A jury will decide whether the city of Fresno discriminated, harassed, and retaliated against two former city employees. If the answer is yes, it could cost the city millions.
Attorneys for the former employees and the city made closing arguments for about 90 minutes each Tuesday at the federal courthouse in downtown Fresno. The jury started deliberations at 2:30 p.m.
La-Kebbia “Kiki” Wilson, who is Black, and Charles Smith, who is white, worked in the city’s code enforcement division. Wilson said she was treated differently and suspected it was because of her race. Smith testified that a supervisor used the “N-word” to describe Wilson in private conversation.
Wilson is seeking $5 million to $20 million. Smith is seeking $1 million to $10 million.
“If you break it, you buy it. The city has to pay,” Kevin Schwin, attorney for Wilson and Smith, told the jury during closing arguments. “We’re suing for human harm. For the harm of human dignity.”
Schwin’s Closing Argument
During the trial, Wilson and Smith said they were harassed and retaliated against for complaining about the slur and other grievances.
Before Schwin, a Fresno attorney, made his final arguments, Wilson and Smith embraced at the plaintiffs’ table.
“The city went on a campaign of retaliatory character assassination and bullying against Wilson and Smith to sweep this whole thing under the rug,” Schwin said.
Smith claimed the supervisor, Howard Lacy, used the slur. Lacy denied doing so in testimony.
“He hated Ms. Wilson, constantly denigrating her,” Schwin said of Lacy.
Schwin asked the jury who they believe more, the plaintiffs or Lacy. He summarized the case, saying the city continued to harass Wilson by turning the investigation of the slur against her. He said the investigation cleared Lacy but recommended the city fire Wilson.
When Smith told Wilson what Lacy said, she had a public outburst using profanity, violating city employment rules. Similar conduct using profane language by white supervisors went unpunished, Schwin said. Meetings with superiors were hostile, according to testimony, eventually leading to a 30-day suspension for Wilson.
Smith had his job threatened and felt coerced after hearing Lacy use the slur, Schwin said.
Schwin told the jury Wilson and Smith faced adverse employment actions. Wilson received a letter of reprimand and was placed on paid administrative leave — subject to returning to work with as little as an hour’s notice — during the investigation. She called the leave “house arrest.”
Smith was transferred to a less-desirable job on the city’s tire team. After he quit, the city would not rehire him.
Wilson and Smith filed the case in 2019. Smith quit his job in July 2018 because of the transfer, calling it retaliation. Wilson eventually left city employment in 2022, although those reasons were not part of the trial.
“None of this would ever happen if Ms. Wilson wasn’t Black, or if Ms. Wilson never complained about the ‘N-word,’ ” Schwin said.
Schwin concluded with a Martin Luther King Jr. quote: “Injustice anywhere is a threat to justice everywhere.”
City: No Adverse Action
Mandy Jeffcoach, the attorney arguing for the city, said the city’s actions against Wilson and Smith were justified and not based on race or retaliation.
Wilson and Smith were aware of city employment policies, including reporting incidents, Jeffcoach said. Smith never reported the slur, any retaliation or a hostile work environment. Because he did not report it, the city could not retaliate against a protected action.
Jeffcoach said Smith’s credibility was compromised. The investigation concluded Lacy’s slur was made up, Jeffcoach said. She said the city offered Smith training and support. Smith testified that if Lacy apologized, he would not have filed a lawsuit.
She also challenged whether Smith faced adverse action. Another manager, Tim Burns, testified during the trial that he moved Smith to the tire team, based on his skill set. Burns said the tire team was a coveted position, with potential promotions.
Jeffcoach quoted Smith’s email on the day he quit. He called his time with the city “fulfilling,” indicating that his experience was not a hostile work environment. She questioned Smith’s motives for not wanting to be on the tire team, telling the jury it may have been because it was an assignment lasting one to two years, not because of retaliation.
Smith sent a “vulgar and profane” email on the day he quit, Jeffcoach told the jury. It still did not mention any complaints of retaliation or use of the slur. That alone should be justification not to hire him again, the defense attorney said. In fact, the city offered a computer specialist position to Smith in December 2018, which he turned down.
Schwin argued the email actually corroborated the intolerable work conditions. Transferring to the tire team would affect Smith’s health and sanity, Schwin said.
Jeffcoach said if there are damages for Smith, they should be about $17,000, based on his last job offer.
Regarding Wilson, Jeffcoach said the letter of reprimand, the investigation, and being placed on leave did not amount to adverse action.
The letter was not just about profanity, Jeffcoach said, but about respectful conduct toward management. Wilson repeatedly violated the rule. Being placed on leave was fair, Jeffcoach said, as Lacy faced the same action.
Jeffcoach also defended the investigation by Dallas Selling, calling it neutral and unbiased. Her job was to find facts, something Selling had experience with as a family law attorney. That led to the investigation expanding to examine Wilson’s actions.
Other Wilson grievances, such as being assigned a dirty truck, or an insufficient tool box, were explained by Jeffcoach as the result of the city’s budget challenges.
Wilson’s own actions and attitude caused a hostile work environment, Jeffcoach said. Other employees complained about Wilson and her conduct in the city investigation.
Jeffcoach also defended Lacy, referencing his denial of using the “N-word” during his court testimony. She mentioned others describing him as straightforward, and sometimes harsh, as he did not sugarcoat things.
“There is no accountably about how (her) conduct may be perceived by others,” Jeffcoach said about Wilson. She noted that Wilson testified that she called several city witnesses “liars” on the stand.
Lacy’s alleged comment was the only racial slur Wilson might have experienced, Jeffcoach said.
If the jury sides with Wilson, Jeffcoach said she should be entitled to $83,200 in damages. That figure was based on the cost of counseling over eight years.
What the Jury Could Consider
Before closing arguments, federal Judge Kirk E. Sherriff instructed the eight-member jury on criteria needed to find for the plaintiffs or the city. He read detailed instructions, taking nearly 50 minutes. Wilson and Smith’s claims are being made under federal and state law.
Criteria to find for Wilson and Smith include believing the evidence showed the city engaged in discrimination, harassment, and retaliation.
Specific instructions included whether the plaintiffs experienced harassment; the harassment created a hostile work environment; and the city should have known and taken action. Sherriff read similar instructions for discrimination and retaliation.
Actions taken against Wilson because of her race would be enough to trigger discrimination, such as a racial slur. A single use of the “N-word” could be considered severe and pervasive.
The city would prevail if it could use clear and convincing evidence, a higher standard, that it would have taken adverse employment actions independent of any harassment. An example would be action taken because of job performance.
The verdict needs to be unanimous.