Facts

Plaintiff Duamel Vellon was hired as Department of Water and Power's retirement plan manager in February 2001. He managed a staff of approximately 40 employees in the operation of DWP's retirement, disability and death benefits plan.

Two assistant plan managers, E.S. and S.B. reported directly to plaintiff. In the summer of 2003, the plaintiff terminated E.S. who was a probationary employee. E.S. appealed her termination as improper. In October, S.B. filed a complaint against the plaintiff with DWP's Equal Employment Opportunity Services office alleging gender discrimination and retaliation.

An outside investigator, attorney Glen Kraemer, was hired to investigate S.B.'s discrimination claim, as well as the claims against the plaintiff by E.S. and other Retirement Plan employees. Kraemer was also to look into plaintiff's complaints against upper management.

The plaintiff was informed of the investigation on Oct. 30, 2003. Two days later, the plaintiff sent a letter to DWP's general manager, David Wiggs, alleging that he was being subjected to harassment and disparate treatment and accusing Wiggs of creating a "lynching environment." The following month, the plaintiff sent a letter to the DWP Board of Commissioners complaining that he was being subjected to harassment and a "witch hunt investigation."

In February 2004, the plaintiff was put on paid administrative leave pending the completion of the Kraemer investigation. Kraemer completed his investigative report in October 2004. It concluded that plaintiff had abused Retirement Officer personnel through humiliating and intimidating management practices; mishandled the Retirement Board policy regarding the early release of pension checks and then made misleading statements to the Board about it and attempted to scapegoat a subordinate employee; had intentionally violated and/or recklessly disregarded the Brown Act provisions prohibiting non-public deliberation of Retirement Board Business; violated the privacy rights of subordinate employees; and violated DWP time reporting and attendance policies. The report also concluded that plaintiff had not discriminated against S.B. based on gender or retaliated against her for complaining of discrimination. In October 2004, the plaintiff was served with a Notice of Proposed Discharge based on the findings in the Kraemer report. In November 2004, the discharge was finalized.

The plaintiff brought this action against the defendant based on racial discrimination, violation of Government Code section 12940(k)(failure to prevent discrimination), retaliation, wrongful termination in violation of public policy, intentional infliction of emotional distress, and violation of right to privacy.

PLAINTIFF'S CONTENTIONS:
The plaintiff asserted that he was a tough manager but contended that the management practices which Kraemer found to be abusive did not justify his termination and were used as a pretext for terminating him on the basis of his color and ethnicity, and for his complaints of discrimination. He contended that the other charges of misconduct against him were also pretexts for racial discrimination and retaliation.

The plaintiff also contended that he had not mishandled the Retirement Board policy concerning the early release of checks, which resulted in retirees a 13 monthly pension check in 2003 (rather than the normal 12) and inflated retiree annual income for that year. He contended that Retirement Board members were aware that the policy would result in 13 payments in the initial year it was implemented. He also denied "scapegoating" a subordinate employee.

The plaintiff contended that the Brown Act was difficult to understand, that it could only be violated by Board members (which he was not) and that others had violated the Act as well.

The charge that plaintiff had violated the privacy rights of subordinate employees was based in part on plaintiff's involvement with the disability claim of a Retirement Plan employee, R.A. One of plaintiff's responsibilities as retirement plan manager was to oversee disability claims and see that Plan funds were not used to pay on fraudulent claims. The plaintiff contended that it was therefore appropriate for him to be involved in R.A.'s disability claim.

The charge that plaintiff violated DWP reporting and attendance policies was based, in part, on plaintiff's "telecommuting," by phone and email, while on trips to his home in Phoenix and to Puerto Rico. The plaintiff claimed that the elected president of the Retirement Plan's Board of Administration, Javier Romero, was his supervisor, rather than the general manager of DWP. The plaintiff also claimed he notified Romero whenever he was going to be out of the Retirement Plan office, and that Romero and the Board vice president, Lily Calvache, knew when he was working remotely from outside of the office and approved of this practice.

