11111111111111111111111111 - Fire Law Blog · c 1 21. On or about March 2010, within 60 days of receipt of each complainant's right to sue 2 notice from the DFEH, Plaintiffs served,

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF SA~ FRANCISCO

Document Scanning Lead Sheet Aug-10-2010 12:56 pm

Case Number: CGC-10-501981

Filing Date: Aug-10-2010 12:55

Juke Box: 001 Image: 02935798

COMPLAINT

JOHN H. DANNER Ill et al VS. THE CITY AND COUNTY OF SAN FRANCISCO et al

001 C02935798

Instructions: Please place this sheet on top of the document to be scanned.

c lJORIGINAL -J

MURLENE J. RANDLE, State Bar #98124 1 LAW OFFICES OF M. J. RANDLE

235 Montgomery Street, Suite 716 2 San Francisco, CA 94104

Telephone: (415) 352-0189 3 Facsimile: (415) 352-0187

4 E-Mail: [email protected]

5 R. WILLIAM REED, State Bar #261931 Of Counsel LAW OFFICES OF M. J. RANDLE 6 235 Montgomery Street, Suite 716 San Francisco, CA 94104 7 Telephone: (415) 352-0189

8 Facsimile: (415) 352-0187

9 Attorneys for Plaintiffs

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

JOHN H. DANNER III, DONALD R. 14 DURKEE JR., STEPHEN C. ENGLER,

15 CARLOS HOY, ALFRED K. JOE, MARKE. KANE, ROHAN KNIGHT,

) CaseNo. CGC 10-501981 )

16 ROBERTO J. LUCHA, ELI F. PAYTON, ROBERTS. MATEIK, ERIC T.

17 TANIMURA, PAUL T. URQUIAGA, and VINCENT G. WONG,

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Plaintiffs,

v.

21 THE CITY AND COUNTY OF SAN FRANCISCO, THE SAN FRANCISCO

22 FIRE DEPARTMENT, THE SAN FRANCISCO FIRE COMMISSION,

23 THE CIVIL SERVICE COMMISSION OF SAN FRANCISCO, and DOES 1

24 through 100, inclusive,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

25 Defendants. ) ) 26 )

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II--~~~~~~~~~~~~~)

COMPLAINT FOR DAMAGES Case No. CGC 10- 501981

FIRSTAMENDEDCOMPLAINTFOR DAMAGES, DECLARATORY, AND EQUITABLE RELIEF:

1. AGE DISCRIMINATION IN VIOLATION OF CALIFORNIA GOVERNMENT CODE SECTION 12940 et seq.

2. FAILURE TO PREVENT DISCRIMINATION IN VIOLATION OF GOVERNMENT CODE SECTION 12940(k)

3. RETALIATION IN VIOLATOIN OF GOVERNMENT CODE SECTION 12940(h)

DEMANDFORJURYTRIAL

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INTRODUCTION

This is an action seeking equitable relief, declaratory relief, and damages based on

3 Defendants' actions and omissions under color of law, which because of Plaintiffs' age, among other

4 causes of action, operated to deprive Plaintiffs of rights secured to them under the laws of the great

5 State of California.

6 2. In May of2008, the San Francisco Fire Department (SFFD or DEPARMENT) offered

7 a promotional examination for the position ofH-20 Lieutenant (EXAMINATION). An examination

8 for the H-20 Lieutenant's position had not been given since 1997. In keeping with the SFFD's history,

9 this EXAMINATION, its administration, and its grading system had numerous flaws and faults.

JO 3. Thus, Plaintiffs bring this action to seek recourse for the failures of this examination,

11 which has discriminated against them and other examination takers over the age of 40. Further, some

12 Plaintiff's have suffered retaliation as a result of claims or complaints made with regards to the

13 examination and its process.

14 PARTIES

15 4. Plaintiffs, all over the age of 40, are individuals residing within the state of California.

16 5. At all relevant times, Plaintiffs were employed by the SFFD, an administrative agency

17 of the City and County of San Francisco (CITY or CITY AND COUNTY). Specific facts relating to

18 each Plaintiff are contained in the fact section.

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6. On information and belief, the CITY AND COUNTY are municipal employers. The

SFFD is an administrative component of the CITY AND COUNTY. The San Francisco Fire

Commission (SFFC) is a municipal administrative agency, which is charged with the oversight of the

22 SFFD. The Civil Service Commission of San Francisco (CSC) is a municipal administrative agency

23 that establishes rules and policy, hears appeals on examinations, eligible lists, minimum qualifications,

24 classification, discrimination complaints, future employment with the CITY AND COUNTY and

25 other merit system matters. (Hereinafter collectively referred to as "DEFENDANT" or

26 "DEFENDANTS.")

27 Ill

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COMPLAINT FOR DAMAGES Case No. CGC 10 - 501981

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c 1 7. At all times relevant to the allegation in this Complaint, DEFENDANTS operated in

2 San Francisco, California.

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At all relevant times, DEFENDANT's employed more than five people.

The true names and capacities, whether a municipality, administrative agency,

5 administrative component, Municipal Corporation, agent, individual, or otherwise, of DEFENDANTS,

6 DOES 1through100, are unknown to Plaintiff, who therefore sues said DEFENDANTS by such

7 fictitious names. Each DEFENDANT designated herein as a DOE is negligently, intentionally, or

8 otherwise legally responsible in some manner for the events and happenings referred to herein and

9 thereby proximately caused injuries and damages to Plaintiffs as alleged herein. Plaintiffs will ask

10 leave of Court to amend this Complaint to show their names and capacities when the same have been

11 ascertained.

12 10. At all times mentioned herein, DOES 1 through 100, were the agents, representatives,

13 successors and/or assigns of DEFENDANTS and at all times pertinent hereto were acting within the

14 course and scope of their authority as such agents, representatives, employees, successors and/or

15 assigns.

16 11. Plaintiffs are informed and believe and based thereon allege that at all relevant times

17 herein mentioned DEFENDANTS and DOES 1 through 100 are and were municipal corporations,

18 municipal agencies, municipal administrative agencies, business entities, individuals, and partnerships,

19 licensed to do business and/or actually doing business in the State of California. DEFENDANTS own

20 and operate an industry, business and establishment in San Francisco County, for the purpose of

21 operating a municipality and related services. As such, and based upon all the facts and circumstances

22 incident to DEFENDANTS' business in California, DEFENDANTS are subject to California

23 Government Code Sections 12940 et seq.

24 12. Plaintiffs are informed and believe and based thereon allege that at all times material

25 hereto, DEFENDANTS and their agents, employees, municipal agencies, administrative agencies,

26 alter egos and/or joint venturers were acting within the course and scope of such agency, employment,

27 joint venture, or concerted activity.

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c -JURISDICTION AND VENUE

13. This is an action based upon Plaintiffs' employment discrimination claims against

DEFENDANTS, which arise under the California Fair Employment and Housing Act (FEHA),

California Government Code§§ 12900, et seq. Thus, this Court has jurisdiction over the violations of

California Government Code Sections 12940 et seq.

14. This Court has personal jurisdiction over Defendants City and County of San Francisco

because the City of San Francisco is a municipal corporation incorporated in the State of California

and the County of San Francisco is an administrative division of the state of California.

15. This Court has personal jurisdiction over Defendant SFFD because the Fire Department

is an administrative agency of the City and County of San Francisco.

16. This Court has personal jurisdiction over Defendants San Francisco Fire Commission

and the Civil Service Commission of San Francisco (CSCSF) because both entities are municipal

administrative agencies of the City and County of San Francisco.

17. Venue is proper because the alleged wrongs occurred in the City and County of San

Francisco and DEFENDANTS are located within the City and County of San Francisco.

EXAUSTION OF ADMINISTRATIVE REMEDIES

18. Plaintiffs' have all filed complaints with the Department of Fair Employment &

Housing (DFEH) charging DEFENDANTS with discriminating against Plaintiffs on the basis of age,

among other charges, and for violation of the California Fair Employment & Housing Act (FEHA).

19. The Charges were filed within one year of the discriminatory employment practices

described in this complaint.

20. Plaintiffs received their notice of case closure and right to sue letters as follows: John

H. Danner III- March 12, 2010; Donald R. Durkee Jr. -March 10, 2010; Stephen C. Engler-March

12, 2010; Carlos Hoy- March 22, 2010; Alfred K. Joe -March 5, 2010; Mark E. Kane - March 12,

2010; Rohan Knight- March 10, 2010; Roberto J. Lucha- March 5, 2010; Robert S. Mateik-March

12, 2010; Eli F. Payton- March 4, 2010; Eric T. Tanimura-March 12, 2010; Paul T. Urquiaga

March 4, 2010; and Vincent G. Wong- March 10, 2010.


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1 21. On or about March 2010, within 60 days of receipt of each complainant's right to sue

2 notice from the DFEH, Plaintiffs served, by certified mail, a copy of the Charge and the Notice of

3 Case Closure.

4 GENERAL FACTS COMMON TO ALL COUNTS

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I. BACKGROUND

Plaintiffs refer to and incorporate by reference the allegations contained in paragraphs 1

The position ofH-2 Firefighter is currently the entry level position to which every

incoming Firefighter is placed upon successful completion of a physical ability test and instruction at

the Fire Academy, which includes EMT-1 licensure. The position ofH-20 Lieutenant the next

promotive position, entails a supervisory role, and is followed by H-30 Captain, H-40 Battalion Chief,

H-50 Assistant Chief of Department, H-51 Assistant Deputy Chief II, 0150 Deputy Chief of

Department, and 0140 Chief of Department. In between H-2 Firefighter and H-20 Lieutenant there are

several positions, such as H-1 Fire Rescue Paramedic, H-3 Firefighter Paramedic, and H-10 Incident

Scene Specialist (!SS).

24. In 1978 the SFFD administered a written examination for the position of H-20

Lieutenant. This test, among others, was found to have an adverse impact on "Blacks," a protected

group, and was proven not to be job-related. Pursuant to Federal litigation instituted in 1984 (United

19 States v. City and County a/San Francisco, et al., N. D. Cal., No. C-84-7089-MHP; Davis, et al. v.

20 City and County of San Francisco, et al., N. D. Cal., No. C-84-1100-MHP. ), challenging the fire

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departments hiring and promotional practices, a Consent Decree was imposed because the SFFD

"ha[ d] failed once again to develop valid employment procedures for hiring and promotions within the

[SFFD], thus adding yet another chapter to an unenviable record of behavior reaching back nearly two

decades." (US.A. v. The City and County of San Francisco, et al. (1988) 696 F. Supp. 1287

(US.A.).) 1 The court further stated that it imposed this consent decree so that the SFFD's "sorry

1 The above mentioned parallel Federal cases were consolidated into this published opinion, which also served as the Consent Decree.


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1 history" of a "consistent and ongoing inability to utilize non-discriminatory employment procedures ..

2 . will finally come to an end." (Id.) In the case "BACKGROUND" the court noted that "[t]he SFFD

3 hired no black firefighters before 1955, allowed no women to apply before 1976 and hired no women

4 until August 1987." (Id. at p. 1289.) The court further noted that "[t]here are no records to indicate

5 whether any Hispanic, Asian or Filipino firefighters were employed by the SFFD before Earl Gage,

6 the City's first Black firefighter, was hired in 1955[, and that] the next Black firefighter was not hired

7 until 1967." (Id. at p. 1290, fn. 5.)

8 25. Among many other obligations and constraints, this Consent Decree and Permanent

9 Injunctive Relief mandated that all further entry and promotional Firefighter examinations be reviewed

10 and approved under the continuing jurisdiction of the Federal Court until November 1998. (US.A ..

11 supra, 696 F. Supp. at p. 1318-1321, Marked Appendix A and Exhibit A.) The Consent Decree

12 further obligated that all "promotional examinations required by this Decree ... be developed and

13 administered by a test development committee consisting of qualified personnel employed by the

14 City's Civil Service Commission and qualified outside experts selected by the City and approved by

15 the Court." (Id. at p. 1313.) Even further, the Consent Decree mandated that the City "consult with

16 counsel for plaintiffs and plaintiff-intervenors regarding all aspects oftest development and

17 administration." (Id.)

18 26. Pursuant to the Federal Consent Decree, SFFD offered H-20 Lieutenant Examinations

19 in 1994 and 1997. Based on information and belief, both the 1994 and 1997 Lieutenant examinations

20 were required to be oral pursuant to the joint, multi party, examination development terms laid out in

21 the Consent Decree.

IL EXAMINATION NOTICE & FORMAT 22

23 27. At the September 2007 monthly meeting of San Francisco Fire Fighters Local 798

24 (LOCAL 798) potential applicants for the upcoming H-20 Lieutenant EXAMINATION were given

25 their first unofficial notice that a Lieutenant EXAMINATION would be administered in the near

26 future. During that meeting it was stated that union members had heard that a Lieutenant

27 EXAMINATION would be given in early spring 2008, but that the exact date of the EXAMINATION

28 and type of testing was unknown. Based upon information and belief, Plaintiffs, among other 6


c 1 potential examinees, reasonably assumed that the upcoming Lieutenant EXAMINATION would be

2 oral because: (1) the latest two Captains Examinations given in late 2006 and/or early 2007 were oral

3 examinations; (2) the latest Battalion Chief Examination given in early 2008 was an oral examination;

4 (3) the fact that the pre-examination negotiations pursuant to the Consent Decree required that

5 examinations for supervisory positions be oral, including the 1994 andl997 Lieutenants examinations;

6 and ( 4) the fact that oral examinations for supervisory Firefighter positions was and is the national

7 standard.

8 28. On February 4, 2008, General Order2 08A-05 was issued, informing Firefighters that a

9 "New Training Manual" (NEW MANUAL(S)) would be issued on February 4, 2008. The NEW

10 MANUAL became the Standard Operating Procedure for the DEPARTMENT on February 15, 2008 at

11 0800 hours.

12 29. This NEW MANUAL is a Field Reference Guide for Company Officers and contains

13 new policies and procedures for training new Lieutenants, serves as study material for applicants for

14 Lieutenant examinations, and both replaced and superseded the previous training manual. However,

15 the Standard Operating Procedures contained in this NEW MANUAL contradicted the old manual and

16 the policies and practices that had been in place for at least 20 years.

17 30. Furthermore, the NEW MANUAL didn't specify the changes in SOP made from the

18 old manual. Therefore, only four months prior to the EXAMINATION, applicants who had been

19 preparing based on the SOP from the old manuals were forced to rededicate their time not only to

20 leam the new SOPs, but also to determine what SOP changes had been made from the SOP contained

21 in the old manual.

22 31. On March 27, 2008, through General Order 08A-28, the SFFD first posted official

23 written notice that the upcoming EXAMINATION would be held on May 18, 2008. This

24 announcement did not mention or describe the type of testing which would be used in the upcoming

25 EXAMINATION, i.e. if the examination would be oral or written. Based on information and belief,

26 Plaintiffs, along with the other potential applicants for the upcoming EXAMINATION, were still

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2 A "General Order" is a communication which is disseminated to all currently active Firefighters in the San Francisco Fire Department regardless of rank.


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I under the impression that this EXAMINATION would be administered orally.

2 32. The application period where potential applicants could submit "Employment

3 Application Submissions" for Job Number: CBT-OH20-054500 was from March 28, 2008, through

4 April 11, 2008 at 5:00 p.m. Plaintiffs submitted applications during this period.

5 33. On April 18, 2008, one month before the EXAMINATION, the DEPAREMENT

6 released the "preparation manuals" for the first portion of the EXAMINATION, the "Fire Scene and

7 First Aid Simulation." This was the first official notification Plaintiffs and other applicants for the

8 upcoming EXAMINATION, received that the EXAMINATION would be written. Alternatively

9 stated, Plaintiffs, along with the other EXAMINATION applicants, were given, at maximum a mere

10 30 days of official notice that the upcoming EXAMINATION would be written, keeping in mind that

11 all examinations for leadership positions given in the past twenty years had been oral.

12 34. Therefore, after investing up to two years preparing for an oral examination, Plaintiffs,

13 including all applicants for EXAMINATION, were forced to completely revamp, reevaluate, and re-

14 posture the way they studied for an entirely different examination with mere notice of 30 days or less.

