Austin employee’s gender, racial discrimination lawsuit headed to trial



Highlights

Engineer in Water Protection Department sues after another person got promotion and three whites got raises.

Discord included secretly recorded meeting, allegations of shouting and an internal investigation.

City says one who got promotion had skills that better matched the position.

Wanting to move up the ladder at Austin’s Watershed Protection Department, engineer Mapi Vigil approached her boss for mentorship, learned about “boundaryless perspective” and other traits city executives are supposed to have, and applied for a higher position that opened in 2011.

Vigil did not get the job. The city first selected a candidate who worked for another Texas city, but upon discovering he had used his government-owned computer to view pornography, decided to go with another internal applicant, engineer Jose Guerrero.

About the same time, the department was reorganized. Vigil, who is from Nicaragua, did not receive a salary adjustment, but three white employees got raises.

After a turn of events including a secretly recorded meeting, allegations of behind-closed-doors shouting and an internal investigation, Vigil in 2013 filed a lawsuit, which is scheduled for trial Monday in Travis County district court.

Vigil’s lawsuit alleges she was discriminated against on the basis of national origin and gender. The lawsuit also says Vigil faced retaliation from the city after she complained of discrimination, such as having 90 percent of her responsibilities taken away.

The city said there is no evidence national origin or gender factored into the actions of the Watershed Protection Department, which was headed by an Asian woman at the time. The city also said it is “pure speculation” that Vigil faced retaliation.

A judge last year rejected the city’s request to dismiss the case.

It’s unusual for a discrimination complaint filed by a city of Austin employee to result in a lawsuit, which can involve having the money to hire an attorney. From 162 discrimination charges filed between 2010 and 2015, there were five lawsuits filed, a city memo said.

This particular lawsuit touches on broader concerns that have been raised about the low number of women, compared with men, in the highest ranks of city government.

The lawsuit also pulls back the curtain on the city department that has been in the spotlight over the past three years for its role in the buyouts of homes devastated by flooding, providing an inside glimpse at the relationships between some of the department’s top employees.

Through her lawyer, Vigil declined to comment. Attorneys for the city also declined to be interviewed.

Qualifications in dispute

Since an employer “typically has not said, ‘I’m doing this for some illicit reason,’ ” Vigil will need to compile convincing circumstantial evidence if she is to prevail, said Bruce Griggs, a lawyer for Ogletree Deakins who manages the firm’s labor and employment practice in Austin. The most common example is showing that an employer gave reasons for making an employment decision that other evidence contradicts, Griggs said.

In legal filings, the city said that both Vigil and Guerrero — who was appointed to the position for which both had applied, assistant director of watershed engineering and field operations — have worked for the city since the 1980s and have degrees in civil engineering.

The panel that chose Guerrero, which included then-Watershed Protection Department Director Victoria Li (who has since retired) and current director Joe Pantalion, selected him because his skills better matched the position, the city said. Guerrero had experience in the field operations division, and the panel thought he was better at making public presentations, the city said.

Vigil responded in a filing that said Li justified hiring Guerrero by referring to his experience supervising up to 75 staffers in field operations, but Guerrero testified during a deposition that he had supervised only a “handful” of employees. An affidavit from a former department public information specialist cited an interview Guerrero did that she called “dreadful.”

The city also said the three employees who received raises when Vigil did not took on significantly more responsibilities after the departmental reorganization.

Vigil said she did gain additional responsibility: coordinating with the city’s One-Stop Shop for development on drainage review. One employee who received a raise had a duty taken away during the reorganization, and another employee gained a new responsibility commensurate with Vigil’s, she said.

The secret recording

After Vigil met with Li to share her concerns, Vigil received a written reprimand and was placed on a two-day administrative leave, she said in a filing.

The city said Vigil acted “unprofessionally, thus leading to the disciplinary action.” Pantalion and another employee testified hearing Vigil yell during the meeting, the city said.

Vigil’s lawsuit said she secretly recorded the conversation, showing that “though at times Ms. Vigil spoke in an emphatic manner, she did not raise her voice.” Another legal filing said that Li ordered an investigation of Vigil, and that at the request of higher-ups, an investigator changed her findings from “inconclusive” to saying that Vigil had violated city policy during the meeting.

Now Vigil works in what a legal filing calls a “dead-end job that is set to expire in the coming months” in the city’s buyout office, supervising only two employees after previously managing 37. Starting with Li’s disciplinary action, Vigil has been the victim of “continuous and relentless” retaliation, a legal filing said.

The city said its personnel decisions were made for other reasons, such as “to fulfill business needs of the department.”



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