My legal investigation firm focuses on employment, property and criminal law; see document file, Curriculum Vitae, and correspondences attached herewith; general and litigation related investigation; further, legal research and writing; trial preparation.
My professional experience includes over 20 years university mathematics research and teaching (see section, Personal Data, on this website below): University of North Carolina (Charlotte campus), University of San Francisco (USF, a Catholic, Jesuit university), Princeton University School of Engineering (academic year 1998/99); including, 17 years at USF, tenured Associate Professor of Mathematics USF, 1997-2009, and tenure track Assistant Professor prior; also Associate Editor of the scientific journal, Advances and Applications in Statistics, 2002-2009. As an academic, I used the traditional pronunciation of my Chinese last name (older Wade-Giles, United Kingdom, system of transliteration), "gow;" which modern Pin-Yin system of transliteration would be spelled, Gao. This pronunciation appears in the trial transcript of Kao v. USF, court proceedings 2012; which is published in its entirety on this website; see link reference materials, further post-trial documents, infra. As a legal professional, I prefer the name pronounced, with first letter K articulated as in, for example, the peninsula "Kowloon" incorporated within city of Hong Kong; which, then, "kow" or "ka-o" in Japanese means, "face;" reflecting heritage from both parents; and conveniently is also easier for attorney clients to recall.
My legal experience includes pursuit and assistance in litigation: Kao v. USF, California Court of Appeals for the First District (2014); which surprising decision greatly undermines rights of employees under the California Fair Employment and Housing Act. This new legal precedent in the state of California; see as prior federal counter-example, Scott v. Napolitano, United States District Court for the Southern District of California (2010); allows employers to conduct a "comprehensive fitness for duty exam" (FFDE) with: a doctor chosen and paid by the employer, requiring comprehensive release: medical, legal, financial, educational, work, family and social history; including psychological and laboratory testing; and mandatory waiver of right to access - thus challenge - the doctor's diagnostic assessments; prompted by undisclosed persons and subjective (non-performance based) perceptions therewith. Kao v. USF (2014), appears nationally in journal articles and legal textbooks. In the case of examination by psychologist or psychiatrist, this examiner may have the power of involuntary commitment pursuant to Section 5150 of the California Welfare and Institutions Code; notwithstanding that the employee's own psychologist or psychiatrist never exercised the same prerogative; and which information would be in the public domain; permanently. For all intents and purposes, such examiner would be immune from medical malpractice liability as: no doctor-patient special relationship would be established from which such professional duty arises, professional custom and practice - generally for FFD examiners, outside of specialized fields as public K-12 education controlled by union contract - disallows independent record of proceedings, and note taking by the examinee could be used by examiner as evidence of noncompliance; see link infra, news and case law, Blough v. Menlo College records of the San Mateo Superior Court, also trial transcript hereto (proceedings conducted 2008); Lee v. Northwestern University (2012); further see link in section Forensic Evidence, infra, and in particular the document - mandatory "consent form" concomitant with FFDE, exhibit labeled USF 0249 - entered into evidence: Kao v. USF, trial transcript (appellate decision 2014, court proceedings conducted 2012).
Regarding, I had the distinction of working closely with Christopher Katzenbach - son of Nicholas Katzenbach, US Attorney General serving the administration of President Lyndon Johnson, see the landmark civil rights case, Katzenbach v. McClung, United States Supreme Court (1964) - JD Yale University; Kerry Stoebner, JD Stanford University; Kimberly Hancock, JD UC Berkeley; and Conor Mack, JD UC Hastings.
My firm's not-for-profit activities include on-going political/legislative action for which retained: attorney Melvin Honowitz, JD Golden Gate University; also nationally, arguably internationally - from work in Australia on behalf of actor Russell Crowe, renowned private investigator, concurrently California attorney, Jack Palladino; JD UC Berkeley (Google Search investigation firm and activities thereof: Palladino and Sutherland); heretofore, putting into practice that referred to at the University of the Pacific, McGeorge School of Law, as Capital Lawyering, available selective concentration; though not mine, as current JD Candidate at McGeorge School of Law, in deference to criminal law - defense (link: Capital Law). For legislative endeavors sponsored by JSK Independent Legal Services see section below, Representation and Political Action; including Statistics; for progress as of January 2015. This section includes bona fides - Messrs. Honowitz and Palladino. Further note, correspondence of encouragement from Ms. Jani Iwamoto, State Senate, Utah (JD UC Davis), from 2015; and, offer from Mr. Palladino to provide letter of recommendation for law school admission; both correspondences attached within file, Curriculum Vitae, link, supra. Separately, for examples of legislative activities of State Senator Iwamoto see link: Iwamoto February 2018.
Disclaimer: we work with and for attorneys (our staff do not include attorneys) and, by California law, we are not permitted to offer legal advice directly. Information on this website should not be construed as legal advice - please consult personally with an attorney as necessary.
Similarly, we use the term legal investigator to encompass activities that are within scope of professional investigators, on a legal assistant basis, and that further, that do not require a California private investigator's license. No one on our staff holds the latter.
Fall 2016 I enrolled at Lincoln Law School of San Jose, CA; Juris Doctor Candidate (JD). In this capacity, I was elected representative to the SBA, Student Bar Association (one of two, for class 1L). My qualifications: Bachelor's of Science Degree, Mathematics, awarded at age 17, University of Utah, honors Magna Cum Laude (GPA 3.90), tuition fully paid by US state scholarship; Doctor of Philosophy Degree, awarded at age 23, Department of Mathematics, Program in Applied and Computational Mathematics, Princeton University, tuition and stipend fully paid by US federal scholarship and grant (National Science Foundation, Office of Naval Research); Law School Admission Test (LSAT) 155. Withdrawal as Student in Good Standing, upon completion of one semester; see document, Curriculum Vitae for details, with note that original travel itinerary was preempted, and postponed by one year, as a result of an unanticipated and protracted legal dispute for which retained, Mako Sato, JD Tokyo University, Japan; equitable settlement reached December 2017, see document Curriculum Vitae and attachments for details of transactions vis-a-vis correspondences.
Spring 2017, I received letters of recommendations for continuing education from Jon B. Eisenberg of Horvitz & Levy LLP - for copy, attachment Curriculum Vitae wherein reference to this website: political action initiatives; also Professor Patrick Kelly, Lincoln Law School of San Jose.
Fall 2017, I enrolled as Candidate for the degree of Juris Doctor (JD) at University of the Pacific, McGeorge School of Law (Part-Time Program for students with concurrent full-time professional obligations); Part-Time Program then nationally ranked 34th by US News and World Report; and ranked 4th (similarly Part-Time Programs) in the state of California; see Law School Rankings 2017; awarded Pacific Law Scholarship - tuition deferment in the amount of $19,812; declared emphasis under application - appellate law as applied to criminal cases.
Mr. Eisenberg is principal author of the legal reference monograph, The Rutter Group's California Practice Guide: Civil Appeals and Writs; and, as attorney, won vital human rights decisions on behalf of prisoners at the Guantanamo Bay Detention Center, Cuba; see Law Firm Publication - Horvitz & Levy and Eisenberg Article, published in, The New York Times.
Concerning formal legal education thus far, I am thankful for training received from Professor Patrick Kelly and the Honorable Daniel Nishigaya (Santa Clara County Superior Criminal Court Judge, formerly supervising deputy district attorney; also served as Professor, Santa Clara University School of Law, see Nichi Bei Weekly; periodical representing news for and about the Japanese American community; Judge Nishigaya Article) who team taught Criminal Law at Lincoln Law School of San Jose.
On their December 2016 mid-year Criminal Law evaluation, I finished top in our class with the single "A" score of 90%. This was the only core mid-year exam, contrasting Contract and Tort Law which, retrospectively, could not be dropped toward final 1L rankings - among 20 students total holding status as 1L at Lincoln Law School of San Jose, Fall 2016, with exam scores published internally by student code. Further, see correspondence from the Office of Registrar requesting permission for use of this essay as model answer for subsequent students, dated October 5, 2017; posted document, Curriculum Vitae, supra. Their dedication and exposition demonstrated to me the impact excellence in the practice of criminal law has upon society writ large. Professor Kelly and Judge Nishigaya gave our class exceptional and unique exposition in this area of litigation by relating personal, experiences and principles, of trial practice (defense and prosecution respectively), complementing legal theory found in textbooks.
