The clock is ticking on the demand that former Police Chief RaShall Brackney has made to the city for $3 million after she filed a discrimination complaint with the U.S. Equal Employment Opportunity Commission.
Brackney’s lawyer, Charles Tucker, Jr. of The Cochran Firm, said the city has until Nov. 26 to settle with Brackney or they will file a lawsuit.
Brackney, a Black woman, alleges she was discriminated against by some members of city staff and City Council on the basis of her sex and race, specifically in the termination of her contract on Sept. 1. She is also alleging defamation. Brackney and Tucker announced the complaints in a press conference outside City Hall on Nov. 9.
Former city spokesman Brian Wheeler said the city does not have a comment about Brackney’s legal proceedings or the demand for the $3 million. But experts in employee discrimination law say Brackney is taking a common route.
“I would say sending a demand letter of this sort is exceptionally common. Indeed, it’s the norm. That’s the way these disputes get kicked off typically,” said Rip Verkerke, professor of law and director of the Program for Employment and Labor Law Studies at the University of Virginia.
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However, Verkerke said there are some distinct aspects of Brackney’s demands letter that aren’t necessarily typical.
“Demand letters frequently will include a draft of the complaint … you would send a demand letter with the draft complaint pendant and say, ‘if you don’t respond to this demand letter, we’re filing this complaint right here, look at it.’ Instead, what this demand letter does is contain a bunch of allegations, recitation of history,” he said.
Verkerke also said EEOC complaints are “exceptionally common” in employment discrimination cases. He said Brackney’s allegations of race and sex discrimination would likely fall under Title Seven of the Civil Rights Act of 1964 that prohibits discrimination on the basis of race, color, religion, sex and national origin. The EEOC governs discrimination of these protected classes.
In her complaint to the EEOC, Brackney is accusing former City Manager Chip Boyles, City Attorney Lisa Robertson, Vice-Mayor Sena Magill, councilor Heather Hill, councilor Lloyd Snook, Police Civilian Review Board chair Bellamy Brown and Police Benevolent Association chair Mike Wells of colluding to have her fired.
She is also alleging in her complaint that some members of city staff and some councilors have made defamatory statements against her. Brackney also filed complaints with the Charlottesville Office of Human Rights and the NAACP. Brackney’s lawyer said the EEOC complaint was filed through the city’s Office of Human Rights.
EEOC complaints must be filed within 180 days from when the employee receives notice of adverse employment action, said Anita Bala, an employment lawyer with Buckley Beal LLP in Atlanta, Georgia. She said in that period, the EEOC can choose to find cause or no reasonable cause for the allegations, if it chooses to investigate. After the 180 days, the EEOC can issue a notice of right to sue.
“If the EEOC believes there is cause underlying the allegations, the EEOC, as an enforcement agency, may bring its own lawsuit to enforce federal anti-discrimination laws against the employer, in addition to the employee’s private claims for damages,” Bala said. “If the EEOC elects not to sue, the employee may do so through a private lawsuit on his or her own upon receiving a notice of right to sue.”
It could take the entire 180 days for an employee to hear back from the EEOC and receive a right to sue notice, Bala said.
Bala said there’s three different ways Brackney could provide proof of discrimination: direct evidence, circumstantial evidence or a convincing mosaic of evidence. Direct evidence could be someone using a racial slur in the workplace or making comments about why a Black person or woman shouldn’t have a certain job, for example. An example of circumstantial evidence could be if a Black employee is given a harsher punishment than a white colleague that is similarly situated and committed a similar offense. A convincing mosaic is present where, for example, there may not be a perfect comparison with a white employee who was treated more favorably, but there is a mosaic of facts that point to discrimination as the real reason for the adverse action, Bala said.
Some people have wondered whether taxpayers will be left with the bill should the city decide to settle with Brackney. The city is part of the Virginia Municipal League, which is a statewide nonprofit, nonpartisan association of city, town and county governments. VML works with the Virginia Risk Sharing Association, which provides insurance to municipalities, including liability insurance. Wheeler said Brackney’s claim would be covered under the city’s insurance with VRSA.
While this means the city wouldn’t necessarily be out $3 million out of pocket, it could still hurt the city both in reputation and finances, Verkerke said.
“There are huge reputational interests, so I think the city would do well to find a path that somehow led to a resolution that did not involve a lawsuit and confrontation. I’m not sure that would or should lead them to spend $3 million to settle this claim,” Verkerke said.
Verkerke also said the city’s insurance premiums could go up with this claim, just as premiums can rise with any other type of insurance if a large claim is filed.
“Most liability insurance is called ‘experience rated’ … if you have claims, particularly large claims, they tend to drive up your premiums in the future,” Verkerke said. “It’s like your homeowner’s insurance.”
The city may also have to front as much as $1 million while waiting for the insurance to kick in, Verkerke said.
While Brackney could be awarded millions, Verkerke said there are still risks for her as well.
“This creates some risks for [Brackney] in the sense that whether consciously or unconsciously, other jurisdictions and other municipalities might very well be reluctant to hire someone who has sued her former employer,” Verkerke said. “One of the things a plaintiff’s lawyer should absolutely be advising [the plaintiff about] is that a public rift of this sort is going to be in the press. And as employers consider whether to hire someone or not, it could influence them negatively.”
The city still has a little under a week to respond to Brackney’s demands. Verkerke said it would be a good idea for the city to try to reach some sort of compromise with Brackney, especially since Boyles has apologized for firing her and said he wished he’d worked with her more before taking action. Verkerke said a compromise could include the city issuing an apology or retracting statements.
“I don’t think it would be responsible for the city to just pay up on the basis of the demand letter. But additional discussion, some sort of mediation perhaps, could conceivably be productive and might lead to a mutually agreeable settlement,” Verkerke said. “I would encourage the city to seek discussions with Dr. Brackney and with her counsel and to try to understand and more fully what precisely her grievance is and see if there’s some way to ameliorate the rift that is obviously taking place.”