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San Diego jury awards $2.6 million in wrongful termination suit against Public Defender Office

A San Diego County jury Monday awarded a former deputy public defender $2.6 million in his wrongful termination lawsuit.

The Superior Court jury concluded the San Diego County Public Defender Office fired Zach Davina, who is gay, in 2020 because of his gender expression and for complaining about what he believed were racist comments made by a supervisor toward a Black and Latino colleague.

The jury found San Diego County was responsible for Davina's past and future wage losses totaling $640,000 and $2 million for his emotional distress.

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Davina told KPBS Tuesday he was relieved and hopeful that the verdict would lead to change inside the Public Defender Office.

“Twelve completely random folks from all over the county stood up and said, `No, this is not right. They cannot get away with it,’” Davina said.

The jury agreed with Davina's claim that he was retaliated against because he complained about comments made by public defender supervisor Sherry Stone toward Andre Bollinger, who is Black and Latino.

Stone reportedly called Bollinger lazy during an August 2020 Public Defender Association (PDA) board meeting after he told panel members they were alienating attorneys of color. Stone, a PDA board member, then asked Bollinger, “How dare he try to `lynch’ her or the PDA Board given his low acumen,” according to court documents. Bollinger’s peers say he is well respected and highly competent.

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After that meeting, Davina and others asked that Stone receive diversity training and be removed as supervisor. Weeks later, Stone, who was alerted about Davina’s complaints against her, sat on his tenure review panel.

The jury also concluded that the Public Defender Office discriminated against Davina because of his gender expression.

Davina has said despite receiving excellent job performance evaluations, his tenure review panel in the fall of 2020 focused on his speaking style. He said public defender supervisors on the panel asked him whether he thought he was too “animated and flamboyant” and if that hurt his clients’ cases.

Davina alleged in his lawsuit that he was asked to resign a short time later or be fired because he was “not a good fit” for the office’s “culture.”

Davina told KPBS his troubles can be traced back to July 2020 when he came out before a diversity panel for LGBTQ lawyers. He said he thought the move and the visibility it brought would help younger gay lawyers and motivate others in the profession and his office to treat people like him better. But his supervisors immediately expressed concern that he had critiqued the office, he said.

He said he started to hear negative talk from others in the office about his pierced ears, hair and nail polish. Davina said the pressure on him only intensified following his complaint about Stone’s comments to Bollinger.

Davina hopes the verdict encourages current deputy public defenders to speak publicly on what he says they tell him privately about how they’re treated at work.

“Discrimination, harassment, a fear of retaliation,” Davina said. “There is a culture of fear there that is so predominant that people, who are trying to stand up for their clients, are shut down. People who are standing up for themselves are being shut down.”

In a statement to KPBS, San Diego County Public Defender Randy Mize called the verdict disappointing and said it doesn’t align with the office’s mission and values.

“We will assess the verdict and appellate remedies,” Mize said.

Davina’s lawyer Chris Ludmer told KPBS Tuesday that based on what jurors told him moments after announcing the verdict, an appeal is likely futile.

“One of the constant refrains was that the verdict wasn’t even close,” Ludmer said. “They felt that practically all of the witnesses who testified on the county’s behalf had serious credibility problems. In fact, several blatantly said they felt they were liars.”

Early Tuesday morning, Mize and the office’s supervisors sent an email to deputy public defenders that read, in part: “Our mission is too vital for us to be distracted or splintered. We are committed to a healthy, frank and respectful dialogue in the creation of the best Public Defender's Office we can be.”