25 Pleading - Answer to FSC_070430

8/14/2019 25 Pleading - Answer to FSC_070430

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ANSWER TO FIRST AMENDED COMPLAINT

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Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 95814Phone: (916) 444-6400Fax: (916) 444-6405

E-mail: [email protected] C. Barmann, Sr.KERN COUNTY COUNSELMark Nations, Chief Deputy1115 Truxton Avenue, Fourth FloorBakersfield, CA 93301Phone: (661) 868-3800Fax: (661) 868-3805E-mail: [email protected]

Attorneys for Defendants County of Kern,Peter Bryan, Irwin Harris, Eugene Kercher,

Jennifer Abraham, Scott Ragland, Toni Smithand William Roy

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.

Plaintiff,

vs.

COUNTY OF KERN, et al.,

Defendants.

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Case No.: 1:07-cv-26

ANSWER TO FIRST AMENDED

COMPLAINT

Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer

Abraham, Scott Ragland, Toni Smith and William Roy answer the First Amended Complaint,

together with the allegations in the First Supplemental Complaint, as follow,

1. Defendants deny the allegations contained in paragraphs 1, 2 and 3.2. Defendants admit the allegations contained in paragraph 4.3. Defendants deny the allegations contained in paragraph 5.

Case 1:07-cv-00026-OWW-TAG Document 25 Filed 04/30/2007 Page 1 of 13
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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5. In response to the allegations contained in paragraph 8, Defendants admit thatPeter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California

during most of the time alleged in the Complaint. Defendants deny the remaining allegationscontained in paragraph 8.

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8. In response to the allegations contained in paragraph 16, Defendants admit thatPlaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a

belief as to the truth of the remaining averments in paragraph 16.

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9. In response to the allegations contained in paragraph 17, Defendants admit thatPlaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of

Chair of the Pathology Department. Defendants deny all remaining allegations contained in

paragraph 17.

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10. In response to the allegations contained in paragraph 18, Defendants admit thatPlaintiff complained about departmental procedures and policies at Kern Medical Center and

interfered with patient care provided by Kern Medical Center and its physicians. Defendants

deny all remaining allegations contained in paragraph 18.

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12. In response to the allegations contained in paragraph 21, Defendants admit thatPlaintiff requested and received multiple leaves of absence and that the terms and conditions of

the leaves Plaintiff received are memorialized in writings that speak for themselves. Defendants


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13. In response to the allegations contained in paragraphs 22, 23 and 24, Defendantsadmit that Plaintiff requested and received multiple leaves of absence for multiple reasons and

was removed from his position as Chair of the Pathology Department because he was neither

working full-time nor present in the hospital. Defendants also admit that Plaintiff has

complained about the policies and procedures at Kern Medical Center. Defendants are without

4. Defendants admit the allegations contained in paragraphs 6 and 7.

6. Defendants admit the allegations contained in paragraphs 9, 10, 11, 12, 13 and 14.7. Defendants deny all the allegations contained in paragraph 15.

11. Defendants deny all the allegations contained in paragraphs 19 and 20.



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knowledge or information sufficient to form a belief as to the truth of the remaining averments

contained in those paragraphs.

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16. In answer to the allegations contained in paragraph 27, Defendants admit thatPlaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in

paragraph 27.

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17. In answer to the allegations contained in paragraphs 28 and 29, Defendants admitthat Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position

of Chair of the Pathology Department and that he was compensated and provided with certain

benefits pursuant to a written employment agreement, the terms of which speaks for themselves.

Defendants deny all remaining allegations contained in paragraphs 28 and 29.

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18. In response to the allegations contained in paragraph 30, Defendants admit thatPlaintiff was expected to be an effective member of the physicians staff at Kern Medical Center

and to contribute to the overall improvement of the hospital. Defendants deny all remaining

allegations contained in paragraph 30.

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19. In response to the allegations contained in paragraphs 31, 32 and 33, Defendantsadmit that the alleged documents speak for themselves and their interpretation is a matter of law.

Defendants deny all remaining allegations contained in those paragraphs.

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21. In response to the allegations contained in paragraphs 35, 36 and 37, Defendantsadmit that the alleged documents speak for themselves and their interpretation is a matter of law.

