Preview
il ST le 7 21131635
John Houston Scott (SBN 72578) AL A M es D
Lizabeth N. de Vries (SBN 227215) OUNTY
Scott Law FIRM FEB 2] 2019
1388 Sutter Street, Suite 715 CLERK
San Francisco, California 94109 By a THE Sy RIO Courr
Telephone: (415) 561-9600 Tims
Facsimile: (415) 561-9609 Dep
john@scottlawfirm.net ~c
liza@scottlawfirm.net
Attomeys for Plaintiff MILDRED L. OLIVER
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA — OAKLAND DIVISION
10
11 MILDRED L. OLIVER, Case No.
RG 190 07799
715
12 Plaintiff,
COMPLAINT FOR DAMAGES
SAN FRANCISCO, CA 94109
SUITE
FIRM
13 Vv.
1 . FEHA-GENDER DISCRIMINATION
STREET,
14 CITY OF OAKLAND, OAKLAND 2. FEHA — RACE DISCRIMINATION
LAW
3 _ FEHA — HOSTILE-WORK
POLICE DEPARTMENT, and DOES 1-
-15 “aclusi ENVIRONMENT
25, inclusive. 4. FEHA - RETALIATION
SCOTT
SUTTER
16
Defendants.
1388
17 Jury Trial Demanded
18
19 PARTIES & VENUE
20 I. Plaintiff Mildred Oliver is an African-American woman who is an employee of the
21 Oakland Police Department. She resides in Oakland, California.
22 2. Defendant City of Oakland is a public entity situated in the State of California,
23 County of Alameda, and is organized under the laws of the State of California. Plaintiff is
24 informed and believes and thereon alleges that the Oakland Police Department is an agency of the
25 City of Oakland. .
26 3. Defendant Oakland Police Department is a public entity situated in the State of
21 California, County of Alameda, and is organized and existing pursuant to the laws of the State of
28 California.
-1-
COMPLAINT FOR DAMAGES
BY FAX
4. Plaintiff does not presently know the true names and capacities of defendants
DOES 1 through 25, inclusive, and therefore sues them by these fictitious names. Plaintiff is
informed and believes that DOES 1 through 25, and each of them, were responsible in some
manner for the acts or omissions alleged herein. Plaintiff will seek leave to amend this Complaint
to add their true names and capacities when they have been ascertained.
5. At all times mentioned herein, each of the defendants was the agent, servant,
employee, partner, aider and abettor, co-conspirator, and/or joint venturer of each of the other
remaining defendants, and in doing the things alleged, was acting within the course and scope of
such agency, service, employment, partnership, conspiracy, alter ego, and/or joint venture, and
10 each defendant ratified and approved the acts of the other remaining defendants.
11 6. The conduct alleged herein occurred in Alameda County. Venue of this action lies
1388 SUTTER STRUET, SUITE 715
12 in the Superior Court in the County of Alameda, California. |
SAN FRANCISCO, CA 94109
FIRM
13 STATEMENT OF FACTS
14
LAW
I. Set. Mildred Oliver has served the OPD for 22 years: by 2014 she was the only
15 assigned female investigator in the Internal Affairs Division.
SCOTT
7. From August 22, 1997 to the present Mildred L. Oliver, a Black female, was
16
employed as a police officer for the Oakland Police Department (hereafter "OPD"), and was
17
promotedto Sergeant in 2012.
18
8. Throughout her tenure, she performed her job duties satisfactorily.
19
9. In 2014, Sgt. Oliver was assigned as an investigator in the Internal Affairs
20
Division of the OPD (“IAD”). .
21
10. Sgt. Oliver was the only female IAD investigator out of a team of eight.
22
23 I. In October 2015, the OPD assigns Set. Oliver an unduly limited investigation of an
OPD Officer’s suicide note, even though the note and investigation implicated identified
24 and unidentified OPD officers as having engaged in criminal conduct.
25 11. On June 14, 2014, OPD Officer Brendan O’Brien’s wife was killed. Officer
26 O’Brien was a primary suspect. Plaintiff alleges on information and belief that Officer O’Brien’s
27 wife had recently discovered that her husband had been cheating on her.
28
-2-
COMPLAINT FOR DAMAGES
| . @ ©
.
12. The OPD’s official investigation concluded that Officer O’Brien’s wife’s death
was a suicide, not a murder. Sgt. Mike Gantt disagreed with this conclusion. Sgt. Gantt believed
Officer O’Brien’s wife’s death was a homicide. However, after he voiced these beliefs, the OPD
removed Sgt. Gantt from the investigation.
_
| 13. On September 25, 2015, OPD Officer O’Brien committed suicide and left a note.
ws
Officer O’Brien implicated himself and two other OPD members. He identified a minor female
HD
(‘Celeste’) who accused Officer O’Brien and another former OPD officer (Officer #1) of
“sD
statutory rape. The note also identified a Black male OPD Sergeant, S ot. Leroy Johnson, as being
aware of Officer O’Brien’s and Officer #1’s misconduct.
10 14, The OPD launched an IAD investigation only as against Sgt. Johnson for his:
i alleged failure to report misconduct by Officers O’Brien and #1.
1388 SUTTER STREET, SUITE 715
12 15. On or about October 1, 2915, the OPD assigned the Sgt. Johnson IAD
SAN FRANCISCO, CA.94109
FIRM
13 investigation to Sgt. Oliver.
14
LAW
a. Set. Oliver finds Celeste to be credible and seeks to expand the investigation
and refer the case as 2 criminal matter: the OPD denied both requests.
15
SCOTT
16. Within days of the assignment, Sgt. Oliver reviewed the case file, watched the
16
video of the criminal investigators’ interview of Celeste, and discussed the matter with her
17
supervisor, Sgt. Todd Mork (White male). Sgt. Oliver recommended the scope of the
18
investigation be expanded and referred as a criminal investigation. Sgt. Mork agreed with the
19
plaintiff's recommendations. However, the OPD denied both requests. Instead, the OPD
20
instructed plaintiff to continue with the limited administrative investigation against Sgt. Johnson.
21
17. The reason this request was denied, plaintiff was told, was that the chain of
22
command had decided Celeste was not “credible.” In contrast, Sgt. Oliver found Celeste to be
23
credible. Sgt. Oliver was also concerned because Celeste’s mother was working at the OPD, as a
24
dispatcher, referred herein as Dispatcher #1.
