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Former lifeguard James Murphy has lost his bid for a new trial in a case previously decided against him in which he sued the City of San Diego and former supervisor Edward Harris.

A former seasonal lifeguard for several years, Murphy was hired into a permanent year-round position in January 2008, with the first year of his employment considered a probationary period. His first assignment was to a rocky area near La Jolla Cove, where Harris was his assigned supervisor.

In a written performance evaluation dated March 9, 2008, Harris describes two incidents that occurred on the last day of Murphy’s evaluation period. In one, two scuba divers were rescued from a rip current by another lifeguard. Murphy was away from his station working out, which is permissible as long as lifeguards are available in case of an emergency. Murphy, however, did not respond to radio calls, sirens from responding vehicles, or the lowering of a flag at the lifeguard station, signaling an emergency.

Another incident the same day involved a kayaker entering La Jolla Cove and becoming stuck on a sharp and potentially dangerous rock patch known as Razor Reef. Harris, arriving on the scene, observed the kayak heading toward the reef and believed Murphy should have already been preparing to swim out and make a rescue, telling him something to the effect of, “You should already be gone on that.”

“On what?” Murphy responded, acknowledging he was unaware of the situation occurring on his watch. On Harris’s command, another lifeguard began to paddle out, but by this time the kayaker had managed to free himself from the rocks.

Noting two other incidents in January when Murphy was unreachable by radio while on duty, Harris’s performance report stated that Murphy “performed at a below standard level when it comes to situational awareness.”

In early April, Sgt. James Gartland became Murphy’s supervisor. On May 22, he sent an internal memo recommending Murphy be terminated for failing his probation. In addition to mentioning the incidents already reported by Harris, the memo outlined several more involving difficulty reaching Murphy by radio, suspected instances of untruthfulness by Murphy, and his missing a scheduled meeting with supervisors, as well as two more incidents in the water that illustrated Murphy’s apparently substandard observation abilities.

Murphy was finally removed from water observation after a May 16 incident in which two other lifeguards were completing a rescue at Shell Beach when a pair of snorkelers in an adjacent area required assistance. Murphy failed to notice them, and after Gartland called for assistance, one of the lifeguards who had just returned from the previous rescue swam back out to assist the snorkelers.

After being dismissed on May 29, Murphy filed suit, alleging discrimination and harassment, retaliation, and defamation. A jury found against him on all three counts.

The case made by Murphy in requesting a new trial was an allegation that Harris has untruthfully caused the previous jury to believe that Murphy was a liar and that he had “missed one or more rescues.” He argued that, since the kayaker he failed to observe was able to free himself without assistance, and that the snorkelers he also did not see were assisted by another lifeguard, neither should count as missed rescues.

The jury, however, responded that Harris did not “fail to use reasonable care to determine the truth or falsity” of his statements before putting forth the allegations, both of which were backed up by evidence as presented during trial.

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Comments

SurfPuppy619 April 13, 2012 @ 12:42 p.m.

Only in gov employment could a probationary employee with less than 1 year on the job take a case to court for discrimination.

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bcbrewster April 13, 2012 @ 5 p.m.

Lawsuits alleging discrimination and harassment, retaliation, and defamation are surprisingly common in private, as well as public employment. More often, the employers settle to avoid the hassle and risk of an adverse judgment. I applaud the principled stand of the City of San Diego, the City Attorney and the Lifeguard Service to avoid sweeping this under the rug and to instead take the time and substantial resources to make a point: If you don't meet our standards, you can't work here. I would note that Sgt. Harris is a union representative who works hard to represent his members, but he carefully separated his responsibilities here.

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SurfPuppy619 April 13, 2012 @ 5:33 p.m.

This comment was removed by the site staff for violation of the usage agreement.

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Twister April 14, 2012 @ 7:15 a.m.

That's how government lawyers make money wasting our money. Risk-free resumé-builders, if not outright kickbacks. Kickbacks don't have to be immediate to be kickbacks, and they don't have to be in manila envelopes slipped under the table. There are frivolous lawsuits and frivolous defenses. But that doesn't mean that legitimate cases should not be pursued, as apparently was the case here.

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SurfPuppy619 April 14, 2012 @ 9:14 p.m.

Hmmm, what rule did I violate? All I did was make a comparison to gov and private sector employment lawsuits relating to Brewtsers comment-and his comment was not only deleted, but he entire account and posting is gone?

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Reader Staff April 15, 2012 @ 4:36 p.m.

Divulging real names, phone numbers, addresses, occupations, or other information that can be used to identify or locate other site users is strictly prohibited.

