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Hanson v. County of Kitsap

United States District Court, W.D. Washington

May 22, 2014

CRAIG D. HANSON, Plaintiff,
v.
COUNTY OF KITSAP, WASHINGTON, DAVID LYNAM, KITSAP COUNTY FIRE MARSHAL, JOHN AND JANE DOE, EMPLOYEE-AGENTS AND FORMER EMPLOYEE AGENTS OF KITSAP COUNTY, Defendants

Order Filed: June 2, 2014

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Craig D Hanson, Plaintiff: Thomas G. Jarrard, THE LAW OFFICE OF THOMAS G. JARRARD PLLC, SPOKANE, WA; Matthew Z Crotty, CROTTY & SON LAW FIRM, SPOKANE, WA.

For County of Kitsap, Defendant: Deborah Ann Boe, LEAD ATTORNEY, Christine M. Palmer, Jacquelyn Moore Aufderheide, KITSAP COUNTY PROSECUTOR'S OFFICE, PORT ORCHARD, WA.

For David Lynam, Kitsap County Fire Marshal, Defendant: Christine M. Palmer, Deborah Ann Boe, Jacquelyn Moore Aufderheide, KITSAP COUNTY PROSECUTOR'S OFFICE, PORT ORCHARD, WA.

OPINION

ROBERT J. BRYAN, United States District Judge.

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ORDER ON PARTIES' MOTIONS FOR PARTIAL SUMMARY JUDGMENT

This matter comes before the Court on the Defendants' Motion for Partial Summary Judgment Regarding Claims for Reemployment, Failure to Promote, and Discrimination (Dkt. 77), Plaintiff's Cross Motion for Partial Summary Judgment (Dkt. 97), Defendants' Motion for Partial Summary Judgment Regarding Hostile Work Environment, Constructive Discharge and Retaliation (Dkt. 90), Plaintiff's motion to strike (Dkt. 33) and Defendants' motion to strike (Dkt. 128). The Court has considered the pleadings filed regarding the motions and the remaining file.

Plaintiff, a veteran of the United States Army, United States Marine Corps, and Washington Army National Guard, filed this employment case pursuant to Uniformed Services Employment and Reemployment Rights Act (" USERRA" ) 38 U.S.C. § 4301, et seq. and state law on May 22, 2013. Dkt. 1. In his second Amended Complaint, Plaintiff makes USERRA - based claims for discrimination in employment based on his military service under 38 U.S.C. § 4311, for retaliation under § 4311, failure to reemploy to the proper reemployment position under § § 4312 and 4313; failure to provide proper benefits under § 4316; discharge without cause under § 4316; and for failure to properly pay employee pension and other benefits under § 4318. Dkt. 45. Plaintiff also makes state law claims for violations of the Washington Law Against Discrimination (" WLAD" ), Washington's Public Records Act, defamation and liquidated damages. Id. He seeks damages, attorneys' fees, and costs. Id.

Defendants move for summary dismissal of Plaintiff's state and federal claims based on Plaintiff's allegations that Defendants: 1) failed to reemploy and promote Plaintiff, 2) denied Plaintiff the statutorily protected benefits of employment, 3) failed to pay Plaintiff's longevity bonus, 4) failed to contribute to Plaintiff's retirement plan, and 5) acted with discriminatory intent in failing to reemploy or promote Plaintiff. Dkt. 77.

Plaintiff filed a response to Defendants' partial motion for summary judgment and

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made a cross motion for partial summary judgment. Dkt. 97. Plaintiff argues that he should be granted summary judgment on his claims that Defendants violated his USERRA rights by: 1) failing to properly reemploy him in violation of § § 4312 and 4313, 2) failing to give him his 2012 longevity bonus in violation of § § 4311 and 4316, 3) discharging him without cause violation of § 4316(c), 4) failing to properly contribute to his pension in violation of § 4318, and 5) repeatedly discriminating against him due to his military service. Id. Plaintiff argues that Defendants' motion for partial summary judgment should be denied as to whether Defendants acted with discriminatory intent in failing to reemploy or promote Plaintiff. Id.

Defendants also filed a Motion for Partial Summary Judgment regarding Hostile Work Environment, Constructive Discharge and Retaliation. Dkt. 90. Defendants argue that all Plaintiff's claims based on the allegations that Defendants created a hostile work environment, Plaintiff was constructively discharged, and that Defendants retaliated against Plaintiff be dismissed. Dkt. 90. Plaintiff opposes the motion. Dkt. 123.