Application for Withdrawal as Student in Good Standing approved by Jennifer Carr, Assistant Dean for Student Affairs, McGeorge School of Law, for purpose of professional obligations and extended travel abroad; procedure standard at this law school, 1L and 2L part-time students (Leave of Absence alternate policy available only for 3L and 4L part-time students) for requisite absence pursuant to California Bar Association, "seat time," classroom attendance requirement of 270 hours over four years, for JD Candidates matriculated at fixed-facility law schools (effectively prohibited by two week absence in a single semester), for any reason: personal injury/illness, family emergency, or professional exigency (as mine). Continuing education, this calendar year or future, pending: completion of equity management project, Japan; and further, approval from Office of JD Admissions; for policy statement see correspondences with Dean Carr and Tracy Simmons, Assistant Dean of Admissions and Financial Aid, from January 2018: Correspondences. Petition to this effect submitted, and receipt thereof acknowledged, March 2018, University of the Pacific, McGeorge School of Law.
Apart from concentration in criminal law - defense - I have further interests: immigration and disability (perceived or otherwise) law; wherefore reflecting my passion and commitment to the principle of equity as basis of sound, whence lasting, legal culture in the US.
Born August 30, 1967 in Salt Lake City, Utah, of Chinese and Japanese ancestry, I attended the University of Utah graduating Magna Cum Laude at the age of 17. Admitted to the Department of Mathematics at Princeton University, I earned a PhD in 1991 from the Program in Applied and Computational Mathematics concurrently completing a one year post-doctoral fellowship program by the age of 23.
My graduate school research and teaching was fully supported by the National Science Foundation (fellowship) and the Office of Naval Research (grant). The Princeton Mathematics Department was ranked 1st among doctoral programs for mathematics in the US by the National Research Council from the year prior to my admission at Princeton University, 1985, and for more than a decade thereafter.
I taught at the University of North Carolina at Charlotte (as a postdoctoral fellow) in the 1990/91 academic year. I began as an Assistant Professor of Mathematics at USF fall 1991.
It is of note, from a legal as well as personal professional perspective that USF has the unique - amongst Jesuit universities, also attractive for prospective professors - arrangement that tenured and tenure track faculty employment are governed via contract negotiated through the purportedly secular USF Faculty Association; teachers' union affiliated with the American Federation of Teachers; in turn, American Federation of Labor and Congress of Industrial Operations; AFL-CIO.
My research until 2009 explored two fields: birth and death processes on stochastic flows (BDFPs) and stochastic vibrational control. This work is outlined in the subsequent section, and with descriptions taken directly from the USF mathematics department program report to an external review committee (2004) as currently posted on the official USF website, see link: USF Mathematics Program Review 2004.
Since they were first identified in my PhD dissertation, Birth and Death on a Flow: A Study of a Random Particle System and Its Statistical Equilibrium, published UMI (ProQuest LLC) 1991, BDFPs have proven fertile ground for scientific inquiry (see for example, M. Phelan, "Asymptotic likelihood estimation from birth and death on a flow," The Annals of Statistics (1996); also, J.S. Kao and E. Cinlar, "Spectral expansion of the occupation measure for birth and death on a flow," Stochastic Processes and Their Applications (1998). BDFPs represent a first step in the application of modern results from the theory of stochastic flows of homeomorphisms to the classical problem of turbulent transport by fluids. This research was funded jointly by the United States agencies: the National Science Foundation and the Office of Naval Research (ONR). The latter application: detection and elimination of hostile explosive devices (naval mines) in oceanic flow; also, pollution control in oceanic turbulence, ONR grant 1989-1991 (see BDFP publications and acknowledgements therewith).
Vibrational control refers to the stabilization of unstable mechanical (physically realizable) systems by introduction of vibrations. This technique has been used, for instance, to stabilize beam trajectories in particle accelerators (alternating-gradient focusing). In "Principle of vibrational control: theory and applications," IEEE Transactions on Automatic Control (1980), Dr. S.M. Meerkov posed the following, "Is it possible to stabilize the system using not regular but random 'vibrations'?... The answer to this question is not found, although it was discussed in many publications..." Together with Dr. Volker Wihstutz, the problem was solved fourteen years later - answered in the affirmative (see J.S. Kao and V. Wihstutz, "Stabilization of companion form systems by mean zero noise," Stochastic Processes and Their Applications (1994). Our subsequent paper, "Characterization of stochastic processes which stabilize linear companion form systems," Stochastic Processes and Their Applications (2000) provided necessary and sufficient conditions for a broad class of stochastic processes (diffusion noise) to stabilize linear companion form systems (the simplest example being the inverted pendulum). Scientists at Universitat Hannover, Germany, were later able to experimentally verify our characterization - stabilizing an inverted pendulum with random, vertical line, vibration of its pivot.
Again, from the USF mathematics department program report to external review committee (2004): With respect to other commissions on behalf of USF (service and teaching), Stanley Nel, Dean, Colleges of Arts and Sciences, wrote on Dr. Kao's annual performance report, Academic Career Prospectus (dated May 8, 2003), "For the next 2-3 years, focus on completion of monograph. Maintain current level of service. I judge your teaching to be truly outstanding." See link, from USF official website, supra.
Pursuant to these endeavors, I served as Visiting Associate Professor, School of Engineering, Princeton University academic year 1998/99 (for narrative summary of student evaluations of teaching for "Fundamentals of Engineering Statistics", see link, Curriculum Vitae, supra.
I also served as Associate Editor for the journal, Advances and Applications in Statistics, 2002-2009.
Although employed as a university mathematics teacher/researcher for over 20 years (and tenured Associate Professor at USF 1997-2009), I became interested in law through experiences in civil litigation, Kao v. The University of San Francisco. This dispute arose in the context of discrimination and harassment I encountered personally; see link post-trial documents below for details.
In 2006 (represented by attorney, Christopher W. Katzenbach) and again in 2007 (represented also by attorney, Kimberly A. Hancock), I filed a total of two complaints with the USF Office of Human Resources (HR); see, in particular, link post-trial documents, cover letter to HR Complaint 2007. The first Complaint was 485 pages long, the second, Addendum, was 41 pages long, which to the lay-person may seem excessive, and articles published nationally about the decision, Kao v. USF (2014), make an issue of this.
However, in this matter I paid three consultants (at rate, adjusted for inflation, in today's dollars, of approximately $300/hour) to prepare these HR documents as I had no experience of how to compose or file such. Composition of complaint from documentary evidence to final form with appendix required months of part-time labor to perform properly according to consultant specifications. This fundamental fact (complaint prepared in collaboration with legal specialists, see link post-trial documents, trial transcript) was made explicit in the cover letter of these complaints, and also orally to HR; those specialists known to USF, then, were, attorneys Katzenbach and Hancock.
To the extent the California Appellate Court suggested that the very length of this complaint was a contributing factor in justifying a psychiatric FFDE, I am somewhat surprised the State Bar Association did not mandate same from Mr. Katenbach and Ms. Hancock as condition for their continuing practice of law as of 2014. Satirically (emphasis mine).
Subsequent to a meeting with, Ms. Elsie Tamayo, Lead Affirmative Action Officer USF in academic year 2005/06, I was advised in writing to, "include all relevant documentary evidence," as part of any HR Complaint (paraphrasing slightly). To this end, both complaints were thoroughly reviewed by paid consultants including two attorneys: Mr. Katzenbach and Ms. Hancock. These consultants advised that submission of such two complaints would serve as protection against retaliation in relation to employment at USF irrespective of the outcome of any formal investigation forthwith. I resubmitted all documentary evidence in connection to a union grievance I filed and won against Professor (then Dean of Sciences) Tristan Needham in December 2000 (see post-trial documents, trial transcript), concluded 2001. The vast majority of this file had been misplaced by the university sometime between 2001-2005, notwithstanding that I submitted copies to: my personnel file in the Dean's Office of Arts and Sciences, also the USF Faculty Association (teachers union), and also the Provost's Office (see post-trial documents, trial transcript). Furthermore, as USF Human Resources Anti-discrimination Policies (Race, Gender, Sexual Orientation, Disability Status, political stance on union representation, etc.), Affirmative Action Policies, and most significantly Complaint Procedures, thereby, changed dramatically from the year of my first appointment 1991 and 2006, and again in 2007. These alterations meant submission of each copy as evidence. Email chains were necessary evidence to demonstrate discriminatory motive and behavior, such are lengthy in hard-copy form. In addition, I meant to demonstrate the comparative weakness of USF Affirmative Action Policy implementation, and for this purpose, I performed a statistical study using documented national averages as control. "Including all relevant documents" required submission of studies by organizations such as the National Research Council and the American Mathematical Society. The final Complaint was composed in as concise and comprehensive fashion possible while including all relevant documentary evidence.
