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Asian Pacific Police Officer Charges Santa Clara Police Department With Discrimination and Retaliation

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.

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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.

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8 Comments
  1. Davy L. 4 months ago
    Reply

    I strongly advocate that we convince Jacob Malae to run for the office of our next Chief of Police. Granted he is only a “sergeant” but he seems to possess the intelligence, wisdom, willingness and determination to correct the many problems he has observed in our current Police Department. As for our current Chief of Police, Patrick Nikolai, well, he ought to be reprimanded and later voted out of office.

    • CSC 4 months ago
      Reply

      According to publicly available databases, it doesn’t appear Malae lives in the City of Santa Clara. Santa Clara is the only city in California that currently elects its police chief and one of the requirements is that a candidate live within the city at the time of candidacy. Aside from that, Malae and any other current Santa Clara police officer likely would not be a good candidate going forward that residents deserve. He openly spoke out against youth excercising their First Amendment rights by kneeling during the National Anthem at a high school football game and he was part of the Santa Clara Police Officers Association who unanimously voted to submit a letter to the 49ers demanding Colin Kaepernick be terminated for speaking out against police misconduct and excessive force. The Santa Clara City Council needs to start looking at amending city charter to vett and hire a police chief instead of voting for one.

  2. CSC 4 months ago
    Reply

    Sergeant Malae’s attorneys, and potential outside investigators, should look deeper at the claim of retaliation. In 2001, Malae was one of just a handful of officers who complained about a fellow officer, David Rodriguez, who they accused of excessive force. Rodriguez was ultimately terminated, lost an appeal to a civil service commission, and subsequently lost a state appeal. In 2010, Malae was also the supervisor who Deger lied to about an absense during an “evolving major investigation.” That complaint was also sustained and disciplinary actions handed down by the city manager and director of human resources. Of all the ethnicities Brian Gilbert and Phil Cooke could have thought of to frame an alibi on, why Samoan? Santa Clara doesn’t have a very larege Samoan population, in fact outside of Jacob Malae and his father, Pete, there aren’t very many at all who live and/or work int he City of Santa Clara. It wouldn’t surprise us if Gilbert, Cooke, Nikolai, Deger, and Greg Hill – among others – remember Malae as being of the very few Santa Clara officers who turned in another officer for policy violations.

  3. James C Rowen 4 months ago
    Reply

    Well, Sanra Clara’s QAnon blogger Haugh can’t save them

    • mrhmyers 4 months ago
      Reply

      CSC, I had my doubts about Jacob but he sounds like my kind of guy. Thanks for pointing out his strengths. Kneeling instead of standing for the anthem is not something that should be lauded. I applaud Jacob’s stand.
      That doesn’t mean I pretend to know anything about any actual or perceived racism, just appreciate you pointing that out. Whoever csc is.

    • mrhmyers 4 months ago
      Reply

      Mr. Rowen, OMG, have not heard from you in a long time. I can see you haven’t change. Thanks for the chuckles.

  4. CSC 4 months ago
    Reply

    One doesn’t have to like others burning the American flag to acknowledge the U.S. Supreme Court affirmed it is protected under the First Amendment: https://constitutioncenter.org/blog/inside-the-supreme-courts-flag-burning-decision/

    One doesn’t have to like civilian owned firearms to acknowledge the U.S. Supreme Court affirmed a citizen’s right to bear arms. https://www.loc.gov/law/help/second-amendment.php#:~:text=In%20its%20June%2026%20decision,or%20locked%20violate%20this%20right.

    One doesn’t have to like someone falsely claiming to be a decorated military veteran to acknowledge the U.S. Supreme Court has ruled these type invalid claims are protected free speech, again under the First Amendment. https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-us-v-alvarez

    And one doesn’t have to like a police officer who (a) allegedly stands in honor for an anthem of “home of the free and the brave” while (b), at the same time, refuses for decades to speak out about departmental racism and injustice (according to his Federally filed complaint).

  5. TMoney 3 months ago
    Reply

    “Refuses for decades to speak out about departmental racism…”

    Taking this same notion, for those whom have been raped or assaulted and lived decades without a voice, only to find it years later, shall they be condemned for their timeliness?

    SCPD is a good ole’ boys club. It promotes those who have postured and stroked the egos of their predecessor. The chosen are groomed to take command or elevated for a timely pension grab. Those on the fringe don’t have a voice or risk career suicide should they speak up. It’s easy to back seat quarterback the actions of another, but guys like Sgt Malae have a family to raise that depend on him. The early-mid career boat rock isn’t very appealing no matter the career; he is too smart and has too much pride to sell his soul and posture. Moreover, Malae took enough boot stomps from spineless co-workers who tried to protect and failed to see the actions of an overzealous and reckless officer (David Rodriguez). Malae’s father was idolized and held on a pedestal. He was iconic in the eyes of those that worked with him. After consulting with his father, a 30 year veteran of the PD, Malae spoke in truth and in conflict of many peers and reported what was right and dutiful. He took career and workplace punishment and was exiled for a good portion of his career. Lodge was NO help and allowed for a hostile work environment (including officers refusing to respond to calls for service or backing up Malae in the performance of their job).

    Malae has been noted for his opposition to Colin Kaepernick’s actions and those of his student athletes. Given a proper platform and opportunity to explain (neither of which has been provided) it would be understood he is not in opposition to one’s freedom of speech, but in full opposition of how each scenario played out. This comes from a perspective not just as a police officer, but as a former football athlete, a coach, mentor, parent, community member, and alumni. His opposition to either was not brash or immediate, it was thoughtful, calculated and with heavy consideration.

    There is systemic racism at SCPD. I’ve witnessed it first hand amongst officers, supervisors, on calls, within carefully constructed reports, off duty, or at “choir practice”. It’s very much alive, but more so is the grooming and manipulation of oral and written tests, shoulder taps, specialized assignments and task force candidates. It didn’t matter if it was Lodge, Kyle, Sellers, Nikolai, or soon to be Morgan (grooming in process), they’ve all had their favorites and found a place for their chosen to land successfully, despite their qualifications (or lack there of). In most or many of these cases, it’s been caucasian males.

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