaintiff’s
Second Amended Complaint. The following background facts are taken
from the parties’ submissions in connection with the motions and
other documents on file in this case.1

In support of their cross-motions for summary judgment or,
1
in the alternative, partial summary judgment, the parties submitted
over 3000 pages of materials.

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II. BACKGROUND
This case arises out of Plaintiff’s former employment with
Kern County. Plaintiff worked at the Kern Medical Center (“KMC”),
an acute care teaching hospital owned and operated by the County.
As of October 2000, Plaintiff, a pathologist, served as the Chair
of KMC’s Pathology Department. According to his employment
contract with the County, his chairmanship was a full-time
position. Throughout his employment, while undoubtedly dedicated
to his work, Plaintiff engaged in several disagreements and/or
confrontations with his fellow colleagues on a variety of issues.
For example, in August 2003, during a conversation with another
physician, Plaintiff grabbed the physician’s necktie and pulled him
into the hallway. Plaintiff apologized for this incident.
Plaintiff’s lawsuit stems from the events surrounding his
eventual removal from his chairmanship position and the non-renewal
of his employment contract with the County. The following events
are central:
(1) On July 10, 2006, upon the recommendation of Bryan,
KMC’s then Chief Executive Officer, the Joint Conference
Committee (“JCC”) voted to remove Plaintiff from his
chairmanship. This vote came after Plaintiff had taken
a medical leave of absence.
(2) Subsequently, in light of his removal from the
chairmanship, Plaintiff executed an amendment to his
employment contract which reduced his base salary.
(3) After working for the County under this amended
agreement, Plaintiff was involuntarily placed on paid
administrative leave pending resolution of a personnel
2

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matter. Plaintiff remained on paid administrative leave
until his employment contract expired, and the County did
not renew Plaintiff’s employment agreement.
Plaintiff attributes these events – his removal from the
chairmanship and the associated reduction in salary, his
involuntary paid administrative leave, and the non-renewal of his
contract – to illegal motives which violate several state and
federal employment laws.
The Removal From The Chairmanship And Preceding Events
A.
On October 24, 2000, Plaintiff signed an employment contract
with the County. The term of Plaintiff’s employment was set to
expire on November 30, 2006. 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. According to Exhibit A, Plaintiff, in 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. Exhibit A explains
that “[t]his is a full-time position requiring 48 hours of service,
on average, per week.” (Doc. 266 at 27.)
On October 12, 2005, Plaintiff presented at an intra-hospital
conference called the “Tumor Conference.” According to Plaintiff,
his presentation dealt with the medical appropriateness of a
proposed radical hysterectomy for a KMC patient. Plaintiff
believed the proposed hysterectomy was based on inaccurate
pathology reports from outside reviewers and Plaintiff suggested
that internal review of such outside work be conducted.
3

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Following the conference, Harris, Chief Medical Officer,
received three letters of dissatisfaction from physicians who were
in attendance – Drs. Scott Ragland, Jennifer Abraham, and Bill
Taylor. In a letter dated October 17, 2005, Plaintiff was informed
that his “repeated misconduct at the Tumor Conference on October
12, 2005 was noted by numerous attendants, three of which have
written letters of their dissatisfaction, which will be entered
into your medical staff file. You exceeded your time reasonably
allotted for the presentation of pathologic findings, you ignored
the requests of the leader of the conference to be brief, and you
became so detailed in trying to make your political point, that you
lost the audience and failed to meet the teaching objective of the
conference for the benefit of the residents.” (Doc. 266 at 129.)
Plaintiff did not believe that the criticism was justified.
A few months later, Plaintiff took a leave of absence in the
form of a reduced work schedule. (Doc. 278 at 23). In a letter to
Bryan dated January 9, 2006, Plaintiff requested a leave of
2
absence in light of “depression” he had developed as a result of
alleged professional mistreatment and harassment:
During the past five years I have performed impeccable
service for KMC each and every day. Virtually every
interaction I have had with hundreds of KMC associates
has been professional, respectful and courteous. I have
always performed or tried to perform my duties in a
virtuous and ethical manner. I have received high
performance ratings from staff and residents on
departmental evaluations.
Over the past several years I have been the victim of
professional mistreatment by a few members of the medical

The letter is actually incorrectly dated January 9, “2005.”
2
According to Plaintiff, it is supposed to be dated January 9,
“2006.” (Pl. Dep. Vol. II. 496:9-20.) No party disputes this fact.
4

staff. You are aware of these instances, as they have
been discussed during multiple hospital leadership
meetings and during our one-to-one meetings. I do not
consider these to be directly as a result of
communication failures on my part, but rather
inappropriate harassment by a small group [of]
individuals. I believe this harassment is in response
to the many quality management issues that I have raised.
This harassment has led me [sic] develop depression and
insomnia that has impacted my health and work. Although
I enjoy much of my work at KMC, it is not possible for me
to continue to work under this form of harassment. These
issues largely have gone unresolved for years in spite of
multiple requests from me for action. The most recent
issue involving the October Oncology Conference is to
date still unresolved.
This form of harassment is unacceptable and must be
resolved quickly. I therefore request administrative
leave with pay until this issue is resolved. It is my
wish to resolve this issue immediately, and I request
that you correct this hostile environment immediately.
(Doc. 266 at 133.) It is undisputed that, on January 9, 2006,
Plaintiff asked Bryan to allow Plaintiff to work part-time and at
home while Plaintiff was recovering from his disabling depression.
(Doc. 278 at 28.)
On January 13, 2006, Plaintiff’s psychiatrist, Paul Riskin,
completed a form entitled “Certification of Health Care Provider
Medical Leave of Absence.” The form states that Plaintiff’s
medical condition or need for treatment commenced on “12-16-05” and
the “probabl[e] duration of medical condition or need for
treatment” is “2-3 mo.” Plaintiff’s probable return date was listed
as “3-16-06.” (Doc. 270 at 4.) On the form, Riskin identified his
practice as “psychiatry” and certified that Plaintiff had a serious
health condition. (Id.) He wrote that “it is my hope that 1-2 work
days should be a reasonable schedule for a period of 2-3 months”
and “Patient should work 1-2 days per week.” (Id.) From the facts,

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it remains unclear whether the County actually received this form
on January 13, 2006.
On or about March 2, 2006, Plaintiff submitted a “Kern County
Personnel Department Request For Leave Of Absence” form on which
Plaintiff checked the box “Initial Request.” (Doc. 270 at 6.) He
requested a leave of absence from “12-16-05” to “3-15-06.” (Id.)
Under the section entitled “Mandatory Leave FMLA/CFRA” Plaintiff
requested “Intermittent-Employee” leave. (Id.) He indicated that
he had a physician’s note.
In a letter entitled “DESIGNATION OF LEAVE (Serious Health
Condition of Employee-Intermittent),” dated March 2, 2006, Sandra
Chester from Human Resources (“HR”) informed Plaintiff that HR had
been notified of his request for leave and, as HR understood it,
Plaintiff intended for his leave to commence on December 16, 2005,
and end on March 15, 2006. (Doc. 259-6 at 6.) The letter also
stated that “[b]ased on the information available to us, it appears
that you are eligible for a leave under FMLA/CFRA. Unless we
provide you with information that your leave has not been approved
or that we are withdrawing our FMLA/CFRA designation, the requested
leave will count against your FMLA/CFRA entitlement.” (Id.) On
March 13, 2006, Plaintiff’s request for leave was approved, i.e.,
Plaintiff’s Request For Leave Of Absence form was marked as
“approved” and signed. (Doc. 259-6 at 5.) It is undisputed that
Plaintiff took a reduced schedule CFRA medical leave from December
16, 2005, to March 15, 2006. (Doc. 278 at 23.)
On the day he was due back, March 16, 2006, Plaintiff wrote an
e-mail to Bryan with the subject line “Leave of Absence.” (Doc. 265
at 39.) In his e-mail, Plaintiff stated he would be taking a few
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more months of leave:
I will be taking you (sic) suggestion and take 2 to 3
more months of leave. I am scheduled to have surgery on
March 22, 2006 with a several week recovery time. I hope
that appropriate LT coverage has been scheduled to assist
Phil and Savita with the service work. It is quite
demanding and they both appeared to be overworked when I
last saw them.
(Id.) In a letter dated April 20, 2006, Chester informed Plaintiff
that his “Intermittent Leave of Absence expired on March 15, 2006.
. . . [T]o extend your leave, you . . . need to complete the
enclosed Request for Leave of Absence form and return it to the
Human Resources Office, no later than Tuesday April 25, 2006.”
(Doc. 259-6 at 10.)
In response, Plaintiff submitted a Request For Leave Of
Absence form dated April 26, 2006. (Doc. 259-6 at 11.) Plaintiff
checked the box for “Extension Request” and requested a leave of
absence extension from “3/15/06” to “9-15-06” with a return date of
“9-16-06.” (Id.) Plaintiff indicated he was requesting FMLA/CFRA
leave for “non-Job Related/Illness or Disability” and had an
accompanying physician’s note. (Id.)
Plaintiff’s
accompanying
physician’s
note,
another
“Certification of Health Care Provider Medical Leave of Absence”
form completed by Riskin, is dated April 26, 2006. (Doc. 259-6.)
Riskin wrote that, “[t]his employee is unable to work full time and
requires part-time or less to avoid worsening of his serious
medical condition.” (Id.) Riskin estimated that Plaintiff would
need “weekly doctor’s visits” and “treatment for 6 Mo. to one
year.” (Id.)
On April 28, 2006, Plaintiff had a meeting with Bryan, Karen
Barnes (County Counsel) and Steve O’Conner from HR about
7

Plaintiff’s leave of absence. Bryan composed an Officer Memorandum
(dated April 28, 2006) purportedly summarizing the meeting. In the
memorandum, Brian states:
I provided you [Plaintiff] with the summary of your
medical leave history (see attached). This packet
contained the calculations and policies related to how
the County of Kern handles medical leaves. In essence,
you have 137 hours available to be taken before you hit
the 480-hour limitation. Medical Leaves also run for a
maximum of six months so this criterion sets June 16,
2006 as the last day available to you under this status.
You said that you did not have any questions and I
referred you to Human Resources, Steve O’Conner, should
you have any questions about how to interpret the leave
provisions.
You also mentioned that you were scheduled to work on
Monday May 1, 2006 and asked if I wanted you to be
present. You also indicated that from that day, you
would be out until further notice. I left the option of
working on Monday to you and asked that you coordinate
with Dr. Dutt about coverage. I also mentioned that
after Monday it would be preferable for you not to have
an intermittent work schedule and it would be easier on
the department to just have you on leave until your
status is resolved.
Finally, I said that by June 16, 2006 you needed to give
me your decision about your employment status. Your
options were to either return full time or resign your
position. As chairman, your department and the hospital
needs you here full time. You indicated that you
understood the deadline.
(Doc. 259-6 at 15.) The parties dispute whether Bryan, in
Plaintiff’s words, “forced” Plaintiff to take full-time leave after
May 1, 2006, or whether Bryan proposed full-time leave. At his
deposition, Bryan testified as follows regarding the conversion of
Plaintiff’s leave from part-time to full-time:
Q.
Okay. So you made the decision that Dr. Jadwin
should be on intermittent work schedule, instead, to
full-time leave, correct?
A.
No, what I indicated [in his memorandum] was it
would be preferable, which infers a decision.

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Okay.
Q.
A.
And if I am not mistaken, Dr. Jadwin made a decision
not to be present.
Q.
Okay.
A.
There was no dialogue back from Dr. Jadwin that
said, no, I still want to continue the intermittent
schedule that I recall.
At the meeting or otherwise?
Q.
A.
Correct.
Q.
Okay. You didn’t say either way, actually, whether
he wanted to go on full-time leave or not, did he?
A.
Not to my recollection.
(Bryan Dep. 250:15-251:6.) Plaintiff recalls the situation a bit
differently. Plaintiff testified at his deposition that “Bryan
told me to stop going on – working on a one-to-two day schedule per
week and to make my leave full time so I could exhaust it as soon
as possible.” (Pl. Dep. Vol. V. 854:24-855-2.) Plaintiff testified
that he was allowed part-time leave “until April, when Mr. Bryan
told me that he wanted me to go on full-time leave so that I would
use my leave faster.” (Pl. Dep. Vol. V. 983:23-984:1.)
While on full-time leave, in a letter dated May 31, 2006,
Plaintiff wrote to Bryan to request an extension of time to make a
decision regarding his continued employment:
As you know, you have requested that I give you my
decision by June 16 as to whether I will be continuing on
in or resigning from my position at the hospital.
Unfortunately, I underwent sinus surgery in early May
which took some time to recover from. Then last Monday,
I suffered a serious fall that fractured my foot and
avulsed a ligament from my ankle.
I would greatly appreciate an extension on the June 16
deadline as my personal circumstances of late simply have
not permitted me to consider and render such an important
decision.

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(Doc. 259-7 at 2.) In response, Bryan e-mailed Plaintiff on June
13, 2006, and sent a hard copy letter on June 14, 2006. The letter
reads as follows:
I was sorry to hear of your accident. It seems as though
it has been one thing after another for you and I can
imagine your growing frustration with not being healthy.
My response to your request for an extension of leave has
two parts to it. First, I will grant you a Personal
Necessity Leave of up to 90 days. This is predicated on
your providing a physician’s note indicating the ailment.
This is common practice with the County and I want to
make sure that we are consistent in following policy.
This extension of leave, however, applies only to your
employment status. It does not apply to your appointment
as chairman and the associated duty assignments, which
brings me to the second part of this extension. You have
essentially been out either full – or part-time for the
past eight or nine months. You have used all of your
vacation and sick time in addition to being in a non-pay
status for six months, and while I understand the
circumstances, it does not diminish the fact that the
Department of Pathology needs a full-time chairman. For
this reason, I am going to enact the provisions of the
Medical Staff Bylaws, Paragraph 9.6-4, REMOVAL, and
rescind your appointment as chairman. I regret that I
have to do this but KMC is going through some challenging
times and we need a full complement of leaders. Your
continued unavailability creates a void that must be
filled. This decision is effective June 17, 2006.
The obvious question that I am sure comes to mind is,
‘what does this mean for me?’ This essentially means that
should you decide to return to work at KMC either within
this 90-day period or at the end of it, your contract
will be changed to reflect a regular staff pathologist
duty assignment. The amount of time you spend will be
mutually agreeable, but your duties will not include
those of the chairman.
(Doc. 259-7 at 3.) In a memorandum he drafted to the JCC dated
July 10, 2006, Bryan requested that the Committee endorse his
recommendation to rescind Plaintiff’s appointment as Chairman of
the Pathology Department. Article IX, section 9.7-4 of the KMC
bylaws provides that “[r]emoval of a department chair may occur

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with or without cause upon recommendation of the chief executive
officer with a majority vote of the Joint Conference Committee.”
(Doc. 259-3 at 22.) In explaining his recommendation, Bryan wrote,
among other things: “This recommendation to rescind Dr. Jadwin’s
appointment as Chairman, Department of Pathology is based solely on
his continued non-availability to provide the leadership necessary
for a contributing member of the medical staff leadership group.”
(Doc. 266-2 at 32.) The Committee endorsed Bryan’s recommendation
by a majority vote and Plaintiff lost his chairmanship on July 10,
2006. (Doc. 266-2 at 29.)
Reduction In Salary
B.
Before he returned from his Personal Necessity Leave,
Plaintiff signed an amendment to his employment contract. (Doc.
259-11 at 10-12.) On September 15, 2006, the County’s counsel and
Plaintiff’s attorney communicated regarding the amendment to
3
Plaintiff’s employment contract. In an e-mail dated September 15,
2006, from Barnes (the County’s counsel) to Eugene Lee (Plaintiff’s
counsel), Barnes attached a copy of the proposed amendment and
stated: “As I mentioned, the amendment, which must be approved by
the Kern County Board of Supervisors before Jadwin can begin to
work, reflects changes to the base salary and the job duties
consistent with Dr. Jadwin’s change in status from department chair
to staff pathologist.” (Doc. 267 at 19.)
Plaintiff executed an amendment to his employment contract,
dated October 3, 2006. (Doc. 259-11 at 10-11.) The end date of
his employment term (October 4, 2007) remained unaltered. The

By then, Plaintiff had retained counsel.
11

amendment did, however, effectuate a reduction in Plaintiff’s base
salary and a revision of his job duties.
C.
Paid Administrative Leave And Non-Renewal Of Plaintiff’s
Contract
After executing his amended employment contract and after his
Personal Necessity Leave had expired, Plaintiff returned to work
as a staff pathologist. Thereafter, Plaintiff, for the first time,
reported various concerns he was having to outside authorities,
including the Joint Commission on Accreditation of Healthcare
Organizations (“JCAHO”), the College of American Pathologists
(“CAP”), and the California Department of Health Services (“DHS”).
(Doc. 272-2 at 5.) These outside reports dealt with a host of
issues including “[l]ost and incomplete product chart copies
related to blood transfusion” and “[s]torage of calvarium bone
flaps for reimplantation in unsafe storage and without state tissue
bank license.” (See, e.g., Doc. 260-2 at 22.)
According to the County, Plaintiff’s confrontational behavior
after he came back from Personal Necessity Leave was worse than
before. (Doc. 262 at 27.) On December 7, 2006, David Culberson, the
Interim CEO, sent a hand delivered letter to Plaintiff informing
Plaintiff that he was being placed on paid administrative leave
effective immediately. (Doc. 259-10 at 39.) The letter indicated
that he would remain on paid leave pending resolution of a
personnel matter. In a letter to David Culberson dated December
13, 2006, Plaintiff informed hospital administration that he had
notified outside authorities of alleged violations. (Doc. 265 at
79; Doc. 278 at 6.)
Plaintiff remained on paid administrative leave for the

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remainder of his employment term, i.e., until October 4, 2007, and
the County did not renew his contract. It is undisputed that, to
this day, Plaintiff has not personally received an explanation from
Defendants as to why he was placed on administrative leave or why
his contract was not renewed despite repeated requests for an
explanation. (Doc. 278 at 7.)
Plaintiff’s Lawsuit
D.
Before his contract term expired, on January 6, 2007,
Plaintiff filed his first Complaint in this action. (Doc. 2.) Five
counts alleged violations of the California Fair Employment and
Housing Act (“FEHA”), Cal. Gov’t Code §§ 12900 et seq, and two
counts alleged violations of the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601 et seq. After engaging in discovery,
Plaintiff filed a Second Amended Complaint and added claims for
retaliation under the FEHA and the FMLA on the theory that
Plaintiff’s employment contract was not renewed because he brought
an action against Defendants alleging FEHA and FMLA violations.
(Doc. 241.)
The operative complaint, Plaintiff’s Second Amended Complaint,
contains eleven counts. Plaintiff asserts a claim for: (1)
retaliation in violation of California Health & Safety Code §
1278.5; (2) retaliation in violation of California Labor Code §
1102.5; (3) retaliation in violation of the California Moore-Brown-
Roberti Family Rights Act (“CFRA”); (4) interference with FMLA
rights; (5) a violation/denial of CFRA rights; (6) disability
discrimination in violation of the FEHA; (7) a failure to provide
reasonable accommodation for an alleged disability (depression) in
violation of the FEHA; (8) a failure to engage in the interactive
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process in violation of the FEHA; (9) a violation of the 14th
Amendment’s procedural due process clause via 42 U.S.C. § 1983;
(10) retaliation in violation of the FMLA; and (11) retaliation in
violation of the FEHA. All counts are asserted against the County.
Plaintiff’s ninth count is asserted against Bryan and Harris.
Plaintiff alleges that, pursuant to 28 U.S.C. § 1331, federal
question jurisdiction exists over his federal claims and that,
pursuant to 28 U.S.C. § 1367, supplemental jurisdiction exists over
his state law claims.
III. SUMMARY JUDGMENT STANDARD
A motion for summary judgment and a motion for partial summary
judgment (sometimes called summary adjudication) are governed by
the same standards. California v. Campbell, 138 F.3d 772, 780-81
(9th Cir. 1998); Costa v. Nat’l Action Fin. Servs., No. CIV S-05-
2084 FCD/KJM, 2007 WL 4526510, at *2 (E.D. Cal. Dec. 19, 2007).
Summary judgment is appropriate when “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56©. A party moving for summary judgment “always bears the
initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
omitted).
Where the movant will have the burden of proof on an issue at
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trial, it must “affirmatively demonstrate that no reasonable trier
of fact could find other than for the moving party.” Soremekun v.
Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also
S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.
2003) (noting that a party moving for summary judgment on claim as
to which it will have the burden at trial “must establish beyond
controversy every essential element” of the claim) (internal
quotation marks omitted). With respect to an issue as to which the
non-moving party will have the burden of proof, the movant “can
prevail merely by pointing out that there is an absence of evidence
to support the nonmoving party’s case.” Soremekun, 509 F.3d at
984.

When a motion for summary judgment is properly made and
supported, the non-movant cannot defeat the motion by resting upon
the allegations or denials of its own pleading, rather the
“non-moving party must set forth, by affidavit or as otherwise
provided in Rule 56, ‘specific facts showing that there is a
genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986)). “Conclusory, speculative testimony
in affidavits and moving papers is insufficient to raise genuine
issues of fact and defeat summary judgment.” Id.
To defeat a motion for summary judgment, the non-moving party
must show there exists a genuine dispute (or issue) of material
fact. A fact is “material” if it “might affect the outcome of the
suit under the governing law.” Anderson, 477 U.S. at 248.
“[S]ummary judgment will not lie if [a] dispute about a material
fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
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Id. at 248. In ruling on a motion for summary judgment, the
district court does not make credibility determinations; rather,
the “evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255.
“[T]he standards upon which the court evaluates the motions
for summary judgment do not change simply because the parties
present cross-motions.” Taft Broad. Co. v. United States, 929 F.2d
240, 248 (6th Cir. 1991). And simply because the parties present
cross-motions for summary judgment does not mean that there must be
a winner:
The fact that both parties have moved for summary
judgment does not mean that the court must grant judgment
as a matter of law for one side or the other; summary
judgment in favor of either party is not proper if
disputes remain as to material facts. Rather, the court
must evaluate each party’s motion on its own merits,
taking care in each instance to draw all reasonable
inferences against the party whose motion is under
consideration.
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391
(Fed. Cir. 1987) (internal citation omitted).
IV. DISCUSSION AND ANALYSIS
Retaliation – California Health & Safety Code § 1278.54
As amended, Section 1278.5 of the California Health & Safety
Code provides in pertinent part:
(a) The Legislature finds and declares that it is the
public policy of the State of California to encourage
patients, nurses, members of the medical staff, and other
health care workers to notify government entities of
suspected unsafe patient care and conditions. The
Legislature encourages this reporting in order to protect

Several of Plaintiff’s claims under Health & Safety Code §
4
1278.5 are barred as explained in the order on Defendants’ motion
for judgment on the pleadings. (Doc. 310.) Because at least one
claim remains, discussion and analysis is required.
16

patients and in order to assist those accreditation and
government entities charged with ensuring that health
care is safe. The Legislature finds and declares that
whistleblower protections apply primarily to issues
relating to the care, services, and conditions of a
facility and are not intended to conflict with existing
provisions in state and federal law relating to employee
and employer relations.
(b)(1) No health facility shall discriminate or
retaliate, in any manner, against any patient, employee,
member of the medical staff, or any other health care
worker of the health facility because that person has
done either of the following:
(A) Presented a grievance, complaint, or report to
the facility, to an entity or agency responsible
for accrediting or evaluating the facility, or the
medical staff of the facility, or to any other
governmental entity.
(B) Has initiated, participated, or cooperated in
an investigation or administrative proceeding
related to, the quality of care, services, or
conditions at the facility that is carried out by
an entity or agency responsible for accrediting or
evaluating the facility or its medical staff, or
governmental entity.
(2) No entity that owns or operates a health facility, or
which owns or operates any other health facility, shall
discriminate or retaliate against any person because that
person has taken any actions pursuant to this
subdivision.
. . . .
(d)(2) For purposes of this section, discriminatory
treatment of an employee, member of the medical staff, or
any other health care worker includes, but is not limited
to, discharge, demotion, suspension, or any unfavorable
changes in, or breach of, the terms or conditions of a
contract, employment, or privileges of the employee,
member of the medical staff, or any other health care
worker of the health care facility, or the threat of any
of these actions.
As currently worded, “[t]he statute prohibits retaliation
against any employee who complains to an employer or a government
agency about unsafe patient care or conditions.” Mendiondo v.