For the reasons set forth below, Defendants' motions should be granted, in part, and denied, in part. Plaintiff's cross motion should be granted as to his § 4318 claim (pension) and denied in all other respects.

I. FACTS AND PROCEDURAL HISTORY

On October 1, 2013, Plaintiff's motion for an order granting partial summary judgment on the issue of liability regarding his USERRA claims under 38 U.S.C. § § 4312, 4313 (reemployment), 4316 (benefits & without cause discharge) and 4318 (pension) was denied. Dkt. 37. The following facts are taken from the parties' submissions in support of the present motions, and the record in accord with Fed.R.Civ.P. 56(c)(3).

A. FACTS

On March 14, 2007, Kitsap County, Washington, hired Plaintiff as a Deputy Fire Marshal 1 (" DFM 1" ). Dkts. 25-1, at 1; 103, at 42. When he was hired, his supervisor, Fire Marshal David Lynam, was aware that Plaintiff was serving in the Washington Army National Guard and would need to take a military leave of absence from time to time. Dkts. 34, at 1; 103, at 53-54. On April 7, 2007, Plaintiff was assigned a radio call sign of " FM3." Dkt. 25-1, at 1-2. Kitsap County issued boots, a badge, an identification card, and a vehicle to Plaintiff. Dkt. 25-1, at 2.

As a DFM 1, Plaintiff conducted building inspections. Dkt. 25-1, at 2. He also performed " out of class" work conducting fire investigations, which is work typically done in Kitsap County by a Deputy Fire Marshal 2 (" DFM 2" ). Dkt. 25-1, at 2. The office had a fire investigation rotation system where the marshals would take turns being on duty approximately every three weeks. Dkt. 103, at 69. They got paid extra for overtime, to be on call, and if they went out to do an investigation. Dkt. 106, at 12. The amount of investigations in any one week depended on the number of fires that week. Dkt. 103, at 69. The number of hours it took to investigate a fire varied as well. Dkt 113, at 5. Plaintiff acknowledges that his hours fluctuated. Dkt. 98, at 2. From 2007-2009 Plaintiff conducted at least 48 fire investigations. Dkt. 25-1, at 2. Plaintiff was paid for each hour of investigative work he completed. Dkts. 33, at 3; 103, at 43. (Defendants now note that this was in error because under the Collective Bargaining Agreement, in order to be paid for out of class work, he needed to work ten

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consecutive days at that work, and he never did. Dkt. 33, at 3-4. Further, assisting in fire investigations was a part of DFM 1's duties. Dkt. 33, at 4. Defendants state that they are now following the Collective Bargaining Agreement in this regard. Dkt. 33, at 4.) In any event, Plaintiff did not perform all the duties associated with the position of DFM 2. Dkts. 25-1, at 2; 34, at 2; 114, at 6.

The Kitsap Board of County Commissioners have the sole authority to create and fund positions within the county. Dkt. 34, at 6. Insofar as the positions relevant to this case are concerned, a Collective Bargaining Agreement (" CBA" ) regulates how job vacancies can be filled. Dkt. 34, at 5. DFM 1s do not " automatically" advance to DFM 2. Dkt. 33, at 4. In May of 2007, a newly created DFM 2 position was opened for applications, but was revoked due to a hiring freeze. Dkts. 25-1, at 2; 33; 34, at 7; and 103-1, at 71. Kitsap County did not open a job vacancy for a DFM 2 position again until February of 2013. Dkt. 34, at 7.

In 2008 through mid-2009, in addition to the funding the position of Fire Marshal (which was held by Mr. Lynam), Kitsap County funded one full time DFM 2 position (Tina Turner) and two full-time DFM 1 positions (Plaintiff and Jackie Blackwood). Dkt. 34, at 5. Ms. Blackwood began working for Kitsap County in 1993 and was hired as a DFM 1 in 2008. Dkt. 33, at 5. Ms. Blackwood was assigned a radio call sign of " FM4." Dkt. 109, at 4. As a consequence of the economic recession, in mid-2009, the DFM 1 positions were reduced to .90 FTE (36 hours a week). Dkt. 34, at 5 and 48.

In October of 2009, Plaintiff notified Kitsap County that he had been called for active duty military service, and began that service in November of 2009. Dkt. 25-1, at 3. Before he left, Plaintiff returned his badge, identification card, phone, and vehicle to Mr. Lynam. Dkts. 25-1, at 3; and 103, at 59-60.

