Jury Awards Nothing in Filner Harassment Case

     SAN DIEGO – A unanimous jury Wednesday found former San Diego Mayor Bob Filner did not intentionally touch a city employee’s breast or buttocks, and awarded the woman no damages.
     The jury was tasked to decide if Filner committed sexual battery and harassment and if damages should be awarded to city parks employee Stacy McKenzie. They deliberated for only two hours before finding Filner did not touch McKenzie on the breast or buttocks at an April 2013 event where she claimed Filner asked her on a date, put her in the now-famous “Filner headlock” and grazed her intimately.
     On the flip side, the jury did find McKenzie was subjected to unwanted harassment by Filner because she was a woman. The jury of eight men and four women, however, was split 10-2 over whether the harassment was severe.
     Filner waived his appearance and was not present at the verdict reading.
     McKenzie’s attorney Manuel Corrales told reporters that an interview with his client used as evidence during the trial made it unclear whether McKenzie was really touched by Filner. A coworker of McKenzie’s testified she did see Filner touch her on the breast, Corrales said.
     Because the incident occurred once, the jury found it did not rose to the level of pervasiveness needed to award damages, Corrales said.
     He also noted Filner’s absence, saying, “I think he thought the jury would find something against him and they did.”
     San Diego City Attorney Jan Goldsmith told reporters when sexual harassment allegations against Filner started stacking up more than two years ago, the city made a commitment to review each case individually and settled those cases where they felt there was evidence of harassment.
     Goldsmith called out McKenzie’s attorney Dan Gilleon – who is litigating the final two lawsuits against Filner and the city – for what she called a lack of evidence of harassment.
     “I would hope that Dan Gilleon would see to it that the other case should be dismissed. The reason we didn’t pay is because we didn’t agree with that,” Goldsmith said.
     The lone remaining lawsuit was filed by Marilyn McGaughy and is set to go to trial this May, according to the City Attorney’s Office.
     Deputy City Attorney George Schaefer said he thought McKenzie’s Facebook page, shown during the trial, was “compelling evidence because it showed that the plaintiff was not severely traumatized by what happened.”
     Closing arguments were heated Wednesday morning ahead of the verdict, as key facts were disputed including whether Filner actually touched McKenzie’s breasts and buttocks – a major point of contention brought up by lawyers representing both parties.
     Gilleon was soft-spoken when he delivered a harsh opening statement to the jury.
     “This case is about abuse of power by an arrogant man who turned out to be nothing more than a felon,” Gilleon said.
     It didn’t matter that McKenzie wasn’t on the clock the day she encountered Filner, Gilleon insisted. She was still in her work environment and went to the park event that day in that capacity.
     When that “creepy stranger” leered and grabbed McKenzie’s wrist and later laughed at her for turning red with embarrassment, Gilleon noted, Filner “was the most important employee in the city of San Diego.”
     Gilleon told the jury Filner intended to make offensive contact with McKenzie while in front of her coworkers.
     “When you pull in a woman from behind you have to be at least substantially certain that the most offensive part of your body will make contact with her buttocks,” Gilleon said.
     Two separate incidents happened that day, according to Gilleon. First, Filner went up to McKenzie and grabbed her wrist while asking her on a date. Then, he followed her across the field where he grabbed her from behind, putting her in the “Filner headlock.”
     Filner testified he does not remember meeting McKenzie. Gilleon called this “unbelievable,” claiming Filner was not taking responsibility for his actions.
     McKenzie was fearful in the months following her encounter with Filner – avoiding phone calls and the Civic Center building which houses the mayor’s office downtown – so as not to run into him, according to Gilleon.
     Filner’s position as a “Strong Mayor” meant he was also tasked with duties normally reserved for the city manager, including having the power to remove, transfer or fire any city employee or use his influence in personnel decisions made by department heads.
     “She had a lot to lose and was fearful of going back to poverty. She knew he was her supervisor,” Gilleon said.
     Two experts – a psychiatrist and psychologist – diagnosed McKenzie with Defensive Avoidance and both agreed she was damaged by Filner, Gilleon told the jury.
     Gilleon suggested to the jury that an award of $150,000 in damages for past suffering and $20,800 to cover future medical expenses, including two years of recommended therapy and other costs, was fair. But he told the jury they should determine a fair award for future suffering.
     When Schaefer took the floor representing Filner, he told the jury, “I find this very distasteful, talking about these kinds of things. But it’s part of my job.”
     He noted McKenzie originally filed a claim for $500,000 which was later rejected.
     Multiple statements given by McKenzie did not state she was touched on her breasts or buttocks by Filner, Schaefer noted, nor did she mention it during an interview with an investigator from the sheriff’s department.
     McKenzie’s transcript from that interview indicated she “didn’t feel he got a feel or anything.”
     Schaefer became more passionate as he delivered his closing argument, frequently gesticulating and throwing his arms in the air while raising his voice to emphasize his point.
     He disputed that McKenzie could have been easily fired by Filner, noting she was a classified employee.
     “How many people are lucky enough to work in the crown jewel of San Diego?” Schaefer told the jury.
     McKenzie did not work in a hostile work environment at her post at Balboa Park; rather, her supervisors and coworkers were supportive of her when they found out about her encounter with Filner, Schaefer said.
     San Diego has been ahead of the curve when it comes to sexual-harassment training and prevention, he added.
     “Look at what the city has done. It has, for decades before it was required, been training employees in sexual-harassment prevention,” Schaefer said.
     In an odd move, Schaefer showed the jury pictures McKenzie had posted to her Facebook page, including an unrelated photo from a Mardi Gras parade she attended a couple months before she encountered Filner in the park.
     Schaefer claimed the photo showed McKenzie was a “well-adjusted, happy person.”
     A second photo showed McKenzie and a friend wearing blue T-shirts that read “Please Resign Mayor Filner” from August 2013 – the month Filner did, in fact, resign.
     Schaefer suggested the fact that McKenzie made media appearances and went public with her story in calling for Filner’s resignation “does not fit the image of someone repressing what’s happened to them.”
     Gilleon got fired up over this during his rebuttal, defending McKenzie by saying she is “a person who has a tendency to go in a shell but struggles and fights against it.”
     He also addressed the city’s dispute over whether Filner had really touched her breast and buttocks.
     “In the city of San Diego, when the mayor puts his arm on top of your breast, apparently that’s not really your breast. You’ve got to be kidding me. What kind of message is that sending?” Gilleon boomed.
     Gilleon also poked holes at the city’s argument that the incident did not constitute workplace harassment since it happened on McKenzie’s day off.
     “This crown jewel city of San Diego said this can happen to a woman and she can do nothing about it if it happens on her day off. That’s absurd,” Gilleon said.

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