Frank Lima was a captain in the Los Angeles Fire Department. By almost any account, Lima’s career was exemplary. He graduated as the top recruit in his firefighter class in 1992, when he was only 19 years of age. He moved rapidly through the ranks, and became the youngest Fire Captain I in the Department. When promotions were later made to the position of Fire Captain II, Lima became the youngest in the Department at that position. The next step in his professional career would have been a promotion to Battalion Chief.
In May 2004, Lima presented a training session for which he was commended by superiors. Lima grew concerned, though, about his perception that women were routinely passed through the training process even though they were unqualified. A number of deputy fire chiefs had directed subordinates to treat women differently and to not eliminate them from the program or fail them as part of the training process.
A June 19, 2004 training drill changed the course of Lima’s career. A female firefighter struggled with the training task of “throwing a ladder,” and later claimed that Lima had singled her out and harassed her and that she had been physically injured during the drill. A departmental investigation ensued, but ended when a battalion chief recommended that no corrective action be taken towards Lima. An assistant chief directed the battalion chief to conduct a second investigation. The battalion chief reached the same result, finding that “most of the members attending the training supported both captains’ efforts, saying they were some of the best trainers they have worked for.”
The assistant chief who ordered the second investigation disagreed with its results and issued a reprimand to Lima, finding he had failed to take appropriate measures to assure the firefighter’s safety. A deputy chief, expressing “serious concerns concerning Captain Lima’s understanding the issues,” increased the discipline to a six-day suspension.
During Lima’s subsequent disciplinary appeal, a deputy chief told him “Frank, you know you’ve got to treat women differently. You can’t put them in a position where they might fail. I have so many problems right now with females on this Department.”
Lima’s disciplinary suspension was ultimately reduced to two days, but his personnel evaluations began to suffer. He was not selected for a supervisory position on the search and rescue team, though he had been a member of the team for more than ten years, and eventually received a 30-day suspension. His requests for a transfer were denied, and the Department eventually “removed him from the field,” meaning he could no longer work at a particular fire station. Lima responded by filing a lawsuit against the City, contending he was retaliated against for expressing his opposition to preferential status for women.
A jury awarded Lima a total of $3.75 million, comprised of $790,000 in future economic damages, $2 million in past non-economic damages, and $960,000 in future non-economic damages. A California appeals court upheld the jury’s award.
The main portion of the City’s argument on appeal was that there was no evidence that Lima suffered any employment action. The Court disagreed, finding that Lima had presented evidence that he received disciplinary action, was denied appointments, refused transfer requests, and removed from the field. The City contended that each of the incidents failed on its own to rise to the level of an adverse employment action. The Court demurred, finding that “we do not decide whether each alleged act constitutes an adverse employment action by itself. The jury was not required to consider the incidents in isolation, and retaliation can consist of a succession of subtle, yet destructive injuries. On the evidence before it, the jury could conclude Lima had been subjected to a series of subtle injuries that on the whole damaged his reputation within the Department and halted his rise through the ranks. The jury could find Lima’s supervisors were under pressure to recruit and retain women, but were repeatedly encountering complaints from female firefighters, hence were hyper sensitive to any such incidents; moreover, there is testimony the Department had an unofficial practice of granting preferential treatment to women, and did not look favorably upon anyone who voiced opposition or otherwise opposed that policy. Evaluated collectively in the totality of the circumstances and viewing the evidence most favorably to the verdict, we conclude there was sufficient evidence from which the jury could properly find Lima suffered adverse employment actions that materially affected the terms and conditions of his employment and ability to advance in his career.”
One judge dissented, commenting that “this case is not about whether the Department gives preferential treatment; it is whether there is substantial evidence to support an outsized damage award based on allegations of retaliation against Lima.”
Lima v. City of Los Angeles, 2009 WL 782991 (Cal. App. 2009).
This article appears in the May 2009 issue