In 2004, Chris Burton served as Captain II of Station 5 in the Los Angeles Fire Department. His immediate subordinate was John Tohill, who served as a Captain I.
On October 14, 2004, several members of Station 5 played volleyball at the beach during the day. Tennie Pierce, who is African-American, played well and referred to himself as “the big dog.” When Tohill and the firefighters shopped for dinner, Tohill decided to buy a can of dog food to give to Pierce with a spoon as a joke. Tohill had worked at another station with a captain who had the nickname “Mad Dog,” and who had had dog food cans or biscuits placed on his seat at the dinner table.
Tohill left the can of dog food on the top shelf over the stove. He did not intend to open the can or for Pierce to eat the dog food. Tohill later saw a junior firefighter holding the can in the kitchen and told him to put it down. Unbeknownst to Tohill, the firefighter later opened the can, mixed the contents on a plate of pasta and meat sauce being served for dinner, and gave the mixture to Pierce.
Pierce took a few bites, noticed something was wrong with his plate and saw three firefighters laughing at him. He stood up and demanded to know whether someone had put something in his food. Burton noticed Pierce and the firefighter arguing and could tell that something was going on with Pierce’s food. He stood up and ordered the plate taken away from Pierce.
Burton and Tohill immediately went to the front office and conferred. Tohill wanted to notify the Chief about the incident, but deferred to Burton’s decision. Burton called the three firefighters to the office and told them to apologize to Pierce. The firefighters did so and admitted responsibility for what they had done.
Burton and Tohill later spoke to Pierce in the office. Tohill explained that he had bought the dog food and intended to give the unopened can to Pierce as a joke. Burton apologized for the incident and accepted responsibility as the person in charge of the fire station. Pierce, though angry with the younger firefighters, said he realized it was a joke that had gone too far and did not want the incident reported.
Within days, Pierce told other firefighters that the story would get a lot of press because he was African-American and he could get “lots of money” if he filed a lawsuit. Approximately one month after the incident, Pierce reported the events to an African-American battalion chief in another station. As the matter was investigated, widespread media coverage resulted, and both Burton and Tohill were portrayed as racists.
The Department eventually suspended Burton for 30 days and permanently transferred him from Station 5. The Department suspended Tohill for 25 days, and also transferred him from Station 5. Though it was Department policy to conduct an “advocate investigation” whenever proposed discipline exceeds a 15-day suspension, none was conducted in the case of either Burton or Tohill. A recommendation submitted by a high-ranking officer wrongly concluded that Burton and Tohill were either aware of the food tainting or actively participated in its implementation.
Burton and Tohill filed a lawsuit in California state court, alleging that they were the victims of discrimination. After a jury awarded Burton damages of $591,808 and Tohill $1,052,238, the City appealed.
The California Court of Appeals upheld the jury’s verdict. The City’s main argument was that the amount of the jury’s verdict was excessive and “shocked the conscience.” The Court disagreed, observing that “it does not appear from our examination of the record that the verdict is so out of line with reason that it necessarily must have resulted from passion and prejudice. There was substantial evidence that Burton and Tohill suffered non-economic damages and were reasonably certain to suffer such harm in the future. Both were dedicated, long-term members of the Department. Tohill, whose dream since boyhood had been to be a firefighter, lost his reputation and entered an early retirement program. Burton felt humiliated and betrayed by the suspension and the failure to conduct an investigation which would have cleared him of knowledge or participation in the incident. Both suffered physical symptoms as a result of the suspensions.
“The question is not whether this Court would have decided the factual issues differently or awarded the same damages as the jury. The extent of the plaintiffs’ suffering and the amount of money necessary to compensate them were questions for the jurors, who observed plaintiffs at trial and heard all the evidence. We cannot say as a matter of law that the awards for past and future non-economic loss are so grossly excessive as to shock our sense of justice.”
Burton v. City of Los Angeles, 2010 WL 550157 (Cal. App. 2 Dist. 2010).
This article appears in the April 2010 issue