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Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1105 (9th Cir. 2008). To
establish a prima facie case of retaliation under § 1278.5, a
plaintiff must show that: (1) he engaged in protected activity
under the statute; (2) he was thereafter subjected to an adverse
employment action; and (3) a causal link between the two. See id.
1. Retroactive Application Of § 1278.5
Plaintiff’s briefing in connection with the cross-motions for
summary judgment and his opposition brief to Defendants’ motion for
judgment on the pleadings reveals that Plaintiff is attempting to
assert whistleblower claims under the amended version of § 1278.5.
Section 1278.5 was amended effective January 1, 2008, well
after Plaintiff’s employment with the County ended. All of the
alleged whistleblowing and retaliation in this case preceded
January 1, 2008. In his opposition brief to Defendants’ motion for
judgment on the pleadings, Plaintiff argued, “[b]oth whistleblower
statutes which Plaintiff is suing under – Labor Code § 1102.5 and
Health & Safety Code § 1278.5 — expressly provide that an
employee’s
constitute
employer
public
his
to
reports
whistleblowing. H&S § 1278.5(b)(1)(A); Labor C. § 1102.5(e).” (Doc.
293 at 5.) Plaintiff’s citation to “H&S § 1278.5(b)(1)(A)” is a
reference to the new version of the statute. The old version of
the statute, which was in effect from January 1, 2000 to December
31, 2007, did not contain this section (i.e., (b)(1)(A)). See Cal.
Health & Safety Code § 1278.5 (Deering’s Supp. 2000).
The main substantive provision of Health & Safety Code §
1278.5 that existed during Plaintiff’s employment with the County
reads as follows:
No health facility shall discriminate or retaliate in any
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manner against any patient or employee of the health
facility because that patient or employee, or any other
person, has presented a grievance or complaint, or has
initiated or cooperated in any investigation or
proceeding of any governmental entity, relating to the
care, services, or conditions of that facility.
Health & Safety Code § 1278.5(b)(1) (Deering’s Supp. 2000). As
stated in a previous order, see Jadwin v. County of Kern, No.
1:07-CV-00026, 2009 WL 530084-OWW-TAG, at *3 (E.D. Cal. Mar. 2,
2009), a comparison between the old and new version of Health &
Safety Code § 1278.5 reveals several textual changes, including:
• The new version prohibits retaliation by an “entity
that owns or operates a health facility, or which owns or
operates any other health facility” (such as the County)
and not just retaliation by the health facility at issue.
• The new version explicitly prohibits retaliation
against any “member of the medical staff” or “any other
health care worker of the health facility.” The old
version prohibited retaliation against “any patient or
employee of the health facility.”
• The new version applies to a “grievance, complaint, or
report” presented to a party enumerated in the statute.
The old version applies only to a “grievance or
complaint.”
• The new version of the statute augmented the potential
remedies which now (but did not previously) include “any
remedy deemed warranted by the court pursuant to this
chapter or any other applicable provision of statutory or
common law.”
In light of the statute’s textual changes and their potential
impact on this case, the parties were requested to file
supplemental briefing to address whether the amended version of the
statute applied in this case, and, if not, whether Plaintiff’s §
1278.5 claims survived. See Jadwin, 2009 WL 530084 at *4. In his
supplemental briefing, Plaintiff argues that, notwithstanding all
the textual changes, the amended version of § 1278.5 merely
clarified the original meaning of the statute and, as such, it can
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be applied in this case. Citing Mendiondo, Plaintiff suggests that
the Ninth Circuit has already determined that the amended version
of the statute applies to whistleblowing and retaliation that
occurred prior to its enactment into law.
In essence, in Mendiondo a nurse who worked at a hospital
complained to the hospital’s Chief Executive Officer and a
supervisor about unsafe patient care and conditions at the
facility. 521 F.3d at 1101. She alleged she was retaliated against
for doing so. Id. All the alleged whistleblowing and retaliation
in that case occurred before the amended version of § 1278.5 went
into effect on January 1, 2008. The appellate briefing (2006 WL
3623387, 2007 WL 870285, 2007 WL 1407246) also predated January 1,
2008. The Ninth Circuit’s decision was issued after January 1,
2008, and the court applied the amended version of the statute. In
Mendiondo, the court cited to § “1278.5(b)(1)(A),(g).” 521 F.3d at
1105. This is a reference to the new version of the statute as the
old version did not contain “(b)(1)(A).”
Although the Ninth Circuit apparently applied the new version
of the statute in Mendiondo, there is no indication that the court,
sub silentio, determined that the statute contained amendments
which merely clarified existing law. Plaintiff’s argument to the
contrary is erroneous. No party made any such argument in
Mendiondo so the issue was not before the court.
“In deciding the amendment’s application, [a court] must
explore whether the amendment changed or merely clarified existing
law. A statute that merely clarifies, rather than changes,
existing law is properly applied to transactions predating its
enactment.” Carter v. Cal. Dep’t Of Veterans Affairs, 38 Cal. 4th

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914, 922 (2006). If an amendment merely clarifies, rather than
changes, existing law, applying the amendment to transactions that
predate its enactment is not problematic “because the true meaning
of the statute has not changed.” In re S.B. v. S.M., 32 Cal. 4th
1287, 1296 (2004). Indeed, if the amendment merely clarified,
rather than changed, existing law, “liability would have existed at
the time of the actions” that predate the amendment. McClung v.
Employment Dev. Dep’t, 34 Cal. 4th 467, 472 (2004). “An amendment
which merely clarifies existing law may be given retroactive effect
even without an expression of legislative intent for
retroactivity.” Negrette v. Cal. State Lottery Comm’n, 21 Cal.
App. 4th 1739, 1744 (1994). The parties agree that, with respect
to the new version of § 1278.5, there is no expression of
legislative intent for retroactivity.
To determine whether a particular amendment clarified or
changed the law, California courts consider whether the prior
version of the statute “could not have been properly construed” to
include the content of the amendment. Carter, 38 Cal. 4th at 924.
The Legislature’s declaration of what they intended by the prior
statute is entitled to consideration, but it is not controlling,
and simply stating that an amendment “clarified” the prior statute
is not determinative:
It is true that if the courts have not yet finally and
conclusively interpreted a statute and are in the process
of doing so, a declaration of a later Legislature as to
what an earlier Legislature intended is entitled to
consideration. But even then, a legislative declaration
of an existing statute’s meaning is but a factor for a
court to consider and is neither binding nor conclusive
in construing the statute. This is because the
Legislature has no authority to interpret a statute. That
is a judicial task. The Legislature may define the
meaning of statutory language by a present legislative
enactment which, subject to constitutional restraints, it
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may deem retroactive. But it has no legislative authority
simply to say what it did mean. A declaration that a
statutory amendment merely clarified the law cannot be
given an obviously absurd effect, and the court cannot
accept the Legislative statement that an unmistakable
change in the statute is nothing more than a
clarification and restatement of its original terms.
McClung, 34 Cal. 4th at 473 (internal citations and quotation marks
omitted). At times, material changes in the language of a statute
“may simply indicate an effort to clarify the statute’s true
meaning” such as when “the Legislature promptly reacts to the
emergence of a novel question of statutory interpretation.”
Carter, 38 Cal. 4th at 923 (internal quotation marks omitted). The
Legislature did not deem the amendment to § 1278.5 as an emergency
measure.
While the new version of the statute contains numerous textual
changes, three of them, which are relevant here, merit discussion.
First, the old version of the statute outlawed discrimination
or retaliation by a “health facility.” The new version of the
statute states that “[n]o entity that owns or operates a health
facility, or which owns or operates any other health facility,
shall discriminate or retaliate against any person because that
person has” engaged in protected whistleblowing. § 1278.5(b)(2).
In Plaintiff’s complaint he alleges, and the evidence shows, that
he was employed by the County and worked at KMC, a hospital which
is “owned and operated” by the County. KMC, the health facility,
is not a named party to this lawsuit. Under the old version of the
statute, the health facility was liable for discrimination and
retaliation. Under the new version, both the health facility (KMC)
and the entity which owns or operates the health facility (the

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County) can be liable for discrimination and retaliation.
Second, the old version of the statute protected “any patient
or employee of the health facility” from discrimination or
retaliation. In Plaintiff’s complaint he alleges, and the evidence
shows, Plaintiff was an employee of the County, not of KMC. The
new version of the statue protects any “patient, employee, member
of the medical staff, or any other health care worker of the health
facility” from discrimination or retaliation. As revealed in his
pleadings, and the evidence shows, Plaintiff was on the medical
staff of KMC.
Third, the old version of the statute came into play when an
employee or patient of the health facility “presented a grievance
or complaint.” The new version of the statute applies when a
protected party has “presented a grievance, complaint, or report.”
§1278.5(b(1)(A) (emphasis added). As alleged in the pleadings,
Plaintiff claims he made protected “reports.” (Doc. 241 at 31.) In
his summary judgment briefing, Plaintiff repeatedly refers to his
protected activity in terms of a report.
If the aforementioned amendments constitute clarifications to
existing law, no problem, in terms of retroactive application, is
generated.
a. Entities That Own And Operate A Health Facility
The old version of the statute said nothing about entities
that own or operate a health facility. The text of the old version
prohibited a “health facility” from engaging in certain conduct and
created liability for the health facility. That the old version
only imposed liability on health facilities is further ressed

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by the introductory section to the bill that created § 1278.5 (the
old version). The legislative counsel’s digest states:
Existing law prohibits certain health facilities, known
as long-term health care facilities, from discriminating
or retaliating against a patient or employee of those
long-term health care facilities because the patient or
employee presents a grievance or complaint, or initiates
or cooperates in an investigation or proceeding by a
governmental entity, relating to the care, services, or
conditions at those long-term health care facilities,
except as provided. Existing law makes violation of this
prohibition subject to a civil penalty of not more than
$10,000.
. . . .
This bill would impose similar prohibitions on health
facilities other than long-term health care facilities,
except that violation would be subject to a civil penalty
of not more than $25,000 and willful violation would be
a misdemeanor punishable by a fine of not more than
$20,000. By creating a new crime, this bill would impose
a state-mandated local program.
S.B. 97, 1999 Cal. Legis. Serv. ch. 155. In light of the statute’s
explicit reference to “no health facility” there is no basis to
interpret the old version of the statute to provide that an entity
that owns or operates a health facility was, in addition to the
“health facility” itself, statutorily liable for discrimination and
retaliation under § 1278.5.
A report of the Senate Judiciary Committee, dated July 10,
2007, reveals that adding an entity that owns or operates a health
facility to the statute did more than just clarify the original
meaning of the statute: Under the heading “Description” this
report states:
The bill would revise and recast portions of the
whistleblower statute that protects patients and
employees of a health facility from discrimination or
retaliation for complaining about the health facility or
cooperating in the investigation of the health facility

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by a government entity. These revisions would:
. . . .
(4) extend the prohibition against discrimination or
retaliation to any entity that owns or operates a health
facility.
(Emphasis added.) A substantive extension of statutory coverage to
include additional parties effectuates a change, not merely a
clarification, to the law. See McClung, 34 Cal. 4th at 471-74;
Balen v. Peralta Junior College Dist., 11 Cal. 3d 821, 828 n.8
(1974). Later in the same Committee report under the heading
“Background” it states:
According to the California Medical Association (CMA),
sponsor of AB 632, because physicians are generally not
‘employees’ of a health facility, they do not benefit
from the whistleblower protections afforded by Health &
Safety Code 1278.5. Thus, when they see problems with
patient care beyond their own patients they may actually
do nothing about it, for fear of retaliation or
discrimination.
AB 632 is intended to cure this gap in coverage for
whistleblowing in the health care context, and would
extend the whistleblower protection further by making an
entity that owns or operates a health facility liable for
the unlawful acts of the health facility.
(Emphasis added.) Again, this passage confirms that adding
entities that own and operate a health facility to § 1278.5
expanded the statute’s substantive scope, not merely clarified its
original meaning. Finally, in the same committee report under the
heading “Changes To Existing Law” it states that “[t]his bill would
extend the prohibition against discrimination or retaliation under
1278.5(b) to an entity that owns or operates a health facility.”
There is language in other parts of the legislative history

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which suggest that adding entities that own and operate health
facilities to § 1278.5 was a clarification of existing law. A
different Senate Committee Report, dated June 13, 2007, states
under the heading “Changes To Existing Law”:
The bill additionally clarifies that the prohibition on
discriminatory or retaliatory action by a health facility
extends to the facility’s administrative personnel,
employees, boards, and committees of the board, and
medical staff, as well as an entity that owns or operates
a health care facility.
(Emphasis added.) A court need not accept a statement that an
“unmistakable change in the statute is nothing more than a
clarification and restatement of its original terms.” McClung, 34
Cal. 4th at 473. Moreover, the other Legislative history detailed
above undermines the assertion that extending the scope of the
statute to include an entity that owns or operates a health
facility was merely a clarification of the statute’s original
terms.
The amended version of the statute prohibits retaliation or
discrimination by an entity that owns or operates a health facility
and subjects the entity to statutory liability. This amendment to
§ 1278.5 added to and changed, not merely clarified, existing law.
b.
Member Of The Medical Staff, Or Any Other Health
Care Worker Of The Health Facility
Section 1278.5(b)(1) of the old version of the statute
prohibited discrimination or retaliation “in any manner against any
patient or employee of the health facility because that patient or
employee, or any other person, has presented a grievance or
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proceeding of any governmental entity, relating to the care,
services, or conditions of that facility.” (Emphasis added.)
The text makes clear that it protects patients or employees of
the health facility. The text also makes clear that it protects
patients or employees from discrimination or retaliation not only
when they themselves present a grievance or complaint or personally
participate in an investigation or proceeding of a governmental
entity, but it also protects patients or employees of the health
facility from discrimination or retaliation when “any other person”
presents a grievance or complaint or participates in an
investigation or proceeding of a governmental entity. The added
protection provided by “any other person” is quite reasonable. For
example, if a patient’s spouse submits a protected complaint to a
government entity and the health facility retaliates against the
patient, the patient has a viable statutory claim. If it were
otherwise, a health facility could punish a patient with impunity
so long as the patient did not personally present the grievance or
complaint or did not personally participate in the investigation or
proceeding. The phrase “any other person” comes after the word
“because” and, read in context, “any other person” is not
describing potential plaintiffs under § 1278.5. The old version of
the statute could not have been properly construed as prohibiting
discrimination or retaliation against individuals other than those
delineated in the statute – patients or employees of the health
facility.
The amended version of the statute now prohibits
discrimination or retaliation against “any patient, employee,

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member of the medical staff, or any other health care worker of the
health facility.” § 1278.5. In his supplemental briefing,
Plaintiff notes that the preamble to the bill which amended §
1278.5 “highlights” the amendment’s “extension of the [s]tatute’s
protections to physicians,” (Doc. 306 at 4.), i.e., the extension
of the statute’s protection to members of the medical staff. Yet,
Plaintiff takes the position that the extension of protection to
members of the medical staff merely clarified the original meaning
of the statute. Plaintiff’s argument is unpersuasive.
The report of the Senate Judiciary Committee, dated July 10,
2007, recognized the “gap” in the existing statute’s coverage in
that it only applied to employees and patients of a health care
facility:
According to the California Medical Association (CMA),
sponsor of AB 632, because physicians are generally not
‘employees’ of a health facility, they do not benefit
from the whistleblower protections afforded by Health &
Safety Code 1278.5. Thus, when they see problems with
patient care beyond their own patients they may actually
do nothing about it, for fear of retaliation or
discrimination.
AB 632 is intended to cure this gap in coverage for
whistleblowing in the health care context, and would
extend the whistleblower protection further by making an
entity that owns or operates a health facility liable for
the unlawful acts of the health facility.
(Emphasis added.) In that same Senate committee report, under the
heading “Description,” it states that the bill to amend § 1278.5
would “expand coverage of the whistleblower protections to members
of the medical staff (physicians) and other health care workers
were are not employees of the health facility[.]” Later in the

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committee report, under the heading “Comment” there is a section
entitled “Physicians are not employees; who are ‘other health
workers’ covered by the bill?” In pertinent part, that section
reads:
SB 97 (Burton), Chapter 155, Statutes of 1999 [which
created the old version of § 1278.5] extended the
whistleblower protections then available to patients and
employees of a long-term health care facility to patients
and employees of health facilities (hospitals) for filing
a grievance or providing information to a governmental
entity regarding care, services, or conditions at the
facility. That bill was introduced at the behest of
nurses
who
complained
that
various
forms
of
discrimination or retaliation were the normal response
they received when they reported problems regarding
quality of care at their places of employment.
The legislative findings and declarations contained in SB
97 referred to the state’s policy of encouraging
‘patients, nurses, and other health care workers to
notify government entities of suspected unsafe patient
care and conditions. However, the operative part of the
statute that was enacted referred only to whistleblower
protections for ‘any patient or employee of the health
facility’ when ‘the patient, employee, or any other
person has presented a grievance’ or complaint about the
facility.
This bill would insert ‘members of the medical staff’
into the legislative findings and declarations relating
to state policy. It would then prohibit a health facility
from discriminating or retaliating against ‘any patient,
employee, member of the medical staff, or any other
health care worker of the health facility,’ thus
expanding the whistleblower protections of 1278.5 to all
health care workers at the facility, including
physicians.
. . . .
Both CMA [California Medical Association] and the CHA
[California Hospital Association] agree that physicians
are generally not employees of a hospital.
(Emphasis added.) The addition of “members of the medical staff”

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(and any other health care worker) did not simply clarify the
original meaning of the statute – it expanded the protective ambit
of the statute to cure a gap in coverage. The “operative” part of
the statute only protected employees and patients of the health
facility. The amendment expanded the statute’s existing
substantive reach to now include “members of the medical staff” of
the health facility because, generally, physicians are not
employees of the hospital (nor patients).
Plaintiff argues that the addition of “members of the medical
staff” was made in response to California case law, thus suggesting
it was a clarifying amendment (Doc. 306 at 4). See Carter, 38 Cal.
4th at 923 (recognizing that when “the Legislature promptly reacts
to the emergence of a novel question of statutory interpretation”
this may indicate that an amendment was merely a clarification of
the statute’s true meaning). Plaintiff’s argument is unpersuasive.
The legislative history does contain a reference to Integrated
Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal. App. 4th 515
(2006). As explained in an Assembly Committee report dated April
10, 2007: “[T]he issue of retaliation appears in several ways. One
way is in direct retaliation for a statement made by a physician
regarding concerns for qualify of care. According to CMA, the most
recent example occurred at Western Medical Center Santa Ana, when
the new owners . . . sued Michael Fitzgibbons, M.D., a past chief
of staff when [he] expressed concerns about the financial viability
of the hospital.” Fitzgibbons, however, did not involve any
judicial construction or novel interpretation of § 1278.5. Rather,
the legislative history shows that Fitzgibbons, and the facts

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surrounding it, brought to light the importance of providing
whistleblower protection to physicians and plugging the gap in
statutory coverage.
Other legislative history materials suggest that by adding
“member of the medical staff” to the new version of the statute,
the California Legislature believed it was clarifying the existing
statute. Plaintiff cites a passage from the Senate Judicial
Committee report dated July 10, 2007:
According to the CMA, sponsor of AB 632, [Health & Safety
Code 1278.5] provides protections to employees and
patients and the nebulous term ‘or any other person.’
Unfortunately, enterprising attorneys have used this
section to deny protections for a physician who raised
concerns of poor patient care by correctly stating that
the physician was not an employee or patient. This bill
will prevent that argument from happening again. . . . As
such this section must be clarified and strengthened.
A similar passage appears in a Senate Committee report dated June
13, 2007:
According to the author, existing law does not fully
protect physicians and other health professionals from
retaliation if they make a complaint or grievance about
a health facility. The author states that currently, this
protection only applies to patients, employees, and the
nebulous term, ‘any other person.’ The author states that
some attorneys have interpreted this to deny protections
to physicians and other members of the medical staff
because they are not employees or patients of the health
facility. Members of the medical staff, which can include
physicians and surgeons, podiatrists, opthamologists,
pathologists, and radiologists, interact with peer review
bodies that establish by-laws and regulations pertaining
to professional conduct. Complaints about quality of care
issues pertaining to health facilities can be raised with
a peer review body, hospital governing board, or
accrediting agency. However, the author and sponsor state
that, in some cases, physicians who raise a complaint to
any of these bodies are not protected under current law
against retaliation and that AB 632 will clarify existing
law to prevent abuses against physicians and other health
professionals.

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Both of these passages are confusing to the extent that they
suggest attorneys were using the term “any other person” to deny
protection to physicians and other members of the medical staff.
This does not make any sense. It is true, however, that under the
old version of the statute, only patients and employees of a health
facility were protected from discrimination and retaliation, and if
a physician was not an employee of the health facility, he or she
did not enjoy coverage. The language “any other person” is not a
nebulous reference to a vast sea of potential plaintiffs. Rather,
the statute protects a patient or employee of a health facility
when either: (i) they themselves present a grievance or complaint,
or participate in an investigation or proceeding of a governmental
entity; or (ii) when “any other person” presents a grievance or
complaint, or participates in an investigation or proceeding of a
governmental entity and the patient or employee of the health
facility ends up getting discriminated or retaliated against
because of such activity. The amendment, by expanding its scope to
include a member of the medical staff or any other health care
worker of the health facility, does “prevent” the argument that a
physician is unprotected by § 1278.5 when he is not an employee of
the health facility. This amendment, however, did more than just
clarify existing law; it added substantive protection that did not
otherwise exist.
By expanding the coverage of the statute to include members of
the medical staff and other health care workers who are not
employees or patients of the health care facility, the amendment
changed, not merely clarified, existing law.

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c.
Grievance, Complaint, Or Report
The old version of the statute applied to “any grievance or
complaint.” The new version of the statute applies to “any
grievance, complaint, or report.” The addition of another category
of protected activity effectuated a substantive change in the law.
No party contends that adding the term “report” was a meaningless
addition to the statute. See People v. Hudson, 38 Cal. 4th 1002,
1010 (2006) (“As we have stressed in the past, interpretations that
render statutory terms meaningless as surplusage are to be
avoided.”); S.D. Police Officers Assn v. City of S.D. Civil Serv.
Comm’n, 104 Cal. App. 4th 275, 284 (2002) (“In construing a statute
we are required to give independent meaning and significance to
each word, phrase, and sentence in a statute and to avoid an
interpretation that makes any part of a statute meaningless.”).
There are other textual changes that bear on this case
including the addition of “medical staff” as a potential target of
whistleblowing activity. But, the preceding analysis is sufficient
to demonstrate that, in at least three material respects, the new
version of § 1278.5 made substantive changes, not just
clarifications, to the statute. Plaintiff was a member of the
medical staff at KMC, not one of its employees. He is attempting
to assert liability against an owner and operator of a health
facility (the County) for retaliation, which allegedly occurred in
response to protected activity including “reports” he made. In
this case, the provisions discussed above cannot be applied
retrospectively. Plaintiff cannot sue under the new version of the
statute. Plaintiff’s rights are defined by the old version of the

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statute.
Plaintiff is an employee of the County and Plaintiff has not
created a triable issue that he is an employee of the health
facility, KMC. Under the old version of the statute, the health
facility was civilly liable for acts of discrimination and
retaliation and Plaintiff has not sued the facility. Applying the
applicable version of the statute to Plaintiff’s claims, summary
judgment in favor of the County is warranted. This result
underscores the gap in statutory coverage which the California
Legislature has resolved.
Defendant County’s motion for summary judgment with respect to
whistleblower liability under § 1278.5 is GRANTED.
Retaliation – California Labor Code § 1102.5
B.
Section 1102.5(b) of the California Labor Code provides in
pertinent part:
(b) An employer may not retaliate against an employee for
disclosing information to a government or law enforcement
agency, where the employee has reasonable cause to
believe that the information discloses a violation of
state or federal statute, or a violation or noncompliance
with a state or federal rule or regulation.
. . . .
(e) A report made by an employee of a government agency
to his or her employer is a disclosure of information to
a government or law enforcement agency pursuant to
subdivisions (a) and (b).
To establish a prima facie case of retaliation under § 1102.5(b),
a plaintiff must show: (1) he engaged in protected activity; (2)
his employer thereafter subjected him to an adverse employment
action; and (3) a causal link between the two. Mokler v. County of

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Orange, 157 Cal. App. 4th 121, 138 (2007); Patten v. Grant Joint
Union High Sch. Dist., 134 Cal. App. 4th 1378, 1384 (2005).
Plaintiff claims that he was retaliated against for protected
whistleblowing regarding PCCs and skull flaps.
1. PCCs
a. Communications To His “Employer”
i. Protected Activity
Plaintiff asserts that by letter dated January 9, 2006, he
communicated to Bryan regarding KMC’s noncompliance with state
regulations on blood transfusion related documentation known as
product chart copies or PCCs. (Doc. 266 at 134.) In that letter,
Plaintiff stated:
All transfusion product chart copies must be directed to
the blood bank for assessment immediately following
transfusion. The problems with incomplete product chart
copies have been discussed multiple times with nursing
and yourself. As medical director of the blood bank, I
have an obligation to ensure that KMC is in compliance
with state & federal regulations and AABB accreditation
standards. It is my opinion as blood bank director that
until nursing can otherwise assure than all product chart
copies are properly completed, the blood bank must
perform immediate monitoring of all product chart copies
to ensure completion or corrective action.5
(Id.) A few months later, Plaintiff sent Bryan an e-mail on April
17, 2006, with the subject line “Compliance with Regulations.”
This e-mail discussed deficiencies in the PCCs:
Peter:
I have completed an analysis of the 57 memos sent to
nursing over the past several months detailing
deficiencies in product chart copies (PCCs). I have not
received an administrative response to the memos.