After Plaintiff left, the county hired two people as temporary " extra help." Dkt. 103-1, at 67. Brad Wiggins was hired as a DFM 2 and Shawn Shepherd was hired as a DFM 1. Dkt. 103, at 60. Mr. Wiggins was hired to do fire investigations, and was assigned the emergency radio call sign " FM3." Dkts. 103-1, at 68; 103, at 60. Mr. Wiggins was given Plaintiff's old badge. Dkt. 103, at 60. Mr. Shepherd was hired to do building inspections, particularly as it pertained to more complex and specialized work that had arisen in the county. Dkt. 103-1, at 69. Mr. Shepherd was not given a radio call sign or badge. Dkt. 103, at 60.

While Plaintiff was on active duty, Kitsap County had to further cut its budget due to the recession. Dkt. 34, at 5. Effective 2011, the DFM 1 positions were reduced to .85 FTE (34 hours per week). Dkt. 34, at 5. During that time, the Fire Marshal's office also had to relocate to a different building. Dkt. 34, at 7. The Department of Community Development, of which the Fire Marshal's office is part, had to lay off more than 20 employees and had to eliminate 9 vehicles. Dkt. 34, at 7. There were points after Mr. Hansen left that everybody in the department worked less than full time. Dkt. 103, at 60.

Plaintiff returned to work for Kitsap County on December 3, 2012, after being honorably discharged on November 30, 2012. Dkts. 25-1, at 3 and 98, at 2. He is a disabled veteran with a 30% disability rating for Post Traumatic Stress Disorder (" PTSD" ). Dkt. 98, at 1.

1. Post Return Equipment and Training

After Plaintiff returned, he, like all the other employees, had access to at least two

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shared vehicles. Dkts. 98, at 2; 34, at 8. Plaintiff shared a vehicle " more often than not" with Brad Wiggins. Id. Plaintiff was given a new radio identifier, " FM5," for 911 calls. Dkt. 34, at 5.

Plaintiff was issued a new employee identification badge. Dkt. 34, at 8. Plaintiff was not given a fire marshal badge. Dkt. 78, at 23. Although Plaintiff requested a " protective case for new expensive phone" (Dkt. 25-1, at 64), the county did not buy such an item for anyone in the Fire Marshal's office. Dkt. 103, at 69. Plaintiff testified that after he returned, he threw the boots the county had originally given him away because they were worn out and asked for new boots. Dkt. 78, at 7. In response to his request, Mr. Lynam asked Plaintiff to check in the evidence locker and see if the boots he had before he left on deployment were in there. Dkt. 34, at 11. Mr. Lynam later saw Plaintiff with boots on during a fire investigation, and then saw a pair of boots with Plaintiff's gear in the back of a response vehicle. Dkts. 103, at 69 and 34, at 11. Mr. Lynam assumed that Plaintiff had found his boots. Dkt. 34, at 11. Plaintiff testified that he purchased new boots, but did not ask the county to reimburse him because he wore those boots " on civilian time too." Dkt. 78, at 8. Mr. Lynam also told Plaintiff that Central Kitsap Fire and Rescue had surplus boots and had offered them to the Fire Marshal's office. Dkt. 34, at 11.

While Plaintiff was gone on deployment, his fire inspector certification lapsed. Dkt. 34, at 10. After his return, Kitsap County paid for him to attend international building code update training, international fire code update training, and training in design and installation of residential fire sprinklers. Dkt. 34, at 10. He participated in the state Fire Sprinkler Coalition, and attended a two day training at a sprinkler forum. Dkt. 34, at 10. Plaintiff also attended once-a-week in house training sessions. Dkt. 34, at 10. Plaintiff was asked to sign up for the annual State Fire Marshal Program for sprinkler installers, designers, and fire code authorities and a class on juvenile fire setters. Dkt. 34, at 11. Plaintiff received, at Kitsap County's expense, approved training sufficient to obtain his required certification for inspections, which was required for his DFM 1 position. Dkt. 34, at 11. Plaintiff, apparently, was recertified. Defendants denied Plaintiff's request to attend out-of-state training. Dkt. 34, at 10. Defendants explain that due to budget constraints, the Fire Marshal's office now rarely sends employees to out-of-state training because sufficient training is offered in Washington. Dkt. 34, at 10. The county denied Plaintiff's request to attend a basic fire investigation course because he completed this course in 2008 and sent another employee, Ms. Blackwood, who had not yet attended. Dkt. 130, at 1. Plaintiff received his certificate on May 16, 2008. Dkt. 130, at 7.