The plaintiff further contended that he was placed on administrative leave in early February 2004 in retaliation for letters he sent to the general manager in November 2003, and to the DWP Board of Commissioners in December 2003, in which he complained of discrimination and harassment.

The plaintiff finally claimed that he has been unable to find employment since his termination, although he has attempted to do so.

DEFENDANT'S CONTENTIONS:
The defendant contended that shortly after the plaintiff commenced employment subordinate employees began complaining about abusive managerial conduct on the part of the plaintiff. Subordinate employees complained informally to counselors for the DWP's Employment Assistance Program, the Equal Employment Opportunity Services office, the City Attorney's office and the leaders of an organization of retired DWP employees. The plaintiff was notified of these complaints but the abusive conduct did not cease. A number of employees transferred out of the Retirement Plan office because of plaintiff's management practices.

In December 2003, the plaintiff learned that a Retirement Plan employee who was out on a stress-related disability leave, R.A., told a psychologist that his stress was caused, in part, by excessive criticism and pressure on him by plaintiff. After reading the psychologist's report, instead of recusing himself from involvement in R.A.'s disability claim based on an obvious conflict of interest, the plaintiff aggressively lobbied DWP's chief medical officer to reverse his finding of disability based on plaintiff's own assertions that R.A. was lying.

In January 2003, the plaintiff was counseled regarding the complaints about his treatment of subordinate employees and related concerns about turnover and potential liability. The following month, the plaintiff alleged in a memo that he was being subjected to "an institutionalized policy of harassment and abuse by some members of management" and suggested that this might be related to his Puerto Rican ethnicity. In response to this memorandum, two assistant general managers met with plaintiff and ask him to specify his concerns. The plaintiff refused to do so.

Although he was told when negotiating the terms of his employment that, "telecommuting is not an option," the plaintiff was frequently out of the retirement plan office, including extended trips to his home in Arizona and to Puerto Rico. One trip, in the summer of 2003, lasted approximately five weeks. The plaintiff's timesheets reflected that he was working his regular hours at these times and he was paid accordingly. He did not report any of this time as vacation time. Although he required paperwork for any leaves by subordinate employees, he never submitted paperwork regarding his own leaves.

Retirement Board president Romero is a Water Service Supervisor who was elected to represent employees from the DWP's Water System on the Retirement Board. The Board's vice president, Calvache, was a clerk typist elected to represent employees in the administrative division. Neither had any independent authority to act outside of Retirement Board meetings in the absence of a resolution passed by the Board authorizing such action. Romero had no authority to approve the plaintiff's work hours.

During plaintiff's five-week absence in the summer of 2003, his APMs, E.S. and S.B., ran the Retirement office with almost no contact from plaintiff. When he returned, the plaintiff informed E.S. that he was going to terminate her and then harassed her to the point that she went out on a stress leave. E.S. subsequently appealed her termination on probation as improper. In October, S.B. filed a complaint against the plaintiff with EEOS, alleging gender discrimination and retaliation.

Immediately after being informed that an outside investigator (Kraemer) had been hired to investigate the claims of Retirement plan employees, the plaintiff sent a letter to the general manager, Wiggs, alleging that he was being subjected to harassment and disparate treatment and accusing Wiggs of creating a "lynching environment". The following month, he sent a letter to the DWP Board of Commissioners complaining that he was being subjected to harassment and a "witch hunt" investigation. The plaintiff never provided by any details regarding these allegations and did not file a discrimination complaint with EEOS or any other agency.

Over the next several months, Kraemer interviewed the plaintiff and approximately 20 other witnesses who had worked in or with the Retirement Office during the plaintiff's tenure as plan manager. As the investigation progressed additional allegations about the plaintiff were raised by interviewees, including claims about his frequent absences, violations of employee privacy and disregard for the requirements of the Brown Act.

