Murdock v. County Of Fresno
| Decision Date | 18 November 2010 |
| Docket Number | No. : Doc. 21.,CASE NO. CV F 09-0547 LJO SMS,: Doc. 21. |
| Court | U.S. District Court — Eastern District of California |
| Parties | EDWARD MURDOCK, Plaintiff, v. COUNTY OF FRESNO, Defendant. |
Defendant County of Fresno ("County") seeks summary judgment on plaintiff Edward Murdock ("Mr. Murdock's") employment discrimination, harassment and retaliation claims arising from his employment as a legal assistant with the County's Public Defender's Office ("PDO") on grounds that Mr. Murdock's claims are time barred and lack supporting facts. Mr. Murdock responds that the evidence reveals that he was subjected to race discrimination, harassment and retaliation. This Court considered the County's summary judgment motion on the record1 without a hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court GRANTS the County summary judgment.
Mr. Murdock is black, was hired by the PDO as a Legal Assistant I in 2000, and worked under the supervision of four Public Defenders until 2009, when Mr. Mr. Murdock became employed with the County's Social Services Department after a reduction in force. Mr. Murdock became a permanent PDO employee on December 11, 2001. As a PDO legal assistant, Mr. Murdock's job duties included interviewing witnesses, experts, PDO clients, and applicants in child support cases, summarizing police reports and other documents, preparing subpoenas and files for an assigned courtroom and attorney, and similar tasks.
County Personnel Rules provide for a discrimination complaint procedure by which employees notify management of violations of anti-discrimination policies. The County notes that Mr. Murdock did not use the County's written complaint procedure to notify the County of "alleged unlawful conduct" based on Mr. Murdock's race. The County claims its first notice of Mr. Murdock's claim of "racially-motivated conduct" was his March 25, 2008 Charge of Discrimination ("DFEH charge") filed with the California Department of Fair Employment and Housing ("DFEH") and Equal Employment Opportunity Commission ("EEOC").
The DFEH charge claims race discrimination and states:
I. On or about November 2000, I was hired as a Legal Assistant I. I have since been treated differently because of my race. I have made several requests to Jim Dockery for performance evaluations and other items.
II. Jim Dockery (Caucasian), Supervisor, has not provided me a response to my requests.
III. I believe I have been subjected to different terms and conditions of my employment because of my race (African American) in violation of Title VII of the Civil Rights Act of 1964, as amended.
DFEH issued Mr. Murdock a March 26, 2008 right-to-sue letter.
Pointing to Mr. Murdock's interrogatory response, the County notes that Mr. Murdock claims "adverse employment action" based on race or color in that:
1. In 2002, Mr. Murdock's co-workers Stacy Ruble ("Ms. Ruble") and Ed Garza ("Mr. Garza") "hit" Mr. Murdock;
2. In 2003, Mr. Murdock was notified of layoff which was rescinded;
3. In 2004 and 2006, Mr. Murdock tested successfully for the Defense Investigator position but was not interviewed;
4. In 2005, Mr. Murdock was not promoted to Legal Assistant II;
5. In 2005, Mr. Murdock was not hired as an Office Assistant Supervisor; and
6. Mr. Murdock received negative evaluations which were not consistently given annually. The County further notes that Mr. Murdock claims that in 2001 and 2002, coworkers harassed him by referring to him as "O.J. Simpson" in connection with Mr. Murdock's domestic violence charge.
In late 2002, Mr. Murdock complained to PDO Senior Defense Attorney Elizabeth Diaz ("Ms. Diaz") and then Assistant Public Defender George Cajiga ("Mr. Cajiga") that Ms. Ruble, a then senior PDO paralegal, "popped me on the back of my head" when Mr. Murdock talked with an inmate in the County's "new jail area." In his deposition, Mr. Murdock attributed Ms. Ruble to "just trying to show off or whatever because she... was the senior paralegal at the office." In his summary judgment opposition papers, Mr. Murdock claims Ms. Ruble's contact was offensive and disrespectful. Mr. Murdock attributes Mr. Cajiga to have told Mr. Murdock that Mr Murdock "needed to learn to take a joke" and "made fun" of Mr. Murdock for complaining about Ms. Ruble's contact.
Mr. Murdock points to a "second incident" on an unidentified date during which Ms. Ruble "jokingly" hit him in the shoulder as they walked toward each other on the street during lunch. In his opposition papers, Mr. Murdock notes that he found the punch "disrespectful" and responded to it with "profanity about the need to keep her hands to herself."
