Facts

Plaintiff, a fourteen-year veteran firefighter, alleged that he was wrongfully terminated by the City of Alameda on the ground that he was psychologically incapable of performing as a member of a team with the City of Alameda Fire Department. Plaintiff filed a single cause of action for discriminatory discharge under the Fair Employment and Housing Act (FEHA), alleging he was discriminated against based on a perceived psychological disability.

PLAINTIFF'S CONTENTIONS:
Plaintiff had a sterling career as a fire fighter with the City of Alameda, and the defense was unable to cite a single instance wherein he was unable to execute his duties as a fire fighter or EMT. Instead, the City relied on unverified complaints made by co-workers regarding alleged "erratic behavior" by plaintiff in justifying a fitness for duty evaluation. The co-workers' complaints were fabricated and part of the retaliation suffered by plaintiff for previously reporting the misconduct of a fellow fire fighter to the police.

The City knew it placed plaintiff into a potentially hostile work environment because he had filed the police report. The City ignored plaintiff's complaints of retaliation, including ostracism by fellow fire fighters, destruction of his safety equipment, and threats to his physical safety. Defendant argued one of the primary bases for terminating plaintiff was a fitness for duty evaluation performed by defendant's psychologist, Dr. Diana Everstine. The report deemed him psychologically incapable of performing as a member of a team with the City of Alameda Fire Department. Defendant relied on this evaluation despite reports from five other mental health experts indicating plaintiff was fit for duty and should be returned to work. Also critical to the case was the City's refusal to accept plaintiff's pre-termination offer for an independent medical examination.

DEFENDANT'S CONTENTIONS:
The City denies Plaintiff's contentions referenced above. The City contends that its termination of Plaintiff was appropriate because: (i) numerous employees personally observed Plaintiff engaging in erratic behavior (including getting dressed for work in his car; acting depressed; having mood swings; staring at other firefighters; calling in sick 160 hours during a four and a half month time period; sleeping at work in the morning; pacing the hallways; tape recording conversations; crying; and showing up unannounced at Chiefs' homes); (ii) Plaintiff indicated that he was interested in obtaining an industrial disability retirement if he could receive his full salary; (iii) two outside psychologists separately concluded that Plaintiff was psychologically unable to work; (iv) one of Plaintiff's treating therapists repeatedly informed the City's Employee Assistance Program provider that Plaintiff was unable to work; (v) the most recent performance evaluation of Plaintiff's direct supervisor indicated that Plaintiff had excessive problems with emotional self control and interpersonal behavior; and (vi) Plaintiff failed to obtain any treatment or counseling after the second outside psychologist concluded that he was psychologically unable to work.

In addition, the City contends that the opinions of Plaintiff's paid mental health personnel were not persuasive because: (i) they had not reviewed any of the documents reflecting Plaintiff's erratic workplace behavior; (ii) they had no experience conducting a fitness for duty evaluation of an active firefighter; (iii) they had not conducted any psychological testing of the Plaintiff; (iv) they had no knowledge of the first outside psychologist's conclusion that Plaintiff was unable to work; (v) they had not reviewed the written report from the second outside psychologist who also concluded that Plaintiff was psychologically unable to work; (vi) they had not reviewed the psychological test results regarding the Plaintiff; and (vii) they had no knowledge of Plaintiff's erratic workplace behavior.

Settlement Discussions

Plaintiff's final settlement demand was $855,000. Defendant offered, inclusive of fees and costs, $650,000 30 days prior to trial and $750,000 during trial.

Result

Jury verdict for plaintiff in the amount of $680,182.

Other Information

The parties participated in 2 mediations. Plaintiff has filed a costs memorandum totaling $130,000 and will file a motion for attorney fees under FEHA. FILING DATE: Aug. 11, 2006.

Deliberation

five days

Poll

9-3

Length

12 days