2. Post Return Retirement Contributions and Longevity Bonus

While Plaintiff was an employee of Kitsap County, he participated in the Washington State Department of Retirement System, Public Employees' Retirement System Plan 3 (" PERS 3" ). Dkts. 25 and 103-1, at 78. On February 21, 2013, Plaintiff contacted the Kitsap County payroll department by e-mail and requested that Kitsap County make contributions to his PERS 3 retirement account for November 2009 to December 2012. Dkt. 25-1, at 81. Kitsap County, calculated his compensation based on the number of hours Plaintiff's position was approved to have worked while on leave. Dkt. 118. It then notified the state, and on receipt of an invoice from

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the Department of Retirement Systems, on June 17, 2013, Kitsap County paid $8,798.26 into Plaintiff's PERS 3 account. Dkts. 33 at 2 and 33-1, at 3.

Kitsap County awards employees with over five years of service longevity bonuses of 1% of their annual pay. Dkt. 33, at 2. The bonus is based on actual wages paid. Dkt. 33, at 2. In March of 2013, Plaintiff was given a five year longevity bonus of $263.47. Dkt. 25-1, at 7. On March 27, 2014, the county sent Plaintiff an additional check for $43.33 for his 2012 longevity bonus based on the 21 days of military pay he received between March 2011 and March 2012. Dkt. 98, at 21. The county acknowledges that it " did not discover that the [2012] longevity bonus was not paid until March 2014." Dkt. 98, at 21.

3. Post Return Duties and Work Environment

Beginning in December 2012, Plaintiff was placed on the fire investigation call-out rotation approximately every third week. Dkt. 34, at 9. Initially, Plaintiff " shadowed" Mr. Lynam (who was the lead investigator) on fire investigations occurring in December 2012 and early January 2013. Dkt. 34, at 9. Mr. Lynam encouraged Plaintiff to shadow others when he was able, in order to " get [him] the experience and back up to speed as quickly as possible." Dkt. 103, at 69. Mr. Lynam had taken on more work duties, and so was trying to get out of the fire investigation rotation. Dkt. 103, at 64. On two occasions in December 2012, Plaintiff was called to assist with fire investigations, and he declined. Dkt. 34, at 9. These investigations were optional and Plaintiff was at holiday events. Dkt. 103, at 69. In late January 2013, Mr. Lynam then shadowed Plaintiff, who was the lead, for fire investigations occurring in late January and early February 2013. Dkt. 34, at 9-10. Prior to his deployment, Plaintiff conducted about a third of the fire investigation work. Dkt. 113, at 4. When he returned, beginning December 1, 2012 until the end of April 2013, Plaintiff performed 17 fire investigations, Mr. Wiggins performed 14, Mr. Lynam performed 9, and Ms. Turner performed 7. Dkt. 113, at 11-12. Of the 47 investigations, Plaintiff, then performed around 36% of the investigations.

In late-December 2012, Plaintiff requested that Mr. Lynam remove Brad Wiggins from the investigation rotation and remove Shawn Shepherd from inspection work so Plaintiff could resume the full work-load that he felt he had prior to his mobilization. Dkt. 25-1, at 5. Mr. Lynam denied that request because he was trying to get out of the fire inspection rotation. Id.

On January 2, 2013, Plaintiff filed a complaint with the federal Employer Support for Guard and Reserve (" ESGR" ). Dkt. 98, at 4. In his complaint, he asked for the FM3 call sign, his badge, and that Mr. Wiggins be removed from his extra help duties. Dkt. 98, at 4.

