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Scott Johnston v. City of Red Bluff

July 18, 2012

SCOTT JOHNSTON,
PLAINTIFF,
v.
CITY OF RED BLUFF, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff brings this civil action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, against the City of Red Bluff and various of its employees, Martin Nichols, Tessa Pritchard, Mark Barthel, and Richard Crabtree. Plaintiff alleges age discrimination and related constitutional and state law torts with respect to his employment as an engineering technician for defendant City of Red Bluff. Pending before the court is plaintiff's motion for summary judgment (Doc. 78). The parties appeared for a hearing on May 23, 2012. Plaintiff appeared pro se. James A. Wyatt, Esq., appeared for defendants. After hearing arguments, the matter was taken under submission for issuance of formal findings and recommendations to the assigned District Judge.

I. BACKGROUND

A. Plaintiff's Factual Allegations and Legal Theories

This action proceeds on the second amended complaint filed April 8, 2011. Plaintiff was hired by defendant City of Red Bluff in August 2000 as an Engineering Technician

I. He was 43 years old at the time. In February 2002 plaintiff was promoted to the position of Engineering Technician II. According to plaintiff, this position was not posted or advertised and he was promoted solely based on the recommendations of his supervisors. Plaintiff states that, based on this history, he expected to be promoted to Tech III "within the next few years." Plaintiff states that his immediately supervisor -- Tim Wood -- was replaced by defendant Barthel in mid-2004. According to plaintiff, "personality clashes" between plaintiff and Barthel developed "over the years."

Plaintiff states that, by August 14, 2005, he "deserved a promotion" and that a promotion required a recommendation from Barthel. Barthel informed plaintiff that there was not enough money in the city budget for plaintiff to be promoted. Plaintiff claims that, unknown to him at the time, in early 2008 the city began looking for another engineering technician. Plaintiff states that defendants Barthel, Pritchard, and Nichols "would have each known of the opening, but they did not tell the Plaintiff about it." He also states that both Barthel and Pritchard "were aware from prior conversations with the Plaintiff that he wanted to be promoted to the Tech III position, yet neither of them mentioned this opportunity." Plaintiff adds that the City of Red Bluff never provided a written policy regarding promotions and none of the defendants ever suggested that plaintiff would have to formally apply for the promotion.

According to plaintiff, sometime in July 2008 a new person was hired as a Tech III and that this person was only 35 years old. Plaintiff states that he approached defendant Nichols about the situation and was told by Nichols that he should have applied for the position. Plaintiff states that he was terminated on July 31, 2009.

Beginning on page 7 of the second amended complaint, plaintiff alleges four claims for relief as follows:

Claim 1 Age discrimination in violation of ADEA.

Claim 2 Denial of procedural due process.

Claim 3 Civil conspiracy, fraud, and wrongful termination. Claim 4 Negligence.

B. Procedural History

Defendants' motion to dismiss the first amended complaint was granted in part and denied in part, and plaintiff was provided an opportunity to file the second amended complaint. Findings and recommendations addressing defendants' motion to dismiss the first amended complaint were issued on February 8, 2011, ...


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