On top of half a dozen lawsuits with the 49ers and a voting rights lawsuit that will cost Santa Clara more than $5 million, Santa Clara faces another costly legal headache: A federal civil rights lawsuit charging that the Santa Clara Police Department systematically discriminated against non-White employees for promotions. [malae complaint 3-1-2021]
Sergeant Jacob Malae, a 22-year veteran of the police department and a Santa Clara native, filed suit in federal court on March 1 alleging that he and other well-qualified non-White officers were passed over for promotions as a result of pervasive departmental racism. Malae has been an Officer of the Year and earned the 2009 Lifesaving Award. His most recent performance evaluation was excellent.
Further, Malae alleges that PD management retaliated against him when he spoke out about persistent racism in the PD by denying him overtime pay and alleges that the department also fired a good friend of Malae’s for, in essence, being Malae’s friend.
The lawsuit names the City of Santa Clara, Police Chief Patrick Nikolai and Police Captain Todd Cummins.
Meritocracy or Crony-ocracy
Malae alleges that SCPD has a pervasive culture of racism
He cites demographics: In a city that is 45 percent white, 38 percent Asian, 19 percent Hispanic and 3 percent African American — in other words, a minority-majority (60 percent) community — only two minority SCPD officers have ever been promoted to the rank of Captain or higher in the 169-year history of the department. Until 2018, 46 out of 49 management employees were white.
Specifically, Malae alleges “when it comes to selecting a Chief of Police for SCPD, the system is rigged so that Caucasians are promoted to Lieutenant, Captain and, then, put in a position to run for the top position.”
This, Malae calls a “manipulation of the promotion system, including the examination process and the promotional list,” offering the example of Chief Patrick Nikolai who was promoted to Lieutenant after finishing fourth on the exam. The first two finishers — both white — were promoted, but the third finisher, a Mexican American woman, was never promoted, “despite many opportunities to advance, and, eventually, left SCPD.”
Malae also gives the example of a Japanese American officer who was repeatedly passed over for promotions despite a stellar record and experience in every division of the police department.
The Lieutenants Promotional List plays a starring role in this alleged culture of discrimination.
In 2019, Malae placed second in the department’s 2019 Lieutenant test. The candidate in first place, who was white, was promoted; leaving Malae in the number one slot to be promoted. Rankings on the test translate to placement on the department’s Lieutenants Promotional List
However, he was called into the office on New Year’s Day 2020, where he met with Police Chief Patrick Nikolai, who informed Malae that he wouldn’t be promoted and someone lower down on the list would be promoted.
The reason Nikolai gave was a complaint that Malae made a co-worker “feel unsafe” when Malae had stood next to her while she completed some work for him three months previously. This was the first Malae had heard of any such complaint, and Nikolai told him that no investigation had been done — against department policy.
The incident allegedly occurred the same day Malae was informed he wouldn’t be getting overtime that he had earned.
This alleged complaint wasn’t documented or filed, and Malae was given no notice of it and no opportunity to respond to it — as required by state law. When Malae said that such allegations should be investigated, Nikolai responded that there would be no investigation.
Nonetheless, Malae was “led to believe that he stood a good chance of getting promoted from the next successive Promotional List and should be ‘patient.’”
Criminal Cops and Cronies
Six months later retired captain Brian Gilbert was indicted in a criminal harassment conspiracy — Gilbert has pled guilty — where Gilbert and another retired SCPD officer, Phil Cooke, concocted a scheme to mislead the FBI and police in the case. The cover-up involved creating a phony Samoan “person of interest” in Santa Clara and using SCPD contacts — a “friendly” — in the scheme.
When Malae asked Nikolai and police union president Alex Torke to condemn this conduct in a public statement, Torke said “he was satisfied with the Department’s response.”
Gilbert and Cooke’s choosing a Samoan identity for their smokescreen was striking to Malae. He “believed that Gilbert had…. tapped into a prejudice about Samoans,” the complaint says. It was “evidence of racism that currently infected SCPD.”
The next day, Malae saw that Gilbert’s photograph was prominently displayed on the SCPD Legacy Wall and asked Nikolai to take it down. “Nikolai refused. He said, ‘When there’s a conviction.’”
Malae then contacted Assistant Chief Derek Rush, who told him Gilbert’s photo would be removed. (Assistant Chiefs are employees of the City Manager, not Chief Nikolai).
About 10 days after Malae brought up the Gilbert issue to Nikolai, the Promotional List was eliminated, stymying the officer’s chance for a promotion.
On August 26, Captain Cummins told Malae he wouldn’t be getting overtime that he had earned — and the grant that funded it was allowed to expire with $40,000 unused.
“By speaking out about the systemic racism at SCPD and criticizing SCPD for failing to speak out about racism” Malae “was speaking out, as a private citizen…on matters of public concern, and, thus was engaged in protected speech,” said the complaint.
“As a direct result” of SCPD management’s conduct, the complaint continues, Malae was “damaged by loss of earnings and earning capacity, impairment of his ability to obtain employment within his profession, damage to his reputation…and extreme emotional distress.”
Malae is asking for compensatory damages of at least $3 million; past, present and future wage losses; punitive damages against the City, Nikolai and Cummins; and attorney’s fees.
An initial hearing is scheduled June 2 at 10 a.m. in San Jose U.S. District Court. Information about federal cases can be found at PACER.gov.
