# Jadwin v. County of Kern

> District Court, E.D. California · April 8, 2009 · 610 F. Supp. 2d 1129

URL: https://www.frixlaw.com/law-library/cases/1469437

## Case

- **Full name:** David F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN; Peter Bryan (Both Individually and in His Former Capacity as Chief Executive of Kern Medical Center); Irwin Harris, M.D.; And Does 1 Through 10, Inclusive, Defendants
- **Court:** District Court, E.D. California
- **Decided:** April 8, 2009
- **Citations:** 610 F. Supp. 2d 1129; 2009 U.S. Dist. LEXIS 29216; 2009 WL 973226
- **Precedential status:** Published
- **Opinion:** Opinion by Wanger
- **Judges:** Oliver W. Wanger
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1469437

## How later opinions describe it (automated extraction)

- holding that the failure to renew a contract can qualify as an adverse employment action under Title VII and collecting cases

## 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.
1
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
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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
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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,
2
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-Employ
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ee” 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 sta
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tus. 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
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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
3
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
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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
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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
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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
4
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.
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(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
*1145
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.
*1146
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
*1147
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:
*1148
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 protec
*1149
tion 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:
According to the California Medical Association (CMA), sponsor of AB 632, because physicians are generally not ‘employees’ of a health facility, they do not benefit from the whistleblower protections afforded by Health
&
Safety Code 1278.5. Thus, when they see problems with patient care beyond their own patients they may actually do nothing about it, for fear of retaliation or discrimination.
AB 632 is intended to cure this gap in coverage
for whistleblowing in the health care context, and would extend the whistleblower protection further by making an entity that owns or operates a health facility liable for the unlawful acts of the health facility.
(Emphasis added.) In that same Senate committee report, under the heading “Description,” it states that the bill to amend § 1278.5 would “expand coverage of the whistleblower protections to members of the medical staff (physicians) and other health care workers were are not employees of the health facility!?]” Later in the 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
*1150
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
*1151
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,
*1152
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 claims that he was retaliated against for protected whistleblowing regarding PCCs and skull flaps.
1.
PCCs
a.
Communications To His “Employer”
i.
Protected Activity
Plaintiff asserts that by letter dated January 9, 2006, he communicated to Bryan regarding KMC’s noncompliance with state regulations on blood transfusion related documentation known as product
*1153
chart copies or PCCs. (Doc. 266 at 134.) In that letter, Plaintiff stated:
All transfusion product chart copies must be directed to the blood bank for assessment immediately following transfusion. The problems with incomplete product chart copies have been discussed multiple times with nursing and yourself. As medical director of the blood bank, I have an obligation to ensure that KMC is in compliance with state & federal regulations and AABB accreditation standards. It is my opinion as blood bank director that until nursing can otherwise assure than all product chart copies are properly completed, the blood bank must perform immediate monitoring of all product chart copies to ensure completion or corrective action.
5
(Id.)
A few months later, Plaintiff sent Bryan an e-mail on April 17, 2006, with the subject line “Compliance with Regulations.” This e-mail discussed deficiencies in the PCCs:
Peter:
I have completed an analysis of the 57 memos sent to nursing over the past several months detailing deficiencies in product chart copies (PCCs). I have not received an administrative response to the memos.
These memos detail 34 instances of missing verification signatures, either one or both, required by regulations and standards.
Six PCCs were not located in the chart, a noticeable improvement over past performance.
One hundred fifty nine (159) PCCs had one or more other lesser, but still important deficiencies.
Two transfusions were not reported on the PCCs or to the blood bank.
The five charts reviewed without deficiency by the JCAHO that you cited on April 13th during our meeting is obviously too small a sample.
I am extremely concerned about the lack of administrative communication, attention and significant improvement in this area. This is a compliance issue that involves Federal regulations, California regulations and accreditation standards for the JCAHO, CAP and AABB. As the Medical Director of the Blood Bank I must advise you again that these deficiencies must be corrected immediately to meet 100 percent compliance, especially for verification signatures and lost PCCs. I have proposed several different strategies over the past several years for achieving almost immediate results, but I am unaware that any corrective action has been put into place.
You and I have an ethical and regulatory duty to correct this situation in a timely manner. After multiple requests for action, I cannot conscientiously sit back any longer.
I therefore request a meeting with yourself, Mr. Barmann, Dr. Kercher, Dr. Harris and me to discuss a resolution for this dilemma and thereby reduce serious liability for Kern County and KMC.
(Doc. 265 at 90.) Plaintiff contends that this communication constituted a protected disclosure and that because of this communication, he was retaliated against.
An employee engages in protected activity when he “discloses to a
governmental agency
reasonably based suspicions of illegal activity.”
Mokler, 157 Cal.
App.4th at 138, 68 Cal.Rptr.3d 568 (emphasis added) (internal quotation marks omitted);
see also
§ 1102.5(b) (requiring disclo
*1154
sure to “a government or law enforcement agency”).
As a threshold matter, Plaintiff asserts and Defendants acknowledge that the County employed Plaintiff, and the County is a “government agency” under Labor Code § 1102.5. (Doc. 278 at 8.)
Cf
Cal. Gov’t Code § 6252(a) (defining “local agency” as including a “county”). Plaintiff further argues that because he was an employee of a government agency (the County), then by virtue of § 1102.5(e), disclosures he made to his employer (the County) are disclosures to a government agency under Labor Code § 1102.5(b). By extension, according to Plaintiff, his communications to Bryan and other members of KMC leadership were made to his “employer.” Taken facially, the statute requires disclosure to the County and Plaintiff does not explain whether Bryan and others were employed by the County. Nevertheless, because Defendants do not challenge Plaintiff on this point, it is assumed,
arguendo,
that Plaintiffs disclosures were disclosures to the County.
An employee engages in protected activity under § 1102.5(b) when he “discloses to a governmental agency
reasonably based suspicions of illegal activity.
”
Mokler,
157 Cal.App.4th at 138 , 68 Cal.Rptr.3d 568 (emphasis added) (internal quotation marks omitted). The employee must “reasonably believe [ ]he was disclosing a violation of state or federal law.”
Patten,
134 Cal.App.4th at 1386 , 37 Cal.Rptr.3d 113 . To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion — some statute, rule or regulation which may have been violated by the conduct he disclosed.
Love v. Motion Indus., Inc.,
309 F.Supp.2d 1128, 1135 (N.D.Cal.2004) (concluding that without citing to “any statute, rule or regulation that may have been violated by the disclosed conduct,” plaintiff lacked “any foundation for the reasonableness of his belief’).
Plaintiff argues that he “reasonably suspected that KMC’s ongoing failure to maintain accurate and complete records of patient blood transfusions did not comply with Health & Safety Code § 1602.5,
which requires PCC documentation to conform to AABB accreditation standards.”
