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Shelton v. City of Manhattan Beach9/28/2004
eing said. Two officers told plaintiff a "group of people" in the department were saying, " ou're a faggot and are hiring little gay boys to be cops." Another officer told plaintiff officers were saying, " ou're gay and [another officer] was hired `cause his twin brother is your boyfriend."
The lieutenant conducting the investigation declared there was a question about whether it would be appropriate for the city to interview plaintiff. This was because plaintiff was on medical leave. (As noted previously, plaintiff did not finally retire until February 26, 2003.) The lieutenant turned that question of the uncertainty as to whether plaintiff could be interviewed while on medical leave over to the city's human resources director, Marcie Scott, and City Attorney Robert V. Wadden, Jr. That issue was not resolved until the end of February 2002. In early Spring 2002, Ms. Scott advised the lieutenant it was appropriate to interview plaintiff. The lieutenant was unable to complete the investigation without interviewing plaintiff.
On February 28, 2002, plaintiff applied for an industrial disability retirement. That application was denied. The city's risk manager stated: "The City has denied [plaintiff's] application for industrial disability based on persuasive medical evidence that [plaintiff's] hypertension is not caused by the workplace and that he can continue to work." Plaintiff appealed that decision.
In April 2002, Patricia Kinaga, an attorney representing the city, contacted the office of plaintiff's worker's compensation attorneys. Ms. Kinaga sought plaintiff's participation in an internal affairs interview. No one from the law firm representing plaintiff called back. Instead, Ms. Kinaga received a telephone call from plaintiff himself. Plaintiff said he would have one of his other attorneys contact Ms. Kinaga within the next few days. Plaintiff asked Ms. Kinaga to call him back if she did not hear from his other counsel within that time. Ms. Kinaga states, " o attorney [from the law firm representing plaintiff] ever contacted me." On May 21, 2002, the city attorney, Mr. Wadden, wrote a letter to plaintiff's litigation counsel, Mickey Wheatley. The letter states in part: "To date 15 interviews have been conducted in this investigation. The only reason the investigation has not been completed is Sergeant Shelton's failure to cooperate with the investigation and refusal to make himself available for an interview."
As noted above, plaintiff's original complaint for damages in this action was filed on August 21, 2002. On September 6, 2002, after the complaint was filed but before it was served, the city's outside labor attorney, Craig A. Horowitz of Horowitz & Clayton, wrote again to Mr. Wheatley requesting that plaintiff participate in an internal affairs interview. Mr. Wheatley responded stating: "Please be aware that I represent [plaintiff] in his civil litigation claims. If the City
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