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Dwayne A. Harvey v. the City of San Diego

March 8, 2011

DWAYNE A. HARVEY,
PLAINTIFF,
v.
THE CITY OF SAN DIEGO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

[Docket No. 53]

This matter comes before the Court on Defendants' motion for summary judgment. Plaintiff has filed an opposition to the motion, and Defendants have filed a reply. For the reasons discussed below, the Court grants in part and denies in part Defendants' motion.

I. BACKGROUND

Plaintiff Dwayne Harvey has been employed by the City of San Diego since February 13, 1987. Plaintiff was initially hired as a grounds maintenance II worker. In 1993, he was promoted to a utility supervisor position in the City's water department, and in 2001 he was promoted to public works supervisor in that same department.

In July 2004, Defendant Roger Wammack became Plaintiff's immediate supervisor. Defendant Kip Sturdevan was Wammack's immediate supervisor, and Defendant Elmer Heap was in Plaintiff's supervisory chain of command. On October 14, 2004, Defendant Wammack gave Plaintiff a poor performance report. (See Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 8.) Plaintiff appealed that report, after which the report was revised. (See Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Exs. 9-10.) Plaintiff thereafter appealed the revised report, which appeal was denied on August 19, 2005. (See Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 11.)

On October 3, 2005, Plaintiff received a written reprimand from Defendant Sturdevan for an e-mail Plaintiff sent to Defendant Wammack. (See Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 12.) Plaintiff appealed the reprimand, which appeal was denied on July 31, 2006. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 13.)

On November 16, 2005, Plaintiff received another poor performance report from Defendant Wammack. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 14.) Plaintiff appealed that report, which appeal was denied. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 15.)

On November 28, 2005, Plaintiff received a written reprimand from Defendant Wammack for using a City vehicle to visit his private residence. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 18.) Plaintiff appealed that reprimand, which appeal was denied on January 6, 2006. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 19.)

On December 22, 2005, Plaintiff received a written performance feedback from Defendant Wammack. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 20.) That same day, Plaintiff filed an Employee Grievance Form related to Defendant Wammack's written feedback. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 21.)

Over the next eighteen months, Plaintiff had several additional disputes with Defendant Wammack regarding his job performance. (See Decl. of Roger Wammack in Supp. of Mot. ("Wammack Decl.") ¶¶ 7-11.) The last dispute concerned a camera that was found in Plaintiff's office. The facts surrounding the camera are disputed, but it appears one of Plaintiff's co-workers gave Plaintiff a fake camera as a gag gift. The camera was installed in Plaintiff's office, and Defendant Wammack asked Plaintiff to remove it. (Id. ¶¶ 12-15.) Plaintiff refused to remove it, so Defendant Wammack removed the camera. (Id. ¶¶ 16-17.) Defendant Wammack later returned the camera to Plaintiff with the admonition that Plaintiff was not to reinstall it in his office, but Plaintiff reinstalled the camera anyway. (Id. ¶17-19.)

As a result of the dispute over the camera, Plaintiff was suspended without pay pending an investigation into the dispute. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 25.) Approximately one week later, Plaintiff was provided advance notice of his termination. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 27.) Plaintiff was thereafter terminated on July 19, 2007. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 28.)

Plaintiff appealed his termination to the Civil Service Commission of the City of San Diego. (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 31.) After a full hearing, the Commission found that Plaintiff's termination was unwarranted, but ordered that Plaintiff be demoted to a non-supervisory position.

On July 24, 2007, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Defs.' Notice of Filing Exs. to Pl.'s Depo. in Supp. of Mot., Ex. 40.) That EEOC charge alleged the City had discriminated against Plaintiff based on his race (African American) and for purposes of retaliation. (Id.) The EEOC issued Plaintiff a right-to-sue ...


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