(Doc. 272 at 10) (emphasis added.) Section 1602.5 of the Health & Safety Code provides in pertinent part as follows:
(a) No person shall engage in the production of human whole blood or human whole blood derivatives unless the person is licensed under this chapter and the human whole blood or human whole blood derivative is collected, prepared, labeled, and stored in accordance with both of the following:
(1) The standards set forth in the 13th Edition of ‘Standards for Blood Banks and Transfusion Services,’ as published by the American Association of Blood Banks and in effect on November 15, 1989, or any amendments thereto or later published editions or amendments thereto. These shall be the standards for all licensed blood banks and blood transfusion services in the state.
(2) Those provisions of Title 17 of the California Code of Regulations that are continued in effect by subdivision (c) or that are adopted pursuant to subdivision (b).
Plaintiff does not rely on § 1602.5(a)(2) to support his claim; rather, Plaintiff contends that he reasonably believed the PCCs did not comply with 1602.5(a)(1) because they did not adhere to the Standards for Blood Banks and Transfusion Services as published by the American Association of Blood Banks (AABB).
Plaintiff has not provided a copy of the AABB standards to permit assessment of the reasonableness of his belief that incom
*1155
píete PCCs violated § 1602.5(a)(1). Plaintiff provides an e-mail, dated May 20, 2005, which he sent to Toni Smith, Chief Nurse Executive at KMC. In this e-mail, Plaintiff recounts a conversation he had with “Holly Rapp, AABB Accreditation Director.” (Doc. 265 at 121.) The e-mail (which contains some connected words) states:
Telephone Conversation: Holly Rapp, AABB Accreditation Director [telephone number].
* California accepts compliance with AABB accreditation standards as fulfillment of California State Regulations regarding blood component therapy
* AABB Standards, 23rd Edition (2004) state: The patient’s medical record shall include: transfusion order, the name of the component, the donor unit or pool identification number, the date and time of transfusion, pre- and post-transfusion vital signs, the amount transfused, the identification of the transfusionist, and if applicable, transfusion adverse events.
* The standards do not define what constitutes the ‘patient’s medical record’.
* She stated that the medical record may be construed as records other than the patient’s chart.
* When I explained the proposal to store the PCC records in the transfusion department, she said that this would be acceptable. In her experience, it is customary for the bloodbank to at least receive a copy of the PCC.
* When I explained the problems with misplaced and incomplete documents, she said that this must be corrected immediately. If this requires sending all PCCs to the blood bank in the interim to gain control of the situation, then this should be done.
(Id.)
Defendants do not dispute that Plaintiff had this conversation with Rapp or that Plaintiffs e-mail accurately documents the conversation. Defendants include this same e-mail in their separate statement of undisputed material facts.
Defendants do not specifically challenge Plaintiffs argument that he had a reasonable belief that incomplete PCCs were unlawful. Rather, Defendants argue that “[although California Health & Safety Code 1602.5(a) applies to the preparation, labeling, and storage of blood products, violation of 1602.5 was not Plaintiffs original concern. Instead, Plaintiff had argued aggressively with Toni Smith and others that the original copies of all PCCs should be filed and stored in the Pathology Department.” (Doc. 276 at 12.) While this may be true, Defendants’ argument is not entirely persuasive.
To invoke Labor Code § 1102.5(b), Plaintiff must disclose conduct which he reasonably believes is unlawful. Based on his unchallenged conversation with the AABB Accreditation Director, Plaintiff arguably had a reasonable belief that incomplete PCCs violated the AABB standards, which in turn violated Health & Safety Code § 1602.5(a)(1). That Plaintiff suggested a course of action to remedy the situation, or that Plaintiff was motivated by a desire to monitor the PCCs himself in the Pathology Department, does not negate his reasonable belief.
ii.
Adverse Employment Action And Causal Link
Plaintiff argues that after he sent Bryan the April 17, 2006 “Compliance with Regulations” e-mail, he was subject to various adverse employment actions which he contends were casually connected to his whistleblowing.
Plaintiff argues that his removal from his chairmanship (July 10, 2006) which prompted his pay cut, his involuntarily administrative leave (December 7, 2006), and the non-renewal of his contract (“on or around October 4, 2007”) were “temporally
*1156
proximate” to his disclosure of unlawful conduct, and the “[pjroximity in time between the disclosure and the adverse action is sufficient to establish the required nexus” or causal link. (Doc. 272 at 14.)
To establish a causal link solely with timing evidence, the adverse action must follow “within a relatively
short
time” after the protected activity.
See Fisher v. San Pedro Peninsula Hosp.,
214 Cal.App.3d 590, 615 , 262 Cal.Rptr. 842 (1989) (internal quotation marks omitted);
Morgan v. Regents Of The Univ. Of Cal.,
88 Cal.App.4th 52, 69 , 105 Cal.Rptr.2d 652 (2000);
see also Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 273 , 121 S.Ct. 1508 , 149 L.Ed.2d 509 (2001) (per curiam) (“The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be
very dose.”)
(emphasis added) (internal quotation marks omitted).
Plaintiffs removal from the chairmanship in July 2006 occurred within a few months after the April 2006 e-mail and the associated pay cut followed around five-to-six months later. Plaintiffs timing evidence does not warrant summary judgment in Plaintiffs favor.
First, Plaintiff started expressing his “concerns” about the PCCs at least by May 2005 (Doc. 272. at 2.) Yet, there is no indication that after expressing these concerns in May 2005, Plaintiff was disciplined for doing so. Second, Plaintiffs “concerns” were in no way limited to PCCs. During his employment, Plaintiff raised numerous issues to Bryan and others making it difficult to attribute bias toward, or adverse action specific to, his complaints about PCCs. Third, Bryan’s June 13, 2006 e-mail and follow-up letter on June 14, 2006 in which he informed Plaintiff that he was withdrawing/rescinding Plaintiffs chairmanship came on the heels of, and were responding to, the written request Plaintiff made for additional time to make a decision regarding his continued employment. Bryan indicated that his decision to withdraw/rescind Plaintiffs chairmanship was due to Plaintiffs continued unavailability (not his whistleblowing). Fourth, and relatedly, Plaintiff argues that he has “direct evidence” that he was removed from his chairmanship and his pay was cut because of his extended absences from work. (Doc. 272 at 15.) To support his FMLA interference claim, Plaintiff relies heavily on statements by Bryan, including that Bryan recommended Plaintiff for removal based on Plaintiffs “unavailability for service because of extended medical leaves” and “solely based on his continued non-availability to provide the leadership necessary for a contributing member of the medical staff leadership group.”
(Id.
at 15-16.) Bryan’s statements regarding Plaintiffs absenteeism or non-availability do not reflect any bias against Plaintiff for his PCC whistleblowing.
Taken together, Plaintiffs prior raising of PCC concerns without apparent retaliation; his numerous professed complaints apart from PCCs; the context in which Byran’s communications to Plaintiff regarding the loss of his chairmanship arose; and Plaintiffs contention that his removal from his chairmanship and pay cut are attributable to his absence from work, all lead to the conclusion that Plaintiff has failed to establish that no reasonable trier of fact could find other than for him on the issue that he was removed from his chairmanship because he made protected disclosures about PCCs. Accordingly, Plaintiff is not entitled to summary judgment.
