Jadwin v. County of Kern (610 F. Supp. 2d 1129, 2009)

Citations

610 F. Supp. 2d 1129

Full opinion text

MEMORANDUM DECISION AND ORDER RE DEFENDANTS’ AND PLAINTIFF’S CROSS-MOTIONS FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT

OLIVER W. WANGER, District Judge.

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 Plaintiffs 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.

II. BACKGROUND

This case arises out of Plaintiffs 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.

Plaintiffs 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 matter. Plaintiff remained on paid administrative leave until his employment contract expired, and the County did not renew Plaintiffs 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.

A. The Removal From The Chairmanship And Preceding Events

On October 24, 2000, Plaintiff signed an employment contract with the County. The term of Plaintiffs 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 “[tjhis 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.

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 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 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, Plaintiffs psychiatrist, Paul Riskin, completed a form entitled “Certification of Health Care Provider Medical Leave of Absence.” The form states that Plaintiffs 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.” Plaintiffs 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, 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 “Intermittenb-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 “[biased 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, Plaintiffs request for leave was approved, i.e., Plaintiffs 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 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. (Doe. 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.)

Plaintiffs 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, “[tjhis 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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.

Q. Okay.

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.

Q. At the meeting or otherwise?

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.VoLV. 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.” (PLDep.VohV. 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.

(Doc. 259-7 at 2.) In response, Bryan emailed 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 dimmish 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 Plaintiffs 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 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 nonavailability 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.)

B. Reduction In Salary

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 Plaintiffs attorney communicated regarding the amendment to Plaintiffs employment contract. In an e-mail dated September 15, 2006, from Barnes (the County’s counsel) to Eugene Lee (Plaintiffs 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 amendment did, however, effectuate a reduction in Plaintiffs base salary and a revision of his job duties.

C. Paid Administrative Leave And Non-Renewal Of Plaintiffs 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 “[sjtorage 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, Plaintiffs 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 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.)

D. Plaintiffs Lawsuit

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 Plaintiffs employment contract was not renewed because he brought an action against Defendants alleging FEHA and FMLA violations. (Doc. 241.)

The operative complaint, Plaintiffs 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 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. Plaintiffs 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(c). 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).

Where the movant will have the burden of proof on an issue at 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 non-moving party’s case.” Soremekun, 509 F.3d at 984.

When a motion for summary judgment is properly made and supported, the nonmovant 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Conelusory, 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, 106 S.Ct. 2505. “[Sjummary judgment will not he 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.” Id. at 248, 106 S.Ct. 2505. 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, 106 S.Ct. 2505.

“[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

A. Retaliation — California Health & Safety Code § 1278.5

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 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. 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 Plaintiffs 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 whistle-blower claims under the amended version of § 1278.5.

Section 1278.5 was amended effective January 1, 2008, well after Plaintiffs 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 reports to his public employer constitute whistleblowing. H & S

§ 1278.5(b)(1)(A); Labor C. § 1102.5(e).” (Doc. 293 at 5.) Plaintiffs 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 Plaintiffs employment with the County reads as follows:

No health facility shall discriminate or retaliate 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 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-OWW-TAG, 2009 WL 530084, 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 Plaintiffs § 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 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. Plaintiffs 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 914, 922, 44 Cal.Rptr.3d 223, 135 P.3d 637 (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., 32 Cal.4th 1287, 1296, 13 Cal.Rptr.3d 786, 90 P.3d 746 (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, 20 Cal.Rptr.3d 428, 99 P.3d 1015 (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, 26 Cal.Rptr.2d 809 (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 pri- or version of the statute “could not have been properly construed” to include the content of the amendment. Carter, 38 Cal.4th at 924, 44 Cal.Rptr.3d 223, 135 P.3d 637. 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 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, 20 Cal.Rptr.3d 428, 99 P.3d 1015 (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, 44 Cal.Rptr.3d 223, 135 P.3d 637 (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 Plaintiffs 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 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 Plaintiffs complaint he alleges, and the evidence shows, Plaintiff was an employee of the County, not of KMC. The new version of the statute 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 buttressed 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 hable 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 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, 20 Cal.Rptr.3d 428, 99 P.3d 1015; Balen v. Peralta Junior College Dist., 11 Cal.3d 821, 828 n. 8, 114 Cal.Rptr. 589, 523 P.2d 629 (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 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, 20 Cal.Rptr.3d 428, 99 P.3d 1015. 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 par tient 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 thé 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, 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. Plaintiffs 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:

(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 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’ (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, 44 Cal.Rptr.3d 223, 135 P.3d 637 (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). Plaintiffs argument is unpersuasive. The legislative history does contain a reference to Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal.App.4th 515, 44 Cal.Rptr.3d 517 (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 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.

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.

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, 44 Cal.Rptr.3d 632, 136 P.3d 168 (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, 128 Cal.Rptr.2d 248 (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. Plaintiffs rights are defined by the old version of the 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 Plaintiffs 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.

B. Retaliation — California Labor Code § 1102.5

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 Orange, 157 Cal.App.4th 121, 138, 68 Cal.Rptr.3d 568 (2007); Patten v. Grant Joint Union High Sch. Dist., 134 Cal.App.4th 1378, 1384, 37 Cal.Rptr.3d 113 (2005).

Plaintiff clai