In comparison, the trial-transcript for Kao v. USF (see post-trial documents) is approximately 3,000 pages long and does not include any of the documentary evidence submitted as a separate file to the jury and which was, over 1,000 pages. The trial-transcript represents, essentially, what attorneys on both sides wanted to present to the jury with statements from witnesses called to testify. In the United States civil court system, such a "complaint" is considered of reasonable length for a case of this importance and scope. Together, then, the official public court record, i.e. "complaint and response," totals well over 4,000 pages.
The HR complaints alleged personal discrimination and harassment, primarily by Mathematics Professor Tristan Needham (PhD, Oxford University, United Kingdom), against whom I filed and won a union grievance in December 2001 (at which time he was concurrently Dean of Sciences and my direct supervisor). I further alleged that the university's hiring, promotion, and rewards system for faculty in the Colleges of Arts and Sciences was contrary to university-wide affirmative action procedures and mission; primarily as a result of policies set by Dean of Arts and Sciences, concurrently Mathematics Professor, Stanley Nel (PhD, University of Cape Town, South Africa, degree awarded in 1980); together with Tristan Needham (see above). It is relevant from the standpoint of United States Federal Employment Law and California State Employment Law that both of these men are Caucasian. I applied a background in statistics as part of two formal reports.
I testified that the university refused to investigate both of these complaints in the manner guaranteed by USF HR protocols - citing protocols published fall 2005 and also revised protocols published 2007; see link lawsuit complaint filed to the San Francisco Superior Court as follows, link, Court Complaint; for details, see section, Addendum (filed with USF Human Resources in summer 2007) of document, Addendum with Complaint, link post-trial documents infra; in conjunction with evidence submitted to the court, see trial transcript, pages 356-360, link post-trial documents. In particular, the so described "two-page response," to Addendum with Complaint referenced in the California Appellate - Court Summary, page 2, see link hereto infra. Singular consideration might be made to the summer 2006 appointment of a specific Caucasian male faculty member in the Department of Computer Science to the position, Director, Dual Degree in Teacher Preparation (DDTP) Program, with no candidate solicitation for others, including ethnic minority and female faculty, possibly better qualified; a position for which I was explicitly unable, and thus did not, apply. The DDTP Program was jointly administered by the USF College of Arts and Sciences together with the USF School of Education.
In June 2008, at the end of the academic year, I was informed several colleagues complained about my conduct spring semester with the first incident occurring in January. I was provided no details - identities of complainants, dates or locations of incidents - which would enable me to respond meaningfully or supply witness testimony in my defense (see court trial summary for "description of behaviors" provided to me and my attorneys June 2008). I testified that this procedure, again, violated USF HR protocols, citing revised protocols published fall 2007. In meetings of administrators together with my two attorneys, I denied the brief description provided of my conduct, asserted no intentional misconduct, and raised the issue of possible retaliatory motive. The university refused to supply any additional details. No one told me they were bothered by anything I had done during the semester, spring 2008, when the behaviors purportedly occurred, and no one asked me to simply "please stop," or "please act differently" in relation "misbehavior" proximately; see link post-trial documents, trial transcript. The meeting June 28 with HR occurred was the first I or my attorneys were made aware of "concerns," was conducted weeks after the last reported incident of alleged misbehavior.
I was formally instructed by the Dean of the Colleges of Arts and Sciences (acting principal for the university) to take a "comprehensive mental fitness for duty exam" (FFDE) with a psychiatrist retained and paid by the university. I had to release all medical records. The exam included a complete background assessment/review: medical, legal, financial, educational and work history, family and social history. The doctor mandated: mental status examinations, psychological testing, laboratory testing, and diagnostic assessment. I had to waive any rights to receive the doctor's diagnostic assessment which was to be generated by the exam. I was to be given only, "a statement of fit or unfit for duty; and if fit, which functional limitations," that would accordingly apply to my job description; see link court summary below, also petition for review below. I objected specifically to the release of all medical records citing the California Medical Information Act.
After a half-year of negotiations during which I was on unpaid leave and paying attorneys fees for representation forthwith, I was wrongfully terminated (modern employment law nomenclature, "discharged") for refusing to take the "comprehensive FFDE" on the terms demanded by USF and asserting my privacy rights under federal law and CMIA.
In addition to the my termination, the university refused to provide either me or my attorneys with names of faculty or administrators to whom I could safely contact, either directly or through my attorneys, and request letters of recommendation for purposes of future employment without possible negative legal consequences to myself or recommending faculty and staff; see post-trial documents, trial transcript.
Furthermore, the university banned me from ever again setting foot on USF campus; see post-trial documents, trial transcript, notwithstanding that local registered sex offenders, or for that matter practically any American sex offender required by law to register publicly thereby (Megan's Law); even-more-so former Dean and Professor for the USF School of Education, William Garner (emphasis mine), who in 2009 was serving a five year three month federal sentence as result of a guilty plea to possession of child pornography in 2006, and apparently arrested thereby while still employed by USF as a professor (see for example three publications in relation to this criminal case, SF Gate, an online subsidiary of the San Francisco Chronicle - William Garner Articles); and further was apparently not banned from campus; neither in response to his arrest nor conviction; are freely permitted to enter USF campus; reference, 2011 deposition, testimony given under oath and under penalty of perjury, of Daniel Lawson, Senior Director, USF Department of Public Safety, and former San Francisco Police Department (SFPD) officer, and SFPD administrator; deposition testimony available upon special request (full records archived - proprietary storage unit - through Katzenbach Law Offices, 912 Lootens Place, 2nd Floor, San Rafael, CA 94901; court documents, official deposition transcripts, videotape of depositions, from 2012, archived 2013 in preparation for Appellate Court Hearing 2014, motion for new trial - official transcript also videotape, available upon special request to Law Offices - see contact information infra). Ironically, William Garner was co-founder of USF's Center for Instruction and Technology in 1984, while he was serving as Dean of the School of Education; and in his plea agreement admitted to knowingly possessing more than 15,000 images of child pornography, including many depicting sadistic or masochistic content that he obtained from the internet - according to press statements by federal prosecutors; the distinction between "collecting" and "possessing" being unclear to me, however unessential this is to the overall conclusion; as Mr. Garner's somewhat advanced age, in relation to firearm violence, which matter demonstrated by examples such as the 2017 Congressional Baseball shooting in Alexandria, Virginia - James Thomas Hodgkinson; also the 2017 Las Vegas Strip shooting, Nevada - Stephen Craig Paddock (see reference list, infra, in section Conclusions).
It is of note that, a former prostitute and heavy narcotics user successfully graduated from USF law school, and subsequently passed the California Bar Examination to become a San Francisco attorney (see the New York Times Bestseller and in my opinion a heart-wrenching and superbly composed autobiography, A Piece of Cake: A Memoir, written under pseudonym, Cupcake Brown. I recall reading about her graduation in the USF student newspaper, The Foghorn, in the early 1990s prior to the publication of her autobiography; I also recall being moved by her life story thereto, in particular the fact that USF School of Law gave her a chance notwithstanding knowledge of her criminal record). I surmise she is still allowed to enter USF campus freely notwithstanding her public admission of extensive criminal activities as an underprivileged young adult (the latter, hypothesis).
Only in response to my attorneys filing of a retaliation-discrimination lawsuit with the San Francisco Superior Court did USF file a counter-lawsuit (cross-complaint) in November 2009, requesting active SFPD participation in preventing me from entering USF campus, notwithstanding the undisputed evidence that I never set foot on USF campus (nor threatened to set foot on USF campus) after being asked to leave one-and-a-half years prior, June 2008, and also after November 2009, subsequently; see direct quote from attorney Michael J. Vartain, defendant's closing arguments, see link post-trial documents, trial transcript, pg. 2831 - 2832.
It is significant that SFPD participation was not an element of the first counter-lawsuit (cross-complaint), filed by USF, August 11, 2009; in sequel to my retaliation/discrimination lawsuit, filed June 17, 2009. The first cross-complaint; which sought only an official injunction confirming USF's right to ban me from campus unless I pass precisely same fitness for duty exam mandated as a condition of employment (which would not at this stage even restore employment); was removed by the court, for insufficient legal rationale, following a successful "motion to strike" filed by attorneys Christopher Katzenbach and Kimberly Hancock on my behalf; see online records of the San Francisco Superior Court, search "Kao, John S." or "The University of San Francisco".