This is the same letter in which Plaintiff noted his
5
“depression and insomnia” and requested administrative leave.
35

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These memos detail 34 instances of missing verification
signatures, either one or both, required by regulations
and standards.
Six PCCs were not located in the chart, a noticeable
improvement over past performance.
One hundred fifty nine (159) PCCs had one or more other
lesser, but still important deficiencies.
Two transfusions were not reported on the PCCs or to the
blood bank.
The five charts reviewed without deficiency by the JCAHO
that you cited on April 13th during our meeting is
obviously too small a sample.
I am extremely concerned about the lack of administrative
communication, attention and significant improvement in
this area. This is a compliance issue that involves
Federal
regulations,
California
regulations
and
accreditation standards for the JCAHO, CAP and AABB. As
the Medical Director of the Blood Bank I must advise you
again that these deficiencies must be corrected
immediately to meet 100 percent compliance, especially
for verification signatures and lost PCCs. I have
proposed several different strategies over the past
several years for achieving almost immediate results, but
I am unaware that any corrective action has been put into
place.
You and I have an ethical and regulatory duty to correct
this situation in a timely manner. After multiple
requests for action, I cannot conscientiously sit back
any longer.
I therefore request a meeting with yourself, Mr. Barmann,
Dr. Kercher, Dr. Harris and me to discuss a resolution
for this dilemma and thereby reduce serious liability for
Kern County and KMC.
(Doc. 265 at 90.) Plaintiff contends that this communication
constituted a protected disclosure and that because of this
communication, he was retaliated against.
An employee engages in protected activity when he “discloses
to a governmental agency reasonably based suspicions of illegal
activity.” Mokler, 157 Cal. App. 4th at 138 (emphasis added)

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(internal quotation marks omitted); see also § 1102.5(b) (requiring
disclosure to “a government or law enforcement agency”).
As a threshold matter, Plaintiff asserts and Defendants
acknowledge that the County employed Plaintiff, and the County is
a “government agency” under Labor Code § 1102.5. (Doc. 278 at 8.)
Cf. Cal. Gov’t Code § 6252(a) (defining “local agency” as including
a “county”). Plaintiff further argues that because he was an
employee of a government agency (the County), then by virtue of §
1102.5(e), disclosures he made to his employer (the County) are
disclosures to a government agency under Labor Code § 1102.5(b). By
extension, according to Plaintiff, his communications to Bryan and
other members of KMC leadership were made to his “employer.” Taken
facially, the statute requires disclosure to the County and
Plaintiff does not explain whether Bryan and others were employed
by the County. Nevertheless, because Defendants do not challenge
Plaintiff on this point, it is assumed, arguendo, that Plaintiff’s
disclosures were disclosures to the County.
An employee engages in protected activity under § 1102.5(b)
when he “discloses to a governmental agency reasonably based
suspicions of illegal activity.” Mokler, 157 Cal. App. 4th at 138
(emphasis added) (internal quotation marks omitted). The employee
must “reasonably believe []he was disclosing a violation of state
or federal law.” Patten, 134 Cal. App. 4th at 1386. To have a
reasonably based suspicion of illegal activity, the employee must
be able to point to some legal foundation for his suspicion — some
statute, rule or regulation which may have been violated by the
conduct he disclosed. Love v. Motion Indus., Inc., 309 F. Supp. 2d

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1128, 1135 (N.D. Cal. 2004) (concluding that without citing to “any
statute, rule or regulation that may have been violated by the
disclosed conduct,” plaintiff lacked “any foundation for the
reasonableness of his belief”).
Plaintiff argues that he “reasonably suspected that KMC’s
ongoing failure to maintain accurate and complete records of
patient blood transfusions did not comply with Health & Safety Code
§ 1602.5, which requires PCC documentation to conform to AABB
accreditation standards.” (Doc. 272 at 10) (emphasis added.)
Section 1602.5 of the Health & Safety Code provides in pertinent
part as follows:
(a) No person shall engage in the production of human
whole blood or human whole blood derivatives unless the
person is licensed under this chapter and the human whole
blood or human whole blood derivative is collected,
prepared, labeled, and stored in accordance with both of
the following:
(1) The standards set forth in the 13th Edition of
‘Standards for Blood Banks and Transfusion Services,’ as
published by the American Association of Blood Banks and
in effect on November 15, 1989, or any amendments thereto
or later published editions or amendments thereto. These
shall be the standards for all licensed blood banks and
blood transfusion services in the state.
(2) Those provisions of Title 17 of the California Code
of Regulations that are continued in effect by
subdivision © or that are adopted pursuant to subdivision
(b).
Plaintiff does not rely on § 1602.5(a)(2) to support his claim;
rather, Plaintiff contends that he reasonably believed the PCCs did
not comply with 1602.5(a)(1) because they did not adhere to the
Standards for Blood Banks and Transfusion Services as published by
the American Association of Blood Banks (AABB).
Plaintiff has not provided a copy of the AABB standards to

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permit assessment of the reasonableness of his belief that
incomplete PCCs violated § 1602.5(a)(1). Plaintiff provides an e-
mail, dated May 20, 2005, which he sent to Toni Smith, Chief Nurse
Executive at KMC. In this e-mail, Plaintiff recounts a
conversation he had with “Holly Rapp, AABB Accreditation Director.”
(Doc. 265 at 121.) The e-mail (which contains some connected
words) states:
Telephone Conversation: Holly Rapp, AABB Accreditation
Director [telephone number].
* California accepts compliance with AABB accreditation
standards as fulfilment of California State Regulations
regarding blood component therapy
* AABB Standards, 23rd Edition (2004) state: The
patient’s medical record shall include: transfusion
order, the name of the component, the donor unit or pool
identificationnumber, the date and time of transfusion,
pre- and post-transfusion vital signs, theamount
transfused, the identification of the transfusionist, and
if applicable, transfusion adverse events.
* The standards do not define what constitutes the
‘patient’s medical record’.
* She stated that the medical record may be construed as
records other than thepatient’s chart.
* When I explained the proposal to store the PCC records
in the transfusion department, she said that this would
be acceptable. In her experience, it is customary for the
bloodbank to at least receive a copy of the PCC.
* When I explained the problems with misplaced and
incomplete documents, she said thatthis must be corrected
immediately. If this requires sending all PCCs to the
blood bank inthe interim to gain control of the
situation, then this should be done.
(Id.) Defendants do not dispute that Plaintiff had this
conversation with Rapp or that Plaintiff’s e-mail accurately
documents the conversation. Defendants include this same e-mail in
their separate statement of undisputed material facts.
Defendants do not specifically challenge Plaintiff’s argument
that he had a reasonable belief that incomplete PCCs were unlawful.

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Rather, Defendants argue that “[a]lthough California Health &
Safety Code 1602.5(a) applies to the preparation, labeling, and
storage of blood products, violation of 1602.5 was not Plaintiff’s
original concern. Instead, Plaintiff had argued aggressively with
Toni Smith and others that the original copies of all PCCs should
be filed and stored in the Pathology Department.” (Doc. 276 at 12.)
While this may be true, Defendants’ argument is not entirely
persuasive.
To invoke Labor Code § 1102.5(b), Plaintiff must disclose
conduct which he reasonably believes is unlawful. Based on his
unchallenged conversation with the AABB Accreditation Director,
Plaintiff arguably had a reasonable belief that incomplete PCCs
violated the AABB standards, which in turn violated Health & Safety
Code § 1602.5(a)(1). That Plaintiff suggested a course of action
to remedy the situation, or that Plaintiff was motivated by a
desire to monitor the PCCs himself in the Pathology Department,
does not negate his reasonable belief.
ii.
Adverse Employment Action And Causal Link
Plaintiff argues that after he sent Bryan the April 17, 2006
“Compliance with Regulations” e-mail, he was subject to various
adverse employment actions which he contends were casually
connected to his whistleblowing.
Plaintiff argues that his removal from his chairmanship (July
10, 2006) which prompted his pay cut, his involuntarily
administrative leave (December 7, 2006), and the non-renewal of his
contract (“on or around October 4, 2007″) were “temporally
proximate” to his disclosure of unlawful conduct, and the

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“[p]roximity in time between the disclosure and the adverse action
is sufficient to establish the required nexus” or causal link.
(Doc. 272 at 14.)
To establish a causal link solely with timing evidence, the
adverse action must follow “within a relatively short time” after
the protected activity. See Fisher v. San Pedro Peninsula Hosp.,
214 Cal. App. 3d 590, 615 (1989)(internal quotation marks omitted);
Morgan v. Regents Of The Univ. Of Cal., 88 Cal. App. 4th 52, 69
(2000); see also Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
273 (2001) (per curiam) (“The cases that accept mere temporal
proximity between an employer’s knowledge of protected activity and
an adverse employment action as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal
proximity must be very close.”) (emphasis added) (internal
quotation marks omitted).
Plaintiff’s removal from the chairmanship in July 2006
occurred within a few months after the April 2006 e-mail and the
associated pay cut followed around five-to-six months later.
Plaintiff’s timing evidence does not warrant summary judgment in
Plaintiff’s favor.
First, Plaintiff started expressing his “concerns” about the
PCCs at least by May 2005 (Doc. 272. at 2.) Yet, there is no
indication that after expressing these concerns in May 2005,
Plaintiff was disciplined for doing so. Second, Plaintiff’s
“concerns” were in no way limited to PCCs. During his employment,
Plaintiff raised numerous issues to Bryan and others making it
difficult to attribute bias toward, or adverse action specific to,

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his complaints about PCCs. Third, Bryan’s June 13, 2006 e-mail and
follow-up letter on June 14, 2006 in which he informed Plaintiff
that he was withdrawing/rescinding Plaintiff’s chairmanship came on
the heels of, and were responding to, the written request Plaintiff
made for additional time to make a decision regarding his continued
employment. Bryan indicated that his decision to withdraw/rescind
Plaintiff’s chairmanship was due to Plaintiff’s continued
unavailability (not his whistleblowing). Fourth, and relatedly,
Plaintiff argues that he has “direct evidence” that he was removed
from his chairmanship and his pay was cut because of his extended
absences from work. (Doc. 272 at . 15.) To support his FMLA
interference claim, Plaintiff relies heavily on statements by
Bryan, including that Bryan recommended Plaintiff for removal based
on Plaintiff’s “unavailability for service because of extended
medical leaves” and “solely based on his continued non-availability
to provide the leadership necessary for a contributing member of
the medical staff leadership group.” (Id. at 15-16.) Bryan’s
statements regarding Plaintiff’s absenteeism or non-availability do
not reflect any bias against Plaintiff for his PCC whistleblowing.
Taken together, Plaintiff’s prior raising of PCC concerns
without apparent retaliation; his numerous professed complaints
apart from PCCs; the context in which Byran’s communications to
Plaintiff regarding the loss of his chairmanship arose; and
Plaintiff’s contention that his removal from his chairmanship and
pay cut are attributable to his absence from work, all lead to the
conclusion that Plaintiff has failed to establish that no
reasonable trier of fact could find other than for him on the issue

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that he was removed from his chairmanship because he made protected
disclosures about PCCs. Accordingly, Plaintiff is not entitled to
summary judgment.
With respect to Defendants’ motion, the evidence that
Plaintiff relies on to establish his PCC whistleblowing claim is
the fact the JCC removal decision in July 2006 occurred within a
couple of months after Plaintiff’s April 2006 e-mail to Bryan.
Apart from this, Plaintiff has not pointed to any evidence which
supports his theory that his PCC whistleblowing was a motivating
reason behind his removal from the chairmanship. Even assuming
Plaintiff’s evidence is sufficient to create a prima facie case,
Plaintiff’s extended absenteeism or non-availability provided a
non-retaliatory reason for his removal from the chairmanship (i.e.,
a reason other than alleged protected whistleblowing). The burden
then shifts to Plaintiff to demonstrate pretext. With respect to
his FMLA interference claim, Plaintiff argues that some of his
absenteeism prompted the removal. Moreover, he argues that he was
forced to take full-time leave so that he would “burn up” his leave
entitlements, and then his leave was used against him in the
removal decision. (Doc. 275 at 6.) Plaintiff has not shown that
his non-availability was merely a pretext for PCC whistleblowing
retaliation. Summary judgment in favor of Defendants is warranted
on this claim.
With respect to the administrative leave and non-renewal of
Plaintiff’s contract, Plaintiff has failed to create a prima facie
case under Labor Code § 1102.5(b). The temporal gap between
Plaintiff’s April 2006 e-mail and his involuntary administrative

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leave in December 2006 and the non-renewal of his contract on or
around October 4, 2007, is too wide to support an inference of
causation. See Cornwell v. Electra Cent. Credit Union, 439 F.3d
1018, 1035 (9th Cir. 2006) (agreeing with the district court and
concluding that an eight month gap between the protected activity
and the employee’s termination “was too great to support an
inference” of causation). Summary judgment in favor of Defendants
is warranted on this claim. 6

It is not entirely clear whether Plaintiff also claims that
6
his full-time FMLA leave, which he was allegedly “forced” to take,
was an adverse employment action taken in retaliation for his PCC
whistleblowing. (See Doc. 272 at 14.) Plaintiff does not dispute
that he was eligible to take full-time FMLA leave, and it is
doubtful whether requiring an employee to take leave to which he is
entitled can be characterized as an adverse employment action. In
any event, to the extent Plaintiff asserts that his full-time FMLA
leave was an adverse employment action taken because of his PCC
whistleblowing, Defendants are entitled to summary judgment on this
claim. According to Plaintiff, he had been raising his PCC
concerns at least since May 2005 and there is no indication that he
was disciplined for doing so. The very same day that Plaintiff
sent his “Compliance With Regulations” e-mail, Bryan drafted a
memorandum summarizing a meeting he had with Plaintiff a few days
earlier. In that memorandum, Bryan acknowledged Plaintiff’s
positive contributions to the department. (Doc. 266 at 141-42.)
Although Plaintiff claims that his “forced” full-time FMLA leave
came closely after his PCC e-mail, he actually argues that what
motivated his “forced” full-time FMLA leave was a desire by
Bryan/County to burn up his FMLA leave allotment more rapidly
(which would provide a non-retaliatory reason for the action, i.e.,
a reason other than to retaliate for protected whistleblowing).
There is no indication that the formal meeting he had with Bryan
and others regarding his medical leave status on April 28, 2006,
had anything to do with Plaintiff’s PCC whistleblowing.
Plaintiff’s doctor’s certification dated April 26, 2006, stated
that Plaintiff was “unable to work full-time and requires part-time
or less to avoid worsening of his serious medical condition.” (Doc.
270 at 6) (emphasis added.) At the meeting on April 28, 2006,
44

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b. Communications To Outside Authorities
Plaintiff contends that around Thanksgiving 2006 he blew the
whistle to outside agencies regarding PCCs (and other issues).
Plaintiff argues that this whistleblowing prompted his involuntary
paid administrative leave (December 7, 2006) and the non-renewal of
his contract (on or around October 4, 2007).
Plaintiff’s retaliation claims based on his PCC-related
outside whistleblowing and alleged adverse employment action in
response thereto, including the paid administrative leave, are
barred as explained in the order on Defendants’ motion for judgment
on the pleadings. Moreover, the temporal gap, almost one year,
between the outside whistleblowing (Thanksgiving 2006) and the non-
renewal of Plaintiff’s employment contract on or around October 4,
2007, is too wide to create an inference that the County did not
renew Plaintiff’s contract because of the PCC whistleblowing.
Summary judgment in favor of Defendants is warranted on this claim.
2. Skull Flaps
Plaintiff argues that he was retaliated against because of his
whistleblowing regarding the storage of patient skull flaps – the
top part of the human skull – in an unlicensed laboratory freezer.

Plaintiff was provided with materials regarding his leave
availability/calculations and it was during that meeting in which
Bryan allegedly told Plaintiff to take full-time leave until his
status was resolved. Plaintiff actually took that full-time leave.
There is no suggestion that during the meeting or afterwards,
Plaintiff voiced an opinion, belief or objection that his full-time
leave was in response to his PCC whistleblowing. Based on the
evidence, Plaintiff has not created a triable issue that his
full-time leave represents an adverse employment action taken in
retaliation for his PCC whistleblowing.
45

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According to Plaintiff, he “reasonably believed the storage of
patient skull caps [or flaps] occurring in an unlicensed laboratory
freezer at KMC violated Health & Safety Code 1635.1.” (Doc. 272 at
18.) Section 1635.1(a) states, “[e]xcept as provided in
subdivision (b), every tissue bank operating in California on or
after July 1, 1992, shall have a current and valid tissue bank
license issued or renewed by the department pursuant to Section
1639.2 or 1639.3.”
Plaintiff points to evidence suggesting that, at times,
between fifteen to twenty skull flaps were being stored in a KMC
freezer and argues that “given the excessive number of skull flaps,
Plaintiff’s suspicion that at least some of the flaps would be
reimplanted into patients in violation of Health & Safety Code
1635.1, was reasonable.” (Doc. 272 at 18.) Without more, evidence
7
that, at times, fifteen to twenty skull flaps were in KMC’s
freezer, which was apparently an unlicensed freezer, does not lead
to the reasonable conclusion that the skull flaps were destined to
be re-implanted into patients. Dr. Charles Joseph Wrobel, M.D., a
neurosurgeon, testified that he saves skull flaps in the KMC
freezer so that he can use them to make a template for a patient,
i.e, so that he can “mold a piece of titanium mesh to the right
specifications” and later implant the “titanium mesh” (not the
skull flap) into the patient. (Wrobel Dep. 18:16-17, 40:13-22.)
Despite his professed concern for skull flap storage, Plaintiff

Plaintiff obviously interprets § 1635.1 as requiring a
7
license whenever tissue is stored for later re-implantation into
a patient.

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does not point to any evidence that, during his employment, he
asked anyone at KMC for the reason why skull flaps were being
stored in the freezer or otherwise investigated where stored skull
flaps eventually ended up. Even assuming Plaintiff reasonably
believed that KMC had an unlicensed freezer and that some of the
stored skull flaps were being re-implanted into patients,
Plaintiff’s retaliation claim does not survive.
Plaintiff’s claims based on his skull flap-related outside
whistleblowing and alleged adverse employment action in response
thereto, including the paid administrative leave, are barred as
explained in the order on Defendants’ motion for judgment on the
pleadings. Moreover, the temporal gap between the outside
whistleblowing (Thanksgiving 2006) and the non-renewal of
Plaintiff’s employment contract on or around October 4, 2007, is
too wide to create an inference that the County did not renew his
contract because of the skull flap whistleblowing.
For the foregoing reasons, summary judgment in favor
Defendants on Plaintiff’s retaliation claims under § 1102.5(b) is
GRANTED.
FMLA8
C.
The FMLA creates two “interrelated substantive rights for
employees” of covered employers. Xin Liu v. Amway Corp., 347 F.3d
1125, 1132 (9th Cir. 2003). First, an employee has the right to
take up to twelve weeks of leaves during any twelve-month period
for reasons specified by statute. 29 U.S.C. § 2612(a). Second, an

There is no dispute that the County is an employer subject
8
to the FMLA/CFRA.

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employee who takes FMLA leave has the right, upon return from
leave, to be restored to his or her original position or to an
equivalent position with equivalent benefits, pay, and other terms
and conditions of employment. § 2614(a). To protect these rights
and the exercise of them, the FMLA prohibits certain acts. See §
2615. In pertinent part, § 2615(a)(1) makes it unlawful for an
employer “to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided under this subchapter.”
Plaintiff has asserted two claims arising under § 2615(a)(1),
and they are: (i) that his taking of FMLA leave was counted as a
negative factor in the County’s decision to demote him, cut his
pay, and to not renew his contract; and (ii) that his rights under
the FMLA were interfered with when Bryan “forced him to take full-
time ‘personal necessity leave’ under the County’s leave policy”
instead of permitting Plaintiff to continue on a reduced leave
schedule. (Doc. 272 at 17-18.)
1. FMLA leave as a negative factor
Under the FMLA, it is unlawful for an employer to “‘use the
taking of FMLA leave as a negative factor in employment actions,
such as hiring, promotions or disciplinary actions.’” Bachelder v.
Am. W. Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir. 2001) (quoting
29 C.F.R. § 825.220©). Under Ninth Circuit case law, if an
employer uses an employee’s taking of FMLA leave as a “negative
factor” in making “adverse employment decisions,” including hiring,
promotions or disciplinary actions, the employer interferes with
the employee’s exercise of FMLA rights in violation of §
2615(a)(1). Id. at 1122-23; see also Liu, 347 F.3d at 1133 n.7 (“In

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this circuit . . . we have clearly determined that § 2615(a)(2)
applies only to employees who oppose employer practices made
unlawful by FMLA, whereas, § 2615(a)(1) applies to employees who
simply take FMLA leave and as a consequence are subjected to
unlawful actions by the employer.”) (emphasis omitted); Foraker v.
Apollo Group, Inc., 427 F. Supp. 2d 936, 940 (D. Ariz. 2006).
To establish this type of interference claim under the FMLA,
a plaintiff must show that (1) he took “FMLA-protected leave”; and
(2) it constituted “a negative factor” in an adverse employment
decision. Bachelder, 259 F.3d at 1125. A plaintiff “can prove
this claim, as one might any ordinary statutory claim, by using
either direct or circumstantial evidence, or both. No scheme
shifting the burden of production back and forth is required.” Id.
(internal citations omitted).
Defendants represent, and Plaintiff does not challenge, that
Plaintiff used up all of his FMLA leave by June 14, 2006. (Doc. 291
at 2.) After that, Plaintiff went on non-FMLA Personal Necessity
Leave. The issue remains as to whether Plaintiff’s FMLA leave was
used as a negative factor in an adverse employment decision.
a. Plaintiff’s Motion
Plaintiff argues that he has “direct evidence” that his FMLA
medical leave was a negative factor in the decision to remove him
from his chairmanship and then cut his pay. Plaintiff relies on
Bryan’s recommendation letter to the JCC and Defendants’ admission
in a Scheduling Conference Order.
Bryan’s recommendation letter, dated July 10, 2006, to the JCC
began as follows:

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Under the provisions of paragraph 9.7-4 of the Medical
Staff Bylaws (enclosure 1) I recommend that Dr. David
Jadwin be removed as Chairman, Department of Pathology.
This recommendation is based on Dr. Jadwin’s
unavailability for service because of extended medical
leaves for non-work related ailments.
(Doc. 266-2 at 31.) Bryan then gave a chronology of events,
including Plaintiff’s absences from work while he was on FMLA leave
from December 15, 2006 to March 16, 2006, and Plaintiff’s full-time
FMLA leave starting in May 2006. In the last event in his
chronology, Bryan stated:
Since the middle of November 2005 Dr. Jadwin has worked
only 32% of the hours normally expected of a full time
pathologist (enclosure 9). Since my notice of June 14,
2006 Dr. Jadwin has made no attempt to contact me
concerning my decision to relieve him of his chairman
duties nor has he indicated any desire to negotiate a new
contract.
(Id at 32.) In closing, Bryan wrote:
This recommendation to rescind Dr. Jadwin’s appointment
as Chairman, Department of Pathology is based solely on
his continued non-availability to provide the leadership
necessary for a contributing member of the medical staff
leadership group. KMC must have its key personnel
available, and Dr. Jadwin has provided no indication that
he is committed to return to work or resume his duties as
chairman. Other than his latest written communication
requesting an extension of medical leave, Dr. Jadwin has
made no attempt in the last two months to contact me
concerning his employment status or how the Department of
Pathology should be managed during his extended absence.
I therefore request that the Joint Conference Committee
act pursuant to paragraph 9.7-4 of the Medical Staff
Bylaws and, by majority vote, endorse my recommendation
to rescind Dr. Jadwin’s appointment as Chairman,
Department of Pathology.
(Id.) In a scheduling Conference Order, Defendants admitted:
19. 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.
20. Plaintiff was removed from his position as Chair of

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the Pathology Department in part because he was neither
working full-time nor present in the hospital.
(Doc. 29 at 8-9.) Given Bryan’s written recommendation, and in
light of the scheduling order, it is clear that a reasonable trier
of fact could easily conclude that Plaintiff’s taking of FMLA
protected leave was a negative factor in Bryan’s recommendation
and, because his recommendation was adopted by the JCC, a negative
factor in the JCC’s vote as well. Plaintiff’s burden as the moving
party, however, does not stop there. Plaintiff must show that no
reasonable trier of fact could find other than for him on the issue
that his taking of FMLA leave constituted a negative factor in the
decision to remove him from his chair position. Plaintiff has not
met his burden.
In his deposition, Bryan explained his recommendation to the

JCC:

A. Dr. Jadwin’s nonavailability to be present was the
primary contributing factor to my recommendation to
remove his as chairman.
Q. Okay.
A. And evidenced by his request towards the end of his
eligible medical leave to, again, extend it for another
medical problem.
So he had fully-exhausted his rights and the institution
obligation to grant him medical leave.
Q. Okay. So to get back to my question, was Dr. Jadwin’s
medical leave a negative factor in the decision to remove
Dr. Jadwin from chairmanship?
. . .
A. No, the medical leave, per say, was not the basis of
my recommendation to remove him as Chair.
It was his non-availability, his non-presence on the
institution – at the institution – that would allow him

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to effectively carry out his duties.
Whether it was medical leave or whatever, he had
exhausted his time for over an eight-month period. Not
just six months, for eight months, and he had further
requested and stated his inability to return to work.
That is the basis of it.
(Brian Dep. 280:21-281:20) (emphasis added.)
Bryan’s recommendation letter mentions absences other than
those protected by the FMLA, namely Plaintiff’s Personal Necessity
Leave starting in June 2006. Plaintiff does not challenge
Defendants’ assertion that Plaintiff had exhausted his FMLA medical
leave by the time he went on Personal Necessity Leave in June 2006,
and there is no dispute that Plaintiff took that leave. Bryan’s
recommendation letter stressed that the decision was based “solely
on [Plaintiff’s] continued non-availability to provide the
leadership necessary for a contributing member of the medical staff
leadership group. KMC must have its key personnel available, and
Dr. Jadwin has provided no indication that he is committed to
return to work or resume his duties as chairman.” (Doc. 266-2 at
32.)