25
18. | The OPD elected to address this suicide note, containing allegations of OPD
26
officers participating in statutory rape, as if it were a garden-variety IAD investigation. This
27
28
-3-
COMPLAINT FOR DAMAGES
@ @ |
1 | avoided identifying and investigating other OPD officers who potentially engaged in criminal
2 | behavior. It also avoided determining whether Officer O’Brien’s wife’s death was a homicide.
3 19. | Between October 2015 and February 201 6, plaintiff worked closely with her chain
4 || of command (Lt. Alan Yu and Capt. Donna Hoppenhauer) and the assigned City Attorney
5 || (Allyson Cook) to conduct an administrative investigation into only Sgt. Johnson’s conduct.
b. In February 2016, Sgt. Oliver was told that she was doing a good job.
7 20. On or about February 10, 2016, Sgt. Oliver timely drafted and presented her IA
8 report and recommended a sustained finding against Sgt. Johnson.
9 21. Sgt. Oliver also referenced numerous other OPD officers as potential subjects for a
! 10 | statutory-rape investigation.
a 11 22. ‘Sgt. Oliver followed proper procedures and received favorable responses regarding
s : E 12 | the content and recommended findings of this IAD report.
fm a < 13 23. In February 2016, the plaintiff was told she was doing a good job.
|
Zag
de 2
14 |
III. In March 2016, the federal court overseeing the OPD understood the IAD
| > az 15 investigation assigned to Set. Oliver was unduly narrow and incomplete; in response, the
| Q g & 6 | OPD made Set. Oliver its scapegoat. |
” 2 z 24, The OPD is subject to a federal-court monitoring process and must comply with a
. " Negotiated Settlement Agreement (“NSA”).
| is 25, The NSA requires the OPD report to a court-appointed Monitor and federal court
” | to demonstrate that the OPD remains in compliance with the NSA. :
| 0 26. In March 2016, Sgt. Oliver’s report on the sexual-misconduct matter involving
| - Sgt. Johnson was presented to the Monitor and then to the Honorable Thelton E. Henderson.
2 27. On March 26, 2016, Judge Henderson issued an order which stated as follows:
| “This case raises most serious concerns that may well impact Defendants’ [OPD] ability to .
“A demonstrate their commitment to accountability and sustainability—both of which are key to
°° ending court oversight.” The judge also noted that the matter revealed “irregularities and potential
/ violations of the NSA.” Moreover, the Court directed the Compliance Director to use his
28
-4.-
COMPLAINT FOR DAMAGES
authority “to ensure this case and any related matters are properly and-timely investigated and that
all appropriate follow-up actions are taken.” |
28. The OPD made a decision to make Sgt. Oliver a scapegoat.
29. On March 29, 2016, then-acting-Chief Lois removed S at. Oliver from the
investigation. However, Acting Lt. Mork was not transferred from the investigation although he
also believed the matter should have been investigated criminally. Instead he was promoted and
later transferred to the IAD Intake Unit as Acting Lieutenant.
IV. Thereafter, the OPD engaged in a course of discriminatory, harassing, and
retaliatory conduct against Sgt. Oliver.
30.. Lt. Yu was assigned to take over the sex-scandal investigation as his only case. He
10
"was directed to add staff, overtime, and other resources to expand the scope and nature of the
11
investigation. This included bringing in Criminal Investigation Division investigators.
SUTTER STREET, SUITE 715
12
SAN FRANCISCO, CA 94109
FIRM
31. In contrast, when Sgt. Oliver was assigned this investigation, she was not offered
13
overtime or assistance. Rather, she was told that then-Chief Sean Whent wanted this case behind
14
LAW
him. Sgt. Oliver also had three other investigations assigned to her.
15
SCOTT
32. For example, Sgt. Oliver was assigned a complaint filed by Sgt. Mike Gantt, an
16
African-American officer who alleged then-Lt. John Lois transferred him off of Officer O’Brien’s |
1388
17
wife’s death investigation. Sgt. Gantt also alleged Lt. Lois then engaged in subsequent
18
harassment, motivated by racial animus or retaliation. Sgt. Oliver believed that Sgt. Gantt’s
19
allegations should be substantiated and required additional investigation.
20
33. Onor about April 5, 2016, the OPD removed Sgt. Oliver from Sot. Gantt’s
21
investigation without explanation.
22
34, After the Court’s March 26, 2016 order, Sgt. Oliver’s supervisors andthe City
23
Attomey’s office began criticizing her performance, re-evaluating her previously completed
24
investigations, and documenting fabricated short-comings.
25
35. | Although in May and June 2016, Sgt. Oliver was told she would be transferred to a
26
preferred assignment with the Police Activities League, by the Fall of 2016, Capt. Donna
27
Hoppenhauer claimed Sgt. Oliver’s investigation into the sex scandal was “flawed” and “caused
28
-5-
COMPLAINT FOR DAMAGES
significant negative attention to the OPD” which triggered her decision to transfer Sgt. Oliver to a
non-preferred assignment, to Patrol.
| 36. On January 14, 2017, Sgt. Oliver was transferred from IAD to Patrol.
37. Sgt. Oliver’s supervisor, Acting Lt. Dominque Arotzarena (White male), created a
hostile work environment during her tenure from January 14, 2017 through February 23, 2017,
including: (a) suggesting to her fellow officers that she would “report them” to 1A; (b) belittling
her experience and abilities as if she were incapable of performing duties in Patrol in front of her
colleagues; (c) compelling her to present a previous IA investigation she had conducted when
other former IA officers did not have to do so; and, (d) instructing the plaintiff to only report to
10 him rather than a parallel Acting Lt. Rachel Van Sloten (female).
11 38. The OPD’s hostility toward Sgt. Oliver escalated in February 2017.
1388 SUTTER STREET, SUITE 715
12 39. On February 10, 2017, Sgt. Oliver was off-duty. Other OPD officers responded to
SAN FRANCISCO, CA 94109
SCOTT LAW FIRM
13 an incident at a location where residents alleged a neighbor shot up a car.
14 40. On February 14, 2017, plaintiff responded to a call regarding another car that was
15 shot up at the same block as on the 10th. Sgt. Oliver consulted with Acting Lt. Rachel Van Sloten
16 and they agreed on a course of action which was implemented.