It is further notable that USF holds (often renting campus facilities to outside organizations and covering its own costs therewith) many events: professional (e.g. Law School Admission Test, LSAT, testing center), cultural, community (e.g. regional mathematics competitions for high school students with parent and teacher chaperones), civic (e.g. San Francisco voter polling station), entertainment, sporting (e.g. basketball games with admission fees charged), etc.; to which the general public is invited without background check or school affiliation. The stigma of being prohibited from such public functions founded on others' fears for a disability of depression; itself temporary in nature, going into remission for years at a time during which no treatment is warranted; is painful. However, I draw inspiration from the historical record of Japanese Americans, to which community I belong, and for whom unjust and prejudicial confinement within internment camps, by Executive Order, during World War II, based on others' fears was eventually vindicated through political and legislative action.
USF's second cross-complaint filed November 13, 2009, requested active involvement of SFPD, and included new allegations of actions by myself allegedly occurring after discharge, and which went entirely unsubstantiated by evidence produced at trial 2012 (see link post-trial documents, trial transcript). Also, the second cross-complaint removed the possibility of lifting the ban should I successfully pass the fitness-for-duty exam originally mandated while I was employed (see link post-trial documents, trial transcript).
This second cross-complaint survived the subsequent "motion to strike" filed by my attorneys; however, it was later dismissed with prejudice (legal meaning - that university is prohibited from filing for this injunction requesting SFPD assistance) by USF, itself, after the jury trial concluded; perhaps, because there was insufficient evidence at trial to support the charges in the second cross-complaint to justify the request for SFPD involvement - see information contained in paragraph directly below (emphasis mine). Nonetheless, the defamatory second-cross complaint remains published online for public access indefinitely, and the final court outcome thereto may be unapparent to the untrained reader; see online records of the San Francisco Superior Court, search "Kao, John S." or alternatively "The University of San Francisco".
The second counter lawsuit (second cross-complaint), completely unlike the first cross-complaint, referenced the possibility of work-place violence, school-violence and domestic terrorism, including mention that USF retained consulting psychiatrist, former United States Federal Bureau of Investigations (FBI) "criminal profile instructor" and "violence expert," Dr. James Missett; the frequency and regularity of classes, allegedly, taught by Dr. Missett to FBI agents were not made available to Christopher W. Katzenbach notwithstanding a written request to the Federal Government under the Freedom of Information Act, FOIA; further, deposition testimony and trial testimony did not reflect this information due to the personal privacy rights of Dr. Missett (emphasis mine). Dr. Missett was apparently retained by USF in 2008. His name was known to neither myself nor my attorneys until well into calendar year 2009; see direct quotes from attorneys - plaintiff's closing arguments and defendant's closing arguments. For example of Dr. Missett's other work, see the case of Alexander Youshock tried in California - San Mateo County Superior, Criminal Court (herein, last file, keyword search, "collie"): Youshock Trial Article; Youshock Sentencing Article; Youshock Trial Transcript, April 4, 2011; Youshock Trial Transcript, April 5, 2011. Also see Dr. Missett's work as a fitness for duty examiner in case, Blough v. Menlo College (2008); official trial transcript available, link, News and Case Law. Hereto, for which the jury ruled in favor of Plaintiff, Ms. Marcine Ann Blough (undergraduate degree, University of Pennsylvania; Juris Doctor degree, Cornell University), Dr. Missett's diagnostic assessment concluded that while professor and concurrently undergoing medical treatment (which extended to years prior) in relation to life-threatening cancer, Ms. Blough, was a Vicodin addict; notwithstanding her physician's prescription thereof and Dr. Missett's having in his possession no specific evidence of alternate source as basis for this assessment which prohibited her from obtaining full-time contract as expected prior to her fitness for duty examination - keyword search transcript, "Vicodin" (emphasis mine).
The references to Virginia Tech were striking components of the second cross-complaint filed by USF and subsequently published online. The second cross-complaint remains online for posterity at the San Francisco Superior Court website, accessible at no cost to anyone anywhere in the world with internet access; see online records of the San Francisco Superior Court; also, consider the direct quote from USF's lead attorney Michael J. Vartain, in his closing arguments, referring to the filing of the cross-complaint which publically associates me with terrorism (see link post-trial documents, trial transcript, pg. 2831):
Notwithstanding the fact USF felt compelled to forbear in regards this court injunction, I remain banned for life from ever entering USF campus as direct consequence of failing to comprehensively waive my rights to medical privacy; see legal analysis following. This fact has been published online nationally in employment law journals, as Kao v. USF is State of California legal precedent as of 2014; see, for example, Google search results for "Kao v. USF."
In the years 2009 to present, in sequel to the publications described, I have been subject to consistent negative social impact thereby, including quite credible threats of violence (third-party witness statements available upon special request - see contact information below), from individuals not directly connected to USF, but directly influenced by the publications thereto; having never received threats of this category prior to 2009.
Of particular note, was a veiled threat by an individual near the San Francisco Chinatown neighborhood, during which he attempted to take my photograph. This occurred 2017 shortly after he was apparently released from incarceration. I offered testimony against this person in a criminal court hearing December 4, 2015 (Court Hearing Number 15025539), with judgment on this indictment occurring on or about February 2, 2016; for which specific indictment was eventually dropped by the San Francisco District Attorney's Office, notwithstanding 4 months confinement in jail, as he did not post bail; perhaps because the purported victim's testimony was insufficient. Individual had prior arrest record including: assault and battery, carjacking, extortion and intimidation of witnesses. I provided extensive information/assistance to San Francisco Police (in particular, detective, Sergeant Tam, Case Number 150912814) in locating this subject for arrest in connection with an incident in which a significantly older man (late 50s) was battered, sustaining life threatening injury; as reported in, SF Gate, October 19, 2015; see link, SF Gate Article 2015. As to the veiled threat, I did not report to police due to ambiguity of circumstances and my inability to understand the Cantonese phrase, in relation whereby, the associate I was with conveyed to me the nature of that meaning articulated. Case Number and details of criminal court hearing available upon special request, see contact information below.
The latest incident occurred while socializing with an associate in San Francisco, earlier in the evening discussion of potential business ventures with another party: threat upon life ("You're finished.") in contemporaneous conjunction, criminal assault with battery, to which I offered defense - myself unharmed, other apparently not suffering "injury" as result of physical contact; fled; Japantown; identity of person unknown, suspect caucasian male approximately: 35 - 40 years of age, 6' 2" in height, extremely short dark brown hair greased flat, 180 - 190 pounds; weekend, February 4, 2018 at 1:30 am; SFPD arrived at scene 1:45 am following 911 call; Officer Cotter (badge number 1364) recording details for police report; SFPD team of four officers unable to apprehend suspect during canvas of neighborhood, Case Number 180350211. Multiple witnesses present and in immediate vicinity (two employees of establishment within 15 feet of myself and perpetrator throughout encounter; one other employee in the same room; owner of establishment entering room from storage area towards the end of the incident; all available for testimony under oath; and under penalty of perjury; in criminal and/or civil court); furthermore, encounter occurred within range of security cameras, concomittant footage taken. Should apprehension occur, or suspect identified, I have the express intent to press criminal charges and pursue civil litigation; causes of action, tortious assault, battery, false imprisonment, trespass to chattels and/or conversion; with all available resources; financial, legal, investigatory; to recover damages compensatory (emotional pain/suffering and privation of personal property - attire) and those punitive damages which attach, naturally, herewith.
Mr. Katzenbach and Ms. Hancock filed our lawsuit in 2009 with the San Francisco Superior Court alleging whistleblower retaliation and wrongful discharge. Conor D. Mack replaced Ms. Hancock in 2011 after she moved on from the firm, Katzenbach & Khitikian. USF was represented by Michael Vartain and Linda Adler, Vartain Law Group. The trial was conducted January 2012.
In court, I testified that some of the reports from 2008 may have been a result of medication I took for depression in 2008. My psychiatrist 2003-2012, Dr. Lenore Terr diagnosed my condition as episodic major depression, first appearing in 2002, that goes into remission for years at a time. During remission periods, no antidepressant medication is warranted (emphasis mine).
My condition was further diagnosed as a direct consequence of childhood trauma (post-traumatic stress syndrome - Dr. Terr's deposition, testimony made under penalty of perjury, records archived through Katzenbach Law Offices, reference supra - transcript, also videotape, available at special request; see contact information infra. The medication I took in 2008 caused tremors in my arms and legs which affected my coordination; see link Court Summary below. I further testified that: I am not currently taking any medication for depression; also, Dr. Terr, testified I was fit for duty in 2008 and throughout to trial 2012; see link post-trial documents, trial transcript. My position is that I may have raised my voice in debate while others were also speaking loudly or accidentally stumbled because of poor coordination, but I had no intention to harass anyone, on principal, even more so because I had my own harassment/discrimination complaint against other faculty pending with Human Resources at the time. Had anyone brought these "behaviors" to my attention, I would have done my utmost to prevent misinterpretations.
