Day Eleven: Jury Decides for City in Michelle Rex Termination Lawsuit

An L.A. County Superior Court jury decided today that the City of West Hollywood had a legitimate reason to eliminate its 30-year-old council deputy system and that its decision to do so in June 2015 was not an act of retaliation against former deputy Michelle Rex.

The decision, rendered in an ten-to-two vote, brings to a close a two-week trial during which witnesses, letters, emails and videos resurrected the often-contentious relationship of some City Council deputies with one another, with their bosses, with other city workers and with West Hollywood residents. It also again cast a spotlight on Councilmember John Duran’s early sexual relationship with his deputy, Ian Owens, and Duran’s sexual braggadocio in front of city employees.

Mayor John Heilman responded to the jury verdict in favor of the city by remarking that “We could not be more pleased with the outcome of this case. The jury fulfilled its responsibility to closely scrutinize the facts and determined that plaintiff failed to prove her case. The verdict affirmed that the City Council’s decision to terminate the council deputy program was motivated by a desire to improve and reduce the cost of the city’s delivery of services to the community, and not to retaliate.

“The evidence put forward during the trial demonstrated to the jury that West Hollywood is an extremely well-run city with highly competent workplace management that takes seriously properly documented, legitimate claims of workplace misconduct.”

In her lawsuit, Rex claimed that losing her job as deputy to Councilmember John D’Amico caused her not only financial losses but physical and emotional damage. Reports were that she was hoping to win an award of $3 million.

The council’s decision to end the deputy system came many months after revelations that Owens had been monitoring the conversations of fellow deputy Fran Solomon. In an email sent out under a fake name, Owens alleged that Solomon was using the phone in her office during work hours to solicit participants in a photo shoot to promote the re-election of her boss, Mayor John Heilman. Solomon was reprimanded and docked two days pay after admitting that she violated City Hall rules.

The revelation that Owens had been monitoring Solomon’s telephone calls led to her filing a complaint against him for spying on her. Owens was put on paid leave while a private investigator looked into the matter. Owens then filed a lawsuit arguing that the city was retaliating against him for calling out Solomon’s electioneering and that he had been sexually harassed by Duran. The city and Duran settled that lawsuit for $500,000 with both denying Owens’ claims.

Faced with outcries from the public and negative press coverage over what came to be called “Deputygate,” the City Council ended the deputy system in June 2015 in a four-to-one vote, with only Councilmember Lauren Meister opposing the decision. But the city had to keep the deputies on paid administrative leave until the end of that year while it negotiated their departure with their five-member union.

The jury agreed in a 11 to one vote that Rex’s disclosure to the private investigator of alleging campaigning from City Hall by Fran Solomon and of improper sexual conversations by John Duran was a contributing factor in the city’s decision to terminate Rex’s employment. While Rex’s lawyers had stressed the electioneering and sexual harassment allegations, the city’s lawyers, Steve Rothans  and Jill Williams, noted that Rex had not reported them to any city official or its outside ombudsman. The jury also agreed unanimously that the city’s conduct was “a substantial motivating factor in causing harm” to Rex. A consultant engaged by her lawyer calculated that it would take her many years to get back to her city pay level of $105,000 a year. In some years, with benefits and bonuses added, Rex’s compensation was as much as $190,000.

But those conclusions were outweighed by the jury’s decision that the city had every right to have eliminated the deputy system “for legitimate, independent, non-retaliatory business reasons.”

That decision likely was supported by testimony during the trial from each of the City Council members that there were problems with the system. Even John D’Amico, who described Rex as an exemplary employee and said he had expected she would land another job at City Hall, had testified that there were problems with the deputy system.

Jana Moser and Mark Quigley, who represented Rex, said the city’s win was a result of Harris vs. Santa Monica, a 2013 decision by the California Supreme Court.

“When a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time,” the court ruled. “If the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, back pay, or an order of reinstatement.”

Rex declined to discuss the decision with WEHOville.