Court Upholds $1.7 Million Judgment In Favor Of Firefighter

Lewis Bressler was a fire captain with the Los Angeles Fire Department for 26 years. With the exception of his first performance evaluation and his last performance evaluation, Bressler always received a “satisfactory” or “satisfactory plus” rating from his supervisors at LAFD.

In 2001, Bressler received a report from a subordinate that another captain had made an inappropriate sexual comment about a firefighter’s wife. Bressler reported the comment to his immediate supervisors, and the other captain received a three-day suspension and a one-month transfer to another fire station. Through the ensuing three years, the other captain brought the incident up several times, and indicated that he was going “get” Bressler and that Bressler “didn’t have any right to turn him in.” The other captain also began to blame Bressler for a fire which caused significant damage to a house, referring to the fire as “the Bressler fire.”

At about the same time, an African-American lesbian firefighter reported to Bressler that she was the victim of harassment. Among other things, the firefighter told Bressler that a captain had referred to women as “whores” and “sluts,” bragged about being disciplined for calling a paramedic a “nigger,” used other derogatory terms for African-Americans, and referred to gay men as “faggots.” Another captain – the one who had vowed to retaliate against Bressler – told the firefighter “I don’t like your lifestyle,” and informed her that another firefighter “can’t bring his daughters here because of you.” Bressler reported the firefighter’s comments to his superiors.

Bressler’s 2003-2004 performance evaluation rated him as “satisfactory-minus,” with “improvement needed” in four critical performance areas. When Bressler claimed that he was being retaliated against, the Department assigned the two captains whom Bressler had reported to conduct an investigation.

Eventually, Bressler was transferred to a “pool position” which would have involved no specific assignment to a station. Bressler never reported to the pool position, and instead remained off work due to his symptoms of high blood pressure, inability to sleep, and panic attacks. Bressler retired from LAFD in January 2005, and brought a lawsuit against the City, claiming he was the victim of retaliation for his reporting the comments made by the two captains. When a jury awarded Bressler damages in the amount of $1,730,848, the City appealed.

The California Court of Appeals found that there was an adequate factual basis for the jury’s verdict. The City primarily argued that there was an insufficient proximity in time between Bressler’s reporting of the comments and the adverse employment actions against him. The Court rejected the argument, noting the vow of one of the captains to retaliate against Bressler. Citing the testimony of a fellow employee that the captain “just cannot get over it, he has a vendetta against you, and he’s not going to rest until he gets you,” the Court found that “despite the passage of time, this evidence was sufficient to establish a causal link between the adverse employment actions linked to Bressler’s reporting of the comments.”

The City also contended that it had a legitimate non-retaliatory motive for its treatment against Bressler, citing what it believed to be his performance flaws. The Court noted that Bressler had submitted ample evidence that the City’s proffered non-retaliatory motive was in fact a pretext for discrimination. As the Court described it, “Bressler presented evidence that the captain engaged in a personal vendetta against him, slandering him to his superiors and ultimately affecting his performance reviews. He further presented evidence that upon filing a formal complaint on behalf of the lesbian firefighter, he was threatened with ‘one year of misery’ by his supervisor. The evidence permitted the jury to infer that the adverse employment action taken by the Department resulted from the supervisor’s intention to make good on that threat.”

Bressler v. City of Los Angeles, 2009 WL 200242 (Cal.App. 2009).

This article appears in the April 2009 issue