Viewing the evidence in a light most favorable to the County
(the non-moving party), one reasonable interpretation of the
evidence is that Bryan was recommending Plaintiff for removal from
his chairmanship because after Plaintiff’s FMLA leave, Plaintiff
continued to be unavailable and, at the same time, provided no
indication that he was committed to return to work or was then
interested in performing his chairman duties. The JCC could,
9

Plaintiff cites to language in Bachelder where the court
9
discussed witness testimony indicating that the “likely reason” for
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without violating the FMLA, use Plaintiff’s absence from work after
his FMLA leave and any lack of evident commitment to return to work
or take on his chairman duties, as the basis for their decision.
See Bachelder, 259 F.3d at 1125 (recognizing the legitimacy of
taking adverse employment action based on absences not protected by
the FMLA); Liston v. Nevada ex rel. Dep’t of Bus. & Indus., No. 07-
16312, 2009 WL 413752, at *1 (9th Cir. Feb. 19, 2009) (“Although an
employer may not use FMLA leave as a negative factor in employment
decisions, there is no cause of action under the FMLA if the
termination results from absences . . . not protected by the . . .
[FMLA].”) (alteration in original) (internal citation omitted).10
While basing a decision on such considerations may not have been
fair – at the time of Bryan’s recommendation, Plaintiff was on an

the plaintiff’s termination was “because of her continued
unavailability in 1996.” 259 F.3d at 1131 n.22 (internal quotation
marks omitted). The Ninth Circuit viewed the testimony as evidence
supporting the plaintiff’s FMLA interference claim. In Bachelder
there was no question that plaintiff’s “continued unavailability”
referred to her unavailability when she was on an FMLA leave of
absence. Here, by contrast, one reasonable interpretation of
Bryan’s recommendation is that Plaintiff’s “continued non-
availability” referred to his post-FMLA unavailability, i.e., his
continued non-availability after his FMLA leave had expired.
Bryan’s mention of Plaintiff’s FMLA leaves of absence was
historically accurate and does not, by itself, demonstrate
prohibited bias. Even though Bryan’s statements in his
recommendation could be construed differently and in a manner which
suggests prohibited bias, this does not alter the equation. When
considering Plaintiff’s motion, the court must construe the
evidence, and draw all reasonable inferences, in favor of the non-
moving party.
District courts are not prohibited from citing unpublished
10
opinions of the Ninth Circuit issued on or after January 1, 2007.
See Fed. R. App. P. 32.1(a); Ninth Circuit Rule 36-3(b).
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approved Personal Necessity Leave – whether the JCC’s decision was
unfair or imprudent is not the inquiry. See Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (recognizing
that simply because the reason for the adverse action is “foolish
or trivial or even baseless” does not create liability where the
reason is not unlawful); Maynard v. City of San Jose, 37 F.3d 1396,
1405 (9th Cir. 1994) (“We do not suggest that the statements [the
plaintiff] attributes to the defendants were proper or justified.
We note only that the evidence presented by [the plaintiff]
indicates the defendants’ hostility towards him was not kindled by
racial prejudice.”); Green v. Maricopa County Cmty Coll. Sch.
Dist., 265 F. Supp. 2d 1110, 1128 (D. Ariz. 2003) (noting that
whether the reason for an adverse employment action was “accurate,
wise, or well-considered” is not the inquiry) (internal quotation
marks omitted); Slatkin v. Univ. of Redlands, 88 Cal. App. 4th
1147, 1157 (2001) (recognizing that even a “personal grudge can
constitute a legitimate, nondiscriminatory reason for an adverse
employment decision”)(internal quotation marks omitted).
The minutes from the JCC vote do not actually specify whether
the voting members considered Plaintiff’s FMLA leave as a negative
factor or whether it was Plaintiff’s post-FMLA unavailability and
lack of evident commitment that prompted their action:
The committee was advised that, under the medical staff
bylaws, a department chair, specifically Dr. Jadwin, may
be removed, with or without cause, upon the
recommendation of the CEO of the hospital and a majority
vote of the voting members of the JCC. Mr. Bryan was
asked about what recourse, if any, Dr. Jadwin has if he
is removed as department chair. The committee was
advised that the bylaws do not afford a department chair
any due process rights once he or she is removed from the

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position. Mr. Bryan emphasized the importance of having
a department chair who is available to manage the
department and engage with the medical staff and hospital
administration at all times. Mr. Bryan then recommended
to the committee that Dr. Jadwin be removed as chair of
the department of pathology because of his continued
unavailability and lack of available leadership. The
committee voted on Mr. Bryan’s recommendation; there were
five affirmative votes and two abstentions. Based on
this vote, Dr. Jadwin was removed as chair of the
department of pathology effective July 10, 2006. Mr.
Bryan collected the packets containing information about
Dr. Jadwin at the end of the discussion and vote.
Plaintiff has not pointed to deposition testimony or other evidence
that affirmatively demonstrates that the majority voters used
Plaintiff’s taking of FMLA leave as a negative factor in their
vote.
Plaintiff has not met his burden of proving that no reasonable
trier of fact could find other than for him on the issue that his
FMLA protected leave was, in fact, a negative factor in the
decision to remove him from his chair position.
With respect to his pay cut via the amendment to his contract,
Plaintiff argues that “because a portion of a KMC department
chair’s base pay is tied to his chairmanship, Plaintiff’s Demotion
made the Paycut a foregone conclusion; hence, the JCC vote to
demote Plaintiff was effectively a vote to reduce his Base Pay as
well.” (Doc. 272 at 16.) According to Plaintiff, because his
taking of FMLA was a negative factor in the JCC’s vote to demote
him, it necessarily follows that the his taking of FMLA leave was
a negative factor in the pay cut decision. As discussed above,
however, Plaintiff has not met his burden, as the moving party, to
establish that no reasonable trier of fact could find other than

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for him on the first issue. He also has failed to meet his burden
on the second issue, i.e., that his taking of FMLA leave was a
negative factor in the pay cut decision.
Finally, Plaintiff argues that he has direct evidence that his
taking of FMLA leave was a negative factor in the decision not to
renew his contract. He cites to the testimony of Ray Watson, then
Chair of the Board of Supervisors and a member of the JCC:
Q.
So the question is: You’ve mentioned that for the
nonrenewal one of the reasons was that Dr. Jadwin wasn’t
available for work; is that correct or –
A.
My understanding was that he had – he had been on
medical leave, family leave, and had requested even more
leave, and that for that reason and the fact that he was
suing us, that we decided not to renew his contract.
(Watson Dep. 113:15-23.) Watson’s testimony does not warrant
summary judgment in favor of Plaintiff.
Viewed in a light most favorable to Defendants, Watson’s
mention of “that reason” can be interpreted as a reference to
Plaintiff’s request for “even more leave” (a singular reference to
the last event in a list) after Plaintiff had exhausted his FMLA
medical leave. As discussed above, once an employee exhausts his
FMLA leave, the FMLA does not prohibit an employer from basing
adverse employment decisions on subsequent absences. Plaintiff
11
has not shown that no reasonable trier of fact could find other
than for him on the issue of whether his FMLA leave was a negative

Simply because an employee has exhausted his or her FMLA
11
leave does not give the employer the right to then take adverse
action against the employee based on the protected FMLA leave
already taken.

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factor in the decision not to renew his contract.
b.
Defendants’ Motion
In their motion, Defendants argue that Plaintiff’s removal
from the chairmanship was based on legitimate business reasons and
there is no evidence that Plaintiff’s rights under the FMLA were
violated. Defendants’ arguments are unpersuasive.
As discussed above, in light of Bryan’s recommendation letter
and the JCC vote which adopted his recommendation, and considering
the admission in the scheduling order in Plaintiff’s favor, a
reasonable jury could conclude that Plaintiff’s taking of FMLA was
used as a negative factor in the decision to remove him from his
chairmanship. A triable issue exists as to whether Plaintiff’s
FMLA leave was a negative factor in the decision to remove him from
his chairmanship and it precludes summary judgment in favor of
Defendants.
Alternatively, Defendants argue that Plaintiff was not
entitled to his FMLA leave from December 16, 2005, to March 15,
2006, because Plaintiff did not timely notify the County of his
leave request. For several reasons, this argument is unpersuasive.
First, this argument flatly contradicts the County’s position
repeatedly relied on in its motion for summary judgment that
Plaintiff exhausted his FMLA leave entitlements by June 2006. The
County cannot have it both ways: it cannot argue that Plaintiff
exhausted his FMLA leave and then argue that he was never entitled
to FMLA leave in the first instance. If Plaintiff was not so
entitled, then he should not have exhausted his FMLA leave and he
would have theoretically been entitled to more FMLA leave at a

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subsequent time.
Second, this argument does not eviscerate Plaintiff’s FMLA
interference claim. 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.
In fact, documentation suggests that Plaintiff was on FMLA leave at
minimum through the “06-09” pay period, which spanned from April
29, 2006 through May 12, 2006. (See Lee Decl., Ex. 18 at 0001527.)
Defendants’ brief concedes that “Plaintiff exhausted his 12 weeks
leave [under the FMLA] by June 14, 2006.” (Doc. 291 at 2.)
Defendants further represent that “[a]ll parties agree Plaintiff
completely exhausted his twelve weeks of FMLA and CFRA leave by
June, 2006.” (Doc. 253 at 8.) It is indisputable that Plaintiff
had not exhausted his FMLA leave allotment by the end of his first
leave of absence on March 15, 2006. Plaintiff subsequently went on
a second full-time FMLA leave. Bryan’s recommendation letter to
the JCC discusses this second leave. (Doc. 266-2 at 32.) Based on
the same evidence above – Bryan’s recommendation letter, the JCC
vote, and the admission in the scheduling order – a triable issue
exists as to whether Plaintiff’s FMLA leave, including his second
FMLA leave, was one negative factor in the decision to remove
Plaintiff from his chairmanship position.
Third, even assuming Plaintiff’s notification of his need for
his first FMLA leave was untimely, the County arguably waived any

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objection to its timeliness. An employer can waive an employee’s
FMLA notice requirements. See 29 CFR § 825.304; see also 29 CFR §
825.302(g); Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 554
(6th Cir. 2006) (recognizing that an employer can waive an argument
as to the adequacy or timeliness of the employee’s notice, stating
“even if [the plaintiff’s] notice had been late, [the employer’s]
only legal recourse would have been either to waive the notice
requirement or to delay her leave”); Bailey v. Miltope Corp., 513
F. Supp. 2d 1232, 1240 (M.D. Ala. 2007) (recognizing possibility of
waiver); Rodriguez v. Ford Motor Co., 382 F. Supp. 2d 928, 934
(E.D. Mich. 2005) (same). Generally speaking, waiver is the
“voluntary or intentional relinquishment of a known right.” Hecht
v. Harris, Upham & Co., 430 F.2d 1202, 1208 (9th Cir. 1970)
(internal quotation marks omitted). 12
The County explicitly, in writing, approved Plaintiff’s first
“FMLA” leave request. (Doc. 266-2 at 65.) After Plaintiff had
taken approved FMLA leave, on April 28, 2006, in a meeting between
Plaintiff, Bryan, Steve O’Connor from HR, and Karen Barnes (the
County’s counsel), Bryan provided Plaintiff with a summary of
Plaintiff’s medical leave history. This history specifically
stated that Plaintiff’s “Intermittent LOA began 12/16/05” and the
he was “entitled to 480 hrs (FMLA intermittent leave rule).” (Doc.
266 at 64) (emphasis added.) This medical leave history ended with

The County does not (nor could it seriously) contend that,
12
at the time of Plaintiff’s purported late notification, the County
had no knowledge of its right to question the timeliness or
adequacy of Plaintiff’s notification and to take appropriate
action.

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a calculation of how many hours (of the 480) Plaintiff had left
after considering his usage during pay periods spanning from
December 2005 to March 2006, i.e., pay period “05-25,” which covers
12/10/05 to 12/23/05, to pay period “06-07,” which covers 04/01/06
to 04/14/06. (Id.; see also Lee Decl., Ex. 18 at 0001527.)
Plaintiff was specifically informed that, based on his medical
history, he had “137 hours available to be taken before [he] hit
the 480-hour limitation.” (Doc. 266-2 at 62.). As Bryan recounted
in his recommendation letter to the JCC, “Dr. Jadwin was informed
. . . that, at his rate of use, he had only 137 hours of medical
leave left available which would take him through June 16, 2006.”
(Doc. 266 at 32.) Thus, without question, Plaintiff’s “FMLA” leave
of absence between December 2005 and March 2006 was not only
explicitly approved in writing, it was also counted against his
FMLA allotment. By explicitly approving of Plaintiff’s requested
FMLA leave and counting it against his accrued FMLA leave hours, at
minimum, there is a triable issue as to whether the County waived
its belated challenge to the timeliness of Plaintiff’s notice.
Salgado v. CDW Computer Ctrs., Inc., No. 97 C 1975, 1998 WL 60779,
at *6 (N.D. Ill. Feb. 5, 1998) (“Regardless of whether the request
was timely or not, defendant granted permission to take two weeks’
leave. Therefore, defendant appears to have waived any possible
violation of the initial notice requirements.”). 13

Court have also concluded that when an employer grants FMLA
13
leave, estoppel can bar an employer from later challenging the
employee’s eligibility for that leave. See, e.g., Minard v. ITC
Deltacom Commc’ns, Inc., 447 F.3d 352, 359 (5th Cir. 2006);
Woodford v. Cmty. Action of Greene County, Inc., 268 F.3d 51, 57
60

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Fourth, in response to Plaintiff’s separate statement of
undisputed material facts, Defendants “admit” that “Plaintiff
requested and took reduced work schedule CFRA medical leave from
December 16, 2005 to at least March 15, 2006.” (Doc. 278 at 23.)
There is no reason why this admission does not apply to Plaintiff’s
“FMLA” leave as well (especially given that Plaintiff’s approved
leave request form specifically stated “FMLA” leave).
For these reasons, Defendants are not entitled to summary
judgment on the ground that, because Plaintiff’s notice was
untimely, his leave of absence from December 16, 2005, to March 15,
2006, was unprotected under the FMLA. 14

(2nd Cir. 2001); Sutherland v. Goodyear Tire & Rubber Co., 446 F.
Supp. 2d 1203, 1210 (D. Kan. 2006); Allen v. Fort Wayne Foundry
Corp., No. 1:04-cv-60, 2005 WL 2347266, at *9 (N.D. Ind. Sept. 26,
2005) (concluding, in a case involving an employee who was
terminated for absenteeism, that equitable estoppel barred the
employer’s argument as to the plaintiff’s ineligibility for FMLA
leave where the employer had granted, in writing, intermittent FMLA
leave and permitting the employer to later disclaim eligibility in
litigation “would theoretically . . . subject [the employee] to
termination . . . for the twenty-four absences [the employer] told
[him] were FMLA-excused.”).
Plaintiff argues that, given his time-sheets in December
14
2005, he did not, in actuality, go on leave at that time.
Plaintiff argues that his time-sheets prove that he “was working
full-time from December 16, 2005 to January 9, 2005, taking 4 sick
days off during the Christmas and New Year holidays, upon
conclusion of which Plaintiff timely gave Bryan reasonable notice
of his need for medical leave.” (Doc. 288 at 5) (citation omitted.)
Plaintiff claims that HR just plucked the December beginning date
off of Plaintiff’s FMLA documentation. In light of the court’s
ruling that the County has arguably waived any contention that
Plaintiff failed to give timely notice of his leave, the court need
not consider any additional arguments. In any event, Plaintiff’s
additional arguments only create confusion, leaving further triable
61

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Defendants are also not entitled to summary judgment on the
ground that no triable issue remains as to whether Plaintiff’s
taking of FMLA leave was a negative factor in the decision not to
renew Plaintiff’s employment contract. Watson’s testimony is the
only evidence Plaintiff relies upon to establish that his FMLA
leave was a negative factor in the decision not to renew his
contract. Defendants argue that Watson was not a decision-maker
and his testimony as to the reasons for the non-renewal is nothing
more than “after-the-fact speculation.” (Doc. 276 at 25.) At his
deposition, Watson testified in pertinent part as follows:
A. I recall that his contract was – was expiring. I
couldn’t tell you when, but I – I – I am aware that –
that it was not renewed.
Q. Okay. How did you become aware of this nonrenewal?
A. That would have been part of the general discussions
about his not being present to do his job.
. . . .
Q. Sure. Okay. And do you recall who was part – who was
in that discussion on the nonrenewal of Dr. Jadwin’s
contract?
A. The only – the only time any of these things were
discussed were in joint conference committee meetings,
and there may have been a time when Mr. Bryan appeared in
closed session with the board.
Q. Are you aware that Dr. – and what was the final
resolution of this discussion regarding nonrenewal of Dr.
Jadwin’s contract? Was there a decision, in fact, not to
renew his contract then?
A. I don’t recall a specific vote being taken, although
I imagine it was. I can tell you that I would have
supported that because I didn’t feel that he was doing
his job.

issues.

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Q. Okay. So you don’t recall a specific vote, but there
was a decision not to renew his contract then?
A. Yes.
. . .
Q. Okay. What about the nonrenewal? I mean, do you
recall Dr. Jadwin’s physical absence being a reason for
his nonrenewal of his contract?
A. Well, it could be that. It could be the fact that I
think by then he was – probably was suing us. So why
would you want to establish a contractual relationship
with somebody who’s suing you.
Q. Okay. Well, he was also suing you at the time of his
removal or actually at the time of his – no, he wasn’t.
He wasn’t okay. But I mean, you say why would you
establish a contractual relationship with someone who’s
suing you, right?
A. Right.
Q. Was that — does that mean – are you just speculating
now, just guessing, or was that a consideration for his
nonrenewal.
A. Well, I remember it being discussed.
Q. Do you recall who was at the discussion?
A. It would have been in one of the joint conference –
one or more of the joint conference committee meetings
along with all the other discussions about him.
. . . .
Q. Okay. But you recall it [the non-renewal] being
discussed at the JCC meetings.
A. Yes.
. . . .
Q. So the question is: You’ve mentioned that for the
nonrenewal one of the reasons was that Dr. Jadwin wasn’t
available for work; is that correct or –
A. My understanding was that he had – he had been on
medical leave, family leave, and had requested even more
leave, and that for that reason and the fact that he was
suing us, that we decided not to renew his contract.

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Q. Okay. When you say “we,” this is a joint conference
committee meeting, correct?
A. And it – it probably came up at a closed session of
the board of supervisors.
Q. As well as a closed session of the JCC?
A. Yes.
(Watson Dep. 28:9-16; 29:19-30:13; 110:12-111:10; 111:15-17;
113:15-111:4.) In a declaration submitted in support of
Defendants’ motion for summary judgment, Watson explains and
directly contradicts his prior sworn deposition testimony:
2. On August 25, 2008, Dr. Jadwin’s attorney took my
deposition. He asked me several times what I knew about
the circumstances of Dr. Jadwin’s ‘termination.’ I told
him I did not recall any discussions about that. Later in
my deposition, he asked me about the expiration of Dr.
Jadwin’s contract on October 4, 2007. I told him I had
learned Dr. Jadwin’s contract was expiring in general
discussions about Dr. Jadwin’s absence from the hospital.
I told him I could not recall when those discussions had
occurred. He asked me if there had been a decision to not
renew Dr. Jadwin’s contract. I told him that I did not
recall the Joint Conference Committee ever voting on that
but I said I ‘imagine it was.’ He then asked me if there
was a decision not to renew his contract and I replied,
‘Yes.’
3. My response was an unfortunate guess. Neither the
Joint Conference Committee nor the Board of Supervisors
ever made a decision to not renew Dr. Jadwin’s contract.
I have no recollection of any such decision. As a county
supervisor, I am accustomed to making decisions and I
assumed, if Dr. Jadwin’s contract was not renewed, there
had been a decision to not renew it; however, there was
no such decision.
4. The Board of Supervisors never made any decisions
regarding renewing or not renewing Dr. Jadwin’s
employment agreement. I do not know the circumstances
under which Dr. Jadwin’s employment agreement expired.
There are several problems with Watson’s post-deposition affidavit.
First, Watson’s statement that “there was no such decision”

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and “neither the JCC nor the Board of Supervisors ever made a
decision” is wholly conclusory. Second, Watson’s subsequent
contradictory affidavit does not eliminate his prior inconsistent
sworn testimony. “Self-contradiction by the moving party’s
witnesses may of course create a genuine issue of material fact
precluding summary judgment.” Crockett v. Abraham, 284 F.3d 131,
133 (D.C. Cir. 2002). When a witness contradicts himself on a
material fact the district court cannot determine which version of
the events the ultimate trier of fact will believe. See Peckham v.
Ronrico Corp., 171 F.2d 653, 658 (1st Cir. 1948). Third, although
Watson asserts that “no such decision was made” the County actually
admitted in its response to Plaintiff’s statement of undisputed
material facts that a decision was made not to renew Plaintiff’s
contract. (Doc. 278 at 7.) Not only does Watson contradict
himself, the County also contradicts Watson’s affidavit. Fourth,
in his affidavit, Watson does not retract his statement that
Plaintiff’s medical leave, and his request for even more leave, was
discussed or “came up” at a meeting. The fact that Plaintiff’s
medical leave came up in a discussion among a County decision-
making body supports Plaintiff’s position.
Wilson’s inconsistent testimony creates a triable issue of
fact. When construed in a light most favorable to Plaintiff,
Wilson’s testimony suggests that Plaintiff’s FMLA leave was one
negative factor that influenced the admitted decision not to renew
Plaintiff’s contract. Although Watson’s “understanding” may be
based partly on statements from members of the JCC and/or the Board
of Supervisors, at a minimum, the Board members’ statements

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(regardless of their truth) can be used to establish the state of
mind (illicit motive or improper purpose) of those members.15
2.
“Forced” Personal Necessity Leave
An employer interferes with an employee’s FMLA rights by
“‘refusing to authorize FMLA leave’” and “‘discouraging an employee
from using such leave.’” Liu, 347 F.3d at 1134 (quoting 29 C.F.R.
§ 825.220). An employer may also interfere with an employee’s
rights under the FMLA by mislabeling an employee’s leave as
“personal leave” or something else when, in reality, the leave
qualified as FMLA leave. Id. at 1134-35. When an employer fails
to properly deem a leave of absence as an FMLA leave, the employee
may remain “subject to the control and discretion of [the
employer]” in a manner which the employee would not have been had
the leave been appropriately deemed as FMLA leave. Id. at 1135.
Plaintiff appears to raise two FMLA interference claims. On
one hand, Plaintiff argues that Dr. Riskin certified that Plaintiff
could work part-time. Yet, in Plaintiff’s meeting with Bryan on
April 28, 2006, “Bryan denied Plaintiff reduced work schedule
medical leave and forced him to take full-time ‘personal necessity’
leave under the County’s leave policy.” (Doc. 272 at 17-18.) This
suggests that the County denied Plaintiff any FMLA leave whatsoever
and, instead, forced him to take Personal Necessity Leave. If this
is Plaintiff’s contention, it does not make sense. Documentation

Defendants also argue that the non-renewal of Plaintiff’s
15
contract did not constitute an adverse employment action. This
argument is addressed in connection with Plaintiff’s FMLA
retaliation claim.

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in the record suggests that Plaintiff was on FMLA leave at minimum
through the “06-09” pay period, which spanned from April 29, 2006
through May 12, 2006. In its briefing, the County submits that
“Plaintiff exhausted his 12 weeks leave [under the FMLA] by June
14, 2006.” (Doc. 291 at 2.) The County further represent that
“[a]ll parties agree Plaintiff completely exhausted his twelve
weeks of FMLA and CFRA leave by June, 2006.” (Doc. 253 at 8.) It
appears Plaintiff himself recognized that, by the time he filed a
Government Claims Act claim with the County on July 3, 2006, he had
taken FMLA/CFRA leave through June 14, 2006. (Doc. 241, Ex. 2.)16
To the extent Plaintiff claims that Defendants did not provide him
any FMLA leave and forced him to take Personal Necessity Leave
instead, Plaintiff’s motion for summary judgment is DENIED.
At another place in his briefing, Plaintiff argues that even
though he was entitled to continue his part-time FMLA leave, Bryan
forced Plaintiff to take “full-time medical leave in April 2006” to
“burn up Plaintiff’s medical leave entitlement” and this violated
the FMLA (and the CFRA). (Doc. 275 at 2). In other words, he was
17
denied his right to take FMLA leave on a reduced schedule. Based on

Although Plaintiff only mentioned “CFRA” leave in his
16
Government Claims Act claim, there is no reason to believe this
statement does not apply equally to FMLA leave.
Both “intermittent” leave and leave on a “reduced leave
17
schedule” are recognized forms of leave under the FMLA. See 29
U.S.C. § 2612(b)(1)-(2). “A reduced leave schedule is a leave
schedule that reduces an employee’s usual number of working hours
per workweek, or hours per workday. A reduced leave schedule is a
change in the employee’s schedule for a period of time, normally
from full-time to part-time.” 29 C.F.R. § 825.202.
67

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the record evidence, this argument is more plausible.
To establish this type of interference claim, Plaintiff must
show: (1) he is an eligible employee; (2) his employer is an
employer under the FMLA; (3) he was entitled to take the FMLA leave
at issue; (4) he gave adequate notice of his intention to take the
leave; and (5) the defendant denied him, or actually discouraged
him from taking, such leave. See Price v. Multnomah County, 132 F.
Supp. 2d 1290, 1297 (D. Or. 2007); see also Hurley v. Pechiney
Plastic Packaging, Inc., 2006 WL 708656, No. C 05-05028 JSW, at *3
(N.D. Cal. Mar. 16, 2006). “A violation of the FMLA simply requires
that the employer deny the employee’s entitlement to FMLA leave.”
Liu, 347 F.3d at 1135.
Elements (1)-(4) are indisputable. After Plaintiff submitted
his FMLA documentation for an extension on his leave (April 26,
2006), Plaintiff had his meeting with Bryan and others (April 28,
2006) and was then given full-time FMLA leave starting in May 2006.
With respect to the fifth element, Defendants did not outright
deny FMLA leave. Plaintiff does not argue that he was not entitled
to full-time FMLA leave. Plaintiff contends that he was entitled
to continue his reduced leave schedule under the FMLA but was
denied that right. It does not appear that the Ninth Circuit has
addressed this precise claim.
The statute provides that it is “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided under this subchapter.” 29 U.S.C. §
2615(a) (emphasis added). Under the FMLA, when a “serious health
condition” of the employee makes the employee “unable to perform

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the functions of the position of such employee,” the employee has
the right to take FMLA leave on an intermittent or reduced leave
schedule” but only if such leave is “medically necessary.” Id. at
2612(a) & (b). To take intermittent leave or leave on a reduced
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leave schedule, “there must be a medical need for leave and it must
be that such medical need can be best accommodated through an
intermittent or reduced leave schedule.” 29 CFR § 825.202(b)
(emphasis added). 19
Plaintiff is not entitled to summary judgment on his claim.
The certification from his doctor stated “[t]his employee is unable
to work full time and requires part-time or less to avoid worsening
of his serious medical condition.” (Doc. 270 at 6.) Viewing the
evidence in a light most favorable to Defendants, this “or less”
statement calls into question whether a reduced leave schedule was
the best accommodation for Plaintiff’s serious health condition.
In addition, under Defendants’ version of the events, Plaintiff was
not forced to take full-time leave. Bryan indicated it would be
preferable to take full-time leave (which Plaintiff does not
dispute he was entitled to take) and Plaintiff took the leave
without protest. In light of the “or less” doctor’s certification,
full-time leave was a reasonable option. Plaintiff has not
demonstrated that no reasonable trier of fact could find other than
for him that he had a right to take leave on a reduced leave

No party seriously disputes that Plaintiff had a ”serious
18
health condition” under the FMLA – depression.
This requirement was previously embodied in 29 C.F.R. §
19
825.117.

