Calif. firefighter sues department for retaliation, harassment

David Phillips-Kerley said he was punished for filing a hostile work environment complaint and was shown a "training" video depicting a whistleblower's murder


By Brianna Calix
The Fresno Bee 

FRESNO, Calif. — An African American firefighter is suing Fresno Fire Department and several top fire officials on claims of discrimination, retaliation and harassment.

David Phillips-Kerley, who has worked for the department since 2004, says in the 45-page lawsuit that he was disciplined for filing a hostile work environment complaint, according to the suit filed last week in U.S. District Court.

He also claims a fire captain showed him a "training" video depicting a whistleblower's murder. Plus, Phillips-Kerley accuses Fire Chief Kerri Donis of conspiring with her sister to fire Phillips-Kerley's wife from her job at Valley Children's Hospital as retaliation.

The Bee reached out to city officials for comment but they declined, citing the pending litigation.

Phillips-Kerley rose through the ranks to an "engineer specialist" position, and in 2017 he was recognized for using CPR to save a child's life during a fire rescue, the lawsuit says.

The defendants in the case include the fire department and 24 individuals. Seven of the defendants have since retired from the fire department, and Phillips-Kerley remains employed, city officials confirmed.

The lawsuit recounts events between August 2010 and Feb. 28, 2018, including several disciplinary actions where Phillips-Kerley was denied union representation. He also claims he transferred three times to different stations because of the alleged harassment, and he described numerous interactions with supervisors that involved threats, retaliation and discrimination.

Phillips-Kerley seeks general, special and punitive damages, attorney's fees and injunctive relief.

By January 2011, Phillips-Kerley "began to understand that he was the victim of a systematic, organized discrimination by the Fresno City Fire Department against African-Americans and against anyone who would blow the whistle on the discriminatory agenda of the Fresno City Fire Department, and that this discrimination and retaliation could cost him not only his job, but also his life," according to the suit.

When Phillips-Kerley transferred to another fire station the first time to "escape harassment," Capt. Mark Harvey warned Phillips-Kerley that his actions would be documented and asked him to sign a personal behavior contract. During training, Harvey told Phillips-Kerley a story about a firefighter who was pushed into a fire and killed by his own crew. Harvey then instructed him to sit down and watch a clip from the 2010 movie "Edge of Darkness" where Bojana Novakovic's character, Emily, is murdered, "military code red" style, the lawsuit says.

The lawsuit also says on the Fourth of July in 2014 Phillips-Kerley was instructed to attend a block party on Fire Engine 20. While parking the engine, he was offered beer and "propositioned sexually" by an unidentified person and then offered $100 for his "service."

In February 2016, Phillips-Kerley applied for jobs with numerous fire departments and ranked high in the applicant pool. But one department passed him over without explanation, leading him to believe a Fresno Fire Department staffer defamed him.

Donald MacAlpine, the Fire Marshal investigations supervisor, allegedly showed up at Phillips-Kerley's home in June 2016 while he was not there. MacAlpine didn't identify himself or the purpose of his visit to Phillips-Kerley's wife, who offered to contact her husband. His family "was left utterly terrified for their safety," the lawsuit says.

In June 2017, Phillips-Kerley reported finding spit in juice he stored in a station refrigerator. Donis responded immediately saying it would be investigated, but no findings or action was taken as a result of the investigation.

In January of this year, Phillips-Kerley's wife was fired from her job in the pediatric intensive care unit at Valley Children's Hospital, "despite exemplary performance," the lawsuit says. Fire Chief Donis' sister, Kelly Mason worked in the same unit of the hospital. The lawsuit alleges that "Donis and Mason conspired and took action to have plaintiff's wife fired as retaliation for plaintiff's reporting of a hostile work environment."

When Phillips-Kerley sought union help, he received mixed responses.

Phillips-Kerley reached out to Jerry Smith in December 2010, who at the time was the president for the local union. The two met at a coffee shop, and when Phillips-Kerley finished explaining the details of his concerns, Smith "as if on cue" said goodbye to two people sitting nearby, within earshot.

One of them was a woman who recently retired from the District Attorney's Office and attended the union's Christmas party, Smith said. "But she probably wouldn't say anything," if she overheard their conversation, he said, according to the lawsuit.

That made it clear to Phillips-Kerley that he could not assume confidentiality, the suit states.

After meeting in July 2017 with a new union president, Carlton Jones, the union denied Phillips-Kerley financial or legal assistance for grievances he filed. Two months later, the union agreed to represent him after he was issued another suspension.

In September 2016, Phillips-Kerley filed the first of many hostile work environment complaints, but no remedy ever was reached, he said in the lawsuit. He filed in October additional grievances with the city alleging the fire department violating the Firefighters Bill of Rights and city policies.

He also filed multiple complaints with the Equal Employment Opportunity Commission.

Over the course of several years, Phillips-Kerley was issued several shift suspensions, which he appealed. In the lawsuit, he alleges the suspensions were retaliation or thorough investigations of his supposed offenses were not conducted.

Phillips-Kerley's lawsuit against the fire department is not the first of its kind.

A U.S. District judge affirmed in 2010 a verdict against the fire department and in favor of Michelle Maher, a single mother who sued the department for gender discrimination. A jury awarded nearly $2.5 million to Maher, who was forced out of the department's training academy in 2005.

Maher's lawyer, Oakland-based Dan Siegel, blamed then Fire Chief Bruegman, who he said talked about gender equity but didn't put it into practice.

Carlton Jones, the union president, also sued the fire department in federal court for discrimination.

Jones was hired in 2002 and rose through the ranks to the position of engineer. But while he was going through a divorce, he was arrested on felony assault and later acquitted. The arrest sparked problems for him in the fire department, and Mac Alpine and Bruegman tried to force him out, he alleged.

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