15 This is also true in regards to the DEPARTMENT's changing of the Manuals so close in time to the

16 EXAMINATION. Plaintiffs' individual study techniques are discussed in detail below.

17 35. This change also diminished the chances of Firefighters over the age of 40 from

18 performing well on the EXAMINATION, because older Firefighters, such as Plaintiffs, were trained

19 in and have been using verbal methods to communicate fire-ground tactics and communications for

20 years. Especially those serving as "Like-Word Like-Pay," Acting, and Provisional Lieutenants.

21 36. On or around May 8, 2008, Plaintiffs received an "H-20 Appointment Letter" which

22 noticed the date, time, and location of the EXAMINATION.

23 37. According to Chief Joanne Hayes-White, the decision to change from a long standing

24 history of administering oral examinations for supervisory positions to a written examination was due

25 to the difficult and costly logistics involved in administering an oral examination to such a large pool

26 of applicants - approximately 800.

27 Ill

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I 38. There were many complaints regarding the change from an oral format to a written one

2 as well as numerous complaints regarding the written testing format.

3 39. LOCAL 798 held discussions regarding the testing and the change from an oral

4 examination to a written examination and made several recommendations to reduce the pool of

5 applicants.

6 40. LOCAL 798 recommended reducing the applicant pool by requiring that members have

7 a minimum of five years in the department, as is the standard at most Fire Departments regarding

8 officer examinations.

9 41. Interestingly, SFFD requires that Firefighters have five years in the department in order

I 0 to bid for a position both at the Airport and at the Rescue Squads. In addition, the State Fire Marshal

11 has certifications for Firefighter I, II, II, and Fire Officer, which could have reduced the applicant

12 pool. These certifications require that the Firefighter demonstrate the specific tasks and require time

13 on the job to be eligible. For some reason the SFFD does not use the State Fire Marshal certifications

14 in assessing Firefighter eligibility for supervisory promotional examinations.

15 42. On information and belief, one of the major factors in Chief Hayes-White's decision

16 not to implement these applicant pool reduction methods was due to the lobbying of several highly-

17 ranked Firefighters, mainly Chiefs. These-highly ranked Firefighters were against this restriction

18 because it would prevent their children from taking the EXAMINATION. Children of higher ranking

19 firefighters in the SFFD are commonly and widely referred to as "legacies" by members of the

20 department. The alleged preference given to "legacies" is barred by San Francisco Civil Service Rule

21 311.5.5, which states that "[n]epotism and otherwise prohibited favoritism shall be prohibited."

22 43. On or around February of2008 Captain Mark Johnson (JOHNSON) of the SFFD had a

23 conversation with Dave Johnson of the San Francisco Fire Examination Unit in which Dave Johnson

24 told JOHNSON of the problems he was having developing a written version of an assessment center

25 type examination for the upcoming Lieutenant EXAMINATION.

26 44. Dave Johnson said that Chief Hayes-White wanted a written test for financial reasons.

27 The Chief believed that a written test would save the DEPARTMENT money by alleviating the need

28 for the Department to pay a large cadre of proctors to administer an assessment center test as it had 9


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I done during the Consent Decree.

2 45. JOHNSON told Dave Johnson that he had a solution to Dave Johnson's dilemma.

3 JOHNSON informed Dave Johnson that he had developed a computer program that JOHNSON and

4 others had been using to study for the Battalion Chief examination. This program, that JOHNSON

5 named the "Assessment Center Simulator," actually simulated assessment center test conditions. It

6 gave the ability to administer an assessment center test without the need for one on one proctors and

7 guaranteed that everyone received the exact same examination with no variations.

8 46. The "Assessment Center Simulator" is the first-of-its-kind standalone computer

9 generated fire scene simulator that is the benchmark for fire service simulation training programs. The

10 program, now in its seventh edition, is currently the most widely used fire scene simulator in the

11 world, with over 30,000 known installation in I 0 countries.

12 47. JOHNSON's Curriculum Vitae, among numerous other credentials, also includes the

13 design and creation of several other equally innovative public safety based software programs. Two

14 have also received notoriety: (I) Industrial Fire Plan - a first-of-its-kind preplanning program that

15 combined the programming techniques of Graphic Information System mapping, relation database,

16 simulation, and business tools, which allow industrial Firefighters to prep-plan and confront large-

17 scale complex fire and hazmat responses. This program is currently in use by three of the largest oil

18 refining companies in the country. (2) Coordinated National Incident Management System Incident

19 Planner - a first-of-its-kind program that simplifies the process of developing incident action plans by

20 guiding users through the development process while maintaining flexibility of the Incident Command

21 System. This program was adopted by Chief Heather Fong of the San Francisco Police Department as

22 the tool to replace the Operations Order System for pre-planning major events with the City of San

23 Francisco.

24 48. JOHNSON offered the program to the DEPARTMENT at no cost and informed Dave

25 Johnson that his only motivation was providing a good test for the DEPARTMENT. JOHNSON came

26 back later that afternoon and demonstrated the program to the Exam Unit staff whom were confident

27 and very enthusiastic that this program was the solution they were looking for. Oddly, a couple of

28 days later JOHNSON was told by Dave Johnson that the Chief had rejected the idea and was insisting 10


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1 on a written examination.

2 49. In addition, prior to the EXAMINATION, the DEPARTMENT's standard practice was

3 to reward fire suppression experience by adding points to the score of veterans for every year of

4 experience. However, on information and belief, these same Chiefs successfully lobbied Chief Hayes-

5 White to cease this practice because, again, it would have cut out most of the "legacies."

6 50. LOCAL 798, on behalf of its members, also complained to the DEPARTMENT

7 regarding the testing format in the preparation manuals. The testing format required that examinees

8 write their answers in very small boxes. LOCAL 798 complained that these boxes were far too small

9 for an examinee to enter all of the pertinent information. Although the DEPARTMENT did not

10 change the testing format as requested by LOCAL 798, the DEPARTMENT compromised by

11 enlarging the boxes somewhat. Although this was a step in the right direction, LOCAL 798 remained

12 steadfast in their contention that larger boxes did not alleviate the problems with the testing format.

13 51. Furthermore, younger Firefighters were predisposed to performing well on a written

14 examination because prior training that the department provided to younger firefighters involved

15 extensive written assignments and exposed younger Firefighters to medical terms of art. This training

16 afforded younger Firefighters was not in place at the time senior Firefighters, such as Plaintiffs,

17 entered the SFFD.

18 52. This training stems from the fact that in 1990's, following a national trend, the

19 Department of Public Health (DPH) and the SFFD agreed to merge in effort of achieving "better and

20 faster deployment of [Emergency Medical Services (EMS)] services" and to create "a single call and

21 dispatch system for fire and EMS services" as mandated by voters in Proposition B of the June 7, 1994

22 general election.

23 53. Due to Proposition Band the merger, beginning February of 1997, all incoming H-2

24 Firefighters were required to work in either the radio dispatch office for one year, and/or perform

25 ambulance duty for a minimum of one year, before being given a permanent position as a San

26 Francisco Firefighter. Upon information and belief, this lasted until August 6, 2006 when the

27 DEPARTMENT began phasing H-2 Firefighters from these positions.

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c I 54. While serving radio dispatch younger Firefighters wrote numerous reports regarding

2 the emergency calls they had taken, on a daily basis.

3 55. In writing these reports Firefighters were required to use, and therefore gained

4 experience in using, medical terms of art. Through writing these reports younger Firefighters also

5 gained experience summing up situations and abbreviating oral intake into written form. Older, more

6 experienced Firefighters who entered the DEPARTMENT prior to 1997 did not receive this

7 training/experience.

8 56. Radio dispatch duty ended around 2004 or 2005 when all rank-and-file Firefighter-

9 dispatchers were replaced by civilian-dispatchers.

10 57. While serving ambulance duty the younger Firefighters were responsible for driving the

11 ambulance and recording patient information. In practice, the paramedic checks and treats the patient,

12 while the EMT/Firefighter records the patient's information and the observations of the Paramedic for

13 each emergency call, in what is officially titled a "Patient Care Injury Report." The paramedic then

14 goes over the report, ensures it is accurate, and signs the report.

15 58. In writing these reports Firefighters were required to use, and therefore gained

16 experience using, medical terms of art. Through writing these reports younger Firefighters also gained

17 experience summing up emergency situations in the limited space available in small boxes on the

18 injury report forms. Older, experienced Firefighters, who entered the DEPARTMENT prior to 1997,

19 did not receive this training/experience.

20 59. Ambulance duty could last as long as five years because these new Firefighters had to

21 wait for a permanent spot to open at a Firehouse in order to be permanently placed. Because

22 Firefighters place great importance on being permanently assigned to a Fire-house where he/she fits

23 in, many Firefighters decide to pass up a permanent spot opening where he/she does not fit in and

24 continue ambulance duty in order to hold out for a spot they deem to be a good fit.

25 60. Ambulance duty ended in late 2006 when almost all ambulances were removed from

26 Fire-houses and Firefighter EMTs were replaced by non-Firefighter EMTs or dual-paramedic staffed

27 ambulances. Therefore, younger firefighters who entered the DEPARTMENT between 1997 and

28 2006 were given training and afforded experiences that better prepared them for a written


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2 61. However, while working as radio dispatchers and serving ambulance duty these

3 Firefighters gain absolutely no experience fighting fires. Performing radio and/or ambulance duty

4 actually detracts from firefighting experience. Hence, the number of years served in the

5 DEPARTMENT can be deceiving in terms of actual experience fighting fires. Those who entered the

6 DEPARTMENT during or after 1997 have at least I to 5 years less experience fighting fires than those

7 Firefighters who entered previously, due to the mandatory radio and ambulance duty service. In

8 essence, a Firefighter who entered the DEPARTMENT between 1997 and 2006 (the last incoming

9 probationary class prior to the EXAMINATION was hired on September 19, 2005), who has been in

I 0 the department for eight years, very likely has less than three to five years of actual experience

11 fighting fires.

12 62. The DEPARTMENT was aware of these inequities and the fact that younger

13 Firefighters, having been in school recently, were savvy writers and test-takers.

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15 63.

Ill. THE EXAMINATION

In May and August of 2008 the SFFD administered a promotional examination for the

16 rank of H-20 Lieutenant.

17 64. This promotional EXAMINATION consisted of two parts: (I) a "Fire Scene and First

18 Aid Simulation Exercise," which required the examinee to complete four written fire simulations and a

19 3807 Injury Report, and (2) a 'Training I Performance Counseling Exercise," which consisted of a

20 subordinate counseling assessment and a station drill assessment.

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65.

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It is believed that around 800 or 900 Firefighters sat for the EXAMINATION.

Part one of the EXAMINATION, the "Fire Scene and First Aid Simulation Exercise,"

23 was given on May 18, 2008, and broken up into a morning session and an afternoon session.

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All Plaintiffs took part one of the EXAMINATION.

Part one of the EXAMINATION consisted of five sections. Upon information and

26 belief there were four different versions of the EXAMINATION. On information and belief, the only

27 common section administered to all examinees was that which involved filling out a 3807 Injury

28 Report that was worth 20 percent of the written portion of the EXAMINATION. 13


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1 69. Because the SFFD assumed that EXAMINATION information would be passed from

2 the morning session to the afternoon session, i.e. because the SFFD did not trust their own employees,

3 50 points were automatically deducted from the score of each afternoon session examinee.

4 70. Moreover, many examinees who sat for the EXAMINATION, even the morning

5 session, had to work the day before, which meant that those examinees had to work, at the least, a

6 twenty-four hour shift that ended at 8:00 a.m. the day of the examination.

7 71. In order to proceed to sections two and three of the EXAMINATION, the examinee

8 had to achieve a minimum score of 500 on part one. A total of 410 Firefighters scored the minimum

9 cut-off score or above.

10 72. Part two of the EXAMINATION, the "Training I Performance Counseling Exercise,"

11 was administered to each examinee at various times from August 22, 2008 through August 24, 2008.

12 In contrast to part one of the EXAMINATION, based on information and belief, those who sat for

13 parts two and three were given the day off prior to their scheduled appointment time.

14 73. Out of the 410 examinees who qualified to take parts two and three of the

15 EXAMINATION 409 are listed on the eligible list. Final scores of the entire EXAMINATION ranged

16 from 707 to 1000, and the average score was 869 points.

17 74. Due to the CITY' s concept of "banding"3 and the total number of available Lieutenant-

18 positions, it is believed that there is little to no chance that anyone who placed lower than number 238

19 on the Eligibility List for the EXAMINATION, identification number 054500 (ELIGIBILITY LIST),

20 will receive an appointment.

21 ///

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23 3 "Banding," or "sliding band," denotes a statistically valid grouping/sliding band of scores using a confidence factor of 1.96. Eligibles within the grouping are considered to be of comparable

24 knowledge, skills, and abilities with respect to the areas tested on the examination (San Francisco Civil Service Commission: Rule 3 .13 .3 .4 (2). ), i.e. they are all treated as if they scored the same. The

25 band for the eligibility list connected with THE EXAMINATION is 4 7 points. (City and County of San Francisco Department of Human Resources Tentative Eligible List, October 1, 2008.) Ifat any

26 time, the highest score in the grouping is exhausted, the grouping will slide so that its upper limit rests on the highest score remaining on the list. (San Francisco Civil Service Commission: Rule 3.13.3.4

27 (3).) Any additional eligibles whose scores fall within the new grouping shall be certified to available positions. The grouping shall also slide if all eligibles at the highest score waive or fail to respond

28 within the time limits provided in this Rule. (Id.)


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I 75. The EXAMINATION is the first examination for the Lieutenant position given since

2 the Consent Decree Expired in November 1998. Three other supervisory examinations were given,

3 two Captain Examinations in late 2007 and a Battalion Chiefs Examination in early 2008, all of

4 which were oral.

5 76. Based on information and belief, two Captains Examinations were given because the

6 first was thrown out due to a compromised examination key, inappropriately leaked information, and

7 problems with the tape recorder cassettes used. Based on information and belief, the compromised

8 examination key and the inappropriately leaked information resulted in several formal disciplinary

9 actions. Based on further information and belief, among other compromising aspects, the Battalion

10 Chief Examination manuals were leaked to certain individuals before the official release date.

11 77. On July 15, 2008 examinees who sat for the EXAMINATION were informed that they

12 would be allowed to review their score sheets and total points for each section.

13 78. Examinees were allowed a mere 7 day appeal window from the date of the

14 "administration of [each EXAMINATION] component." During this time, the examinees with

15 complaints, grievances, or protests could file an appeal on the limited basis of "bias, malfeasance, or

16 misfeasance by exam administrators." (Civil Service Commission, Rule 311. l l. l.) However, the

17 CSC disallows examinee review of the answer sheet, answer key, or scoring methodology of the

18 examination. (Civil Service Commission, Rule 311.10.) Nor does the CSC allow "[p ]rotests of

19 questions or answers on any examination." (Id.) Examinees were only allowed to view their score

20 sheets and tally their total scores to ensure that their scores were added correctly during a three-day

21 window after the posting of the ELIGIBILITY LIST.

22 79. The Department uses the shield of an archaic Civil Service rule, enacted more than 20

23 years ago, that provides for the complete secrecy of the examination process without independent

24 oversight to insure fairness. Therefore, because examinees had no access to any meaningful material

25 that would allow them to evaluate their examinations, in reality, there was no meaningful opportunity

26 to appeal the results of this EXAMINATION. Furthermore, as discussed below, all Plaintiffs formal

27 and informal attempts to request information regarding the examination, made in efforts to achieve

28 some sort of transparency with regards to the EXAMINATION have been rejected.


15

-I 80. Therefore, Plaintiffs' only avenue of obtaining the information sought, or any

2 transparency for that matter, is the filing of this lawsuit.

3 81. Due to the results of the EXAMINATION, Plaintiffs were all demoted and made

4 ineligible for promotion.

5 82. The ELIGIBILITY LIST is still active and appointments are ongoing from the list. The

6 most recent appointments from the list occurred on March 9, 2010.

7 83. Plaintiff is informed and believes and based thereon alleges that they have never been

8 written up for poor performance. Further, at all times herein relevant, Plaintiffs job performances

9 were always satisfactory.

