Modesto to pay $370,000 over discrimination lawsuit

Modesto has agreed to pay $370,000 to settle a lawsuit filed by a former police sergeant who claims he faced discrimination and harassment, such as being subjected to racial slurs, because he is Mexican American.

The lawsuit will cost Modesto about $750,000 when the roughly $380,000 the city is paying for outside attorneys and associated costs is included. City Attorney Adam Lindgren said the settlement and legal costs are being paid by the city and not by insurance.

The lawsuit was filed March 2013 in Stanislaus Superior Court by Carlos Castro. He is represented by David Rancaño of the Modesto law firm of Rancaño & Rancaño.

Castro, who served in the Police Department from 1991 to 2012 and says he was one of the department’s few Latino supervisors or managers, said the mistreatment occurred under the watches of former Police Chiefs Roy Wasden and Mike Harden. Wasden was chief from 2000 to 2009; Harden until August 2012.

“I want to be abundantly clear,” Castro said in a statement to The Modesto Bee, “this was not about the rank and file of the Modesto Police Department. The vast majority of the people there are good, hardworking civil servants for the citizens of Modesto. This was about an administration that did not hold itself accountable (and) failed in leading by example.”

Castro also expressed his hope for the department after a recent change in leadership. Galen Carroll, a former Long Beach police commander, became Modesto’s chief in January 2013. Castro and Carroll have gone to lunch twice, and Castro is impressed with the new chief.

“The issue has been settled and hopefully the department can continue to keep moving forward in a positive direction under the solid leadership of Chief Galen Carroll,” Castro said in his statement. … He’s a very astute and knowledgeable guy who is not afraid to change things up from the old ways of doing things.”

The allegations in the case are ugly and include:

▪ Castro claims he was called “beaner” and “wetback” and other slurs. Retired Lts. Dave Sundy and Mike Perine stated in depositions that they witnessed Castro being subjected to racial slurs and other mistreatment. A deposition is the sworn testimony of a witness.

▪ Harden and Capt. Joel Broumas are accused of calling Castro a “token” and similar names because Wasden showed off Castro at community events attended by minorities. Harden and Broumas also are accused of calling Castro a Mexican general or wannabe Mexican general because of how he looked in his uniform with his service ribbons. Broumas denied those claims in his deposition. Harden did as well in an interview: “That is absolutely false, plain and simple. I would never have said that. … I would have relished the opportunity to be deposed and go to trial.”

▪ Perine and Sundy claim in their depositions that Broumas also used slurs against Castro. Both said they thought Broumas was trying to be humorous but did not find his comments funny. Broumas denies the allegations in his deposition and says it was Castro who used slurs as a joke.

▪ When Castro was a member of the Special Weapons and Tactics team, he was assigned to the gardening tools for several years during the team’s annual weeklong training at Ford Ord. The rakes, shovels and other implements were used to clean up after training. Sundy said in his deposition that team members made racial comments about Castro’s assignment, such as that he had been given the tools of his people.

▪ Sgt. Derrick Tyler, one of two black officers in a department of about 200 officers, said in his deposition that he has faced a double standard because of his race. He also recounted that when then-Chief Paul Jefferson hired him in 1997, Jefferson, who also is black, told him there was a good-old-boy network in place and advised him to watch his back.

▪ Jefferson also explained to Tyler the meaning of “NNOB.” The chief said that it meant “n----- north of Briggsmore (Avenue)” and that some officers, whom he derisively called “cowboys,” used it as a reason to stop black motorists. Carroll and Harden said they have not heard of the term NNOB. Tyler also testified that the department has improved since Carroll arrived.

▪ Castro says that in 2012, he was serving in a desk job as the department’s administrative sergeant and wanted to serve two more years before retiring. But he says the department eliminated his job to force him to retire and then reinstated and filled the position after he was gone.

Retired Capt. Gene Balentine – who briefly was interim chief after Harden’s retirement and before Carroll’s arrival – said Castro had been classified as “permanent and stationary,” which meant he no longer could fulfill all of the duties of an officer. Castro had undergone neck surgery.

Balentine said it was not unusual to assign an officer to light duty on a temporary basis while he or she recovered from an injury. But he said he was reluctant to set a precedent and keep Castro in the position. He said the department was undergoing budget and staffing cuts and he needed flexibility in how officers were assigned. He said he cannot recall whether the administrative sergeant position was eliminated.