17 41. On February 17, 2017, plaintiff was again off-duty when an officer-involved
18 shooting occurred at the same location. Later that day, Sgt. Oliver was informed that she would
19 be relieved of patrol duties and assigned administrative duties. One hour later, Sgt. Oliver was
20 informed that information was inaccurate.
21 42. On February 18, 2017, the East Bay Express identified Sgt. Oliver as the “highest
22 ranking official” on the scene of a call for service on February 14, 2017 at the same location of
23 the officer-involved shooting on the 17th. Although the article described the three incidents, the
24 apparent leaked information to the press failed to identify any other (male or Caucasian) officers
25 in charge, uniquely putting Sgt. Oliver’s safety in jeopardy. |
26 43. Thereafter, Lt. Arotzarena blamed Sgt. Oliver as responsible for what went
27 “wrong” on the 17th. Lt. Arotzarena instructed Sgt. Oliver that she would have to do a “ride
28 along” for the next two weeks, which was in violation of policy and practice.
-6-
COMPLAINT FOR DAMAGES
V. In February 2017, Set. Oliver complained about discrimination and retaliation.
44. On February 23, 2017, Sgt. Oliver delivered a written complaint alleging a hostile
work environment in Patrol, on behalf of herself and others, to Deputy Chief Darren Allison.
45. __ By February 24, 2017, Sgt. Oliver suffered significant job-related stress and went
out on medical leave.
46. | The OPD made no good-faith or meaningful effort to accommodate Sgt. Oliver so
she could return to work, other than presenting one option—working in Dispatch, with Celeste’s
mother. This offered “accommodation” was intended to exacerbate rather than accommodate Sgt.
Oliver’s stress-related symptoms. Instead, the OPD focused on discrediting Sgt. Oliver, finding
10 excuses for discipline, and forcing her to resign or take a medical retirement.
11 47. | On March 27, 2017, plaintiff submitted an EEOC intake questionnaire.
1388 SUTTER STREET, SUITE 715
12 48. On April 3, 2017, the court-appointed investigators Ed Swanson and Audrey
.
SAN FRANCISCO, CA 94109
FIRM
13 Barron interviewed Sgt. Oliver regarding the sexual-misconduct investigation. They agreed that
14 Set. Oliver’s assessment of the case from the onset was correct—that it should have been
LAW
15 investigated criminally.
SCOTT
16 49. On Apmil 4, 2017, IAD Lt. Allan Steinberger refused Sgt. Oliver’s request to
17 review video footage or reports to prepare for plaintiff's interview related to the OPD’s
18 investigation of the February 17, 2017 incident, contrary to the OPD’s practices and procedures.
19 This required plaintiff's attorney to obtain access to the materials that other officers are entitled to
20 review to refresh their recollections without an attorney’s assistance.
21 50. On April 5, 2017, plaintiff submitted a Citizen’s Compiaint with the City of
22 Oakland’s Citizen’s Police Review Board (“CPRB”) alleging that her complaint dated F ebruary
23 23, 2017 had not yet triggered any investigation, in violation of IAD policies and procedures.
24 51. On April 21, 2017, plaintiff filed a complaint with the EEOC alleging many of the
25 same facts and information noted above. Plaintiff alleges on information and belief that this
26 investigation is ongoing.
27 |
28
-7-
COMPLAINT FOR DAMAGES
52. On April 21, 2017, the court-appointed investigator filed a report with the court
2 which criticized plaintiff's LAD investigation as “inadequate” and blamed the plairtiff for having
3 conducted the limited investigation as she was instructed.
4 53. In August 2017, plaintiff was instructed to turn in her badge and equipment,
5 though she was on work-related stress leave.
6 54. On December 24, 2017, plaintiff submitted her application for an industrial-
7 disability retirement.
8
VI. In 2018, the OPD continued to discriminate and retaliate against Set. Oliver.
‘9 55. On February 5, 2018 plaintiff submitted a. supplemental complaint tc the [AD
10 against Lt. Lois.
1! 56. That evenin g, the OPD delivered a letter from Anne E. Kirkpatrick, Chief of
Fo 49
‘
Police, Oakland Police Department, advising as follows:
ZEs
meee 413
Bed This letter is to inform you that I intend to demote you from the rank of Sergeant to the
qeg
4e2 1 rank of Police Officer with the correspondent reduction in pay and benefits.
This recommendation results from the findings of the Internal Affairs Division
Rag
OLE
15 ‘ investigation number 17-0139. The investigation disclosed sufficient evidence to
B23 16 determine that you responded to the scene of a person who allegedly fired into an
occupied vehicle. You failed to provide leadership, supervision, direction and enforcement
% 17
of rules and assisting subordinates while at the scene. You did not follow thra with
handling the scene directed officer to leave the scene without taking appropriate action.
18 February 5, 2018 Letter.
19 57. ‘However, according to the OPD’s practices and procedures, Sgt. Oliver’s alleged
20 misconduct on February 14, 2017 could trigger no more than a maximum of a five-day
21 suspension, without a demotion.
22 58. On February 22, 2018, plaintiff submitted a FEHA complaint and received a right-
23 to-sue letter.
24 59. On May 22, 2018, there was a Skelly hearing on Chief Kirkpatrick’s requested
25 demotion of Sgt. Oliver.
26 60. On October 18, 2018, counsel for Sgt. Oliver emailed a copy of her FEHA
27 complaint to the City of Oakland’s attorney.
28
-8-
COMPLAINT FOR DAMAGES
61. On November 16, 2018, Sgt. Oliver submitted an IAD complaint against Chief
Kirkpatrick.
VII. In 2019,.the OPD continued to discriminate and retaliate against Set. Oliver.
62. Ina letter dated January 15, 2019, the City of Oakland’s City Administrator
-
suspended Sgt. Oliver for thirty days without pay and. without providing Sgt. Oliver with the
rn
Skelly officer’s report upon which the Chief’s recommendation was allegedly based.
DW
JT
63. Asof February 20, 2019, the OPD has delayed processing Sgt. Oliver’s application
CO
for an industrial-disability retirement, forcing her to spend her sick and vacation pay to live on
oO
while her application remained pending.
10 | 64. On February 21, 2019, plaintiff submitted a supplement to her FEHA complaint
11 dated February 22, 2018 and received a right-to-sue letter.