10 84. Plaintiffs all volunteer in the community, serving in both Firefighter and non-

11 Firefighter organizations.

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13 85.

w. EXAMINATION FLAWS & JOB RELATEDNESS

In addition, Plaintiffs' believe that the administration of the EXAMINATION and the

14 EXAMINATION itself were flawed in the following ways:

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a. Based on information and belief, the DEPARTMENT skewed the scoring in

favor of younger examinees because the DEPARTMENT did not want Plaintiffs and

other older Lieutenants, who had been working as "Like-Work Like-Pay," Acting, and

Provisional Lieutenants, to fill the Lieutenant positions because it would be costly for

the DEPARTMENT to retire these individuals at a higher wage. This is due to the fact

that, depending on when one entered the DEPARTMENT, a Firefighter's retirement

pay is based on their highest salary for the last two or three years of their career.

b. Fifty points were deducted from the score of afternoon test-takers because the

DEPARTMENT did not trust their employees and was sure that information would be

passed from the morning examinees to the afternoon examinees.

c. Based on information and belief, the test was scored at least three times because

the "brass," 4 including Chief Hayes-White, did not get the results they were looking

4 The "brass" are the higher ups in the DEPARTMENT and denotes persons in positions of Battalion Chief and higher.


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-for. However, Civil Service Rule 311.9 states that "[ n Jo changes in the passing mark

shall be made once those taking an examination have been identified by name." As a

result, Chief Hayes-White and the DEPARTMENT violated Rule 311.9, seemingly

twice, with absolutely no internal or external repercussions.

d. Based on information and belief, raw scores were adjusted depending on the

identity of the examinee.

e. The revision of the DEPARTMMMENT manuals so close in time to the

EXAMINATION led to confusion regarding the current SOPs, including but not

limited to, building terminality, equipment terminology, and radio communications.

Additionally, the DEPARTMENT neglected to highlight the changes in SOP, which

forced the examinees to dedicate countless hours comparing the NEW MANUAL to the

old.

f. Furthermore, apart from the SOP regarding high-rise fires, the division of

training did not implement the SOP from the NEW MANUAL until after the

EXAMINATION. Therefore, during the time between the release of the NEW

MANUALS and the EXAMINATION Firefighters, including Plaintiffs, were still

being trained on the old SOP.

g. Based on information and belief, the list of key words and phrases used in

creating the answer key for the EXAMINATION was negligently leaked when an

Firefighter lifted the list that an Assistant Deputy Chief negligently left on his desk.

h. Based on information and belief, the "brass" intentionally leaked information,

including a list of key words, to certain individuals, including "legacies" and younger

firefighters, who the "brass" wanted to place high on the ELIGIBILITY LIST.

I. For example, based on information and belief: (1) While conducting and/or

participating in the study groups of applicants for the EXAMINATION, Chief Officers,

including Battalion Chief Audrey Lee, used the word "homework," a key word used on

the EXAMINATION. There was no mention of the key word "homework" in any of

the materials distributed by the DEPARTMENT, but oddly certain test-takers knew to 17


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use this phrase on the EXAMINATION and received points for doing so. (2) Prior to

the EXAMINATION, while URQUIAGA was at a truck drill, a Battalion Chief spoke

of the upcoming EXAMINATION. The Battalion Chiefreviewed a possible

developing scenario involving "a 55 gallon drum in a building." Strangely, one of the

EXAMINATION scenarios involved a 55 gallon fuel drum on the second floor of an

apartment building.

J. Because there were four versions of the "Fire Scene and First Aid Simulation

Exercise" the EXAMINATION was not uniform. Some participants were presented

with problems that gave them the opportunity to demonstrate their knowledge of

policies and procedures (i.e., engine response to a high-rise fire) while others were

given problems that gave reduced opportunity to gain points (i.e., truck response to a

high-rise fire). These different scenarios/problems also had different difficulty levels.

k. The EXAMINATION format, consisting of writing answers in small boxes, did

not give the examinees enough space to answer the questions adequately. It was also

very difficult for examinees to put all their thoughts down in such a small space and

still make answers legible. This is especially true with regard to the older more

experienced Firefighters who had more knowledge to convey.

I. Based on information and belief, the DEPARTMENT used inappropriate,

unbalanced and unfair methodology to normalize scores between different versions of

the test.

m. Based on information and belief, there were some corrections made to the

EXAMINATION on the day of the EXAMINATION.

n. Based on information and belief, the EXAMINATION did not conform to the

updated SOP of the SFFD contained in the NEW MANUALS. Based on information

and belief, this is because the Chiefs who created the EXAMINATION answer key

were not sufficiently familiar with the new practices and procedures documented in the

NEW MANUALS.

Ill

COMPLAINT FOR DAMAGES Case No. CGC JO - 501981

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c 0. For example: (I) The EXAMINATION required that examinees identify any

additional resources required. This is normally the duty of the Battalion Chief, with the

exception of calling for a Second Alarm - a very specific situation which allows the

first due officer to call for a second alarm, i.e. a fire in a second structure. (2) A new

larger hose-line was introduced, two and a half inches, for larger fires, however, in the

warehouse fire scenario; the correct answer included the use of a one and three quarter

inch line for a large fire.

p. Experienced examinees, who previously served at "Like-Work Like-Pay,"

Acting, and Provisional Lieutenants, were forced to choose between what their

experience had taught them was the correct operating procedure and what they thought

would be the correct answer on the EXAMINATION.

q. The practice key distributed to all applicants for the EXAMINATION showed

the Engine receiving a water supply from the rear of the Engine, however, "THERE

ARE NO INLETS ON THE BACK OF THE ENGINE!!!"

r. Examinees were issued points for drawing in their own additions to the

scenarios. One cannot add new water outlets in real life at a real fire; Firefighters must

use what is available at the scene!.

s. The applicant pool was overpopulated because the DEPARTMENT allowed

laterally hired paramedic Firefighters (LATERAL PARAMEDICS) to sit for the

EXAMINATION. Although these LATERAL PARAMEDICS did attend the Fire

Academy in order to qualify for the H-3 Firefighter Paramedic position, these

LATERAL PARAMEDICS were not required to take the entrance exam, where

thousands apply, but very few make it to the DEPARMENT, served their required

probationary period as a paramedic and not a Firefighter, and bypassed training in the

tower, a requirement for all directly hired Firefighters.

t. The applicant pool was further overpopulated by the DEPARTMENT's

allowance ofDPH paramedics, who transferred into the DEPARTMENT pursuant to

the 1997 merger of DPH and the SFFD, to sit for the H-20 examination. The only fire 19


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suppression training these DPH paramedics received an accelerated Fire Academy

program and minimal fire training.

u. Poor amateur civilian actors were utilized in the role-playing aspect of the

"Training I Performance Counseling Exercise" instead of using Firefighters, which was

the DEPARMENTS previous policy for past supervisory examinations. Also, using

civilian actors is unrealistic because in practice Lieutenants train/counsel Firefighters

who have completed the Fire Academy, EMT school, and at least some of, if not all, or

their probationary period, not amateur civilians who have little to no fire suppression or

EMT training/experience.

v. Photos taken of buildings along with the matching schematics of the building

and street, other buildings, and vehicles in front of the buildings were inconsistent in

terms of measuring distance and size.

w. The DEPARTMENT rushed into pushing the examination process in motion

without a solid SOP in place to build an examination from.

x. Allen Wong, who helped develop the examination while working for the CSC,

who had intimate knowledge of the EXAMINATION, was allowed to take and passed

the same EXAMINATION he helped develop. This is also true regarding the H-2

entrance examination Allen Wong was hired under. Moreover, and interestingly, Allen

Wong was initially assigned to take the afternoon session of the EXAMINATION,

however, he requested, and was granted, to be changed to the morning session of the

EXAMINATION, keeping in mind that 50 points were automatically deducted from the

score of afternoon examinees.

y. William A. Mulkeen (MULKEEN), confused by the DEPARTMENTS's

complicated scoring system, asked one of the human resources personnel to help him

work out his score. Although MULKEEN' s score-sheet displayed a failing score, the

human resources officer informed him that he actually passed. The human resources

officer then called his supervisor, who called back I 0 minutes later explaining that

MULKEEN didn't pass because he and the human resources officer used the wrong


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multiplier.

z. When V. WONG went to review his score sheet he gave his name and

identification number, but was given the wrong score sheet.

aa. When Stanley H. Lee reviewed the calculation of his score sheet he was

surprised to find that the points awarded to him on a specific scenario exceeded the

maximum available points for that scenario.

bb. Based on information and belief, according to the EXAMINATION scoring

rules no person was to receive a zero for any portion or scenario; however, many

examinees received zeros, including KNIGHT. On information and belief this also

bodes true regarding negative scores.

cc. Based on information and belief, examinees who gave the same answers

received different scores.

dd. Based on information and belief examinee score sheets were not rated

independently as required, but graded collaboratively at the outset, as evidenced by

each score sheet appearing to have not only the same score, but the same handwriting.

ee. Based on information and belief, when a Firefighter who remembered the

answer he gave in response to a specific question asked a grader about the accuracy of

his answer the grader stated that his answer was the "best answer," although his answer

was not consistent with Department SOP. However, when that Firefighter spoke to

another examinee who also remembered his response to that particular question, the

other Firefighter stated that he answered the question using the SOPs contained in the

NEW MANUAL, and somehow received no points.

ff. According to KNIGHT, "[d]uring the counseling portion of the examination, I

was going over materials that should have been in the [EXAMINATOIN] packet. The

probie[5] training book was missing from the packet. I told the proctor about the

missing book and was told, 'If it's not there it's not there. Continue with the exam.'

28 5 "Probie" is short for probation or probational.


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8 86.

On that portion of the [EXAMINATION] I received a zero. I spoke with other testers

and some were also missing that book. I later found out the answer to the counseling

portion of the [EXAMINATION] was in the book [I was missing]." (Italics & Bold

added.)

gg. In addition to the foregoing it is believed that there are many other issues

relating to the preparation, administration, and scoring of the promotional examinations

that are irregular and/or questionable.

Based on information and belief, many of these problems and flaws were intentionally

9 staged to bolster the chances of "legacies" and to hinder the promotions of older experienced

10 Firefighters over the age of 40.

II 87. Pursuant to the Uniform Guidelines on Employee Selection Procedures (UGESP), 29

12 C.F.R. § 1607 (1978), certain steps must be taken to ensure that any device used for the selection of

13 candidates for any position.

14 88. While the SFFD has allegedly done a job analysis for the Battalion Chief position,

15 Plaintiffs is informed and believes and alleges that said job analysis was and is deficient.

16 89. The UGESP are quite clear regarding the requirements for establishing validity, and

17 when coupled with issues raised regarding administrative and scoring practices purportedly adopted by

18 the City with the EXAMINATION, it would appear that African-American/Black Firefighters who

19 took the EXAMINATION have a legitimate grievance and have suffered injury regarding this

20 promotional process.

21 90. The UGESP also state that"[ w ]here the selection procedure purports to measure a

22 knowledge, skill, or ability, evidence that the selection procedure measures and is a representative

23 sample of the knowledge, skill, or ability should be provided."

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91. Moreover, the EXAMINATION was not sufficiently job-related.

a. The information tested on the EXAMINATION was not practical or realistic

regards to responding to an incident. The EXAMINATION was not designed to asses

leadership skills needed in the field, which is the main and most important component

of serving as a Lieutenant. 22


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b. A written examination does not reflect the skills and abilities necessary for a

Fire Officer. It cannot give the examiner an idea of the leadership skills, confidence

level, stress, or command presence required to supervise and communicate with

superiors while in the field.

c. Further, the written fire simulation portion of the examination was not

representative of the duties of a Lieutenant because it omitted the most critical aspects

of being an officer in the SFFD, which is the ability to communicate verbally with both

subordinates and the command staff. By eliminating the verbal answers

DEFENDANTS negated years of operational experience and conditioning to view,

analyze, prioritize, and verbalize a scene size up on the EXAMINATION.

Accordingly, the industry standard is a verbal assessment as opposed to a written

assessment. According to Plaintiffs, "[w]e do not respond on a piece of paper, we

respond on a radio. A written examination is not real[istic y]ou have to verbalize in

real-time."

d. According to JOE, an"[ o ]ral exam tests the examiners command presence and

knowledge by tape recording the examination. The written exam does not show the

hesitation in your voice, nor the mistakes in your decisions. On the written exam you

can erase all of your mistakes." The EXAMINATION "tested how small and legible

you could write as [the highest scorer] could demonstrate. I have never written what to

do at a fire ever in my life, but I could tell you verbally how and what you do to put out

afire."

e. According to TANIMURA, "[t]he knowledge of an experienced Firefighter

can't be shown in a written test because it is static. The fire-scene is a dynamic

environment where your decisions are made based on your experience [as a

Firefighter]."

f. According to Robert Wong, another Firefighter who is not a party to this action,

"[i]n a true fire scenario you don't WRITE down your actions, you verbalize them!

You don't have 20 minutes to decide on your actions, they get done on the spot." 23


1 92. Based on information and belief, prior to the date that the EXAMINATION was to be

2 administered, other changes were made to the content of the EXAMINATION and the method by

3 which the EXAMINATION was to be administered. These changes favored the more inexperienced,

4 younger firefighters who were under 40 years of age.

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INJURY FIRE FACTS

93. Since the expiration of the consent decree, beginning in 2006, the SFFD has

administered five or so promotional examinations, most of which had not been given for

approximately 10 years.

94. Subsequent to the administration of these recent examinations, and promotions from

those examinations, there have been notable fires where Firefighters were injured.

95. All of these injury fires involved newly appointed H-20 Lieutenants, H-30 Captains,

and H-40 Battalion Chiefs. Among them, two fires are commonly referred to the Tiffany's high-rise

fire and the Revere A venue warehouse house fire.

96. On October 14, 2009, a fire broke out in the Tiffany building, 360 Post Street, located

on Union Square. The building was filled with smoke, putting entering Firefighters in danger.

97. Ten Firefighters were taken to the hospital with smoke inhalation and 40 more were

treated on the scene for smoke inhalation, putting almost a fifth of the Fire Department out of

commission. Many mistakes were made during the suppression ofthis fire. They are as follows.

98. The "Lobby Command," a safety system set up to track which Firefighters are inside a

burning structure, was unable to track companies due to both a late set up of the "Lobby Command"

and Firefighters entering the building through another entrance without checking in with "Lobby

Command," as mandated in the SFFD SOPs.

99. The Department did not know exactly how many Firefighters or which specific

Firefighters were in the building, which in turn made it impossible to know if the building was clear in

case of emergency. Furthermore, the companies operating under Fire Attack6 were never formally

identified, further leaving command unaware of where companies were and leaving companies in the

28 6 Firefighters who enter the burning structure.


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I burning structure unaware and unsure of what companies were with them, creating the possibility of

2 leaving Firefighters unaccounted for.

3 100. The fire alarm panel was "lit up" and the first light was in the basement. Instead of

4 following the direction of the fire alarm panel the commanding officers and Firefighters on the scene

5 followed the smoke, searching floors five through eleven before checking the basement, where the fire

6 was located. The basement was not checked until 16 minutes after the initial alarm box was pulled.

7 101. Instead of searching the basement first, or even after searching the upper floors after

8 finding no sign of a fire, Firefighters continued to search upper floors with no positive results.

9 102. According to the Fire Safety Report 17 H-20 Lieutenants were involved, four H-40

I 0 Battalion Chiefs were in command at the scene, all of whom were promoted pursuant to the recent H

I I 20, H-30 Captain, and H-40 Battalion Chief examinations.

12 103. Additionally, many H-30 Captains, promoted pursuant to the recent promotional

13 examinations, were also at the scene. Disciplinary actions to this date are pending.

14 104. Subsequently, a fire safety investigation was conducted on the above fire, which

15 resulted in the finding of many inadequacies among those who commanded the fire suppression.