In relation to my objective job functions that semester, I entered into evidence my official USF teaching evaluations for that spring in which I scored above the department, university and national average in all six categories (one of the six in the national 99th percentile, and of the remaining five, two were in the national 95th percentile); further noting that grades awarded for these classes and examination content were thoroughly vetted by the university and the mathematics department. Notwithstanding, the jury found for the university.
In my opinion USF was greatly aided at trial by unrelenting references to the 2007 Virginia Tech Massacre (modern criminological classification, "spree killing") and the 2009 Fort Hood Massacre (modern criminological classification, "domestic terrorism") among others; the tenuous relationship in Kao v. USF being, for the former a school, and the latter a work-place. (Emphases mine.)
Christopher W. Katzenbach filed an appeal to the California Appellate Court in 2012 with hearings conducted 2014. The presiding judges decided the university acted within the scope of current California Fair Employment and Housing Act regulations which encompasses Americans with Disabilities Act (ADA) restrictions on fitness for duty examinations. The judges concluded that the interactive process under FEHA did not apply because my attorneys failed to declare a workplace related disability in 2008 - ask for disability accommodations; see court summary.
Evidence at trial showed I informed the Dean of the Colleges of Arts and Sciences, Jennifer Turpin (Dean of Arts and Sciences 2003-2010, Provost and Academic Vice President as of 2010 continuing until leaving this administrative position early 2015; shortly after publication of this website in January 2015), as late as academic year 2006/07 that I was taking medication for depression (this was noted in her handwritten notes which were in turn submitted to the Offices of General Counsel and Human Resources). Similar facts were conveyed formally (HR Complaint filed August 2007, and subsequent meeting with HR Officers early spring 2008), directly to USF Human Resources and hence to the Office of General Counsel with expressed representation from attorneys, Mr. Katzenbach and Ms. Hancock; see link post-trial documents, trial transcript. From June 2008 to my termination February 2009, my attorneys saw no cause to reiterate this, as I was not requesting ADA disability accommodation, and the description of conduct was too vague to warrant it; see link, court summary, infra, for "description of behaviors" provided June 2008. It is of note that a declaration of disability itself runs the risk of contributing to the "business necessity standard" permitting a FFDE. This creates a legal labyrinth for employees and their attorneys; since, then, a first disclosure or examination may give as in lay expression, "probable cause," for further demands by the employer for disclosures and examinations; as example, see trial transcript from court proceedings 2008, Blough v. Menlo College, link posted - news and case law, infra.
The implications are clearer in the case an employee has no disability to claim. Such an individual perceived as psychiatrically unfit for duty would simply have to submit to a comprehensive FFDE on the basis of practically no substantive information about accusations against her/him, and without knowledge of the information transmitted to the psychiatrist. The FFDE could require the employee to disclose extensive personal data ordinarily considered protected in the context of employment and provide all manner of records (medical, financial, employment, legal, etc.; as the perception of evasiveness or malingering can impact the results of the test and the permitted scope of inquiry is vast unless limited by the interactive process) to substantiate the veracity of answers to the psychiatrist. Examples demonstrate that passing or failing such an exam can turn on the slimmest of margins; see as one, link infra, news and case law, Giusto v. City of San Mateo Personnel Board (2008).
The interactive process requires a "good-faith exchange of information" leading to a tailored, as opposed to comprehensive, fitness for duty examination with a limited release of medical information. If a determination of job-related disability is made, the interactive process again requires a good faith exchange of information to find reasonable accommodations under FEHA and ADA. As part of this process medical and psychological examinations are permitted, but must be tailored and limited in scope. This mandates limits on the kinds of information the examiner can obtain from the employee and medical records thereto.
The appellate court decision means that in California, perception of disability is not sufficient to require employers utilize the interactive process with persons similarly situated - cases where job accommodations are not requested as they are not warranted (ordinarily, declaration of a disability is accompanied by a request for accommodations, and can contribute to the "business necessity standard" permitting an FFDE in the first place). Astonishingly, this absence of employment protection applies both to the requirement for a "good-faith exchange of information" and "tailored, limited, medical examination". Not only may an employer, similarly situated as USF in this case, withhold details of incidents prompting a psychiatric exam; the employer may withhold the specific diagnostic details of the results of the examination itself; also, the "information about the employee" transmitted to the psychiatrist by the employer and upon which these results are based - this "information" may extend well beyond the scope of any vague description of "behaviors" or other perceived "poor performance" provided to the employee as was the case in Kao v. USF (see section, Forensic Evidence, infra; link therein, and inventory of documents provided to Dr. Norman Reynolds by USF, documents labeled USF 2794-2795; also, see post-trial documents, trial transcript, testimony of Ms. Peugh-Wade).
The exam may require a comprehensive release of all medical records including psychotherapy notes and may include an array of tests, such as for possible substance abuse. Further, challenging a result of, unfit for duty and no accommodation possible, may be virtually intractable as the interactive process would not apply (to qualify as disabled under ADA/FEHA and have access to the interactive process, an individual must be able to perform job functions with accommodation) and the employer is under no obligation to provide the evidentiary and diagnostic basis for the psychiatrist's conclusion. Employees in such a position are particularly vulnerable to false positives, which, in a variety of physical (narcotics use, etc.) and psychological (personality, etc.) testing, cannot be avoided, even applying the most advanced available scientific procedures (emphasis mine). There is no professionally recognized standard for secondary testing to "validate" conclusions from an initial FFDE (as counter-example; to the contrapositive; consider, Giusto v. City of San Mateo Personnel Board (2008), for sequence of court decisions, link news and case law infra).
Originally unpublished and not precedent, in response to a petition by USF 2014 (attorney on appeal Kathryn J. Burke, Vartain Law Group), the decision was published making this type of comprehensive FFDE with no interactive process (unless the employee declares a FEHA/ADA workplace disability, requests job accommodations that might limit opportunities for advancement) standard law in the state of California once an employer establishes "job-relatedness and business necessity" for a FFDE. The job-relatedness/business necessity standard under ADA as set by federal courts favors employer business concerns over employee rights to due process and anti-discrimination protections. The standard may be satisfied when employee behavior is perceived to be objectionable irrespective of concrete job performance; see for example, the federal appellate court decision Owusu-Ansah v. The Coca-Cola Company (2013), link news and case law infra (in this case, unlike Kao v. USF (2014), the company conducted a tailored, limited, FFDE).
Mr. Katzenbach filed a petition to the California Supreme Court in 2014, which declined review.
The final results of this state civil litigation generated substantial interest among employment lawyers representing United States corporations. Aside from becoming law in California, the precedent may be influential in federal courts and in other states. A number of articles have been published about the case in employment law periodicals based on the court summary of trial (see for example, Dean and Provost, Volume 16, Issue 6, February 2015: Journal Article).
We believe the Appellate precedent set by the court in Kao v. The University of San Francisco (2014), will have far-reaching negative impact on employees in the state of California until such decision is reversed (either through direct legislation or future judicial rulings, federal or state). The court's opinion hereto permits paid agents of employers (fitness for duty examiners, either psychologists or psychiatrists) complete access to medical records, among other information, of people perceived to be disabled though not genuinely disabled in the sense of ADA and California FEHA, including psychotherapy notes. Notes of this kind are routinely taken as part of proper psychological treatment. They may contain information of a sensitive nature not only about the patient but also family, spouses and friends. In the event a FFDE diagnosis is challenged in court this information may become part of the permanent public record and accessible to anyone - affecting employment opportunities and creating social stigma. This ruling creates a powerful disincentive for individuals experiencing psychological difficulties, personal problems, substance abuse issues, etc., to seek proper medical treatment. Currently there exists no mandatory regulation of Fitness For Duty Examinations in the United States beyond a limited body of case law. There is no required certification process for Fitness for Duty Examiners (beyond being a licensed psychologist or psychiatrist) or general government oversight. Case law indicates that employees subject to a misdiagnosis, are prohibited from pursuing a malpractice lawsuit against the Fitness for Duty Examiner since a legal "doctor-patient" relationship is not established by the examination alone.
