that Mr. Jones' and
plaintiff's jobs were "functionally equivalent." However, the presence of
someone with a similar, or even identical, job on the work force, does
not necessitate a finding that one's job has been terminated, lit may
well forebode the elimination of one of the positions, as appears to have
been the case here. Nevertheless, plaintiff's own testimony belies her
argument that she was "terminated" when Mr. Jones began work. In her
deposition testimony, Ms. Murray stated that the "biggest thing" that she
remembers not doing after Mr. Jones was hired was not going to senior
staff meetings. Murray Dep. at 79. She continued to get press calls and
to work on the agency's newsletter. Id. She did not know whether Mr.
Jones assumed any of her day-to-day responsibilities. Id. at 80.
Plaintiff was clearly continuing to work at the agency following Mr.
Jones' hiring, and at the time that the PPM was implemented by the
receiver. Thus, the Court finds that there are not genuinely disputed
facts, from which a factfinder could reasonably conclude that Ms. Murray
was terminated prior to the implementation of defendant's new personnel
policy on December 8, 1995. Accordingly, the Court grants defendant
summary judgment on plaintiff's claims that defendant violated the CMPA
and the Pearson Order.
Ms. Murray's pleadings demonstrate that, to a large extent, she bases
her legal arguments on the purported preclusive effect of the hearing
examiner's findings that Mr. Jones had been hired for a position that was
the functional equivalent of plaintiff's. Yet, it would appear that
plaintiff's reliance on these findings caused her to support the claims
that she asserts in this lawsuit in only the most cursory fashion. The
Court has endeavored to glean from plaintiff's pleadings the legal and
factual support for the claims set forth in her complaint. Yet, in
response to defendant's motion for summary judgment, it is plaintiff, and
not the Court, who has the burden of identifying genuinely disputed facts
upon which plaintiff may prevail in her lawsuit.
For the foregoing reasons, and upon careful consideration of the
parties' motions for summary judgment, the responses and replies thereto,
and the applicable statutory and case law, the Court enters summary
judgment for defendant, and against plaintiff on all of plaintiff's
claims with the exception of her Section 1981 claim. Plaintiff's Section
1983 claim is dismissed without prejudice subject to reconsideration at
such time as plaintiff is able to clearly identify legal and factual
bases for proceeding on this claim.
An appropriate Order and Judgment accompany this Memorandum Opinion.
ORDER AND JUDGMENT
Pursuant to Federal Rule of Civil Procedure 58 and for the reasons
stated by the Court in its Memorandum Opinion docketed this same day, it
ORDERED that plaintiff's motion for summary judgment  is DENIED;
and it is
FURTHER ORDERED that defendant's motion for summary judgment  is
GRANTED in part with respect to Count I (unlawful termination), Count II
(Title VII), and any claims pursuant to 42 U.S.C. § 1981, and with
respect to Count III (42 U.S.C. § 1983) against defendant in his
individual capacity; and it is
FURTHER ORDERED AND ADJUDGED that the Clerk shall enter judgment in
favor of defendant and against
plaintiffs on Count I, Count II, and any
claims pursuant to 41 U.S.C. § 1981, and shall enter final judgment
in favor of defendant in his individual capacity only on Count III; and
FURTHER ORDERED that Count III (42 U.S.C. § 1983), as asserted
against defendant in his official capacity, is dismissed without
prejudice; and it is
FURTHER ORDERED that this case shall be taken off the active calendar
of the Court.