Harris v. City of Fresno, 1:07-CV-01210-OWW-SMS.
| Decision Date | 26 May 2009 |
| Docket Number | No. 1:07-CV-01210-OWW-SMS.,1:07-CV-01210-OWW-SMS. |
| Citation | 625 F.Supp.2d 983 |
| Parties | Robert HARRIS, Plaintiff, v. CITY OF FRESNO, Defendant. |
| Court | U.S. District Court — Eastern District of California |
Sean Gavin, The Law Offices of Bowman and Foos, Sacramento, CA, for Plaintiff.
Joseph D. Rubin, Betts & Wright, Fresno, CA, for Defendant.
Before the court is Defendant City of Fresno's motion for summary judgment or, in the alternative, partial summary judgment/summary adjudication pursuant to Rule 56 of the Federal Rules of Civil Procedure. The following background facts are taken from the parties' submissions in connection with the motion and other documents on file in this case.1
Plaintiff Robert Harris is an African-American male who is employed by the City of Fresno ("City") in its Water Division. He was initially hired by the City as an Engineering Technician I. On approximately April 1, 1992, he was promoted to his current position as Engineering Technician II. Plaintiff is still employed by the City in its Water Division and he has not sought employment outside of the Water Division or the City since 2002. During his entire tenure with the City, Plaintiff has received nothing but positive performance reviews. (Doc. 39-3 at 2; Doc. 38-6 at 6.)
In his lawsuit against the City, Plaintiff contends that, during his employment with the City, he has been discriminated against and harassed due to his race. Events and statements that compromise Plaintiff's claims of discrimination and harassment are set forth below.
In November 2002, the Personnel Services Department ("HR Department") received a request by Plaintiff to reclassify his job position from Engineering Technician II to Senior Engineering Technician. (Doc. 38-6 at 7.) In response to the request, the HR Department followed its usual procedures by having an analyst: (1) obtain a supervisor's statement of job duties; (2) review documents; and (3) conduct comparative audits. (Id.) It is undisputed that the analyst recommended that Plaintiff's job classification remain the same, as Plaintiff's job duties were consistent with those of an Engineering Technician II, and the recommendation was approved. (Id.)
In June 2003, the HR department issued a written decision, signed by Juanita Chavez, in which it determined that Plaintiff was properly classified as an Engineering Technician II based upon his current job duties. (Id.) After allowing Plaintiff an opportunity to provide additional information supporting his reclassification request, the HR Department's prior decision was reaffirmed on or about December 8, 2003, as reflected in a writing signed by Chavez and reaffirmed a third time on May 4, 2004, as reflected in a writing signed by Nancy Kast of HR. (Id. at 8.) In doing so, the HR Department concluded that Plaintiff's duties corresponded with the job classification of Engineering Technician II, and did not reach the level of responsibility that is reflective of a Senior Engineering Technician. (Id. at 8.)
As to the decision-makers involved in the reclassification denial, Chavez and Kast, Plaintiff testified at his deposition that he was unaware of any personalized racial animus on their part. (Id.) Nevertheless, Plaintiff believes (but the City does not concede) that other non-African-American workers with the "same experience and qualifications" as Plaintiff have been reclassified from Engineering Technician II to Senior Engineering Technician and paid at a higher rate. (Pl. Decl. ¶ 11.)
In February 2006, the City posted a promotional opportunity for "Project Manager." (Doc. 38-6 at 9.) In 2006, Plaintiff applied for the Project Manager position. (Doc. 39-3 at 4.) As part of the test that all applicants were required to take to be considered for the Project Manager position, Plaintiff was interviewed by an outside, three-member panel which included David Fey, a Caucasian. (Doc. 39-3 at 4; Doc. 38-6 at 10.) After the HR process, which included this outside panel review, Plaintiff was 14th on the eligible list. (Doc. 38-6 at 10.) The HR Department sent a list of the top seven (7) candidates for Project Manager to the Water Division pursuant to the Fresno Municipal Code (). (Doc. 38-6 at 10.) The individual ultimately selected by the Water Division, Mark Hughson, a Caucasian, was on the eligible list and was interviewed by the Division. (Id.; Doc. 39-3 at 5.)
Prior to serving on the outside panel, Fey once worked for the Water Division alongside Plaintiff. (Pl. Dep. 80:17-18; 80:24-81:8.) According to Plaintiff, one day during Plaintiff's employment, in Plaintiff's presence, Fey said "Arnold Schwarzenigger" instead of "Schwarzenegger." (Pl. Dep. 84:2-6.) Plaintiff did not appreciate this comment. (Pl. Dep. 84:9.)
