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Case 1:07-cv-00026-OWW-TAG Document 25 Filed 04/30/2007 Page 2 of 13
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Case 1:07-cv-00026-OWW-TAG Document 25 Filed 04/30/2007 Page 3 of 13
1 knowledge or information sufficient to form a belief as to the truth of the remaining averments
2 contained in those paragraphs.
3 14. In response to the allegations contained in paragraph 25, Defendants admit that
4 Plaintiff has been provided with the information he requested from the computer that was
5 previously assigned to him. Defendants deny all remaining allegations contained in paragraph
6 25.
7 15. Defendants are without knowledge or information sufficient to form a belief as to
8 the truth of the averments contained in paragraph 26.
9 16. In answer to the allegations contained in paragraph 27, Defendants admit that
10 Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
11 paragraph 27.
12 17. In answer to the allegations contained in paragraphs 28 and 29, Defendants admit
13 that Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position
14 of Chair of the Pathology Department and that he was compensated and provided with certain
15 benefits pursuant to a written employment agreement, the terms of which speaks for themselves.
16 Defendants deny all remaining allegations contained in paragraphs 28 and 29.
17 18. In response to the allegations contained in paragraph 30, Defendants admit that
18 Plaintiff was expected to be an effective member of the physicians’ staff at Kern Medical Center
19 and to contribute to the overall improvement of the hospital. Defendants deny all remaining
20 allegations contained in paragraph 30.
21 19. In response to the allegations contained in paragraphs 31, 32 and 33, Defendants
22 admit that the alleged documents speak for themselves and their interpretation is a matter of law.
23 Defendants deny all remaining allegations contained in those paragraphs.
24 20. Defendants admit the allegations contained in paragraph 34.
25 21. In response to the allegations contained in paragraphs 35, 36 and 37, Defendants
26 admit that the alleged documents speak for themselves and their interpretation is a matter of law.
27 Defendants deny all remaining allegations contained in those paragraphs.
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1 Roy or others speak for themselves. Defendants deny all remaining allegations in those
2 paragraphs.
3 29. Defendants deny all the allegations contained in paragraph 60.
4 30. Defendants are without knowledge or information sufficient to form a belief as to
5 the truth of the averments contained in paragraph 61.
6 31. Defendants deny all the allegations contained in paragraphs 62 and 63.
7 32. Defendants are without knowledge or information sufficient to form a belief as to
8 the truth of the averments contained in paragraph 64.
9 33. In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71
10 and 72, Defendants admit that letters were sent and received by Plaintiff and some of the
11 Defendants regarding Plaintiff’s conduct and criticism of Kern Medical Center’s policies and
12 procedures and that all such letters speak for themselves. Defendants deny all remaining
13 allegations contained in those paragraphs.
14 34. Defendants deny all the allegations contained in paragraph 73.
15 35. In response to the allegations contained in paragraph 74 and 75, Defendants admit
16 that Plaintiff’s entitlement to leave under FMLA and CFRA is a question of law. Defendants
17 deny all remaining allegations contained in those paragraphs.
18 36. In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,
19 Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions
20 for multiple reasons and that documents authored by Plaintiff and others regarding the reasons
21 for his leaves of absence and the terms of the leaves speak for themselves.
22 37. In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,
23 Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others
24 regarding leaves of absence and that the writings speak for themselves. Defendants deny that
25 Plaintiff engaged in any “whistleblowing activity” and that Plaintiff is or ever was a
26 “whistleblower”. Defendants deny all remaining allegations in those paragraphs.
27 38. Defendants are without knowledge or information sufficient to form a belief as to
28 the truth of the averments contained in paragraphs 87 and 88.
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Case 1:07-cv-00026-OWW-TAG Document 25 Filed 04/30/2007 Page 6 of 13
1 39. In response to the allegations contained in paragraphs 89, 90, 91 and 92,
2 Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding
3 leaves of absence that Plaintiff requested and Plaintiff’s tenure as Chair of the Pathology
4 Department at Kern Medical Center. All such writings speak for themselves. Defendants also
5 admit that on or about July 10, 2006, the Joint Conference Committee voted to remove Plaintiff
6 from his position as Chair of the Pathology Department at Kern Medical Center. Defendants
7 deny all remaining allegations contained in those paragraphs.
8 40. Defendants deny all the allegations contained in paragraph 93.