With respect to Defendants’ motion, the evidence that Plaintiff relies on to establish his PCC whistleblowing claim is the fact the JCC removal decision in July
*1157
2006 occurred within a couple of months after Plaintiffs April 2006 e-mail to Bryan. Apart from this, Plaintiff has not pointed to any evidence which supports his theory that his PCC whistleblowing was a motivating reason behind his removal from the chairmanship. Even assuming Plaintiffs evidence is sufficient to create a prima facie case, Plaintiffs extended absenteeism or non-availability provided a non-retaliatory reason for his removal from the chairmanship (i.e., a reason other than alleged protected whistleblowing). The burden then shifts to Plaintiff to demonstrate pretext. With respect to his FMLA interference claim, Plaintiff argues that some of his absenteeism prompted the removal. Moreover, he argues that he was forced to take full-time leave so that he would “burn up” his leave entitlements, and then his leave was used against him in the removal decision. (Doc. 275 at 6.) Plaintiff has not shown that his non-availability was merely a pretext for PCC whistleblowing retaliation. Summary judgment in favor of Defendants is warranted on this claim.
With respect to the administrative leave and non-renewal of Plaintiffs contract, Plaintiff has failed to create a prima facie case under Labor Code § 1102.5(b). The temporal gap between Plaintiffs April 2006 e-mail and his involuntary administrative leave in December 2006 and the non-renewal of his contract on or around October 4, 2007, is too wide to support an inference of causation.
See Cornwell v. Electra Cent. Credit Union,
439 F.3d 1018, 1035 (9th Cir.2006) (agreeing with the district court and concluding that an eight month gap between the protected activity and the employee’s termination “was too great to support an inference” of causation). Summary judgment in favor of Defendants is warranted on this claim.
6
*1158
b.
Communications To Outside Authorities
Plaintiff contends that around Thanksgiving 2006 he blew the whistle to outside agencies regarding PCCs (and other issues). Plaintiff argues that this whistle-blowing prompted his involuntary paid administrative leave (December 7, 2006) and the non-renewal of his contract (on or around October 4, 2007).
Plaintiffs retaliation claims based on his PCC-related outside whistleblowing and alleged adverse employment action in response thereto, including the paid administrative leave, are barred as explained in the order on Defendants’ motion for judgment on the pleadings. Moreover, the temporal gap, almost one year, between the outside whistleblowing (Thanksgiving 2006) and the non-renewal of Plaintiffs employment contract on or around October 4, 2007, is too wide to create an inference that the County did not renew Plaintiffs contract because of the PCC whistleblowing. Summary judgment in favor of Defendants is warranted on this claim.
2.
Skull Flaps
Plaintiff argues that he was retaliated against because of his whistleblowing regarding the storage of patient skull flaps — the top part of the human skull — in an unlicensed laboratory freezer. According to Plaintiff, he “reasonably believed the storage of patient skull caps [or flaps] occurring in an unlicensed laboratory freezer at KMC violated Health & Safety Code 1635.1.” (Doc. 272 at 18.) Section 1635.1(a) states, “[e]xcept as provided in subdivision (b), every tissue bank operating in California on or after July 1, 1992, shall have a current and valid tissue bank license issued or renewed by the department pursuant to Section 1639.2 or 1639.3.”
Plaintiff points to evidence suggesting that, at times, between fifteen to twenty skull flaps were being stored in a KMC freezer and argues that “given the excessive number of skull flaps, Plaintiffs suspicion that at least some of the flaps would be reimplanted into patients in violation of Health & Safety Code 1635.1, was reasonable.” (Doc. 272 at 18.)
7
Without more, evidence that, at times, fifteen to twenty skull flaps were in KMC’s freezer, which was apparently an unlicensed freezer, does not lead to the reasonable conclusion that the skull flaps were destined to be re-implanted into patients. Dr. Charles Joseph Wrobel, M.D., a neurosurgeon, testified that he saves skull flaps in the KMC freezer so that he can use them to make a template for a patient, i.e., so that he can “mold a piece of titanium mesh to the right specifications” and later implant the “titanium mesh” (not the skull flap) into the patient. (Wrobel Dep. 18:16-17, 40:13-22.) Despite his professed concern for skull flap storage, Plaintiff does not point to any evidence that, during his employment, he asked anyone at KMC for the reason why skull flaps were being stored in the freezer or otherwise investigated where stored skull flaps eventually ended up. Even assuming Plaintiff reasonably believed that KMC had an unlicensed freezer and that some of the stored skull flaps were being re-implanted into patients, Plaintiffs retaliation claim does not survive.
Plaintiffs claims based on his skull flap-related outside whistleblowing and alleged adverse employment action in response thereto, including the paid administrative leave, are barred as explained in the order on Defendants’ motion for judgment on the
*1159
pleadings. Moreover, the temporal gap between the outside whistleblowing (Thanksgiving 2006) and the non-renewal of Plaintiffs employment contract on or around October 4, 2007, is too wide to create an inference that the County did not renew his contract because of the skull flap whistleblowing.
For the foregoing reasons, summary judgment in favor Defendants on Plaintiffs retaliation claims under § 1102.5(b) is GRANTED.
C. FMLA
8
The FMLA creates two “interrelated substantive rights for employees” of covered employers.
Xin Liu v. Amway Corp.,
347 F.3d 1125, 1132 (9th Cir.2003). First, an employee has the right to take up to twelve weeks of leaves during any twelve-month period for reasons specified by statute. 29 U.S.C. § 2612 (a). Second, an employee who takes FMLA leave has the right, upon return from leave, to be restored to his or her original position or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. § 2614(a). To protect these rights and the exercise of them, the FMLA prohibits certain acts.
See
§ 2615. In pertinent part, § 2615(a)(1) makes it unlawful for an employer “to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”
Plaintiff has asserted two claims arising under § 2615(a)(1), and they are: (i) that his taking of FMLA leave was counted as a negative factor in the County’s decision to demote him, cut his pay, and to not renew his contract; and (ii) that his rights under the FMLA were interfered with when Bryan “forced him to take full-time ‘personal necessity leave’ under the County’s leave policy” instead of permitting Plaintiff to continue on a reduced leave schedule. (Doc. 272 at 17-18.)
1.
FMLA leave as a negative factor
Under the FMLA, it is unlawful for an employer to “ ‘use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.’ ”
Bachelder v. Am. W. Airlines, Inc.,
259 F.3d 1112, 1122 (9th Cir.2001)
(quoting
29 C.F.R. § 825.220 (c)). Under Ninth Circuit case law, if an employer uses an employee’s taking of FMLA leave as a “negative factor” in making “adverse employment decisions,” including hiring, promotions or disciplinary actions, the employer interferes with the employee’s exercise of FMLA rights in violation of § 2615(a)(1).