Defendants deny all remaining allegations contained in those paragraphs.

14. In response to the allegations contained in paragraph 25, Defendants admit thatPlaintiff has been provided with the information he requested from the computer that waspreviously assigned to him. Defendants deny all remaining allegations contained in paragraph

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. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 26.

20. Defendants admit the allegations contained in paragraph 34.



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24. In response to the allegations contained in paragraphs 40 and 41, Defendantsadmit that Plaintiffs former attorney sent a letter to Bernard Barmannand that Plaintiff met with

Mr. Barmann on or about February 9, 2006. Defendants deny all remaining allegations

contained in those paragraphs.

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26. In response to the allegations contained in paragraphs 44, 45, 46 and 47,Defendants admit that a disagreement arose between Plaintiff and William Roy regarding the

review of pathology reports and that any letters authored by William Roy speak for themselves.

Defendants are without knowledge or information sufficient to form a belief as to the truth of the

remaining averments in those paragraphs.

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27. In response to the allegations contained in paragraphs 48, 49, 50, 51, 52, 53 and54, Defendants admit that disputes arose between Plaintiff and other physicians at Kern Medical

Center, including some of the Defendants, regarding patient care, the review of pathology reports

and hospital policies and procedures. Defendants further admit that any letters authored by

Plaintiff or others speak for themselves. Defendants are without knowledge or information

sufficient to form a belief as to the remaining averments in those paragraphs.

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28. In response to the allegations contained in paragraphs 55, 56, 57, 58 and 59,Defendants admit that Plaintiff disrupted the October, 2005, Monthly Oncology Conference and

prevented appropriate discussion of case management and that other physicians at Kern Medical

Center, including some of the Defendants, were concerned about Plaintiffs conduct and with his

interference with patient care. Defendants further admit that any letters authored by William


23. In response to the allegations contained in paragraph 39, Defendants admit thatPlaintiff complained about policies and procedures at Kern Medical Center and that his actionsinterfered with patient care. Defendants deny all remaining allegations contained in paragraph

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5. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraphs 42 and 43.



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Roy or others speak for themselves. Defendants deny all remaining allegations in those

paragraphs.

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33. In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71and 72, Defendants admit that letters were sent and received by Plaintiff and some of the

Defendants regarding Plaintiffs conduct and criticism of Kern Medical Centers policies and

procedures and that all such letters speak for themselves. Defendants deny all remaining

allegations contained in those paragraphs.

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35. In response to the allegations contained in paragraph 74 and 75, Defendants admitthat Plaintiffs entitlement to leave under FMLA and CFRA is a question of law. Defendants

deny all remaining allegations contained in those paragraphs.

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36. In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions

for multiple reasons and that documents authored by Plaintiff and others regarding the reasons

for his leaves of absence and the terms of the leaves speak for themselves.

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37. In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others

regarding leaves of absence and that the writings speak for themselves. Defendants deny that

Plaintiff engaged in any whistleblowing activity and that Plaintiff is or ever was a

whistleblower. Defendants deny all remaining allegations in those paragraphs.

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29. Defendants deny all the allegations contained in paragraph 60..

Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 61.

31. Defendants deny all the allegations contained in paragraphs 62 and 63.. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 64.

34. Defendants deny all the allegations contained in paragraph 73.




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39. In response to the allegations contained in paragraphs 89, 90, 91 and 92,Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding

leaves of absence that Plaintiff requested and Plaintiffs tenure as Chair of the Pathology

Department at Kern Medical Center. All such writings speak for themselves. Defendants alsoadmit that on or about July 10, 2006, the Joint Conference Committee voted to remove Plaintiff

from his position as Chair of the Pathology Department at Kern Medical Center. Defendants


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41. In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,Defendants admit that Plaintiffs employment agreement was amended to reduce Plaintiffs base

compensation and that Plaintiff continued to send and receive written communications to others

regarding his leaves of absence and that those writings speak for themselves. Defendants deny

all remaining allegations contained in those paragraphs.

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42. In response to the allegations contained in paragraph 99, Defendants admit thatPlaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that

Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all

remaining allegations contained in paragraph 99.