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SurfPuppy619 April 15, 2012 @ 7:41 p.m.

Fine. I have no problem with that, but then I think that the user I responded to should not have used his real name as his account, one can only assume that when one is using their real name for an account, not a sock puppet, that they are fine with their identity being known, like ED Harris below.

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Edharris April 14, 2012 @ 12:31 p.m.

S.D.Lifeguards make 4-6000 rescues per year, over 95% if those rescues are observed. Less than 2% are 911 calls. In addition to the water rescues, we perform numerous cliff rescues, river rescues, boat rescues, medical aids, enforcement, dive investigation/recovery, and marine fire fighting. Guards do not have the fabled 5 minutes often cited by other safety services. Guards must observe and react to incidents quickly and appropriately, failing to do so results in death. Having seen true tragedy, Lifeguards as a group are intolerant of substandard perfomance. The courts upheld our standards in this case and we are therefore vindicated. The same arguments used in this case have failed us in others. Some attorneys use the City as an ATM, they attack the very standards that keep beachgoers safe. They often confuse jurors with accusations of racism and sexism, this was not possible in the Murphy case due to the fact that he is a white male. The San Diego Lifeguards have been under attack for years. In addition to guarding the beaches, we must guard our budget against fiscal cuts and guard our job duties from the very department we are part of. Help us in our fight. Support Lifeguards by changing how San Diego does business. Vote for Nathan Fletcher. Thanks to the Reader for vindication. The UT should learn that there are two sides to each story.

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SurfPuppy619 April 14, 2012 @ 9:17 p.m.

Hey Ed, are you not receiving a 3%@50 public safety pension? That would be a place to start with budget priorities.

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Edharris April 15, 2012 @ 9:40 p.m.

SurfPup,

Yes. I will recieve 3% times 19, my permanent years of service, at 50. I will have 26 total years of service. Lifeguards are not put through an extensive accademy once hired like other safety services. Due to the nature of the job, Lifeguards work an average of 7 years as seasonal guards. During this time, they receive no benefits and the time does not go towards pension. I will receive 57% of my base pay. As you know, Lifeguards agreed to change to 3% at 55. One thing most people do not know is that very few Lifeguards make it to retirement. From 1970 to 79, one Lifeguard made it to normal retirement. He was the chief. Five went out due to injury. 1980-89, two made it to normal retirement; one chief and one Lt. Ten went out due to injury. From 1990-99, eighteen Lifeguards went out on injury, one died in a river rescue training accident, and none made it to a normal retirement. I do not have the current numbers for 2000-09, but I can tell you that it was the first decade that we saw field guards make it to a normal retirement. It is my belief that less than 20 full time guards have made it to a normal retirement at age 50 in the last forty years. I do not think we are a big drain on the budget. Not sure what the odds are of making it to 55. If the City did not underfund the pension system to build stadiums and hold the republican convention, there would be no pension problem. Join me on a tour and I think you will appreciate how much taxpayers get for the Lifeguard dollar.

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Marjorierigny Aug. 6, 2013 @ 3:24 p.m.

Look at Simon, after he failed his probation period miserably, he went crawling to the san diego fire department and they hired him. Good for you Simon, you are a bird brain, but a bird brain with a good paying job. Here's the facts. Ed Harris treats women lifeguards like crap, and he will be a terrible city council person. The City of San Diego lifeguards DO NOT perform 4,000 to 6,000 rescues a year, lifeguards like Ed Harris and other permanent lifeguards talk seasonal lifeguards in to being deceitful by filling out more incident and rescue reports, and they tell the seasonal lifeguards this paperwork is how they get payed, and how they get equipment. Brewster is no longer with the lifeguard service because he helped one of his coke whore girlfriends evade police, after she got in a car accident high on coke, and because John Bahl and a lot of the permanent lifeguards did not like Brewster. Brewster resigned because he wants what's best for the reputation of the lifeguard service. Brewster can't swim and sucks as a lifeguard, but he loves life guarding and cocaine. Many of the female lifeguards are afraid to stand up for their rights, because the lifeguard service is ran by a gang of pinhead boys, and they are afraid they will not have a job if they complain about the unacceptable working conditions.The females that do have the courage to sue the city usually win, and they win because the city allows this discrimination and unacceptable behavior to continue within the lifeguard service. There are some very good lifeguard at the City of San Diego lifeguard service, but most of them suck. They aren't water people they are just wannabe cops. The city of San Diego is truly a disgrace, if you want to know who the real heros are look at the state lifeguards that do without all the fancy equipment, and huge salaries, and They get the job done with a fraction of the resources city of San Diego lifeguards have.

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