Both sides rest cases in SFFD civil trial

  • by John Ferrannini, Assistant Editor
  • Wednesday September 27, 2023
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Both sides have rested their cases in a lawsuit against the San Francisco Fire Department alleging discrimination and retaliation. Photo: John Ferrannini<br><br>
Both sides have rested their cases in a lawsuit against the San Francisco Fire Department alleging discrimination and retaliation. Photo: John Ferrannini

[Editor's note: This article is a summary of the previously published articles online and appeared in the print edition.]

The lesbian assistant fire chief suing the city for discrimination and retaliation testified one last time before both San Francisco's and her lawyer's rested their cases September 26, setting the stage for closing arguments and jury deliberations.

That testimony came on the 11th day of the civil jury trial in San Francisco Superior Court, before Judge Suzanne Ramos Bolanos.

Nicol Juratovac's attorney, Therese Y. Cannata, of Cannata O'Toole and Olson, asked why she'd wanted to be an assistant deputy chief — a promotion denied her due to the department's discriminatory actions, she claims.

"The opportunity is the type of opportunity I'd been pursuing for my entire career — to apply my knowledge, skills, and experience," she said.

Juratovac also said it would've given her a more stable work-home balance as she and her wife were hoping to start a family. The position would have been 40 hours per week, Monday through Friday, instead of the normal 24-hour shifts firefighters often work.

"I would love to start a family and the 40-hour-a-week schedule would be so much more friendly and conducive to that," Juratovac said. "I really would love to have that experience."

Deputy City Attorney Adam Shapiro asked, during cross-examination, "assistant deputy chief positions serve at the pleasure of the chief of the department, is that correct?"

Juratovac agreed that is, indeed, correct. Last week, Fire Chief Jeanine Nicholson, a lesbian, testified that she did not consider Juratovac for promotion because she lacked certain "soft skills" necessary for advancement.

Damages experts give dueling accounts

On September 25, a damages expert called by the plaintiff testified Juratovac could be facing lifetime financial losses of almost a million dollars based on the department's alleged actions.

Charles Robert Mahla runs the Sacramento office of Econ One Research Inc. and has calculated damages for over 20 years. In this case, he was called upon to look at the "economic impact and loss to Ms. Juratovac from the alleged discrimination from the San Francisco Fire Department," he said.

To do so, he utilized pay stubs, pay schedules, and information from the city's retirement system.

"We look at the world where the alleged discrimination doesn't occur, we call that the world without discrimination," Mahla testified. "The second place is the world where we find it, the actual world."

First, he calculated that because Juratovac was not afforded the opportunity to become a strike team leader trainee for the Wildland Firefighting Strike Team from 2013 through 2020, she could have earned $142,405.

The city alleges she did not fulfill requirements to work on the strike team.

Then things get more speculative — Mahla testified that Juratovac would be owed $273,700 if she were on the strike team from 2020 through her expected retirement in 2027. Then there's the matter of a promotion Juratovac alleges she didn't get due to discrimination, the promotion to assistant deputy chief.

Assistant deputy chiefs can't serve on the strike team, and as management personnel are not entitled to overtime, though they are entitled to paid executive time off. And there's a different pension schedule, which he calculated Juratovac, 55, will need "through December 2050," which is her expected lifetime according to federal Centers for Disease Control and Prevention statistics, he said.

All told, Mahla claimed that the amount that Juratovac missed out on, is missing out on, and would miss out on could be as high as $949,045.

During cross-examination, Deputy City Attorney Amy Frenzen took issue with the 2021 date that Mahla used as when Juratovac should have been promoted.

Asked Frenzen: "You have not seen any documents supporting this assumption, is that correct?"

Mahla: "I have not."

Asked Frenzen: "And you actually don't know if it's a civil service position or an at-will position?"

Mahla: "I don't."

After being asked several questions about the job positions, Mahla said, "This is an assumption I was asked to make for counsel."

Frenzen also disagreed that Juratovac would necessarily make less money in her current position, due to the opportunity for overtime pay.

The city brought its own damages expert on September 26, Eric Barnes, who works for consulting firm JS Held. Barnes testified that there were areas where he disagreed with Mahla.

In particular, Barnes said it's still possible that Juratovac could get promoted to assistant deputy chief, and that therefore it shouldn't be assumed when assessing damages she has suffered due to the city's alleged discrimination that she won't.

Further, if she's promoted before 2027, she suffers no pension loss, which Mahla factored during his testimony to come up with a figure of almost $1 million. One only needs to be an assistant deputy chief for a year to have a pension increase.

"I found it speculative that she would be discriminated against in perpetuity in the future," Barnes said. "Normally, when it's found people are discriminated against, city and government agencies try to make sure that doesn't happen in the future."

Barnes also repeated the city's claim that Juratovac was not allowed to work as a strike team leader trainee because she did not complete required prerequisites.

Other witnesses

The city called Robert Postel, the fire department's deputy chief of operations. Juratovac had accused him of mocking her on a department radio by saying "break" multiple times in a row; Postel testified that he did not intend to mock her, but that on one occasion Juratovac said "break" so many times that it "created chaos" at an incident, he claimed.

"I may have brought it up with her," he said.

Postel did not recall using the phrase "making the department great again" in 2018.

Juratovac had ordered the removal of a "making the Department GREAT AGAIN" sign at a fire station.

Postel also did not recall repeating a conversation to subordinates in which Juratovac allegedly said he had an "invisible backpack full of white male privilege." He did remember, however, saying, "We were using more words than water" to fight a fire on John Muir Drive.


Deposition transcripts were also read, with the lawyers role-playing as their current opponents and as the witnesses. One was a deposition of Rebecca Lynn Sherman, who until fall 2020 worked in the city's Department of Human Resources, which investigated Juratovac's claims of discrimination, retaliation and harassment.

Sherman — who testified at the time of the deposition she lived in North Carolina and had no intention of returning to the Golden State — had said she was involved in at least three investigations into discrimination, retaliation, and harassment at the fire department, including Juratovac's.

She left the department before that was completed, and struggled to complete the investigation due to COVID, a family death, and mixing up Juratovac's phone digits, she said.

When asked if she started to form an opinion about Juratovac's claims, Sherman said, "I remember it was sufficient to warrant further investigation due to the city's EEO [equal employment opportunity] standards at the time, but I don't recall drawing conclusions beyond that." She did agree that seven disciplinary investigations was "unusual for a person of her [Jurtovac's] rank in the fire department."

In her opening statement September 7, Cannata laid out those seven disciplinary investigations that'd been undertaken against her client, which she claims were part of a pattern of retaliation and discrimination against Juratovac just for doing her job.

These were, in chronological order, 1) about an argument ostensibly about a mask at a 2014 fire; 2) her order that a firefighter who'd been arrested for driving under the influence stop driving on duty in 2015; 3 and 4) two separate incidents at San Francisco International Airport in 2016; 5) a dispute over proper reporting of secondary employment in 2019; 6) a dispute about a ladder drill in 2019; and 7) and a dispute over a lost document in 2020.

Juratovac alleges eight causes of action against the city: unlawful retaliation in violation of the labor code; unlawful retaliation in violation of the Fair Employment and Housing Act; discrimination based on sexual orientation; discrimination based on race; discrimination based on gender; unlawful harassment; failure to investigate and prevent discrimination, harassment and retaliation; and violation of the California Public Records Act.

The trial continues September 28 in Department 303 of San Francisco County Superior Court, 400 McAllister Street, at 9:30 a.m.

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