Under the legal principles established by the California Appellate Court in Kao v. The University of San Francisco (2014), unless an employee declares a workplace disability, request job accommodations thereto, said employee is not entitled to the interactive process under ADA/FEHA, which process requires a "good-faith exchange of information" between employer and employee. In particular, the California Court in Kao v. USF, vetted as legal under FEHA and CMIA, a corporate human resources process in which details of complaints about an employee were withheld so as to allow no opportunity to produce evidence and contrary witness testimony as defense. Furthermore, the employee must waive privacy rights to medical, financial, employment, and legal history. The opportunity to access the diagnostic conclusions of the examiner and its basis must be waived which limits any challenge to the results. The exam includes physical tests such as drug testing with no protection against false positives, since the specific results are in accessible. For an example that has the appearance of similarity, currently in litigation - federal, filed 2015 - see Ellis v. San Francisco State University, Case No. 3:15-cv-02273-TEH: Litigation.
This "privilege of employer" to administer a FFDE apparently preempts any union (for my instance the USF Faculty Association - membership of American Federation of Teachers; and further of, American Federation of Labor and Congress of Industrial Organizations, AFL-CIO) contractual obligation to proceed against an employee pursuant to just cause provisions (requiring timely notice of specific incidents): if the employer can assert a medical condition may (through reliance on a medical "expert" receiving substantial fees for an opinion) be a factor in an employee's purported underperformance. The Appellate anti-union precedent set here (which in my opinion represents bad law) greatly undermines long-fought-for collective bargaining protection, on which employees invest years of financial commitment (union dues) and good faith participation (union service) with the expectation of reliance thereupon. This, further, notwithstanding decades of personal dedication in the form of education/training and excellent job performance; all of which can evaporate with no warning in a few months time under this decision. See for example, direct quote from USF lead attorney, Michael J. Vartain in his closing arguments (link post-trial documents, trial transcript, pg. 2832):
While not strictly relevant to Kao v. USF, trial 2012; appellate decision 2014; as contractual employment of faculty fell under a different legal category than SF Bay Area parochial K-12 education, controversy around the appointment of Archbishop, San Francisco, Salvatore Cordileone, concurrent with this case (officially appointed July 27, 2012) illustrates the impact of privacy rights at stake hereto, notwithstanding the great and profound diversity of opinion within the Catholic faith; see articles: San Francisco Chronicle Article, National Catholic Reporter Article 1, National Catholic Reporter Article 2. One wonders what proportion of fitness for duty psychological/psychiatric examiners share the same position promulgated by Archbishop Salvatore Cordileone, in relation to: masturbation, fornication, the viewing of pornography and homosexual relations being "gravely evil." As practical example of this position, see article from Newsweek Online Edition, February 10, 2018: Newsweek Article. Or for that matter, how many concur with Roy Moore; former Alabama Supreme Court Chief Justice, 2017 Republican party candidate for United States Senate; as reported in the article, "Roy Moore: Gay marriage ruling 'even worse' than 1857 pro-slavery decision;" referring to the US Supreme Court finding in Dred Scott v. Sandford, 60 U.S. 393 (1857) - that African American people were, in both theory and practice; personal property; as published in the periodical, The Hill, October 24, 2017; see Moore Article. Or, the opinions of FFD Examiners of those U.S. citizens, journalists and private persons, in exercising their Constitutional First Amendment rights to freedom of speech, criticize public figures, in relation to the protection of others, children in particular; The New York Times, December 19, 2017 - Article A; NPR (Online Edition), January 19, 2018 - Article B; and CNN (Online Edition), December 20, 2017 - Article C; The Washington Post (Online Edition), August 14, 2018 - Article D. Or, even attorneys, such as Michael J. Vartain, of the Vartain Law Group, litigation counsel for the University of San Francisco in Kao v. USF (2014); also as of 2016 representing, ironically, the administration of the California College of the Arts (CCA); formerly named CCAC, at which institution I taught mathematics briefly in an exchange program sponsored jointly by CCA and USF; who was publicly recorded directing profanity at faculty union officials, during a collective bargaining session, see archived notice to union members, dated June 2016, published online, and retrieved electronically from archive January 2018 - CCA Collective Bargaining Update (emphases mine). Actually.
Another example, in this genre is the case of law student, Jason Tecza, who filed suit against the USF School of Law for violation of privacy in regards disability accommodations - removed from state to federal court. In Tecza v. USF (2013), US Court of Appeal for the Ninth Circuit found in favor of plaintiff by way of reversing in part a US District Court ruling of dismissal, see articles: in SF Gate Blog, Tecza Article 1; in Law360 (a Lexis publication) Tecza Article 2; and Appellate Court Ruling, Tecza v. USF (2013). This is illustrative of mechanisms through which proprietary information can be exposed through carelessness of parties to the extent that an individual feels the need to seek redress for damages through litigation, having wherefore transferred to another academic program.
I sympathize to the extent that information I had assumed would be private until 2009 became public, necessarily, by pursuit of litigation - Kao v. USF; trial 2012, appellate decision 2014. However, judicial analysis and public record of this dispute affords me the opportunity to write with authenticity and authority concomitant with my modest education and experience; see section, Writing Projects, infra; which to me has been a most reasonable exchange.
Even more so, with the informed consent of executive officers, complainants' reports against me changed dramatically over months during the semester of 2008 (as one example, see the Appellate Court's finding of fact in relation to Dean Jennifer Turpin email - alteration of text two months after composition of original with report of incident transpiring allegedly on April 22; altered by way of a description recorded electronically on April 23 from "said loudly" to "shouted" (to me, synonymous with "yelled") and then forwarded to USF Human Resources in "revised" form on June 26 by Dean Turpin - this admitted under oath at trial; and the subsequent disposal shortly before trial proceedings in January 2012 of relevant computer hardware - again admitted under oath at trial (see link, California Appellate - Court Summary below; also Online Records of the California Superior Court; also link forensic evidence, below, documents labeled USF 2776-2777, USF 0140 and USF 2774).
For more detail, see Dean Turpin's testimony in court, link post-trial documents, trial transcript, in which she indicated that Dr. Kao did not follow her into the parking lot adjacent the Harney Science Center as suggested in both original and altered written descriptions but was rather over 50 feet away as she turned around and saw Dr. Kao from inside her vehicle.
As other examples, the meetings frightening Dean Brown, and another witness separately (in court testimony - "shouting" and "screaming" respectively) both taking place January 3, were described in Human Resources notes as having "voice raised" (see link, forensic evidence, below, documents labeled USF 0079-0080, and USF 2747-2748, with notes taken January 8, 22 and 30).
As to the search committee meeting February 6, two witnesses, available 2012, who did not testify to "yelling" or "screaming" thereto, further testified in court that they were never interviewed by Human Resources in 2008 or later (see post-trial documents, trial transcript, testimonies of Ms. Liu and Dr. Wells).
It is significant that both Dean Turpin, Sociology Department, and Associate Dean Brandon Brown, Physics Department, were simultaneously complainants against Dr. Kao and investigators of Dr. Kao and executive contact persons with psychological profiler in connection to Dr. Kao from spring 2007 to his suspension of faculty duties spring 2008. Detailed and copious HR "information" was withheld from me and my attorneys, but transmitted for evaluation to the examining psychiatrist. Conclusions and medical diagnosis by the Fitness for Duty Examiner were to be withheld from me, my representing attorneys, and treating physicians as a result of a mandatory consent form (see link, forensic evidence, below, document labeled USF 0249) and examiner's audit of extensive human resources file provided in advance by USF, which file to be withheld from Dr. Kao and attorneys (see link, forensic evidence, USF 2794-2795); for documents sent to examiner, also see, post-trial documents, trial transcript).
The documents referred to in this section submitted to the state of California for judicial review: Forensic Evidence.
Above all, I note that common sense dictates that prosaic behaviors can be made to sound frightening if taken out of context: a raised voice while others are speaking loudly, a joke, a genuine question of concern, an innocent statement of fact (I did win an Ivy League Judo Championship lower division and mentioned this to a department member many years before 2008, never claiming to be an expert - consistent with Appellate Court Summary; and I did once train with a "wooden dummy" a standard piece of equipment in some styles of martial arts.), a gesture of discomfort (closing hands to hide tremors), clumsiness (Tristan Needham described throwing papers across a table but for this, another witness saw as "passing out" papers down a long boardroom table and others didn't notice at all; the witness testifying to "charging"/"veering" also testified in court he did not know whether I saw him as he exited the men's room immediately prior; see link, post-trial documents, trial transcript, in particular, testimony of Stephen Yeung.), light sarcasm in response to condescension, etc.