1388 SUTTER STREET, SUITE 715
12 65. As described herein and in Sgt. Oliver’s pending EEOC and FEHA complaints, the
SAN FRANCISCO, CA 94109
LAW FIRM
13 terms and conditions of Sgt. Oliver’s OPD employment have been and continue to be altered.
14 Adverse acts include but are not limited to the following:
15
(a) scapegoated for failing to conduct a criminal or broader investigation triggered by
SCOTT
Officer O’Brien’s suicide note and allegations regarding his wife’s suspicious death and
16
other OPD officers’ involvement in a sex scandal;
17
(b) unfavorable outcome during Lt.’s test in June 2016;
18
(c) transferred from preferred position in IAD to Patrol in January 2017;
19
(d) harassed and subjected to a hostile work environment while in Patrol:
(e) failed to accommodate Sgt. Oliver to return to work other than having her work
with Celeste’s mother;
21
22 (f) | served with a notice of intention to demote on February 5, 2018; -
(g) forced the plaintiff to seek a disability retirement;
23
24 (h) delayed Sgt. Oliver’s retirement process to ensure she had to cash out ker sick and
vacation pay; and,
25
(i) suspended Sgt. Oliver for 30 days without pay on of January 15, 2019.
26
-9-
COMPLAINT FOR DAMAGES
66. Plaintiff alleges on information and belief that the recommended demotion and
now-unpaid-30-day-suspension discipline are unduly punitive, based on the OPD’s policies and
procedures.
67. Plaintiff further alleges on information and belief that the OPD is forcing her into a
now-delayed disability retirement.
DAMAGES
68. As aresult of the acts and omissions alleged, plaintiff sustained and will continue
to sustain compensatory and economic damages including losses of income, earnings,
promotions, bonuses, and benefits. In addition, plaintiff sustained and will continue to sustain
damages to her career, reputation, future and prospective earning capacity and wages, and
10
prospective economic opportunities and advantages in an amount determined accord:ng to proof.
11
69. Asa further result of defendants’ conduct, plaintiff suffered and will continue to
1388 SUTTER STREET, SUITE 715
12
SAN FRANCISCO, CA 94109
suffer general damages including fear, anxiety, humiliation, and emotional distress in an amount
SCOTT LAW FIRM
13
to be determined according to proof.
14
70. Plaintiff also incurred and will continue to incur attorneys’ fees and costs in an
15
amount according to proof to which she may be entitled under state and federal law.
16
CAUSES OF ACTION
17
FIRST CAUSE OF ACTION
18 [Gender Discrimination in Violation of the FEHA, Gov. Code §12940(a)]
19 71. ~~ Plaintiff hereby re-alleges and incorporate by reference as though fullv set forth
20 herein all paragraphs of this Complaint.
21 72. The Oakland Police Department (“OPD”) is an employer subject to suit under the
22 Fair Employment and Housing Act (“FEHA”) which provides in pertinent part that it is unlawful
23 for "an employer, because of the ... gender ...of any person, to ... to discriminate against the
24 person ... in terms, conditions, or privileges of employment." Gov. Code § 12940, subc. (a).
25 73. Mildred Oliver is a female employee of the OPD.
26 74. The OPD made numerous decisions cited herein which subjected Sgt. Oliver to
27 adverse employment actions and altered her terms and conditions of employment. Sgt. Oliver’s
28 - gender was a substantial motivating reason for these decisions.
-10-
COMPLAINT FOR DAMAGES
75. Plaintiff is informed and believes and therefore alleges that defendants willfully or
with reckless indifference violated the Fair Employment and Housing Act including
discriminating against Sgt. Oliver.
76. Plaintiff suffered injuries and damages as set forth more fully herein.
77. Defendants’ conduct was a substantial factor in causing Sgt. Oliver’s harm.
WHEREFORE, plaintiff prays judgment against defendants, and each of them, as
hereinafter set forth.
SECOND CAUSE OF ACTION
[Race Discrimination in Violation of the FEHA, Gov. Code §12940(a)] -
10 78. Plaintiff hereby re-alleges and incorporate by reference as though fully set forth
11 herein all paragraphs of this Complaint.
1388 SUTTER STREET, SUITE 715
12 79. The Oakland Police Department (“OPD”) is an employer subject to suit under the
SAN FRANCISCO, CA 94109
LAW FIRM
13 Fair Employment and Housing Act (“FEHA”) which provides in pertinent part that it is unlawful
14 for "an employer, because of the ... race ... of any person, to ... to discriminate against the
15 person ... In terms, conditions, or privileges of employment." Gov. Code § 12940, subd. (a).
SCOTT
16 80. Mildred Oliver is an African-American employee of the OPD. |
17 81. The OPD made numerous decisions cited herein which subjected Set. Oliver to
18 adverse employment actions and altered her terms and conditions of employment. Sgt. Oliver’s
19 race was a substantial motivating reason for these decisions.
20 82. Plaintiff is informed and believes and therefore alleges that defendants willfully or
21 with reckless indifference violated the Fair Employment and Housing Act including
22 discriminating against Sgt. Oliver.
23 83. Plaintiff suffered injuries and damages as set forth more fully herein.
24 84. | Defendants' conduct was a substantial factor in causing Set. Oliver’s harm.
25 WHEREFORE, plaintiff prays judgment against defendants, and each of them, as
26 hereinafter set forth. .
27 Ml |
28 Mf
-11-
COMPLAINT FOR DAMAGES
THIRD CAUSE OF ACTION
[Hostile-Work Environment in Violation of the FEHA, Gov. Code § 1240 (j)]
WN
85. Plaintiff hereby re-alleges and incorporate by reference as though fully set forth
WwW
herein all paragraphs of this Complaint.
bh
86. The OPD is an employer subject to suit under FEHA which provides :n pertinent
GN
part that it is unlawful for an employer to create a hostile work environment based on her gender
DW
or race or both. Gov. Code § 12940, subd. (j).
~
87. | Mildred Oliver is a female African-American employee of the OPD who was
oO
subjected to unwanted harassing conduct described herein.
Oo
88. The harassing conduct was severe and pervasive.
10
89. A reasonable professional African-American woman with over twenty years tenure
11
at the OPD would consider the work environment to be hostile or abusive.
1388 SUTTER STREET, SUITE 715
12
SAN FRANCISCO, CA 94109
90. Sgt. Oliver considered the work environment to be hostile and abusive.
SCOTT LAW FIRM
13
91. | The OPD engaged in the conduct and knew or should have known of the conduct
Preview
il ST le 7 21131635 John Houston Scott (SBN 72578) AL A M es D Lizabeth N. de Vries (SBN 227215) OUNTY Scott Law FIRM FEB 2] 2019 1388 Sutter Street, Suite 715 CLERK San Francisco, California 94109 By a THE Sy RIO Courr Telephone: (415) 561-9600 Tims Facsimile: (415) 561-9609 Dep john@scottlawfirm.net ~c liza@scottlawfirm.net Attomeys for Plaintiff MILDRED L. OLIVER SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ALAMEDA — OAKLAND DIVISION 10 11 MILDRED L. OLIVER, Case No. RG 190 07799 715 12 Plaintiff, COMPLAINT FOR DAMAGES SAN FRANCISCO, CA 94109 SUITE FIRM 13 Vv. 1 . FEHA-GENDER DISCRIMINATION STREET, 14 CITY OF OAKLAND, OAKLAND 2. FEHA — RACE DISCRIMINATION LAW 3 _ FEHA — HOSTILE-WORK POLICE DEPARTMENT, and DOES 1- -15 “aclusi ENVIRONMENT 25, inclusive. 4. FEHA - RETALIATION SCOTT SUTTER 16 Defendants. 1388 17 Jury Trial Demanded 18 19 PARTIES & VENUE 20 I. Plaintiff Mildred Oliver is an African-American woman who is an employee of the 21 Oakland Police Department. She resides in Oakland, California. 22 2. Defendant City of Oakland is a public entity situated in the State of California, 23 County of Alameda, and is organized under the laws of the State of California. Plaintiff is 24 informed and believes and thereon alleges that the Oakland Police Department is an agency of the 25 City of Oakland. . 26 3. Defendant Oakland Police Department is a public entity situated in the State of 21 California, County of Alameda, and is organized and existing pursuant to the laws of the State of 28 California. -1- COMPLAINT FOR DAMAGES BY FAX 4. Plaintiff does not presently know the true names and capacities of defendants DOES 1 through 25, inclusive, and therefore sues them by these fictitious names. Plaintiff is informed and believes that DOES 1 through 25, and each of them, were responsible in some manner for the acts or omissions alleged herein. Plaintiff will seek leave to amend this Complaint to add their true names and capacities when they have been ascertained. 5. At all times mentioned herein, each of the defendants was the agent, servant, employee, partner, aider and abettor, co-conspirator, and/or joint venturer of each of the other remaining defendants, and in doing the things alleged, was acting within the course and scope of such agency, service, employment, partnership, conspiracy, alter ego, and/or joint venture, and 10 each defendant ratified and approved the acts of the other remaining defendants. 11 6. The conduct alleged herein occurred in Alameda County. Venue of this action lies 1388 SUTTER STRUET, SUITE 715 12 in the Superior Court in the County of Alameda, California. | SAN FRANCISCO, CA 94109 FIRM 13 STATEMENT OF FACTS 14 LAW I. Set. Mildred Oliver has served the OPD for 22 years: by 2014 she was the only 15 assigned female investigator in the Internal Affairs Division. SCOTT 7. From August 22, 1997 to the present Mildred L. Oliver, a Black female, was 16 employed as a police officer for the Oakland Police Department (hereafter "OPD"), and was 17 promotedto Sergeant in 2012. 18 8. Throughout her tenure, she performed her job duties satisfactorily. 19 9. In 2014, Sgt. Oliver was assigned as an investigator in the Internal Affairs 20 Division of the OPD (“IAD”). . 21 10. Sgt. Oliver was the only female IAD investigator out of a team of eight. 22 23 I. In October 2015, the OPD assigns Set. Oliver an unduly limited investigation of an OPD Officer’s suicide note, even though the note and investigation implicated identified 24 and unidentified OPD officers as having engaged in criminal conduct. 25 11. On June 14, 2014, OPD Officer Brendan O’Brien’s wife was killed. Officer 26 O’Brien was a primary suspect. Plaintiff alleges on information and belief that Officer O’Brien’s 27 wife had recently discovered that her husband had been cheating on her. 28 -2- COMPLAINT FOR DAMAGES | . @ © . 12. The OPD’s official investigation concluded that Officer O’Brien’s wife’s death was a suicide, not a murder. Sgt. Mike Gantt disagreed with this conclusion. Sgt. Gantt believed Officer O’Brien’s wife’s death was a homicide. However, after he voiced these beliefs, the OPD removed Sgt. Gantt from the investigation. _ | 13. On September 25, 2015, OPD Officer O’Brien committed suicide and left a note. ws Officer O’Brien implicated himself and two other OPD members. He identified a minor female HD (‘Celeste’) who accused Officer O’Brien and another former OPD officer (Officer #1) of “sD statutory rape. The note also identified a Black male OPD Sergeant, S ot. Leroy Johnson, as being aware of Officer O’Brien’s and Officer #1’s misconduct. 10 14, The OPD launched an IAD investigation only as against Sgt. Johnson for his: i alleged failure to report misconduct by Officers O’Brien and #1. 1388 SUTTER STREET, SUITE 715 12 15. On or about October 1, 2915, the OPD assigned the Sgt. Johnson IAD SAN FRANCISCO, CA.94109 FIRM 13 investigation to Sgt. Oliver. 14 LAW a. Set. Oliver finds Celeste to be credible and seeks to expand the investigation and refer the case as 2 criminal matter: the OPD denied both requests. 15 SCOTT 16. Within days of the assignment, Sgt. Oliver reviewed the case file, watched the 16 video of the criminal investigators’ interview of Celeste, and discussed the matter with her 17 supervisor, Sgt. Todd Mork (White male). Sgt. Oliver recommended the scope of the 18 investigation be expanded and referred as a criminal investigation. Sgt. Mork agreed with the 19 plaintiff's recommendations. However, the OPD denied both requests. Instead, the OPD 20 instructed plaintiff to continue with the limited administrative investigation against Sgt. Johnson. 21 17. The reason this request was denied, plaintiff was told, was that the chain of 22 command had decided Celeste was not “credible.” In contrast, Sgt. Oliver found Celeste to be 23 credible. Sgt. Oliver was also concerned because Celeste’s mother was working at the OPD, as a 24 dispatcher, referred herein as Dispatcher #1. 25 18. | The OPD elected to address this suicide note, containing allegations of OPD 26 officers participating in statutory rape, as if it were a garden-variety IAD investigation. This 27 28 -3- COMPLAINT FOR DAMAGES @ @ | 1 | avoided identifying and investigating other OPD officers who potentially engaged in criminal 2 | behavior. It also avoided determining whether Officer O’Brien’s wife’s death was a homicide. 3 19. | Between October 2015 and February 201 6, plaintiff worked closely with her chain 4 || of command (Lt. Alan Yu and Capt. Donna Hoppenhauer) and the assigned City Attorney 5 || (Allyson Cook) to conduct an administrative investigation into only Sgt. Johnson’s conduct. b. In February 2016, Sgt. Oliver was told that she was doing a good job. 7 20. On or about February 10, 2016, Sgt. Oliver timely drafted and presented her IA 8 report and recommended a sustained finding against Sgt. Johnson. 9 21. Sgt. Oliver also referenced numerous other OPD officers as potential subjects for a ! 10 | statutory-rape investigation. a 11 22. ‘Sgt. Oliver followed proper procedures and received favorable responses regarding s : E 12 | the content and recommended findings of this IAD report. fm a < 13 23. In February 2016, the plaintiff was told she was doing a good job. | Zag de 2 14 | III. In March 2016, the federal court overseeing the OPD understood the IAD | > az 15 investigation assigned to Set. Oliver was unduly narrow and incomplete; in response, the | Q g & 6 | OPD made Set. Oliver its scapegoat. | ” 2 z 24, The OPD is subject to a federal-court monitoring process and must comply with a . " Negotiated Settlement Agreement (“NSA”). | is 25, The NSA requires the OPD report to a court-appointed Monitor and federal court ” | to demonstrate that the OPD remains in compliance with the NSA. : | 0 26. In March 2016, Sgt. Oliver’s report on the sexual-misconduct matter involving | - Sgt. Johnson was presented to the Monitor and then to the Honorable Thelton E. Henderson. 2 27. On March 26, 2016, Judge Henderson issued an order which stated as follows: | “This case raises most serious concerns that may well impact Defendants’ [OPD] ability to . “A demonstrate their commitment to accountability and sustainability—both of which are key to °° ending court oversight.” The judge also noted that the matter revealed “irregularities and potential / violations of the NSA.” Moreover, the Court directed the Compliance Director to use his 28 -4.- COMPLAINT FOR DAMAGES authority “to ensure this case and any related matters are properly and-timely investigated and that all appropriate follow-up actions are taken.” | 28. The OPD made a decision to make Sgt. Oliver a scapegoat. 29. On March 29, 2016, then-acting-Chief Lois removed S at. Oliver from the investigation. However, Acting Lt. Mork was not transferred from the investigation although he also believed the matter should have been investigated criminally. Instead he was promoted and later transferred to the IAD Intake Unit as Acting Lieutenant. IV. Thereafter, the OPD engaged in a course of discriminatory, harassing, and retaliatory conduct against Sgt. Oliver. 30.. Lt. Yu was assigned to take over the sex-scandal investigation as his only case. He 10 "was directed to add staff, overtime, and other resources to expand the scope and nature of the 11 investigation. This included bringing in Criminal Investigation Division investigators. SUTTER STREET, SUITE 715 12 SAN FRANCISCO, CA 94109 FIRM 31. In contrast, when Sgt. Oliver was assigned this investigation, she was not offered 13 overtime or assistance. Rather, she was told that then-Chief Sean Whent wanted this case behind 14 LAW him. Sgt. Oliver also had three other investigations assigned to her. 15 SCOTT 32. For example, Sgt. Oliver was assigned a complaint filed by Sgt. Mike Gantt, an 16 African-American officer who alleged then-Lt. John Lois transferred him off of Officer O’Brien’s | 1388 17 wife’s death investigation. Sgt. Gantt also alleged Lt. Lois then engaged in subsequent 18 harassment, motivated by racial animus or retaliation. Sgt. Oliver believed that Sgt. Gantt’s 19 allegations should be substantiated and required additional investigation. 20 33. Onor about April 5, 2016, the OPD removed Sgt. Oliver from Sot. Gantt’s 21 investigation without explanation. 22 34, After the Court’s March 26, 2016 order, Sgt. Oliver’s supervisors andthe City 23 Attomey’s office began criticizing her performance, re-evaluating her previously completed 24 investigations, and documenting fabricated short-comings. 25 35. | Although in May and June 2016, Sgt. Oliver was told she would be transferred to a 26 preferred assignment with the Police Activities League, by the Fall of 2016, Capt. Donna 27 Hoppenhauer claimed Sgt. Oliver’s investigation into the sex scandal was “flawed” and “caused 28 -5- COMPLAINT FOR DAMAGES significant negative attention to the OPD” which triggered her decision to transfer Sgt. Oliver to a non-preferred assignment, to Patrol. | 36. On January 14, 2017, Sgt. Oliver was transferred from IAD to Patrol. 37. Sgt. Oliver’s supervisor, Acting Lt. Dominque Arotzarena (White male), created a hostile work environment during her tenure from January 14, 2017 through February 23, 2017, including: (a) suggesting to her fellow officers that she would “report them” to 1A; (b) belittling her experience and abilities as if she were incapable of performing duties in Patrol in front of her colleagues; (c) compelling her to present a previous IA investigation she had conducted when other former IA officers did not have to do so; and, (d) instructing the plaintiff to only report to 10 him rather than a parallel Acting Lt. Rachel Van Sloten (female). 11 38. The OPD’s hostility toward Sgt. Oliver escalated in February 2017. 1388 SUTTER STREET, SUITE 715 12 39. On February 10, 2017, Sgt. Oliver was off-duty. Other OPD officers responded to SAN FRANCISCO, CA 94109 SCOTT LAW FIRM 13 an incident at a location where residents alleged a neighbor shot up a car. 14 40. On February 14, 2017, plaintiff responded to a call regarding another car that was 15 shot up at the same block as on the 10th. Sgt. Oliver consulted with Acting Lt. Rachel Van Sloten 16 and they agreed on a course of action which was implemented. 17 41. On February 17, 2017, plaintiff was again off-duty when an officer-involved 18 shooting occurred at the same location. Later that day, Sgt. Oliver was informed that she would 19 be relieved of patrol duties and assigned administrative duties. One hour later, Sgt. Oliver was 20 informed that information was inaccurate. 21 42. On February 18, 2017, the East Bay Express identified Sgt. Oliver as the “highest 22 ranking official” on the scene of a call for service on February 14, 2017 at the same location of 23 the officer-involved shooting on the 17th. Although the article described the three incidents, the 24 apparent leaked information to the press failed to identify any other (male or Caucasian) officers 25 in charge, uniquely putting Sgt. Oliver’s safety in jeopardy. | 26 43. Thereafter, Lt. Arotzarena blamed Sgt. Oliver as responsible for what went 27 “wrong” on the 17th. Lt. Arotzarena instructed Sgt. Oliver that she would have to do a “ride 28 along” for the next two weeks, which was in violation of policy and practice. -6- COMPLAINT FOR DAMAGES V. In February 2017, Set. Oliver complained about discrimination and retaliation. 44. On February 23, 2017, Sgt. Oliver delivered a written complaint alleging a hostile work environment in Patrol, on behalf of herself and others, to Deputy Chief Darren Allison. 45. __ By February 24, 2017, Sgt. Oliver suffered significant job-related stress and went out on medical leave. 46. | The OPD made no good-faith or meaningful effort to accommodate Sgt. Oliver so she could return to work, other than presenting one option—working in Dispatch, with Celeste’s mother. This offered “accommodation” was intended to exacerbate rather than accommodate Sgt. Oliver’s stress-related symptoms. Instead, the OPD focused on discrediting Sgt. Oliver, finding 10 excuses for discipline, and forcing her to resign or take a medical retirement. 11 47. | On March 27, 2017, plaintiff submitted an EEOC intake questionnaire. 1388 SUTTER STREET, SUITE 715 12 48. On April 3, 2017, the court-appointed investigators Ed Swanson and Audrey . SAN FRANCISCO, CA 94109 FIRM 13 Barron interviewed Sgt. Oliver regarding the sexual-misconduct investigation. They agreed that 14 Set. Oliver’s assessment of the case from the onset was correct—that it should have been LAW 15 investigated criminally. SCOTT 16 49. On Apmil 4, 2017, IAD Lt. Allan Steinberger refused Sgt. Oliver’s request to 17 review video footage or reports to prepare for plaintiff's interview related to the OPD’s 18 investigation of the February 17, 2017 incident, contrary to the OPD’s practices and procedures. 19 This required plaintiff's attorney to obtain access to the materials that other officers are entitled to 20 review to refresh their recollections without an attorney’s assistance. 21 50. On April 5, 2017, plaintiff submitted a Citizen’s Compiaint with the City of 22 Oakland’s Citizen’s Police Review Board (“CPRB”) alleging that her complaint dated F ebruary 23 23, 2017 had not yet triggered any investigation, in violation of IAD policies and procedures. 24 51. On April 21, 2017, plaintiff filed a complaint with the EEOC alleging many of the 25 same facts and information noted above. Plaintiff alleges on information and belief that this 26 investigation is ongoing. 27 | 28 -7- COMPLAINT FOR DAMAGES 52. On April 21, 2017, the court-appointed investigator filed a report with the court 2 which criticized plaintiff's LAD investigation as “inadequate” and blamed the plairtiff for having 3 conducted the limited investigation as she was instructed. 4 53. In August 2017, plaintiff was instructed to turn in her badge and equipment, 5 though she was on work-related stress leave. 6 54. On December 24, 2017, plaintiff submitted her application for an industrial- 7 disability retirement. 8 VI. In 2018, the OPD continued to discriminate and retaliate against Set. Oliver. ‘9 55. On February 5, 2018 plaintiff submitted a. supplemental complaint tc the [AD 10 against Lt. Lois. 1! 56. That evenin g, the OPD delivered a letter from Anne E. Kirkpatrick, Chief of Fo 49 ‘ Police, Oakland Police Department, advising as follows: ZEs meee 413 Bed This letter is to inform you that I intend to demote you from the rank of Sergeant to the qeg 4e2 1 rank of Police Officer with the correspondent reduction in pay and benefits. This recommendation results from the findings of the Internal Affairs Division Rag OLE 15 ‘ investigation number 17-0139. The investigation disclosed sufficient evidence to B23 16 determine that you responded to the scene of a person who allegedly fired into an occupied vehicle. You failed to provide leadership, supervision, direction and enforcement % 17 of rules and assisting subordinates while at the scene. You did not follow thra with handling the scene directed officer to leave the scene without taking appropriate action. 18 February 5, 2018 Letter. 19 57. ‘However, according to the OPD’s practices and procedures, Sgt. Oliver’s alleged 20 misconduct on February 14, 2017 could trigger no more than a maximum of a five-day 21 suspension, without a demotion. 22 58. On February 22, 2018, plaintiff submitted a FEHA complaint and received a right- 23 to-sue letter. 24 59. On May 22, 2018, there was a Skelly hearing on Chief Kirkpatrick’s requested 25 demotion of Sgt. Oliver. 26 60. On October 18, 2018, counsel for Sgt. Oliver emailed a copy of her FEHA 27 complaint to the City of Oakland’s attorney. 28 -8- COMPLAINT FOR DAMAGES 61. On November 16, 2018, Sgt. Oliver submitted an IAD complaint against Chief Kirkpatrick. VII. In 2019,.the OPD continued to discriminate and retaliate against Set. Oliver. 62. Ina letter dated January 15, 2019, the City of Oakland’s City Administrator - suspended Sgt. Oliver for thirty days without pay and. without providing Sgt. Oliver with the rn Skelly officer’s report upon which the Chief’s recommendation was allegedly based. DW JT 63. Asof February 20, 2019, the OPD has delayed processing Sgt. Oliver’s application CO for an industrial-disability retirement, forcing her to spend her sick and vacation pay to live on oO while her application remained pending. 10 | 64. On February 21, 2019, plaintiff submitted a supplement to her FEHA complaint 11 dated February 22, 2018 and received a right-to-sue letter. 1388 SUTTER STREET, SUITE 715 12 65. As described herein and in Sgt. Oliver’s pending EEOC and FEHA complaints, the SAN FRANCISCO, CA 94109 LAW FIRM 13 terms and conditions of Sgt. Oliver’s OPD employment have been and continue to be altered. 