In a decision handed down today, the California Court of Appeals affirmed a jury verdict awarding over $4.1 million in damages to former West Covina Fire Chief Larry Whithorn, who was terminated following a prolonged medical leave. The jury found in favor of Whithorn on claims of disability discrimination, retaliation, failure to prevent discrimination and retaliation, whistleblower retaliation, and intentional infliction of emotional distress.
Chief Whithorn had served in the West Covina Fire Department for 28 years, rising through the ranks to become fire chief in 2014. He consistently received top performance evaluations and had no history of discipline. In 2017, he took a seven-month medical leave during which he underwent four surgeries.
According to the evidence presented at trial, Councilmember Tony Wu pressured former city manager Christopher Freeland, to remove Chief Whithorn during his leave, referring to him as an “absentee chief” and later telling the chief, “You need to take orders from me… change is coming.” Freeland refused to fire Chief Whithorn, citing his outstanding job performance.
Chief Whithorn had filed a grievance shortly before his termination, citing harassment by the union president and a city planning commissioner. The city council refused to authorize an investigation into the grievance.
In 2019, the city council threatened Freeland with termination if he did not resign. He resigned and was replaced with David Carmany. Seventeen days after taking office—and after spending less than an hour with Chief Whithorn—Carmany terminated him without prior warning or performance discipline.
At trial, Carmany claimed the decision was based on personal observation, but that contradicted his earlier discovery responses indicating he had relied on Whithorn’s personnel file. The jury found Chief Whithorn’s grievance to be protected activity and concluded that retaliation was a substantial motivating factor in his termination.
Quoting from the decision:
- Councilmember Wu expressly stated a desire to terminate Whithorn due to Whithorn’s medical leave.
- In 2018, Wu told Whithorn that he needed to take orders from Wu, that change was coming.
- On one occasion Wu pointed to Castellanos and Lopez, said they were going to be the new city council members and change was coming.
- After the two were elected, Councilmember Castellanos tried to get the municipal code changed so that council members could fire department heads.
- When City Manager Freeland resisted, Councilmembers Wu, Castellanos and Lopez forced Freeland to resign.
- Wu encouraged Carmany to apply for city manager, and Carmany was hired after agreeing that he would be willing to fire a popular department head.
- Seventeen days later, Carmany fired Whithorn.
- Carmany falsely claimed he fired Whithorn based on a review of his personnel file, which, ” ‘tend[s] to suggest that the employer seeks to conceal the real reason for its actions, and this in turn may support an inference that the real reason was unlawful.’ “
- Further, although Carmany had observed Whithorn for less than an hour total, he claimed the termination was based on personal observation of Whithorn. This is more than enough evidence to support an inference that Wu maintained his discriminatory animus against Whithorn for years and caused Carmany to terminate Whithorn’s employment.
- City again contends there is no evidence to support that Councilmember Wu held retaliatory animus toward Whithorn, or that Wu influenced City Manager Carmany’s decision to terminate Whithorn based on the grievance.
- As set forth in more detail above, Councilmember Wu was very clearly angry at Whithorn when Whithorn’s grievance was presented to the city council.
- Wu described the grievance as “bullshit” and claimed he was being “bullied” by staff members.
- Wu, along with other city council members, did not want to pay for an investigation.
- When Human Resources Director Pinon pressed for an investigation and provided contact information for an investigator, his contract was terminated four and one-half months early, supposedly for financial reasons, but he was given a three months’ severance.
- City Manager Carmany told Assistant City Manager Bresciani that the city council wanted Pinon gone.
- Five days later, Carmany terminated Whithorn.
- This is more than sufficient evidence to support an inference that Wu influenced Carmany’s decision based on the grievance.
- Even without the above evidence, the proximity of the termination to the grievance, particularly given Whithorn’s lengthy employment by City, is strong circumstantial evidence of a causal link.
The appellate court also affirmed the trial court’s decision to award full attorney’s fees under FEHA, rejecting the city’s claim that the award should have been apportioned due to Whithorn’s loss on some claims. The court noted that the prevailing claims were closely intertwined with the dismissed ones and centered on a common set of facts.
Here is a copy of the decision.
Here is a link to earlier coverage of the lawsuit, including a copy of the complaint.
Here is earlier coverage of the jury verdict.
