Los Angeles Mayor Antonio Villaraigosa calmed a political storm by vetoing a $2.7 million settlement in the case of a black firefighter whose co-workers spiced up his spaghetti with dog food. But the veto could come back to haunt the mayor -– and taxpayers.

The settlement unraveled after rabid talk-show hosts latched onto the case, fueling a public outcry and doubts that the dog-food incident was racially motivated. Photos posted on the Internet showed the plaintiff, Tennie Pierce, engaging in hazing of his own at the station house.

In the latest development, city council members, who originally voted 11-1 in favor of the settlement, declined by a 9-6 vote to override the mayor's veto.

What Villaraigosa and the attack dogs appear to have conveniently ignored is that, under California's Fair Housing and Employment law, Pierce does not even have to prove he was a victim of racial harassment to prevail at trial.

The statute makes employers liable for retaliation against a person who has complained about harassment and for failing to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Such reasonable steps should include, an appeals court has ruled, “a prompt investigation to determine whether the complaint is justified.”

A shoddy investigation, moreover, can create an inference of malice, exposing the employer to punitive damages.

Much of Pierce's complaint, in fact, is devoted to what allegedly happened after he “reported the [dog-food] incident to his supervisors and asked that something be done about the conduct as soon as possible.” According to the suit, co-workers taunted Pierce with “verbal slurs” and “harassing messages” and, while barking like a dog, asked him how the dog food tasted.

A Superior Court judge has scheduled trial for March 19. And previewing her strategy, Pierce attorney Genie Harrison told the Los Angeles Times that she intends to show management covered up the incident internally and that her client was ultimately ostracized for speaking out.

The recent trial in New York of a case against The Source magazine illustrates the risks the city of Los Angeles may now be running. The jury awarded $12 million in damages to the plaintiff -– reduced by the judge to $4 million -- for retaliation while rejecting the underlying claim that she was sexually harassed.

Similarly, whether or not the spiking of Pierce's spaghetti was objectively racist or just a sophomoric prank, the Fire Department had a duty to investigate his complaint promptly and adequately and any breach of that duty could be all the more damaging given its history of racial incidents.

“I think we [the council] blew this one,” Councilman Herb Wesson, who voted to override the mayor's veto, said. “The entire Fire Department will go on trial.”

By Matthew Heller
11/30/06