The recorded instances of people in the public eye (business, politics, law, etc.), yelling, screaming, shouting, or some equivalent, under stressful circumstances with no adverse impact are numerous; for example, "behaviors" of Steve Kerr coach of the San Francisco Bay Area and NBA Championship basketball team, Golden State Warriors, include regularly and publicly breaking, also throwing, hard, solid clipboards out of frustration, see publication with video link available, SF Gate - Steve Kerr Article; or alternatively take note of the second section in the obituary of Steven Paul "Steve" Jobs, American businessman, inventor, industrial designer; an iconic figure in the field of applied science, who had a well-documented reputation for "screaming" in professional context, San Jose Mercury News - Steve Jobs Obituary; further, the article reporting on a public debate between aides of Hillary Clinton and then President Elect Donald Trump at Harvard University's Kennedy School of Government, "Shouting Match Erupts between Clinton and Trump Aides," The Washington Post - Harvard Kennedy School Public Debate Article; further two articles reporting instances of yelling and shouting by members of the US House of Representatives during questioning of Federal Bureau of Investigation Official Peter Strzok, in connection with the 2016 presidential election, the "Strzok Congressional Hearing," taking place July 12, 2018, "The Strzok hearing damaged our democracy," The Washington Post - Strzok Article 1, and "Insults, fighting and shouting: Strzok hearing boils over," CNN Online - Strzok Article 2.
An example included; somewhat satirically, but somewhat not; is, "Donald Trump, the Angry President, Screams at His TV and Vows He'll Never Stop Tweeting," published by Newsweek - President Trump Article.
In final case (which "behavior" I absolutely do not condone), consider the May 2017 article about Governor, State of Texas, Greg Abbott, published by CBS News (online) as to remarks made publicly after personal firearm practice at a gun range, "Texas governor jokes about shooting reporters;" wherein reference to retired Marine Corps General John Kerry, now Secretary, United States Department of Homeland Security, and President Trump; also Montana Congressman Elect Greg Gianforte who physically assaulted and battered a reporter shortly prior to being elected to the U.S. House of Representatives, thereafter pleaded guilty to misdemeanor charges, served no jail time, and will apparently not undergo a psychiatric FFDE as further (beyond monetary payment, probation, forty hours community service and twenty hours of anger management training) punishment or prerequisite for his impending employment within the highest of echelons of US Government, or for that matter, owning a firearm - Greg Abbott Article with Greg Gianforte Attachment as Reference (emphasis mine).
People bump into me practically every time I shop during rush hour in metropolitan San Francisco, particularly in crowded Union Square. The decision in Kao v. USF (2014), has the potential to give a handful of key individuals in a corporation the power to take away decades of employee investment in building an exemplary career, through exaggeration, prejudice, or retaliation; vis-a-vis testimony about events occurring years before and with "incidents" accruing over a period numbering even further to as many as 12 years prior to the last.
We anticipate that as direct consequence of tragedies such as: the 1989 Exxon Valdez oil spill - Joseph Hazelwood (alcohol abuse, highly cited by advocates of greater implementation of FFDEs); the 1999 Columbine High School massacre - Eric Harris and Dylan Klebold (internet posts of violent threats, criminal history, court ordered juvenile diversion program leading to psychiatric treatment for depression); the 2102 Aurora, Colorado, shooting - James Eagan Holmes (schizoaffective disorder with psychosis); the 2012 Sandy Hook Elementary School - Adam Lanza (autism, Aspberger's syndrome); the 2015 Germanwings Flight 9525 mass killing - Andreas Lubitz (severe depression with suicidal tendencies); the 2015 Umpqua Community College shooting - Christopher Harper-Mercer (suicide attempt during U.S. Army service); the 2017 San Francisco United Postal Service, UPS, shooting (DUI conviction) - Jimmy Lam; the 2017 New York, Bronx Lebanon Hospital shooting (criminal record: misdemeanor false imprisonment) - Henry Bello, MD; the 2017 Las Vegas Strip shooting (family history, father with extensive criminal record - media speculation of genetic predisposition) - Stephen Paddock; also, incidents of politically motivated domestic terrorism: the 2013 Boston Marathon bombing - Dzhokhar and Tamerlan Tsarnaev; the 2015 San Bernardino attack - Syed Rizwan Farook and Tashfeen Malik; the 2016 Orlando Nightclub attack - Omar Mir Seddique Mateen, whose former wife Noor Salman was arrested Jan. 16, 2017, in California, and indicted on charges of aiding and abetting in the attack; the 2016 Dallas shooting of police officers - Micah Xavier Johnson; the 2016 Houston shooting - Nathan DeSai (carrying Nazi insignia at the time of incident); and the 2017 Congressional Baseball Shooting in Alexandria, Virginia - James Thomas Hodgkinson; psychiatric/psychological fitness for duty examinations will become ubiquitous in American employment and education.
Our lobby's foundation: fitness for duty examinations, generally, should be regulated by the interactive process as defined by ADA/FEHA case law on the basis of perceived disability, regardless of whether or not an employee satisfies the current criterion for a "declared workplace disability." It is our firm conviction that failure to adhere to this basic privacy standard endangers the safety of all U.S. citizens by discouraging individuals from seeking and complying with appropriate medical treatment (because records thereto might jeopardize their employment); and has the potential to ruin the lives of many others through prejudice and the misapplication of psychiatry without reasonable safeguards against false positive results, in the vain attempt to scientifically predict future human behavior (emphasis mine).
It is notable in this regard, that one of the first outspoken and renowned (having for example, regular televised appearances during which he discussed his broad views on psychiatry) advocates of psychological (fitness for duty) testing in the U.S. (in particular for police officers and statesmen), psychiatrist Douglas M. Kelly, MD (UC Berkeley); whose reputation was established in part by service as Major in the U.S. Occupation Army post World War II, during which time he interviewed German prisoners being tried for war-crimes at Nuremburg; while later a Professor of Criminology at the University of California, Berkeley, committed suicide in the general presence of his father, wife, and three young children at his home in Kensington (suburb several miles north of Berkeley), CA; New Year's Day 1954, at the age of forty-five, by ingesting poison, saying, "I don't have to take this anymore! I'm going to take this potassium cyanide and I'll die in thirty seconds. I'm going to take this, and nobody will care!" (emphasis mine). For details, see monograph The Nazi and the Psychiatrist: Hermann Goring, Dr. Douglas M. Kelley, and a Fatal Meeting of Minds at the End of WWII; by Jack El-Hai, 2013, published by, PublicAffairs a Member of the Perseus Books Group, in particular Chapters 8-9; also the article, "The Nazi and the Psychiatrist," by Jack El-Hai, Scientific American Mind, Nature Publishing Group - also publisher of Scientific American - January/February 2011 issue, pg. 46-53.
Nevertheless, we believe the U.S. judicial system is in transition currently with judges conflicted, see United States Supreme Court Decision on Same-Sex Marriage; Obergefell v. Hodges (2015); also prior state and federal court rulings in contradiction thereby. We are hopeful that the state of California either through the judicial or legislative branches will come to its senses in the matter of psychiatric/psychological fitness for duty examinations. Eventually.
JSK Independent Legal Services is a legal research firm. Our not-for-profit activities include political action - a working petition to the California State Assembly (jurisdiction, Committee on Labor and Employment) for hearings that lead to legislative change and expand employee protections.
Consultations post-trial (current issues pending) appeal, petition for review, political/legislative action:
Attorneys post-trial, in relation political action and professional activities of JSK Independent Legal Services:
Messrs. Honowitz and Palladino, have represented clients who subsequently successfully pursued political action in the state of California, including three legislative bills - passed by the California State Assembly and Senate. Mr. Palladino is known for his investigative work on behalf of the Bill Clinton presidential election campaign in 1992, and the tobacco industry whistleblower Jeffrey Wigand. Respecting the latter, which resulted in a more than $200 billion dollar settlement in the first successful litigation against Big Tabacco, Jack Palladino appeared in the film, The Insider (1999), starring Russell Crowe, directed by Michael Mann; in which Mr. Palladino played himself.
Political action progress (website statistics, updated monthly, multiple pages), standard metric - "visits/sites" in yellow/orange ("hits" in green may reflect a single patron viewing multiple times): Website Statistics.
Christopher W. Katzenbach's Petition for Review of Appellate Decision (California Supreme Court) 2014: Petition for Review.
California Appellate Court Summary (in response to USF's motion 2014, published as precedent). The court had the latitude to interpret evidence in the light most favorable to the prevailing party, USF, correspondingly, witness testimony in favor of the plaintiff was for the most part excluded: Court Summary.