Id.
at 1122-23;
see also Liu,
347 F.3d at 1133 n. 7 (“In this circuit ... we have clearly determined that § 2615(a)(2) applies only to employees who oppose employer practices made unlawful by FMLA, whereas, § 2615(a)(1) applies to employees who simply take FMLA leave and as a consequence are subjected to unlawful actions by the employer.”) (emphasis omitted);
Foraker v. Apollo Group, Inc.,
427 F.Supp.2d 936, 940 (D.Ariz.2006).
To establish this type of interference claim under the FMLA, a plaintiff must show that (1) he took “FMLA-protected leave”; and (2) it constituted “a negative factor” in an adverse employment decision.
Bachelder,
259 F.3d at 1125 . A plaintiff “can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both. No scheme shifting the burden of production back and forth is required.”
Id.
(internal citations omitted).
Defendants represent, and Plaintiff does not challenge, that Plaintiff used up all of his FMLA leave by June 14, 2006. (Doc.
*1160
291 at 2.) After that, Plaintiff went on nonFMLA Personal Necessity Leave. The issue remains as to whether Plaintiffs FMLA leave was used as a negative factor in an adverse employment decision.
a.
Plaintiffs Motion
Plaintiff argues that he has “direct evidence” that his FMLA medical leave was a negative factor in the decision to remove him from his chairmanship and then cut his pay. Plaintiff relies on Bryan’s recommendation letter to the JCC and Defendants’ admission in a Scheduling Conference Order.
Bryan’s recommendation letter, dated July 10, 2006, to the JCC began as follows:
Under the provisions of paragraph 9.7-4 of the Medical Staff Bylaws (enclosure 1) I recommend that Dr. David Jadwin be removed as Chairman, Department of Pathology. This recommendation is based on Dr. Jadwin’s unavailability for service because of extended medical leaves for non-work related ailments.
(Doc. 266-2 at 31.) Bryan then gave a chronology of events, including Plaintiffs absences from work while he was on FMLA leave from December 15, 2006 to March 16, 2006, and Plaintiffs full-time FMLA leave starting in May 2006. In the last event in his chronology, Bryan stated:
Since the middle of November 2005 Dr. Jadwin has worked only 32% of the hours normally expected of a full time pathologist (enclosure 9). Since my notice of June 14, 2006 Dr. Jadwin has made no attempt to contact me concerning my decision to relieve him of his chairman duties nor has he indicated any desire to negotiate a new contract.
(Id.
at 32.) In closing, Bryan wrote:
This recommendation to rescind Dr. Jadwin’s appointment as Chairman, Department of Pathology is based solely on his continued non-availability to provide the leadership necessary for a contributing member of the medical staff leadership group. KMC must have its key personnel available, and Dr. Jadwin has provided no indication that he is committed to return to work or resume his duties as chairman. Other than his latest written communication requesting an extension of medical leave, Dr. Jadwin has made no attempt in the last two months to contact me concerning his employment status or how the Department of Pathology should be managed during his extended absence.
I therefore request that the Joint Conference Committee act pursuant to paragraph 9.7-4 of the Medical Staff Bylaws and, by majority vote, endorse my recommendation to rescind Dr. Jadwin’s appointment as Chairman, Department of Pathology.
(Id.)
In a scheduling Conference Order, Defendants admitted:
19. On or about July 10, 2006, the JCC voted to remove Plaintiff from his position as Chair of the Pathology Department at Kern Medical Center.
20. Plaintiff was removed from his position as Chair of the Pathology Department in part because he was neither working full-time nor present in the hospital.
(Doc. 29 at 8-9.) Given Bryan’s written recommendation, and in light of the scheduling order, it is clear that a reasonable trier of fact could easily conclude that Plaintiffs taking of FMLA protected leave was a negative factor in Bryan’s recommendation and, because his recommendation was adopted by the JCC, a negative factor in the JCC’s vote as well. Plaintiffs burden
as the moving party,
however, does not stop there. Plaintiff must show that no reasonable trier of fact could find other than for him on the issue that his taking of FMLA leave constituted a negative factor in the decision to remove him
*1161
from his chair position. Plaintiff has not met his burden.
In his deposition, Bryan explained his recommendation to the JCC:
A. Dr. Jadwin’s nonavailability to be present was the primary contributing factor to my recommendation to remove his as chairman.
Q. Okay.
A. And evidenced by his request towards the end of his eligible medical leave to, again, extend it for another medical problem.
So he had fully-exhausted his rights and the institution obligation to grant him medical leave.
Q. Okay. So to get back to my question, was Dr. Jadwin’s medical leave a negative factor in the decision to remove Dr. Jadwin from chairmanship?
A. No, the medical leave, per say, was not the basis of my recommendation to remove him as Chair.
It was his non-availability, his non-presence on the institution — at the institution — that would allow him to effectively carry out his duties.
Whether it was medical leave or whatever, he had exhausted his time for over an eight-month period. Not just six months, for eight months,
and he had further requested and stated his inability to return to work. That is the basis of it.
(Brian Dep. 280:21-281:20) (emphasis added.)
Bryan’s recommendation letter mentions absences other than those protected by the FMLA, namely Plaintiffs Personal Necessity Leave starting in June 2006. Plaintiff does not challenge Defendants’ assertion that Plaintiff had exhausted his FMLA medical leave by the time he went on Personal Necessity Leave in June 2006, and there is no dispute that Plaintiff took that leave. Bryan’s recommendation letter stressed that the decision was based “solely on [Plaintiffs]
continued
non-availability to provide the leadership necessary for a contributing member of the medical staff leadership group. KMC must have its key personnel available, and Dr. Jadwin has provided no indication that he is committed to return to work or resume his duties as chairman.” (Doc. 266-2 at 32.)
Viewing the evidence in a light most favorable to the County (the non-moving party), one reasonable interpretation of the evidence is that Bryan was recommending Plaintiff for removal from his chairmanship because
after
Plaintiffs FMLA leave, Plaintiff continued to be unavailable and, at the same time, provided no indication that he was committed to return to work or was then interested in performing his chairman duties.
9
The
*1162
JCC could, without violating the FMLA, use Plaintiffs absence from work after his FMLA leave and any lack of evident commitment to return to work or take on his chairman duties, as the basis for their decision.
See Bachelder,
259 F.3d at 1125 (recognizing the legitimacy of taking adverse employment action based on absences not protected by the FMLA);
Liston v. Nevada ex rel. Dep’t of Bus. & Indus.,
No. 07-16312, 311 Fed.Appx. 1000 , 1001, 2009 WL 413752 , at *1 (9th Cir.2009) (“Although an employer may not use FMLA leave as a negative factor in employment decisions, there is no cause of action under the FMLA if the termination results from absences ... not protected by the ... [FMLA].”) (alteration in original) (internal citation omitted).
10
While basing a decision on such considerations may not have been fair — at the time of Bryan’s recommendation, Plaintiff was on an approved Personal Necessity Leave — whether the JCC’s decision was unfair or imprudent is not the inquiry.
See Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1063 (9th Cir.2002) (recognizing that simply because the reason for the adverse action is “foolish or trivial or even baseless” does not create liability where the reason is not unlawful);
Maynard v. City of San Jose,
37 F.3d 1396, 1405 (9th Cir.1994) (“We do not suggest that the statements [the plaintiff] attributes to the defendants were proper or justified. We note only that the evidence presented by [the plaintiff] indicates the defendants’ hostility towards him was not kindled by racial prejudice.”);
Green v. Maricopa County Cmty. Coll. Sch. Dist.,
265 F.Supp.2d 1110, 1128 (D.Ariz.2003) (noting that whether the reason for an adverse employment action was “accurate, wise, or well-considered” is not the inquiry) (internal quotation marks omitted);
Slatkin v. Univ. of Redlands,
88 Cal.App.4th 1147, 1157 , 106 Cal.Rptr.2d 480 (2001) (recognizing that even a “personal grudge can constitute a legitimate, nondiscriminatory reason for an adverse employment decision”) (internal quotation marks omitted).
The minutes from the JCC vote do not actually specify whether the voting members considered Plaintiffs FMLA leave as a negative factor or whether it was Plaintiffs post-FMLA unavailability and lack of evident commitment that prompted their action:
The committee was advised that, under the medical staff bylaws, a department chair, specifically Dr. Jadwin, may be removed, with or without cause, upon the recommendation of the CEO of the hospital and a majority vote of the voting members of the JCC. Mr. Bryan was asked about what recourse, if any, Dr. Jadwin has if he is removed as department chair. The committee was advised that the bylaws do not afford a department chair any due process rights once he or she is removed from the position. Mr. Bryan emphasized the importance of having a department chair who is available to manage the department and engage with the medical staff and hospital administration at all times. Mr. Bryan then recommended to the committee that Dr. Jadwin be removed as chair of the department of pathology because of his continued unavailability and lack of available leadership. The committee voted on Mr. Bryan’s recommendation; there were five affirmative votes and two abstentions. Based on this vote, Dr. Jadwin was removed as chair of the department of pathology effective July 10, 2006. Mr. Bryan collected the packets containing information about Dr. Jadwin at the end of the discussion and vote.
*1163
Plaintiff has not pointed to deposition testimony or other evidence that affirmatively demonstrates that the majority voters used Plaintiffs taking of FMLA leave as a negative factor in their vote.
Plaintiff has not met his burden of proving that no reasonable trier of fact could find other than for him on the issue that his FMLA protected leave was, in fact, a negative factor in the decision to remove him from his chair position.
With respect to his pay cut via the amendment to his contract, Plaintiff argues that “because a portion of a KMC department chair’s base pay is tied to his chairmanship, Plaintiffs Demotion made the Paycut a foregone conclusion; hence, the JCC vote to demote Plaintiff was effectively a vote to reduce his Base Pay as well.” (Doc. 272 at 16.) According to Plaintiff, because his taking of FMLA was a negative factor in the JCC’s vote to demote him, it necessarily follows that the his taking of FMLA leave was a negative factor in the pay cut decision. As discussed above, however, Plaintiff has not met his burden, as the moving party, to establish that no reasonable trier of fact could find other than for him on the first issue. He also has failed to meet his burden on the second issue, i.e., that his taking of FMLA leave was a negative factor in the pay cut decision.
Finally, Plaintiff argues that he has direct evidence that his taking of FMLA leave was a negative factor in the decision not to renew his contract. He cites to the testimony of Ray Watson, then Chair of the Board of Supervisors and a member of the JCC:
Q. So the question is: You’ve mentioned that for the nonrenewal one of the reasons was that Dr. Jadwin wasn’t available for work; is that correct or—
A. My understanding was that he had — he had been on medical leave, family leave, and had requested even more leave, and that for that reason and the fact that he was suing us, that we decided not to renew his contract.
(Watson Dep. 113:15-23.) Watson’s testimony does not warrant summary judgment in favor of Plaintiff.
Viewed in a light most favorable to Defendants, Watson’s mention of “that reason” can be interpreted as a reference to Plaintiffs request for “even more leave” (a singular reference to the last event in a list) after Plaintiff had exhausted his FMLA medical leave. As discussed above, once an employee exhausts his FMLA leave, the FMLA does not prohibit an employer from basing adverse employment decisions on subsequent absences.
11
Plaintiff has not shown that no reasonable trier of fact could find other than for him on the issue of whether his FMLA leave was a negative factor in the decision not to renew his contract.
b.
Defendants’Motion
In their motion, Defendants argue that Plaintiffs removal from the chairmanship was based on legitimate business reasons and there is no evidence that Plaintiffs rights under the FMLA were violated. Defendants’ arguments are unpersuasive.
As discussed above, in light of Bryan’s recommendation letter and the JCC vote which adopted his recommendation, and considering the admission in the scheduling order in Plaintiffs favor, a reasonable jury could conclude that Plaintiffs taking of FMLA was used as a negative factor in the decision to remove him from his chairmanship. A triable issue exists as to whether Plaintiffs FMLA leave was a negative factor in the decision to remove him
*1164
from his chairmanship and it precludes summary judgment in favor of Defendants.
Alternatively, Defendants argue that Plaintiff was not entitled to his FMLA leave from December 16, 2005, to March 15, 2006, because Plaintiff did not timely notify the County of his leave request. For several reasons, this argument is unpersuasive.
First, this argument flatly contradicts the County’s position repeatedly relied on in its motion for summary judgment that Plaintiff exhausted his FMLA leave entitlements by June 2006. The County cannot have it both ways: it cannot argue that Plaintiff exhausted his FMLA leave and then argue that he was never entitled to FMLA leave in the first instance. If Plaintiff was not so entitled, then he should not have exhausted his FMLA leave and he would have theoretically been entitled to more FMLA leave at a subsequent time.
Second, this argument does not eviscerate Plaintiffs FMLA interference claim. Plaintiff took a second FMLA leave of absence after he submitted a second Request For Leave Of Absence form on April 26, 2006.
In his second request (April 26, 2006), Plaintiff asked that his initial leave be extended. Then, after his meeting with Bryan and others on April 28, 2006, he was granted full-time FMLA leave. In fact, documentation suggests that Plaintiff was on FMLA leave at minimum through the “06-09” pay period, which spanned from April 29, 2006 through May 12, 2006.
(See
Lee Deck, Ex. 18 at 0001527.) Defendants’ brief concedes that “Plaintiff exhausted his 12 weeks leave [under the FMLA] by June 14, 2006.” (Doc. 291 at 2.) Defendants further represent that “[a]ll parties agree Plaintiff completely exhausted his twelve weeks of FMLA and CFRA leave by June, 2006.” (Doc. 253 at 8.) It is indisputable that Plaintiff had not exhausted his FMLA leave allotment by the end of his first leave of absence on March 15, 2006. Plaintiff subsequently went on a second full-time FMLA leave. Bryan’s recommendation letter to the JCC discusses this second leave. (Doc. 266-2 at 32.) Based on the same evidence above— Bryan’s recommendation letter, the JCC vote, and the admission in the scheduling order—a triable issue exists as to whether Plaintiffs FMLA leave, including his second FMLA leave, was one negative factor in the decision to remove Plaintiff from his chairmanship position.