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schedule which was interfered with.
Viewing the evidence in a light most favorable to Plaintiff,
Defendant is not entitled to summary judgment on this claim. A
triable issue remains as to whether, in the words of Plaintiff, the
County really “forced” him to take full-time FMLA leave even though
he was entitled to a reduced leave schedule. If Plaintiff can
establish that he was entitled to a reduced leave schedule, and if
the County nonetheless forced him to take full-time FMLA leave
instead, Plaintiff would have been forced to forgo one right he had
under the FMLA. See 29 U.S.C. § 2615(a) (making it “unlawful for
any employer to interfere with, restrain, or deny the exercise of
or the attempt to exercise, any right provided under this
subchapter.”) 29 U.S.C. § 2615(a) (emphasis added); See Sista v.
CDC Ixis North America, Inc., 445 F.3d 161, 175 (2nd Cir. 2006)
(recognizing that while the FMLA says “nothing about an employer’s
ability to ‘force’ an employee to take” FMLA leave, “if the
[plaintiff] were able to demonstrate that such a forced leave
interfered with, restrained, or denied the exercise or attempted
exercise of a right provided under the FMLA, a cause of action
might lie.”); cf. Ragsdale v. Wolverine World Wide, Inc., 535 U.S.
81, 89-90 (2002) (recognizing that an employee might have a viable
interference claim where the employee could take intermittent or
full-time leave; however, because the employer failed to notify the
employee of her rights under the FMLA, the employee unwittingly
takes full-time leave instead of intermittent leave such that she
has “no leave remaining for some future emergency.”). The County
makes no argument that it is permissible under the FMLA for an

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employer to force an employee who is entitled to a reduced leave
schedule to take full-time FMLA leave instead. Accordingly,
summary judgment in favor of the County on this claim is DENIED.
3. Section 2615(b)(1) retaliation claim
The FMLA makes it unlawful for any person to “discharge or in
any other manner discriminate against any individual because such
individual . . . has filed any charge, or has instituted or caused
to be instituted any proceeding, under or related to this
subchapter.” 29 U.S.C. § 2615(b)(1) (emphasis added). To establish
a claim under this section, Plaintiff must show that (i) he engaged
in the protected activity; (ii) he was subject to adverse
employment action; and (iii) this occurred “because” he engaged in
the protected activity. Id.; cf. Trent v. Valley Elec. Ass’n Inc.,
41 F.3d 524, 526 (9th Cir. 1994) (articulating the elements of a
retaliation claim under the “opposition clause” of Title VII, 42
U.S.C. § 2000e-3(a)).
a. Protected Activity
Plaintiff filed the instant lawsuit against Defendants before
his employment contract with the County expired. His original
complaint in this action alleged a cause of action under § 2615 of
the FMLA. This conduct constituted protected activity under §
2615(b)(1).
Applying the plain language of the statute, a federal lawsuit,
such as the one Plaintiff instituted, is a “proceeding.” See
Merriam
Webster’s
Online
Dictionary
http://wwww.merriam-
webster.com/dictionary/proceeding (defining “proceeding” as a
“legal action”) (last visited Apr. 2, 2009); see also Black’s Law

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Dictionary 1221, 1512 (7th ed. 1999) (defining “proceeding” as,
among other things,”[a]ny procedural means for seeking redress from
a tribunal or agency”; and defining “tribunal” as “[a] court or
other adjudicatory body”). Any proceeding under or related to
“this subchapter” is a reference to subchapter “I” which embraces
§ 2615 of the FMLA. Accordingly, instituting a federal lawsuit
that contains an FMLA claim under § 2615 qualifies as “instituting
any proceeding, under or related to this subchapter.”
b. Adverse Employment Action And Causality
With respect to the second element, Plaintiff argues that his
contract was not renewed because he instituted his federal lawsuit
which contained an FMLA claim. Defendants counter with several
arguments.
First, Defendants argue that the failure to renew a contract
that expired on its own terms does not amount to an adverse
employment action. This argument is unpersuasive. Numerous courts
have recognized, whether explicitly or implicitly, that the non-
renewal of a contract can qualify as an adverse employment action.
See Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315,
320 (3rd. Cir. 2008) (“The failure to renew an employment
arrangement, whether at-will or for a limited period of time, is an
employment action, and an employer violates Title VII if it takes
an adverse employment action for a reason prohibited by Title VII,
such as religious discrimination.”); Mateu-Anderegg v. Sch. Dist.
Of Whitefish Bay, 304 F.3d 618, 625 (7th Cir. 2002) (concluding
that it is “undisputed that . . . [the plaintiff] suffered an
adverse employment action” by virtue of the non-renewal of her

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employment contract); Kassaye v. Bryant Coll., 999 F.2d 603, 607
(1st Cir. 1993) (noting that the “act of refusing to renew
appellant’s employment” may provide the grounds for a Title VII
action); Hernandez-Mejias v. Gen. Elec., 428 F. Supp. 2d 4, 8
(D.P.R. 2005) (“[W]e agree with the overwhelming majority of courts
that non-renewal of an employment contract constitutes an adverse
employment action.”); Hicks v. KNTV Television, Inc., 160 Cal. App.
4th 994, 1004 n.4 (2008) (concluding that because Plaintiff’s term
contract “expired” and was not “renewed” characterizing the non-
renewal as a “termination” was not appropriate; however, the non-
renewal qualified as an adverse employment action more
appropriately characterized as a “refusal to hire (or rehire)”).
The non-renewal of Plaintiff’s contract can qualify as an adverse
employment action.
Second, Defendants argue that “no vote on the renewal of the
Plaintiff’s contract was ever taken.” (Doc. 253 at 9.) Defendants
seem to suggest that they simply let Plaintiff’s contract naturally
expire, and no adverse decision to not renew Plaintiff’s contract
was ever made. It is true that an adverse employment action
necessarily implies that, in some sense, the employer “took some
action,” Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991), and
there may be cases in which the natural expiration of a fixed term
contract, with no subsequent contract renewal or retention of the
employee, does not actually involve any conscious decision or other
conduct which could be characterized an adverse employment action.
Here, however, the County’s argument fails. The County actually
admitted in their response to Plaintiff’s separate statement of

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undisputed material facts that the County decided not to renew
Plaintiff’s contract. (Doc. 278 at 7.)
Third, Defendants argue that Plaintiff testified at his
deposition, which was after his employment with the County had
ended, that he did not actually want the precise contract that was
in place at the end of his employment to be renewed. Rather,
Plaintiff wanted his “original contract” renewed, the one which
made him the chair of the pathology department and which did not
have the salary reduction component. (Pl. Dep. VI 1025:24-1026:1;
1036:20-24.) To whatever extent Plaintiff did not want his
employment contract, as amended, to be renewed, this fact does not
eliminate liability potential. There is no evidence that the
County had actual knowledge, prior to letting Plaintiff’s
employment contract expire, that Plaintiff did not want his then
existing contract to be renewed. The County apparently learned of
this only after the fact, during Plaintiff’s deposition.
Accordingly, the County is not in a position to argue that not
renewing Plaintiff’s contract is something to which Plaintiff
consented and his consent precludes him from now claiming that the
non-renewal was an adverse employment action. If the County did
not renew his then existing employment contract for an unlawful
reason, such a non-renewal can create liability. If Plaintiff did
not want his amended contract to be renewed, this may possibly
impact Plaintiff’s ability to recover damages for the non-renewal,
but it does not negate the fact that the failure to renew the
contract could be illegal.
Fourth, Defendants argue that allowing Plaintiff’s contract to

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expire and not retaining him further is not an adverse employment
action because Plaintiff had “no right to a renewed employment
agreement.” (Doc. 253 at 6.) Even assuming this is true, this does
not preclude a conclusion that the County took an adverse
employment action against Plaintiff. An employer’s decision not to
retain an at-will employee is still an adverse employment action
regardless of the fact that the at-will employee never had any
right to a renewed employment agreement. Cf. Hernandez-Mejias, 428
F. Supp. 2d at 8 (“[E]ven at-will employees and job applicants are
entitled to Title VII protection.”)
With respect to the causal connection between the protected
activity and the adverse employment action, Plaintiff relies on the
testimony of Watson. “[M]y understanding was that [Plaintiff] had
– he had been on medical leave, family leave, and had requested
even more leave, and that for that reason and the fact that he was
suing us, that we decided not to renew his contract.” (Watson Dep.
113:15-23) (emphasis added.)
For purposes of Plaintiff’s motion, Watson’s testimony does
not sufficiently demonstrate that the decision-makers deciding upon
Plaintiff’s non-renewal had knowledge that Plaintiff’s lawsuit
involved his leave rights under the FMLA. To show that the County
retaliated against Plaintiff “because” he instituted an action
under the FMLA claim, the putative retaliators must have known that
he engaged in the protected activity, not just that Plaintiff “was
suing us.” See Morgan, 88 Cal. App. 4th at 70 (“Essential to a
causal link is evidence that the employer was aware that the
plaintiff had engaged in the protected activity.”) (internal

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quotation marks omitted); Raad v. Fairbanks N. Star Borough Sch.
Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (stating, in a Title VII
case, “the plaintiff must make some showing sufficient for a
reasonable trier of fact to infer that the defendant was aware that
the plaintiff had engaged in protected activity”); Gifford v.
Atchison, Topeka & Santa Fe Ry. Co., 685 F.2d 1149, 1155 (9th Cir.
1982) (recognizing, in a Title VII case, that to have a viable
retaliation claim for engaging protected activity, the employee
must show “that the employer was aware of the conduct” which
constituted protected activity); Derendinger v. Kiewit Constr. Co.,
272 F. Supp. 2d 850, 855 (D. Alaska 2003) (“Since, by definition,
an employer cannot take action because of a factor of which it is
unaware, the employer’s knowledge that the plaintiff engaged in a
protected activity is absolutely necessary to establish . . . [a]
prima facie case.”) (emphasis added); see also Amie v. El Paso
Indep. Sch. Dist., No. EP-06-CA-113-DB, 2007 WL 1295800, at *7
(W.D. Tex. May 02, 2007) (“However, knowledge must entail actual
knowledge that ‘protected activity’ has taken place, not that
Plaintiff had filed an unknown type of lawsuit against EPISD [his
employer]”); Stephens v. City of Topeka, Kan., 33 F. Supp. 2d 947,
965 (D. Kan. 1999) (“Knowledge of an unidentified lawsuit against
a former employer does not satisfactorily show the requisite
knowledge. Nothing in the record indicates that defendant knew the
lawsuit of plaintiff was based upon discrimination . . . .”). This
testimony from Watson similarly provides no strong indication that,
even if the decision-makers were minimally aware of the protected
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combative nature as further exemplified by the fact that he “was
suing us,” which motivated the decision-makers. Watson’s testimony
is simply insufficient to warrant summary judgment in Plaintiff’s
favor on his FMLA retaliation claim.
For purposes of Defendants’ motion, when construing the
evidence in a light most favorable to Plaintiff, the FMLA
retaliation claim survives summary judgment. Watson testified that
Plaintiff’s contract was not renewed, in part, because Plaintiff
“was suing us.” If Watson and other decision-makers were
sufficiently aware that Plaintiff’s lawsuit involved protected
activity, an inference arises that the protected activity motivated
the non-renewal decision.
During Watson’s deposition, counsel failed to elicit direct
testimony from Watson regarding whether he or those discussing or
deciding upon the non-renewal were aware, at the time of the non-
renewal, that Plaintiff’s lawsuit involved allegations concerning
his leave rights. In fact, one portion of Watson’s testimony
demonstrates that he lacked an understanding of the nature of the
lawsuit:
Q. So do you have an understanding about whether Dr.
Jadwin in this lawsuit is claiming retaliation for
whistleblowing about patient-care issues and legal
noncompliance issues?
A. No, I – I was not aware of that.
(Watson Dep. 120:21-25.) To survive summary judgment, Plaintiff
“must make some showing sufficient for a reasonable trier of fact
to infer that the defendant was aware that the plaintiff had
engaged in protected activity.” Raad, 323 F.3d 1197 (emphasis

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added); see also Dev v. Colt Const. & Dev. Co., 28 F.3d 1446, 1458
(7th Cir. 1994) (stating, in a Title VII case, that a plaintiff
“may rely on circumstantial evidence to establish her employer’s
awareness of protected expression” and the plaintiff must “produce
evidence that would support an inference that Irsay [a decision-
maker] was . . . aware” of the “sexual harassment complaints”).
Here, Plaintiff has barely enough circumstantial evidence of
knowledge to survive summary judgment.
Watson testified that he was aware of the “Family Medical
Leave Act” and the “California Family Rights Act,” that Plaintiff
took a medical leave of absence, and that Plaintiff had requested
“continued leaves of absence.” (Watson Dep. 67:7-12; 80:23-24;
113:20.) Watson further testified that, with respect to the
decision to remove Plaintiff from chairmanship, “we discussed what
his rights were under the medical leave act.” (Watson Dep. 68:24-
25.) From his testimony, an inference arises that Watson and
others were aware that Plaintiff’s leave rights would be implicated
by the removal decision. Moreover, Watson testified that he and
others rely on County counsel for information with respect to
employment decisions: “Before a personnel decision was made, we
would – would be advised by counsel as to whether the employee’s
rights had been honored.” (Watson Dep. 71:7-9.) Watson’s testimony
suggests that, before the non-renewal decision, Watson and others
conferred with a person with specific knowledge of the particulars
of Plaintiff’s lawsuit (County counsel). At no point in Watson’s
testimony did he affirmatively disclaim knowledge that Plaintiff’s
lawsuit concerned his leave rights. Based on Watson’s testimony,

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Plaintiff has circumstantial evidence sufficient to raise an
inference that he and others who discussed and decided upon the
non-renewal were aware that Plaintiff’s lawsuit concerned his leave
rights. See Dey, 28 F.3d at 1458 (noting that, to survive summary
judgment, a plaintiff need not prove knowledge of protected
activity “by a preponderance of the evidence.”). Accordingly,
Defendants’ motion for summary judgment on the FMLA retaliation
claim is DENIED.
CFRA
D.
1. “Retaliation” For Taking CFRA Leave
The Ninth Circuit in Bachelder and Liu rejected the
application of the McDonnell Douglas burden-shifting framework to
an FMLA claim premised on the theory that an employer used an
employee’s FMLA leave as a negative factor in an adverse employment
decision. Bachelder and Liu also disapproved of labeling such
claims as “retaliation” claims. At least some California courts,
on the other hand, apply the McDonnell Douglas burden-shifting
framework to parallel CFRA claims and call them “retaliation”
claims. In Faust v. California Portland Cement Co., the court
explained:
Dudley v. Department of Transportation (2001) 90
Cal.App.4th 255, 261, addresses the elements of a cause
of action for retaliation in violation of the CFRA.
Dudley, which was guided by the federal law counterpart,
sets forth the elements as follows: (1) the defendant was
an employer covered by CFRA; (2) the plaintiff was an
employee eligible to take CFRA leave; (3) the plaintiff
exercised her right to take leave for a qualifying CFRA
purpose; and (4) the plaintiff suffered an adverse
employment action, such as termination, fine, or
suspension, because of her exercise of her right to CFRA
leave. Once an employee establishes a prima facie case,
the employer is required to offer a legitimate,

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nonretaliatory reason for the adverse employment action.
If the employer produces a legitimate reason for the
adverse employment action, the presumption of retaliation
drops out of the picture, and the burden shifts back to
the employee to prove intentional retaliation.
150 Cal. App. 4th 864, 885 (2007) (internal citations and quotation
marks omitted).
As the moving party with the burden of proof on his CFRA
retaliation claim, Plaintiff must show that no reasonable trier of
fact could find against him that because of his CFRA leave, an
adverse employment decision was made. Plaintiff must “demonstrate
affirmatively (by admissible evidence) that there is no genuine
issue of material fact as to each element of [his] claim for
relief, entitling [him] to judgment as a matter of law.” Coldwell
v. County of Fresno, No. CV-F-07-1131 LJO SMS, 2009 WL 179686, at
*3 (E.D. Cal. Jan. 26, 2009).
With respect to the first three elements, Defendants admit
that Plaintiff took a CFRA leave from December 16, 2005 to March
15, 2006. (Doc. 278 at 23.) Defendants also concede that Plaintiff
took additional CFRA leave because Defendants acknowledge that
Plaintiff exhausted his CFRA leave by June 2006. However, for the
reasons discussed above with respect to Plaintiff’s FMLA claim,
there is a triable issue as to whether Plaintiff was removed from
his chairmanship, and as to whether his contract was not renewed,
because of his CFRA leave. Accordingly, Plaintiff is not entitled
to summary judgment on his CRFA retaliation claim.
Defendants are also not entitled to summary judgment on this
CFRA retaliation claim. The nature of Plaintiff’s evidence is such

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that notwithstanding the contention that he was removed from his
chairmanship for legitimate reasons – because of his unprotected
absence and lack of evident commitment to return to work – a
reasonable trier of fact could nonetheless conclude that, because
of his CFRA leave, Plaintiff was removed from his chairmanship.
The same can be said with respect to the non-renewal of Plaintiff’s
employment contract. Plaintiff’s and Defendants’ motions for
summary judgement are DENIED.
2. Denial Of/Interference With CFRA Leave
Under the CFRA, it is unlawful for an employer “to refuse to
grant a request” for CFRA leave made by an eligible employee for a
qualifying reason. Cal. Gov’t Code § 12945.2(a). Plaintiff makes
the same claim under the CFRA that he does under the FMLA – that he
was “forced” to take full-time leave when he was entitled to a
reduced leave schedule. The same conclusions reached above apply
equally to this CFRA claim. See Liu, 347 F.3d at 1132 n.4
(recognizing that leave denial/interfence claims under the CFRA and
FMLA can be analyzed together “[s]ince CFRA adopts the language of
the FMLA and California state courts have held that the same
standards apply.”). The motions are DENIED.
E. Disability Claims
Plaintiff raises three FEHA claims related to an alleged
disability. Plaintiff asserts that the County accommodated his
disability (depression) from December 16, 2005 to April 16, 2006,
by providing him with a reduced work schedule. (Doc. 272 at 23.)
Plaintiff asserts that he requested an extension of his reduced
leave schedule. According to Plaintiff, “[o]n April 18, 2006,

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Bryan refused to accommodate Jadwin’s disability” and “[i]nstead he
forced him to take full-time leave” and required Plaintiff, upon
the cessation of his leave, to return to work full-time. (Id.)
Plaintiff claims that by failing to permit him to continue with his
reduced leave schedule, the County failed to reasonably accommodate
his disability in violation of the FEHA. Plaintiff also claims
that because he was required or “forced” to take a full-time leave,
the County failed to engage in the interactive process. Finally,
Plaintiff argues that the County discriminated against him because
of his disability in that his removal from the chairmanship and
associated pay cut, and the non-renewal of his contract, are
attributable to his disability.
1.
Failure To Make Reasonable Accommodation
Under the FEHA, it is unlawful for an employer to “to fail to
make reasonable accommodation for the known physical or mental
disability of an applicant or employee” unless the accommodation
would “produce undue hardship to its operation.” Cal. Gov’t Code
§ 12940(m). In order to establish a FEHA claim for failure to make
reasonable accommodate, a plaintiff must show that, at the time of
the alleged failure, (1) he had a disability of which the employer
was aware, (2) he was able to perform the essential functions of
the job at issue with or without accommodation, i.e., that he was
qualified individual, and (3), the employer failed to reasonably
20

In cases where a leave of absence may be a reasonable
20
accommodation, the question is not whether the employee can perform
the essential functions of the job during the leave period.
Rather, the question is whether the leave of absence is likely to
enable the employee, upon his return from leave, to resume
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accommodate for his disability. Nadaf-Rahrov v. Neiman Marcus
Group, Inc., 166 Cal. App. 4th 952, 977-79 (2008); Jensen v. Wells
Fargo Bank, 85 Cal. App. 4th 245, 256 (2000); Diaz v. Fed. Express
Corp., 373 F. Supp. 2d 1034, 1054 (C.D. Cal. 2005).
a. Disability
In this case, Plaintiff claims his “depression” qualifies as
a “mental disability.” Under the FEHA, a “mental disability” is
defined, in relevant part, as including “any mental or
psychological disorder or condition, such as mental retardation,
organic brain syndrome, emotional or mental illness, or specific
learning disabilities, that limits a major life activity.” §
12926(i)(1). A “mental disability” includes “chronic or episodic
conditions” such as, but not limited to, “clinical depression.” See
§ 12926.1©.
Defendants do not seriously dispute that Plaintiff had
depression, a mental condition, while working for the County. In
his letter to Bryan dated January 9, 2006, Plaintiff noted that he
was suffering from “depression and insomnia.” (Doc. 266 at 133.)
Plaintiff’s assertion that he was suffering from depression is
corroborated by the forms that Plaintiff’s doctor, Dr. Riskin,
filled out to qualify Plaintiff for medical leaves. On these
forms, Dr. Riskin identified his practice as “psychiatry” and

performing the essential functions of the job. Hanson v. Lucky
Stores, Inc., 74 Cal. App. 4th 215, 226 (1999); Humphrey v. Mem’l
Hosps. Ass’n, 239 F.3d 1128, 1135-36 (9th Cir. 2001); Nunes v. Wal-
Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999). Working
part-time while making a “gradual return to full-time work” can be
a reasonable accommodation. Pals v. Schepel Buick & GMC Truck,
Inc., 220 F.3d 495, 498 (7th Cir. 2000).
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indicated that Plaintiff needed treatment and reoccurring doctor’s
visits for his condition. (Doc. 270 at 4-6.) Plaintiff’s assertion
that he was suffering from depression is also corroborated by Dr.
Reading, Plaintiff’s forensic psychologist, who diagnosed Plaintiff
as having a major depressive disorder:
Dr. Jadwin developed an Axis I disorder during the course
of working at Kern, consisting of a major depressive
disorder. This was treated with both psychotherapy and
psychotropic medication by Dr Riskin, while he continued
to work, initially culminating in a regression of his
symptoms and improvement in function by around 2004. He
continued to function until the issues arising from the
oncology conference in 2005 led to a further flare up of
his depressive disorder, which had receded but not
resolved at that time. Arising from this and its
aftermath, he encountered a serious recurrence of his
depressive disorder, which has continued to the current
time.
(Doc. 269 at 61.) The County does not challenge that Plaintiff’s
depression qualifies as “any mental . . . disorder or condition”
within the meaning of the FEHA. See Auburn Woods I Homeowners
Ass’n v. Fair Employment Hous. Comm’n, 121 Cal. App. 4th 1578,
1592-93 (2004) (“Numerous cases under state and federal law have
held that depression and its related manifestations can meet the
definition of disability under antidiscrimination laws.”).
Rather than challenge the existence of Plaintiff’s depression,
Defendants argue that Plaintiff’s depression is not recognized
under the FEHA because it is a “work-related injury which arose
during the course of his employment, not a disability that he
brought with him to the job.” (Doc. 262 at 13.) Defendants’
argument lacks merit. To be “disabled” within the meaning of the
FEHA, the employee need not bring the disability with him to the
job. A work-caused condition can be a cognizable “disability”

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under the FEHA. See City of Moorpark v. Superior Court, 18 Cal.
4th 1143, 1157 (1998) (“Nothing in [the FEHA] suggests that the
FEHA only applies to physical or mental disabilities that are
unrelated to work.”). 21

In a related argument, Defendants contend that Plaintiff’s
21
disability-related FEHA claims are preempted by California workers’
compensation scheme. Defendants argue that workers’ compensation
provides the exclusive remedy for Plaintiff’s disability-related
FEHA claims because his disability – depression – was allegedly
“caused by working at KMC.” (Doc. 253 at 15.) This argument is
erroneous. Plaintiff is not seeking damages for his depression.
Plaintiff is seeking remedies for violations of the FEHA, which
violations (if they occurred) fell outside the compensation
bargain. The workers’ compensation scheme does not provide the
exclusive remedy for Plaintiff’s disability-related claims under
the FEHA even if his depression arose from the employment
relationship. See City of Moorpark, 18 Cal. 4th at 1148 (“[W]e
consider whether FEHA . . . remedies are available to an employee
who has suffered discrimination based on a work-related disability,
meaning . . . a disability resulting from an injury arising out of
and in the course of the employment that gave rise to the
discrimination. We conclude that section 132a does not provide the
exclusive remedy . . . and that FEHA . . . remedies are
available.”); Ruiz v. Cabrera, 98 Cal. App. 4th 1198, 1203 (2002)
(“[A]n injured worker c[an] pursue a disability discrimination
claim under the Fair Employment and Housing Act or a so-called
Tameny wrongful termination claim even though the disability arose
from an on-the-job injury.”) (internal citation omitted); Bagatti
v. Dep’t of Rehab., 97 Cal. App. 4th 344, 366-68 (2002) (concluding
that the Workers’ Compensation Act does not provide the exclusive
remedy for a FEHA failure to accommodate claim, reasoning, in part,
that “[j]ust as discrimination on the basis of disability falls
outside the compensation bargain, so too the employer’s commission
of another statutory unlawful employment practice, as defined by
subdivision (m) of section 12940, falls outside the compensation
bargain.”). If the County can show that Plaintiff applied for and
obtained some compensation under the workers’ compensation scheme,
due to “equitable principles,” Plaintiff would not be able to
“recover these [same] damages as part of a subsequent FEHA
proceeding.” City of Moorpark, 18 Cal. 4th at 1158. No such
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Alternatively, Defendants argue that Plaintiff’s mental
condition did not “substantially” limit him in the major life
activity of working. Defendants’ reliance on the “substantially
limits” test from the ADA regime is misplaced. California law does
not follow this standard. Turner v. Ass’n Of Am. Med. Colls., 167
Cal. App. 4th 1401, 1405-06 (2008) (“[T]he California definition of
disability as one that ‘limits’ a major life activity by making it
‘difficult’ is more inclusive than the ADA’s ‘substantially limits’
standard.”).
Under California law a mental condition “limits” a major life
activity if “it makes the achievement of the major life activity
difficult.” § 12926(i)(1)(B). This must be determined “without
regard to mitigating measures, such as medications, assistive
devices, or reasonable accommodations, unless the mitigating
measure itself limits a major life activity.” § 12926(i)(1)(A).
“Major life activities” are to “be broadly construed and shall
include physical, mental, and social activities and working.” §
12926(i)(1)©. With respect to “working,” it qualifies as a major
life activity “regardless of whether the actual or perceived
working limitation implicates a particular employment or a class or
broad range of employments.” § 12926.1©; see also EEOC v. United
Parcel Serv., Inc., 424 F.3d 1060, 1073 (9th Cir. 2005). The “FEHA
does not require that the disability result in utter inability or
even substantial limitation on the individual’s ability to perform
major life activities. A limitation is sufficient.” United Parcel

showing has been made.

