$1.5m sexual harassment verdict vacated to city

VISTA — Superior Court Judge Jacqueline Stern ruled that the city of Oceanside could set aside paying $1.5 million in damages granted to sexual harassment victim Kimberli Hirst and granted the city a new trial to determine damages and liability. 

The judge called the settlement amount of $1.5 million reached on April 17, “exorbitant” and not supported by the evidence.

“In a nutshell there was no evidence to support this number,” City Attorney John Mullen said.

The judge granted the city’s request for a new trial on Aug. 6, due to the facts that the law does not allow the recovery of litigation distress, the plaintiff’s counsel made impermissible arguments, and Hirst staged some of her testimony.

Hirst’s trial lawyer Dwight Ritter disagrees with the judge’s findings.

“The court inserted its opinion in place of 11 jurors,” Ritter said. “We’re shocked and astounded.”

Both sides acknowledge that Hirst was sexually harassed by former Oceanside police officer Gilbert Garcia.

Mullen said the city has zero tolerance for sexual harassment and took the appropriate actions.

“We’re as reactive as we can be,” Mullen said.

“When the city found out about it the plaintiff downplayed the incident. The officer said it was mutual banter, but to the city that didn’t matter, it was inappropriate. That’s one reason the city fired the officer.”

The city initiated a detailed investigation and ordered Garcia to have no contact with Hirst after a Rancho Santa Fe Security guard, who was working as a transport officer, reported to the city that he overheard a phone conversation between Hirst and her supervisor Tim Johnson that indicated that Garcia had made an inappropriate comment to Hirst.

Neither Hirst not her supervisor reported the officer’s comments to the city or the company where she worked.

The city’s investigation found Garcia at fault for making propositioning comments to Hirst between October 2008 and December 2009. Garcia was fired.

After Garcia was found guilty Hirst sued the city and Garcia for emotional distress. Within two days of the trial Garcia was dismissed from the case and the city was responsible for all damages.

Mullen said the jury’s $1.5 million verdict against the city is unwarranted because the city of Oceanside was not Hirst’s employer, therefore Hirst cannot sue the city under the Fair Employment and Housing Act.

Her employer, American Forensic Nurses, is a private company that was contracted through the county of San Diego to provide blood-drawing services to the Oceanside Police Department.

“She doesn’t have a standing under the law used to sue us,” Mullen said. “The evidence did not support the verdict granted.”

Mullen said Hirst’s stress came about when she testified at the arbitration hearing against Garcia and during the trial in which she sued Garcia and the city a year and a half after the incident occurred. Mullen labeled it “litigation distress.”

Mullen said during the settlement trial parts of Hurst’s testimony seemed staged because she was not emotional when she was initially interviewed, but “faked tears” during the settlement trial.

Hirst herself testified at the settlement trial that she did not cry when she discussed the sexual harassment four years ago.

Ritter has a different opinion of what transpired.

He said the city is responsible for damages because it employed Garcia, who had a pattern of sexual harassment conduct.

The city said Garcia had no former charges of sexual harassment.

Ritter added that the judge negated the jury’s ruling and determined that Hirst would receive nothing.

“The evidence is overwhelming he harassed this woman,” Ritter said. “They’re unwilling to provide her any compensation for what she had to go through.”

“They fired the individual and acted like nothing happened.”

Ritter said Hirst is a very credible witness. The city called on her to testify at the arbitration hearing.

“She participated in the investigation and was fully cooperative,” Ritter said.

Ritter added that no part of her testimony was staged and there is no question the officer’s comments caused her emotional distress.

“It disrupted her life, she had difficulty sleeping, she was scared to work with the police officer,” Ritter said. “She moved out of her house to live with her mother.”

“Her children were aware she suffered this distress. They said she was angry sometimes and inconsolable other times.”

Ritter said the impact of the sexual harassment should not be discounted because Hirst suffered additional distress during the hearing and trial.

“In every case the initial incident causes a cascade of events that are traumatic and distressful.”

Ritter said the fact that Hirst did not report the harassment was due to her concern about keeping her job.

“She only had the job a month or two and needed it too badly,” Ritter said. “Reporting harassing conduct was something she wasn’t looking forward to doing. She was concerned about any retaliation.”

Ritter said he is not certain whether or not Hirst will go forward with an appeal to the judge’s decision.

“We’re considering our options at this stage and have not reached a conclusion yet.”



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