Third, even assuming Plaintiffs notification of his need for his first FMLA leave was untimely, the County arguably waived any objection to its timeliness. An employer can waive an employee’s FMLA notice requirements.
See
29 CFR § 825.304 ;
see also
29 CFR § 825.302 (g);
Killian v. Yorozu Auto. Tenn., Inc.,
454 F.3d 549, 554 (6th Cir.2006) (recognizing that an employer can waive an argument as to the adequacy or timeliness of the employee’s notice, stating “even if [the plaintiffs] notice had been late, [the employer’s] only legal recourse would have been either to waive the notice requirement or to delay her leave”);
Bailey v. Miltope Corp.,
513 F.Supp.2d 1232, 1240 (M.D.Ala.2007) (recognizing possibility of waiver);
Rodriguez v. Ford Motor Co.,
382 F.Supp.2d 928, 934 (E.D.Mich.2005) (same). Generally speaking, waiver is the “voluntary or intentional relinquishment of a known right.”
Hecht v. Harris, Upham & Co.,
430 F.2d 1202, 1208 (9th Cir.1970) (internal quotation marks omitted).
12
The County explicitly, in writing, approved Plaintiffs first “FMLA” leave re
*1165
quest. (Doc. 266-2 at 65.) After Plaintiff had taken approved FMLA leave, on April 28, 2006, in a meeting between Plaintiff, Bryan, Steve O’Connor from HR, and Karen Barnes (the County’s counsel), Bryan provided Plaintiff with a summary of Plaintiffs medical leave history. This history specifically stated that Plaintiffs “Intermittent LOA
began
12/16/05” and the he was “entitled to 480 hrs
(FMLA
intermittent leave rule).” (Doc. 266 at 64) (emphasis added.) This medical leave history ended with a calculation of how many hours (of the 480) Plaintiff had left after considering his usage during pay periods spanning from December 2005 to March 2006, i.e., pay period “05-25,” which covers 12/10/05 to 12/23/05, to pay period “06-07,” which covers 04/01/06 to 04/14/06.
(Id.; see also
Lee Deck, Ex. 18 at 0001527.) Plaintiff was specifically informed that, based on his medical history, he had “137 hours available to be taken before [he] hit the 480-hour limitation.” (Doc. 266-2 at 62.). As Bryan recounted in his recommendation letter to the JCC, “Dr. Jadwin was informed ... that, at his rate of use, he had only 137 hours of medical leave left available which would take him through June 16, 2006.” (Doc. 266 at 32.) Thus, without question, Plaintiffs “FMLA” leave of absence between December 2005 and March 2006 was not only explicitly approved in writing, it was also counted against his FMLA allotment. By explicitly approving of Plaintiffs requested FMLA leave and counting it against his accrued FMLA leave hours, at minimum, there is a triable issue as to whether the County waived its belated challenge to the timeliness of Plaintiffs notice.
Salgado v. CDW Computer Ctrs., Inc.,
No. 97 C 1975, 1998 WL 60779 , at *6 (N.D.Ill. Feb. 5, 1998) (“Regardless of whether the request was timely or not, defendant granted permission to take two weeks’ leave. Therefore, defendant appears to have waived any possible violation of the initial notice requirements.”).
13
Fourth, in response to Plaintiffs separate statement of undisputed material facts, Defendants “admit” that “Plaintiff requested and took reduced work schedule CFRA medical leave from December 16, 2005 to at least March 15, 2006.” (Doc. 278 at 23.) There is no reason why this admission does not apply to Plaintiffs “FMLA” leave as well (especially given that Plaintiffs approved leave request form specifically stated “FMLA” leave).
For these reasons, Defendants are not entitled to summary judgment on the ground that, because Plaintiffs notice was untimely, his leave of absence from December 16, 2005, to March 15, 2006, was unprotected under the FMLA.
14
*1166
Defendants are also not entitled to summary judgment on the ground that no triable issue remains as to whether Plaintiffs taking of FMLA leave was a negative factor in the decision not to renew Plaintiffs employment contract. Watson’s testimony is the only evidence Plaintiff relies upon to establish that his FMLA leave was a negative factor in the decision not to renew his contract. Defendants
argue
that Watson was not a decision-maker and his testimony as to the reasons for the non-renewal is nothing more than “after-the-fact speculation.” (Doc. 276 at 25.) At his deposition, Watson testified in pertinent part as follows:
A. I recall that his contract was — was expiring. I couldn’t tell you when, but I — I—I am aware that — that it was not renewed.
Q. Okay. How did you become aware of this nonrenewal?
A. That would have been part of the general discussions about his not being present to do his job.
Q. Sure. Okay. And do you recall who was part — who was in that discussion on the nonrenewal of Dr. Jadwin’s contract?
A. The only — the only time any of these things were discussed were in joint conference committee meetings, and there may have been a time when Mr. Bryan appeared in closed session with the board.
Q. Are you aware that Dr. — and what was the final resolution of this discussion regarding nonrenewal of Dr. Jadwin’s contract? Was there a decision, in fact, not to renew his contract then?
A. I don’t recall a specific vote being taken, although I imagine it was. I can tell you that I would have supported that because I didn’t feel that he was doing his job.
Q. Okay. So you don’t recall a specific vote, but there was a decision not to renew his contract then?
A. Yes.
Q. Okay. What about the nonrenewal? I mean, do you recall Dr. Jadwin’s physical absence being a reason for his non-renewal of his contract?
A. Well, it could be that. It could be the fact that I think by then he was— probably was suing us. So why would you want to establish a contractual relationship with somebody who’s suing you.
Q. Okay. Well, he was also suing you at the time of his removal or actually at the time of his — no, he wasn’t. He wasn’t okay. But I mean, you say why would you establish a contractual relationship with someone who’s suing you, right?
A. Right.
Q. Was that — does that mean — are you just speculating now, just guessing, or was that a consideration for his nonrenewal.
A. Well, I remember it being discussed.
Q. Do you recall who was at the discussion?
A. It would have been in one of the joint conference — one or more of the
*1167
joint conference committee meetings along with all the other discussions about him.
Q. Okay. But you recall it [the non-renewal] being discussed at the JCC meetings.
A. Yes.
Q. So the question is: You’ve mentioned that for the nonrenewal one of the reasons was that Dr. Jadwin wasn’t available for work; is that correct or—
A. My understanding was that he had — he had been on medical leave, family leave, and had requested even more leave, and that for that reason and the fact that he was suing us, that we decided not to renew his contract.