16 105. Pursuant to these findings numerous recommendations were made, among which are

17 the following: in the future, all members must : know procedures as described in the manuals and

18 adhere to them, maintain company unity, maintain a buddy system, fulfill their apparatus assigned

19 position, wear their self-contained breathing apparatus and comply with the SFFD respiratory

20 protection program when in an IDLH environment, and carry some means to prevent doors from

21 locking; Company Officers must : follow a single action plan, maintain company unity, maintain

22 discipline on the fire ground, check in with Incident Command prior to engaging in fire ground

23 activities or operations, and check and verifY original address on the dispatch; Battalion Chiefs

24 assigned to ICS positions (Fire Attack, Safety. Staging, Division/Group. etc.) must: know the duties of

25 the position assigned to them, know the location of said companies at all times, and Lobby Control

26 must have a means to record and track companies and equipment as they pass through; the Incident

27 Command must: ensure that group/division/crew continuity is maintained during fire suppression

28 operations and announce to all companies the location of Triage, Treatment, and Transportation area. 25


1 106. On May 21, 2009, a three-alarm fire broke out at a warehouse located on Revere

2 A venue. The structure was identified as a single-story warehouse with a wood roof and concrete

3 parapet wall - a continuation of an exterior wall beyond roof level. According to fire safety expert

4 Vincent Dunn, just the presence of these walls should have been considered a collapse warning sign.

5 When Firefighters arrived on the scene the structure was engulfed in flames.

6 107. After arriving on the scene Deputy Chief of Operations Patrick Gardner claimed that he

7 gave a clear order to establish a safety zone. Contrary to the SOP of the Department, Gardner's orders

8 were never dispatched over the radio to other officers at the scene according to incident reports, radio

9 transcripts, recordings of radio communications between officers and incident command, and other

10 sources in the SFFD. Gardner's failure to follow Department SOP resulted in the limited distribution

11 of his orders.

12 108. Designated safety officer Battalion Chief Bryan Rubenstein, who was also promoted

13 pursuant to the recent H-30 Captain and H-40 Battalion Chief examinations, was also involved in the

14 command of the Revere Avenue fire. Rubenstein stated in his incident report that he was in the midst

15 of conducting a 360-degree examination of the structure when the wall collapsed. Before he made his

16 rounds, Rubenstein stated that he advised crews to stay away from the sidewalk next to the building,

17 but that he "did not pull crews back [one to one and a half] times the height of the building," as

18 required by the SOP of the Department.

19 109. Firefighter Mike Estrada was injured when a portion of the outer wall suddenly came

20 crashing down while he was manning the front of a large 3-inch hose line as instructed by his superior.

21 Estrada was knocked unconscious and buried under a pile of blazing debris, suffering severe injures

22 such as numerous broken bones and bums.

23 110. Battalion Chief Charles Crane, another firefighter promoted pursuant to both the H-30

24 Captain and the H-40 Battalion Chief Examination, had been supervising Estrada and his crew at the

25 time of the subject fire; visited Estrada while Estrada was in the hospital. During this visit, Battalion

26 Chief Crane took full responsibility for what had happened. According to incident reports Crane had

27 received a verbal order from Deputy Chief of Operations Gardner to clear the safety zone a few

28 minutes prior to the collapse. Crane did not indicate whether he relayed this command and instead 26


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wrote, he instructed crews - including Estrada's - to continue working.

INDIVIDUAL FACTUAL BACKGROUND

JOHN H. DANNER III

111. Plaintiff, John H. Danner III (DANNER), was born on May 27, 1957 and was 50 years

old at the time he filed his charge for age discrimination.

112. DANNER's employment background includes eighteen years of firefighting

experience.

113. DANNER chose to be a Firefighter so that he could help people.

114. During his career DANNER has received several awards, among which is a Class B

1 O Meritorious Conduct Award 7 received for rescuing an individual from a burning building while he was

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off duty.

115. Prior to the EXAMINATION DANNER served as an Acting Lieutenant8 from

November 2004 through November 2005 and a "Like-work Like-Pay"9 Lieutenant from November 4,

2007 through October 2008. Directly preceding the examination DANNER was responsible for the

training of a probationary Firefighter for a six month period.

116. DANNER has completed all of the required courses for the California State Fire

Marshal's Officer Certificate and the following classes: three Weapons of Mass Destruction classes,

Incident Response to Terrorist Bombings, Incident Response to Suicide Bombings, and Wild Land

7 A "Class B Meritorious Conduct Award" is given when a Firefighter acts in a voluntary nature in relation to the saving of human life under dangerous conditions and at great personal risk. The recipient also receives a monetary award in the amount of $250.

8 Acting denotes a Firefighter serving in a position higher than that of their permanent rank every day, without rank insignia, but is not rotated on a city wide basis. A person in an Acting position is given a consistent assignment by the assignment office and their time off is paid according to the rank they are serving.

9 "Like-Work Like-Pay" denotes a rotating, city wide, daily assignment to a position of higher rank (i.e. a spot is vacant because of sickness, vacation, or there is a vacant position, etc.) depending on your standing (i.e. if there is a list the Department goes by the list; if there is no list the Department goes by seniority). When working "Like-Work Like-Pay" the Firefighter is afforded all of the responsibilities but few of the privileges. They are paid day to day in accordance with the position to which they are serving, but are paid in accordance to their permanent position with regards to vacation and sick pay and receive no rank insignia. It is not uncommon for Firefighters to work in "Like-Work Like-Pay" positions for years. Prior to the May 2008 H-20 Lieutenant Examination many H-20 Lieutenant positions were filled by "Like-Work Like-Pay" Firefighters acting as Lieutenants


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-1 Training.

2 117. DANNER began preparing for the EXAMINATION around March of2008 by

3 studying the DEPARMENT MANUALS. However, approximately four months prior to the

4 EXAMINATION, the DEPARMENT came out with NEW MANUALS that revamped the

5 DEPARTMENT's SOP which forced DANNER to recreate the wheel in terms of the past SOP that

6 had been engrained into him during his many years of service with the SFFD.

7 118. DANNER also studied the preparation handout given by the Examination Unit.

8 DANNER's experience working as a Lieutenant for four years also prepared him for the

9 EXAMINATION.

10 119. DANNER sat for the morning session of the first portion of the EXAMINATION,

11 allegedly scored below the cut-off score of 500 points, and therefore, neither qualified to take parts

12 two and three of the EXAMINATION, nor made the ELIGIBILITY LIST.

13 120. DANNER's permanent rank is H-2 Firefighter and he is currently assigned as an H-2

14 Firefighter on Truck 14. DANNER feels that this most recent assignment is due to the fact that he was

15 unfairly demoted based on the results of the EXAMINATION.

16 121. As a result of the EXAMINATION, which DANNER believes to be discriminatory,

17 DANNER has experienced weight loss and restlessness, among other symptoms.

18 DONALD R. DURKEE JR.

19 122. Plaintiff, Donald R. Durkee Jr. (DURKEE), was born on May 12, 1956 and was 53

20 years old at the time he filed his charge for discrimination.

21 123. DURKEE's employment background includes 21 plus years of firefighting experience.

22 124. DURKEE joined the SFFD because he enjoys helping others and the work schedule.

23 125. Prior to the EXAMINATION DURKEE served as a "Like-Work Like-Pay" Lieutenant

24 from 1999 through 2003 and as an Acting Lieutenant from February 2003 through November 2008.

25 While working as a Lieutenant DURKEE supervised four to five Firefighters at the station house, at

26 fires, and other emergencies on daily basis, many of whom were subsequently promoted to Lieutenant

27 pursuant to the EXAMINATION.

28 Ill


28

c 1 126. DURKEE began studying for the EXAMINATION four months prior to its

2 announcement. In preparation, DURKEE studied the DEPARTMENT manuals and bulletins, attended

3 small study groups, constantly studied on his own, and worked as a Lieutenant for nine years prior to

4 the EXAMINATION.

5 127. However, approximately four months prior to the EXAMINATION, the DEPARMENT

6 came out with NEW MANUALS that revamped the DEPARTMENT's SOP which forced DURKEE

7 to recreate the wheel in terms of the past SOP that had been engrained into him during his many years

8 of service with the SFFD.

9 128. DURKEE sat for the morning session of the first portion of the EXAMINATION,

10 scored above the cut-off score of 500 points, and therefore qualified to take parts two and three of the

11 EXAMINATION. DURK.EE scored 810 out of 1000 and was number 361 out of 409 on the

12 EXAMINATION ELIGIBILITY LIST, thus eliminating his chance for promotion.

13 129. DURKEE's permanent rank is H-10 Incident Scene Specialist (ISS) and is currently

14 assigned as an H-10 ISS at Division Three. DURK.EE believes that this most recent assignment is due

15 to the fact that he was unfairly demoted based on the results of the EXAMINATION.

16 130. As a result of the EXAMINATION, which DURKEE believes to be discriminatory,

17 DURKEE has experienced, and is experiencing, depression, among other symptoms. According to

18 DURKEE: "I feel slighted by the fact that after all my years of dedication and all of my years of

19 experience and expertise, I am bombarded everyday by a bunch of inexperienced Lieutenants who do

20 not know what the job entails. It is a painful for me and may possibly cost astronomical loss to the life

21 and property of San Franciscans. Equally as depressing is the pay-cut I have taken. The pay-cut

22 seems irrational, causes me anxiety and bouts of high blood pressure."

23 131. After the EXAMINATION, in efforts to understand the shocking conclusion of an

24 examination which resulted in very few experienced Firefighters over forty making the ELIGIBILITY

25 LIST, DURK.EE made a grievance regarding his EXAMINATION results through the San Francisco

26 Black Firefighters Association (SFBF A). No response was received.

27 132. In November 2008, DURKEE filed his initial claim in this matter with the United

28 States Equal Employment Opportunity Commission (EEOC) and the DFEH. DURKEE believes that 29

COMPLAINT FOR DAMAGES Case No. CGC 10-501981

c

1 the SFFD was served with notice of this claim pursuant to the guidelines of the EEOC and DFEH.

2 133. Subsequent to filing the above claim, DURKEE put in a bid for the spot of Division

3 Three Incident Scene Specialist, Tour 30. DURKEE was initially awarded the spot, but the

4 Department never actually moved him into his awarded position. DURKEE contacted several Fire

5 Chiefs regarding his concern over the department's failure to place him in the position he was

6 awarded. The DEPARTMENT's initial response was that the policy for placement in regards the

7 position that he was awarded had changed, and that Chiefs could now personally pick the Incident

8 Scene Specialist that they want. DURK.EE replied that he had not been informed of this change in

9 DEPARMENT administration, and that this changed the policy that had been in place during his 20

10 year tenure with the DEPARMENT.

11 134. DURKEE continued his efforts in pursuing the position he was initially awarded, but

12 was then informed that the Chief who he would be driving, Chief Bernie F. Lee, did not want him as

13 his Incident Scene Specialist. DURK.EE spoke to Chief Lee about his alleged statement and Chief Lee

14 informed DURKEE that "[he] did not say that." Chief Lee spoke to Chief Patrick Gardner about

15 having DURK.EE placed in the position that he had been previously awarded. Chief Gardner made a

16 phone call to the Assignment Office directing them to place DURKEE in the position he sought.

17 Before DURKEE could be assigned to the position in question, he was injured and forced to take

18 disability leave for approximately two months and work light duty for approximately three months.

19 135. When DURKEE returned to full duty, he went to the Assignment Office and requested

20 he be returned his awarded position, Division Three Incident Scene Specialist, Tour 30. The

21 Assignment Office informed DURKEE that they would have to check with Chief Gardner. After a

22 week or so, the Assignment Office informed DURKEE that he had never been awarded that position,

23 and that he would stay in the swing position where he was re-assigned due to the appointments made

24 pursuant to the EXAMINATION ELIGIBILITY LIST. Therefore, DURKEE was relegated to waiting

25 approximately one year before he could again bid for the Division Three Incident Scene Specialist,

26 Tour 30 position. During the time that DURKEE was waiting to re-bid for this position, it was filled

27 by an H-2 Firefighter, a legacy, who had much less seniority than DURKEE and who was not on the

28 Incident Scene Specialist's Seniority List.


30

---~,_,..... _____ , ___ _ c

I 136. All the foregoing activity occurred after the filing ofDURKEE's initial EEOC and

2 DFEH claims, and was in direct retaliation for filing those claims, a protected activity under both

3 federal and state law.

4 STEPHEN C. ENGLER

5 137. Plaintiff, Stephen C. Engler (ENGLER), was born on February 9, 1969 at University of

6 California San Francisco Children's Hospital and was 41 years old at the time he filed his charge for

7 discrimination.

8 138. ENGLER's employment background includes nineteen years of firefighting experience.

9 From 1998 through 2000 ENGLER served as a Director for LOCAL 798.

10 139. ENGLER choose to be a Firefighter because he wanted to help people at their worst

11 times and because he thought that it was an honorable profession.\

12 140. During his career ENGLER received several awards, among which is: a Class D

13 Meritorious Conduct Award Unit Citation with Rescue One and a Class C Meritorious Conduct Award

14 on December I, 2000 for quick, efficient, and professional actions that prevented the resident of a

15 building from incurring a serious injury or loss of life.

16 141. Prior to the EXAMINATION, ENGLER served as a "Like-Work Like-Pay" Lieutenant

17 from March 20, 2004 through March 15, 2008, an Acting Lieutenant from March 15, 2008 through

18 October 26, 2008. During that period, ENGLER was responsible for the training of probationary

19 Firefighters and supervised three to four Firefighters at all but two stations over 360 watches. Many of

20 those ENGLER supervised are now Lieutenant's who were promoted pursuant to the

21 EXAMINATION. From January 2, 1997 through May 23, 2000, ENGLER fought over 100 structure

22 fires.

23 142. During his career, ENGLER attended and passed numerous State Fire Marshal

24 Certifications, including: Basic ICS, Fire Investigation IA and IB, Hazardous Material Technician,

25 Hazardous Materials IA - I G, Introduction to !CS, and all relevant recertifications. ENGLER has

26 also completed the following licensures/certifications: Apparatus Operator, Confined Space, Defib

27 Training, Drive with Lights and Sirens, Education for Investigator, Fire Engine Pump Operator, Fire

28 Scene Diver Certified, Fireboat Certified, Hazardous Material Specialist, Heavy Rescue Course I,


31

1 Office of Emergency Services (OES) Wild Land Training, Peer Fitness Trainer, Scuba Diver Certified,

2 Surf Rescue Certification, and Tiller Section of Fire Truck, along with all relevant recertifications.

3 143. In preparation for the EXAMINATION ENGLER began studying daily on June 22,

4 2004, the date he first served as a "Like-Work Like-Pay" Lieutenant-the point in ENGLER's

5 Firefighting career where he felt that his knowledge and experience had prepared him to move up in

6 the ranks. While serving as a Lieutenant ENGLER studied daily so he could keep familiar with the

7 requirements and SOPs of his supervisory position. Further, ENGLER regularly assigned himself

8 home study so that he could keep up with cutting edge firefighting techniques and procedures.

9 144. Beginning August 2007, the date ENGLER purchased the old department manuals,

10 ENGLER began studying at least three hours a day "putting to memory every and all aspects of [his]

11 job as a supervisor and anything [he] could be examined on."


13 came out with NEW MANUALS that revamped the DEPARTMENT's SOP which forced ENGLER



16 146. ENGLER was also a member of an informal study group comprised of numerous

17 Firefighters who studied frequently during downtime on the job. ENGLER also spoke regularly with

18 Firefighters he thought would do well on the EXAMINATION, mentored others, and frequently

19 served as a Lieutenant for four years.

20 147. Additionally, ENGLER strongly believes that his experience working on the busiest

21 engine in the nation at Station 3 for 13 years, taking 35 plus calls a day, gave him the experience and

22 training necessary to fulfill the abilities and skills of a Lieutenant. From 1996 to 2004 ENGLER

23 "owned" a spot at Station 3, however, from 2004 through 2008, while serving as Acting and "Like-

24 Work Like-Pay" Lieutenant, ENGLER intermittently served at Station 3 in a supervisory capacity due

25 to the fact that he was rotated from station to station around the city.

26 148. ENGLER sat for the afternoon session of the first portion of the EXAMINATION, thus

27 50 points were automatically deducted from his score. ENGLER allegedly scored below the cut-off

28 score of 500 points and therefore, neither qualified to take parts two and three of the


32

c

1 EXAMINATION, nor made the ELIGIBILITY LIST.

2 149. ENGLER's permanent rank is H-2 Firefighter and he is currently assigned as a

3 Firefighter on Truck Six. ENGLER believes that this most recent assignment is due to the fact that he

4 was unfairly demoted based on the results of the EXAMINATION.