Mr. Murdock did not inform Ms. Diaz that Ms. Ruble struck him because of race and does not attribute race to Ms. Ruble's popping him in the head. In his opposition papers, Mr. Murdock claims that he did not report the second incident with Ms. Ruble "[g]iven the lack of response by the PDO to the first incident" but that Mr. Murdock was counseled after Ms. Ruble complained of his "language." Mr. Murdock further claims that he "advised of the precipitating conduct yet nothing was done by PDO regarding the incident."
Mr. Murdock notes that in December 2002, Mr. Garza outside a courtroom "got in Murdock's face, poking his index finger into his chest repeatedly and yelling at him." Mr. Murdock notes in his opposition papers that the incident "angered" him and that he left a voicemail with Ms. Diaz that "he was going home." Ms. Diaz telephoned him at home, and Mr. Murdock claims that he was "disciplined" for leaving work without permission and that there was no investigation into Mr. Garza's conduct.
Mr. Murdock does not attribute Mr. Garza to have poked him because Mr. Murdock is black. Mr. Murdock did not report to Ms. Diaz or Mr. Cajiga that Mr. Garza poked Mr. Murdock because Mr. Murdock is black.
Ms. Diaz assured Mr. Murdock that such touching would stop and it did.
In his declaration, Mr. Murdock states that although he does not believe the "incidents of physical conduct by co-workers... were racially motivated," he "came to believe the PDO's responses to the incidents were racially discriminatory."2
Mr. Murdock was served with a layoff notice on May 23, 2003. A June 26, 2003 memo informed Mr. Murdock that the layoff notice was rescinded "because the reason for layoff no longer exists." The County notes that since the layoff was rescinded, the layoff decision "is not actionable." Mr. Murdock appears to agree in that he does not address the layoff notice.
Relying on Mr. Murdock's performance evaluations, the County notes that Mr. Murdock was not entitled to a Legal Assistant II promotion in 2005 because he "was not performing his job duties at a satisfactory level" and that County policy entitles an employee to advancement when the department head determines that service has been satisfactory.
In 2004, Mr. Murdock passed the examination for Defense Investigator I but did not score in the top 30 of testing applicants. Mr. Murdock lacks knowledge of anyone who scored lower than he did but interviewed for the Defense Investigator I position in 2004.
In 2006, Mr. Murdock was one of the 145 out of 175 testers who passed the Defense Investigator I examination with a 70 percent or above score. Mr. Murdock ranked 87th of the passing testers. The top 20 highest scoring testers were interviewed. A black male was hired as a Defense Investigator I from the list of successful testers which included Mr. Murdock.
In 2005, Mr. Murdock interviewed as one of three finalists but was not selected as an Office Assistant Supervisor. The successful candidate for the position had worked as an Office Assistant III. Mr. Murdock has never worked as an Office Assistant.
County personnel rules provide for annual performance evaluations "at approximately one month prior to the anniversary date." The County notes that between Mr. Murdock's "satisfactory" performance evaluation in 2001 to is next "satisfactory" evaluation in 2008, Mr. Murdock consistently rated as "unsatisfactory" or "needs improvement."
Ms. Diaz supervised and evaluated Mr. Murdock during 2001-2003. For the May 28, 2001 to May 27, 2002 rating period, Ms. Diaz' overall evaluation was "improvement needed." For the May 27, 2002 to May 26, 2003 rating period, Ms. Diaz' overall evaluation was "unsatisfactory." For the May 26, 2003 to September 1, 2003 rating period, Ms. Diaz' evaluation was "improvement needed." The evaluation is dated February 2004, and Mr. Murdock points out that "the evaluation did not cover the time period between September 2003 and February 2004."
On December 30, 2002, Ms. Diaz and Mr. Cajiga counseled Mr. Murdock regarding Mr. Murdock's incident with Mr. Garza. The County attributes Mr. Murdock to admit to "leaving the job without authorization on that day." Mr. Murdock criticizes a counseling memo's failure to mention Mr. Murdock's "complaints about Garza's bullying aggression."
On January 9, 2003, Ms. Diaz again counseled Mr. Murdock for unsatisfactory job performance.
Her January 15, 2003 memo concluded:
You are on notice that your work performance must improve immediately. Your courtroom organization must improve. The paperwork for which you are responsible must improve. You are not to leave the job without specific authorization. You should confine your absences to scheduled time off which has been previously approved.
During September 2003 to March 2005, Mr. Cajiga, now deceased, supervised Mr. Murdock but did not prepare performance evaluations for him. During 2005-2008, former PDO Chief Defense Attorney James Dockery ("Mr. Dockery"),...
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