Everett settles cop’s discrimination lawsuit for $549,000

Officer and Lake Stevens Mayor Brett Gailey said he wasn’t promoted because of his military status.

Brett Gailey

Brett Gailey

EVERETT — The city of Everett has settled a civil lawsuit for $549,000 with a veteran police officer who argued he was wrongfully and repeatedly passed over for promotions.

Brett Gailey, also the recently elected mayor of Lake Stevens, filed the civil lawsuit last June in U.S. District Court in Seattle. In the complaint, he alleged that the department discriminated against him because of his role with the U.S. National Guard, which often required him to miss days of work. As a result, according to Gailey, he never was given the rank of sergeant, even though he was first on the list to move up.

The city denied that it ever discriminated against Gailey because of his military status, but agreed to pay Gailey $357,000, including money to cash out his vacation and sick leave. The remaining $192,000 goes toward Gailey’s attorney fees. The Everett City Council approved the amount at a meeting last Wednesday.

City attorney David Hall said the agreed-upon sum was in part to recognize Gailey’s lost pension benefits and wages. In settling, the city is not admitting to any wrongdoing. Police Chief Dan Templeman called it a “mutually beneficial resolution that allows Mr. Gailey to move on from his employment as a police officer with the City of Everett.” His last day was May 1.

“It is never satisfying to pay any settlement, especially when we are confident that our decisions were correct and fair,” Templeman said in a statement. “Due to the uncertainty and potential distractions posed by lengthy litigation, however, I believe that this settlement agreement constitutes the most appropriate outcome in this particular case.”

Gailey said he could not comment due to the terms of the settlement. He was set to make a base wage of $98,640 as a police officer in 2020, according to city salary data provided to The Daily Herald. That doesn’t include any overtime or other bonuses Gailey may have accrued.

In his statement, Templeman said nearly one-third of Everett’s sworn officers are military veterans or active reservists, and that the department had an “unwavering commitment” to them.

“I personally have the deepest respect for, and value, the many military veterans we have employed at the Everett Police Department,” he said.

According to Gailey, his military status has been a point of contention ever since he was originally hired in 2004. Shortly after, he was involuntarily deployed to Iraq, and was told by then-police Chief Jim Scharf that his position wouldn’t be kept. However, Gailey convinced the department to hold his job.

When Gailey came back, toward the end of 2005, the department made him go through the interview process again. At one point after his return, a lieutenant remarked that Gailey was “the guy we should not have hired,” according to the complaint. On a separate occasion, a patrol sergeant allegedly said he thought of Gailey as a “trouble maker,” because he fought for his job when he was deployed. Later, Gailey said his absences due to military leave would become the butt of his supervisors’ jokes, as they allegedly called his time back “floating work days.”

In 2013, Gailey’s relationship with a sergeant soured after he went to Japan for military training, the complaint says. The sergeant reportedly confronted him about the time he took off for military leave, vacation and SWAT training.

In its response to the civil lawsuit, the city alleged that Gailey had treated his supervisor, a woman, with “open disrespect,” and often ignored her during meetings, instead speaking only to any male officers who were around.

“(The sergeant) had legitimate concerns about Gailey’s failure to attend to his core responsibilities while taking the maximum amount of vacation and devoting much of his time to optional side activities, such as SWAT,” attorneys wrote.

Gailey was removed from his position on the SWAT team in 2016 for allegedly missing too many days. During his 15 years with the department, Gailey alleged that he applied for several positions, but often wasn’t picked even though he was “more than qualified.” That included roles in the Criminal Intelligence Unit, the Sex Crimes Unit and as a school resource officer.

In 2017, Gailey was twice passed over for the role of sergeant, even as he ranked higher than those who were promoted. More officers were promoted to sergeant instead of Gailey in 2018. The city argued that he wasn’t promoted because of his “ongoing performance and conduct issues.”

Gailey called those explanations a “cover-up” for the department’s discrimination to active military members. He wrote that Templeman promoted other officers — who weren’t in the military — “even though they have done far worse, during the exact same time frame.”

The city noted five instances in which Gailey required coaching and counseling. The Daily Herald obtained summaries of those cases through a public records request:

February 16, 2014: Gailey drove through a red light at an intersection with Colby Avenue, with lights and siren activated, without making sure all lanes were clear, causing another vehicle to crash into his patrol car.

March 31, 2016: A supervisor was advised that Gailey failed to participate in his quarterly training and qualification with his duty weapon. His failure to participate “placed an undue burden on the Training Unit,” which had to open the range on an unscheduled date.

October 27, 2016: Gailey made a warrantless arrest on two women for failure to acquire a peddler’s license to sell goods, even though he was not there to witness any crime take place. Supervisors noted that Gailey did not appear to understand that he couldn’t arrest someone for investigation of a misdemeanor without a warrant, unless he saw the crime.

February 20, 2017: Gailey engaged in a pursuit against department policy. The suspect then made a reckless maneuver across six lanes of traffic and collided into two other vehicles. Gailey continued pursuing without checking on the two drivers who were struck. At one point during a followup meeting, Gailey reportedly said he should have just pulled into the Jack in the Box and ordered some food instead of waiting for the suspect to drive by. “Your comment suggests that you understand that positioning yourself to re-engage a fleeing vehicle without sufficient justification is not appropriate or consistent with policy,” a supervisor wrote.

April 17, 2018: A supervisor learned that Gailey had not written a report in a suspected case of vulnerable adult abuse that he was assigned to investigate. Gailey said he had forgotten about the referral.

In another case, a sergeant remeasured a knife that Gailey brought into evidence, and found that it was under the 3-inch limit to charge someone. The complaint says Gailey measured the knife again after meeting with the sergeant, and again found it to be longer than 3 inches.

The Daily Herald also has reviewed emails exchanged between the Department of Justice and city attorneys in 2018 regarding Gailey. U.S. attorneys had requested information from the city so they could determine whether to offer Gailey legal representation in a lawsuit.

In the correspondence, city attorneys wrote that Gailey “stood out as an experienced, well-spoken and articulate police officer with an ability to lead,” but that he ultimately wasn’t promoted based on his “consistent, documented performance deficiencies.” Compared to the other candidates, he consistently scored lower in his performance evaluations, and received several “improvement needed” ratings.

According to the attorneys, Gailey demonstrated poor performance related to decision making; adherence to policy and procedure; attention to detail in his reports; and application and interpretation of case law.

“Poor performance in even one of these critical job areas would be reason to not promote, but to consistently demonstrate poor performance in all four of them is of great concern, particularly for an officer who aspires to promotion to sergeant.”

Attorneys also wrote that Gailey was the only active duty military member or reservist in recent history to submit a complaint about discrimination against military personnel.

After reviewing the city’s responses, the Department of Justice chose not to represent Gailey.

Zachariah Bryan: 425-339-3431; zbryan@heraldnet.com. Twitter: @zachariahtb.

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