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Settlement in Discrimination Lawsuit Against SCPD Chief Delayed at City’s Request

Santa Clara has asked a federal court to postpone a final settlement meeting in a police department discrimination and retaliation lawsuit until mid-November. Even though the parties agreed on terms in May, a mid-November settlement means the details of what may be a million-dollar award won’t be released until after the election.

In 2020, Jacob Malae, a 22-year veteran of the department who is Samoan, was passed over for a promotion to Lieutenant despite being at the top of the promotion list. Police Chief Pat Nikolai told Malae that there had been a complaint that he was “threatening.”

Yet Malae had not been informed of any complaint. Nor had any investigation been done. Nor was there any formal documentation of this complaint — as required by state law.

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Malae further alleged that police management retaliated against him for speaking about racism in the department by denying him overtime pay and alleged that the department also fired a good friend of Malae’s for, in essence, being Malae’s friend. In 2008, Malae also testified against an officer, who was subsequently fired, in a police brutality case.

The Santa Clara police union took no action to support Malae or his friend.

In 2021, Malae filed a federal civil rights lawsuit alleging systematic and pervasive discrimination against non-White employees for promotions.

The suit names elected Police Chief Patrick Nikolai and Police Captain Todd Cummins and asked for “not less than” $3 million in damages. On May 18, the parties announced that they had reached a settlement agreement and the judge set Oct.14 for a final settlement meeting.

The settlement is likely to be sizable. Just in the last two years, there have been multi-million-dollar awards in police department discrimination cases in Virginia and Maryland. Earlier this month a female pilot in the New Mexico State Police received a $750,000 settlement in a workplace discrimination lawsuit.

When asked why the City asked to postpone the hearing until November, the City Attorney’s Office replied that it cannot comment on pending litigation.

There’s a curious point of contact between this case and the 2020 eBay harassment case, where members of eBay’s security team — including two retired Santa Clara police officers, Brian Gilbert and Phil Cooke — conducted a harassment and cyberstalking campaign against Massachusetts publishers of an online business publication that criticized eBay.

Part of the plan was to create a fake “person of interest” to mislead law enforcement. This phony “person of interest” was a Samoan online troll, and was to be linked to gift cards purchased in Santa Clara that financed the harassment campaign. Part of the cover-up plan was lining up a “friendly” in SCPD they could “control.”

Gilbert and Cooke began discussing the cover-up scheme and the fake Samoan “person of interest” in mid-August 2019. The complaint about being “threatening” was made against Malae in September 2019.

In 2020, former City Manager Deanna Santana promised an investigation of whether the police department had been compromised. However, no investigation was ever pursued to anyone’s knowledge.

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30 Comments
  1. Buchser Alum 1 month ago
    Reply

    In addition to being a terrible waste of taxpayer money it is also a shame that this lawsuit will be settled and we will not learn more details to better understand Malae’s allegations of racism and retaliation within SCPD. SCPD and virtually all police departments are boys clubs that are usually rife with racism and sexism and homophobia and corruption. SCPD has had a reputation of having these common problems for decades. SCPD and almost all other police departments in the area and nationwide need cleaning up.

    Phil Cooke and Brian Gilbert tarnished our city by association with their criminal conspiracy. It is outrageous that we must continue to pay into their retirement pensions.

    I hope Malae is satisfied with however his case turns out but more so I hope that SCPD and police departments in general get cleaned up.

    • SC Booster 1 month ago
      Reply

      SCPD does not have a ‘reputation of’ racism, sexism, and homophobia. That is patently ridiculous and counter to all evidence. SCPD has for decades both hired and promoted persons of both genders and of various races and religions and sexual orientations. SCPD has had several openly gay and lesbian officers, some of whom reached the level of lieutenant and above. SCPD has had and does have many minority officers, including officers promoted to high rank, currently including one of the Assistant Chiefs. I do not know anything about the details of Malae’s situation; it is certainly possible that there can be bad actors in any organization and whether he is correct or not about his claims I leave up to others to determine. I comment only to note how deplorable it is to make such easily disprovable blanket accusations as the one you made.