Q. Okay. When you say “we,” this is a joint conference committee meeting, correct?
A. And it — it probably came up at a closed session of the board of supervisors.
Q. As well as a closed session of the JCC?
A. Yes.
(Watson Dep. 28:9-16; 29:19-30:13; 110:12-111:10; 111:15-17; 113:15-111:4.) In a declaration submitted in support of Defendants’ motion for summary judgment, Watson explains and directly contradicts his prior sworn deposition testimony:
2.On August 25, 2008, Dr. Jadwin’s attorney took my deposition. He asked me several times what I knew about the circumstances of Dr. Jadwin’s ‘termination.’ I told him I did not recall any discussions about that. Later in my deposition, he asked me about the expiration of Dr. Jadwin’s contract on October 4, 2007. I told him I had learned Dr. Jadwin’s contract was expiring in general discussions about Dr. Jadwin’s absence from the hospital. I told him I could not recall when those discussions had occurred. He asked me if there had been a decision to not renew Dr. Jadwin’s contract. I told him that I did not recall the Joint Conference Committee ever voting on that but I said I ‘imagine it was.’ He then asked me if there was a decision not to renew his contract and I replied, Yes.’
3. My response was an unfortunate guess. Neither the Joint Conference Committee nor the Board of Supervisors ever made a decision to not renew Dr. Jadwin’s contract. I have no recollection of any such decision. As a county supervisor, I am accustomed to making decisions and I assumed, if Dr. Jadwin’s contract was not renewed, there had been a decision to not renew it; however, there was no such decision.
4. The Board of Supervisors never made any decisions regarding renewing or not renewing Dr. Jadwin’s employment agreement. I do not know the circumstances under which Dr. Jadwin’s employment agreement expired.
There are several problems with Watson’s post-deposition affidavit.
First, Watson’s statement that “there was no such decision” and “neither the JCC nor the Board of Supervisors ever made a decision” is wholly conclusory. Second, Watson’s subsequent contradictory affidavit does not eliminate his prior inconsistent sworn testimony. “Self-contradiction by the moving party’s witnesses may of course create a genuine issue of material fact precluding summary judgment.”
Crockett v. Abraham,
284 F.3d 131, 133 (D.C.Cir.2002). When a witness contradicts himself on a material fact the district court cannot determine which version of the events the ultimate trier of fact will believe.
See Peckham v. Ronrico Corp.,
171 F.2d 653, 658 (1st Cir.1948). Third, although Watson asserts that “no such decision was made” the County actu
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ally admitted in its response to Plaintiffs statement of undisputed material facts that a decision was made not to renew Plaintiffs contract. (Doc. 278 at 7.) Not only does Watson contradict himself, the County also contradicts Watson’s affidavit. Fourth, in his affidavit, Watson does not retract his statement that Plaintiffs medical leave, and his request for even more leave, was discussed or “came up” at a meeting. The fact that Plaintiffs medical leave came up in a discussion among a County decision-making body supports Plaintiffs position.
Wilson’s inconsistent testimony creates a triable issue of fact. When construed in a light most favorable to Plaintiff, Wilson’s testimony suggests that Plaintiffs FMLA leave was one negative factor that influenced the admitted decision not to renew Plaintiffs contract. Although Watson’s “understanding” may be based partly on statements from members of the JCC and/or the Board of Supervisors, at a minimum, the Board members’ statements (regardless of their truth) can be used to establish the state of mind (illicit motive or improper purpose) of those members.
15
2.
“Forced” Personal Necessity Leave
An employer interferes with an employee’s FMLA rights by “ ‘refusing to authorize FMLA leave’ ” and “ ‘discouraging an employee from using such leave.’ ”
Liu,
347 F.3d at 1134
(quoting
29 C.F.R. § 825.220 ). An employer may also interfere with an employee’s rights under the FMLA by mislabeling an employee’s leave as “personal leave” or something else when, in reality, the leave qualified as FMLA leave.
Id.
at 1134-35 . When an employer fails to properly deem a leave of absence as an FMLA leave, the employee may remain “subject to the control and discretion of [the employer]” in a manner which the employee would not have been had the leave been appropriately deemed as FMLA leave.
Id.
at 1135 .
Plaintiff appears to raise two FMLA interference claims. On one hand, Plaintiff argues that Dr. Riskin certified that Plaintiff could work part-time. Yet, in Plaintiffs meeting with Bryan on April 28, 2006, “Bryan denied Plaintiff reduced work schedule medical leave and forced him to take full-time ‘personal necessity’ leave under the County’s leave policy.” (Doc. 272 at 17-18.) This suggests that the County denied Plaintiff any FMLA leave whatsoever and, instead, forced him to take Personal Necessity Leave. If this is Plaintiffs contention, it does not make sense. Documentation in the record suggests that Plaintiff was on FMLA leave at minimum through the “06-09” pay period, which spanned from April 29, 2006 through May 12, 2006. In its briefing, the County submits that “Plaintiff exhausted his 12 weeks leave [under the FMLA] by June 14, 2006.” (Doc. 291 at 2.) The County further represent that “[a]ll parties agree Plaintiff completely exhausted his twelve weeks of FMLA and CFRA leave by June, 2006.” (Doc. 253 at 8.) It appears Plaintiff himself recognized that, by the time he filed a Government Claims Act claim with the County on July 3, 2006, he had taken FMLA/CFRA leave through June 14, 2006. (Doc. 241, Ex. 2.)
16
To the extent Plaintiff claims that Defendants did not provide him any FMLA leave and forced him to take Personal Necessity Leave instead, Plaintiffs motion for summary judgment is DENIED.
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At another place in his briefing, Plaintiff argues that even though he was entitled to continue his part-time FMLA leave, Bryan forced Plaintiff to take “full-time medical leave in April 2006” to “burn up Plaintiffs medical leave entitlement” and this violated the FMLA (and the CFRA). (Doc. 275 at 2).
17
In other words, he was denied his right to take FMLA leave on a reduced schedule. Based on the record evidence, this argument is more plausible.
To establish this type of interference claim, Plaintiff must show: (1) he is an eligible employee; (2) his employer is an employer under the FMLA; (3) he was entitled to take the FMLA leave at issue; (4) he gave adequate notice of his intention to take the leave; and (5) the defendant denied him, or actually discouraged him from taking, such leave.
See Price v. Multnomah County,
132 F.Supp.2d 1290, 1297 (D.Or.2001);
see also Hurley v. Pechiney Plastic Packaging, Inc.,
No. C 05-05028 JSW, 2006 WL 708656 , at *3 (N.D.Cal. Mar. 16, 2006). “A violation of the FMLA simply requires that the employer deny the employee’s entitlement to FMLA leave.”
Liu,
347 F.3d at 1135 .
Elements (1)-(4) are indisputable. After Plaintiff submitted his FMLA documentation for an extension on his leave (April 26, 2006), Plaintiff had his meeting with Bryan and others (April 28, 2006) and was then given full-time FMLA leave starting in May 2006.
