Facts

Plaintiff, Frank Lima is a Captain II employed by the Los Angeles Fire Department. As part of his duties, he is required to train firefighters under his supervision. On June 19, 2004, while working an overtime day, Captain Lima conducted a training drill with four firefighters which required them to don full turnouts while being connected to a breathing apparatus. Two teams of two members performed a timed circuit drill wherein they threw a 35-foot ladder, cut metal window bars with a rotary saw, climbed a ladder while pulling up 100 feet of hose, and other tasks. At the outset of the ladder drill, Kelley, a female fire fighter, struggled with the ladder. Lima stopped the safety team from rendering her aid. After the drill, Kelley claimed that Lima singled her and stopped safety members from rendering her aid when it was apparent that she was could not get the ladder up. An initial investigation was conducted resulting in counseling of Lima regarding the practicality of the drill, his use of protective equipment and the safety practices he employed. The first investigation cleared Lima of wrongdoing.

A further investigation was conducted after the LAFD received a third party harassment EEO complaint lodged against Lima for the drilling incident, his use of the “Humiliator drill” and past complaints about Lima’s over drilling. The second investigation discovered new information and resulted in issuance of a reprimand to which Lima filed a non-concurrence.

The plaintiff Lima attended a Skelly hearing with Chief Andrew Fox, Operations Commander, who allegedly told Lima that he needed to treat women differently, which Lima interpreted as being told to give preferential treatment to female fire fighters. Fox also allegedly said it was difficult for the LAFD to retain females and that he was under pressure from above. Captain Lima allegedly told Fox that he would treat all firefighters equally. During the hearing, Fox allegedly mitigated the proposed discipline of six days down to two days after considering Lima’s version of the events. Lima thereafter went to a Board of Rights who found him guilty of Charge 1 - Sections 10(b) and 10(f) - In that you did on or about June 19, 2004, fail to take precautionary measures to ensure the safety of Firefighter Melissa B. Kelley, during the 35' ladder evolution. The Board of Rights recommended that Captain Lima be reprimanded as previously directed by his Battalion Chief.

After Captain Lima allegedly refused to follow the instruction by Fox to treat women differently, the LAFD allegedly subjected him to five retaliatory actions. First, the reprimand issued for the drilling incident. Second, Lima’s non-selection as Captain for the Urban Search and Rescue team. Third, Lima’s recommendation for a suspension of 30 days which was never implemented due to his subordinates taking of sexually explicit prank photographs in the fire station while Lima was out of quarters. Lima alleges that he had no knowledge about the photos even though they were found in a nightstand drawer in his Captain quarters. Fourth, Lima alleges that it was wrongful for the LAFD to deny him a vacation day when they wanted to serve him with some personnel papers related to the photographs. Fifth, Lima was allegedly ordered to stand in the rain during a tanker fire incident and was not timely released from the incident. During trial, over defense objection, the Court allowed Lima to append a failure to promote claim as an element of damages to his retaliation claim.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that he was subjected to retaliation after refusing to follow an illegal order to treat female firefighters differently than male firefighters. The female firefighter, Mellisa Kelley, actually suffered from a previous shoulder injury and failed to inform Captain Lima that she was hurt and not fit for duty. The plaintiff contended that he urged Kelley on during the drill attempting to motivate her to lift the ladder and was not singling her out because she was a female. The plaintiff also contended that his ability to promote to the rank of Battalion Chief was ended as a result of the retaliation.

DEFENDANT'S CONTENTIONS:
The defendant contends that Captain Lima violated Department rules during the June 19, 2004 drilling incident in that he failed to take appropriate measures to ensure the safety of Firefighter III Kelley and placed members at great risk when he required them to perform a competitive and exhaustive drill while donning full turnouts with breathing apparatus and face piece connected on air. The Board of Rights panel concurred with the first finding after a full evidentiary hearing. The city disputes that Lima ever engaged in any protected activity or that he was ever subjected to any employment action rising to the level of an adverse action. The city has treated the plaintiff in the same manner as it treats all other employees and had legitimate, valid business reasons for each of its actions. There is an absence of causation between the alleged protected act and the reprimand, Lima’s non-selection for the USAR Captain job and Lima staying on-scene at a tanker fire which was his regularly scheduled work day. There was no evidence of any past economic losses nor any evidence of psychiatric or medical care, treatment or costs.

Settlement Discussions

The plaintiff demanded $200,000; the city of Los Angeles offered $2,500 for settlement of the case including $30,000 for attorney's fees.

Other Information

A claim for gender and sex discrimination was dismissed on summary adjudication.

Deliberation

two days

Length

three weeks