By LOIS HENRY, Californian columnist
Sunday, Aug. 30, 2009
In what universe is it OK for high-ranking supervisors to harass, discriminate and retaliate against an employee?
The government universe, apparently. More specifically, the city Fire Department.
A jury found the city at fault on all 13 questions of how the department handled the long melodrama of firefighter Robby Pratt’s firing.
Jurors said “yes” to these key questions:
“Did the City of Bakersfield or their supervisors or agents know or should have known of harassing conduct?
“Did The City of Bakersfield or its agents fail to take immediate and appropriate corrective action?”
And most damning:
“Did the City of Bakersfield undertake an adverse employment action against Plaintiff without cause?”
Yes, jurors said.
This means the city, via its agents, Fire Chief Ron Fraze and Deputy Chief Gary Hutton, knew Pratt was being harassed by a co-worker, did nothing to stop it and, in fact, retaliated against Pratt when he took the issue to the city’s human resources department as he had every right to do.
That verdict came down back in March. There’s never been even a murmur since then of any management changes in the department. Not even the suggestion that perhaps some managers might need a skosh more training on these issues.
Indeed, most people at the city I spoke with felt Pratt’s stunningly low judgment of $98,000 and no order that he be given his job back indicated a win for the city.
“We as a management team made no mistakes,” Fraze told me.
He blamed any poor handling of the Pratt case on then Human Resources Director Carroll Hayden and the harassing co-worker, former Battalion Chief John Weber. Both have since left the city.
The only mistake Fraze felt he made was not making sure Hayden was doing her job properly.
“This verdict was not about HR,” Pratt’s attorney, Mark Quigley, told me. “This was about the actions of Fraze, Hutton and Weber.”
HR, he said, was guilty of bumbling around and doing nothing, evident on an epic scale from depositions of Hayden and one of her HR supervisors, Anthony Gonzales.
Despite Fraze’s protestations, there’s clearly something amiss in the upper reaches of the Fire Department.
It cost taxpayers at least $1 million this time, including Pratt’s judgment, his attorney’s fees and what taxpayers shelled out for the city’s attorneys.
And this isn’t the department’s first time at the rodeo.
In 2006, the city was forced to restore Capt. Greg Moore’s rank, his back pay and pay some of his attorney’s fees after he was inappropriately demoted for an unproven charge of sexual harassment.
The city had lost at the trial court level, appealed and lost again. The court called the city’s actions against Moore “arbitrary and capricious,” two words that do not coincide with “good management.”
If problems in the Fire Department aren’t addressed, taxpayers can be sure we will continue paying out on court judgments into the future.
I’m not defending Pratt (or Moore) as a sterling employee. I don’t know whether he was the spit-and-polish firefighter some say he was, or the whining manipulator that others paint him.
But I know how someone should be disciplined or fired. As a manager, I’ve had that unfortunate experience too often.
You outline policies clearly and you stick to them consistently with every employee, over every issue, every single time.
The city has a clear policy against harassment that was apparently ignored in the Pratt case.
Unaddressed rumors
In early 2003, Pratt went to Hutton complaining that Weber, then a captain, was spreading rumors about him being gay. Pratt says Hutton told him to “stop hanging around queers” and he’d be fine. Nothing was done, the rumors continued and by April,
Pratt took his complaint to Fraze who, he says, gave the same advice.
In the Fraze meeting, Pratt also brought up problems regarding Capt. Bryan Perry allegedly going “Code 2” to situations that required a faster “Code 3” response, a thread that runs throughout this story and continues within the Fire Department to this day.
All this is confirmed in depositions or through my own interviews with a host of Fire Department employees including retired Capt. Gary Bergman, Capt. Pat Ponec, Capt. Tim Lynch, Battalion Chief Matt Moore and firefighter Nick Catelan, now deceased.
Every one of them recalled hearing the same thing from Pratt about his meetings with Hutton and Fraze at the time it happened.
After his meeting with Fraze, Pratt felt he was going to get no action, so he went to HR’s Hayden.
Though Hayden didn’t follow up on his complaints then, that appears to be the pivotal moment Pratt became Public Enemy No. 1.