Complaint (lawsuit) filed by Christopher W. Katzenbach, Kao v. The University of San Francisco, Superior Court of San Francisco) 2009: Court Complaint.
For further details of the case, see post-trial documents (includes complete transcript of trial proceedings, involved specialists: Dr. Lenore C. Terr psychiatrist, Dr. Frederick N. Parris psychiatrist, Dr. Paul R. Good psychologist, Dr. James R. Missett psychiatrist, Dr. Norman T. Reynolds psychiatrist, Mr. James S. Cawood): Post-Trial Documents.
For information about recent FFDE cases both state and federal, see references: News and Case Law.
As an aside, the following is not relevant from the perspective of US federal or California state law. My parents came to the United States and were left virtually penniless as of the conclusion of WWII. Thereby, my mother was a waitress in a Japanese restaurant, while my father petitioned to serve as government scientist at UCLA and eventually earn citizenship. I was born into a modest middle-class family (suburban home, inexpensive car, no annual vacation, and for recreation - dinner once a week at a Chinese restaurant).
My father passed on at the age of 63 of heart attack, and my mother raised myself and my sister alone, with no assistance from relations who were all abroad, supporting us through her profession as Department Head of Cataloging, University of Utah Marriott Library, from when I was age 13 and my sister age 8.
I began working, myself, at the age of 15 (legally, also paying US federal and Utah state taxes, upon receipt of a special exemption to child labor laws prohibiting work prior to the age of 16, due to my status as a full-time university student). I filed cards at the University of Utah Marriott Library and served as junior custodian at Rowland Hall-St. Mark's High School, which my sister attended.
I obtained employment teaching, Physics Teaching Assistant, on behalf of University of Utah Physics Department, first group tutoring and then lecturing to classes of 30 when I was of ages 16 and 17. This teaching involved the prerequisite primary physics course, with minimum B- grade necessary for all engineering majors to continue on for advanced study at the University of Utah School of Engineering. The summer after my graduation while still the age of 17, I was employed as a computer programmer and statistical analyst for the Department of Physics, University of Utah.
The latter position was obtained in relation to my acceptance to the Princeton University Doctoral Program in Mathematics, matriculation the following fall semester.
In my experience, statistics is virtually useless in convincing a jury or judge of anything, however, it does have practical application in the stock market.
I have been playing pocket billiards (pool) as hobby since 2005 in billiard establishments throughout the San Francisco Bay Area (for further information, see www.ITZBilliards.com).
My ultimate goal is to publish as a nonfiction and journalistic writer; following in the tradition of the author ("muckraker") Upton Sinclair.
Several projects are in development including an instructional monograph on pocket billiards using mathematics as paradigm for conceptualizing modern technique; this with first author, Mr. Ronnie Rodas (see link preceding).
Another work drafted is an account of my experiences as a Juris Doctor Candidate in the genre of Scott Turrow's, One L, published in 1977, prior to his graduation from Harvard Law school, honors Cum Laude, in 1978. In particular, I would like to document the impact of formal legal training on political action initiatives in relation Kao v. USF (2014). As an example of educational opportunities to which privileged, I include here my notes from the moving talk included hereby, McGeorge School of Law Distinguished Speaker Series - Justice Richard Fybel, California Appellate Court, Fourth District, November 7, 2017; When Mass Murder, Theft, and Violation of Civil Liberties were "Legal": The Nazi Legal System, 1933-1945; Justice Fybel Seminar. Herein, reference to the mass murder of Jewish, Romani, homosexual, physically disabled, cognitively impaired, and mentally ill; people; by the Nazi regime; with the German judiciary complicit. As quoted from the official website of the United States Holocaust Memorial Museum, November 11, 2017; www.USHMM.org, with section headings all capital: "At the beginning of World War II, individuals who were mentally retarded, physically handicapped, or mentally ill were targeted for murder in what the Nazis called the 'T-4,' or 'euthanasia,' program. The 'euthanasia' program required the cooperation of many German doctors, who reviewed the medical files of patients in institution to determine which handicapped or mentally ill individuals should be killed. The doctors also supervised the actual killings. Doomed patients were transferred to six institutions in Germany and Austria, where they were killed in specially constructed gas chambers. Handicapped infants and small children were also killed by injection with a deadly dose of drugs or by starvation. The bodies of the victims were burned in large ovens called crematoria. Despite public protests in 1941, the Nazi leadership continued this program in secret throughout the war. About 200,000 handicapped people were murdered between 1940 and 1945. ... OCTOBER1939 ... Adolf Hitler authorizes the beginning of the 'euthanasia' program - the systematic killing of those Germans whom the Nazis deem 'unworthy of life.' The order is backdated to the beginning of the war (September 1, 1939). At first, doctors and staff in hospitals are encouraged to neglect patients. Thus, patients die of starvation and diseases. Later, groups of 'consultants' visit hospitals and decide who will die. Those patients are sent to various 'euthanasia' killing centers in Greater Germany and killed by lethal injection or in gas chambers. ... AUGUST 24, 1941 ... Mounting public criticism of the 'euthanasia' killings prompts Adolf Hitler to order the end of the program. Gas chambers in the various 'euthanasia' killing centers are dismantled. By this time, about 70,000 German and Austrian physically or mentally impaired patients have been killed. Although the 'euthanasia' program is officially ended, the killing of physically or mentally impaired people continues in secret in individual cases." (Emphases mine.)
It is of relevance to me that, Mr. Turrow went to publish several bestselling books, nonfiction and fiction; further, pursued legal practice including criminal law - defense. In a highly publicized 1995 case, Mr. Turrow, working pro bono, won the release of Alejandro Hernandez, who spent 11 years on death row for a murder for which he was eventually exonerated, in part, by DNA evidence; and which led to indictments of several former prosecutors and police officers on charges including conspiracy to obstruct justice; see article published in The Atlantic (2003), Turrow Article.
An artistic inspiration is the career of the sibling of one of my attorneys, Christopher Katzenbach - his brother, John Katzenbach, served as criminal court reporter for the Miami Herald and Miami News; and subsequently became an Edgar Award nominated fiction author whose novel, In the Heat of the Summer, was made into the 1985 film, The Mean Season, starring actors Kurt Russell and Mariel Hemmingway; whose novel Just Cause, was made into the 1995 film of the same name, starring Sean Connery and Laurence Fishburne along with co-star Ed Harris; and further whose novel, Hart's War, was made into the 2002 film of the same name, starring Bruce Willis and Colin Farrell along with co-star Terrence Howard. The latter based in part on their father, Nicholas Katzenbach's, experience in a German Prisoner of War Camp after the B-25 Mitchell Bomber, upon which he was navigator as part of the US Army Air Corps, was shot down over the Mediterranean Sea, off the coast of North Africa, during World War II.
To such end, it is my literary conceit that publication of this website from January 2015 - present, and responses received from nationally prominent attorneys such as Jon B. Eisenberg, see link Curriculum Vitae; also steadily increasing public interest, see link Website Statistics; represents contribution, as an author, for myself, and as genuine reward, bona fide equity.
Since 2009, my legal research team focuses on employment, property and estate law: conducting legal research, legal writing, and trial preparation. Through this work, I aspire to assist others in preserving rights to privacy under constitutional law. Our not-for-profit activities include a working petition to the California State Assembly (jurisdiction, Committee on Labor and Employment) for hearings that lead to legislative change and expand employee protections. If you are involved in a FFDE case or have information of one on-going, you are invited to correspond, John S. Kao, at the address provided (see contact information infra).
Separately, in passing, JSK Independent Legal Services notes that Kao v. USF cost John S. Kao in the neighborhood of $800,000.00, unadjusted for inflation (including court costs), as attorneys retained 2006 - 2014 do not work on a contingency basis, not to mention personal pro bono work we estimate in the neighborhood of 50% (by hour, and including training) of all legal labor thereto, entailing but not limited to legal investigation: legal research, legal writing, editing, trial preparation, filing, photocopying, and driving around San Francisco ferrying documents. It was worth every penny; for pride, reputation; to win respect for myself, my family, my Asian American heritage; and, as would be my greatest honor - to apprise and educate in the service others. Sincerely.
Curriculum Vitae (university teaching/research/service evaluations and recommendations attached produced as evidence 2012 in court, never challenged by USF (see trial transcript); further submitted post-trial with the State of California for appellate review; now permanently on file as legal record and available to the public serving purpose of authentication): Curriculum Vitae.
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