As of 2004, Plaintiff's sister-in-law was ill with cancer. (Pl. Dep. 253:23-254:1.) Plaintiff asked his supervisor, Neil Montgomery, for time off from work so that Plaintiff could, along with his wife, visit his sister-in-law. (Doc. 39-3 at 8.) In response to this request, Montgomery admonished Plaintiff for overuse of sick time and warned Plaintiff that he would have a letter on his desk when he returned from his visit. (Id. at 9.) Because he worried about the repercussions, Plaintiff did not visit his sister-in-law. (Id.) The sister-in-law eventually passed away on January 2, 2005, before Plaintiff had an opportunity to see her again. (Id.; Pl. Dep. 254:24.) Plaintiff does not dispute that throughout his years with the City, Plaintiff has been cautioned about his use of sick leave and about the need to comply with the City policy. (Doc. 38-6 at 11.)
Montgomery and other supervisors went through training in which they were advised of the utility of slip-on, steel-toe boots for individuals who worked out in the field on a periodic basis. (Doc. 38-6 at 11.) In 2005, Plaintiff started performing well abandonments and he worked in the field on a periodic basis. (Id.) Plaintiff asked Montgomery to authorize steel-toe work boots (not the slip-on boots) for Plaintiff's use. (Id.; Montgomery Decl ¶ 6; Pl. Dep 10-13.) Montgomery requested that, instead, Plaintiff try the slip-on, steel-toe boots to see if they meet his needs. (Doc. 38-6 at 11.) According to Plaintiff, these boots were not appropriate. Jagged objects could penetrate the bottom sole of the slip-on boots because the bottom sole was not thick enough. (Doc. 39-3 at 6.) Rather than the slip-on, steel-toe boots, Plaintiff wanted "work boots" or "safety boots" which, apparently, have a thicker sole.
According to Plaintiff, on a prior occasion, Montgomery had authorized safety boots for a man named "Buster" who Plaintiff believes is Hispanic or Latino. (Pl. Dep. 123:18-20; 124:6-7.) While Montgomery did not authorize safety boots for Plaintiff's use, unknown to Montgomery, Plaintiff later acquired authorization for safety boots from Montgomery's superior, Lon Martin. (Doc. 39-3 at 7; Pl. Dep. 136:24-25.) The City does not dispute that third party contractors, who Plaintiff had to interact with, required him to wear safety boots while on-site. (Doc. 39-3 at 6.)
Shortly after Plaintiff secured authorization from Martin, there was a brief conversation in the parking lot between Plaintiff, Martin and Montgomery. (Doc. 39-3 at 7.) When Montgomery's failure to issue the safety boot authorization came up, Montgomery became visibly angry and told Martin that he wanted Plaintiff out of his department. (Doc. 39-3 at 7.) Montgomery admits that he "became increasingly frustrated" after it was revealed that Plaintiff had "obtained approval elsewhere" and Plaintiff continued to take Montgomery's time on this issue. (Montgomery Decl. ¶ 7.)
According to Martin, after this conversation in the parking lot, he had discussions and/or meetings with Plaintiff, Plaintiff's union representative, Garth Gaddy, Montgomery, and others as to the situation and the potential solutions. (Martin Decl. ¶ 6.) According to Martin, he believed that Plaintiff was having ongoing disputes with Montgomery. (Martin Decl. ¶ 5.) Plaintiff was transferred, within the Water Division, to Gaddy's supervision in the Telemetry Section. (Doc. 38-6 at 12-13; Doc. 39-3 at 7; Gaddy Decl. ¶ 2.) According to Martin, he believed Gaddy would be a better fit as supervisor, and he wanted Plaintiff to continue performing well abandonments. (Martin Decl. ¶ 7.)2 According to Plaintiff, he has spent increased time in the field as a result of the transfer, and has not been able to "display his full repertoire of skills and abilities." (Doc. 38-6 at 13.) Plaintiff protested the transfer (Doc. 39-3 at 7), and he feels isolated from the rest of his team in his new section (Pl. Decl. ¶ 21.) He admits, however, that he has had no problems with Gaddy's supervision and has not been the subject of any negative reviews or disciplinary conduct. (Doc. 38-6 at 13.)
Prior to his transfer, and allegedly throughout his employment, Plaintiff has heard several comments which he finds objectionable.
Peyton worked in the City's Water Division. Peyton left the City's employ in 2002. (Doc. 38-6 at 4.) It is undisputed that, while employed by the City, Peyton reviewed some of Plaintiff's work. (Doc. 39-3 at 2.)
At his deposition, Plaintiff recalled a conversation that occurred in the mid-90's between Martin McIntyre and Peyton. Plaintiff overheard Peyton say to McIntyre: "Hey, man, I got your back;...
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