9 41. In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,
10 Defendants admit that Plaintiff’s employment agreement was amended to reduce Plaintiff’s base
11 compensation and that Plaintiff continued to send and receive written communications to others
12 regarding his leaves of absence and that those writings speak for themselves. Defendants deny
13 all remaining allegations contained in those paragraphs.
14 42. In response to the allegations contained in paragraph 99, Defendants admit that
15 Plaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that
16 Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all
17 remaining allegations contained in paragraph 99.
18 43. Defendants deny all the allegations contained in paragraph 100.
19 44. In response to the allegations contained in paragraphs 101 and 102, Defendants
20 admit that Plaintiff exchanged written correspondence with David Culberson and that those
21 writings speak for themselves. Defendants deny all remaining allegations contained in those
22 paragraphs.
23 45. In response to the allegations contained in paragraph 103, Defendants admit that
24 Plaintiff has been provided with the information he requested from the computer that was
25 previously assigned to him. Defendants deny all remaining allegations contained in paragraph
26 103.
27 46. Defendants are without knowledge or information sufficient to form a belief as to
28 the truth of the averments contained in paragraph 104.
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Case 1:07-cv-00026-OWW-TAG Document 25 Filed 04/30/2007 Page 7 of 13
1 47. In answer to the allegations contained in paragraph 105, Defendants admit that
2 Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
3 paragraph 105.
4 48. In response to the allegations contained in paragraph 106, Defendants admit that
5 Plaintiff requested and received a reduced work schedule. Defendants deny all remaining
6 allegations contained in paragraph 106.
7 49. Defendants are without knowledge or information sufficient to form a belief as to
8 the truth of the averments contained in paragraph 107.
9 50. In response to the allegations contained in paragraphs 108, 109 and 110,
10 Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding
11 Plaintiff’s request for leaves of absence and those writings speak for themselves. Defendants
12 deny all remaining allegations contained in those paragraphs.
13 51. Defendants deny all the allegations contained in paragraph 111.
14 52. In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and
15 117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan
16 regarding his work schedule and requests for leaves of absence and met with Peter Bryan and
17 others to discuss those subjects. All the writings speak for themselves. Defendants deny all
18 remaining allegations contained in those paragraphs.
19 53. Defendants are without knowledge or information sufficient to form a belief as to
20 the truth of the averments contained in paragraphs 118 and 119.
21 54. In response to the allegations contained in paragraphs 120, 121 and 122,
22 Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding
23 Plaintiff’s leaves of absence and performance as Chair of the Pathology Department and that
24 those writings speak for themselves. Defendants deny all remaining allegations contained in
25 those paragraphs.
26 55. Defendants are without knowledge or information sufficient to forma a belief as
27 to the truth of the averments contained in paragraph 123.
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Case 1:07-cv-00026-OWW-TAG Document 25 Filed 04/30/2007 Page 8 of 13
1 56. In answer to the allegations contained in paragraph 124, Defendants admit that
2 Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
3 paragraph 124.
4 57. Defendants deny all the allegations contained in paragraphs 125, 126, 127 and
5 128.
6 58. Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,
7 133 and 134.
8 59. Defendants deny all the allegations contained in paragraph 135.
9 60. Defendants deny all the allegations contained in paragraph 136.
10 61. In response to the allegations contained in paragraph 137, Defendants admit that
11 Plaintiff’s base compensation as a staff pathologist is less than it was when he was Chair of the
12 Pathology Department. Defendants deny all remaining allegations contained in paragraph 137.
13 62. Defendants deny all the allegations contained in paragraphs 138, 139, 140, 141,
14 142 and 143.
15 63. In response to the allegations contained in paragraph 144, Defendants admit that
16 Plaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected.
17 Defendants deny all remaining allegations contained in paragraph 144.
18 64. Defendants are without knowledge or information sufficient to form a belief as to
19 the truth of the averments contained in paragraphs 145 and 146.
20 65. Defendants are without knowledge or information sufficient to form a belief as to
21 the truth of the averments contained in paragraphs 147, 148, 149, 150 and 151.
22 66. Defendants are without knowledge or information sufficient to form a belief as to
23 the truth of the averments contained in paragraph 152.
24 67. Defendants incorporate herein, all of their responses to paragraphs 1 through 152,
25 inclusive.