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Service, Inc., 424 F.3d at 1071.
Plaintiff asserts that his depression made it difficult for
him to engage in “the medical work to which he had devoted his
life.” (Doc. 272 at 19.) “In deciding whether [the employees’]
limitations . . . make them ‘disabled’ under FEHA, the proper
comparative baseline is either the individual without the
impairment in question or the average unimpaired person.” Arteaga
v. Brink’s, Inc., 163 Cal. App. 4th 327, 345 (2008) (emphasis and
internal quotation marks omitted). An average person can work 40
hours in a week, as “40 hours is considered a full work week in our
culture.” Arteaga, 163 Cal. App. 4th at 346 (internal quotation
marks omitted). Plaintiff has established that, at the time he
sought a continuation of his reduced work schedule, he was limited
in the major life activity of working. His doctor’s certifications
and his taking of leave reveal that his mental condition made it
difficult for him to work full-time, which is certainly a
“limitation” on working.
b.
Knowledge
Under the FEHA, an impairment such as a mental or physical
condition does not by itself qualify as a mental or physical
disability under the statute. Gelfo v. Lockheed Martin Corp, 140
Cal. App. 4th 34, 47 (2006). To constitute a disability, the
condition must limit a major life activity of the employee. Id.
Courts have recognized that the knowledge required to support
a disability-related claim varies depending on the context. For
reasonable accommodation claims, a showing that the employer knew
the employee had some impairment such as a mental or physical

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condition is not enough. The employer must have been aware that the
impairment limited the employee in a major life activity. See Adams
v. Rice, 531 F.3d 936, 953-54 (D.C. Cir. 2008) (“If, however, the
hypothetical telephone receptionist sought an accommodation from his
employer so that he could return to work, the employer would
obviously need to know about the employee’s claimed hearing
limitation” not just the medical condition itself); Taylor v.
Principal Fin. Group, Inc., 93 F.3d 155, 164 (5th Cir. 1996) (“[I]t
is important to distinguish between an employer’s knowledge of an
employee’s disability versus an employer’s knowledge of any
limitations experienced by the employee as a result of that
disability. This distinction is important because the ADA requires
employers
not
limitations,
accommodate
reasonably
to
disabilities.”); Avila v. Cont’l Airlines, Inc., 165 Cal. App. 4th
1237, 1252 (2008) (“[T]he duty of an employer reasonably to
accommodate an employee’s handicap does not arise until the employer
is aware of respondent’s disability and physical limitations.”)
(internal quotation marks omitted).
With respect to a disability discrimination claim (which
Plaintiff also raises and which will be discussed below), where an
adverse employment action is taken because of the employee’s
condition (e.g., cancer), an employer’s actual knowledge of the
condition is enough. To be liable, the employer need not know that
the condition (of which it has knowledge) sufficiently limits a
major life activity.
[I]n pure discrimination cases like Adams’s, an
employer’s knowledge of the precise limitation at issue
is irrelevant; so long as the employee can show that her

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impairment ultimately clears the statutory hurdle for a
disability-i.e., it substantially limited a major life
activity-the employer will be liable if it takes adverse
action against her based on that impairment.
Adams, 531 F.3d at 953.
If an employer disclaims actual knowledge of the employee’s
condition, an employer can still be found liable for disability
discrimination in cases where knowledge of a disability can be
inferred. “Liability for disability discrimination does not require
professional understanding of the plaintiff’s condition. It is
enough to show that the defendant knew of symptoms raising an
inference that the plaintiff was disabled.” Sanglap v. LaSalle Bank,
FSB, 345 F.3d 515, 520 (7th Cir. 2003). Knowledge of just the
symptoms or effects of an otherwise undisclosed condition is not,
however, sufficient if those symptoms or effects do not raise an
inference that the person is disabled. See Avila, 165 Cal. App. 4th
at 1249 & n.5 (concluding the employer lacked sufficient knowledge
of an employee’s physical disability because the hospital forms the
employee submitted stated only that the she was hospitalized for
three days and unable to work on four work days but did not
otherwise indicate that the employee suffered from pancreatitis or
any other condition, and for all the employer knew the employee
“might have been hospitalized for reasons other than disability”);
Brundage v. Hahn, 57 Cal. App. 4th 228, 237 (1997) (concluding the
employer lacked knowledge of the employee’s mental disability –-
manic depressive disorder — even though the employer knew the
employee “had taken a substantial amount of leave for medical
appointments” because none of the employee’s leave requests “even

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hinted at any mental disability”); Hedberg v. Ind. Bell Tel. Co.,
47 F.3d 928, 934 (7th Cir. 1995).
For purposes of his accommodation claim, Plaintiff has
sufficient evidence that Bryan/County were aware that he had a
mental condition and the limits it placed upon his ability to work
full-time.
Plaintiff’s January 9, 2006, letter to Bryan specifically
stated that Plaintiff had developed “depression and insomnia.” (Doc.
266 at 133.) In their response to Plaintiff’s statement of
undisputed material facts, Defendants concede that “[o]n January 9,
2006, Dr. Jadwin had asked Defendant Bryan to allow him to work
part-time and at home while he was recovering from his disabling
depression.” (Doc. 278 at 28) (emphasis added.) Defendants also
concede that “Bryan admitted knowing that Dr. Jadwin needed leave
because of his depression.” (Doc. 278 at 27.) In addition to these
concessions, Bryan attached Plaintiff’s two requests for medical
leave to the memorandum he (Bryan) drafted summarizing the meeting
on April 28, 2006. (Doc. 266-2 at 9-10.) This demonstrates Bryan
had access to some of Plaintiff’s leave-related documentation and
knew of Plaintiff’s medical request for additional leave. Both of
his requests for medical leave also noted, on their face, that they
were accompanied by a “Physician’s Note.” (Id.). Defendants concede
that “Dr. Riskin’s certifications stated that Plaintiff needed
medical/recuperative leave for depression from December 16, 2005 to
September 16, 2006.” (Doc. 278 at 27.) These forms indicated that
Dr. Riskin’s practice was “psychiatry” and recommended that
Plaintiff work less than full-time. (Doc. 270 at 4-6.) See Faust,

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150 Cal. App. 4th at 887 (concluding that the employee’s submission
of a chiropractor’s “work status report” stating that the employee
was “‘unable to perform regular job duties’” created a triable issue
as to the employer’s knowledge of the employee’s physical
disability, noting that “an employer knows an employee has a
disability when the employee tells the employer about his condition,
or when the employer otherwise becomes aware of the condition, such
as through a third party or by observation.”). Plaintiff has
carried his burden of demonstrating that Bryan/County had sufficient
knowledge of his disability at the time of his requested
accommodation.
c. Denial Of A Reasonable Accommodation
Plaintiff argues that notwithstanding knowledge of his
disability, the County denied him a reasonable accommodation.
Plaintiff concedes that the County accommodated his 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. (Doc. 272 at 23.) Plaintiff argues that he requested an
extension of his reduced leave schedule consistent with his
psychiatrist’s certification. On April 28, 2006, Bryan allegedly
refused to grant this request and accommodate Plaintiff’s
disability. Instead, Bryan allegedly required Plaintiff to take
full-time leave until June 16, 2006, the date on which Plaintiff
would have apparently exhausted all potential sources of leave
entitlement (Doc. 266-2 at 5.) On that date, Plaintiff had to give
the County an answer as to whether the would return to work full-
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By classifying his full-time leave – which Bryan allegedly
required him to take – as a denial of reasonable accommodation,
Plaintiff has overlooked the fact that his full-time leave could
have constituted a reasonable accommodation in itself. Hanson v.
Lucky Stores, Inc., 74 Cal. App. 4th 215, 226 (1999) (“[A] finite
leave can be a reasonable accommodation under FEHA, provided it is
likely that at the end of the leave, the employee would be able to
perform his or her duties.”); Humphrey v. Mem’l Hosps. Ass’n, 239
F.3d 1128, 1135-36 (9th Cir. 2001) (recognizing that a leave of
absence may be a reasonable accommodation under the ADA where it
“would reasonably accommodate an employee’s disability and permit
him, upon his return, to perform the essential functions of the
job”).
Whether his full-time leave was a reasonable accommodation is
a fact-specific individualized inquiry that takes into account the
totality of the circumstances. See Hanson, 74 Cal. App. 4th at 228
n.11; Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir.
1999); Zukle v. Regents Of The Univ. Of Cal., 166 F.3d 1041, 1048
(9th Cir. 1999). “In the summary judgment context, a court should
weigh the risks and alternatives, including possible hardships on
the employer, to determine whether a genuine issue of material fact
exists as to the reasonableness of the accommodation.” Nunes, 164
F.3d at 1247. When more than one accommodation is reasonable, it
is the employer’s prerogative to choose which accommodation will be
utilized. Hanson, 74 Cal. App. 4th at 228.
When confronted with Plaintiff’s request for an extension on
his leave, besides the course it took, the County could have

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permitted Plaintiff to continue working on a reduced schedule for
some period of time, and at least until all his sources of leave
(including his entitlements under the FMLA/CFRA) were exhausted.
Despite potential alternatives, if the accommodation Plaintiff
actually received was a reasonable one, Plaintiff’s accommodation
claim fails as a matter of law.
In light of all the circumstances, there is a genuine dispute
as to whether full-time leave was a reasonable accommodation for
Plaintiff’s disability.
In the County’s favor, Plaintiff’s doctor’s certification
indicated he needed to work “part-time or less” to avoid worsening
of his serious medical condition. (Doc. 270 at 6) (emphasis added.)
The certification certainly justified the County in offering full-
time leave. If Plaintiff was offered full-time leave and he took
it without protest (which the evidence, when construed in a light
most favorable to Defendants, suggests), a trier of fact could
conclude that full-time leave was a reasonable accommodation.
In Plaintiff’s favor, the doctor’s certification did not
explicitly restrict Plaintiff from working altogether – which, if
Plaintiff is to believed, is what Bryan did by requiring him to
take full-time leave. The County has not pointed to any concrete
evidence that a full-time leave was, actually, better for
Plaintiff’s disability, and thus more likely to assist his return
to full-time employment, than a reduced work schedule. If the
County simply forced Plaintiff to take a full-time leave that was
not mandated by his doctor nor medically better for Plaintiff in any
event, a reasonable jury could conclude that the County’s

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accommodation was unreasonable. Even if Plaintiff’s full-time leave
was not a reasonable accommodation, this alone does not establish
Plaintiff’s failure to accommodate claim. Plaintiff must create a
triable issue that a reasonable accommodation existed which he was
denied. Nadaf-Rahrov, 166 Cal. App. 4th at 979.
Viewing the evidence in the light most favorable to Plaintiff,
the County could have permitted Plaintiff to remain on a reduced
work schedule leave for some period of time, and at least until his
entitlements to leave, including his entitlements under the FMLA and
CFRA, ran out. A reduced work schedule leave would have been more
consistent with the doctor’s certification, which did not explicitly
restrict Plaintiff from working altogether, and hence better
tailored to Plaintiff’s medical needs. Plaintiff also has evidence
that working part-time was therapeutic for him and, accordingly,
more likely to aid his recovery and return to full-time employment
than a forced full-time leave. Viewing the evidence in a light most
favorable to Plaintiff, it is at least plausible (although by no
means clear) that permitting Plaintiff to continue with his reduced
work schedule could have facilitated Plaintiff’s return to
employment on some level of availability acceptable to the County.
See Hanson, 74 Cal. App. 4th at 226 (“As long as a reasonable
accommodation available to the employer could have plausibly enabled
a handicapped employee to adequately perform his job, an employer
is liable for failing to attempt that accommodation.”) (internal
quotation marks omitted); Nunes, 164 F.3d at 1247 (“Even an extended
medical leave, or an extension of an existing leave period, may be
a reasonable accommodation if it does not pose an undue hardship on

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the employer.”) (emphasis added). The County has not sufficiently
demonstrated that permitting such an arrangement would have caused
undue hardship. Accordingly, Plaintiff’s reasonable accommodation
claim survives Defendants’ motion for summary judgment. As
discussed above, however, a reasonable trier of fact could conclude
that Plaintiff was provided a reasonable accommodation in that he
was offered full-time leave and he took it without protest. After
his full-time leave ended, Plaintiff requested no further leave for
his disability. Accordingly, Plaintiff is not entitled to summary
judgment on his reasonable accommodation claim. Both parties’
motions on the failure to accommodate claim are DENIED.
2. Failure To Engage In The Interactive Process
Under the FEHA, it is unlawful for an employer “to fail to
engage in a timely, good faith, interactive process with the
employee or applicant to determine effective reasonable
accommodations, if any, in response to a request for reasonable
accommodation by an employee or applicant with a known physical or
mental disability or known medical condition.” Cal. Gov’t Code §
12940(n). “I[t] is the employee’s initial request for an
accommodation which triggers the employer’s obligation to
participate in the interactive process of determining one.” Spitzer
v. Good Guys, Inc., 80 Cal. App. 4th 1376, 1384 (2000) (internal
quotation marks omitted).
[T]he interactive process requires communication and
good-faith exploration of possible accommodations between
employers and individual employees with the goal of
identify[ing] an accommodation that allows the employee
to perform the job effectively. . . . [F]or the process
to work [b]oth sides must communicate directly, exchange
essential information and neither side can delay or

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obstruct the process. When a claim is brought for failure
to reasonably accommodate the claimant’s disability, the
trial court’s ultimate obligation is to isolate the cause
of the breakdown . . . and then assign responsibility so
that [l]iability for failure to provide reasonable
accommodations ensues only where the employer bears
responsibility for the breakdown.
Nadaf-Rahrov, 166 Cal. App. 4th at 985 (alteration in original)
(internal citations and quotation marks omitted). To succeed on an
interactive process claim, the employee must show that a reasonable
accommodation was available. Id. at 985.
There can be no dispute that Plaintiff requested to continue
working on a reduced schedule. By Plaintiff’s account, in response
to his request, at the meeting on April 28, 2006, rather than
discuss possible accommodations, he was simply told to take a full-
time leave which he never requested. Plaintiff has created a
genuine dispute of material fact whether a reasonable accommodation
existed (which the interactive process could have uncovered). By
the County’s account, Plaintiff was offered full-time leave, which
the County preferred, and Plaintiff took it without protest. On
these divergent facts, no party is entitled to summary judgment on
Plaintiff’s interactive process claim.
3. Disability Discrimination
Under the FEHA, it is unlawful for an employer “because of” a
person’s “physical disability, mental disability, [or] medical
condition” to “refuse to hire or employ the person” or “to discharge
or to bar the person from employment” or to “discriminate against
the person in compensation or in terms, conditions, or privileges
of employment.” Cal. Gov’t Code § 12940(a). To establish a prima

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facie case of disability discrimination, Plaintiff must show: (1)
that he suffered from a disability of which the employer was aware;
(2) that, notwithstanding his disability, he could perform the
essential functions of his job with or without reasonable
accommodation, and (3) that he was subjected to an adverse
employment action because of his disability. See Green v. State,
22
42 Cal. 4th 254, 262, 264 (2007); Nadar-Rahrov, 166 Cal. App. 4th
at 964; Finegan v. County of Los Angeles, 91 Cal. App. 4th 1, 7
(2001). To satisfy the third element, among other things, “a
plaintiff must prove the employer had knowledge of the employee’s
disability when the adverse employment decision was made.” Brundage,
57 Cal. App. 4th at 236-37; see also Avila, 165 Cal. App. 4th at
1248 (“[T]o show that Continental acted with discriminatory intent,
plaintiff was required to produce evidence that the Continental
employees who decided to discharge him knew of his disability.”).
Plaintiff asserts that because of his disability, depression,
he was removed from his chairmanship and his pay was cut, and his
contract was not renewed. Because his FMLA/CFRA leaves of absence
were for his depression (also a disability under the FEHA),
Plaintiff claims that any adverse decision based on those absences
is unlawful disability discrimination. See Head v. Glacier Nw.
Inc., 413 F.3d 1053, 1065 (9th Cir. 2005) (“[W]e hold that the ADA

As discussed above, Plaintiff has met his burden of
22
demonstrating that he had a mental condition which limited his
ability to work. Plaintiff also has created a triable issue (but
not conclusively established) that he could perform the essential
functions of his job with or without reasonable accommodation for
his disability.

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outlaws adverse employment decisions motivated, even in part, by
animus based on a plaintiff’s disability or request for an
accommodation-a motivating factor standard.”); Humphrey, 239 F.3d
at 1139-40 (recognizing that “conduct resulting from a disability
is considered to be part of the disability, rather than a separate
basis for” an adverse employment action, and giving, as an example,
“excessive absenteeism caused by migraine-related absences”).
Relatedly, Plaintiff argues because permitting him to continue
working on a reduced schedule would have been a reasonable
accommodation, then demoting Plaintiff for his complete absence from
work during his full-time leave – when he would have been there at
least part of the time if a reasonable accommodation were given –
also constitutes discrimination because of his disability. See
Humphrey, 239 F.3d at 1140 (“The link between the disability and
termination is particularly strong where it is the employer’s
failure to reasonably accommodate a known disability that leads to
discharge for performance inadequacies resulting from that
disability.”). These issue remain in dispute.
a. Removal From The Chairmanship And Pay Cut
The evidence shows that Bryan had knowledge of Plaintiff’s
disability. Because the JCC adopted Bryan’s recommendation, Bryan’s
knowledge of Plaintiff’s disability is sufficient (Plaintiff need
not separately prove the JCC also had the requisite knowledge at the
time of the removal vote). See Wysinger v. Auto. Club Of S. Cal.,
157 Cal. App. 4th 413, 421 (2007) (recognizing that the “decision
maker’s ignorance does not categorically shield the employer from
liability if other substantial contributors to the decision bore the

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requisite animus” and stating “[b]ecause Kane was a motivating force
in the selection, his animus is imputed to ASCS [the employer]”).
There is a triable issue as to whether it was Plaintiff’s
absence from work during his protected leaves under the FMLA/CFRA,
including his full-time leave, that prompted the removal decision,
or whether it was his continued unprotected absence after his
protected leave expired which prompted the removal decision.
Plaintiff has not sufficiently demonstrated that his absence from
work after his full-time leave expired was attributable to his
disability. Indeed, it seems Bryan took it upon himself to place
Plaintiff on Personal Necessity Leave for reasons unrelated to
Plaintiff’s depression – Plaintiff avulsed a ligament in his ankle.
After his full-time leave ended, Plaintiff requested no further
leave for his disability. For these reasons, the County survives
Plaintiff’s disability discrimination claim. This motion is DENIED.
b. Non-renewal
To support his claim that the non-renewal of his contract was
motivated by his disability, Plaintiff relies on the testimony of
Watson:
Q. So the question is: You’ve mentioned that for the
nonrenewal one of the reasons was that Dr. Jadwin wasn’t
available for work; is that correct or
A. My understanding was that he had — he had been on
medical leave, family leave, and had requested even more
leave, and that for that reason and the fact that he was
suing us, that we decided not to renew his contract.
(Watson Dep. 113:15-23.) Viewing this testimony in a light most
favorable to the County, this testimony does not warrant summary
judgment in Plaintiff’s favor. As discussed above, a reasonable

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interpretation of this testimony is “that reason” was a reference
to Plaintiff’s non-protected leave after his FMLA/CFRA leave
expired. The evidence is insufficient to show that Plaintiff’s
absence, at that time, was attributable to his depression. It
appears Bryan took it upon himself to place Plaintiff on Personal
Necessity Leave for reasons unrelated to Plaintiff’s depression.
Plaintiff actually denies that he requested any further leave of
absence from Bryan, whether because of his depression or otherwise,
after his full-time leave expired. Because Watson’s testimony can
be reasonably interpreted as referring to Plaintiff’s absence from
work at a time when his absence was not attributable to his
disability (depression), Plaintiff is not entitled to summary
judgment on this disability discrimination claim. This motion is
DENIED.
With respect to the County’s motion for summary judgment,
viewing this testimony and other evidence in a light most favorable
to Plaintiff, the County is not entitled to summary judgment on this
claim. Another reasonable interpretation of Watson’s testimony is
that Plaintiff’s “medical leave,” including his full-time leave,
motivated, in part, the non-renewal decision. Of course, this alone
is not sufficient to establish Plaintiff’s disability discrimination
claim. To survive summary judgment, Plaintiff must raise a triable
issue that Watson and the other decision-makers deciding upon
23
Plaintiff’s non-renewal had sufficient knowledge that Plaintiff’s

Bryan retired in September 2006 and did not participate in
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the non-renewal decision.

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“medical leave” was attributable to an underlying disability. 24
At his deposition, when asked about why he supported the
removal of Plaintiff from his chairmanship, Watson explained that
“he [Plaintiff] wasn’t there mentally or physically.” (Watson Dep.
at 16:9) (emphasis added.) When asked about Plaintiff’s “emotional
health,” Watson responded:
A. My – my overall impression over the months from
hearing verbal reports was that Dr. Jadwin was emotional
and irrational, confrontational. I have never observed
it. All I could rely on is what I was told.
. . . .
Q. What do you understand the term “emotional health” to
mean?
A. That he [Plaintiff] was highly reactive, highly
emotional –
Q. Yeah.
A. – – and just didn’t seem to be rational.
Q. Didn’t seem to be rational?
A. In his – in the way that he was dealing with people.
When asked about Plaintiff’s medical leave, Watson responded that
“I know that he had some medical issues.” (Watson Dep. 68:22-25.)
(emphasis added.) Watson further explained “From the – my
understanding of the way he had been handling him selves – himself
and asking for continued leaves of absence, I was under the
impression that he really wasn’t able to – to function, and I really

Although Watson, in his declaration, now claims that “no
24
such decision” on the non-renewal was made, the court cannot weigh
the evidence and determine which version of the events the trier of
fact is likely to believe. On summary judgment, the court must
analyze the evidence in a light most favorable to the non-moving
party.

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didn’t expect him to come back [after being removed from his
chairmanship].” (Watson Dep. 80:22-81:2) (emphasis added.) Finally,
when asked specifically about whether he knew Plaintiff had
depression, Watson testified as follows:
Q. Were you aware that Dr. Jadwin was suffering from
depression, that he was a disabled individual?
A. His specific diagnosis I was not aware of. I was aware
that he seemed to be having some emotional issues of some
kind.
Q. Okay. And again, when did you – when did you become
aware that Dr. Jadwin was having emotional issues of some
kind?
A. I could not tell you when. I think it was a part of
a pattern that had been discussed over many months.
(Watson Dep. 85:3-14.)
“Liability for disability discrimination does not require
professional understanding of the plaintiff’s condition. It is
enough to show that the defendant knew of symptoms raising an
inference that the plaintiff was disabled.” Sanglap, 345 F.3d at
520. Watson’s testimony that he was aware Plaintiff was not there
“mentally,” was “emotional and irrational,” was having “emotional
issues of some kind[,]” “had some medical issues,” that he “was
asking for continued leaves of absence” and was thus “under the
impression” that Plaintiff “wasn’t able to – to function” and that
his emotional issues were “part of a pattern that had been discussed
over many months” is sufficient to create a triable issue that
Watson had the requisite knowledge that Plaintiff’s medical leaves
of absence were attributable to some underlying mental condition.
Viewed in a light most favorable to Plaintiff, Watson’s testimony
also creates an inference that Plaintiff’s irrational behavior,

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“pattern” of emotional issues and leaves of absence were common
knowledge and/or discussed among decision-makers such that Watson
and any others who participated in the non-renewal decision had
sufficient knowledge that Plaintiff’s absence from work was
attributable to some underlying mental condition. Plaintiff’s
disability discrimination claim survives summary judgment.
Defendant’s motion is DENIED.
F. FEHA Retaliation Claim
Under the FEHA, it is unlawful for an employer “to discharge,
expel, or otherwise discriminate against any person because the
person has opposed any practices forbidden under this part or
because the person has filed a complaint, testified, or assisted in
any proceeding under this part.” Cal. Gov’t Code § 12940(h). To
establish a prima facie case of retaliation under this section, a
plaintiff must show: (1) he engaged in protected activity; (2) he
was thereafter subject to adverse employment action; and (3) a
causal link between the two. Yanowitz v. L’Oreal USA, Inc., 36 Cal.
4th 1028, 1042 (2005); Mathieu v. Norrell Corp., 115 Cal. App. 4th
1174, 1185 (2004). “Essential to a causal link is evidence that the
employer was aware that the plaintiff had engaged in the protected
activity.” Morgan, 88 Cal. App. 4th at 70 (internal quotation marks
omitted).
Plaintiff argues that he engaged in protected activity under
the FEHA by filing DFEH complaints and his initial federal complaint
in this action which contained (and still contains) causes of action
under FEHA, including the CFRA. Plaintiff contends that, because
of this protected activity, his employment contract was not renewed.

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In support of his theory, Plaintiff relies on the testimony of
Watson that “[m]y understanding was that [Plaintiff] had – he had
been on medical leave, family leave, and had requested even more
leave, and that for that reason and the fact that he was suing us,
that we decided not to renew his contract.” (Watson Dep. 113:15-23)
(emphasis added.)
Plaintiff’s FEHA retaliation claim lacks sufficient evidence
to warrant summary judgment in Plaintiff’s favor. Watson’s
testimony does not demonstrate that those discussing and deciding
upon Plaintiff’s non-renewal were aware that Plaintiff’s lawsuit
involved his rights under the FEHA, including the CFRA. To
demonstrate that the County retaliated against Plaintiff “because”
he filed a complaint asserting his rights under the FEHA, the
putative retaliators must have at least known that Plaintiff engaged
in the protected activity, not just that Plaintiff “was suing us.”
The testimony from Watson similarly provides no strong indication
that, even if the decision-makers were minimally aware of the
protected activity, that it was the FEHA claims, as opposed to
Plaintiff’s combative nature as further exemplified by the fact that
he “was suing us,” which motivated the decision-makers.
While Plaintiff’s evidence is not sufficient to warrant summary
judgment in his favor, Plaintiff’s evidence, when construed in a
light most favorable to him, is sufficient to survive Defendants’
motion for summary judgment. Watson testified that Plaintiff’s
contract was not renewed, in part, because Plaintiff “was suing us.”
As discussed above, for purposes of surviving summary judgment,
Plaintiff has just enough evidence to infer that Watson and those

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discussing and deciding upon the non-renewal were aware that
Plaintiff had engaged in protected activity, i.e., that his lawsuit
concerned his leave rights. Plaintiff’s leave rights were (and are)
embedded in the FMLA and CFRA, and the later is a part of the FEHA.
Accordingly, Defendants’ motion for summary judgment is DENIED.

