Metropolitan News-Enterprise


Monday, February 22, 2010


Page 1


C.A. Upholds Reverse-Bias Award in LAFD ‘Dog Food’ Case




 A pair of white Los Angeles Fire Department captains disciplined in the wake of a black firefighter’s harassment complaint proved that they were discriminated against on the basis of race, the Court of Appeal for this district has ruled.

Div. Five Thursday affirmed a judgment awarding $1.6 million to Chris Burton and John Tohill, rejecting the city’s claim that the verdict should be thrown out for failure to establish a prima facie case in response to the city’s summary judgment motion.

Burton and Tohill claimed that pressure from higher ranks to address claims of discrimination within the department, rather than the facts, led to their suspensions.

Burton—a firefighter since 1973—was suspended for 30 days, and Tohill—who joined LAFD in 1981—for 25 days, losing about $10,000 in pay each, in connection with the highly publicized Tennie Pierce case. Both were also involuntarily transferred out of LAFD Station 5 in Westchester.

Pierce alleged that a 2004 incident, in which dog food was put in his dinner following a beach volleyball game with fellow firefighters, constituted harassment based on his race. Tohill held the rank of Captain I at the time, while his immediate superior, Burton, was a Captain II, supervising a 12-member platoon.

No Disciplinary Action

Tohill and Burton both claimed that they did not take disciplinary action in connection with the incident, preferring to handle the matter internally with an apology, because they—and Pierce, at the time—regarded it as a mere prank. They said Pierce did not treat the issue as racial or otherwise serious until he decided to seek damages, more than a month later. 

Pierce eventually accepted close to $1.5 million to resolve his claim after a $2.7 million settlement proposed by then-City Attorney Rocky Delgadillo and approved by the City Council was vetoed by the mayor in the midst of media outrage. Once the payments to the captains and the city’s legal costs in defending all of the claims are figured in, the incident figures to cost taxpayers in the vicinity of $4.5 million to $5 million.

Pierce is one of a number of Los Angeles firefighters who have won verdicts or settlements in recent years for race, gender, and/or sexual orientation discrimination. One of those awards, however, was overturned Thursday by a different appellate panel, which held that Brenda Lee’s $6.2 million judgment could not stand because she failed to exhaust administrative remedies.

Claimed Damages

In bringing their own suit, Tohill and Burton claimed that in addition to their lost pay, they had suffered injury to their careers, an undeserved reputation as racists, and emotional distress resulting in physical illness. After Los Angeles Superior Court Judge Ruth Kwan denied the city’s summary judgment motion, the case was tried to a jury, which found that the plaintiffs had been discriminated against because they are white and awarded Burton $592,000 and Tohill $1.052 million.

Justice Sandy Kriegler, in an unpublished opinion for the Court of Appeal, rejected the city’s contention that the summary judgment motion should have been granted based on the plaintiffs’ failure to establish a prima facie case. Any deficiency in the opposition to a summary judgment motion becomes irrelevant on appeal from a judgment granted after a full trial on the merits, he explained.

The city, he noted, did not argue that the verdict lacked support in substantial evidence.

The justice went on to conclude that the verdict was not “so excessive as to shock the conscience.” 

He explained:

“Plaintiffs were dedicated, long-term members of LAFD.  Tohill, whose dream since boyhood had been to be a firefighter, lost his reputation and entered an early retirement program.  Burton felt humiliated and betrayed by the suspension and the failure to conduct an investigation which would have cleared him of knowledge or participation in the incident.  Both plaintiffs suffered physical symptoms as a result of the suspensions.

“The question is not whether this court would have decided the factual issues differently or awarded the same damages as the trier of fact. The extent of plaintiffs’ suffering and the amount of money necessary to compensate them for it were questions for the jurors, who observed plaintiffs at trial and heard all the evidence.  Given the evidence and the inferences from the record before us, we cannot say as a matter of law that the awards for past and future noneconomic loss are so grossly excessive as to shock our sense of justice and give rise to a presumption the jury was influenced by passion or prejudice.”

Gerald M. Serlin of Benedon & Serlin, an attorney for the plaintiffs, said the verdict was deserved in light of the trashing of his clients’ reputations. “This opinion lays out a very different story than in the popular press,” he told the MetNews.

Edward P. Zappia of The Zappia Law Firm, who represented the city, was unavailable Friday for comment.

The case is Burton v. City of Los Angeles, B208451.


Copyright 2010, Metropolitan News Company