Offer may hurt city in Pierce trial

Times Staff Writer

If the lawsuit by a black firefighter who was fed dog food goes to trial, jurors will probably remember that Los Angeles at one time was prepared to pay a whopping settlement, a factor likely to hurt the city, several employment and trial lawyers said Thursday.

Paul Grossman, a management lawyer, said that even though the city's lawyers would try to keep anyone with knowledge of the case off the jury, at least one or two panelists would probably still know or discover "that some people in the city thought the case was worth a lot of money."

The Los Angeles City Council, on the city attorney's recommendation, voted last month to settle firefighter Tennie Pierce's suit -- which claimed racial bias and alleged that the department retaliated against him for complaining -- for $2.7 million. But the mayor vetoed the deal. The case is now set for trial in March.

The Los Angeles city attorney's office arrived at the settlement proposal after reviewing recent verdicts in similar cases, spokesman Nick Velasquez said. Previous lawsuits involving claims of racial bias that were tried in downtown Los Angeles resulted in huge awards for plaintiffs.

John Francois, an African American LAPD officer who complained of racial harassment, won a $5.34-million award in 2000.

In another case, tried two years ago, a jury returned a verdict of $3.6 million against the city and $600,000 in attorney fees for LAPD Officer Richard Nagatoshi, a Japanese American who complained of bias, Velasquez said.

"The bottom line is jurors expect a higher standard out of their public safety organization, and they really don't condone the theory that boys will be boys," said a source familiar with the city attorney's reasoning. "At best, the Fire Department looks like an out-of-control fraternity."

Chief Assistant City Atty. Gary Geuss said, "Jurors think in substantial numbers, and no longer is a million dollars a lot of money to a juror."

In an unusual twist, photographs came to light in the midst of the settlement process showing that Pierce also participated in hazing-style pranks.

After initially approving the settlement, some council members learned that a photograph taken several years ago showed Pierce with a razor over a firefighter whose crotch was covered with shaving cream. Pierce had testified in a deposition that he never shaved anyone as part of a hazing. His attorney said he had simply posed for the photo.

Some council members said the photographs were responsible for their change of heart.

It's not every day that a plaintiff is accused of conduct similar to what he complains about, experts conceded. But that sort of evidence has not helped the city in past racial discrimination cases, Velasquez said.

Larry R. Feldman, a highly successful plaintiff's lawyer, said that although the photos could hurt Pierce's side, "there is a difference between feeding someone dog food and posing to shave someone."

"My experience with jurors on racial cases is they have total intolerance for any company or person that allows any type of bigotry to go on in the workplace," Feldman said.

During a closed session with the City Council and the city attorney in June, Assistant City Atty. Mike Claessens was asked why he believed the Pierce suit could trigger a large award.

"High exposure in my view means that this is a case that is probably not the most appropriate case to bring to trial, because the city has some liability, potential liability," Claessens said, according to the transcript of the meeting. "These types of cases, whether they are based on race or not, can really blow up when a jury gets ahold of them."

Councilman Herb Wesson said the city attorney's office has provided council members with paperwork that shows jury verdicts in similar cases ranging from $350,000 to $5.2 million "with a lot of 1.5s or 3s in between."

Grossman said the city could still cut its losses if its lawyers took advantage of a special code section to make another settlement offer. Under the section, if the jury returned an amount equal to or less than the offer, Pierce could be forced to pay the city's court expenses and his lawyer may not recover all of the attorney fees, Grossman said.

"Most cases settle, particularly with [such] offers that create additional risks -- the plaintiff can lose if he wins less than the offered amount," he said.

But such an offer would first have to be approved by the City Council, which this week declined to override Mayor Antonio Villaraigosa's veto of the $2.7-million deal.

Both Grossman and Feldman said the proposed settlement amount struck them as high, particularly for a government defendant. But a history of bias in the department could justify it, they conceded.

Two city audits of the Fire Department, in 1994 and one released in January, found patterns of bias and harassment in the agency.

Said Grossman, who is also coauthor of a book on employment discrimination law: "If there are a lot of racist statements, if prior complaints were ignored and if true retaliation took place, that might make the case worth more money." A single incident, such as the spaghetti laced with dog food, would not be enough to win a case, based on a recent ruling by the state Supreme Court, he said.

William Quackenbush, who has represented employees for 21 years, said Pierce's most promising claim would be over intentional infliction of emotional distress. Being served dog food "sounds like outrageous conduct, and that is what you have to show for intentional infliction of emotional distress," Quackenbush said.

Donna Melby, a management lawyer, said it would "not be prudent" for the city to ignore large jury awards in cases previously tried in Los Angeles and involving similar circumstances.

"The issues are emotionally charged, and race is a part of the emotionally charged issues which the jury has to consider," she said.

maura.dolan@latimes.com

Times staff writer Steve Hymon contributed to this report.

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