G. 42 U.S.C. § 1983 Claim – Procedural Due Process
Plaintiff’s § 1983 is premised on an alleged violation of his
procedural due process rights under the Fourteenth Amendment.
Specifically, Plaintiff asserts that he was removed from his
chairmanship and his pay was cut, he was placed on involuntary paid
administrative leave and his contract was not renewed, all without
affording him procedural due process under the Fourteenth Amendment.
Section 1983 creates a federal cause of action for the
deprivation, under color of state law, of rights guaranteed by the
United States Constitution. San Bernardino Physicians Servs. Med.
Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1407 (9th
Cir. 1987). There is no dispute that the conduct at issue in this
case occurred under the color of state law. (Doc. 278 at 32.)
“The County, as a municipality, may be liable under section
1983 only if the alleged violation was pursuant to ‘official
municipal policy.’” Lake Nacimiento Ranch Co. v. San Luis Obispo
County, 841 F.2d 872, 878 (9th Cir. 1987) (quoting Monell v. Dep’t
Of Soc. Servs., 436 U.S. 658, 691 (1978)). The official municipal
policy must be the “‘moving force’ behind the constitutional
violation.” Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th
Cir. 2007) (quoting Monell, 436 U.S. at 694-95). Individuals may

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be liable under § 1983 only if they, in some manner, are personally
involved in the alleged violation. See Barren v. Harrington, 152
F.3d 1193, 1194 (9th Cir. 1998) (“[P]laintiff must allege facts, not
simply conclusions, that show that an individual was personally
involved in the deprivation of his civil rights. Liability under §
1983 must be based on the personal involvement of the defendant.”);
see also Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005) (“A
supervisor can be liable under § 1983 if he set[s] in motion a
series of acts by others . . . which he knew or reasonably should
have known, would cause others to inflict the constitutional
injury.”) (internal quotation marks omitted) (alteration in
original).
“The Fourteenth Amendment protects individuals against the
deprivation of liberty or property by the government without due
process.” Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th
Cir. 1993). In this case, Plaintiff claims a deprivation of a
property interest. To prevail on his constitutional claim,
Plaintiff must establish: “(1) a property interest protected by the
Constitution; (2) a deprivation of the interest by the government;
and a (3) lack of required process.” Ulrich v. City of San
Francisco, 308 F.3d 968, 974 (9th Cir. 2002). 25
“[P]roperty interests . . . are not created by the
Constitution. Rather they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law-rules or understandings that

Plaintiff concedes that he “does not allege deprivation of
25
liberty.” (Doc. 275 at 18.)

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secure certain benefits and that support claims of entitlement to
those benefits.” Bd. Of Regents Of State Colls. v. Roth, 408 U.S.
564, 577 (1972). As explained in Roth:
To have a property interest in a benefit [e.g., a job],
a person clearly must have more than an abstract need or
desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate
claim of entitlement to it.
Id. Although property interests are not created by the federal
Constitution, federal constitutional law helps determine whether an
asserted interest “rises to the level of a legitimate claim to
entitlement protected by the Due Process Clause.” Loehr v. Ventura
County Cmty. Coll. Dist., 743 F.2d 1310, 1314 (9th Cir. 1984)
(internal quotation marks omitted).
The Fourteenth Amendment’s due process guarantee attaches when
public employees have a property interest in their continued
employment. Ulrich, 308 F.3d at 975. To have a protected property
interest, “the decision to grant [or take away] the benefit” must
be removed “from agency discretion.” Peacock v. Bd. Of Regents Of
The Univs. & State Colls. Of Az., 510 F.2d 1324, 1327 (9th Cir.
1975). Thus, “a state law which limits the grounds upon which an
employee may be discharged, such as conditioning dismissal on a
finding of cause, creates a constitutionally protected property
interest” in continued employment. Dyack v. Commonwealth Of The
Northern Mariana Islands, 317 F.3d 1030, 1033 (9th Cir. 2003)
(internal quotation marks omitted). On the other hand, where “a
state employee serves at will, he or she has no reasonable
expectation of continued employment, and thus no property right.”
Id. at 1033; see also Clements v. Airport Auth. Of Washoe County,

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69 F.3d 321, 331 (9th Cir. 1995). A public employee may (or may
not) have a property interest in a specific position, as opposed to
a property interest in continued employment generally. See Stiesberg
v. State of California, 80 F.3d 353, 356-57 (9th Cir. 1996); Ross
v. Clayton County, Ga., 173 F.3d 1305, 1307 (11th Cir. 1999);
Shoemaker v. County of Los Angeles, 37 Cal. App. 4th 618, 632
(1995).
If there is a constitutionally protected property interest at
stake, the next question is what process was due in connection with
a deprivation of that property interest. See Cleveland Bd. Of Educ.
v. Loudermill, 470 U.S 532, 541 (1985) (“[O]nce it is determined
that the Due Process Clause applies, the question remains what
process is due”) (internal quotation marks omitted). “The essential
requirements of due process . . . are notice and an opportunity to
respond. The opportunity to present reasons, either in person or
in writing, why proposed action should not be taken is a fundamental
due process requirement.” Id. at 546. If a cognizable property
interest is taken away by the government without the requisite due
process, a constitutional violation occurs.
1. The County’s Alleged Liability
Plaintiff argues that the KMC bylaws, which were incorporated
into his employment contract, represent official policy of the
County. Defendants do dispute that the bylaws represent official
County policy. The bylaws were adopted the County Board of
Supervisors. (Doc. 278 at 31.) This is sufficient to make them
official policy of the County. See Lake Nacimiento Ranch Co., 841
F.2d at 879 (“The Board of Supervisors may only establish official

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policy [of the County] by a majority of the supervisors.”) (citing
Cal. Gov’t Code § 25005).
Plaintiff’s brief suggests he attempts to advance two species
of Monell liability based upon the bylaws. In his briefing,
Plaintiff states:
The Bylaws [in effect] provided for extensive due process
for core physicians in numerous scenarios like loss of
hospital privileges, but not for (i) removal of
physicians from department chairmanship, (ii) placement
of physicians on administrative leave, or (iii)
nonrenewal of physician employment contracts with
Defendant County.
(Doc. 272 at 25) (emphasis added.) From this passage, it appears
Plaintiff is claiming that the County’s failure to have or require
terms in the bylaws which provide due process rights in connection
with the removal of physicians from department chairmanship, the
placement of physicians on administrative leave, or the non-renewal
of physician employment contracts, caused the alleged constitutional
violations in this case. Where the municipal entity’s liability is
premised on a failure to act, there are specific elements that must
be satisfied:
To impose liability on a local governmental entity for
failing to act to preserve constitutional rights, a
section 1983 plaintiff must establish: (1) that he
possessed a constitutional right of which he was
deprived; (2) that the municipality had a policy; (3)
that this policy ‘amounts to deliberate indifference’ to
the plaintiff’s constitutional right; and (4) that the
policy is the ‘moving force behind the constitutional
violation.’
Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City
of Canton v. Harris, 489 U.S. 378, 389-91 (1989)); see also Berry
v. Baca, 379 F.3d 764, 767 (9th Cir. 2004). Plaintiff has made no
showing, nor even any effort to show, that the County’s failure to

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have or require specific provisions in the bylaws to provide due
process rights in connection with department chair removals,
administrative leaves, or the non-renewal of physician employment
contracts amounts to a policy of deliberate indifference to
Plaintiff’s constitutional rights. Plaintiff’s briefing, however,
also suggests that he is claiming those responsible for his
demotion, his administrative leave, and the non-renewal of his
contract “were acting pursuant to the Bylaws” in taking such actions
and, by these actions, they violated his due process rights. (Doc.
272 at 25.) This type of claim is not a failure to act claim; it
is a claim that county actors were following the letter of express
official policy and, in doing so, deprived Plaintiff of his
constitutional rights.
a. Removal From The Chairmanship
There can be no dispute that the JCC was acting pursuant to the
bylaws in removing Plaintiff from his chairmanship. Bryan’s
memorandum to the JCC stated: “I therefore request that the Joint
Conference Committee act pursuant to paragraph 9.7-4 of the Medical
Staff Bylaws and, by majority vote, endorse my recommendation to
rescind Dr. Jadwin’s appointment as Chairman, Department of
Pathology.” (Doc. 266-2 at 32.) That paragraph of the bylaws reads:
9.7-4 REMOVAL
Removal of a department chair may occur with or without
cause upon the recommendation of the chief executive
officer with the majority vote of the Joint Conference
Committee.
(Doc. 266 at 81.) No party disputes that Bryan was the chief
executive officer. With respect to his removal, Plaintiff’s due

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process claim is premised on the theory that he had a cognizable
property interest in his chair position, to which part of his base
salary was tied, and that he was removed from his position without
due process. Plaintiff’s argument is erroneous.
“No constitutionally protected property interest can exist in
the outcome of a decision unmistakably committed . . . to the
discretion of the [public entity].” Ulrich, 308 F.3d at 976
(alteration in original) (internal quotation marks omitted). Where
“a state employee serves at will, he or she has no reasonable
expectation of continued employment, and thus no property right.”
Dyack, 317 F.3d at 1033. Plaintiff’s employment contract with the
County explicitly incorporates the bylaws and states that Plaintiff
will be employed pursuant to the bylaws:
10. EMPLOYMENT STATUS
Core Physician shall be employed by the County of Kern
pursuant to the terms of this Agreement and the medical
staff bylaws of KMC. Core Physician acknowledges that he
or she will not be deemed a classified employee, or have
any rights or protections under the County’s Civil
Service Ordinance, rules or regulations.
(Doc. 266 at 23.) In addition, Plaintiff’s employment contract
emphasizes that he will be “governed” by the bylaws.
13. MEDICAL STAFF MEMBERSHIP
Core Physician will at all times be a member in good
standing of the medical staff of Kern Medical Center and
governed as such by the medical staff bylaws.
(Id.) As mentioned above, one of the bylaws explicitly permitted
Plaintiff’s removal from his chairmanship with or without cause.
Accordingly, Plaintiff served in his chair position at-will and thus
had no property interest in his chair position. See Agosta v. Agor,

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120 Cal. App. 4th 596, 604 (2004) (“By definition . . . an express
at-will contract allows an employer to sever the . . . relationship
with or without cause.”). The fact that the removal had to be
preceded by Bryan’s recommendation, and garner a majority vote, does
not change the at-will status of his position or the fact that the
voters retained unfettered discretion to remove Plaintiff from his
chairmanship. Cf. Stiesberg, 80 F.3d at 357.
Plaintiff asserts that the bylaws deprived him of due process
because his employment contract barred Defendants from “removing
Plaintiff from [the] chair [position] or terminating or otherwise
modifying the Contract at will, without cause, or without
Plaintiff’s consent.” (Doc. 272 at 27.) In making this argument,
Plaintiff ignores the fact that he was employed pursuant to the
bylaws, which permitted his removal with or without cause, and
instead he focuses on other language in his employment contract.
In a section entitled “Termination,” Plaintiff’s employment
contract reads:
A. Core Physician may terminate this Agreement, without
cause, upon ninety (90) days’ prior written notice to
County.
B. County may terminate this Agreement at any time for
cause. Cause is defined as a violation of administrative
policy of the County of Kern or KMC, unsatisfactory
clinical performance, failure to meet department
accountability or performance standards, or reduction of
need. County may terminate this Agreement upon reduction
of need upon ninety (90) days’ prior written notice to
Core Physician.
Plaintiff’s reliance on this section is unpersuasive for several
reasons. First, Plaintiff’s removal from a specific position –
department chair – did not effectuate a complete “termination” of

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his employment with the County. Second, and more important, this
section does not trump the applicability of the bylaws. Given
pertinent rules of contract construction, the bylaws are controlling
with respect to Plaintiff’s removal from his chairmanship.
The employment contract specifically provides that “this
Agreement will be construed pursuant to the laws of the State of
California.” (Doc. 266 at 21.) Section 1859 of the California
26
Code of Civil Procedure Provides:
In the construction of a statute the intention of the
Legislature, and in the construction of the instrument
the intention of the parties, is to be pursued, if
possible; and when a general and particular provision are
inconsistent, the latter is paramount to the former. So
a particular intent will control a general one that is
inconsistent with it.
In California, “under well established principles of contract
interpretation, when a general and a particular provision are
inconsistent, the particular and specific provision is paramount to
the general provision.” Prouty v. Gores Tech. Group, 121 Cal. App.
4th 1225, 1235 (2004); see also McNeely v. Claremont Mgmt. Co., 210
Cal. App. 2d 749, 753 (1962). Similarly, under California law,
“particular expressions [in a contract] qualify those which are
general.” Cal. Civ. Code § 3534; see also Kavruck v. Blue Cross of

A few sentences later, the employment contract contains a
26
forum selection clause specifying that the “venue of any action
relating to this Agreement shall be in the County of Kern.” (Doc.
266 at 22.) No federal court sits in Kern County. Rather, the
district court with jurisdiction over Kern County sits in Fresno
County. The parties seem content on waiving this provision of the
employment contract. In any event, this clause does not implicate
subject matter jurisdiction, it is a matter of venue, and neither
party has raised the issue of venue.
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Cal., 108 Cal. App. 4th 773, 781 (2003) (“In the interpretation of
insurance contracts, a specific provision relating to a particular
subject will govern in respect to that subject, as against a general
provision, even though the latter, standing alone, would be broad
enough to include the subject to which the more specific provision
relates.”).
The term in the employment contract discussing “termination”
deals with the general cessation of the employment relationship
between the parties and grants the County right to terminate the
entire relationship for cause. On the other hand, the bylaw
provision, which is also a term of Plaintiff’s contract, deals
specifically with the removal of a department chair from his
position and grants the power to remove a department chair at-will.
Assuming the termination clause and the bylaw are inconsistent, with
respect to the conduct at issue (i.e., the removal), the bylaw is
far more specific and particularized than the termination clause.
Accordingly, the bylaw controls. See also Restatement (Second) of
Contracts § 203 cmt. e (1981) (“If the specific or exact can be read
as an exception or qualification of the general, both are given some
effect.”).
The determination that the bylaw controls is also supported by
other rules of contract construction. “The preferable approach is
to interpret a contract in a manner which will give effect to all
of its provisions,” In re Steven A., 15 Cal. App. 4th 754, 771
(1993), and “where two clauses of an agreement appear to be in
direct conflict, it is the duty of the court to reconcile the two
clauses to give effect to the whole of the instrument,” In re

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Marriage Of Whitney, 71 Cal. App. 3d 179, 182 (1977). Here, the
termination provision and the bylaw can be reconciled. The
employment contract provides in pertinent part:
No right or remedy herein conferred on or reserved to the
County is exclusive of any other right or remedy herein
or by law or equity provided or permitted, but each shall
be cumulative of every other right or remedy given
hereunder or now or hereafter existing by law or in
equity or by statute or otherwise, and may be enforced
concurrently from time to time.
(Doc. 266 at 23) (emphasis added.) The employment contract confers
upon the County the power to terminate the entire employment
relationship for cause as defined therein. The County’s right of
total termination is “cumulative of” and does not exclude the
County’s separate “right” under the bylaw to remove Plaintiff from
his specific chair position at-will. Interpreting the employment
contract in such manner reconciles the apparent conflict and gives
each provision meaning consistent with rules of contract
construction. For the foregoing reasons, the bylaw controls as to
the chairmanship removal.
Plaintiff also points to other language in his employment
contract in an effort to avoid the effect of the bylaw. Plaintiff
cites to the provision in his contract on the “Review and Appeal
Process” which states that “[r]eview and appeal of the decision to
impose corrective action or terminate for cause shall follow the
process set forth in the KMC Faculty Practice Board policy and
procedure, title Corrective Action and Termination Review Process,
or the medical staff bylaws, whichever is applicable.” (Doc. 259-4
at 34.) Plaintiff’s reliance on this provision is unpersuasive for

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several reasons.
First, there is no evidence that Plaintiff’s removal from his
chairmanship was taken or designated as a corrective or disciplinary
measure, and Plaintiff does not argue otherwise. Nor was
Plaintiff’s removal from his chairmanship a “termination” of his
entire employment contract. Second, this provision imposes no
substantive restraints on the County’s discretion to remove
Plaintiff from his chairmanship. Instead, this section provides
Plaintiff with a review and appeal process, as set forth in other
documents, from a decision already made. See Sanchez v. City of
Santa Ana, 915 F.2d 424, 428-29 (9th Cir. 1990) (“A governing body
does not create a property interest in a benefit merely by providing
a particular procedure for the removal of that benefit” or “an
avenue to appeal” a decision) (internal quotation marks omitted).
Third, this section expressly refers to the “medical staff bylaws”
which explicitly permit removal from chairmanship at-will. For
these reasons, Plaintiff’s reliance on this section is unavailing.
Finally, Plaintiff references the provision in his employment
contract on modifications which provides that “[t]his Agreement may
be modified in writing only, signed by the parties in interest at
the time of the modification.” (Doc. 266 at 24.) Plaintiff’s
reliance on this provision is unpersuasive. This provision places
no substantive restraints on the County’s right to remove Plaintiff
from his chairmanship. This provision simply imposes a requirement
that any modification to the contract be memorialized in writing.
Moving away from the employment contract, Plaintiff argues that
the County “has not removed a department chair without cause since

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at least October 2000.” (Doc. 272 at 27.) Plaintiff contends that
this history creates a “mutually explicit understanding” that he
would not removed without cause.
In Perry v. Sindermann, 408 U.S. 593, 601 (1972) the Supreme
Court stated that, for due process purposes, “property” includes a
person’s interest in a benefit, such as employment, “if there are
such rules or mutually explicit understandings that support his
claim of entitlement to the benefit and that he may invoke at a
hearing.” Referencing Perry and its “mutually explicit
understandings” language, the Supreme Court explained in Bishop v.
Wood, 426 U.S. 341, 344 (1976) (footnotes omitted) that a property
interest can be created by an “implied contract”:
A property interest in employment can, of course, be
created by ordinance, or by an implied contract. In
either case, however, the sufficiency of the claim of
entitlement must be decided by reference to state law.
Here, the mere fact that the County has not removed a department
chair without cause since at least October 2000 does not demonstrate
Plaintiff has a cognizable property interest in his chair position.
First, the bylaws permit the removal of a department chair with
or without cause. Plaintiff’s evidence simply shows conduct in
conformity with an express power. Second, “the sufficiency of the
claim of entitlement must be decided by reference to state law.”
Bishop, 426 U.S. at 344. Under California law, “[t]here cannot be
a valid express contract and an implied contract, each embracing the
same subject, but requiring different results.” Camp v. Jeffer,
Mangels, Butler & Marmaro, 35 Cal. App. 4th 620, 630 (1995)
(internal quotation marks omitted). “The express term is

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controlling even if it is not contained in an integrated employment
contract. Thus, the . . . express at-will agreement preclude[s] the
existence of an implied contract requiring good cause for
termination.” Tomlinson v. Qualcomm, Inc., 97 Cal. App. 4th 943, 945
(2002) (internal citation and quotation marks omitted) ; see also
27
Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 337 (2000) (“Where
there is no express agreement, the issue is whether other evidence
of the parties’ conduct has a ‘tendency in reason’ (Evid.Code, §
210) to demonstrate the existence of an actual mutual understanding
on particular terms and conditions of employment.”) (emphasis
added). Here the bylaws, which are a part of an express employment
contract Plaintiff signed, permit removal of a department chair at-
will. This express agreement is controlling over an implied
contract requiring good cause for removal from his chairmanship,
which Plaintiff attempts to create by invoking the County’s history
of not removing department chairs absent cause.
For all the reasons discussed above, Plaintiff could be removed
from his chairmanship at-will and thus had no cognizable property
interest in his chairmanship position. The County is entitled to
summary judgment on Plaintiff’s claim that his removal from the
chairmanship violated Plaintiff’s procedural due process rights.
The County’s motion is GRANTED on this claim.
b. Reduction In Pay
Plaintiff argues that he a protectible property interest in his
base pay and that he was deprived of this interest (at least

Plaintiff’s employment contract was integrated. (See Doc.
27
266 at 25) (setting forth a “Sole Agreement” provision.)
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partially) without due process when his salary was reduced following
his removal from his chairmanship. It is clear that Plaintiff’s
contract explicitly called for a base salary. (Doc. 266 at 10.) It
is equally clear that a public employee can obtain a property
interest in his or her earned or guaranteed compensation. Orloff
v. Cleland, 708 F.2d 372, 378 (9th Cir. 1983); Eguia v. Tompkins,
756 F.2d 1130, 1138 (5th Cir. 1985). Notwithstanding these
principles, Plaintiff’s argument is erroneous. 28
Plaintiff had no property interest in his chairmanship
position. By extension, he had no property interest in the portion
of his base salary tied to his chairmanship. Cf. Sanchez, 915 F.2d
at 429 (concluding that an employee had a property interest in merit
pay because a reduction in merit pay was considered a “demotion”
under the applicable city charter, and a demotion was permitted for
“certain specified reasons” thus restricting the “City’s authority
to demote an employee”).
In support of his argument, Plaintiff cites to minutes from a
JCC meeting held on September 2007. During that meeting, while
discussing the potential fate of another physician, Dr. Leonard
Perez, someone said, “[t]he problem is we have tied a portion of the
chair’s compensation to that position, that is a property right. Dr.
Perez is entitled to due process hearing for this reason.” (Doc.
277-2 at 225.) This unidentified person’s conclusory statements
29

For Monell purposes, it is assumed that the bylaw which
28
permitted Plaintiff’s removal from the chairmanship with or without
cause was the moving force behind Plaintiff’s salary reduction.
Dr. Perez was terminated for cause. (Doc. 267-2 at 145.)
29
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of law are insufficient to create a genuine dispute. See Fed. R.
Civ. P. 56(e)(2) (requiring a party opposing a summary judgment to
set forth “specific facts” showing a genuine issue for trial)
(emphasis added); Surrell v. Cal. Water Serv. Co., 518 F.3d 1097,
1103 (9th Cir. 2008) (“Conclusory statements without factual support
are insufficient to defeat a motion for summary judgment.”).
When, as here, an employee has no property interest in
continued employment in a position, he cannot have a property
interest in his unearned compensation from that position. See
Lillehaug v. City of Sioux Falls, 788 F.2d 1349, 1352 (8th Cir.
1986) (rejecting a City bandmaster’s claim that a reduction in his
salary violated due process, reasoning “[t]he ordinances and statute
make plain that the City Commission may discharge Lillehaug [the
bandmaster] by majority vote and without cause. Lillehaug thus has
no property interest in his continued employment, nor in any
particular term of his employment, such as the level of
compensation.”). Plaintiff’s employment contract called for him to
perform the duties of department chair. Plaintiff’s expectation
that he would continue to be paid for duties he no longer performed
is a “unilateral expectation,” Roth, 408 U.S. at 577, that does not
create a property interest.
Because Plaintiff had no property interest in his chair
position he had no corresponding property interest in the
compensation tied to his chairmanship. Plaintiff has not created,
or even attempted to create, a triable issue that the reduction in
his compensation was unconnected to his chairmanship. (See Doc. 272
at 27; Doc. 272-2 at 8.). For these reasons, the County’s motion

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for summary judgment is GRANTED on Plaintiff’s claim that the
reduction in his salary violated Plaintiff’s procedural due process
rights.

c. Administrative Leave
Plaintiff argues that he had a cognizable property interest in
professional fees which he was deprived of when he was placed on
administrative leave. These professional fees are separate and
apart from his base salary. Plaintiff’s employment contract states
that his compensation will be “composed of a base salary paid by the
County, professional fee payments from third-party payors, and
potential other income . . . .” (Doc. 266 at 10.) Plaintiff’s
employment contract further provides that “[p]rofessional fees
include all professional fee collections or payments associated with
direct patient care by Core Physician.” (Doc. 266 at 12.) In other
words, in addition to base salary, Plaintiff generated professional
fees by performing services. In 2004, Plaintiff’s professional fees
were $131,709,; for 2005, they were $103,444; and for 2006, they
were $28,596. Plaintiff contends that by forcing him onto
administrative leave, the County deprived him of a property interest
in professional fees.
Plaintiff does not point to any provision in the bylaws which
discuss administrative leave. To show that Culberson, who put
Plaintiff on administrative leave, was acting pursuant to official
policy of the County, Plaintiff must point to that official policy.
Plaintiff notes that in Defendants’ motion for summary judgment they
admit that “Plaintiff was placed on paid administrative leave on

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December 7, 2006, pursuant to the Kern County Policy and Procedures
Manual.” (Stmt of Undisp. Fact. ¶¶41, 41a).” (Doc. 253 at 33.) The
section of the Kern County Policy and Procedures Manual (the
“Manual”) on “Administrative Leave With Pay” reads, in pertinent
part, as follows:
A department head may place an employee on administrative
leave with pay if the department head determines that the
employee is engaged in conduct posing a danger to County
property, the public or other employees, or the continued
presence of the employee at the work site will hinder an
investigation of the employee’s alleged misconduct or
will severely disrupt the business of the department.
During the administrative leave, the employee shall be
ordered to remain at home and available by telephone
during the normally assigned work day. A department head
may, if necessary, adjust the employee’s work schedule to
provide availability during normal business hours, Monday
through Friday, 8:00 AM to 5:00 PM. A department head may
not order an administrative leave with pay for a period
in excess of five assigned workdays within a single pay
period without the written authorization of the Employee
Relations Officer in the County Administrative Office.
(Doc. 259-10 at 40.) For Monell purposes, no party disputes that
the County’s Manual constitutes an official policy of the County.
Plaintiff’s employment contract states that he must “comply with all
applicable KMC and County policies and procedures.” (Doc. 266 at
22.) The County obviously takes the position that the Manual
applied to Plaintiff’s employment. The question remains whether
Plaintiff’s administrative leave, pursuant to the Manual, deprived
him of a cognizable property interest in professional fees.
Unquestionably, Plaintiff had a property interest in his
guaranteed base salary (which he was paid in full while on
administrative leave). Plaintiff’s asserted property interest in
his professional fees is more problematic. Plaintiff was not