5 150. As a result of the EXAMINATION, which ENGLER believes to be discriminatory,

6 ENGLER's demotion has reduced his annual salary significantly. ENGLER also feels the judgment of

7 his peers, anxiety, confusion at work, and the feeling of failure, along with numerous other effects at

8 work and at home.


10 examination that resulted in very few experienced Firefighters over forty making the ELIGIBILITY

11 LIST, ENGLER made a request, through the LOCAL 798, to examine the answer sheet, answer key,

12 and scoring methodology of the EXAMINATION. This request remains pending.

13 152. ENGLER also submitted a Sunshine Request to view "the answer sheets for the

14 [EXAMINATION] for simultaneous comparison to the scoring sheets I completed for the same

15 examination ... so I can verify the tabulation of the points that I receive upon the [EXAMINATION]

16 scoring sheets." ENGLER's rationale was as follows: "[f]ollowing the standardization of my

17 examination results, I fell 17 points outside of the pool of eligible applicants allowed to proceed to the

18 oral [] phase of the test. Any scoring oversight or mathematical miscalculation would be significant in

19 my ability to participate in the oral component of the [EXAMINATION] scheduled for August 2008."

20 153. The SFFD "located records which may [have been] considered responsive to

21 [ENGLER's] request," however, his request was denied on the ground that "those records constitute

22 and/or contain exam questions and other examination data used to administer an examination for

23 employment and are exempt from disclosure pursuant to the CA Public Records Act §6245(g) and SF

24 Administrative Code §67.24 [;that] the records also constitute personnel records, none of which are

25 not exempt [sic] from disclosure pursuant to SF Administrative code §67.24(c). Therefore, ENGLER

26 has received no transparency regarding the EXAMINATION.

27 Ill

28 Ill


33

1 CARLOS HOY

2 154. Plaintiff, Carlos Hoy (HOY), was born on November 15, 1951, and was 58 years old at

3 the time he filed his charge for discrimination.

4 155. HOY's employment background includes 23 years of firefighting experience.

5 156. Prior to joining the SFFD HOY served as a Marine for the United States Marine Corp

6 for 11 and a half years. HOY graduated from Boot Camp as Series Honor-Man, first in class, which is

7 highest honor one can graduate with. A Series Honor-Man serves as the Platoon Commander's right-

8 hand-man. While serving as a Series Honor-Man HOY, although not the officer in charge, supervised

9 an entire platoon comprised of four squads of 13, or 55 persons. Because HOY excelled in leadership,

10 he quickly moved up the ranks and always had a supervisory position. HOY's next promotion was to

11 Sergeant then to Staff-Sergeant. While serving as a Staff-Sergeant HOY maintained his supervisory

12 duties of the platoon, but was also put in charge of administrative work within the unit. Subsequently,

13 HOY was promoted to Gunnery-Sergeant where Sergeants, Corporals, Lance-Corporals, and Non-

14 Commissioned-Officers were placed under his command, while still in charge of a Platoon.

15 157. HOY choose to be a Firefighter so that he could serve the citizens of San Francisco by

16 "protect[ing their] property and Life!"

17 158. Prior to the EXAMINATION HOY served as a "Like-Work Like-Pay" Lieutenant from

18 November 1998 through December 31, 2006 and an Acting Lieutenant from January 7, 2007 through

19 October 24, 2008. During the years preceding the EXAMINATION, HOY was responsible for the

20 probationary training of six firefighters in six month intervals.

21 159. During his career, in efforts to better himself as a Firefighter and in preparation for

22 upcoming promotional examinations, HOY completed the following licenses/certifications: Apparatus

23 Operator, Bilingual Spanish, CPR Re-recognition, Defib Training, Drive with Lights and Sirens, Fire

24 Engine Pump Operator, Fire Service Diver Certified, Health and Safety I, Live Fire Training, Mod 12

25 Disaster Prep I, Mod 14 Disaster Prep 11, Mod 7 Confined Space, Rapid Intervention Crew Training,

26 RIC Evolutions, RIC Search Practices/Operations, Surf Rescue Certification, Tiller Section of Fire

27 Truck, and Weapons of Mass Destruction, along with all relevant recertifications.

28 Ill

COMPLAINT FOR DAMAGES Case No. CGC IO - 501981

34

-- -- ---·-----

-")

1 160. In preparation for the EXAMINATION HOY began studying at least four hours a day

2 six months prior to the EXAMINATION. HOY regularly studied all the manuals, practiced writing in

3 confined spaces once he learned that the EXAMINATION would be written, and regularly practiced

4 drills and scenarios. HOY also studied with a study group where members discussed different

5 scenarios. While going out as a Lieutenant HOY also studied and reviewed the manuals regularly in

6 order to keep up to date on DEPARTMENT SOPs, specifically those necessary to run station drills.

7 Further, the experience HOY gained while working as a Lieutenant for 10 years also helped prepare

8 him for the EXAMINATION.


10 came out with NEW MANUALS that revamped the DEPARTMENT's SOP which forced HOY to

11 recreate the wheel in terms of the past SOP that had been engrained into him during his many years of

12 service with the SFFD.

13 162. HOY sat for the morning session of the first portion of the EXAMINATION, allegedly

14 scored below the cut-off score of 500 points and therefore, neither qualified to take parts two and three

15 of the EXAMINATION, nor made the ELIGIBILITY LIST.

16 163. HOY's permanent rank is H-2 Firefighter and he is currently assigned as Hose Tender

17 48 Driver. Hoy believes that, this most recent assignment is due to the fact that he was unfairly

18 demoted based on the results of the EXAMINATION.

19 164. As a result of the EXAMINATION, which HOY believes to be discriminatory, HOY's

20 demotion has reduced his annual salary significantly. HOY has experienced, and is experiencing,

21 sleeplessness, eating less, loss of weight, restlessness, anxiety, and high blood pressure, among other

22 symptoms.

23 ALFRED K. JOE

24 165. Plaintiff, Alfred K. Joe (JOE), was born on June 24, 1961 at Chinese Hospital,

25 Chinatown, San Francisco, and was 48 years old at the time he filed his charge for discrimination.

26 166. JOE's employment background includes 18 plus years of firefighting experience. Prior

27 to joining the SFFD JOE, amongst other jobs, served as a Seasonal Wild Land Firefighter for the

28 Department of Forestry, Sate of California, for one summer.


35

I 167. JOE chose to become a Firefighter "because [he] enjoys helping others ... and is proud

2 that [his] life experiences help in the removal of victims trapped in vehicles as well as in fires.

3 [JOE's] work as a park director in the mission district added to [his] choice of staying at Station 7,

4 [located] in the heart of the mission, to help the people there as well as [persons] in the rest of the

5 city."

6 168. During his career, among other awards, JOE received a thank you letter from the

7 recruitment officer Theresa Madden for his assistance with recruitment.

8 169. Prior to the EXAMINATION JOE served as a "Like-Work Like-Pay" Lieutenant from

9 2000 through February 2007 and an Acting Lieutenant from February 2007 through October 2008.

I 0 JOE also served as an H-16 Department Videographer.


12 upcoming promotional examinations, JOE has obtained the following California State Fire Marshal

13 Certifications: Chiefs Aid; Rescue Systems I and 2; Fire Investigation IA, IB, 2A, and 2B;

14 Hazardous Material Technician; Hazardous Materials IA - JG; and all relevant recertifications. JOE

15 has also completed the following licensureslcertifications: Bilingual Cantonese, Bureau of

16 Personnel, Chiefs Aid, Firefighter Recruit Training, Drive with Lights and Sirens, Education for

17 Investigator, Fire Engine Pump Operator, WMD Radiological/Nuclear Course for Hazardous

18 Materials Technicians, Hazardous Materials Specialist, Heavy Rescue Course I and 2, Scuba Diver

19 Certified, Till Section of Fire Truck, Weapons of Mass Destruction, Incident Response to Terrorist

20 Bombing Awareness Training Course, Incident Response to Terrorist Bombings, P.C. 832 Arrest and

21 Control, and all relevant recertifications.

22 171. One year before the EXAMINATION JOE began reading all of the manuals at Station

23 23 and studied at home daily. However, approximately four months before the examination, JOE was

24 forced to purchase the NEW MANUALS to replace those from which he had been studying, forcing

25 JOE to recreate the wheel in terms of the past SOP that had been engrained into him during his many

26 years of service with the SFFD.

27 Ill

28 Ill 36


--------------- ---- --- - ------- ------------------~---------------- ---------~------- - -

1 172. JOE also studied with a study-group consisting of Firefighters from Station 23. On

2 several occasions Chief Rudy Castellanos served as a guest speaker and spoke about the

3 EXAMINATION and study techniques. Beginning in February 2008 JOE studied with another study

4 group consisting of 15 to 20 Firefighters from Station 7. This study group met every day and held

5 numerous practice sessions, including written practice sessions. The experience JOE gained while

6 working as a Lieutenant for eight years also helped prepare him for the EXAMINATION.

7 173. JOE sat for the morning session of the first portion of the EXAMINATION, allegedly

8 scored below the cut-off score of 500 points, and therefore, neither qualified to take parts two and

9 three of the EXAMINATION, nor made the ELIGIBILITY LIST.

10 174. JOE's permanent rank is H-10 Incident Scene Specialist and he is currently assigned as

11 an H-10 Incident Scene Specialist a Station 7. JOE believes that this most recent assignment is due to

12 the fact that JOE was unfairly demoted based on the results of the EXAMINATION.

13 175. Upon his demotion, JOE was not allowed to return to his position of Division ISS,

14 which he "owned" from 1997 through 2007, but was moved to a different station where he was

15 constantly "ribbed" over his demotion from Acting Lieutenant to Battalion ISS.

16 176. As a result of the EXAMINATION, which JOE believes to be discriminatory, JOE's

17 wages have dropped significantly and he has experienced, and is experiencing: weight gain; the

18 financial inability to have another child as JOE and his wife had planned; "emotional stress" from the

19 "ever continuous comments from Lieutenants that passed the [EXAMINATION,]" often making them

20 (almost] impossible to work with on a daily basis; difficulty getting along with his co-workers; high

21 blood-pressure; and anger.

22 177_ After the EXAMINATION, in efforts to understand the shocking conclusion of an


24 LIST, JOE wrote a letter to Micki Callahan, Human Resource Director for the Department of Human

25 Resources City and County of San Francisco, in order to air his complaints regarding the

26 EXAMINATION. The only response JOE was given was a letter closing his complaint.

27 ///

28 ///


37

c 1 MARKE.KANE

2 178. Plaintiff, Mark E. Kane (KANE), was born on September 25, 1954 at Saint Francis

3 Hospital in San Francisco and was 55 years old at the time he filed his charge for discrimination.

4 179. KANE's employment background includes twenty-eight years of firefighting

5 experience.

6 180. In following a family tradition of civil service KANE chose to be a Firefighter so that

7 he can protect the life and property of the citizens of San Francisco.

8 181. During his career KANE received several awards, among which are: a Class C

9 Meritorious Conduct Award ' 0 on April 25, 1986; a Letter of Commendation' 1 on September 4, 1990;

10 and a Letter of Commendation on April 12, 1991.

11 182. Prior to the EXAMINATION KANE served as a "Like-Work Like-Pay" Lieutenant

12 from approximately December 1989 through June 2004 and as an Acting Lieutenant from

13 approximately June 2004 through October 2008. During the five years preceding the

14 EXAMINATION KANE was responsible for the probationary training of seven firefighters in six

15 month intervals and during his career KANE was also responsible for supervising many of the

16 Lieutenants who were promoted pursuant to the EXAMINATION.


18 upcoming promotional examinations, KANE has obtained the following Certifications/Licensures:

19 Confined Space; Scuba Diver Certified; Fire Service Diver Certified; Heavy Rescue Course 1; and

20 Surf Rescue Certification.

21 184. KANE purchased the old DEPARTMENT manuals and began studying for the

22 EXAMINATION six months prior to its administration. However, approximately four months prior to

23 the EXAMINATION, the DEPARMENTcame out with NEW MANUALS that revamped the

24 DEPARTMENT's SOP, forcing KANE to recreate the wheel in terms of the past SOP that had been

25

26

27

28

10 A "Class C Meritorious Conduct A ward" is given when a Firefighter acts with exceptional character and is associated with an unusual ability, personal initiative, and courage.

11 A "Class D Meritorious Conduct Award Unit Citation" and/or "Letter of Commendation" are given when a Firefighter acts with exceptional performance beyond which is normally expected at an emergency situation.


38

1 engrained into him during his many years of service with the SFFD.

2 185. KANE and other Firefighters also started a study group four months prior to the

3 EXAMINATION date. This group met regularly. In addition to KANE's study group working on

4 their own, they hired two professionals to help with the role playing scenarios. One of whom was a

5 former human resources man and the other an actress. The study group also invited other persons to

6 assess their progress. KANE felt they "were prepared." Further, the experience KANE gained while

7 working as a Lieutenant for 19 years also helped prepare him for the EXAMINATION.

8 186. KANE sat for the morning session of the first portion of the EXAMINATION, scored

9 above the cut-off score of 500, and therefore qualified to take parts two and three. KANE scored 824

10 out of 1000 and was number 332 out of 409 on the ELIGIBILITY LIST for the EXAMINATION,

11 thereby eliminating his chance for promotion.

12 187. KANE's permanent rank is H-2 Firefighter and he is currently assigned as Tiller Truck

13 6. KANE believes that this most recent assignment is due to the fact that he was unfairly demoted

14 based on the results of the EXAMINATION.

15 188. As a result of the EXAMINATION, which KANE believes to be discriminatory,

16 KANE has experienced difficulty sleeping, difficulty eating, weight issues, restlessness, anxiety, and

17 high blood pressure, amongst other symptoms.



20 LIST, KANE submitted a Sunshine Request for, among other things: (1) "[a]n alphabetical listing of

21 all members that participated in the May 18, 2008 Lieutenants promotional examination," (2) "[t]he

22 age and amount of service in the San Francisco Fire Department of all participants," (3) "[t]he

23 morning and afternoon breakdown of all test participants," and ( 4) "[a ]ny correspondence between the

24 Chief of Department and the Testing Unit concerning the [EXAMINATION]."

25 190. The SFFD "located records which may be considered responsive to [KANE's first

26 three] requests," however, his requests were denied on the grounds that "they constitute personnel

27 information and are therefore exempt from disclosure (California Government Code§ 6254(c))."

28 Concerning KANE's fourth request, the SFFD again located records which may be considered 39


-/

I responsive to his requests, however, his requests were denied on the grounds that "correspondences

2 containing information regarding the content of the [EXAMINATION], including test questions,

3 scoring keys, and other examination data, are exempt from disclosure (California Government Code §

4 6254(g))." Therefore, he has failed to achieve any transparency regarding the EXAMINATION.

5 191. On March 17, 2010, KANE, again, submitted a Sunshine request.

6 ROHAN KNIGHT

7 192. Plaintiff, Rohan Knight (KNIGHT), was born on June I, 1959 and was 50 years old at


9 193. KNIGHT's employment background includes nineteen years of firefighting experience

IO with the SFFD.

11 194. KNIGHT joined the SFFD because he loved working as a United States Navy

12 Firefighter and Navy Fire Instructor.

13 195. Prior to joining to the SFFD, KNIGHT was employed as a Firefighter with the United

14 States Navy for I 0 years. Hence, KNIGHT has a total of 29 plus years of firefighting experience.

15 During the first six years of service with the Navy KNIGHT was in charge of the supervision and

16 training of the damage control unit on the U.S.S. Talbot, a core group ofNavy Firefighters responsible

17 for all fire suppression aboard the Talbot. KNIGHT was also in charge of the maintenance of all fire

18 suppression equipment on board the Talbot. During the last four years of his service with the Navy,

19 KNIGHT served as an instructor at the Navy Fire School on Treasure Island, which required the daily

20 supervision and training of I 0 to 16 students.