      • Davy L 1 month ago
        Reply

        What you have stated may have been very true and accurate in the past, but this lawsuit applies only to the current SCPD as it is today.

      • Buchser Alum 1 month ago
        Reply

        SC Booster,

        The current command staff is fairly diverse but I am talking about the entire history of the department and that of other departments and not singling out SCPD in particular.

        Including the current command staff how many of SCPD’s chiefs or assistant chiefs or captains have been non white? How many have been women because I believe that there has only ever been one woman who made captain before captain Lagergren in the entire history of the SCPD.

        Out of all the lieutenants in the department how many are non white? How many are women? How many non white and female lieutenants have there been? How many openly homosexual lieutenants have there been?

        Please feel free to share all the “evidence” you have to know that SCPD has not been historically characterized by the same types of discriminations that are endemic to all police departments and most large organizations over their history.

        • SC Booster 1 month ago
          Reply

          How many non white or female applicants have there been? Where is the evidence that anyone in the last twenty years was passed over based upon race, gender, religion, sexual orientation, or anything other than their work performance and testing outcomes? Are you simply assuming that any disparate outcome can have no other explanation aside from intentional malice based upon discrimination? What business is it of anyone to even know someone’s sexual orientation in the first place? Nevertheless there HAVE been openly homosexual lieutenants and even captains. We DO have a minority assistant chief of police who is also muslim. How did he get there? Did he just fall out of the sky, or has he been working his way up the command chain this whole time – precisely during the time you claim the department was ‘racist, homophobic, and sexist’? I can’t account for anything more than about twenty years ago because I didn’t live here before then and paid no attention to our department. But I can say that from the officers I see on our streets and their sergeants and lieutenants that ‘racism’ and ‘sexism’ are simply not fair accusations to be making. More importantly it’s very telling that you level this as a general complaint at all policing as well. You can’t possibly have the data to prove that point; but even if you did, trying to take a generalized complaint and apply it to a specific department is just as flawed as looking at a smaller segment and trying to generalize it out to a larger group. At the very least, it is YOUR job to prove your accusations, not anyone else’s job to disprove them; but I have provided examples that directly contradict your erroneous conclusion. Finally, I leave it where you should leave it: Up to the voters. If the voters of our city want to vote in any person of any origin or inclination as chief, we are free to do so. So far as I can tell up til now we’ve been voting in people based upon how we think they might benefit the city, rather than out of any concern for their plumbing or their inclinations or the color of their skin. I suspect very strongly that is exactly how they are making their decisions inside that department, too.

          • Davy L 1 month ago

            Malae’s lawsuit alleges “systematic and pervasive discrimination against non-White employees for promotions”. If this is a “false” allegation or an insignificant matter, why didn’t our City offer a defense and save the millions of dollars? That’s our money they’re giving away.

          • Buchser Alum 1 month ago

            SC Booster,

            I think that it is quite clear that police departments throughout our country are at least as prone to discrimination within their administrations as all large organizations. Homophobia and misogyny and racism have been inherent to our society in general and no large organization is exempt from this historically and certainly not a police department.

            I think it is naive to believe that these have not been problems within the SCPD across its long history as an organization or that they are not issues even now in the year 2022.

          • Davy L 1 month ago

            What’s troubling is that our Police Dept needs to make some necessary changes soon. If not, this problem will be repeated. What’s stopping another minority member of our police force to make a similar accusation and filing a similar lawsuit in the immediate future? More payouts from our City?

    • Davy L 1 month ago
      Reply

      I assume our City settled as they fear the trial is likely to be more costly in dollars and may also result in demand changes to be made and shown by our police department under the threat of further penalties.

  2. Carolyn Schuk 1 month ago
    Reply

    The Malae case docs can be found at pacer.gov, 5:21-cv-1453. There’s a link to download the original complaint here:
    https://www.svvoice.com/asian-pacific-police-officer-charges-santa-clara-police-department-with-discrimination-and-retaliation/
    When the case is settled, the city has to report the settlement details publicly, so eventually we’ll know. Thanks for being a reader:)

  3. Buchser Alum 1 month ago
    Reply

    Carolyn,

    Thank you for the link to the other article with the link to Malae’s complaint. Do you know of any sort of public response by the SCPD or has there been no such thing?

