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First Amendment News:
Ontario Sergeant Obtains 1.4 Million-Dollar
Jury Verdict Against Employer For Unlawful Retaliation
By: Michael McGill
LACKIE & DAMMEIER
Since the
proliferation of so called “whistleblower” lawsuits have seized the
headlines these past
several years, one would tend to think they are the product of newly
drafted legislation. However, for public employees, that is simply not
the case. Public employees have long been protected from retaliation by
federal law, and not just in those cases where one “blows the whistle”
on actual criminal activity. Rather, the First Amendment, as it has
been interpreted through case law, provides that public employees be
protected from retaliation when they engage in “speech” that touches
matters of “public concern.” Public employees are therefore protected
when they speak out, not just about internal improprieties, but about
any issue that affects the public at large.
One of the more egregious cases demonstrating a willful and
malicious violation of the First Amendment can be found in the case of
Steven Trujillo v. City of Ontario, Lloyd Scharf, and James Doyle,
Case No. EDCV 04-569 (SGL). In early 2003, Steven Trujillo, a sergeant
with the Ontario Police Department, participated in a lieutenant’s
promotional examination where he ranked alone in “A” band. As was
customary at Ontario, staff evaluations were then solicited for each of
the promotional candidates. Not only did Sergeant Trujillo receive the
highest staff evaluations of any lieutenant candidate, at that point in
time he was the only candidate who had received four consecutive
outstanding annual evaluations. With over 20 years on the force and
never having been disciplined, Sergeant Trujillo was considered by many
to be the department’s best field sergeant, and the top choice for
promotion to lieutenant.
However, in the summer of 2003, Sergeant Trujillo was sitting
in for his captain at an executive staff meeting conducted by then chief
of police Lloyd Scharf. At this meeting, Sergeant Trujillo discovered
that during the course of an internal affairs investigation,
investigators were monitoring the private text messages of police
department employees. Sergeant Trujillo initially thought nothing of
what he had learned, as he had naturally assumed the police department
would comply with the law in conducting their investigation. However,
that belief changed when he later discovered that the City was also
monitoring his text messages and did not have a warrant or seek
his consent.
Sergeant Trujillo’s discovery and subsequent disclosure of
the text pager monitoring led to the filing of an invasion of privacy
lawsuit by several members of the police department, including Sergeant
Trujillo. Needless to say, Sergeant Trujillo’s disclosure was not well
received, and the City thereafter set out to punish him and make an
example of him. Chief Scharf began to solicit input from his command
staff as to who should be promoted to lieutenant. In response to
Sergeant Trujillo’s name being offered as the first choice for
promotion, Chief Scharf told a lieutenant that Trujillo could not be
promoted because he was suing him. Chief Scharf went on to say that he
could not send a signal of support for Sergeant Trujillo’s
“anti-management” actions. On a separate occasion, Chief Scharf told a
captain that Sergeant Trujillo could not be promoted because he could
not trust him, because he was suing him. In December 2003 and January
2004, three promotions were made, and Sergeant Trujillo was not one of
them. Apparently, Chief Scharf had made good on his word.
As a result of Chief
Scharf’s actions, a federal lawsuit was filed on Sergeant Trujillo’s
behalf against the City of Ontario and Chief of Police Lloyd Scharf.
Discovery commenced and evidence was obtained substantiating the
damaging statements by Chief Scharf. However, rather than work towards
a reasonable compromise, the City completely denied the allegations and
continued to pour taxpayer money at a futile cause. Instead, the City
devised a scheme to vitiate the incredibly damaging statements
attributed to Chief Scharf. At Chief Scharf’s deposition, he testified
that he did not make the promotional decisions, and that he delegated
that decision-making authority to Deputy Chief James Doyle. It was the
City’s belief that since Chief Scharf purportedly did not make the
decision to promote, the harsh statements about Sergeant Trujillo could
have had no affect on Trujillo’s promotion, as Deputy Chief Doyle was
the one who made the promotional decisions.
The City hadn’t completely developed this theory in time, as
just weeks prior to Chief Scharf’s deposition, Deputy Chief Doyle had
already testified under oath numerous times that he (Doyle) had
“recommended” to Chief Scharf who to promote. In addition, Deputy Chief
Doyle never once mentioned that he was the one who had made the
promotional decisions, despite countless questions that surely would
have elicited such a response if it were in fact the case. More
importantly, Deputy Chief Doyle testified that his problem in
recommending Sergeant Trujillo for promotion was that he could not be
trusted: Sergeant Trujillo had taken confidential information (the
illegal text pager monitoring) and disclosed that information to
others. As quickly as the City thought they were getting themselves out
of a jam by attributing the promotions to Deputy Chief Doyle, they found
themselves right back in harm’s way. The lawsuit was amended to add
Doyle as a defendant.
Deputy Chief Doyle did not make many friends on the jury when
he contradicted himself by testifying in open court that he made the
promotional decisions. Deputy Chief Doyle simply could not harmonize
his court testimony with that of his deposition testimony where he
“recommended” to Chief Scharf who to promote. Moreover, even Deputy
Chief Doyle admitted that his problem with Sergeant Trujillo was his
lack of trust and institutional loyalty as a result of disclosing the
what he had learned in the staff meeting. When all was said and done, a
clear picture of unlawful retaliation had been painted.
The jury deliberated for several hours and returned a
unanimous verdict. The jury found that both Chief Scharf and
Deputy Chief Doyle retaliated against Sergeant Trujillo and failed to
promote him because Sergeant Trujillo had disclosed the text pager
monitoring and filed the invasion of privacy lawsuit. In addition, the
jury found that given the make up of the Department, Sergeant Trujillo
would likely never be promoted as a result of the disclosure and lawsuit
he filed. Sergeant Trujillo was awarded $237,811.50 in economic damages
as well as $1,000,000.00 in emotional distress damages for pain and
suffering. Finally, the jury also found that both Chief Scharf and
Deputy Chief Doyle acted maliciously and imposed punitive damages
against both defendants in the amount of $155,000.00. Aside from the
total award of $1,392,811.50, Sergeant Trujillo is most happy that his
rights have been vindicated and believes that the jury has sent a
message to members of his Department that they should remain strong in
acting on their beliefs and remain steadfast in doing what they believe
is right. Sergeant Trujillo was also very thankful to his attorneys at
Lackie & Dammeier for aggressively vindicating his rights
ABOUT THE AUTHOR: Michael A. McGill is an attorney
with the law firm of Lackie & Dammeier, and represents police
associations and officers throughout California in all labor and
employment related civil litigation.
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