‘Best decision’ for city

City officials stressed that these allegations involve incidents that occurred many years ago and many of the officers are no longer with the department. They also said they believe Modesto would have prevailed had the lawsuit gone to trial.

But they said there always is uncertainty when bringing a case before a jury, and a legal defeat would have cost the city $1.5 million to $2 million. That’s based on what Modesto would have owed Castro and for legal fees and other costs.

“We think, overall, settling at this number is the best decision for the city and the council and the residents,” said Lindgren, the city attorney. “We do think the kind of language and interactions they (Castro and his attorney) are talking about are significant, and we want to look forward, we want to move forward with the department.

“We think the chief and our current efforts have focused on an environment that will be completely intolerant to the kinds of interactions that the plaintiffs would have alleged had occurred” if the case had gone to trial.

The lawsuit named Harden, Broumas and Balentine as defendants, as well as retired Sgt. Craig Plante, who did not return a phone call seeking comment. It did not name Wasden, who is now Turlock’s city manager.

Wasden said he was proud of how he ran the Police Department and would not tolerate profanity among his officers, let alone the use of racial slurs and other derogatory language.

Modesto officials believe the city would have won at trial because they claim Castro engaged in the very bantering that he eventually complained about. They added that he never complained until after he was demoted from lieutenant to sergeant.

Demoted over affair

Castro was promoted to lieutenant in 2006 and demoted less than a year later to sergeant, the rank he held until his retirement in 2012. The demotion came after officials learned he had transferred a civilian employee he was having an affair with to his supervision. An internal affairs investigation said Castro had violated department policy and had made a poor decision.

Castro said he was estranged from his wife, who also was a civilian police employee, when he was seeing the other woman. He and the woman married after Castro and his wife divorced.

The demotion also provides a twist in the case. Broumas and Balentine testified in their depositions that they tried to help Castro.

Broumas testified that when he and other top managers were discussing whether Castro should be demoted, Broumas stated he supported keeping Castro as a lieutenant. Balentine testified that he considered himself a big fan and mentor of Castro.

Another twist: Perine testified that he met Hardin in the fourth grade and the two became very good friends. Perine said the friendship ended when the two parted ways over the direction the department was heading.

‘Blackball’

Castro and his attorney, Rancaño, question the city’s version that the bantering was mutual and Castro complained only because he had been demoted.

The depositions of Tyler, Sundy and Perine don’t support the claim Castro engaged in what the city calls bantering. For instance, Sundy testified that Castro liked to joke but did not cross the line into inappropriate humor and comments.

Castro did not complain until several years after he had been demoted. Castro said he had always been a loyal employee but added that after he tried and failed to be promoted to lieutenant three times, he realized he was never going to get out of the doghouse and still was being punished for the affair. He said other officers had gone through similar relationship issues and had not faced the same consequences.

Sundy and Perine testified that Castro had performed well as a lieutenant. They also testified there was a strong reason why officers did not like to come forward with complaints.

“Blackball,” Sundy said in his deposition. He was with the department from 1988 to 2010. “Get behind the eight ball. You have a lot of time to work there. It is an unspoken thing. You just don’t complain. You just kind of go with it. OK. You just take the stuff.”

Before filing his lawsuit, Castro filed a complaint with the city in 2011, accusing Harden, Broumas and Balentine of violating the city’s policy against harassment and discrimination. The investigation cleared Harden and Balentine but sustained the complaint against Broumas. He was found to have allowed inappropriate bantering to take place among SWAT team members when he was a SWAT lieutenant in the early 2000s.

Rancaño said the city’s investigation was flawed and designed to reach a preordained conclusion. Lindgren, the city attorney, disputes that, saying it is his understanding the city did its standard inquiry.

Castro said he provided the city with a list of about a dozen names of current and retired officers who would confirm his claims. He said the city interviewed none of them.

“How do you not interview witnesses who are provided for you, that could provide some facts?” asked Perine in his deposition. He was one of the officers on Castro’s list. “I don’t understand. Especially when you have an employee who is reaching out for help.”

City officials said one of their reasons for settling is the impact a long trial would have had on the Police Department. They said as many as two dozen officers could have been involved, with some testifying and others assisting in other ways. Officials also were concerned how a trial would affect department morale.

This story was originally published November 15, 2014 at 8:43 PM with the headline "Modesto to pay $370,000 over discrimination lawsuit."