After his return from active duty, Plaintiff felt that his co-workers were treating him poorly. Dkt. 98, at 3. He asserted that Ms. Blackwood and Ms. Turner (and, at times, Mr. Wiggins) were " short, curt, and disrespectful." Dkt. 98, at 3. He felt ostracized. Dkt. 98, at 4. According to Plaintiff, people did not say " hi" to him first, he had to say " hi" first, and then they would reciprocate. Dkt. 91, at 7-10. He asserted that Mr. Wiggins once bought donuts in, and offered them to everyone else except him, but when he asked for one, Mr. Wiggins gave him one. Dkt. 91, at 13-14. Plaintiff never got asked to go to lunch, but he and Mr. Wiggins would go and have coffee together. Dkt. 91, at 14 and 17. He felt he was excluded from meetings. Dkt. 91. He alleged Ms. Blackwood and Ms. Turner would " [stick]

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their hands in [his] face and [say], in a loud angry voice, 'go talk to Dave.'" Dkt. 98, at 3. He alleges that he asked another co-worker, Jason Rice, why everyone was so upset, and Plaintiff maintains that Mr. Rice said " words to the effect of 'people are all assed out that you're back [from military duty] because they think they're gonna [sic] get their hours cut." Dkt. 98, at 3. Plaintiff complained repeatedly to Mr. Lynam throughout the December 2012 -- August 2013 timeframe about his co-worker's treatment of him. Dkt. 98, at 3. He asserted that Tina Turner said " words to the effect" that he " had not been here long enough to deserve to have the [FM3] call sign back given that [he] was on military orders," and he complained to Mr. Lynam about that statement. Dkt. 98, at 3.

Plaintiff states that he repeatedly asked Mr. Lynam to arrange a meeting with Plaintiff and his co-workers so Plaintiff could tell them " what they were doing to [him] hurt [him]." Dkt. 98, at 4. Plaintiff asserts that he told Mr. Lynam that the way he was being treated made his PTSD worse and that Mr. Lynam did not act. Dkt. 98, at 4.

Mr. Lynam testified that he did not put a meeting together because he did not " see anything good that was going to come out of it." Dkt. 103, at 66. Mr. Lynam noticed some " friction," and talked with people about it, but felt that a meeting was something that Plaintiff could have done on his own. Dkt. 103, at 66.

After the ESGR complaint, Mr. Lynam made an effort to have more meetings which included Plaintiff and used Sharepoint to exchange information. Dkt. 103, at 68. Mr. Lynam reminded Ms. Blackwood to help Plaintiff with the computer systems and encouraged department members to make sure Plaintiff had shadowing opportunities, was included in conversations, and project development. Dkt. 103, at 68.

In late January 2013, Plaintiff stated that he again asked for his boots, shirt, and badge, and was not given those items. Dkt. 98, at 4. Mid-February 2013, Plaintiff again requested that Mr. Shepherd and Mr. Wiggins be taken off of their duties. Dkt. 25-1, at 6.

4. Post Return Application for DFM 2 Position

In the 2013 budget, the Kitsap Board of County Commissioners authorized reclassification of one of the two DFM 1 positions to a DFM 2 position and reduction of the second DFM 1 position to .85 FTE (34 hours). Dkt. 33, at 4. In February of 2013, the county posted a notification that it had an opening for a DFM 2. Dkt. 103-1, at 72. The notification contained a section entitled " Required Education and Experience," which included, in part, " three years experience in fire prevention and investigation work equivalent to the Deputy Fire Marshal 1 position." Dkt. 103-2, at 63. Plaintiff and Ms. Blackwood applied for the job. Dkt. 103-1, at 72.

A panel commkpiled by Mr. Lynam interviewed them for the position. Dkt. 103-1, at 72. The panel was composed of Warner Webb, the Pierce County Fire Marshal, Jeffrey Rowe, Deputy Director of Kitsap County's Department of Community Development, Wayne Senter, Executive Director of the Washington Fire Chief's Association, and Jonathan Dunaway, the Clark County Fire Marshal. Dkts. 110, 111, 112, 115.

Both candidates were asked essentially the same questions and follow-up questions. Dkts. 110, at 4-5 and 111, at 4. They were asked about their prior work experience and customer service skills. Id.

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In Mr. Webb's view, Ms. Blackwood was better about giving specific examples of past work history and had better customer service skills. Dkt. 110, at 5. Mr. Webb noted that Plaintiff gave inconsistent answers regarding work history, including stating that he had never shut a business down and then later acknowledging that he had. Dkt. 110, at 5. When questioned, Plaintiff was unable to explain his inconsistent answers. Dkt. 110, at 5. Mr. Webb stated that although Plaintiff discussed his military experience, it did not appear directly related to the job duties expected of a DFM 2. Dkt. 110, at 5. Mr. Webb stated that he did not view Plaintiff's military service in a negative light. Id.