21 196. Prior to the EXAMINATION KNIGHT served as an Acting Lieutenant from 1996

22 through October 2006, a Provisional 12 Lieutenant from 2006 through 2008, and often went out as a

23

24

25

12 "Provisional is the term used when an appointment is made to a permanent, declared permanent or temporary position in the absence of an available eligible or eligible list or in an emergency which in either case, is time limited to a Charter maximum of three (3) years unless otherwise approved by the Board of Supervisors. In accordance with Civil Service Commission rules,

26 provisional appointments ... are made on the basis of a combination of merit factors, equal employment opportunity and, if promotive, consideration of performance appraisal ratings and experience. Provisional employees may have some rights to 'just cause' and seniority for layoff purposes (see applicable [Collective Bargaining Agreement]), but do not acquire any preference or right to permanent employment." A Provisional 1:f8utenant has all the responsibilities and privileges

27

28


1 "Like-Work Like-Pay" Captain. During his career KNIGHT regularly supervised four persons while

2 serving on a truck and three while serving on an engine. KNIGHT has also supervised around 50 of

3 the Firefighters that have been promoted pursuant to the EXAMINATION ELIGIBILITY LIST for

4 various lengths of time.

5

6

7

8

9

a. In order to be promoted to a provisional position, KNIGHT was forced to sign

a waiver vacating his ownership of the spot he had earned though his years of seniority

in the DEPARTMENT. Based on information and belief, this waiver contained

language stating that the undersigned would continue at a minimum rank of Lieutenant

and was signed by the Chief of the DEPARTMENT.

10 197. In preparation for the EXAMINATION, KNIGHT began reading and studying the

11 materials listed in the study guide in March 2008. After being informed that the test would be written

12 instead of oral and required that answers be written in small boxes KNIGHT began preparing for a

13 written examination with limited space available for his answers. KNIGHT also rehearsed, practiced

14 various scenarios, and served as a Lieutenant for 12 years prior to the EXAMINATION.


16 came out with NEW MANUALS that revamped the DEPARTMENT's SOP and forced KNIGHT to



19 199. KNIGHT sat for the morning session of the first portion of the EXAMINATION,

20 scored above the cut-off score of 500 points, and therefore qualified to take parts two and three of the

21 EXAMINATION. KNIGHT scored 800 out of 1000 possible points and placed number 369 out of

22 409 on the ELIGIBILITY LIST, thereby eliminating his chances being promoted.

23 200. KNIGHT's permanent rank is H-2 Firefighter and he is currently assigned as an H-2

24 Firefighter, Driver Truck Forty-Eight. KNIGHT believes that this most recent assignment is due to

25 the fact that he was unfairly demoted based on the results of the EXAMINATION.

26 Ill

27 of a regular permanent Lieutenant, wears the uniform, rank and insignia of a permanent Lieutenant,

28 receives salary, overtime and time off as a Lieutenant, and may bid for a particular assignment.


41

-----------· ~-·-····------------·-······ ...

-1 201. As a result of the EXAMINATION, which KNIGHT believes to be discriminatory, his

2 income has dropped significantly and his ability to retire at a higher rank. According to KNIGHT: "I

3 have lost the love for a profession that I have been a part of since I was 18 years old. I have to work

4 under people who have far less experience and knowledge than I do. I, and others, fear that their

5 inexperience will lead to injury or loss oflife. When I work with a new Lieutenant with four years

6 experience who is now going out as a Captain it makes me sick to my stomach. My co-workers,

7 family, and friends [all] notice that my attitude towards the fire department has changed."



10 LIST, KNIGHT made a request to view the answer key, but was told that it was unavailable for

11 review.

12 ROBERTO J. LUCHA

13 203. Plaintiff, Roberto J. Lucha (LUCHA), was born on May 17, 1956 in the Mission

14 District of San Francisco and was 53 years old at the time he filed his charge for discrimination.

15 204. LUCHA's employment background includes nineteen years of firefighting experience.

16 205. "[LUCHA has] always wanted to be a firefighter. [He] enjoys the camaraderie, the

17 business, and the unique challenge it brought every day. [He also] enjoys being on the front lines.

18 [LUCHA] would not have any other job."

19 206. Prior to joining to the SFFD, LU CHA served in the Army National Guard and as a

20 Retired Military Officer for 32 years from 1973 until 2005. LU CHA also has an Associate in Science

21 from the City College of San Francisco.

22 207. LU CHA joined the Army National Guard in 1973 and entered Medic School after

23 completing Boot Camp. He served as a Combat Medic from 1974 through 1981. After completing

24 Officers Candidate School, LUCHA was commissioned as a Second Lieutenant in 1982 and was sent

25 to Fort Belvoir, Virginia to attend Army Engineer School, which he completed in 1982. While serving

26 as a Second Lieutenant LUCHA was a Platoon Leader where he regularly supervised 30 soldiers and

27 as an Assistant Detachment Commander where LU CHA regularly supervised around 60 soldiers.

28 After completing Engineer School LUCHA was accepted into Army Flight School in 1983, graduated 42


c

1 as a Helicopter Pilot, and was promoted to First Lieutenant. While serving as a First Lieutenant, in

2 addition to being a pilot, LUCHA was a Platoon Leader responsible for supervising 60 persons in an

3 aviation unit. LUCHA's Platoon was comprised of four squads of 40 Commissioned and Warrant

4 Officer Pilots and 20 Non-Commissioned-Officers. From 1983 through 1987 LUCHA flew Medevac.

5 After flying Medevac, LUCHA was accepted into Chinook Heavy Lift School and graduated as a

6 Chinook Heavy Lift Helicopter Pilot. LUCHA is also qualified as a Spanish translator/interpreter at

7 the highest Army level and served in Central American Countries, which required him to pass and

8 maintain a Compartmentalized Top Secret Clearance. LUCHA was Honorably Discharged from

9 Active Service in 1991 and retired from the reserves in June 2005.

10 208. In addition to the foregoing, LU CHA received a Letter of Commendation, awarded on

11 September 6, 1998, for his exceptional performance in fighting a building fire where LU CHA entered

12 a burning building, fought the fire with a large line, performed several sweeps, and assisted in saving

13 the life of a fellow firefighter who had become entangled and injured.

14 209. Prior to the EXAMINATION LUCHA served as a "Like-Work Like-Pay" Lieutenant

15 from 2004 until 2005, an Acting Lieutenant in 2005, a Provisional Lieutenant from 2005 through

16 October 2008, and regularly served as a "Like-Work Like-Pay" Captain from August 2006 through

17 October 2008. During the years preceding the EXAMINATION, LUCHA was responsible for the

18 probationary training of four firefighters, one of whom is now his supervisor.

19

20

21

22

23

a. In order to be promoted to a provisional position, LU CHA was forced to sign a

waiver vacating his ownership of the spot he had earned though his years of seniority in

the DEPARTMENT. On information and belief, this waiver contained language stating

that the undersigned would continue at a minimum rank of Lieutenant and was signed

by the Chief of the DEPARTMENT.


25 upcoming promotional examinations, LUCHA attended and passed numerous classes administered by

26 the California Fire Service Training and Education System, National Fire Academy, Fire Service

27 Training & Education Program, California Specialized Training Institute, and The Commission on

28 Peace Officer Standards and Training. Additionally, LUCHA has completed the California State Fire 43


I Training Certification track for Fire Officer which includes the following classes: Command IA,

2 Command IB, Command IC, Instructor IA, Instructor IB, Investigation IA, Management I,

3 Prevention IA, and Prevention IB, along with all relevant recertifications. LUCHA has also

4 completed the following licensures/certifications: Spanish Bilingual Examination, Apparatus Operator,

5 Defib Training, Drive with Lights and Sirens, Fire Engine Pump Operator, Fire Service Diver

6 Certified, Hazardous Material Specialist, Heavy Rescue Course I, Metro Medical Task Force, OES

7 Wild Land Training, Scott Annual Knowledge/Skills, Scuba Diver Certified, and Tiller Section of Fire

8 Truck, along with all relevant recertifications.

9 211. LU CHA began preparing for the possibility of an upcoming Lieutenant examination

I 0 four years prior to the EXAMINATOIN by completing the State Fire Marshal Certification Track for

11 Fire Officer. While going out as a Lieutenant LUCHA also studied and reviewed the manuals

12 regularly in order to keep up to date on DEPARTMENT SOPs, specifically the SOPs necessary to run

13 station drills.

14 212. LUCHA began studying at least 10 hours a week six months prior to the

15 EXAMINATION, both at work and at home. As soon as the NEW MANUALS were released

16 LU CHA purchased them and studied them whenever he could. However, approximately four months

17 prior to the EXAMINATION, the DEPARMENT came out with NEW MANUALS that revamped the

18 DEPARTMENT's SOP and forced LUCHA to recreate the wheel in terms of the past SOP that had

19 been engrained into him during his many years of service with the SFFD.

20 213. LU CHA was also a member of a study group at his home station. Whenever persons at

21 the Station where LUCHA was assigned did not want to study, he studied by himself. Further, the

22 experience LUCHA gained while working as a Lieutenant for four years also helped prepare him for

23 the EXAMINATION.

24 214. LUCHA sat for the afternoon session of the first portion of the EXAMINATION,

25 because of which 50 points were automatically deducted from his score. He scored above the

26 minimum 500 point requirement for the written portion of the EXAMINATION and therefore

27 qualified to take parts two and three of the EXAMINATION. Overall, LUCHA scored 853 out of

28 I 000 on the EXAMINATION and placed 258 out of 409 on the ELIGIBLE LIST, thus eliminating his 44


·------·-----·-----·-· -· ' ·-'

I chances for a promotion.

2 215. LUCHA's permanent rank is H-2 Firefighter and he is currently assigned as an H-2

3 Firefighter. LU CHA believes that this most recent assignment is due to the fact that he was unfairly


5 216. As a result of the EXAMINATION, which LUCHA believes to be discriminatory and

6 resulted in his demotion, LU CHA has taken a significant reduction in pay and receives his time off,

7 including vacations, at a reduced rate of pay. Because LUCHA was serving as a "Like-Work Like-

8 Pay" Captain, being demoted to H-2 Firefighter served as a double-demotion. According to LUCHA,

9 "This demotion has had a devastating effect on my family and myself. I [feel I have] let my family

10 down, I [feel I have] let myself down. The only time I want to talk about it is when my wife senses

11 that I am down. Then I don't want to be a drag on her and will touch on it lightly. My sleep pattern

12 has catapulted into deep, deep insomnia, day and night, and my thoughts are peppered with this

13 demotion. It always comes back to this. When I go to work I feel humiliated. I feel like the last man

14 standing on scorched earth (everything around me has collapsed). I don't feel happy. My wife says it

15 is affecting our marriage and I agree with her. I would like to be made WHOLE again."

16 ROBERTS. MATEIK

17 217. Plaintiff, Robert S. Mateik (MA TEIK), was born on December 18, 1955 and was 52

18 years old at the time he filed his charge for discrimination.

19 218. MATEIK's employment background includes nineteen years of firefighting experience.

20 MATEIK has a California Geologist Licenses and worked for many years as a geologist - mineral,

21 petroleum, and environmental.

22 219. During his career MATEIK received several awards, among which is: a Class D

23 Meritorious Conduct Award Unit Citation given on February 12, 2004 for MATEIK's exceptional

24 performance during a rescue involving light rail.

25 220. Prior to the Lieutenant's examination MATEIK served as a "Like-Work Like-Pay"

26 Lieutenant for one and a half years sometime betweenl997 and 1999. During his career MATEIK was

27 also responsible for training probationary firefighters.

28 ///


45

·------~-------- ·---


2 upcoming promotional examinations, MA TEIK completed classes with the State Fire Marshal as

3 follows: Fire Prevention lB, Fire Investigation lB, Haz Mat Specialist, Rescue Systems one and two,

4 and Hazardous Material Technician A - G, along with all relevant recertifications. MA TEIK has also

5 completed the following licensures/certifications: Rescue Systems 1-2; apparatus Operator, Defib

6 Training, Drive with Lights and Sirens, Fire-Engine Pump Operator, Scuba Diver Certified, Open-

7 water 2/Advanced Scuba, Fire Service Diver, Hazardous Material Specialist, Heavy Rescue Course 1,

8 and Tiller Section of Fire Truck, along with all relevant recertifications.

9 222. MA TEIK began studying 10 to 30 hours a week around three months prior to the

10 EXAMINATION. His daily/weekly studying increased as the examination approached and he was

11 also a member of an informal study group at work. The experience MA TEIK gained while working as

12 a Lieutenant for one and a half years also helped prepare him for the EXAMINATION.


14 came out with NEW MANUALS that revamped the DEPARTMENT's SOP and forced MATEIK to



17 224. MATEIK sat for the afternoon session of the first portion of the EXAMINATION, thus

18 50 points were automatically deducted from his score. MATEIK allegedly scored below the cut-off



21 225. MATEIK's permanent rank is H-2 Firefighter and is currently assigned as an H-2

22 Firefighter on Truck 6. MA TEIK believes that this most recent assignment is due to the fact that he

23 was unfairly demoted based on the results of the EXAMINATION.

24 226. As a result of the EXAMINATION, which MATEIK believes to be discriminatory,

25 MATEIK has experienced difficulty sleeping, issues with eating, loss of weight, restlessness, anxiety,

26 difficulties at home, and maintains a lack of confidence in SFFD leadership.

27 227. MATEIK submitted a Sunshine request in efforts to view his answer sheet, the answer

28 key, and the scoring methodology of the examination. This request was denied. 46

COMPLAINT FOR DAMAGES Case No. CGC IO - 501981

···-···-··----··· ... ·········--·---------------------

I ELI F. PAYTON

2 228. Plaintiff, Eli F. Payton (PAYTON), was born on July 7, 1953 and was 56 years old at


4 229. PA YTON's employment background includes 23 years of firefighting experience.

5 230. PAYTON chose to become a Firefighter because he wanted to help people and so that

6 he could be a role model for younger people in the community, evidenced by his many community

7 activities which include coaching and mentoring young people.

8 231. Prior to joining to the SFFD, amongst other jobs, PAYTON worked as an Airframe and

9 Power Plant Mechanic for Trans World. While working for Trans World Airlines PAYTON was

10 promoted to "Lead man" on the shift, which required him to attend leadership school to train for the

11 position.

12 232. PAYTON has received numerous letters of commendation and a Certificate of

13 commendation for his usher duties at firefighting ceremonies, serving as a panel member for the H-2

14 Firefighter oral interview selection process, for responding to a citizen call, for perfect attendance for

15 the year of 1990, and participation in the Physical Agility Test process at the Division of Training.

16 233. Prior to the EXAMINATION PAYTON served as a "Like-Work Like-Pay" Lieutenant

17 from June 13, 1999 through February 16, 2005, an Acting Lieutenant from February 16, 2005 through

18 February 26, 2006, a Provisional Lieutenant from February 27, 2006 through October 28, 2008, and

19 often went out as a "Like-Work Like-Pay" Captain beginning in February 2006. During his tenure as

20 an Acting Lieutenant and Captain PAYTON was responsible for training numerous probationary

21 trainees and, during his supervisory career, supervised almost all of the new Lieutenants promoted


23

24

25

26

27

a. In order to be promoted to a provisional position, PAYTON was forced to sign

a waiver vacating his ownership of the spot he had earned though his years of seniority

in the DEPARTMENT. On information and belief, this waiver contained language

stating that the undersigned would continue at a minimum rank of Lieutenant and was

signed by the Chief of the DEPARTMENT.

28 234. Among other courses, PAYTON has received the following California State Fire


47

c

1 Marshal Certifications: Fire Prevention lA, Fire Prevention lB, Fire Management 1, Fire Command

2 lA, Fire Command lB, and Fire Instructor lA, along with all relevant recertifications. PAYTON has

3 also completed the following modules with the Carl Holmes Executive Development Institute (EDI):

4 Module I - Management Relations, Team Building Techniques 1, Understanding fire Dept. budget

5 Process, Marketing in the Fire Service; Module II - Assessment Centers as a Promotional Tool, what

6 getting promotions means, Fire Prevention Programs Phase one and two, and Team building Tech. 2;

7 Module III - Performance Standards one and two, Fire Service Organization Assessment Process

8 Phase 1, Community Affairs and Public Relations, and Effective Management System Team Building

9 three; and Module IV - Legal Risk Analysis for the Fire Dept., Project Management, Survival Skills

10 of Company Officers, Team Building Techniques 4, and Computer as a Management Tool, along with

11 all relevant recertifications. In addition to the foregoing PAYTON has also received, among others,

12 the following licenses/certifications: Defib Training, Drive with Lights and Sirens, OES Wild Land

13 Training, Chiefs Aid, Heavy Rescue Course 1 - 2, Urban Search and Rescue, Apparatus Operator,

14 and Fire Engine Pump Operator, along with all relevant recertifications.

