Fired Twice, He’s Won the Early Rounds is a Disability Bias Case.

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City Says 2nd Firing was For Failure to Disclose Convictions.

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Former Sacramento garbage collector Michael Asberry is proof you can fight city hall, but he would be the first to say it’s not easy.

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The 45 year old Asberry is now without his job driving a garbage truck, having been fired twice in less than five years.

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On the other hand, the city owes him and his attorney Jill Telfer $423,652 of the taxpayers’ money after a three year legal battle over his disability discrimination claim.

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Undeterred, the city is carrying this brawl to the appellate level.

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Due to a physician’s erroneous recitation fo Asberry’s work restrictions, Sacramento Solid Waste Division Manager Reina Schwartz notified him on September 8, 1999, that there were “no permanent modified/alternate positions available to you.”

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Schwartz told Asberry, who first went to work for the division in 1992, where to go for “vocational rehabilitation” information.

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Asberry was handed Schwartz’s memorandum, “escorted off the premises, and told I was not allowed to return and was no longer employed by the city,” Asberry said in a court declaration.

Asberry was not to regularly lift more than 40 pounds, which did not preclude his continued operation of a side-loader on a residential route. He immediately documented the mistaken inclusion of other restrictions in a medical report, but it took until March 22, 2000, to get his job back.

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After a six-day trial in December, a jury deliberated little more than two hours before awarding Asberry $230,000 in compensatory damages. The panel found the city discriminated against him because of his recurring back problems. That, the jurors decided, was a violation of federal and state laws protecting the employment rights of disabled persons.

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U.S. District Judge Lawrence K. Karlton denied the city’s motion for a new trial in February. This week the judge rejected the city’s request for a stay of the judgment pending its appeal, and he ordered the city to pay a $193,652 fee to Telfer.

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Karlton augmented Telfer’s fee by $64,551, finding that she risked nonpayment by representing Asberry on a contingency basis. Telfer “undertook this discrimination case against the city after it adamantly refused to settle,” he said in the order.

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Two days before the Dec. 17 verdict, the city again fired Asberry.

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“I assume you’ve already filed your lawsuit for retaliation, Ms. Telfer,” Karlton said Monday at a hearing on the stay motion.

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Telfer said she has filed an administrative claim.

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“Well, I suppose I’ll see that case someday too the judge said.

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Karlton asked, “I am curious, why did they fire him this time? What purported reason?”

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Telfer said her client was fired because of his felony convictions in the late 1970s for voluntary manslaughter and robbery, which the city learned about on the even of trial when it case a net for whatever derogatory information it could find about Asberry.

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Karlton didn’t allow Deputy City Attorney Angela Casagranda to use the information at the trial.

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Casagranda said Monday that Asberry was fired because he did not disclose the convictions on his employment applications submitted to the city.

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She argues the city did not fire Asberry in 1999, a stance that vexes Karlton and led to the most entertaining moment of the case.

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In deciding the city’s motion for summary judgment 14 months ago, the judge found that Asberry was terminated September 8, 1999. He rebuffed Casagranda’s protests on the subject at the trial.

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She pressed the point again in her motion for a new trial. In an order denying the motion, Karlton wrote “there can be no doubt as a matter of common sense” that Asberry “was deprived of an opportunity to work his job.”

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Despite persuasive evidence to the contrary, Casagranda repeatedly elicited trial testimony that Asberry was not terminated, the judge recalled, and said he “regards the decision to present such evidence as remarkably ill advised, probably alienatating at least some members of the jury.”

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To illustrate his point, he incorporate in his order a reproduction of a cartoon strip known generally for its workplace satire.

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“The court by no means intends to demean “Asberry’s_ pain by noting, that the best characterization of (the city’s) position is found in a Dilbert Cartoon,” the judge wrote in a footnote.

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The strip, which appeared in The Bee on Jan. 8, depicts a manager informing an employee that he is “going to experience an involuntary separation from payroll.” He is not being fired, the manager explains, but will “not be allowed to touch anything.”

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“I’ve never heard of a judge doing a thing like that,” City Attorney Samuel Jackson said Thursday. “I don’t know what it’s meant to accomplish. It’s just a lot of silliness and I don’t understand.”

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Jackson is especially irked at Karlton’s remark in this week’s order denying a stay of the judgment that the firing of Asberry during the trial “suggests an ulterior motive.”

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“You guess wrong when you don’t have facts and that has no place in the justice system,” Jackson said. “Mr. Asberry lied about his criminal record. It’s as simple as that.”

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Casagranda sought a stay without the city being required to post a bond insuring prompt payment after the appeal, plus interest as compensation for the delay.

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In opposing the motion, Telfer said in her brief that, by firing Asberry and then seeking to hold up payment of the $230,000, the city “is attempting to starve plaintiff financially in an effort to get him to accept” less money.

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This article first appeared in: The Sacramento Bee
Filed under: Metro
Written by: Denny Walsh Bee Staff Writer
Published on: Tuesday, December 23, 2003