    I would imagine that the settlement details will be public but details on the settlement will be minimal and there will be no admission of fault and we will learn very little from it. And terms of the settlement will prohibit Malae from speaking further about the case or disparaging SCPD at least with regard to the specific matters in his complaint.

    The fact that the SCPOA has done nothing to help Malae in these matters is very disappointing and also not surprising at all.

  4. Carolyn Schuk 1 month ago
    Reply

    I do not. The litigants aren’t going to talk about the case while it’s still in litigation. We’ll just have to wait and see.

  5. Davy L 1 month ago
    Reply

    I am in total agreement with CSC. Our Chief of Police should be an appointed position similar to our City Manager and City Attorney. Our City needs to have the best available Chief of Police and we should not limit our choice to their being a resident of our City. Also by being appointed will take away the politics from this position. Our Chief of Police should have no responsibility to write to the County District Attorney’s office and register a complaint concerning our Council. That is not his function or duty. I suggest our Council place a ballot issue on this matter, and let our voters decide.

    • Buchser Alum 1 month ago
      Reply

      Davy,

      There is no such thing as “take away politics from this position.” If the chief is elected as ours is then it is a political position and the chief is answerable to a majority of the voters of Santa Clara. If the chief is appointed by the city council then it is a political position and the chief is answerable to a majority of the city council.

      Being able to expand the pool of potential police chiefs beyond residents of Santa Clara makes sense. But to achieve this we do not have to turn it into an appointed position. We could just remove the requirement that a candidate be a resident and elector. Allow non residents to run for police chief.

      We could also allow non residents to run for police chief with the requirement that they establish residency within the city of Santa Clara within a certain period of time following their election.

      • Davy L 1 month ago
        Reply

        What you’ve suggested, won’t work. It’s too costly (thousands and thousands of dollars) for any outside candidate to enter a city-wide election campaign. Especially for a position that is not very high paying. Not only that, but the person elected may not really be a good choice for our city. The Chief of Police is as important a position as our City Attorney. That person needs to be vetted and examine critically for faults before acquiring the position. That can only be done through a careful and thorough selection process. And should a problem later occur, then similar to what took place with Santana and Doyle, that person can be fired and replaced.

        • Buchser Alum 1 month ago
          Reply

          You do not have to type so much you could just state your bottom line which so far in all matters has been “I want whatever the Forty Niners and Anthony Becker want so I want the chief of police to be appointed by the city council that the Forty Niners paid millions of dollars to get elected.”

          I do not have a problem with the chief of police being appointed by the city council by the way. But I do worry about whether or not this push to change the city charter to make the chief appointed is about getting someone accommodating to the Forty Niners in control of the department because they can influence or determine what is billed to the Forty Niners for stadium public safety operations.

          If it is only about getting specifically Pat Nikolai out because they see him as a political opponent that is much less of a concern to me. In any case I would like to see a change made to consider candidates who are not residents or electors of Santa Clara.

          You may not know this since you say you did not pay attention to Santa Clara politics until 2020 but the office of police chief was part of the dispute with the Forty Niners over stadium finances. The question being whether or not public resources were used without full compensation.

          And you are wrong about police chief elections not being competitive. The race in 2016 between Sellers and Nikolai was competitive and close. You are also wrong that the SCPOA chooses who will be elected as police chief. The sworn officers of the SCPD voted no confidence on Sellers and backed Nikolai in 2016 and Sellers won. With Forty Niners support.

          • Davy L 1 month ago

            I am sorry, but you are wrong to think I support the 49ers and their foolish spending. I do not. You are also wrong to suggest I am a diehard supporter of Becker. I am not. But I do support Becker since I feel he is a much better choice than Gillmor. In most elections, you only have a limited choice between one or the other. So, for this election, my choice is Becker. But you are correct in stating that I so not know Sellers. As I’ve stated earlier, to have an outsider run against the Police PAC choice would be too costly for any outsider to consider.

