Facts

Plaintiff Clark Walker Jr., 54, was passed over for an assistant chief position with the Contra Costa County Fire Department in 2000 and 2003. He retired in July 2005, while this suit was pending. He had been with the department since 1972. Over the years he received promotions, ultimately becoming a battalion chief. Walker, who is black, sued the fire department in 1985 and settled, winning the promotion to battalion chief in 1989. He then applied for the assistant fire chief position in 2000 and then in 2003.

In 2003, Walker sued Contra Costra County and Chief Keith Richter, alleging retaliation, racial discrimination and violation of the Title VII Civil Rights Act of 1964.

Walker claimed that that there has never been a woman or a minority in any of the most senior positions of the fire department. He called the department "one of the last bastions of white male supremacy within the county." He said that the position of assistant fire chief is traditionally filled with a battalion chief, and that he received a ranking of "well qualified" for the position, while his competitors received only a "qualified" ranking. He said was one of three final candidates for two assistant chief positions. He said he was the only "in house" candidate and had the most experience. He said he was passed over for two white males from outside of the state with less experience. He said he was retaliated against because he had complained about discrimination within the department.

In 2005, he was issued a letter of reprimand for leaving the scene of an emergency incident, where he was the incident commander, so he could appear on a public information program. At the time he left the scene, a fire engine had just rolled over on a steep grassy hill at the scene of a 20-acre grass fire, trapping two firefighters inside the wreckage at about 200 yards from an active fire line.

In 2005, he filed a second action, again naming Contra Costa County and Richter as defendants, and adding Assistant Fire Chief Richard Grace as an additional defendant, alleging the that the letter of reprimand was issued because of his race and/or in retaliation for his other claims of discrimination. The cases were consolidated for all purposes and tried together.

At trial, plaintiff contended that Richter and the County had discriminated against him in the 2000 and 2003 promotion rounds because of his race in retaliation for his vocal and public opposition to what he perceived as discriminatory practices in the fire department and his own claims of discrimination.

Defendants contended that neither race nor retaliatory intent played any part in any of the decisions of which plaintiff complained. With respect to the 2003 promotional round (plaintiff's claim as to the 2000 round was barred by the statute of limitations, and was presented for evidentiary purposes only), evidence was presented that Fire Chief Richter had in 1999 obtained permission to exempt the Assistant Chief position from civil service, and in 2002, obtained permission to allow candidates from outside the fire department to apply.

Plaintiff contended that both changes were made specifically to defeat his candidacy. In 2003, an outside executive recruiter was used to find candidates two fill the two Assistant Chief (second in command) positions for the department.

After the field of applicants had been narrowed to eight, an interview panel of three nondepartmental managers was convened, and that panel further narrowed the field to five candidates, including plaintiff. Those five were submitted to Chief Richter as qualified for the Assistant Chief position. Chief Richter then convened a second panel, formed from senior management staff of the department, to hold a second interview. At the conclusion of the second interview, two Caucasian candidates were ranked higher than plaintiff, who was third, and the other two candidates were out of contention. The two other candidates, both Caucasian and from out of state, were offered the positions, and accepted.

Walker was not designated the most qualified candidate. The panelists were unanimous in placing Walker third of the top three candidates in terms of their recommendation for hire. Other extremely well qualified female candidates and very highly qualified minority candidates from other fire districts were recruited by Richter and that the executive search firm was specifically requested to make efforts to do a broad and diverse recruitment process for the assistant chief position.

In making the hiring decision, Richter testified that he hired the people whom he felt were the most qualified and followed the recommendations of the panels. With respect to the reprimand claim in C 05 2800, plaintiff presented evidence that his departure from the scene caused no adverse consequence to the rescue of the trapped firefighters, and that his command decisions were appropriate.

Expert retired fire chief and retired State fire marshal Colemn opined that leaving the scene under the circumstances amounted to neglect of duty, regardless of the actual consequences, and opined that the reprimand was appropriate. Chief Richter and Chief Grace testified that they believed the decision was a neglect of duty, and that in addition, plaintiff had failed to transfer command by face to face conference with the incoming commander, even though there was no reason he could not have.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended the adverse employment decisions by Richter and Grace were motivated by his race and to retaliate against him for his protected advocacy against racial discrimination and his protected claims of racial discrimination. Plaintiff contended that the decisions to exempt the Assistant Chief position, recruit from outside departments, and to use a second employment panel, were all taken to defeat

DEFENDANT'S CONTENTIONS:
Defendants contended that their decisions were based on the qualifications of candidates for promotion, and on plaintiff's misconduct at the scene of the grass fire, and that their decisions were not based on the race of any candidate, plaintiff's race, or on any of plaintiff's extensive protected activities.

Settlement Discussions

Two settlement conferences. Lowest demand was $2 million; no offer.

Damages

Plaintiff sought $3.8 million from the jury in compensatory and emotional distress damages.

Injuries

Walker sought asked for $648,000 in past wage loss and future pension losses, and $3.3 million in emotional distress damages. The bulk of plaintiff's lost wage claim was based on his contention that his annual pension would have been over $200,000 per year if he had been promoted in 2003, but was only $187,000 per year as the result of the decision not to promote him.

Result

Defense verdict on all claims. Jury poll demanded by plaintiff, polled 7-0. Special verdict forms used; jury found no discrimination, no retaliation on all plaintiff's claims. The jury found that the defendants did not discriminate against Walker, and did not retaliate against him or violate the Title VII Civil Rights Act of 1964. It also found that neither Richter nor Grace had discriminated against Walker or retaliated against him.

Other Information

This case was tried by Bernard Knapp, Deputy County Counsel, without assistance in the courtroom. Following the trial, Mr. Knapp accepted a position as Legal Advisor to the Commissioners with the California Commission on Judicial Performance.

Deliberation

six hours

Poll

7-0 for defense

Length

17 days