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Published: Tuesday, 8/21/2012

Appellate court upsets ruling in firing case

Decision paves way for new federal trial

BY IGNAZIO MESSINA
BLADE STAFF WRITER
Gary Daugherty alleged racial bias in his termination in 2007 as an environmental services manager. Gary Daugherty alleged racial bias in his termination in 2007 as an environmental services manager.
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A federal appeals court Monday reversed a 2010 ruling against a former city of Toledo employee who alleged wrongful termination three years earlier, and also shot down the lower court's ruling that former Mayor Carty Finkbeiner would no longer be a defendant in the case.

The decision a three-judge panel of the U.S. Court of Appeals for the 6th Circuit paves the way for a new trial in U.S. District Court in Toledo, where a jury in 2010 sided with the city against Gary Daugherty. He is a former environmental services manager hired when Mayor Finkbeiner took office in 2006. The former mayor could now be compelled to testify again.

Emily Lewis, attorney for Mr. Daugherty, called the decision a huge victory. "We had some very difficult standards of review on appeal," Ms. Lewis said.

City Law Director Adam Loukx said the city still has a strong defense. "The city acted properly and we don't think we are liable," Mr. Loukx said "I still think the city has no liability in this case."

Mr. Daugherty alleged racial discrimination in his lawsuit against the city and former mayor.

He was one of 23 employees who received layoff notices in March, 2007, during a budget-cutting move. Mr. Daugherty contended he was paid less than other managers and felt his layoff was because of his involvement in a case involving an African-American female investigated by the city's affirmative action compliance office.

U.S. District Judge Jack Zouhary had ruled that evidence was insufficient to support Mr. Daugherty's allegations against Mr. Finkbeiner.

Ms. Lewis said the higher court sided with her argument that Judge Zouhary "left out our best evidence." That evidence, she said, is of the many other incidents that show a pattern and practice of retaliation against Mr. Daugherty.

Mr. Daugherty was employed by the city as a manager in the environmental services division from January, 2006, to March, 2007, when he was fired. "At numerous times during his tenure, [Mr.] Daugherty informed his supervisor and other city officials that he believed he was underpaid and that he was paid less than white managers," court documents say. His annual salary was $48,500; his white predecessor had an annual salary of $56,000 and his white subordinate had an annual salary of $49,000, the records show.

"[Mr.] Daugherty also assisted Affirmative Action Director Perlean Griffin in conducting a pay study, which reported a disparity in salary between certain black male managers (including Daugherty) and white male managers," it said. "In 2006, [Mr.] Daugherty assisted two black [department of public utilities] employees with discrimination complaints against the city."

Ms. Lewis said the new decision will allow her to question Mr. Finkbeiner, who is accused in the suit of using "racially derogatory language at meetings" and showing disrespect to black employees, the lawsuit said.

Judge Zouhary ruled in 2010 after a day of testimony -- including Mr. Finkbeiner's -- that evidence that the former mayor wrongfully fired Mr. Daugherty was insufficient and granted Mr. Finkbeiner a directed verdict in his official and personal capacity.

Mr. Finkbeiner, who testified for 40 minutes, said he never identified Mr. Daugherty to be laid off and that the decision was made by a director of the public utilities department.

"That was the director's job to make that decision," Mr. Finkbeiner testified.

The city remains listed as a defendant in the case.

Mr. Daugherty filed jointly with two other black city employees who said they were fired illegally by the mayor. Of the three, Mr. Daugherty was the only one not offered a settlement by the Bell administration.

Toledo City Council on Feb. 16, 2010, approved $300,000 for Dwayne Morehead, former co-executive director of the city's youth commission, and $150,000 for Ms. Griffin, formerly director of the Office of Affirmative Action.

Contact Ignazio Messina at: imessina@theblade.com or 419-724-6171.



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