Another major matter, which emerged during the pendency of Kraemer's investigation was plaintiff's handling of a new policy regarding the timing of pension payments to retirees. Prior to 2003, retirees received pension payments on the first day of each month. If the first day of the month fell on a weekend or holiday, the retirees would have to wait until the next business day (sometimes several days later) to receive their checks. In November 2002, the Retirement Board passed a resolution which provided that if the first of the month fell on a weekend or holiday, checks would be issued on the last business day prior to the first of the month. Retirement Plan staff prepared the resolution to which a payment schedule for 2003 was attached. The schedule showed 12 payments dates. What it did not show was that, under the old payment policy, the pension payment for December 2002 would not be paid until after the New Year's holiday, i.e., in January 2003, and that therefore implementation of the new policy would cause there to be 13 monthly pension payments issued to retirees in 2003.

Throughout 2003, subordinate employees had pointed out to plaintiff that 13 pension payments in one year would result in artificially inflating the annual income of retirees and caused them significant adverse tax consequences and that this should be brought to the attention of the Retirement Board. If plaintiff had done so, the Board could have easily avoided the 13-payments problem by delaying the December 2003 payment until the first business day in January 2004. Board members were not aware of the 13-payments problem until retirees began complaining in early January 2004, after the 13th payment was made. The Board then passed a resolution to require plaintiff to answer specified questions as to when he knew that there would be 13 payments and whey he did not bring the matter to the Board's attention.

In response to the Board's action, the plaintiff sent an email to a subordinate supervisor, C.W., who was out on a medical leave, in which he accused C.W. of causing the 13-payments problem and demanded that C.W. answer the questions, which had been posed to plaintiff. On Feb. 10, 2004, the plaintiff presented evasive answers to the Board's questions, suggesting that plaintiff never realized that there would be 13 payments in 2003 until December that year and attempting to place the blame for the entire matter on C.W. Investigator Kraemer was asked to look into the plaintiff's handling of this matter as part of his ongoing investigation of plaintiff's management practices.

By this time, the plaintiff's accusatory email to C.W. had been forwarded to the City Attorney's Office. The City Attorneys advised the acting general manager, Frank Salas, that they were concerned that plaintiff's ongoing presence in the Retirement Office would intimidate witnesses in the ongoing investigation by Kraemer and recommended that plaintiff should be put on paid administrative leave pending the outcome of the investigation. Salas agreed and plaintiff was placed on leave. The plaintiff took numerous documents from his office when he left, including confidential medical records of R.A. and employment records regarding subordinate employees. When Salas went down to the Retirement Office to advise the employees that plaintiff had been placed on leave, they burst into spontaneous applause and some of them cried.

While Kraemer found numerous acts of misconduct and mismanagement by plaintiff, he also found in favor of plaintiff as to S.B.'s gender discrimination and retaliation claims. As to plaintiff's complaints of discrimination, the report noted that plaintiff had refused to provide details about them other than to assert that Board member Calvache had told him that a former APM had made a racial slur about the plaintiff. When interviewed, Calvache denied this, Attached to Kraemer's report were approximately 400 pages of documentation supporting his conclusions.

By October 2004, DWP had a new acting general manager, Enrique Martinez. After reviewing Kraemer's report and discussing the matter with the City Attorney's office, Martinez signed a Notice of Proposed Discharged, which was served on plaintiff. The plaintiff was given a time frame for responding to the findings. When the plaintiff did not do so, the discharge was finalized. The plaintiff initially sought to appeal the decision to the Civil Service Commission but withdrew the appeal about a month later.

The plaintiff has not done much to look for a new position since his termination. He is collecting a pension from a previous position. An accident in November 2004 and serious illness in 2007-2008, neither related to his claims against DWP, rendered him unable to work for significant periods of time. When in good health, he spent a lot of time training for and running in annual half-marathon races.

Settlement Discussions

The plaintiff demanded $1.3 million structured settlement. The defendant offered a waiver of costs.

Result

Defense.

Other Information

As an out-of-state litigant, the plaintiff was required to post a $110,000 bond. FILING DATE: Nov. 23, 2005.

Deliberation

five hours

Poll

12-0 (race discrimination), 11-1 (retaliation)