26 68. In response to the allegations contained in paragraph 154, Defendants admit that
27 Health and Safety Code §1278.5 speaks for itself and that its interpretation is a matter of law.
28 Defendants deny all remaining allegations contained in paragraph 154.
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Case 1:07-cv-00026-OWW-TAG Document 25 Filed 04/30/2007 Page 9 of 13
1 69. Defendants deny all the allegations contained in paragraphs 155, 156 and 157 and
2 further deny that Plaintiff has engaged in any “whistleblowing activity” or is a “whistleblower”.
3 70. Defendants are without knowledge or information sufficient to form a belief as to
4 the truth of the averments contained in paragraph 158.
5 71. Defendants incorporate herein, their responses to paragraphs 1 through 158,
6 inclusive.
7 72. In response to the allegations contained in paragraph 160, Defendants admit that
8 Labor Code §1102.5 speaks for itself and that its interpretation is a matter of law. Defendants
9 deny all remaining allegations contained in paragraph 160.
10 73. Defendants deny all the allegations contained in paragraphs 161, 162, 163 and
11 164 and further deny that Plaintiff made any “whistleblowing reports”.
12 74. Defendants are without knowledge or information sufficient to form a belief as to
13 the truth of the averments contained in paragraph 165.
14 75. Defendants incorporate herein, their responses to 1 through 165, inclusive.
15 76. In response to the allegations contained in paragraphs 167, 168 and 169,
16 Defendants admit that Government Code §12945.2(a)(1) and Title 2 of California Code of
17 Regulations §7297.7(a) and §7297.2(c) speak for themselves and that their interpretation is a
18 matter of law. Defendants deny all remaining allegations contained in those paragraphs.
19 77. Defendants deny all the allegations contained in paragraphs 170 and 171.
20 78. Defendants are without knowledge or information sufficient to form a belief as to
21 the truth of the averments contained in paragraph 172.
22 79. Defendants incorporate herein, their responses to paragraphs 1 through 172,
23 inclusive.
24 80. In response to the allegations contained in paragraph 174, Defendants admit that
25 29 U.S.C. §2611(4)(A)(ii)(I) and 29 U.S.C. §2615(a) speak for themselves and that their
26 interpretation is a matter of law. Defendants deny all remaining allegations contained in
27 paragraph 174.
28 81. Defendants deny all the allegations contained in paragraphs 175, 176 and 177.
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Case 1:07-cv-00026-OWW-TAG Document 25 Filed 04/30/2007 Page 12 of 13
1 As and for a third affirmative defense, Defendants allege that Defendants’ actions as
2 alleged in the First Supplemental Complaint were privileged and that Defendants and each of
3 them are, therefore, immune from liability.
4 As and for a fourth affirmative defense, Defendants allege that California Civil Code
5 section 47 immunizes Defendants and each of them from liability for the matters alleged in the
6 First Supplemental Complaint.
7 As and for a fifth affirmative defense, Defendants allege that, during Plaintiff’s
8 employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,
9 intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed
10 to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff
11 believes he sustained.
12 As and for a sixth affirmative defense, Defendants allege that Plaintiff’s injuries, as
13 alleged in the First Supplemental Complaint occurred more than one year before Plaintiff
14 commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of
15 limitations established in California Code of Civil Procedures §340.
16 As and for a seventh affirmative defense, Defendants allege that Plaintiff’s injuries, as
17 alleged in the First Supplemental Complaint occurred more than two years before Plaintiff
18 commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of
19 limitations established in California Code of Civil Procedures §335.1.
20 As and for an eighth affirmative defense, Defendants allege that Plaintiff has available
21 adequate administrative remedies which he failed to exhaust and that his claims are, therefore,
22 barred.
23 As and for a ninth affirmative defense, Defendants allege that the Defendants and each of
24 them have qualified immunity for each and every claim alleged in the First Supplemental
25 Complaint and that Plaintiff’s claim are, therefore, barred.
26 WHEREFORE, Defendants pray that Plaintiff take nothing by way of his First
27 Supplemental Complaint and that judgment thereon be entered in favor of Defendants and
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Case 1:07-cv-00026-OWW-TAG Document 25 Filed 04/30/2007 Page 13 of 13
1 against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees
2 together with such other and further relief as the Court deems just.
3 Dated, April 30, 2007 LAW OFFICES OF MARK A. WASSER
4 By: /s/ Mark A. Wasser
5 Mark A. Wasser
Attorney for Defendants, County of Kern, et al.
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