Mr. Rowe stated that he gave Plaintiff a score of 20 and Ms. Blackwood a score of 29. Dkt. 111, at 4. Mr. Rowe did not view Plaintiff's prior military experience negatively. Dkt. 111, at 4. In Mr. Rowe's opinion, Plaintiff appeared " overly confident and arrogant" and appeared to lack " integrity and credibility." Dkt. 111, at 5. Mr. Rowe was very concerned about Plaintiff's lack of credibility because he was aware that DFM 2s sometimes end up in court, and need to be good witnesses. Dkt. 111, at 5-6. Mr. Rowe was also concerned about Plaintiff's description of his leadership style as leading by establishing a " common enemy." Dkt. 111, at 6. This style is the opposite of the collaborative leadership style which is the preferred style in the department. Dkt. 111, at 6. Mr. Rowe indicated in his notes that Plaintiff " seems very military centric," reflecting Mr. Rowe's observation about the leadership style Plaintiff described. Dkt. 111, at 6. Mr. Rowe stated that Plaintiff's military service " had no bearing on how [he] scored Plaintiff." Dkt. 111, at 6-7. He felt that Ms. Blackwood's weaknesses could be overcome by training, and that Plaintiff's lack of credibility and integrity could not. Dkt. 111, at 7.

Mr. Senter, also a military veteran, stated that he was surprised at Plaintiff's " cavalier demeanor" during the job interview, and even more surprised that Plaintiff described himself as an " overbearing, arrogant jerk." Dkt. 112, at 5. Plaintiff appeared to have poor interpersonal skills. Dkt. 112, at 7. Like Mr. Rowe, Mr. Senter was concerned with Plaintiff's description of his leadership style as creating a " common enemy" because it suggested to Mr. Senter that Plaintiff might " attempt to foster a relationship with another person or entity by creating an enemy in a coworker or other county agency," and that was not how relationships should be built in the fire service industry. Dkt. 112, at 5. Mr. Senter noted that Plaintiff gave contradictory answers in the interview and was unable to explain those contradictions. Dkt. 112, at 5. Mr. Senter had the impression that Plaintiff was not honest and that gave him concern. Dkt. 112, at 7. Mr. Senter felt Ms. Blackwood had better problem solving and interpersonal skills. Dkt. 112, at 6. In his view, she had sufficient technical skills. Dkt. 112, at 6-7. Plaintiff's military service did not negatively impact the scores Mr. Senter gave him. Dkt. 112, at 7. Mr. Senter, a veteran, states that he views military service as a " positive quality." Dkt. 112, at 7.

Mr. Dunaway notes that Plaintiff gave an incorrect explanation about the fire code and felt that he did not seem to have a " good grasp as to what the code requires versus what the code recommends." Dkt. 115, at 5. Mr. Dunaway felt that Plaintiff thought that he " could take on more authority than allowed by the code, without approval from the Fire Marshal." Dkt. 115, at 5. This was a " big concern" for Mr. Dunaway, particularly in light of the further impression Plaintiff gave that he was unwilling to learn. Dkt. 115, at 5. Mr. Dunaway states that the fact of Plaintiff's

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military service did not play into how he was scored. Dkt. 115, at 6. Mr. Dunaway maintains that " if he had described similar experience in a non-military setting, [Mr. Dunaway] would have given him the same score." Dkt. 115, at 6.

Plaintiff perceived the interview questions regarding his military service as " hostile and mocking," particularly those from Mr. Senter, who is also a veteran. Dkt. 98, at 5. Plaintiff stated during the interview that he worked for the county " on and off" due to his military service. Dkt. 98, at 6.

No one on the panel mentioned Plaintiff's military service in the post interview discussions. Dkts. 110, at 6; 111, at 7; 112, at 7; 115, at 6. Plaintiff had a total score of 102.5 and Ms. Blackwood had a score of 124.0. Id. Based on the panel's scores, Ms. Blackwood was promoted effective May 1, 2013. Dkt. 114, at 6. Ms. Blackwood's radio call sign did not change -- it remained " FM4." Dkt. 109, at 4.

5. Post DFM 2 Interview Events

Plaintiff was removed from the " investigative call out" rotation on April 25, 2013. Dkt. 25-1, at 3. Plaintiff assumed the DFM 1 duties that Ms. Blackwood had been performing. Dkt. 34, at 13. Defendant explains that Plaintiff was not given any more investigative work because of the amount of DFM 1 work that existed. Dkt. 34, at 13. According to Defendants, if Plaintiff had continued to do investigations, the ...


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