15 235. PAYTON, having heard of rumors of an upcoming EXAMINATION two years prior to

16 its administration, purchased every training manual his division of training printed so that he could

17 study two to three hours at home every day. PAYTON also studied at home daily so that he could

18 keep up to date on the DEPARTMENT SOPs necessary to fulfill his supervisory position as a

19 Lieutenant and in order to prepare for drills and train those under him, including probationary

20 Firefighters.

21 236. However, approximately four months before the examination, PAYTON was forced to

22 purchase the NEW MANUALS to replace those he had been studying from. These manuals changed

23 the DEPARTMENT's SOP and forced PAYTON to recreate the wheel in terms of the past SOP that

24 had been engrained into him for his many years of service with the SFFD.

25 237. After hearing rumors of the EXAMINATION, PAYTON went down to the Department

26 of Training to inquire if there were any EXAMINATION materials available, but was informed that

27 there were none available for distribution. As stated above the preparation materials for the

28 EXAMINATION were not released until April 18, 2008, one month prior to the EXAMINATION. 48


-·-.,.;

1 238. PAYTON was also part of a study group, guided by the SFBFA, of 15 to 20

2 Firefighters that met frequently during the six months prior to the EXAMINATION and took classes

3 offered by professionals and Firefighter employee organizations. The experience PAYTON gained

4 while working as a Lieutenant for nine years also helped prepare him for the EXAMINATION.

5 239. PAYTON sat for the afternoon session of the first portion of the EXAMINATION, thus

6 50 points were automatically deducted from his score. PAYTON allegedly scored below the cut-off



9 240. PAYTON's permanent rank is H-10 Incident Scene Specialist/Chiefs Aid and is

10 currently assigned as an H-10 Incident Scene Specialist. PAYTON believes that this most recent

11 assignment is due to the fact that he was unfairly demoted based on the results of the

12 EXAMINATION.

13 241. As a result of the EXAMINATION, which PAYTON believes to be discriminatory,

14 PAYTON has taken a significant reduction in pay and receives his time off, including vacations, at a

15 reduced rate of pay. Because PAYTON was serving as a "Like-Work Like-Pay" Captain, being

16 demoted to H-10 Firefighter served as a double-demotion.

17 242. Additionally, PAYTON has also experienced weight loss, loss of appetite,

18 sleeplessness, family/marital problems, embarrassment facing friends and colleagues, and anxiety

19 about his future and career, among other symptoms.

20 243. According to PAYTON, "[t]hinking about adjusting to life in the Department as a

21 [F]irefighter was [and is] very distressing and embarrassing because I was informed I had no rights to

22 the H-10 Incident Scene Specialist position I held ten years ago before becoming an officer. The

23 [DEPARTMENT] did not offer me any retraining or accommodation for such a change. The wage

24 difference from H-30 [Captain] to H-2 [Firefighter] is $12.70 per hour which was a difficult

25 adjustment in a household budget."

26 244. PAYTON made a request, through the Black Firefighters Association, to examine the

27 answer sheet, answer key, and scoring methodology of the EXAMINATION. This request was

28 denied.


49

I 245. PAYTON also made an oral complaint to the Deputy Chief of his department, to which

2 he received no response.

3 ERIC T. TAN/MURA

4 246. Plaintiff, Eric T. Tanimura (TANIMURA), was born on February 19, 1964 in the

5 Richmond district of San Francisco, and was 46 years old at the time he filed his charge for

6 discrimination.

7 247. TANIMURA's employment background includes 12 years of firefighting experience.

8 248. TANIMURA choose to become a Firefighter because he enjoys "helping people and

9 the excitement."

I 0 249. During his career T ANIMURA received several awards, among which are Rotary Club

11 Firefighter of the Year 2007 and a Class D Meritorious Conduct award for his exceptional

12 performance in helping to save a distressed surfer stuck in a rip-current.

13 250. Prior to the Lieutenant's examination TANIMURA served as a "Like-Work Like-Pay"

14 Lieutenant from November 2004 through October 2008. While working as a "Like-Work Like-Pay"

15 Lieutenant T ANIMURA supervised various numbers of Firefighters as follows: Engine - 3

16 Firefighters; Truck - 4 Firefighters; and Engine and Ambulance - 3 Firefighters, I EMT, and I

17 Paramedic.

18 251. During his career, in efforts to better himself as a Firefighter, and in preparation for

19 upcoming promotional examinations, TANIMURA completed numerous State Fire Marshal

20 Certifications, including: Hazardous Materials IA- JG, along with all relevant recertifications.

21 Additionally, T ANIMURA successfully completed the following licensures/certifications: I and

22 !Ambulance Qualifier, CPR, EMT, Rescue Ambulance Certified EMT, Surf Rescue Certification, and

23 Hazardous Material Specialist, along with all relevant recertifications.

24 252. Nine months prior to the EXAMINATION TANIMURA began to review Department

25 manuals. However, approximately four months prior to the EXAMINATION, the DEP ARMENT

26 came out with NEW MANUALS that revamped the DEPARTMENT's SOP and forced TANIMURA




50

1 253. Approximately four months prior to the EXAMINATOIN TANIMURA began studying

2 with a study group and simulating practice scenarios and took two classes to help prepare him for the

3 EXAMINATION. The experience T ANIMURA gained while working as a Lieutenant for three years

4 also helped prepare him for the EXAMINATION.

5 254. TANIMURA sat for the morning session of the first portion of the EXAMINATION,

6 allegedly scored below the cut-off score of 500 points, and therefore, neither qualified to take parts

7 two and three of the EXAMINATION, nor made the ELIGIBILITY LIST.

8 255. TANIMURA's permanent rank is H-2 Firefighter and he is currently assigned at

9 Engine 28 as an H-2 Firefighter. TANIMURA believes that this most recent assignment is due to the

IO fact that TANIMURA was unfairly demoted based on the results of the EXAMINATION.

11 256. As a result of the EXAMINATION, which TANIMURA believes to be discriminatory

12 and which resulted in his demotion, TANIMURA has taken a significant pay cut and constantly thinks

13 about the EXAMINATION. Among other symptoms TANIMURA has experienced, and is

14 experiencing a lack of motivation, demoralization because the lack of transparency leaves him with no

15 way of knowing how to improve for future examinations, sleeplessness.

16 PAUL T. URQUIAGA

17 257. Plaintiff, Paul T. Urquiaga (URQUIAGA), was born on September 19, 1958 at San

18 Francisco General Hospital and was 51 years old at the time he filed his charge for discrimination.

19 258. URQUIAGA's employment background includes 26 plus years of firefighting

20 experience and 17 years serving as an officer, 5 years in the Daly City Fire Department as a temporary

21 Captain and 12 years serving as an Acting and Provisional Lieutenant and "Like-Work Like-Pay"

22 Captain.

23 259. URQUIAGA choose to become a Firefighter because he admired watching the

24 Firefighters of the SFFD while growing up in Eureka Valley. URQUIAGA admired the Firefighters'

25 courage, the excitement of the fire scene, and in tum instilled in him the desire to help people.

26 260. As a child growing up in a family with Native-American and Hispanic roots

27 URQUIAGA was taught to respect all nations and their people. Within the Native-American

28 community the modem warriors of our nations are honored and respected for their contributions to 51


- - ----·---··----- -·---------------- ------------------------- -- -

1 society and the community. These warriors are the men and women of our armed forces, police, and

2 Firefighters. Persons who serve and protect the people. These people are honored for their

3 commitment to the nation and the community. These people are respected leaders of our nations and

4 communities. They serve as role models for all further generations. As a Firefighter I am respected as

5 a warrior and leader within the Native American Community.

6 261. Prior to his employment with the SFFD, URQUIAGA served as a Firefighter with the

7 Daly City Fire Department (DCFD) for nine plus years, amongst other jobs.

8 262. During his tenure with the DCFD URQUIAGA served as an entry level Firefighter,

9 Engineer/Operator, and an Acting Captain. While serving as an Acting Captain from 1988 through

10 1992 URQUIAGA was responsible for supervising a station in Daily City with as many as three

11 apparatus and 10 personnel.

12

13

14

15

16

17

18

19

20

21

22

23

a. URQUIAGA's career goal was to become a San Francisco Firefighter. As a

native San Franciscan he wished to be a Firefighter in the great City in which he was

born and has lived in his entire life. He believed that his knowledge of San Francisco,

its citizens, and organizations would be an asset to the SFFD.

b. In 1982 URQUIAGA applied for an H-2 Firefighter position with the SFFD, the

DCFD, and Contra Costa Fire Department through a multi-agency examination

sponsored by the International Association of Federal Firefighters. He passed all three

written examinations, the physical agility examinations, and placed 13 out of 500 on

the DCFD's oral entrance examination. URQUIAGA was offered and accepted a

position with the DCFD in 1982 because he felt that his experience and education there

would make him a better candidate for the SFFD.

c. URQUIAGA left the DCFD to pursue a Firefighter position within the SFFD.

24 263. URQUIAGA received a Letter of Appreciation from the SFFD, Battalion Chief Art

25 Kenney for responding with the Bay Area Office of Emergency Services Strike Team to the Pebble

26 Beach Fire of 1987. While serving as a Firefighter in the Daly City Fire Department URQUIAGA

27 received eight Letters of Commendation, four Letters of Appreciation, and six Letters of Participation.

28 264. Prior to the EXAMINATION URQUIAGA served as a "Like-Work Like-Pay"


52

..•. ······--·-----------------------

I Lieutenant from July I997 through February 200I, an Acting Lieutenant from February 200I through

2 February 2006, a Provisional Lieutenant from February 2006 through February 2008, and often went

3 out as a "Like-Work Like-Pay" Captain from September 2006 through October 2008. While serving

4 as both a Lieutenant and Captain URQUIAGA supervised many of the new Lieutenants promoted


6

7

8

9

IO

a. In order to be promoted to a provisional position, URQUIAGA was forced to

sign a waiver vacating his ownership of the spot he had earned though his years of

seniority in the DEPARTMENT. Based on information and belief, this waiver

contained language stating that the undersigned would continue at a minimum rank of

Lieutenant and was signed by the Chief of the DEPARTMENT.

I I 265. During his career URQUIAGA also participated in fighting many fires outside of the

12 SFFD'sjurisdiction, including but not limited to, the Pebble Beach Fire of I987 and the Oakland fire

I3 of I991. URQUIAGA also responded with the SFFD Strike team to the 2007 Southern California

I 4 fires, Malibu Fire of I 995, and Napa Floods.

I 5 266. During his career, in efforts to better himself as a Firefighter and in preparation for

I6 upcoming promotional examinations, URQUIAGA completed numerous State Fire Marshal

I 7 Certifications, including: Fire Command IA - IB; Fire Command 2A- 2B; Fire Instructor IA; Fire

I8 Investigation IA; Fire Management I; Fire Prevention IA- IC; Hazardous Material Technician;

I 9 Hazardous Materials IA - I G; and all relevant recertifications. URQUIAGA has also successfully

20 completed the following licensures/certifications: Apparatus Operator, Chiefs Aid, Confined Space,

21 EEO Training, Fall 99 Millennium Roster, Fire and Explosion, Fire Apparatus and Equipment, Fire

22 Department Organization, Fire Engine Pump Operator, Fire Rescue Practices, Fire Science

23 Mathematics, Fire Science Strategy and Tactic, First Aid, General Ship-boarding Firefighting,

24 Hazardous Material Specialist, Hazardous Materials Technician, Hazardous Materials - Scene IC,

25 Health and Safety 1-4, Heavy Rescue Course 1-2, High-rise Firefighting Seminar, Live Fire Training

26 I-2, Living Fire Training, Metro Medical task Force, Disaster Preparedness I-2, Nuclear Accident

27 Course, OES Wild Land Training, Protection Equipment and Systems, Rapid Intervention Crew

28 Training, RIC Evolutions, RIC - Search Practices/Ops, Truck Company Operations, Wild-land Fire 53

COMPLAINT FOR DAMAGES Case No. CGC IO - 50I98I

c 1 Training, and Wild-land Firefighting Seminar, along with all relevant recertifications.

2 267. While serving as a Provisional and Acting Lieutenant, URQUIAGA created an

3 "Officer's Operation Guide," which he wrote to assist "Like-Work Like-Pay" Lieutenants with the

4 daily operations of a company, specifically to assist officers with the various computer programs and

5 reports. The guide consolidated information contained in numerous manuals and General Orders into

6 one manual. There was a great demand for URQUIAGA's guide; therefore it was widely distributed

7 to various members of the DEPARTMENT by URQUIAGA, and is still used by the SFFD to date.

8 268. In preparation for the EXAMINATION URQUIAGA purchased the Department

9 Manuals. However, approximately four months prior to the EXAMINATION, the DEPARMENT

10 came out with NEW MANUALS that revamped the DEPARTMENT's SOP and forced URQUIAGA



13 269. In further preparation URQUIAGA studied both sets of manuals, along with

14 Department Training Guides and Memos; reviewed and practiced fire scenarios in a study group;

15 practiced writing answers in the boxes, as indicated required by the EXAMINATION preparation

16 materials; reviewed the study materials provided by the examination unit, reviewed the answers from

17 the question and answer meeting that was held to answer questions regarding the testing procedures;

18 and worked as a lieutenant for 11 years prior to the EXAMINATION.

19 270. URQUIAGA sat for the morning session of first portion of the EXAMINATION,

20 allegedly scored below the cut-off score of 500 points and therefore, neither qualified to take parts two

21 and three of the EXAMINATION, nor made the ELIGIBILITY LIST.

22 271. URQUIAGA's permanent rank is H-2 Firefighter and he is currently assigned as an H-

23 10 Incident Scene Specialist at Station 36. URQUIAGA believes that this most recent assignment is

24 due to the fact that he was unfairly demoted based on the results of the EXAMINATION.

25 272. As a result of the EXAMINATION, which URQUIAGA believes to be discriminatory

26 and resulted in his demotion, URQUIAGA's salary decreased significantly and he receives his time

27 off, including vacations, at a reduced rate of pay. Because URQUIAGA was serving as a "Like-Work

28 Like-Pay" Captain, being demoted to H-2 Firefighter served as a double-demotion. According to


54

.... ·-··-------------------------· -

1 URQUIAGA, "[m]y life has been affected by the [EXAMINATION] from the day I received the letter

2 indicating that I had not passed the first portion of the [EXAMINATION]. I suffer from feelings of

3 failure, [both in regards to] my family, myself, and my community. I [have also experienced]

4 depression, sleep deprivation, restlessness, and anxiety regarding my safety at work." URQUIAGA

5 also feels that he has lost status in the DEPARTMENT.

6 273. URQUIAGA, through his union, requested to review his answer sheet, the answer key,

7 and the scoring methodology of the EXAMINATION. This request was denied.

8 274. Furthermore, URQUIAGA, on two occasions filed a written grievance with Micki

9 Callahan, Human Resources Director for the City and County of San Francisco. Ms. Callahan

10 responded that his protest was invalid because the results of the examination had not yet been scored.

11 VINCENT G. WONG

12 275. Plaintiff Vincent G. Wong (WONG) was born on March 12, 1966, and was 43 years

13 old at the time he filed his charge for discrimination.

14 276. WONG's employment background includes 15 years of firefighting experience.

15 277. WONG choose to be a Firefighter because he "really enjoy[s] helping others."

16 278. Prior to the EXAMINATION WONG served as "Like-Work Like-Pay" Lieutenant

17 from October 2006 through October 2008. While working as a "Like-Work Like-Pay" Lieutenant

18 WONG regularly supervised three to four Firefighters depending on the apparatus he was assigned,

19 i.e. truck versus engine, many of whom were promoted pursuant to the EXAMINATION.

