John Chiv: How Brian Gerving slithered into the position of CFO which resulted in a lawsuit and appeal

May 23, 2021

How Brian Gerving slithered into the position of CFO which resulted in a lawsuit and appeal

The trial court Humboldt Superior Court. The ruling reversed. The key players include former City of Eureka Attorney Cyndy Day-Wilson, former City Manager Mike Knight and City of Eureka Public Works Director Brian Gerving.

There was another lawsuit that only I covered. The Jill Schoonmaker case. Those posts are linked below.

If you complain in Humboldt or stand up for yourself, they retaliate. If you seek justice in the local courts; good luck. If you have the money, the time and the resources to appeal; you sometimes get justice.

The opinion is lengthy so I have included some excerpts and the link to the entire opinion.

Excerpt 1:

Fitzhugh initiated this litigation in June 2016. According to the allegations of his operative pleading (a "supplemental" complaint filed on December 14, 2017), Fitzhugh began working for the City in 1988 as a building inspector, and over the years worked his way up to the position of Deputy Building Official.

He alleged that until approximately 2010, he had received superior performance evaluations. But after that, two alleged incidents caused him to be subjected to an allegedly unlawful pattern of retaliation and discrimination.

First, he alleged that in May 2010, he lodged a complaint against his supervisor, Mike Knight, the Assistant City Manager of Operations, accusing Knight of creating a hostile work environment and other misconduct (lying on performance evaluations, engaging in retaliatory behavior, and discrimination) and that his complaints against Knight were investigated and found to be either unfounded or not substantiated.

Second, Fitzhugh alleged that the following year, in May 2011, he was subpoenaed to testify in a trial involving the City and met with the City Attorney who allegedly tried to "coach" him. He alleged the City Attorney "attempted to alter [Fitzhugh's] testimony by asking [him] to testify a certain way in an attempt to protect Mike Knight and the City." The City Attorney also allegedly "asked [Fitzhugh] to state he did not recall in response to any incriminating questions." According to the allegations, Fitzhugh responded by "inform[ing] the City Attorney he was simply going to tell the truth on the stand and did not need to be coached by her in any way," and "then proceeded to testify at the trial, answering the questions truthfully as opposed to how the City Attorney had instructed him to answer the questions."

Fitzhugh alleged that as direct result of bringing his complaint against Knight in May 2010 and refusing to testify at trial in the manner the City Attorney had requested in May 2011, the City had retaliated against him. He alleged the retaliation "include[d] but [was] not limited to" seven adverse employment actions that were allegedly taken as a direct result of his "protected conduct," and alleged the retaliation was "still occurring as of the date of this complaint." The adverse actions alleged were the following:

1. Despite the fact that in 2008 the City Manager had told him he would become the next Chief Building Official, Fitzhugh was not promoted to that position, and instead a younger and less qualified person received the promotion.

2. In February 2014, his position as Deputy Building Official was eliminated, and he was demoted to another job ("Senior Plans Examiner/Senior Building Official"), with frozen pay and decreased benefits.

3. Ten months later, in December 2014, he had a conversation about job promotions with the City's Chief Building Official, Brian Gerving, who followed up in an email telling him no additional promotions would be created and no upgrades in position would be available to him.

4. In May 2015, he applied for the position of "Deputy Public Works Director—Field Operations" but did not receive the job.

5. In November 2015, he expressed interest to Gerving in applying for a recent job opening for a full-time building official but Gerving told him not to bother doing so because he wouldn't get the job.

6. In December 2015, he applied for the position of "Deputy Public Works Director—Utility Operations" but received a letter in January 2016 from William Folger notifying him that his name would not even be included in the pool of possible candidates.

7. Finally, he alleged that in April 2017, while this litigation was pending, he was placed on administrative leave, investigated and eventually, in October 2017, terminated from his job after an image was found on his work computer that the City deemed to be child pornography. He denied ever seeing the picture, alleged the City failed to prove he was responsible for the picture being stored there, and alleged the City wasn't justified in terminating him for this reason which was simply pretextual.

Fitzhugh pled two causes of action based on these allegations. His first cause of action alleged "Unlawful retaliation." His second cause of action, which alleged the City had done these things to him because of his age, was for "Employment Discrimination."

Excerpt 2: