Lawsuit against Vancouver will linger into 2011

A lawsuit filed by a former city of Vancouver Fire Shop employee seeking $2.5 million from the city for discrimination is now in its sixth year and will continue into a seventh, a city attorney said Friday.

Rolando Hernandez first filed his lawsuit with the District Court in Tacoma in 2004, alleging race and national origin discrimination based on disparate treatment, retaliation and a hostile work environment.

Since then, the legal tussle has appeared twice before the Ninth Circuit Court of Appeals and is now set for a jury trial in fall 2011, Assistant City Attorney Dan Lloyd said.

Hernandez worked for the city’s Operations Center as a mechanic from 1995 to 1999, when he was promoted to work in the Fire Shop as an Emergency Equipment Mechanic — an 18 percent raise — according to court documents.

The suit alleges that upon his arrival, he received the “cold shoulder” from other employees, was given more menial tasks than his peers and had his tools and at least one vehicle he worked on sabotaged.

The suit also says that Hernandez’s supervisor, Mark Tanninen, who is also named in the suit, and the city conspired to cover up the discrimination.

“There is ample evidence of discrimination in this case,” said Sidney Tribe, an associate with Talmadge/Fitzpatrick in Tukwila, who represented Hernandez in both appeal cases. “I have seen more direct evidence of discrimination in this case than in many (other cases) I have seen go to trial and win.”

Tribe described one piece of evidence in the case: A year before Hernandez filed his discrimination suit, a white employee left the Fire Shop, and said in his exit interview that the reason he was leaving was that he couldn’t handle the discrimination there toward Hernandez.

“(Hernandez) thought he just didn’t fit in,” at the time, Tribe said. “The bottom line is, the evidence is there, and we believe we’re going to prevail.”

But Lloyd said Hernandez’s claims of discrimination are untrue, and rather a product of his own poor performance. The suit echoes other tort claims and lawsuits filed in by several current and former members of the police department that also allege discrimination and retaliation.

“It’s unfortunate when you have an employee who is not happy with his or her situation, that it has become common to raise a flag of discrimination even though it’s not true,” he said.

In 2002, Hernandez was called into city Human Resources and given a document outlining four serious errors he made, and for which he apologized, a District Court document said. In November 2004, he was suspended for a day and received written discipline for two more errors, the document said.

In December 2004, Hernandez was placed on leave after an altercation with an employee in a parking lot, and following administrative leave, was demoted back to the Operations Department. He left the city in 2007 to take a job in California, Lloyd said.

The length of the case — six years — is “very, very long,” Lloyd said. But the sides cannot reach an agreement about a settlement, and Lloyd noted that “we do have to take a stand and defend the principle of the matter: We don’t believe there was any discrimination or retaliation in this case.”

The reason is that because the case was filed in the more backlogged federal court system, in which an appeal to the Ninth Circuit Court can take 1½ to 2 years to get a ruling, he said. The case has gone to that higher court twice.

The city hired outside counsel, the Christie Law Group in Seattle, to aid in the case, Lloyd said. But he added that though the case has been going on for years, the time spent between appeals requires “little to no” active work from the city or its outside counsel.

The District Court originally threw the case out in 2006. Following an appeal, Ninth Circuit reversed that decision in May 2008 and called for a jury trial.

Hernandez’s case also alleges that Tanninen at first corroborated Hernandez’s story to Vancouver lawyer Greg Ferguson, Hernandez’s original counsel.

“After Tanninen spoke with Deputy Fire Chief Steve Streissguth, however, he indicated that he had known Streissguth for a long time, that he “could not do that to [Streissguth],” a court document states.

Ferguson recused himself as Hernandez’s lawyer at that point, realizing he had become a witness in the case. The city then asked the Circuit Court that all of his files be turned over to city attorneys as evidence. The court agreed.

However, an appeal ruling in May reversed most of the lower court’s decision, and granted the city only partial access to Ferguson’s files.

In all of the hearings, no decisions have been made on the validity of Hernandez’s allegations.

The case will go before a jury on Oct. 11, 2011, Lloyd said.

“We’re looking forward to finally getting resolution in this case,” he said.

Andrea Damewood: 360-735-4542 or andrea.damewood@columbian.com.