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Kenneth Jack Harrison v. City of Brea et al

December 6, 2010

KENNETH JACK HARRISON, PLAINTIFF AND APPELLANT,
v.
CITY OF BREA ET AL., DEFENDANTS AND RESPONDENTS.



Appeal from a judgment of the Superior Court of Orange County, Randell L. Wilkinson, Judge. Affirmed. (Super. Ct. No. 30-2008-00110478)

The opinion of the court was delivered by: O'leary, J.

Harrison v. City of Brea

CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Kenneth Jack Harrison's wrongful discharge action against the City of Brea (the City), and several individual employees of the City, was dismissed after several rounds of demurrers and amended pleadings. On appeal, Harrison contends he adequately pleaded causes of action against the City for wrongful discharge in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (h)),*fn1 and against the individual defendants for workplace harassment and failing to take reasonable steps to prevent workplace harassment. (§ 12940, subds. (j)(1) & (k).) We reject his contentions and affirm the judgment.

FACTS & PROCEDURE

Harrison's First Amended Complaint

Harrison is a firefighter for the City of Brea. His original complaint, which is not in the record, was filed on August 12, 2008. While demurrers were pending, Harrison filed his first amended complaint on January 13, 2009.

The first amended complaint named as defendants the City and 17 individual City employees including the city manager, Harrison's fire department supervisors (the fire chief, the division chief, battalion chiefs, fire captains, and fire marshals) and several co-worker firefighters. He alleged a litany of complaints about perceived mistreatment by supervisors and co-workers over the years.

Harrison alleged his problems began in July 2003, when he requested a shift transfer because of "harassment incidents" involving a female supervisor. He sent complaints to a captain, a battalion chief, and the fire chief about the female supervisor. Their investigation, conducted by an outside attorney, concluded Harrison was at fault.

Several months later, in November 2003, after Harrison tried to get another firefighter to take his morning shift, a captain "spun the whole issue into a problem," and upset the battalion chief, who thereafter discouraged employees from covering shifts for Harrison. Harrison was given new policy requirements requiring the battalion chief's approval of "last minute shift trades" something not required of other employees. The battalion chief then sent a copy of the e-mail concerning the new policy to the fire chief, just a few days before Harrison's promotion interview.

In November or December 2003, Harrison left work while on duty to assist his wife who was at home sick and needed help with their children. Before he was permitted to return to work, Harrison's supervisors required him to bring a doctor's note confirming that his wife's illness required him to attend to her at home.

Through that winter, Harrison continued to attempt to get the battalion chief to "retract" the shift trade policy, but he would not. Although the union president told Harrison "management has discretion in this matter, and can act accordingly[,]" Harrison continued to communicate with his supervisors to "clarify his intent, views and compliance with the new policy," but still they would not change the policy.

In March 2005, Harrison requested shift trades but was told "he could not staff out of rank." Harrison told the battalion chief he had child care issues requiring shift trades, but he was ignored even though "other employees did the same thing as Harrison."

In May 2005, Harrison was passed over for promotion, when others with less tenure received promotions. When he asked superiors about the status of his promotion, he was not given "updates." Finally, in December 2005, Harrison was promoted, but the fire chief embarrassed him at the promotion ceremony by failing to follow the department custom of mentioning accomplishments of the person receiving the promotion.

In January 2006, Harrison was required to attend a specialized training session that other "veterans" were not required to attend. In February 2006, Harrison "questioned" a captain for attempting to make patient care decisions because the captain was not a paramedic. Another captain accused Harrison of creating dissention among the firefighters and creating a hostile work environment.

In late June 2006, Harrison found "unsecured fireworks" in the station and lit them as a prank to startle a co-worker. Even though Harrison believed a captain condoned the prank, the battalion chief officially disciplined Harrison. In August 2007, the fire chief picked someone else to represent the department at a 9/11 ceremony even though Harrison "was at ground zero that day." From September 2006 through December 2006, Harrison raised complaints about the chain of command for handling a specific drug vial containing morphine, but no action was taken on his concerns, and he was harassed for having raised them.

In April 2007, Harrison was denied a retroactive pay raise, and when he asked why his raise was only two and one-half percent instead of the standard five percent, the fire chief said the raise was appropriate for someone with a record like Harrison's. Harrison then got in a heated argument with a captain over the pay raise matter. The battalion chief approved the captain's request to have Harrison transferred to another station for a "cooling off" period. In June 2007, ...


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