Monday, March 13, 2017

Ummm...I'm sure it will be denied!

The PNJ reported that the attorneys for the City filed for the Fire Chief lawsuit to be dismissed as frivolous.

http://www.pnj.com/story/news/2017/03/10/pensacola-fire-chief-lawsuit-called-frivolous/99005406/

"Attorneys representing the city asserted, among other things, that Schmitt failed to exhaust his administrative remedies before filing the suit; that he "unreasonably" failed to take advantage of available preventative or corrective opportunities provided by the city; that he cannot establish the reasons for his discipline were a pretext; and he cannot provide an example of an individual who had engaged in conduct comparable to his but was treated more favorably by the city."

Umm...is someone not paying attention?

Attorneys representing the city asserted, among other things, that Schmitt failed to exhaust his administrative remedies before filing the suit

Response:  Schmitt was deprived of his administrative remedies when he asked when suspended for an employee appeal panel.  The City changed the policy to eliminate that after he asked,

That issue needs a jury to decide.

Attorneys representing the city asserted that he "unreasonably" failed to take advantage of available preventative or corrective opportunities provided by the city.

Response:  What corrective opportunities was he offered?  He was put on leave (for longer than the 10 days in the manual), investigated by the "independent" attorney for the City that is the Mayors personal criminal defense firm, and fired for a "loss of confidence"

That issue needs a jury to decide.

Attorneys representing the city asserted that he cannot establish the reasons for his discipline were a pretext

Response:  Olson did that in the AM 1620 interview that stated they were suspended for the EEOC complaints NOT disciplinary issues.  And as was admitted in the Motion,"Olson's statement speaks for itself"

Hey Larkin, it also was in the PNJ that "Eric Olson confirmed Tuesday that Chief Matt Schmitt and Deputy Chief Joseph Glover were put on leave in connection with Equal Employment Opportunity Commission complaints the men filed against Olson and the city's human resources director, Ed Sisson.

Olson also said it was a coincidence that changes were made to the city's human resources manual regarding its administrative appeal process on the same day the firefighters were placed on leave, hours after Schmitt requested an administrative appeal."

http://www.pnj.com/story/news/local/pensacola/2016/02/09/fire-chiefs-leave-related-federal-complaint/80052434/

R E T A L I A T I O N

That issue needs a jury to decide.

Attorneys representing the city asserted he cannot provide an example of an individual who had engaged in conduct comparable to his but was treated more favorably by the city.

Response:  Here is some conduct directly comparable.  While under the leadership of the Chief and Assistant Chief of the Pensacola Police Department due to the actions of individuals under their direct control THE DEPARTMENT LOST ITS FLORIDA CERTIFICATION without any consequence, administrative leave, investigation or loss of confidence by the Mayor.

Finally, the response claims "Defendant Hayward is entitled to qualified immunity on all of Plaintiff's individual capacity claims"

Hasn't the Judge already ruled on that?

By the way, submitted by Rob Larkin.


14 comments:

Anonymous said...

"Attorneys representing the city asserted he cannot provide an example of an individual who had engaged in conduct comparable to his but was treated more favorably by the city."

No, there is not an example, there are many.
Maybe they've forgotten about Bill Reynolds in the "Asmar Files" and you as a star witness (Oops!), or how about Derek Cosson in the "Logo Scandal" and "Dick's Blog", and let's not forget about Tamara Fountain and "Resume Gate" or Chief Turn N. Run in the "Return of the Confederate Flag". The list goes on but why bother?

Apparently the clowns downtown have hired lawyer clowns to join the circus!

Anonymous said...

Yeah, like I'm sure the judge will just take their word for it that they did everything by the book. After all Hayweird has a well documented history of treating employees with dignity and respect. NOT! No...I want the mayor to be exonerated of all wrongdoing in court. Lol

Anonymous said...

I agree with Anonymous at 5:47 PM especially after all of the allegations against Schmitt. Let's see how much of it was warranted in court. Since city administration has argued that they've done everything above board, it should be very easy to prove that to a jury and they should not be willing to settle. As a taxpayer, I certainly do not want the city to settle if the administration has acted in "good faith" and the former employee acted in "bad faith". Bottom line is this needs to go to court.

Anonymous said...

