It has taken two years and untold amounts of money, but the lawsuit filed by former UC Davis Police Officer Calvin Chang is going forward with the key provisions intact.
In 2009, former UC Davis Police Officer Calvin Chang filed a lawsuit against the UC Regents and UC Davis Police Chief Annette Spicuzza, alleging complaints of racial and sexual orientation discrimination, housing discrimination, and retaliation.
According to the amended complaint, Officer Calvin Chang was “subjected to a pattern of harassment and discrimination because of his race and sexual orientation.”
The allegations include “a racial slur broadcasted to Plaintiff over the police radio by his supervisor, superiors referred to Plaintiff as ‘Mr. Chang’ instead of by his earned title of ‘Officer Chang,’ repeatedly referred to by the name of the agency’s previous Asian-American officer, denied timely backup, subjected to a derogatory slur (‘fag’) by a probationary police officer (whom Regents passed on probation) in the presence of his supervisor, offensive homosexual innuendos from a supervisor, referred to as a ‘****ing fag’ by his supervisor (whom Spicuzza promoted and assigned to the ‘professional standards unit’ in command of internal affairs), subjected to numerous false internal affairs investigations.”
After attempts to dismiss the lawsuit through SLAPP (stragetic lawsuit against public participation) and through a series of demurrers, the suit moved forward to depositions with most of the key complaints, regarding claims of racial discrimination, discrimination based on sexual orientation, and retaliation surviving.
As we have previously mentioned, in such cases the plaintiff’s case is viewed in the most favorable light and based on that reading of evidence, the court decides if there is a legitimate claim of violation. While they struck down some of the claims, the core claims remain in place.
The Regents failed to challenge the breach of contract claim, nor did they challenge the Peace Officers Bill of Rights Violations.
Perhaps of most significance is that the court has allowed a case to go forward against UC Davis Police Chief Spicuzza herself as an individual, ruling that her actions are not covered under the general immunity that a government employee would have.
According to the court, “Plaintiff has alleged, with respect to the housing allegations, that in March 2008, Defendant ‘maliciously abused her position of authority as campus police chief, when without justification she personally called the Real Estate Services staff and demanded that Real Estate Services must unlawfully and without any legitimate justification, evict Plaintiff from his Aggie Village home.’ “
The court argues that immunity, as set forth in Government Code section 822.2 as well as discretionary immunity set forth in section 820.2, does not apply.
They write, “Indeed, Defendant fails to demonstrate which allegations indicate, as a matter of law, that all of the actions in the tenth cause of action, upon which her liability is based, involved a ‘policy decision, consciously balancing risks and advantages.’ ”
They continue, “with respect to the allegations regarding Defendant calling Real Estate Services to demand Plaintiff be evicted, the Court will not conclude on a demurrer that this involved a policy decision. This is true even though Plaintiff alleged Defendant was at all times acting in the course of scope of her employment with the Regents.”
They conclude, “The Court rejects the argument that Plaintiff failed to allege outrageous conduct. Indeed, Plaintiff alleged that, among other things, Defendant sought to evict Plaintiff from his house by calling Real Estate Services and demanding they evict Plaintiff. The Court cannot say that this allegation relating to Plaintiff’s home and alleged attempts to evict him from his home, does not as a matter of law, constitute extreme and outrageous conduct.”
And they thus find that this conduct, if eventually proven to be accurate, does indeed demonstrate an allegation of outrageous conduct.
This finding should not be taken lightly, for it is a very high burden to breach government immunity.
The background to this case begins in July of 2003, when Officer Chang was terminated from the UC Davis Police Department. He almost immediately filed complaints of discrimination and harassment in connection with his termination, and this began a very long journey in which he would eventually be reinstated, only to be terminated again.
The Aggie continues, “Sacramento police records show only two accidents, both of which were determined not to be Chang’s fault. After Chang filed a complaint with Vice Chancellor of Administration Stan Nosek for discrimination, UCDPD reinstated him in Nov. 2003, citing ‘some confusion’ on the matter.”
Police Chief Annette Spicuzza said she “could not identify” which officer wrote the note that contained the alleged death threat and in response to complaints of discrimination, instead of investigating the matter further, stated to Officer Chang, “Why don’t you leave?”
The suit alleges a long list of various incidents of harassment and retaliations, including a punitive transfer, failure to properly protect Officer Chang and soliciting complaints against Officer Chang. Officer Chang claims that the Police Chief initiated several “malicious and false” internal affairs investigations against the Officer.
According to a 2009 press release by attorney Anthony Luti, representing Officer Calvin Chang, “These actions culminated in a lawsuit filed [where Officer Calvin] Chang alleges that in 2008, he was unlawfully terminated for the second time, after the UC Davis Police Department fabricated an internal affairs [sic] alleging that he ‘failed to have a backup officer’ when he searched a laundry room at the Segundo Residence Hall.”
It continues, “Chang’s lawsuit alleges that Spicuzza intentionally misrepresented that the internal affairs investigation had ‘no finding.’ However, UC Davis concealed and intentionally misrepresented that it had sustained the allegation and then falsely and maliciously reported that he had resigned as a result of the internal affairs complaint.”
UC Davis has also attempted retaliation, according to the plaintiff, by “unlawfully threatening [to] take his home of ten years—located in Aggie Village on the UC Davis campus.” As a result of a complaint Chang filed with the CA Department of Fair Employment and Housing, the University agreed that it would cease any further actions, again choosing to explain its actions as based on “miscommunication.”