          • Buchser Alum 1 month ago

            Davy,

            You wrote: “But you are correct in stating that I so not know Sellers. As I’ve stated earlier, to have an outsider run against the Police PAC choice would be too costly for any outsider to consider.”

            This is why I was trying to tell you about the 2016 race for police chief between Sellers and Nikolai. Nikolai was the choice of the officers in the force through the SCPOA and Sellers was not. But Sellers had the backing of the Forty Niners.

            Sellers won and so no it is not too costly for someone to run against the SCPOA’s favored candidate if they have the backing of the Forty Niners.

          • Davy L 1 month ago

            As stated earlier, I do not know Sellers. I also do not know Nikolai well either. However, since his recent siding with Lisa over the Civil Jury report, I would tend to not favor him over Sellers. Ok, you’re going to insist again that my reasoning is due to the 49ers support. But no, it is not. My reasoning has more to do with replacing Lisa Gillmor.

      • Davy L 1 month ago
        Reply

        Under our current system, our Police PAC selects its candidate to run for Chief of Police. That person runs unopposed and is elected. That is a lot worse than what CSC and I are proposing. First, the Police PAC is not an elected body. So, what is worse, having our Chief of Police selected by an unelected PAC or having our Chief of Police selected by our City Council which is an elected body?

      • CSC 1 month ago
        Reply

        Buchser Alum: A police officer working his/her way through the supervisory ranks, obtaining higher education and certification, rarely thinks about the prospect of having to take time off of work to go run a political campaign tens, hundreds, or thousands of miles away just for an opportunity to interview for a chief of police job. Look at the money raised by two relatively local guys, Jensen and Jonsen – $730k and $110k respectively just to compete. https://www.paloaltoonline.com/news/2022/10/07/big-money-flows-in-to-santa-clara-county-sheriff-race
        .
        In 2021, San Jose Police Department interviewed at least half-dozen candidates, including four internally, for the job of Police Chief. None had to trade favors to gain political allies and none had to raise significant amounts of money. There’s no valid reason for Santa Clara to have an elected police chief, it doesn’t benefit residents, and there’s not a SCPD officer living in Santa Clara that we’d want as a future police chief anyhow.

        • Davy L 1 month ago
          Reply

          CSC:
          Thank you so much for your comments to “Buchser Alum”. As usual, I am totally in agreement with you. You express your comments a lot better and more knowledgeably than I ever could. Here’s hoping our Council shall finally be willing to put up a ballot issue before our voters to having our Chief of Police no longer an elected position but rather chosen in a similar manner as our City Manger and City Attorney by our Council Members.

        • Buchser Alum 1 month ago
          Reply

          CSC,

          You bring up good points and I agree that requirement that our police chief be elected and be a resident and elector in order to be eligible for election will limit candidates who could otherwise be recruited. And limiting candidates by definition will restrict the quality of choices.

          I am not against amending the city charger and changing selection of our police chief from public election to appointment.

          I am only concerned about the appointment being done by the same council bloc that has been behaving in a way that creates questions about whether they are completely serving the public interest or if they sometimes serve the Forty Niners interests.

          I am concerned about the potential for installing a police chief who will not seek full compensation for use of SCPD resources in supporting public safety operations at the stadium.

          • Davy L 1 month ago

            Our Council was elected by our City voters. Unfortunately, your concerns may not match the concerns of our City voters.