His downward spiral continued through the years with Pratt filing several lawsuits alleging harassment in 2004 and concluding with Pratt’s firing in February 2007, following a highly publicized and wacky civil service commission hearing in which Stuart Gentry, one of the commissioners, was found to have been calling Pratt during the hearing.
Different interpretations
Though everyone in the city would like to close the book on this, the verdict shouldn’t be the final shoe on this twisted tale.
I called City Manager Alan Tandy to ask him, among other things, if the city was going to investigate Fire Department management based on the jury’s findings and possibly make some changes.
Tandy must have been really busy. He never called me back.
But I got a sense of the city’s thinking through Chief Fraze.
Despite the jury’s verdict, Fraze insists he and his management team were vindicated.
“Every discipline we had, and this went on for six years, was upheld at every level from the city manager and civil service to an administrative law judge,” he said. “Not once did anyone come back and say we messed up. The city manager has no ties to me. It’s not like we’re the best of friends; if he didn’t think I was doing my job right, he would definitely let me know that.”
No doubt he’s right about Tandy.
But I would point out that all those levels where Pratt’s disciplines and firing were upheld were done so by city commissions, city employees or a city-hired admin law judge. Not exactly a level playing field.
Once this case got to the open air of a courtroom, it was seen very differently by average citizens.
What next?
Pratt has decided not to appeal and has given up hope that he might get his old job back.
He had offered to give back half his settlement for a second chance. “Absolutely not,” was City Attorney Ginny Gennaro’s response. “This was a legitimate termination.”
The issue of wrongful termination wasn’t allowed in by the court, which said it had already been decided in a different venue — the wacky civil service commission I mentioned earlier.
The “Code 2” allegations against Perry still swirl around the department, which has never investigated him, I’m told.
The policy on Code 2 and 3 responses was recently reworked, but Fraze said it was a part of a larger policy overhaul. “This was not whatsoever tied to one person’s actions,” he said.
Pratt is now working to start his own company and focusing on the future.
Fraze, too, told me it was time to move on.
Yeah, sure, let’s move on. But not before taxpayers can be assured this won’t happen again.
The Pratt verdict is a stain on the department that will not be removed without a thorough airing.
Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her column appears Wednesdays and Sundays. Comment at people.bakersfield.com/home/Blog/noholdsbarred, call her at 395-7373 or e-mail lhenry@bakersfield.com
THE PRATT FILE
The importance of the Robby Pratt case goes beyond the issue of whether he was a good or bad employee. It shows how far outside the bounds of acceptable management fire department and city officials were willing to go.
What is the city going to do about it? Business as usual? Or will they try to prevent it from happening again?
Taxpayers deserve an answer.
Here’s a collection of behind-the-scenes documentation of how this case this case unfolded over six years.
— Lois Henry
Gay rumors
Despite the fact that the city’s harassment code specifically says you can’t hassle people who are gay, or even perceived to be gay, depositions of Pratt’s friends show city attorneys tried to explore Pratt’s sexual preference.
Yes, taxpayer dollars were used so the city’s attorneys could ask questions like “Have you never engaged in any homosexual acts with him?” of Pratt’s friend Raul Cepeda.
And “Have you ever called him “Queen?” or “Have you ever called him “Bitch?” of Carlos Garcia, another friend of Pratt’s.
Tale of a sex act
In May 2003, Perry told another fire official he’d seen Pratt receiving oral sex in Station 1.
Management immediately opened a massive investigation.
Both Pratt and Perry were on duty at Station 1 when Pratt’s fiance, Shelly Scudder came to talk with Pratt. The two went into the dorm and at one point, Perry walked in and saw them for a few seconds.
In his first interview, Perry says he didn’t see who Pratt was standing with. He did not see a sex act, nor any “straightening” motions as if a sex act had just been interrupted.
“I saw nothing that was actual sexual,” Perry says.
Then, “It’s regrettable and maybe some assumptions were made...”
At the start of his second interview he’s told by Human Resources Supervisor Anthony Gonzales that a “formal complaint” had been filed by Scudder and his name, Perry’s, was mentioned. (There never was a complaint.)
After that, Perry says he did know the woman with Pratt that day as Scudder because he recognized her voice. In this version she was sitting on a dorm bed with Pratt in front of her. After he walked in, he says, Pratt pushed her over so she was lying on her side. He also said Pratt appeared to be fastening his pants.