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44. In response to the allegations contained in paragraphs 101 and 102, Defendantsadmit that Plaintiff exchanged written correspondence with David Culberson and that those

writings speak for themselves. Defendants deny all remaining allegations contained in those

paragraphs.

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45. In response to the allegations contained in paragraph 103, Defendants admit thatPlaintiff has been provided with the information he requested from the computer that was

previously assigned to him. Defendants deny all remaining allegations contained in paragraph

103.

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6. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 104.



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50. In response to the allegations contained in paragraphs 108, 109 and 110,Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding

Plaintiffs request for leaves of absence and those writings speak for themselves. Defendants


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52. In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan

regarding his work schedule and requests for leaves of absence and met with Peter Bryan and

others to discuss those subjects. All the writings speak for themselves. Defendants deny all

remaining allegations contained in those paragraphs.

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54. In response to the allegations contained in paragraphs 120, 121 and 122,Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding

Plaintiffs leaves of absence and performance as Chair of the Pathology Department and that

those writings speak for themselves. Defendants deny all remaining allegations contained in

those paragraphs.

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paragraph 105.

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In response to the allegations contained in paragraph 106, Defendants admit thatPlaintiff requested and received a reduced work schedule. Defendants deny all remaining

allegations contained in paragraph 106.




5. Defendants are without knowledge or information sufficient to forma a belief asto the truth of the averments contained in paragraph 123.



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61. In response to the allegations contained in paragraph 137, Defendants admit thatPlaintiffs base compensation as a staff pathologist is less than it was when he was Chair of the

Pathology Department. Defendants deny all remaining allegations contained in paragraph 137.

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63. In response to the allegations contained in paragraph 144, Defendants admit thatPlaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected.

Defendants deny all remaining allegations contained in paragraph 144.

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68. In response to the allegations contained in paragraph 154, Defendants admit thatHealth and Safety Code 1278.5 speaks for itself and that its interpretation is a matter of law.

Defendants deny all remaining allegations contained in paragraph 154.


paragraph 124.

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Defendants deny all the allegations contained in paragraphs 125, 126, 127 and128.

. Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,133 and 134.

59. Defendants deny all the allegations contained in paragraph 135.60. Defendants deny all the allegations contained in paragraph 136.

2. Defendants deny all the allegations contained in paragraphs 138, 139, 140, 141,142 and 143.


5. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraphs 147, 148, 149, 150 and 151.


7. Defendants incorporate herein, all of their responses to paragraphs 1 through 152,inclusive.



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76. In response to the allegations contained in paragraphs 167, 168 and 169,Defendants admit that Government Code 12945.2(a)(1) and Title 2 of California Code of

Regulations 7297.7(a) and 7297.2(c) speak for themselves and that their interpretation is a

matter of law. Defendants deny all remaining allegations contained in those paragraphs.

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80. In response to the allegations contained in paragraph 174, Defendants admit that29 U.S.C. 2611(4)(A)(ii)(I) and 29 U.S.C. 2615(a) speak for themselves and that their

interpretation is a matter of law. Defendants deny all remaining allegations contained in

paragraph 174.

. Defendants deny all the allegations contained in paragraphs 155, 156 and 157 andfurther deny that Plaintiff has engaged in any whistleblowing activity or is a whistleblower.


. Defendants incorporate herein, their responses to paragraphs 1 through 158,inclusive.

2. In response to the allegations contained in paragraph 160, Defendants admit thatLabor Code 1102.5 speaks for itself and that its interpretation is a matter of law. Defendants


3. Defendants deny all the allegations contained in paragraphs 161, 162, 163 and164 and further deny that Plaintiff made any whistleblowing reports.


75. Defendants incorporate herein, their responses to 1 through 165, inclusive.

77. Defendants deny all the allegations contained in paragraphs 170 and 171.8. Defendants are without knowledge or information sufficient to form a belief as to


9. Defendants incorporate herein, their responses to paragraphs 1 through 172,inclusive.

81. Defendants deny all the allegations contained in paragraphs 175, 176 and 177.



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88. In response to the allegations contained in paragraph 193, Defendants admit thatinterpretation of the California Fair Employment and Housing Act is a question law. Defendants

deny all remaining allegations remaining in paragraph 193.