Furthermore, the plaintiff reports, “In a letter responding to Chang’s complaint, [UC Davis Chancellor Larry] Vanderhoef described the University’s action as ‘a result of administrative error’ and that there was no ‘evidence that these actions were intended to be retaliatory.’ ”
Writes Mr. Luti in his complaint, “These government defendants misrepresented facts, in order to procure Officer Chang’s resignation by fraud, concealed records and evidence, and further continued to retaliate by committing the unlawful personnel file violations. To compound these statutory violations, defendants also breached its settlement obligations in every respect to destroy Officer Chang’s career.”
—David M. Greenwald reporting
[quote]Officer Chang, who is openly gay[/quote]Sorry to be stupid, but what does “openly gay” really mean? What would be the equivalent be for a heterosexual, or someone who is non-sexual? For a heterosexual, would that mean someone should “demand respect” for their sexual identity? Should a gay or “hetero” person subject their co-workers (particularly in the public sector) to a litany of what he/she did of a sexual nature?
“Death threats”, “refusal of back-up” are heinous under ANY circumstances. Those charges, if validated, should NOT be dependent on sexual orientation. Or, does the concept of “all are equal, but some are more equal than others” apply?
What does any of that have to due to an individual being singled out due to his sexual orientation and discriminated against? By openly gay, it simply means he was known to be gay as opposed to in the closet which means that it was not generally known. The importance of that is that they cannot claim that they did not know he was gay.
What an incredibly confusing case. In trying to reconstruct events in some sort of recognizable chronology, a seemingly endless array of allegations are blended with settlements, violations of settlements, job hires and re-hires, suspected employer conspiracies, and multiple terminations for cause unclear.
Pick a particular time-frame in Officer Chang’s career and a reader is often not sure if plaintiff is employed, on probation, has settled his past differences with his boss, or had his past allegations purged. What a mess. Then, for extra spice we have the University tossing in an ambiguous and rather suspicious “administrative error” or two.
Maybe everybody should hit the “reset button.” I sympathize with both attorneys trying to present this case to a jury that anybody could understand.
This is possibly the fist time it has ever been alleged that a male employee being addressed as “Mister” is the victim of discrimination. This salutation is commonly regarded as a measure of respect, and the police culture is no exception.
Plaintiff alleges numerous charges based on comments made by named persons, that are clearly discriminatory and worthy of a legal cause of action. What is not clear is whether plaintiff can prove these remarks as having been said. Were there any witnesses present, witnesses that support the plaintiff? That’s the funny thing about court trials, you have to prove such allegations.
Proof is a funny thing. Depending on who you are depends if proof is there. If a person and a cop say two different stories, then the cop is believed over others, happens every day on many incidents, such as speeding tickets, stop sign violations and when a cop takes a statement.
However, if a person said a cop did something and there are not other witnesses or proof, then the complaint is found unfounded (unproven).
So proving things is easy to say but not always easy to do. And a very important thing to remember is just because something cannot be proved, does not mean it did not happen.
Cops, Administrators, politicians, bosses and others in power know that if you say something in private it will come down to your word against theirs, that is not proof. So even if these things cannot be proven in trial, it is not the same as they did not happen. Not too many bosses will hold a public meeting with witnesses to call you a Fag. Things such as that are normally said in private with no witnesses, hence hard to prove later. Lawyers teach their clients phrases like, I don’t recall that, or I can’t remember saying that, or I have no recollection of that, that way if in fact a surprise witness does pop up later, no one can PROVE you committed perjury since you did not say it did not happen, you just said you did not remember. (lawyer tricks 101)
Comes down to lawyers getting paid to hide the truth, lawyers getting to paid to find some truth, lawyers getting paid to confuse the truth, and then people are told we have the best system in world.
Phil Coleman: “Plaintiff alleges numerous charges based on comments made by named persons, that are clearly discriminatory and worthy of a legal cause of action. What is not clear is whether plaintiff can prove these remarks as having been said. Were there any witnesses present, witnesses that support the plaintiff? That’s the funny thing about court trials, you have to prove such allegations.”
In a civil trial, the burden of proof is on the plaintiff. The standard of proof is “more likely than not”. I agree w you that this is a very messy, complex case. It still is possible the case will be settled out of court. I suspect a lot will depend on whether UCD thinks the case is too weak to prove/unmerited. Some very nasty allegations have been bruted about in the public media and UCD’s reputation is on the line…
Clarification: Burden of proof from Wikipedia –
Preponderance of the evidence
Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases. This also is the standard of proof also used in Grand Jury indictment proceedings, (which however unlike civil proceedings, are procedurally unrebuttable). The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[3] described it simply as “more probable than not.” Until 1970, this was also the standard used in juvenile court in the United States.
Clear and convincing evidence
Clear and convincing evidence is a higher level of burden of persuasion than a “Preponderance of the Evidence”, and is employed intra-adjudicatively in Administrative Court determinations, as well as in civil and criminal procedure in the United States. For example, a prisoner seeking habeas corpus relief from capital punishment must prove his factual innocence by clear and convincing evidence.[4]
Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. In this standard, a greater degree of believability must be met than the common standard of proof in civil actions, “Preponderance of the Evidence”, which requires that the facts as a threshold be more likely than not to prove the issue for which they are asserted.
This standard is also known as “Clear and Convincing Evidence”; “Clear, Convincing, and Satisfactory Evidence”; “Clear, Cognizant, and Convincing Evidence”; and “Clear, Unequivocal, Satisfactory, and Convincing Evidence”, and is applied in cases or situations involving an equitable remedy or where a presumptive civil liberty interest exists.