A federal judge said this week that he would toss out a lawsuit in which one current and one former city employee accuse Huntington Beach City Atty. Michael Gates of age and disability discrimination and free-speech violation unless the plaintiffs amend their complaint.
The pair’s attorney, Bernard Alexander, has until May 30 to file an amended complaint before U.S. District Judge David Carter dismisses the suit “for lack of subject matter jurisdiction.”
“The judge wanted more details as to allegations to allow us in federal court,” Alexander said Tuesday. He added that the plaintiffs will consider amending the complaint or refiling it in state court.
Alexander filed the lawsuit in federal court Jan. 4 on behalf of Neal Moore, a former senior deputy city attorney who worked for Huntington Beach for about 14 years, and Scott Field, a current senior deputy city attorney who has been employed with the city for about 22 years.
The complaint initially alleged that Gates discriminated against Moore and Field — who were ages 73 and 62, respectively, when the suit was filed — because of their age and that he created a hostile work environment intended to push them out for younger employees.
Alexander has amended the complaint multiple times, and the most recent amendment accused Gates of disability discrimination and free-speech violation.
According to the lawsuit, Gates has made a “concerted effort” to push out, displace and replace older employees with younger staff members since he was first elected in 2014. The complaint alleges that Gates purposely assigned excessive duties with unreasonable deadlines and unachievable tasks to point out fault and poor performance by Field and Moore.
Moore, who was demoted, raised the issue of age discrimination with the city’s director of human resources. As a result, the complaint alleges, Moore’s demotions were upheld and he was forced to resign.
The complaint claims Moore was speaking as a private citizen out of public concern and should have been shielded by free-speech protections.
However, Carter said in a decision published late Monday afternoon that Moore’s speech was “not a matter of public concern, and the speech was made solely as a public employee.”
“Moore spoke to human resources about alleged discrimination that was happening to him in the workplace,” Carter said. “Moore was therefore speaking on a matter of personal concern, not one of public concern.
“Moreover, Moore states that he spoke to human resources about the alleged discrimination … after his demotion, not before the demotion, and thus Moore’s speech regarding alleged discrimination could not possibly have been a motivating factor in the city and Gates’ prior action to demote him.”
Carter also said the plaintiffs have “not adequately stated a claim for relief” under the disability discrimination argument and dismissed that claim. Field has undergone several procedures for cataracts.
On Tuesday, Gates referred questions to his attorney, Wayne Gross.
Gross said they are “delighted” with the developments.
“Michael Gates is an outstanding city attorney who never should’ve been sued,” Gross said.