City Attorney Nathan Davis and Assistant City Attorney Chimere Chisolm successfully defended the city of Albany in a racial discrimination lawsuit filed by now Capt. Brian Lavoie with the Albany Police Department. (Staff photo: Carlton Fletcher)
ALBANY — “This is vindication,” Albany Police Chief John Proctor said.
City Attorney Nathan Davis said, “The decision is proof that the city of Albany operates on a non-discriminatory basis.”
A U.S. District Court jury simply said “No” recently when asked if the city of Albany had denied APD Capt. Brian Lavoie an opportunity to fairly compete for a promotion within the department. And it was the jury’s one-word statement that spoke loudest.
Lavoie, in 2009 a ranked APD sergeant who served for a period as an interim lieutenant, asked the federal jury in the Albany division of United States District Court for the Middle District of Georgia to award him damages based on discriminatory promotion practices employed by Proctor and the APD. Lavoie, who was promoted ranked lieutenant in 2011 and to captain in 2013, said he was denied the opportunity in 2009 to compete fairly for the promotion he felt he deserved (to captain) simply because his skin is white.
Proctor, who is black, denied the charges saying, “I never thought about race as it related to this young man.”
The jury agreed with Proctor, rendering a verdict in favor of the city and denying Lavoie’s request for $36,000 in lost wages and an unspecified amount for pain and suffering.
“We’re elated,” said Davis, who with Assistant City Attorney Chimere Chisolm defended the city in the case. “I think it was a very fair verdict that showed Chief Proctor makes his decisions objectively when it comes to dealing with his personnel on the force. The decision is also a victory for the city of Albany, symbolic of a government that does things the right way.”
City Manager James Taylor said the rejection of Lavoie’s discrimination lawsuit by the jury was about more than dollars and cents.
“Certainly this could have been a very costly undertaking for the city had the verdict gone the other way,” Taylor said. “Frankly, it was quite expensive anyway when you take into account the time Nathan and his folks worked on the case and the time spent by staff and our police officers preparing for the case.
“I’m sorry that the whole thing went as far as it did when it could have been handled administratively. There were a lot of resources expended in that courtroom.”
Lavoie, who was represented by Tallahassee attorney Marie Mattox, did not respond to requests seeking comment for this article.
The suit filed by Lavoie, according to Davis, started when the officer was turned down for promotion to captain in 2009, even though the policy implemented by Proctor when he came to Albany in 2008 clearly stated that only ranked lieutenants are eligible for promotion to captain’s rank.
“Capt. Lavoie took the position that ‘acting lieutenant’ is equal to ‘ranked lieutenant,’” Davis said. “Therefore, he felt that he was qualified to apply for the promotion.”
In his lawsuit, Lavoie not only claimed that the policy regarding “acting” and “ranked” lieutenants was aimed directly at him, he accused Proctor of allowing external candidates to compete for promotions — a change in policy — as another means of blocking his chances of moving up the ladder to captain.
“Capt. Lavoie, in one of a series of pretexts he used in his defense, actually said Chief Proctor had hired and promoted an outside white officer just to provide statistical balance — in giving a white officer a promotion — while setting up another barrier aimed at (Lavoie),” Davis said. “With no evidence of direct discrimination, Capt. Lavoie had a laundry list of alleged pretexts — one after another — that he said were put in place to preclude him being promoted.”
Davis said he asked Lavoie on the witness stand if the officer believed each of the alleged pretexts had been put in place to keep Lavoie from being promoted “simply because you are Caucasian.” Lavoie answered “yes” to each one.
“Capt. Lavoie said he felt every single act he mentioned in his lawsuit was put in place to prevent him specifically from being promoted,” the city attorney said. “I, frankly, was pretty amazed. It seems almost inconceivable that anyone could believe such a laundry list of actions were directed at any one person. That would mean the city did more planning against Brian Lavoie than the 911 terrorists did before they carried out their attacks.”
Asked if either he or Mattox, acting on behalf of Lavoie, had sought to settle the issue before the start of the trial, Davis said, “There was never any settlement discussion broached by either side. Once we gathered all the facts, we felt that we had a strong basis to defend the lawsuit.”
Davis said once it became clear that the case was going to trial, he, Chisolm and paralegal Stacie Mote started formulating a battle plan to defend Proctor and the city.
“I can’t say enough about the work Chimere and Stacie did on this case,” the city attorney said. “Both of them have young kids, so they had to get up and take care of their families before they came to the office and put in some 12-hour days. And the preparation work was vital to the case.
“Once the trial started, Chimere really came into her own. She stepped up to the plate with some fabulous cross-examination.”
Chisolm, who graduated from North Carolina Central School of Law, was appointed to work with the city in 2011. She’d previously worked as staff attorney for the Dougherty County Judicial Circuit and before that with then-Chief Superior Court Judge Loring Gray. Chisolm’s trial work had been mostly in civil defense, which is more about equitable settlement than litigation.
The Lavoie case was her first opportunity to litigate in Federal Court.
“One of the reasons I took this job was for these types of opportunities,” Chisolm said. “Not all attorneys enjoy litigation, but I like engaging in court, talking with jurors and the judges. I think this case was very significant because the city represents the taxpayers of Albany. A bad decision in a case like this could end up costing millions.
“I was proud of the way our staff worked as a team to prepare for the case. And I’m very thankful that Nathan gave me the opportunity to really participate, to have input in the trial and in the strategy. A lot of veteran lawyers’ egos prevent them from giving opportunities like that to young attorneys, but Nathan’s not like that. I’m thankful for the opportunity to learn from him.”
Once a jury was seated, Mattox called Lavoie and his wife, representatives of the city’s Human Resources department and a number of APD officers. Davis countered by calling Proctor, Georgia Association of Chiefs of Police Executive Director Frank Rotondo and APD officer Tracey Barnes. Like Lavoie, Barnes had once been named acting lieutenent for a brief period. Barnes testified that he did not believe being an active lieutenant qualified him for promotion to captain.
Rotondo was the city’s star witness, according to Davis.
“The crux of Capt. Lavoie’s case was that Chief Proctor had used discriminatory practices while evaluating him for promotion,” Davis said. “But all APD candidates for promotion were actually screened by a three-person GACP panel that included Chief Rotondo, a panel, I might add, that has more than 150 years of experience. Once the initial screening was completed, candidates were administered a test, which, again, Chief Proctor had nothing to do with.
“Chief Proctor’s only part in the promotion process was to take the evaluations and recommendations presented to him and make a final decision.”
Judge W. Louis Sands sent the jury out to deliberate at around 4:40 p.m. on Jan. 17. They rendered their verdict in the city’s favor at around 7:30.
“This was one of those cases I was proud to be a part of,” Davis said. “I think the outcome was the right one: There was never any discrimination against Capt. Lavoie, and there was never any retaliation against him during the course of the lawsuit. I think that’s pretty apparent since he’s been promoted twice during that time.
“I also think this case shows that the city of Albany made a smart move by hiring Chief Proctor.”
The APD chief, meanwhile, said it’s time for the department to put the episode behind it and move forward.
“My goal in implementing the new promotions policy was to establish a new framework of accountability,” Proctor said. “I wanted to make sure all of our folk had a fair chance at achieving their professional goals. Race did not enter into it.
“I’ve always attempted to interact in the most professional way possible, and I still will. I’ve instructed our staff that I expect the same from them. Everyone’s had their day in court now. It’s time to move on.”
Lavoie has 30 days to appeal the jury’s verdict.