20 279. During his career WONG received several awards, among which is a Class B

21 Meritorious Conduct Award given for WONG's exceptional efforts in rescuing an unconscious child

22 from a burning building and an Administrative Accomplishment A ward.


24 upcoming promotional examinations, WONG completed numerous State Fire Marshal Certifications,

25 including: Hazardous materials lA- IF, Hazardous Materials Specialist, and all relevant

26 recertifications. In addition to the foregoing WONG has also received, among others, the following

27 licenses/certifications: 911 Communication Center, Defib Training, Apparatus Operator, Hazardous

28 Material Specialist, Heavy Rescue course I, Fire Engine Pump Operator, Tiller Section of Fire Truck.


55

I WONG also served as an instructor for the SFFD Neighborhood Emergency Response Team Program

2 and as an office assistant for the N .E.R. T program.

3 281. WONG studied for the EXAMINATION for one year using various study methods,

4 studying 15 to 20 hours weekly. However, approximately four months prior to the EXAMINATION,

5 the DEPARMENT came out with NEW MANUALS that revamped the DEPARTMENT's SOP and

6 forced WONG to recreate the wheel in terms of the past SOP that had been engrained into him during

7 his many years of service with the SFFD.

8 282. In further preparation WONG read through and studied all of the NEW MANUALS, as

9 soon as they came out; was a member of two study groups; ran multiple drills in his study groups once

I 0 or twice a week; attended training courses administered by the Asian Firefighters Association, where

11 past and current Chiefs, Captains, and previous training officers visited and ran through numerous

12 various scenarios; and was going out as a Lieutenant every day he was at work. Additionally, while

13 going out as a Lieutenant, WONG often studied DEPARTMENT SOP prior to studying for the

14 EXAMINATION in order to keep up to date on his position.

15 283. WONG sat for the morning session of the first portion of the EXAMINATION,

16 allegedly scored below the cut-off score of 500 points and therefore, neither qualified to take parts two

17 and three of the EXAMINATION, nor made the ELIGIBILITY LIST.

18 284. WONG's permanent rank is H-2 Firefighter and is currently assigned as an H-2

19 Firefighter. Wong believes that this most recent assignment is due to the fact that he was unfairly


21 285. As a result of the EXAMINATION, which WONG believes to be discriminatory and

22 resulted in his demotion, WONG's yearly salary has decreased significantly and he receives his time

23 off, including vacations, at a reduced rate of pay. WONG has also experienced, and is experiencing, a

24 loss of confidence in the leadership of the SFFD, anxiety over the possibility of the New Lieutenant

25 under whom he works placing him in danger, loss of sleep, and he constantly thinks about his

26 demotion all the time, especially at work.

27 286. WONG made a request to review the answer sheet, answer key, and scoring

28 methodology of the EXAMINATION. This request was denied and no explanation was given. 56


FIRST CAUSE OF ACTION 1

2 (Age Discrimination in Violation of Government Code § 12940 et seq.)

3 287. Plaintiffs re-allege and incorporate by reference paragraphs I through 301 as though

4 fully set forth herein.

5 288. At all times mentioned herein, DEFENDANTS were employers within the meaning of

6 the California Fair Employment and Housing Act (Government Code Section 12940 et seq.), and

7 Plaintiffs were employees within the meaning of the Act.

8 289. At all times relevant to this Complaint, Plaintiffs were over forty years of age.

9 290. This cause of action is brought pursuant to the Act, and the corresponding regulations

10 of the California Department of Fair Employment and Housing. The unlawful practices alleged herein

11 occurred in the County of San Francisco, State of California.

12 291. Between March 4, 2010 and March 22, 2010, Plaintiffs filed charges of employment

13 discrimination on the basis of age discrimination with the DFEH. On or about the same date said

14 DEPARTMENT issued "Notice of Case Closure" letters advising Plaintiffs of their right to file this

15 action.

16 292. As laid out above, DEFEDNANTS, directly and through its employees and agents,

17 discriminated against Plaintiff because of their age in violation of the California Fair Employment and

18 Housing Act, specifically, Government Code Section 12940(a).

19 293. DEFENDANTS have been subjecting Plaintiffs to discrimination based on their being

20 over the age of 40, a protected class under California Fair Employment and Housing Act (Government

21 Code Section 12940 et seq.), since around MAY 18th 2008.

22 294. Plaintiffs experienced demotions and were not promoted due to the discriminatory

23 nature of the EXAMINATION. Plaintiffs are informed and believe and based thereon alleges that

24 individuals who were under 40 years old were promoted instead.

25 295. DEFENDANTS have exhibited a pattern and practice of age discrimination against

26 Plaintiffs as follows.

27 Ill

28 Ill


57

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-1 296. Younger less experienced Firefighters, under 40 years of age, who entered the

2 DEPARMENT between 1997 and 2006, were predisposed to perform well on a written examination.

3 297. Successfully filling out a 3807 Injury Report was worth 20 percent of the written

4 portion of the EXAMINATION, as stated in the above facts, the training/experience younger

5 Firefighters received gave them a greater advantage in this portion of the EXAMINATION.

6 Consequently, older Firefighters, who entered the DEPARTMENT prior to 1997, and who did not

7 received this training, were predisposed to score poorly on this written portion of the

8 EXAMINATION. The DEPARTMENT was well aware of these facts and utilized them to the

9 detriment of those over 40 years of age.

10 298. LOCAL 798's recommendation to reduce the applicant pool by requiring a minimum of

11 5 years in the department was rejected due to the lobbying of high ranking Firefighters who wanted

12 their children, "legacies" under the age of 40, to qualify to take the EXAMINATION, resulting in

13 adverse consequences and disparate treatment to Plaintiffs due to their age. Again, although the SFFD

14 was aware of this situation, the DEPARTMENT did absolutely nothing to balance this inequity.

15 299. Examinees over the age of 40 were adversely impacted due to the discriminatory nature

16 of the EXAMINATION. Ironically, the majority of these firefighters over the age of 40, most of

17 whom had 10 to 20 years experience, were knocked out of the process after section one because they

18 allegedly failed to meet the minimum requirements to move on.

19 300. Further, the voluminous errors and flaws contained in the EXAMINATION itself, as

20 well as in the flawed administration of the EXAMINATION resulted in adverse consequences and

21 disparate treatment to Plaintiffs due to their age.

22 301. Moreover, while it is true that other injury fires occurred prior to the administration of

23 the recent promotional examinations, these injuries were primarily due to unforeseen risks and freak

24 accidents, not the rookie mistakes described above which could have been avoided with the leadership

25 of experienced officers as evidenced by both the Post Street and Revere Street fires.

26 302. In regard to the Post Street fire, the above mistakes made by Command Firefighters and

27 the recommendations made by the safety report evidence a complete and utter breakdown of the

28 incident command system and fire ground discipline, the most important aspects of the required fire 58


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c -.,

1 suppression knowledge, skills, and abilities indispensable for those working as supervisors and in

2 positions of command.

3 303. In regard to the Revere Avenue fire, several "rookie" mistakes could have been avoided

4 had experienced command officers been in charge.

5 304. First, Deputy Chief of Operations Gardner, Battalion Chief Crane, and designate safety

6 officer Battalion Chief Bryan Rubenstein, again all promoted pursuant to the recent H-30 Captain and

7 H-40 Battalion Chief examinations, should have quickly created a safety/collapse zone after arriving

8 on the scene. Experienced command officers would have easily seen certain telltale signs: first, that

9 the combination of concrete parapet walls and a wood roof should have been considered a collapse

10 warning sign; second, as the fire had been burning for some time and the roof was burnt out, that the

11 main structural support for holding the exterior walls together had become structurally unsound.

12 Doing so could not only have prevented the life-threatening injuries suffered by Mike Estrada, but

13 possible life-threatening injury to all Firefighters on the scene, as well as any civilians in or around the

14 building.

15 305. Second, Deputy Chief of Operations Gardner and Battalion Chief Crane should have

16 given command orders through the radio as mandated by Department SOP. Both officers gave their

17 orders verbally, which in turn caused their orders to be disseminated to the few Firefighters within

18 earshot. Experienced Firefighter officers would have had Department SOP engrained as

19 commonplace and likely would not have made such a "rookie" mistake. Doing so could not only have

20 prevented the life-threatening injuries suffered by Mike Estrada, but possible life-threatening injuries

21 to all Firefighters on the scene, as well as any civilians in or around the building.

22 306. As a direct, foreseeable, and proximate result of said wrongful acts by DEFENDANTS,

23 Plaintiffs have suffered and will continue to suffer substantial losses in earnings and other employment

24 benefits, along with other incidental and consequential damages and losses, all in an amount to be

25 proven at time of trial. Plaintiffs claim such amounts as damages together with prejudgment interest

26 pursuant to Civil Code § 3287 and any other provision of law providing for prejudgment interest.

27 Ill

28 Ill


59

-'· 1 307. As a further direct, foreseeable, and proximate result of said wrongful acts by

2 DEFENDANTS, Plaintiffs have suffered and will continue to suffer humiliation, shame, despair,

3 embarrassment, depression, and mental pain and anguish, all to Plaintiffs' damage in an amount to be

4 proven at time of trial.


6 Plaintiffs have suffered and will continue to suffer loss of reputation, goodwill, and standing in the

7 industry in which Plaintiffs have worked, thus precluding or diminishing Plaintiffs' opportunity of

8 employment in the industry in which they have worked, all to Plaintiffs' damage in an amount to be


10 309. As a further direct, foreseeable, and proximate result of said wrongful acts by

11 DEFENDANTS, Plaintiffs have incurred attorneys' fees in an amount to be determined, for which

12 Plaintiffs' claim a sum to be established according to proof.

13 SECOND CAUSE OF ACTION

14 (Failure to Prevent Discrimination in Violation of Government Code Section 12940(k))

15 310. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 324 as though

16 fully set forth herein.

17 311. This cause of action is brought pursuant to the California Fair Employment and

18 Housing Act, including but not limited to Government Code § 12940(k), and the corresponding

19 regulations of the California Department of Fair Employment and Housing.

20 312. Once Plaintiffs received their EXAMINATION results, Plaintiffs complained to

21 DEPARTMENT management in various formal and informal fashions. Some Plaintiffs filed formal

22 and informal complaints to their superiors within the DEPARTMENT, while the majority of the

23 Plaintiffs filed official complaints with the EEOC, some of which were dual-filed with the DFEH.

24 313. DEFENDANTS failed to take reasonable steps necessary to prevent discrimination

25 from occurring with respect to Plaintiffs. Further, DEFENDANTS failed to investigate Plaintiffs

26 complaints and/or official charges of discrimination. As a result, Plaintiffs continued to experience

27 discrimination.

28 Ill


60

- -I 314. Such failure by DEFENDANTS constituted unlawful employment discrimination, and

2 was a substantial factor in causing damage and injury to Plaintiff as set forth below.


4 Plaintiffs have suffered and will continue to suffer substantial losses in earnings and other employment


6 proven at time of trial. Plaintiffs claim such amount as damages together with prejudgment interest



9 DEFENDANTS, Plaintiffs have suffered and will continue to suffer humiliation, shame, despair,

I 0 embarrassment, depression, and mental pain and anguish, all to Plaintiff's damage in an amount to be



13 DEFENDANTS, Plaintiffs have suffered and will continue to suffer loss ofreputation, goodwill, and

14 standing in the industry in which Plaintiffs have worked, thus precluding or diminishing Plaintiffs'

15 opportunity of employment in the industry in which they have worked, all to Plaintiffs' damage in an

16 amount to be proven at time of trial.


18 DEFENDANTS, Plaintiffs have incurred attorneys' fees in an amount to be determined, for which

19 Plaintiff claims a sum to be established according to proof, pursuant to Government Code§ 12965(b).

20

21

TIIlRD CAUSE OF ACTION AS TO PLAINTIFF DURKEE ONLY

(Retaliation in Violation ofFEHA, Gov. Code,§ 12940 (h))

22 319. Plaintiff DURKEE re-alleges and incorporates by reference paragraphs I through 333

23 as though fully set forth herein.

24 320. This is a claim for relief arising from retaliation against Plaintiff DURKEE only for

25 having opposed, reported, and filed a complaint based on age discrimination with the EEOC, a

26 protected activity. This action is brought pursuant to FEHA.

27 321. DURKEE belongs to a class protected by FEHA, i.e. discrimination based on age.

28 322. As a result of DURKEE having opposed said employment practices and filing a


61

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1 complaint based on age discrimination with the EEOC, DURKEE has suffered adverse employment

2 actions described above. These actions resulted in both DURKEE's demotion and DEFENDANT's

3 conduct, taken as a whole, materially and adversely affected the terms and conditions of DURKEE' s

4 employment.

5 323. DURKEE petitioned his superiors to cease and desist the retaliation described above

6 and consistently asserted his right to the spot he had been awarded. On each occasion, the petitions of

7 DURKEE were ignored and/or summarily rejected, despite the fact that DEFENDANTS were aware

8 of said unjustified treatment. For these reasons, DURKEE was forced to submit but another

9 administrative complaint to the DFEH and to sue herein.


11 DURKEE has suffered and will continue to suffer substantial losses in earnings and other employment


13 proven at time of trial. DURKEE claims such amounts as damages together with prejudgment interest



16 DEFENDANTS, DURKEE has suffered and will continue to suffer humiliation, shame, despair,

17 embarrassment, depression, and mental pain and anguish, all to Plaintiffs' damage in an amount to be



20 DURKEE has suffered and will continue to suffer loss of reputation, goodwill, and standing in the

21 industry in which he has worked, thus precluding or diminishing his opportunity of employment in the

22 industry in which he has worked, all to his damage in an amount to be proven at time of trial.


24 DEFENDANTS, DURKEE has incurred attorneys' fees in an amount to be determined, for which

25 DURKEE claims a sum to be established according to proof.

26 328. Plaintiff DURKEE suffered damages legally caused by these acts as stated in the

27 section below entitled "DAMAGES," which is incorporated here to the extent pertinent as if set forth

28 here in full.


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PRAYER FOR RELIEF

Wherefore, Plaintiff prays for judgment against defendant as follows:

a) Entry of judgment in favor of Plaintiffs and against DEFENDANTS;

b) For an order enjoining the DEFENDANTS from engaging in the unlawful conduct

complained of herein;

c) Decertification and revocation of the ELIGIBILITY LIST along with the administration

of a new, fair, and equitable examination with transparency of the testing process or

appointment of wronged Plaintiffs to the H-20 Lieutenant rank with appropriately

placed top seniority in the H-20 classification based on their seniority in their

permanent civil service rank and any and all equitable relief the court deems

appropriate to redress the harm done to plaintiffs;

d) Plaintiffs' also ask the court to fashion a remedy, which would provide and/or require

transparency and fairness of the examination process for all future department

promotional examinations;

e) For declaratory relief;

f) For a money judgment representing compensatory damages including lost wages, lost

earnings, lost benefits, lost retirement benefits all based upon lost seniority, along with

all other compensation denied or lost to plaintiff by reason ofDEFENDANT's

unlawful actions, including interest on those amounts, in an amount to be proven at

trial;

g) For compensatory damages for Plaintiffs' emotional pain and suffering;

h) For costs of suit, attorney fees and expert witness fees pursuant to 42 U.S.C. § 1988

and California Government Code § l 2965(b );

i) For prejudgment and post judgment interest, pursuant to California Civil Code§ 2387

and other applicable state laws, along with an upward adjustment for inflation;

j) For reinstatement; and

k) For any other relief that is just and proper.


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REQUEST FOR JURY TRIAL

Plaintiffs hereby request a Trial by Jury.

Dated: August 10, 2010 LAW OFFICES OF MURLENE J. RANDLE

1;_~ By:/ . ~ Murie ~e, Esq.

64 COMPLAINT FOR DAMAGES Case No. CGC 10 - 501981

Documents

11111111111111111111111111 - Fire Law Blog · c 1 21. On or about March 2010, within 60 days of receipt of each complainant's right to sue 2 notice from the DFEH, Plaintiffs served,