Petaluma wins ruling in firefighter harassment case

A contentious legal battle has emerged over the release of an internal city of Petaluma investigation connected to a lawsuit by the city’s second-ever female firefighter, who alleged in a 2014 claim that a pattern of sexual harassment ultimately forced her from the job.

A June 8 decision by the California First District Court of Appeal prevented the attorneys of former Petaluma firefighter and paramedic Andrea Waters from compelling the city to share the report, which Waters’ lawyers have sought while gathering information for their case.

A lower court in Sonoma County had ruled in May 2015 that her legal team could review the findings, which Petaluma argued were exempt due in part to attorney-client privacy rules.

After the court of appeal at first passed on Petaluma’s petition for review, the city took its appeal to the California Supreme Court, which agreed to compel the initially dismissive first district to review the case.

The wrangling in the pre-trial phase of the Waters case has elevated attention on an already high-profile lawsuit, with several prominent statewide government and legal associations submitting briefs to the appeal court in support of Petaluma’s position.

Yet Waters’ attorney Deborah Kochan, a Berkeley-based lawyer with around two decades of experience litigating on behalf of employees in workplace disputes, refuted the appeal court’s ruling, maintaining that her team was entitled to the report.

Kochan said her team was still considering how to respond to the decision, but nonetheless cast it as an incremental step in the legal case.

“I’m very confident that we are going to prevail ultimately,” she said. “We just simply want to make sure that we obtain all of the information to which we are entitled.”

Harassment allegations

The ruling is the latest chapter in a lawsuit filed in November 2014, in which Waters alleged she suffered from harassment and discrimination “almost immediately” from the start of her hire in 2008. The lawsuit claims Waters was regularly denied training necessary to obtain promotions, and was subjected to intense scrutiny beyond that of her male colleagues. The suit claims she was treated like a “second-class citizen,” despite her experience working as a firefighter before coming to Petaluma.

The lawsuit also claims that Waters worked in conditions that included a lack of private quarters and shower facilities. The suit contends Waters was thus “forced to wait to shower and change at times when the male employees did not want to use the facilities. Even so, she was still walked in on and made to feel uncomfortable.”

Waters alleged in the suit that “hyperscrunity of her performance escalated,” when she “complained that she was being singled out and subjected to unequal treatment,” and that the situation eventually prompted her to take leave in February 2014 due to “severe stress,” according to the suit and the appeal court decision. Waters ultimately left the department in May 2014.

Precedent setting

The city of Petaluma claimed its records showed that Waters never filed a formal complaint with the city during her time in the fire department, according to the appeal court ruling. The city received a notice in May 2014 indicating Waters had filed a charge alleging sexual harassment and retaliation with the U.S. Equal Employment Opportunity Commission, which was “just days” before she resigned, according to court documents.

The resignation reportedly prompted Petaluma City Attorney Eric Danly to interpret the filing not as an effort to seek corrective action, but as the precursor to a lawsuit, according to court documents. Petaluma hired an outside attorney, Amy Oppenheimer, to assist with investigating the charges filed with the commission, as well as to assist Danly with building the city’s defense, according to the appeal court ruling.

Kochan said it was common in situations like the Waters case for a neutral outside attorney to provide support in gathering evidence during the discovery phase, and that Waters herself was among those interviewed during the process. But she took issue with the city’s claim of an attorney-client privacy privilege over the findings, arguing that the appeals court did not address her assertion that Oppenheimer was, in fact, not acting as part of the defense team while she was gathering evidence.

“The part that is unique is that even though the investigator represented herself as an impartial neutral and secured interviews on that basis, that after the fact, the city attorney’s office has taken the position that she was actually, all along, a member of the defense team,” Kochan said.

Lawyers representing the League of California Cities, California State Association of Counties, California Special Districts Association and others had argued in a brief to the appeal court that the release of the report to Waters’ legal team could potentially set a precedent discouraging cities from investigating reports of harassment.

“We felt the trial court’s decision created a disincentive for the city to look into this in a thorough manner, in a sense that any of the findings of the investigation would be turned over to the plaintiff’s counsel,” said Ivan Delventhal, an attorney with San Francisco-based law firm Renne Sloan Holtzman Sakai who co-authored the brief. “It would give public entities, we believe, a lot of pause prior to going into an investigation like this.”

The appeal court agreed with Waters’ legal team that there could be individual elements that contributed to the report, including taped interviews with employees, notes or other items, that could be subject to release. It will be up to Sonoma County Superior Court to review those items piece by piece.

“Definitely at some point in time, at a minimum, we’re going to be back in the trial court,” Kochan said.

City engaged

Petaluma Fire Department Chief Leonard Thompson referred questions to Danly. Thompson became interim chief in April 2015 and permanent chief in September, after Waters left the department.

Danly declined to comment on whether Petaluma has taken any disciplinary action against any employees as a result of its internal review of the allegations, and said such matters are considered confidential in order to protect privacy. He also declined to describe whether changes have been made in facilities as a result of the findings, citing the ongoing case.

“I can say that, generally, we are in a constant process of reviewing and attending trainings, and offering trainings, of having a safe and lawful workplace,” he said.

The city is “fully engaged” in defending the lawsuit, he said, and maintains the position that the items gathered as part of the internal investigation are subject to the same exclusion as the report itself.

“We’re going to be going through that exercise in the trial court, and it’s our position that all of that information is protected,” he said.

Waters is seeking lost wages and financial damages through the suit.