Wait a minute - Are the attorneys working/speaking on behalf of the city or the mayor? Are the attorneys working/speaking on behalf of the city and the mayor? If so, has the mayor been given the okay by city council to be represented by attorneys retained by the city? If so, are they not guilty of an ethics violation due to the conflict of interest? Is Hayward using the city's attorneys for his defense without expressed written consent? What the heck is going on?

George Hawthorne said...

I hate to say "I told you so" - the glaring and blatant conflict of interest is probably no more telling than this motion.

Let's Unpack this: The recently City of Pensacola "court pleading" - filed by the "City's Attorney" - asked the Court to provide "immunity" for a "co-defendant" and absolve that "co-defendant" of any liability for "HIS direct behavior and actions" that are the basis for the "claims" against "HIS Client." This attorney - representing "the City"-just asked the court to leave "the City" as the "sole Defendant" in a "bad case" where the "Co-defendant" solely caused such claims.

No "Conflict"? Right!!

dahlingECG said...

The City can only afford so many investigations and inquiries regarding what we may or may not individually agree with as citizens. That is a fact of life. I'd never assume that any of your outrage over the NUMEROUS issues that come to Pensacolians' attention aren't valid or "important to the cause", but what one issue is more important than the other? If we have to pick and choose where to best use our legal resources "frivolous" issues are here to stay.

Anonymous said...

dahlingECG, you make some very valid points. However, the obvious resolution to this conundrum would be to minimize the potential for issues to arise in the first place. That would mean eliminating the common denominator. If you know anything about the goings on at City Hall, you'd know that Ashton Hayward is the biggest liability the city has by a wide margin. The answer is not to prioritize self-induced dilemma. The answer is to get rid of the root cause of them.

Anonymous said...

If laws, rules, and ordnances were followed instead of being ignored, our resources would be plentiful. But when you have corrupt leadership from the top and incompetence at lower levels there will always be lawsuits. Hence, the extraordinary amount of the budget that goes towards legal fees. Of course there will always be "frivolous" claims, but good governance and competence will eliminate those claims to a great extent. It's difficult to simply pick and choose which issues to investigate when there are so many and they occur with such frequency. Maybe the better question to ask is why there are so many issues with our local government that eventually result in the need for legal defense? Is it possible that attorneys are giving bad legal advice? It certainly appears that way.

Anonymous said...

"The chickens are coming home to roost" and "the fat lady is about to sing".

Anonymous said...

The Motion for Summary Judgment is clearly a desperation move by counsel. Once the judge emphatically rejects this motion, let's see if the City stands by their claim that they acted in "good faith" and did not violate any of the plaintiff's rights. They can only prove their innocence in front of a jury. As one poster pointed out, there should be no reason to push for a settlement by the City when the plaintiff has acted in "bad faith" as they have asserted. Unfortunately, only way to stop "frivolous" lawsuits is to fight them.

Anonymous said...

Ummm.....Maren, I believe you are correct. It should only take the judge about 10 seconds to deny their motion. A jury needs to determine whether the chief's claims have merit. I am a retired EEO specialist who worked in the field many years and it's funny how the defense mentions the dismissal of the EEO complaint and that "they found no wrongdoing" by the City. What they tell the press is how common that occurs and has no bearing on whether a claim has merit. What they also fail to mention is the fact that EEOC dismisses complaints when they can not make a determination of wrongdoing or right doing. Apparently, Schmitt was issued a "right-to-sue" notification from the EEOC at some point during this process which is also something the defense neglected to mention. Not sure how the defense is asserting that Schmitt did not exhaust his administrative rights especially if they truly changed the appeal process after the fact. This will be interesting to say the least.

Anonymous said...

Dear Rob Larkin, Is this another "slam dunk"? I remember that last one and it wasn't pretty. Reynolds took you to the hoop. By the way, I don't believe in your wildest dreams could dunk. Mascot yes, hoopster...definitely not. Good luck with this one "little buddy". Lol

Anonymous said...

Great job Maren! Please continue to keep us informed. I may not comment often but I check your blog regularly because I know you will write what the PNJ won't.

Anonymous said...

Just in case the defense forgot:
http://www.pnj.com/story/news/2016/09/13/settlement-kept-hayward-deposition/90305962/

I'm guessing Schmidt's lawsuit won't get settled outside of the sunshine like this one and I seriously doubt that $95K is going to get the job done.