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Moreno v. County of San Joaquin2/4/2002
tified she once observed Moreno and Fruend both grabbing and touching each other in inappropriate areas, and told them to stop.
Sometime in 1993 or 1994, Moreno complained to a fellow counselor about a poster depicting Mexicans in a stereotypical way. Two allegedly discriminatory situations involved Moreno's supervisors. In 1991, one former supervisor told Moreno to "pull some weeds" after he was hired full time at Juvenile Hall. Another former supervisor called Moreno a "mother fucker" in front of minors. Moreno voiced complaints about the sexual harassment only. He did not receive a response to his oral complaints. He gave written notice of the alleged discrimination to his supervisor Steven McNabb.
Because Moreno believed the County was accusing him of unlawful behavior, Assistant Director of Juvenile Hall, Carolyn Contreras, encouraged Moreno to meet with Affirmative Action Officer Jess Serna. When Serna asked if Moreno wanted to file a complaint, he declined.
Moreno requested his supervisors transfer him to a new shift or home supervision. He concluded he suffered discrimination in the assignment of shifts and home supervision jobs because new employees and employees with less seniority were assigned to these jobs despite his requests for these assignments. Moreno talked with his supervisors about why he was not given a home supervision position, but nothing was done in response.
Between August 1994 and July 1995, Moreno was involved in the following three incidents at work (hereinafter "incidents of misconduct"):
(1) On August 31, 1994, Moreno did not return to work after his lunch break. We will refer to this incident as the "phone call incident." Moreno instead went home and made multiple phone calls to his supervisor, Steven Neubaum. During the first conversation, Neubaum asked Moreno if he had any weapons in the house. Moreno responded, "Weapons? I have a gun."
In his second conversation with Neubaum, Moreno stated, "I'm just frustrated with myself, you know, I don't know what I'm doing wrong. What's wrong, going on here? I'm trying and things -- I'm just frustrated." Moreno does not recall, but does not deny, saying he no longer cared about the danger of hurting himself. Also during the second conversation, Moreno told Neubaum he could become some staff's worst nightmare. Moreno states he was referring to taking legal action against his supervisor Steve Spiro. Moreno contends he said nothing during these telephone conversations to give Neubaum the idea he was going to harm himself or anyone else with a gun.
In response to these conversations, Neubaum called the police who went to Moreno's house. The police removed a gun from Moreno's possession. Later in the day, Moreno called Neubaum a third time to thank him for saving his life.
Following the phone call incident, Moreno was placed on administrative leave while the County completed an investigation. He was sent for the psychological fitness for duty examination with Dr. Hargrave. On October 3, 1994, Dr. Hargrave examined Moreno and expressed concern that an alcoholic relapse had contributed to the phone call incident. Dr. Hargrave concluded Moreno was capable of returning for duty as a Group Counselor I. Moreno's return however was conditioned on receiving treatment for alcohol abuse and on involvement in Alcoholics Anonymous.
(2) On July 7, 1995, upon reporting to work in the intake area of Juvenile Hall, Moreno was asked by his supervisor, Willie Douglas, to move his parked car (hereinafter "parking lot incident"). Douglas testified he asked Moreno to move his parked car from a restricted zone because it was blocking the
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