By his third interview, Perry said he saw Scudder sitting on the edge of the bed, Pratt standing in front of her with her legs straddling his. When Perry walked in, Pratt then tossed her back onto the bed so she had to fling out her arms to catch herself. Not only did he say Pratt was fastening his pants, but he said Pratt’s fly was open, his belt unbuckled and his shirt untucked.
In a deposition, Engineer Roger Tilford said Perry told him at the time of the investigation that he didn’t see anything between Pratt and Scudder and only said he did after he felt threatened when HR brought up the phony complaint.
Retired Engineer Bruce Haas confirmed that, telling me that Perry flat out told him he saw nothing.
“I was at Station 13 when Perry walked in and the place went dead silent,” Haas said. “He said, ‘I saw what I saw.’ I went outside to work on the rig and he came out and said he actually didn’t see anything.”
Pratt was ultimately disciplined for the “appearance of sexual impropriety.”
Changing evaluations
Retired Captain Doug Webb said he’d never seen anything like it.
His first evaluation of Pratt was good, with a notation of “excellent” in regard to medical aid calls.
It was kicked back from management, which wanted it downgraded, including removing an award. They also wanted Webb to include information about Pratt’s previous DUI. Webb refused.
“This back-and-forth went on for three months and finally I told ’em I’d filled it out to the best of my knowledge and I’m not changing it; if you have something you want to add, type it in yourself.”
The next year, again Webb wrote a good evaluation on Pratt which was again kicked back. This time, Webb noticed one of his scores had been changed without his involvement.
“That was just unbelievable to me,” Webb said. Both he and Pratt refused to sign the evaluation.
All along, Webb said, he had command staff send instructions for the evaluations to his email, which he saved and gave to Pratt’s attorneys.
“They weren’t very smart about it.”
The city needs a conviction
In trying to assess all the costs associated with the Pratt case, I tried to find out about the hours spent by City Attorney Andrew Wang in Pratt’s second DUI in 2004.
City Attorney Ginny Gennaro told me she had no idea if Wang sat through that case. He was not assigned to do so and if he did, it was his prerogative and on his time.
I tried to find Wang, who has since left the city, but couldn’t locate him
Pratt’s attorney Richard Middlebrook remembered Wang at every court proceeding.
“I was probably 20 to 30 hours total,” Middlebrook said. “At one point, he was speaking with (Chris) Nelson (the prosecuting attorney) and told him in open court that the city needed this conviction in order to get rid of Pratt. He was very open and honest about it.”
Pratt’s blood alcohol level was below the legal limit so a DUI conviction was looking shaky. Since he was on probation for a previous wet/reckless conviction, however, he wasn’t supposed to consume any alcohol at all and he’d run over some shrubbery and left the scene (that’s the hit and run).
Judge Michael Bush saw there wasn’t much of a case for the people and asked Nelson, then Deputy District Attorney John Brownlee and Middlebrook to hammer out a compromise in chambers.
As they walked back, Middlebrook recalled, Wang followed.
“Bush asked, ‘Who are you?’ and he said, ‘I’m with the city and we have an interest in this case.’ And Bush tells him, ‘No, it doesn’t, and you’re not welcome into chambers.’”
“Code 2” allegations
One of the most galling aspects of the Pratt case to many firefighters I spoke with was the refusal of management to investigate serious allegations that Capt. Bryan Perry responded to Code 3 emergencies (lights, sirens, run the red lights) at a Code 2 speed (no lights, sirens, engine moves with traffic).
In an email, Perry said he had no comment and didn’t wish to be contacted about the Pratt case again.
Back in 2006, he told The Californian the allegations weren’t true and that he’d never been questioned about it.
Numerous firefighters gave depositions and testimony in the Pratt case about the Code 2 issues.
Battalion Chief Matt Moore, who was Perry’s supervisor, said he had discussed the issue with Perry and brought it to his supervisors’ attention, but was told not to investigate.
In a 2005 email to Deputy Chief Dean Clason, Moore made another request to investigate, saying “a vast majority of the department is fully aware of this practice and I’m constantly questioned as to what actions the department has taken to correct the problem.”
The allegations are frightening.