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. Defendants incorporate herein, their answers to paragraphs 1 through 178,inclusive.

4. In response to the allegations contained in paragraphs 180, 181, 182, 183, 184,185, 186 and 187, Defendants admit that interpretation of the California Family Rights Act is a

question of law. Defendants deny all remaining allegations contained in those paragraphs.

85. Defendants deny all the allegations contained in paragraphs 188, 189 and 190.6. Defendants are without knowledge or information sufficient to form a belief as to



89. Defendants deny all the allegations contained in paragraphs 194 and 195.0. Defendants are without knowledge or information sufficient to form a belief as to



92. Defendants deny all the allegations contained in paragraph 198.3. Defendants are without knowledge or information sufficient to form a belief as to



95. Defendants deny all the allegations contained in paragraph 201.6. Defendants are without knowledge or information sufficient to form a belief as to




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105. In response to the allegations contained in paragraphs 227 and 228, Defendantsadmit that interpretation of the Code of Federal Regulations, including 20C.F.R. 541.118(1) and

541.18(6), is a question of law. Defendants deny all remaining allegations contained in those

paragraphs.

. Defendants incorporate herein, their responses to paragraphs 1 through 202,inclusive.

8. In response to the allegations contained in paragraph 204, Defendants admit thatinterpretation of the Fourteenth Amendment to the United States Constitution is a question oflaw. Defendants deny all remaining allegations contained in paragraph 204.

. Defendants deny all the allegations contained in paragraphs 205, 206, 207, 208,209, 210, 211, 212 and 213.



2. Defendants deny all the allegations contained in paragraphs 216, 217, 218, 219,220, 221, 222, 223 and 224.



106. Defendants deny all the allegations contained in paragraphs 229, 230 and 231.As and for a first affirmative defense, Defendants allege that Plaintiffs First

Supplemental Complaint and each and every purported claim contained therein fails to state a

claim upon relief can be granted.

As and for a second affirmative defense, Defendants allege that this Court lacks subject

matter jurisdiction over Plaintiffs alleged claims.



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As and for a third affirmative defense, Defendants allege that Defendants actions as

alleged in the First Supplemental Complaint were privileged and that Defendants and each of

them are, therefore, immune from liability.

As and for a fourth affirmative defense, Defendants allege that California Civil Codesection 47 immunizes Defendants and each of them from liability for the matters alleged in the

First Supplemental Complaint.

As and for a fifth affirmative defense, Defendants allege that, during Plaintiffs

employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,

intimidating, overbearing, self-righteous and unfriendly and that Plaintiffs behavior contributed

to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff

believes he sustained.

As and for a sixth affirmative defense, Defendants allege that Plaintiffs injuries, as

alleged in the First Supplemental Complaint occurred more than one year before Plaintiff

commenced this action and that Plaintiffs claims are, therefore, barred by the statue of

limitations established in California Code of Civil Procedures 340.

As and for a seventh affirmative defense, Defendants allege that Plaintiffs injuries, as

alleged in the First Supplemental Complaint occurred more than two years before Plaintiff

commenced this action and that Plaintiffs claims are, therefore, barred by the statue of

limitations established in California Code of Civil Procedures 335.1.

As and for an eighth affirmative defense, Defendants allege that Plaintiff has available

adequate administrative remedies which he failed to exhaust and that his claims are, therefore,

barred.

As and for a ninth affirmative defense, Defendants allege that the Defendants and each of

them have qualified immunity for each and every claim alleged in the First Supplemental

Complaint and that Plaintiffs claim are, therefore, barred.

WHEREFORE, Defendants pray that Plaintiff take nothing by way of his First

Supplemental Complaint and that judgment thereon be entered in favor of Defendants and



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against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees

together with such other and further relief as the Court deems just.

Dated, April 30, 2007 LAW OFFICES OF MARK A. WASSER

By: /s/ Mark A. WasserMark A. Wasser

Attorney for Defendants, County of Kern, et al.


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