With respect to the fifth element, Defendants did not outright deny FMLA leave. Plaintiff does not argue that he was
not
entitled to full-time FMLA leave. Plaintiff contends that he was entitled to continue his reduced leave schedule under the FMLA but was denied that right. It does not appear that the Ninth Circuit has addressed this precise claim.
The statute provides that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise,
any
right provided under this subchapter.” 29 U.S.C. § 2615 (a) (emphasis added). Under the FMLA, when a “serious health condition” of the employee makes the employee “unable to perform the functions of the position of such employee,” the employee “has the right to take FMLA leave on an intermittent or reduced leave schedule” but only if such leave is “medically necessary.”
Id.
at 2612 (a) & (b).
18
To take intermittent leave or leave on a reduced leave schedule, “there must be a medical need for leave and it must be that such medical need can be
best accommodated
through an intermittent or reduced leave schedule.” 29 CFR § 825.202 (b) (emphasis added).
19
Plaintiff is not entitled to summary judgment on his claim. The certification from his doctor stated “[t]his employee is unable to work full time and requires part-time or less to avoid worsening of his serious medical condition.” (Doc. 270 at 6.) Viewing the evidence in a light most favorable to Defendants, this “or less” statement calls into question whether a reduced leave schedule was the best accommodation for Plaintiffs serious health condition. In addition, under Defendants’
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version of the events, Plaintiff was not forced to take full-time leave. Bryan indicated it would be preferable to take full-time leave (which Plaintiff does not dispute he was entitled to take) and Plaintiff took the leave without protest. In light of the “or less” doctor’s certification, full-time leave was a reasonable option. Plaintiff has not demonstrated that no reasonable trier of fact could find other than for him that he had a right to take leave on a reduced leave schedule which was interfered with.
Viewing the evidence in a light most favorable to Plaintiff, Defendant is not entitled to summary judgment on this claim. A triable issue remains as to whether, in the words of Plaintiff, the County really “forced” him to take full-time FMLA leave even though he was entitled to a reduced leave schedule. If Plaintiff can establish that he was entitled to a reduced leave schedule, and if the County nonetheless forced him to take full-time FMLA leave instead, Plaintiff would have been forced to forgo
one
right he had under the FMLA.
See
29 U.S.C. § 2615 (a) (making it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise,
any
right provided under this subchapter.”) 29 U.S.C. § 2615 (a) (emphasis added);
See Sista v. CDC Ixis North America, Inc.,
445 F.3d 161, 175 (2nd Cir.2006) (recognizing that while the FMLA says “nothing about an employer’s ability to ‘force’ an employee to take” FMLA leave, “if the [plaintiff] were able to demonstrate that such a forced leave interfered with, restrained, or denied the exercise or attempted exercise of a right provided under the FMLA, a cause of action might lie.”);
cf. Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 89-90 , 122 S.Ct. 1155 , 152 L.Ed.2d 167 (2002) (recognizing that an employee might have a viable interference claim where the employee could take intermittent or full-time leave; however, because the employer failed to notify the employee of her rights under the FMLA, the employee unwittingly takes full-time leave instead of intermittent leave such that she has “no leave remaining for some future emergency.”). The County makes no argument that it is permissible under the FMLA for an employer to force an employee who is entitled to a reduced leave schedule to take full-time FMLA leave instead. Accordingly, summary judgment in favor of the County on this claim is DENIED.
3.
Section 2615(b)(1) retaliation claim
The FMLA makes it unlawful for any person to “discharge or in any other manner discriminate against any individual because such individual ... has filed any charge, or has instituted or caused to be instituted
any proceeding,
under or related to this subchapter.” 29 U.S.C. § 2615 (b)(1) (emphasis added). To establish a claim under this section, Plaintiff must show that (i) he engaged in the protected activity; (ii) he was subject to adverse employment action; and (iii) this occurred “because” he engaged in the protected activity. Id.;
cf. Trent v. Valley Elec. Ass’n Inc.,
41 F.3d 524, 526 (9th Cir.1994) (articulating the elements of a retaliation claim under the “opposition clause” of Title VII, 42 U.S.C. § 2000e-3 (a)).
a.
Protected Activity
Plaintiff filed the instant lawsuit against Defendants before his employment contract with the County expired. His original complaint in this action alleged a cause of action under § 2615 of the FMLA. This conduct constituted protected activity under § 2615(b)(1).
Applying the plain language of the statute, a federal lawsuit, such as the one Plaintiff instituted, is a “proceeding.”
See
Merriam Webster’s Online Dictionary
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http://wwww.merriam-webster.com/ dietionary/proeeeding (defining “proceeding” as a “legal action”) (last visited Apr. 2, 2009); see also
Black’s Law Dictionary
1221, 1512 (7th ed.1999) (defining “proceeding” as, among other things, “[a]ny procedural means for seeking redress from a tribunal or agency”; and defining “tribunal” as “[a] court or other adjudicatory body”). Any proceeding under or related to “this subchapter” is a reference to sub-chapter “I” which embraces § 2615 of the FMLA. Accordingly, instituting a federal lawsuit that contains an FMLA claim under § 2615 qualifies as “instituting any proceeding, under or related to this sub-chapter.”
b.
Adverse Employment Action And Causality
With respect to the second element, Plaintiff argues that his contract was not renewed because he instituted his federal lawsuit which contained an FMLA claim. Defendants counter with several arguments.
First, Defendants argue that the failure to renew a contract that expired on its own terms does not amount to an adverse employment action. This argument is unpersuasive. Numerous courts have recognized, whether explicitly or implicitly, that the non-renewal of a contract can qualify as an adverse employment action.
See Wilkerson v. New Media Tech. Charter Sch. Inc.,
522 F.3d 315, 320 (3rd Cir.2008) (“The failure to renew an employment arrangement, whether at-will or for a limited period of time, is an employment action, and an employer violates Title VII if it takes an adverse employment action for a reason prohibited by Title VII, such as religious discrimination.”);
Mateu-Anderegg v. Sch. Dist. Of Whitefish Bay,
304 F.3d 618, 625 (7th Cir.2002) (concluding that it is “undisputed that ... [the plaintiff] suffered an adverse employment action” by virtue of the non-renewal of her employment contract);
Kassaye v. Bryant Coll.,
999 F.2d 603, 607 (1st Cir.1993) (noting that the “act of refusing to renew appellant’s employment” may provide the grounds for a Title VII action);
Hernandez-Mejias v. Gen. Elec.,
428 F.Supp.2d 4, 8 (D.P.R.2005) (“[W]e agree with the overwhelming majority of courts that non-renewal of an employment contract constitutes an adverse employment action.”);
Hicks v. KNTV Television, Inc.,
160 Cal.App.4th 994 , 1004 n. 4, 73 Cal.Rptr.3d 240 (2008) (concluding that because Plaintiffs term contract “expired” and was not “renewed” characterizing the non-renewal as a “termination” was not appropriate; ho

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1469437. Public record. Not legal advice.