“Perry was working OT with me and wanted us to drive Code 2 to a medical aid call. Just because he’s a captain, it’s not right to make stupid decisions. We shined him on and went Code 3 anyway.”
— Retired Engineer John Leon.
“I was driving one time and didn’t hear the call. Perry tells me it’s a Code 2, I ask, ‘What’s it for?’ He says, ‘I don’t know.’ The ambulance passed us getting there.”
— Engineer Garrett Pacheco
“One of the first incidents I remember Perry telling us to go Code 2 on was a full arrest back in February 2003 over on Lockfern. In the trial, the city’s attorney asked me ‘Well, how do you know the guy’s not dead already?’ Now how stupid is that? ‘That’s why we go Code 3,’ I said.”
— Firefighter Dennis Roe.
(The victim was in full cardiac arrest when fire crews arrived. He later died.)
Most firefighters I talked to believe management wouldn’t touch Perry because he was the department’s main witness against Pratt in the alleged sex act incident.
Discipline merry-go-round
Pratt was disciplined in September 2005 for, again, reporting issues he’d heard about regarding Capt. Perry. He was accused of dishonesty and criticizing a superior officer.
He tried to appeal to City Manager Alan Tandy, which is allowed under the Bakersfield Municipal Code, but was told by Tandy in a memo that “There is really no procedure for such an appeal of a written reprimand.”
So he tried to grieve it, as allowed when no appeals process exists. He was then told by Gennaro there actually was an appeal process but he’d missed the time window.
TIMELINE
1992 - Pratt is hired by Bakersfield Fire Department as reserve firefighter
1999 - Hired full time at BFD
January 2003 - Hears that Capt. John Weber is telling people he’s gay. Capt. Gary Bergman advises he report it to Deputy Chief Gary Hutton. Hutton tells him to “stop hanging out with queers.”
April 2003 - Reports his concerns about continued gay rumors to Chief Ron Fraze. Also reports that he’s heard Capt. Bryan Perry is going Code 2 to Code 3 emergencies. Fraze repeats Hutton’s advice. Pratt takes concerns to then Human Resources Director Carroll Hayden.
May 2003 - Pratt accused of engaging in sex act in Station 1.
June 2003 - Pratt receives termination notice and fights it.
Sept. 2003 - Pratt is disciplined for the appearance of sexual impropriety and allowed back to work. His pay is cut 5 percent and he’s not allowed any overtime for a year.
Late Sept. 2003 - Pratt is accused of flipping off a captain. Discipline process is started but the gesture cannot be substantiated.
November 2003 - Pratt again complains to Hayden about the continued gay rumors.
November 2003 - Pratt arrested for DUI, pleads down to a “wet reckless” in May 2004.
December 2003/January 2004 - Hayden conducts one interview with Hutton and concludes her investigation. Pratt hires an attorney and sues for harassment and discrimination.
September 2004 - Pratt gets a good evaluation from Capt. Doug Webb, who is then pressured by management to downgrade it.
August 2005 - Pratt written up for again reporting allegations about Perry.
September 2005 - Another good evaluation by Webb is downgraded by management. Webb and Pratt refuse to sign it.
August 2006 - Pratt arrested for DUI and hit-and-run. The DUI is dismissed.
February 2007 - Pratt is fired.
March 2009 - Jury reaches verdict in Pratt’s case: The city loses on all questions of harassment, discrimination and retaliation. Pratt wins $98,000 plus attorney’s fees.
DOCUMENT LINKS
Interviews from the 2003 “sex act” incident
• 1st interview with Capt. Bryan Perry by internal affairs
• 2nd interview with Capt. Bryan Perry by internal affairs
• 3rd interview with Capt. Bryan Perry by internal affairs
Code 2 concerns
• Memo from Hall Ambulance and email from Matt Moore
2005 discipline
• Memos between Pratt, Fire and city management
Depositions from the Pratt trial
• Raul Cepeda, friend of Pratt
• Carlos Garcia, friend of Pratt
• Former Bakersfield HR Director Carroll Hayden
• Human Resources Supervisor Anthony Gonzales
• Battalion Chief Matt Moore
• Engineer Roger Tilford
• Captain Tim Lynch deposition
• Firefighter Nicolas Cattelan
• Deputy Chief Gary Hutton
• Jury’s verdict handed down in March
