Thursday, October 16, 2014
C.A. Upholds $1 Million Verdict in Retaliation Suit Against LAFD
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district has upheld a $1 million verdict in a whistleblower retaliation suit brought against the City of Los Angeles by the former head of the fire department’s Arson and Counter-Terrorism Section.
Div. Seven held Tuesday, in an unpublished opinion by Justice Laurie Zelon, that substantial evidence supported John Miller’s claim that he was removed from his prestigious post because he advised his superiors of conduct by arson investigators that Miller reasonably believed to be unlawful.
Miller and Capt. Michael Rueda filed suit in July 2009, saying they were “detailed”—temporarily reassigned without change of rank or pay—out of the department’s Arson Counter-Terrorism Section after disclosing “violations of state or federal statutes” by members of the unit.
The two were detailed in September 2008 and returned to the section in February 2009. But Miller was permanently transferred to a battalion commander’s position in Woodland Hills in November 2009, a move he alleged was made to retaliate both for his earlier whistleblowing and his filing of the lawsuit.
While both positions are at the command level, he alleged, the arson post is especially prestigious; members of the section are classified as peace officers and are the only LAFD members authorized to carry guns on duty. He also lost a 5.5 percent pay premium and his department vehicle, and had to work a less desirable schedule, he alleged.
A Los Angeles Superior Court jury found by special verdict that Miller had reported what he reasonably believed to be unlawful conduct, that he suffered an adverse employment action as a result, and that the city failed to prove by clear and convincing evidence that it had legitimate reasons for the adverse employment action.
Jurors awarded Miller more than $993,000 in damages, including $550,000 in past and future non-economic losses, for violation of Labor Code §1102.5, the whistleblower statute. His co-plaintiff, Rueda, had his claims rejected by the jury.
On appeal, the city conceded that Miller made a protected report of unlawful activity when he complained that an arson investigator under his command covertly recorded a confidential lineup. And Zelon said there was plenty of evidence that he reported other actions—including failures to properly collect and retain evidence, failure to respond to the scenes of possible arsons or to follow up with witnesses, and failure to arrest suspects—that he reasonably believed to be criminal.
The city, however, contended there was insufficient evidence that the transfer constituted an adverse employment action, or that it was retaliatory.
Zelon, however, said that Miller suffered significant immediate and long-term detriment as a result of the transfer, even though he kept his rank.
Besides losing his salary bonus and other economic benefits when he was shifted from the arson section to platoon duty, “Miller’s transfer materially affected his job performance and opportunities for advancement in his career,” the justice wrote, as he was shifted from “one of the highest profile positions in the Fire Department and…a solid platform for advancement within the organization” to a post “which is neither a special duty assignment nor a highly coveted position.”
There was also substantial evidence of retaliatory motive on the part of the department, Zelon said, rejecting the city’s claim that Miller was detailed because of concern for his safety. Although former Chief Douglas Barry testified that he was concerned about Miller’s safety after a number of the section’s investigators complained about the commander’s assessment of their work, there was substantial circumstantial evidence that this was “a mere pretext for retaliation,” the justice said.
She noted that neither Barry nor Assistant Chief Ralph Terrazas, to whom Miller reported the alleged misconduct, had discussed any safety issues with Miller; that the department’s outside consultants on workplace violence had conducted an assessment and recommended against Miller’s removal as head of the section; that the department had stripped Miller of his firearm and ballistic vest when he was detailed, suggesting it did not believe he was at risk; and that after Miller was detailed, the department did not return him to his position until two months after the consultants submitted their report.
Zelon went on to say that the retaliation finding in favor of Miller was not inconsistent with the finding that Rueda was not retaliated against. The evidence as to the two plaintiffs differed, the justice noted, and the jury could have found that Rueda was transferred out of legitimate concern for his security, since he—unlike Miller—had expressed fears in that regard.
Miller was represented on appeal by Gregory W. Smith, Christopher Brizzolara, Douglas G. Benedon, and Gerald M. Serlin. Deputy City Attorney Paul L. Winnemore argued for the defendant.
The case is Miller v. City of Los Angeles, B245514.
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