A city-employed gardener claims he was unfairly chastised at work for letting the grass at a San Francisco baseball field turn brown despite calls for under-watering because of the drought, among other offenses.
Byron Gill appeared in San Francisco Superior Court Wednesday, ahead of the start of jury selection today in his civil trial alleging he faced retaliation for filing a claim that, as a black man, he was discriminated against by the Recreation and Park Department.
While his case emerged from a discrimination claim, the trial will deal only with the allegation of retaliation.
Gill has worked for San Francisco for three decades, mostly helping to ensure San Francisco’s parks are clean and green as a gardener for the Recreation and Park Department.
City attorneys have argued that San Francisco neither discriminated against him nor mistreated him for filing a claim of discrimination with the Department of Fair Employment and Housing. Instead, Gill was disciplined for repeatedly failing to do his job and insubordination after he did not get a job he wanted.
The issues began, Gill alleges, when he applied for a promotion in 2011 as head gardener for the parks in the Mission district. He figured his chances were not bad since he’d filled in for the head gardener when he was out of town. But he did not get the job, which remained unfilled.
Then, in 2013, another employee was “tapped” for the position. She’d been with The City for two years and was trained by Gill, who wasn’t even aware the position was open.
While Gill is black, the woman who was promoted over him, Michelle Pallavicini, is white. Gill filed a discrimination claim on May 6, 2013.
The City contends that the position was not a civil service position, and therefore was not open to all. Instead, the job had been negotiated through the union as a position the department appointed. And while Pallavicini had only been with The City for a short period, she had extensive, award-winning private gardening experience.
Soon after his claim, Gill’s lawsuit contends, he started to be treated differently.
Up until 2013 Gill had a history of glowing performance reports, said his lawyer Gregory Brock. That changed when a series of disciplinary actions began, according to the lawsuit. Gill contends they were in retaliation for his claims of mistreatment.
First, the department truck he’d been using to get to each work site was taken, said Brock. Then Gill was dinged for driving his own car to and from work sites. (Several years ago a department employee ran over a woman and her baby, increasing pressure on the department to ensure safety around vehicles in parks). Then, Gill was disciplined for parking his car on park grass, which was reportedly a common practice among park staff.
In his last discipline matter from earlier this year, Gill was dinged for letting some grass turn brown at a baseball field in James Rolph Jr. Playground, even though the department has called for a reduction in water use since the drought, said Brock.
But Gill’s performance review lists a litany of work-related issues. Gill was insubordinate, and had not edged, irrigated or mowed the field, according to the review, which also says he failed to properly clean his tools, socialized with park patrons too often, and was unjustifiably absent from the work site on several occasions.
Still, Brock says Gill was singled out and was even denied a transfer.
“They are technical violations of the rules, but they are not being imposed on anyone else,” said Brock of the punishment his client faces. “This is highly unusual.”
The City has argued that his performance review just after his claim was filed, which listed positive performance, is evidence that no retaliation was occurring.
Gill is set to be put on a 20 day suspension soon. The suspension is set to start next month on or near the date of the civil trial in San Francisco Superior Court.