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guaranteed any specific amount of professional fees, and if he
showed up to work, he was not guaranteed that he would earn them –
it was up to him to generate independent professional fees.
Moreover, the County did not agree to provide source of this
compensation – professional fees came from third parties, not the
coffers of the County. “An interest that gives rise to an
entitlement is always a conditional interest, but not all
conditional interests in governmental benefits give rise to
entitlements. To create an entitlement, the law must remove the
decision to grant the benefit from agency discretion.” Peacock, 510
F.2d at 1327. Because the County was not the source of professional
fees, the County was never in a position to make a decision to grant
or deny them – whether professional fees were earned was up to
Plaintiff. “A mere opportunity to acquire property . . . does not
itself qualify as a property interest protected by the
Constitution.” Head v. Chi. Sch. Reform Bd. Of Trs., 225 F.3d 794,
802 (7th Cir. 2000).
For these reasons, Plaintiff has not created a triable issue
that he had a cognizable property in any unearned professional fees
standing alone. This, however, does not preclude Plaintiff from
demonstrating that the loss (if provable) of professional fees is
economic harm occasioned by the deprivation of some property
interest. See Bordelon v. Chi. Sch. Reform Bd. Of Trs., 233 F.3d
524, 520 (7th Cir. 2000) (stating, in an employment case, “to
recover for a deprivation of a property interest, Bordelon [the
employee] must show some economic loss from the Board’s actions, or
at least establish an identifiable impact on his future income or

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economic benefits.”).
Plaintiff had a term employment contract giving him a right to
be employed as a core physician for five years (from October 5, 2002
to October 4, 2007). According to the terms of his contract, his
employment relationship could be terminated “at any time for cause.”
No other part of the contract gave the County the right to terminate
his employment relationship without cause. Therefore, Plaintiff had
a property interest in his continued employment relationship at
least through the remainder of his term. This, however, does not
resolve the issue. Plaintiff was continuously employed, albeit on
leave, through the remainder of his term. To have a viable claim
then, he must demonstrate that his property interest in continued
employment included a property right in “active duty,” Deen v.
Darosa, 414 F.3d 731, 734 (7th Cir. 2005), or, as the Ninth Circuit
has suggested, a “property interest in avoiding placement on
administrative leave with pay.” Qualls v. Cook, 245 F. App’x 624,
625 (9th Cir. 2007).
Plaintiff has submitted evidence which creates a triable issue
that he had such an interest.
His employment contract specified that he was subject to “all
applicable KMC and County policies and procedures.” (Doc. 266 at
22.) Once such policy was the Manual which provided that Plaintiff
could be placed on paid administrative leave with pay under certain
specified circumstances including when “the department head
determines that the employee is engaged in conduct posing a danger
to County property, the public or other employees, or the continued
presence of the employee at the work site will hinder an

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investigation of the employee’s alleged misconduct or will severely
disrupt the business of the department.” No other provision of
Plaintiff’s employment contract granted the County the right to
place Plaintiff on paid administrative leave. By specifying the
grounds on which Plaintiff could be placed on paid administrative
leave, and by not contractually providing for any other right to
place Plaintiff on paid administrative leave, the County implicitly
limited its authority to place Plaintiff on paid leave to the
specific reasons. See Sanchez, 915 F.2d at 429. A reasonable trier
of fact could conclude that this limitation significantly
constrained the County’s authority, thus supporting a claim that
Plaintiff’s property right in continued employment included a
property right in active duty.
Plaintiff’s history of professional fee earning, of which the
County was aware, further supports a claim that his property right
in continued employment included a property right in active duty.
A deprivation that leads to only de minimis harm does not create an
actionable due process claim. Bordelon, 233 F.3d at 530 (“[T]o be
actionable under the due process clause, the deprivation of a public
employee’s property interest in continued employment must be more
than de minimis.”). Given Plaintiff’s history of professional fee
earnings, it cannot be said that his loss of potential professional
fees is de minimis harm. In addition, given that his contract
expressly provided that he could earn professional fees and that his
fees would be a part of his total compensation, both Plaintiff and
the County certainly envisioned that Plaintiff would be in a
position to earn professional fees so that Plaintiff could obtain

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the fruits of his bargain.
Finally, there is some California authority that a physician
who is employed under a fixed term contract with a County and who
is acting lawfully and complying with the terms of his contract
cannot be prevented “from performing the duties incumbent on him”
for arbitrary reasons. Grindley v. Santa Cruz County, 4 P. 390, 393
(Cal. 1884). While ancient and in no way dispositive, this case
lends support to the position that, by having a fixed term contract
with the County with a general property right in continued
employment, Plaintiff may have had a concomitant property right in
active duty during the term of his employment.
For all the reasons set forth above, Plaintiff has created a
triable issue (but not conclusively demonstrated) that his property
right in continued employment included the property right to active
duty such that he would be in a position to earn professional fees.
Accordingly, the next inquiry is what process was due in connection
with Plaintiff’s placement on administrative leave. Here, however,
the precise contours of what process was due need not be delineated.
Plaintiff did not receive essential attributes of due process.
Plaintiff was placed on administrative leave without any explanation
as to what he had done or any opportunity to respond. The County’s
motion is DENIED as to Plaintiff’s claim that he was denied
procedural due process in connection with his placement on paid
administrative leave.
d. Non-renewal
Plaintiff claims that his property right to continued
employment extended beyond the fixed term of his contract and

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included a property interest in a renewed contract. Nothing in his
employment contract provides Plaintiff with any expectation that he
would have his contract renewed. Plaintiff argues instead that
30
the there was a “common law of re-employment” pursuant to which he
can claim a legitimate entitlement to a renewed contract. In Roth,
the Supreme Court concluded that a university professor hired under
a fixed term contract had no property interest in re-employment
because his contract “did not provide for contract renewal absent
‘sufficient cause.’” 408 U.S. at 578. In fact, it “made no
provision for renewal whatsoever.” Id. In addition, there was not
any “state statute or University rule or policy that secured his
interest in re-employment or that created any legitimate claim to
it.” Id. In a footnote, however, Roth left open the possibility
that an employee in such a case may nonetheless be able to establish
a property interest in re-employment:
To be sure, the respondent does suggest that most
teachers hired on a year-to-year basis by Wisconsin State
University-Oshkosh are, in fact, rehired. But the
District Court has not found that there is anything
approaching a ‘common law’ of re-employment, see Perry v.
Sindermann, 408 U.S. 593, at 602, 92 S.Ct. 2694, at 2705,
33 L.Ed.2d 570, so strong as to require University
officials to give the respondent a statement of reasons
and a hearing on their decision not to rehire him.
408 U.S. at 578 n.16 (emphasis added). Plaintiff claims that there
is an unwritten common law of re-employment fostered by the County
with respect to re-employing medical staff who work at KMC. In
support of this theory, Plaintiff points to evidence that, since

The County admits that it made a decision not to renew
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Plaintiff’s contract. (Doc. 278 at 7.) For Monell purposes, this
is sufficient.

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October 2000, the County has not renewed the contract of only one
other member of the medical staff. (Several other physicians
resigned, retired or were terminated.) Plaintiff also points to
deposition testimony from Bryan that he regards “core physicians”
as “permanent” employees.
A. A core physician, as it evolved, was someone who
dedicated their time and energies towards Kern Medical
Center and generally had teaching, administrative, and
clinical duties, and that’s how we define a core
physician.
. . . .
Q. Would you characterize core physicians as being
permanent physicians of Kern Medical Center?
A. Essentially, that’s correct, yes.
(Bryan Dep. 38:23-39:2; 39:6-8.) Pursuant to his employment
contract, Plaintiff was a “core physician.”
Plaintiff’s evidence is insufficient to create a triable issue
that he had a property interest in renewed employment. The fact that
Plaintiff and other physicians enjoyed a long history of working for
the County does not create a property interest in renewed
employment. “Longevity alone does not create a property interest.”
Bollow v. Fed. Reserve Bank Of S.F., 650 F.2d 1093, 1099 (9th Cir.
1981); see also Guz, 24 Cal. 4th at 342 (“[L]ongevity, raises and
promotions are their own rewards for the employee’s continuing
valued service; they do not, in and of themselves, additionally
constitute a contractual guarantee of future employment security.
A rule granting such contract rights on the basis of successful
longevity alone would discourage the retention and promotion of
employees.”) (emphasis omitted). Similarly, the fact that, in the

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past, the County may have renewed the employment contracts of most
non-retiring, non-terminated, non-resigning physicians does not, by
itself, create a property interest in renewed employment. See Smith
v. Bd. Of Educ., 708 F.2d 258, 264 (7th Cir. 1983) (“The Supreme
Court has . . . rejected the argument that a state teacher with a
one-year employment contract has a property right in being rehired
just because the state has in the past rehired him and most other
teachers it employ[]s on a year-to-year basis.”). Furthermore,
“[t]here is nothing to suggest that the [County] follows any set of
standards when it considers whether to rehire a[] [core physician]
and that it considers itself bound to apply that same set of
standards every time a[] [core physician’s] contract is up for
renewal.” Smith, 708 F.2d at 265; see also Doran v. Houle, 721 F.2d
1182, 1186 (9th Cir. 1983) (declining to find a property interest
in the renewal of a permit where “no published criteria for choosing
among qualified applicants or specific standards for determining
whether to renew a previously issued permit” existed) (emphasis
added). The most that can be inferred from Plaintiff’s renewal
evidence is that, in the past, the County had been satisfied with
the performance of certain of its employees. “That the [County] had
been satisfied in the past was, of course, no guarantee that it
would always remain so.” Smith, 708 F.2d at 265. Plaintiff’s
renewal evidence is insufficient, and Bryan’s testimony that core
physicians are essentially “permanent” does not change the result.
There is no indication that to the County or to Bryan a
“permanent” core physician means a physician who, despite having a
fixed term contract with no provision on contract renewal, is a

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permanent fixture who can legitimately expect a renewal absent
cause. Bryan’s brief testimony cannot be imbued with such meaning.
Testimony from another core physician with the County – Dr.
Shertukde – affirms this point:
Q. Okay. So when you become a core physician, you’re
becoming a permanent physician. Correct?
A. That’s right.
Q. And you get a permanent contract. Correct?
A. Yeah.
Q. Permanent contract just like yours. Right?
A. Yeah.
Q. Okay. And then you expect that as a core physician —
core physicians expect to continue working at Kern
Medical Center for the rest of their careers. Correct?
A. No. I think many of them have certain years contract.
Like some people, like, you know, heads of
departments probably have a five-year contract.
Q. Okay.
A. Or some people have a four-year contract,
people have a three-year contract, things like that.
(Shertukde Dep. 206:7-24.) Plaintiff’s evidence in insufficient
to create a triable issue that the County fostered “anything
approaching a ‘common law’ of re-employment . . . so strong as to
require [County] officials to give [Plaintiff] a statement of
reasons and a hearing on their decision not to rehire him.” Roth,
408 U.S. at 578 n.16 (emphasis added). Accordingly, the County is
entitled to summary judgment on this claim. The County’s motion is
GRANTED.

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2. Liability of Individual Defendants
a. Bryan
Defendant Bryan is sued in his individual capacity and in his
official capacity. As discussed above, with respect to the removal,
pay cut and non-renewal, there was no constitutional violation as
Plaintiff was not deprived of a constitutionally cognizable property
interest. Summary judgment in favor of Bryan in his individual and
official capacities is warranted on Plaintiff’s due process claims
insofar as they are based on the removal, pay cut and non-renewal.
With respect to Plaintiff’s placement on paid administrative
leave, Bryan had no personal involvement in that action.
Accordingly, to the extent Plaintiff’s due process claim is asserted
against Bryan in his individual capacity based on Plaintiff’s
placement on administrative leave, Bryan is entitled to summary
judgment in his favor. Plaintiff also asserts an official capacity
claim against Bryan “in his official capacity as a member of the
JCC.” (Doc. 241 at 37.) Bryan had no involvement individually or
in his official capacity as a member of the JCC in a decision to
place Plaintiff on paid administrative leave. Moreover, an official
capacity claim for Plaintiff’s placement on paid administrative
leave pursuant to the Manual would be redundant of Plaintiff’s
surviving claim against the County. See Megargee v. Wittman, 550 F.
Supp. 2d 1190, 1206 (E.D. Cal. 2008). Bryan’s motion for summary
judgment is GRANTED.
b. Harris
Harris is sued in his individual capacity only. As discussed
above, with respect to the removal, pay cut and non-renewal, there

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was no constitutional violation as Plaintiff was not deprived of a
constitutionally cognizable property interest. Summary judgment in
favor of Harris is warranted on Plaintiff’s due process claims
insofar as they are based on the removal, pay cut, and non-renewal.
With respect to the placement of Plaintiff on administrative
leave there is some evidence that Harris had personal involvement
in that decision. Harris has moved for summary judgment on the
grounds of qualified immunity.
“The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. __, 129 S. Ct. 808, 815 (2009) (internal
quotation marks omitted). “[Q]ualified immunity operates to ensure
that before they are subjected to suit, officers are on notice their
conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(internal quotation marks omitted). As discussed above, Plaintiff
may be able to establish that his constitutional right of continued
employment included a right to active duty, or, as the Ninth Circuit
has suggested, a “property interest in avoiding placement on
administrative leave with pay.” Qualls, 245 F. App’x at 625. In
Qualls, the Ninth Circuit declined to affirmatively decide whether
such a property interest was cognizable and instead assumed it was
and found no violation of the plaintiff’s procedural due process
rights. Id. at 626. Since Qualls, it does not appear the Ninth
Circuit has revisited the issue and Plaintiff points to no authority
suggesting otherwise. Because there is no Ninth Circuit (or Supreme

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Court) authority on point, whatever property interest Plaintiff had
in avoiding placement on administrative leave with pay, this
interest was not clearly established at the time of the alleged
deprivation. With respect to Plaintiff’s claim that his placement
on paid administrative leave violated procedural due process rights,
Harris is entitled to qualified immunity on this claim and thus
summary judgment in his favor. See Wheaton v. Webb-Petett, 931 F.2d
613, 619 (9th Cir. 1991) (concluding that qualified immunity was
appropriate where, in light of the current state of the law, “it
would not have been apparent to a reasonable official that [the
employee] had a property interest in his management service
employment.”). Harris’ motion for summary judgment in his
individual capacity is GRANTED.
H.
Affirmative Defenses
Plaintiff seeks summary judgment as to certain of Defendants’
affirmative defenses enumerated below. Defendants provided no
briefing in support of any of their affirmative defenses. At oral
argument on the motion, Defendants’ counsel stated that the
affirmative defenses were not “at issue.” From the lack of briefing
and the not “at issue” statement, it appears Defendants have
abandoned their affirmative defenses. Notwithstanding the
Defendants’ apparent concession to the lack of merit in the
affirmative defenses, the propriety of granting summary judgment on
the affirmative defenses must be analyzed.
1.
Subject Matter Jurisdiction
Defendants’ second affirmative defense asserts that this “Court
lacks subject matter jurisdiction over Plaintiff’s alleged claims

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and should refuse to exercise jurisdiction over Plaintiff’s state
law claims because they predominate and all the alleged federal
claims are insubstantial.” (Doc. 246 at 12.) Federal question
jurisdiction exists over Plaintiff’s remaining federal claims and
whether to exercise supplemental jurisdiction is within the court’s
discretion. Summary judgment on this affirmative defense is
GRANTED.
2.
Peer Review Defense
Plaintiff seeks summary judgment on Defendants’ third
affirmative defense which asserts a form of peer review privilege
under California law. The third affirmative defense asserts that
the Defendants actions were privileged “in that Defendants’ action
were in furtherance of medical peer review . . . .” (Doc. 246 at
12.) As noted by Plaintiff, the Ninth Circuit has not recognized,
and has rejected the adoption of, a peer review privilege under
federal law. Agster v. Maricopa County, 422 F.3d 836 (9th Cir.
2005). As stated in Agster, “[w]here there are federal question
claims and pendent state law claims present, the federal law of
privilege applies.” Agster, 422 F.3d at 839 (citing F. R. Evid. 501
advisory committee note, and Wm. T. Thompson Co. v. Gen Nutrition
Corp., 671 F.2d 100, 104 (3rd Cir. 1982)). Under Agster, because
the federal law of privilege applies and because federal law does
not recognize a peer review privilege, Defendants’ peer review
privilege defense is unavailing. To the extent Defendants’ third
affirmative defense asserts a state-law peer review privilege,
summary judgment in favor of Plaintiff is GRANTED.
3.
Immunity

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Defendants’ fourth affirmative defense is that “California
Civil Code § 47(a) and (b) immunizes Defendants and each of them
from liability.” (Doc. 246 at 12.) These sections provide:
A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial
proceeding, (3) in any other official proceeding
authorized by law, or (4) in the initiation or course of
any other proceeding authorized by law and reviewable
pursuant to Chapter 2 (commencing with Section 1084) of
Title 1 of Part 3 of the Code of Civil Procedure, except
as follows . . . .
Plaintiff suggests that these sections are inapplicable to statutory
causes of action. This proposition is dubious. See Ribas v. Clark,
38 Cal. 3d 355, 364-65 (1985). Nevertheless because Plaintiff
argues and concedes that he is not asserting any claims which would
permit the proper invocation of these sections,(Doc. 272 at 32), and
given Defendants’ silence in response, summary judgment on the
fourth affirmative defense is GRANTED.
4.
“Contributory Negligence”
Defendants’ fifth affirmative defense is that “during
Plaintiff’s employment at Kern Medical Center, Plaintiff was
arrogant, disagreeable, uncooperative, intimidating, overbearing,
self-righteous and unfriendly; that Plaintiff refused to work
collaboratively or professionally with the medical staff at Kern
Medical Center; that he made unfounded, frivolous and repetitive
complaints and criticisms of Kern Medical Center, its policies and
procedures; and made unfounded and frivolous complaints against
members of the medical staff at Kern Medical center and that

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Plaintiff’s behavior contributed to and was the direct and proximate
cause of any stresses, disabilities or injuries that Plaintiff
believes he sustained.” (Doc. 246 at 12.) Plaintiff labels this
affirmative defense as “contributory negligence” and then asserts
that none of his claims allege negligence. Plaintiff’s assumption
that this affirmative defense is one for “contributory negligence”
is not persuasive.
In essence, this affirmative defense asserts that Plaintiff’s
own behavior caused the injuries he claims. In some instances, this
type of defense is not truly an “affirmative defense.” For example,
if Plaintiff’s own behavior caused the adverse employment actions
he claims, then his behavior destroyed the alleged causal link
between any protected status or activity and any adverse employment
action. Causation is an element of Plaintiff’s claims the negation
of which is not an affirmative defense. This does not mean,
however, that summary judgment should be granted.
This affirmative defense can be fairly read as pleading the
affirmative defenses of unclean hands and/or equitable estoppel,
albeit without those discrete labels. “To prevail on an unclean
hands defense, the defendant must demonstrate that the plaintiff’s
conduct is inequitable and that the conduct relates to the subject
matter of its claims.” Bros. Records, Inc. v. Jardine, 318 F.3d
900, 909 (9th Cir. 2003). At minimum, the fifth affirmative defense
put Plaintiff on fair notice of alleged inequitable conduct on his
part and that such conduct related to the subject matter of his
claims. Plaintiff does not make any argument or showing that there
is no evidence to support an unclean hands theory. Nor does

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Plaintiff argue that this theory is not assertable with respect to
any of Plaintiff’s claims. Plaintiff has not met his burden at the
summary judgment stage and summary judgment on this affirmative
defense is DENIED.
5.
Statute Of Limitations
Defendants’ sixth affirmative defense is that “Plaintiff’s
injuries, as alleged in the Second Amended Complaint occurred more
than one year before Plaintiff commenced this action and that
Plaintiff’s claims are, therefore, barred by the statute of
limitations established in California Code of Civil Procedure §
340.” (Doc. 246 at 12.) Defendants’s seventh affirmative defense
is that Plaintiff’s claims are barred by the two-year statute of
limitations set forth in California Code of Civil Procedure § 335.1.
There is no indication or argument that these statute of limitation
apply or that, if they do, Plaintiff has not complied with them.
Summary judgment on these affirmative defenses is GRANTED in favor
of Plaintiff.
6.
Administrative Exhaustion
Defendants’ eighth affirmative defense is that Plaintiff has
failed to exhaust his administrative remedies. In their concurrently
filed Rule 12© motion for judgment on the pleadings, Defendants
explicitly conceded that Plaintiff exhausted his administrative
remedies (which they also conceded in discovery). Summary judgment
is GRANTED on this affirmative defense in favor of Plaintiff.
8.
Qualified Immunity
Defendants’ ninth affirmative defense is that “Defendants and
each of them have qualified immunity for each and every claim

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alleged in the Second Amended Complaint.” (Doc. 246 at 12.) As
discussed above, this affirmative defense is applicable in this
case. Summary judgment on this affirmative defense is DENIED.
9.
Workers’ Compensation Preclusion
Defendants’ tenth affirmative defense is that Plaintiff’s
“injuries, as alleged in the Second Amended Complaint, arose within
the scope of Plaintiff’s employment and that Plaintiff’s sole and
exclusive remedy lies under the California Workers Compensation
Act.” (Doc. 246 at 13.) As discussed above, this affirmative
defense lacks merit. Summary judgment on this affirmative defense
is GRANTED in favor of Plaintiff.
I.
Spoliation
In opposition to Defendants’ motion for summary judgment,
Plaintiff argued that Barbara Patrick, former Chair of the Kern
County Board of Supervisors, David Culberson former CEO of KMC, and,
Scott Ragland, former President of the medical staff at KMC,
destroyed evidence purportedly relevant to Plaintiff’s case.
Plaintiff did not assert a claim for spoliation of evidence in his
second amended complaint. Plaintiff attempts to use the evidence
of spoliation to create a negative inference against Defendants in
hopes of surviving Defendants’ motion for summary judgment. (Doc.
275 at 4.). With respect to many claims, Plaintiff has survived
Defendants’ motion for summary judgment. To the extent his claims
fail to survive, Plaintiff has not adequately shown that the
infirmity in his claims have a sufficient connection to improper
evidence destruction. Accordingly, for purposes of summary
judgment, Plaintiff’s spoliation argument is unpersuasive and does

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not warrant a denial of summary judgment.
J. Evidentiary Objections
Plaintiff has filed various evidentiary objections to the
evidence submitted by Defendants’ in support of their motion for
summary judgment. The court granted summary judgment in favor of
Defendants on some claims because Plaintiff’s evidence failed to
create a triable issue. In granting summary judgment in Defendants’
favor on the claims specified, no reliance was placed on
inadmissible evidence properly objected to by Plaintiff. For these
reasons, Plaintiff’s evidentiary objections are moot.
V. CONCLUSION
For the foregoing reasons:
1. Summary judgment in favor of Defendants is GRANTED on
Plaintiff’s claim for a violation of § 1278.5 of the Health & Safety
Code. Plaintiff’s motion is DENIED.
2. Summary judgment in favor of Defendants is GRANTED on
Plaintiff’s claim for a violation of § 1102.5 of the Labor Code.
Plaintiff’s motion is DENIED.
3. Summary judgment is DENIED for all parties on Plaintiff’s
claim for interference under the FMLA.
4. Summary judgment is DENIED for all parties on Plaintiff’s
FMLA retaliation claim.
5. Summary judgment is DENIED for all parties on Plaintiff’s
CFRA retaliation claim.
6. Summary judgment is DENIED for all parties on Plaintiff’s
claim for interference with/denial of CFRA rights.
7. Summary judgment is DENIED for all parties on Plaintiff’s

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FEHA reasonable accommodation claim.
8. Summary judgment is DENIED for all parties on Plaintiff’s
FEHA interactive process claim.
9. Summary judgment is DENIED for all parties on Plaintiff’s
FEHA disability discrimination claim.
10. Summary judgment is DENIED for all parties on Plaintiff’s
FEHA retaliation claim.
11. Summary judgment is GRANTED in favor of the County with
respect to Plaintiff’s § 1983 claim to the extent Plaintiff is
asserting a deprivation of due process in connection with his
removal from his chairmanship, reduction in pay, and the non-renewal
of his contract. The County’s motion for summary judgment is DENIED
with respect to Plaintiff’s § 1983 claim to the extent Plaintiff is
asserting a deprivation of due process in connection with his
placement on paid administrative leave. The individual defendants’
motion for summary judgment is GRANTED on Plaintiff’s § 1983 claims.
Plaintiff’s motion is DENIED.
13. Summary judgment on the second affirmative defense is
GRANTED in favor of Plaintiff.
14. Summary judgment on the third affirmative defense, to the
extent it asserts a peer review privilege, is GRANTED in favor of
Plaintiff.
15. Summary judgment on the fourth affirmative defense is
GRANTED in favor of Plaintiff.
16. Summary judgment on the fifth affirmative defense is
DENIED.
17. Summary judgment on the sixth affirmative defense is

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GRANTED in favor of Plaintiff.
18. Summary judgment on the seventh affirmative defense is
GRANTED in favor of Plaintiff.
19. Summary judgment on the eighth affirmative defense is
GRANTED in favor of Plaintiff.
20. Summary judgment on the ninth affirmative defense is
DENIED.
21. Summary judgment on the tenth affirmative defense is
GRANTED in favor of Plaintiff.

SO ORDERED
Dated: April 8, 2009

/s/ Oliver W. Wanger
Oliver W. Wanger
United States District Judge

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