  6. CSC 1 month ago
    Reply

    When this suit made local headlines in 2021, there were a few signs it was more of a pension shakedown than a complaint made to eradicate systemic racism from the police department. In the official court filing, no officers, supervisors, or managers were enumerated except to suggest that Nikolai wasn’t the highest qualified sergeant to be promoted to lieutenant. The complaint does list Paul Lozada as an officer allegedly terminated for associating with Malae but listing Lozada was not a risk to negotiating Malae’s future settlement as Lozada was only a part time, per-diem officer working special events (49ers games) from 2016-2020 – far from being a full time member of SCPOA. https://www.youtube.com/watch?v=aVAxfoI6kMg
    .
    Through the discovery process, people accused of wrongdoing (racism in this case) should have been called in to testify. If no evidence of racism surfaced during those proceedings, the City of Santa Clara would have likely petitioned the court to dismiss Malae’s claim with prejudice. If indication of ethnic bias or racism existed, a settlement makes sense. However, that settlement will likely come with stipulation that the City, Nikolai, Cummins, or others never admit to the decades long systemic racism Malae claims and Malae can never name any of them. If that’s the case, Malae gets a wad of cash and residents are forced to keep systemic racism in the police force.
    .
    That’s too bad, if Malae’s accusations were as true as everyone suspects they are, he could have (i) probably been compensated and (ii) possibly improved the future of the department he and his father once served. Just like all other problems at the City of Santa Clara and SCPD, no investigation and no change.

    • Buchser Alum 1 month ago
      Reply

      CSC,

      Thank you for the additional information and explanation. If Malae only filed his lawsuit in 2021 then I wonder if they actually got into discovery.

      • CSC 1 month ago
        Reply

        According to PACER history of events, it doesn’t look like it. If Malae’s allegations had any truth to them, Nikolai, Cummins, SCPOA, and the City would want to extinquish the fire before any testimony was recorded. That, of course, is assuming the powers that be wanted to bury all accusations and claims. If Nikolai, Cummins, and the City wanted to vindicate themselves from unsubstantiated claims from an insider, they would have pressed Malae through depositions, asked an independent agency to complete an internal investigation, and cleared their names.

        • Davy L 1 month ago
          Reply

          CSC,
          Thank you for all the news and information. It would have been very interesting had Malae refused the settlement, and insisted that the case continued on to trial.

  7. CSC 1 month ago
    Reply

    Regardless if this matter is settled or had gone through trial, a complaint should always be investigated by an independent body. The Santa Clara Police Department has one of the worst complaint compliance ratings issued by national non-profit, OpenPolice.org. https://www.openpolice.org/dept/CA-santa-clara-police-dept
    .
    To comply with California Penal Code 832.5(a)(1) and its own policies, the City of Santa Clara is supposed to update complainants every thirty days on status of complaints. Once completed, there are five options to determine findings: (a) No Finding, (b) Unfounded, (c) Exonerated, (d) Not Sustained, or (e) Sustained. It’s understandable that results from an independent investigation might be withheld until open legal matters have been concluded, but the City of Santa Clara should always complete an internal investigation or hire an independent auditor to investigate in matters where there is conflict of interest. https://www.santaclaraca.gov/our-city/departments-g-z/police-department/about-us/commendations-inquiries-or-complaints
    .
    The city can start with Malae’s claims, look into any questionable cases handled by Phil Cooke and Brian Gilbert, and certainly look into these open complaints yet to be investigated:
    ♦ City of Santa Clara: http://www.complaintsantaclara.com/wp-content/uploads/2015/07/Complaint-City-of-Santa-Clara-and-SCPD-redacted.pdf
    ♦ Kazem: https://www.complaintsantaclara.com/?page_id=521
    ♦ Rush: http://www.complaintsantaclara.com/wp-content/uploads/2015/07/Complaint-Rush-redacted.pdf
    ♦ Deger: http://www.complaintsantaclara.com/wp-content/uploads/2015/07/Complaint-Deger-redacted.pdf
    ♦ Schneider: http://www.complaintsantaclara.com/wp-content/uploads/2015/07/Complaint-Schneider-redacted.pdf
    .
    If mayoral candidate Becker is smart, in the name of transparency, accountability, and reform he’ll demand completion of all open complaints in the next city council meeting. Having the endorsement of SCPOA, Gillmor will likely sqwirm uncomfortably in her seat.

    • Davy L 1 month ago
      Reply

      CSC,
      Thank you for your findings and recommendations. It’s time to give Gillmor the boot.

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