14 Adverse acts include but are not limited to the following: 15 (a) scapegoated for failing to conduct a criminal or broader investigation triggered by SCOTT Officer O’Brien’s suicide note and allegations regarding his wife’s suspicious death and 16 other OPD officers’ involvement in a sex scandal; 17 (b) unfavorable outcome during Lt.’s test in June 2016; 18 (c) transferred from preferred position in IAD to Patrol in January 2017; 19 (d) harassed and subjected to a hostile work environment while in Patrol: (e) failed to accommodate Sgt. Oliver to return to work other than having her work with Celeste’s mother; 21 22 (f) | served with a notice of intention to demote on February 5, 2018; - (g) forced the plaintiff to seek a disability retirement; 23 24 (h) delayed Sgt. Oliver’s retirement process to ensure she had to cash out ker sick and vacation pay; and, 25 (i) suspended Sgt. Oliver for 30 days without pay on of January 15, 2019. 26 -9- COMPLAINT FOR DAMAGES 66. Plaintiff alleges on information and belief that the recommended demotion and now-unpaid-30-day-suspension discipline are unduly punitive, based on the OPD’s policies and procedures. 67. Plaintiff further alleges on information and belief that the OPD is forcing her into a now-delayed disability retirement. DAMAGES 68. As aresult of the acts and omissions alleged, plaintiff sustained and will continue to sustain compensatory and economic damages including losses of income, earnings, promotions, bonuses, and benefits. In addition, plaintiff sustained and will continue to sustain damages to her career, reputation, future and prospective earning capacity and wages, and 10 prospective economic opportunities and advantages in an amount determined accord:ng to proof. 11 69. Asa further result of defendants’ conduct, plaintiff suffered and will continue to 1388 SUTTER STREET, SUITE 715 12 SAN FRANCISCO, CA 94109 suffer general damages including fear, anxiety, humiliation, and emotional distress in an amount SCOTT LAW FIRM 13 to be determined according to proof. 14 70. Plaintiff also incurred and will continue to incur attorneys’ fees and costs in an 15 amount according to proof to which she may be entitled under state and federal law. 16 CAUSES OF ACTION 17 FIRST CAUSE OF ACTION 18 [Gender Discrimination in Violation of the FEHA, Gov. Code §12940(a)] 19 71. ~~ Plaintiff hereby re-alleges and incorporate by reference as though fullv set forth 20 herein all paragraphs of this Complaint. 21 72. The Oakland Police Department (“OPD”) is an employer subject to suit under the 22 Fair Employment and Housing Act (“FEHA”) which provides in pertinent part that it is unlawful 23 for "an employer, because of the ... gender ...of any person, to ... to discriminate against the 24 person ... in terms, conditions, or privileges of employment." Gov. Code § 12940, subc. (a). 25 73. Mildred Oliver is a female employee of the OPD. 26 74. The OPD made numerous decisions cited herein which subjected Sgt. Oliver to 27 adverse employment actions and altered her terms and conditions of employment. Sgt. Oliver’s 28 - gender was a substantial motivating reason for these decisions. -10- COMPLAINT FOR DAMAGES 75. Plaintiff is informed and believes and therefore alleges that defendants willfully or with reckless indifference violated the Fair Employment and Housing Act including discriminating against Sgt. Oliver. 76. Plaintiff suffered injuries and damages as set forth more fully herein. 77. Defendants’ conduct was a substantial factor in causing Sgt. Oliver’s harm. WHEREFORE, plaintiff prays judgment against defendants, and each of them, as hereinafter set forth. SECOND CAUSE OF ACTION [Race Discrimination in Violation of the FEHA, Gov. Code §12940(a)] - 10 78. Plaintiff hereby re-alleges and incorporate by reference as though fully set forth 11 herein all paragraphs of this Complaint. 1388 SUTTER STREET, SUITE 715 12 79. The Oakland Police Department (“OPD”) is an employer subject to suit under the SAN FRANCISCO, CA 94109 LAW FIRM 13 Fair Employment and Housing Act (“FEHA”) which provides in pertinent part that it is unlawful 14 for "an employer, because of the ... race ... of any person, to ... to discriminate against the 15 person ... In terms, conditions, or privileges of employment." Gov. Code § 12940, subd. (a). SCOTT 16 80. Mildred Oliver is an African-American employee of the OPD. | 17 81. The OPD made numerous decisions cited herein which subjected Set. Oliver to 18 adverse employment actions and altered her terms and conditions of employment. Sgt. Oliver’s 19 race was a substantial motivating reason for these decisions. 20 82. Plaintiff is informed and believes and therefore alleges that defendants willfully or 21 with reckless indifference violated the Fair Employment and Housing Act including 22 discriminating against Sgt. Oliver. 23 83. Plaintiff suffered injuries and damages as set forth more fully herein. 24 84. | Defendants' conduct was a substantial factor in causing Set. Oliver’s harm. 25 WHEREFORE, plaintiff prays judgment against defendants, and each of them, as 26 hereinafter set forth. . 27 Ml | 28 Mf -11- COMPLAINT FOR DAMAGES THIRD CAUSE OF ACTION [Hostile-Work Environment in Violation of the FEHA, Gov. Code § 1240 (j)] WN 85. Plaintiff hereby re-alleges and incorporate by reference as though fully set forth WwW herein all paragraphs of this Complaint. bh 86. The OPD is an employer subject to suit under FEHA which provides :n pertinent GN part that it is unlawful for an employer to create a hostile work environment based on her gender DW or race or both. Gov. Code § 12940, subd. (j). ~ 87. | Mildred Oliver is a female African-American employee of the OPD who was oO subjected to unwanted harassing conduct described herein. Oo 88. The harassing conduct was severe and pervasive. 10 89. A reasonable professional African-American woman with over twenty years tenure 11 at the OPD would consider the work environment to be hostile or abusive. 1388 SUTTER STREET, SUITE 715 12 SAN FRANCISCO, CA 94109 90. Sgt. Oliver considered the work environment to be hostile and abusive. SCOTT LAW FIRM 13 91. | The OPD engaged in the conduct and knew or should have known of the conduct