A Redondo Beach firefighter who admitted to groping four non-consenting women at a nightclub is suing the City of Redondo Beach, former Fire Chief Daniel Madrigal and other city officials for over $180,000 in lost wages and for a multitude of further damages after being temporarily terminated from his position with the fire department.
The case brings to light the stark contrast between what the city considers acceptable off-duty conduct of a firefighter and what the law seems to allow.
Andrew Yamamoto was charged with multiple counts of criminal sexual battery following the incident, at Busby’s nightclub in Los Angeles on January 8, 2011. In March of 2012, he was acquitted by a jury after his lawyers introduced an unconventional defense: they claimed that Yamamoto’s predatory behavior was a result of him, unknowingly, being administered a date rape drug. Still subject to internal disciplinary action, Yamamoto was fired from the Redondo Beach Fire Department on April 20, 2012.
Yamamoto responded by filing a wrongful termination claim. On December 18, 2013, he won an arbitration award ordering that the fire department reinstate him at a lower rank. Now Yamamoto is claiming damages resulting from his demotion in position, alleged mistreatment and discrimination. His case hinges upon a belief that he was fired, not for the sexual misconduct, but in retaliation for filing a worker’s compensation claim and for his active role in the firefighters’ union, the Redondo Beach Firefighters Association.
Yamamoto joined the Redondo Beach Fire Department in 2001 and immediately joined the Firefighters Association. In 2010, he was elected a board member of the union. In subsequent years, the relationship between the City and the Firefighters Association grew increasingly strained in the wake of pay cuts that employee unions at City Hall sought to have restored as the recession ended. In his lawsuit, Yamamoto accuses Madrigal of anti-union sentiment, statements and actions and refers to Madrigal’s “campaign of interfering with the Firefighters Union.” Yamamoto claims his termination was a retaliation for being an outspoken member of the union and filing union grievances.
“Mr. Yamamoto had reported to his superiors things such as safety issues and he exercised his rights to be involved in the union and to advocate on behalf of the union and…he had filed a worker’s comp case,” said Mark Pachowicz, Yamamoto’s lawyer. “The city wrongfully terminated him following his exercise of those rights. Since he did not knowingly engage in any wrongful conduct he obviously should never have been terminated for the reason stated by the City.”
Redondo Beach Firefighters Association President Brad Sweatt declined to comment on the case but made clear that the union was in full support of Yamamoto’s wrongful termination suit. City officials and Yamamoto likewise declined to comment.
While the termination documentation is not public record, Madrigal said during arbitration that the decision to terminate was based solely on Yamamoto’s sexual misconduct charges. He said that regardless of Yamamoto’s acquittal in the criminal trial, fire department employees are held to a higher standard. He said firefighters “hold a public trust” and are expected to comply with professional codes of conduct, even off duty, and noted that firefighters are on call 24 hours.
The incident in question is this: On January 8, 2011, Yamamoto attended a birthday party for the brother of fellow firefighter Jeremy Sistante at Busby’s nightclub. According to court documents, at the party Yamamoto became extremely intoxicated and groped four different women, unwelcomely, in the hours he spent at the club. He touched the stomach of one woman and grabbed the breasts, buttocks and vagina of three others. Yamamoto has never refuted the victims’ allegations; in fact, he admitted to the assaults in court. He was asked to leave the party and was driven home by Sistante.
The next day, Tania Kanapi, one of the victims, filed a complaint against Yamamoto with the Los Angeles Police Department. Two of the other victims joined the complaint.
Saira Angeles testified about the incident during the arbitration process.
Angeles said that she was dancing when she felt someone squeeze her buttocks. She said she felt someone grab her again a moment later and that, when she turned, Yamamoto was standing looking straight into her eyes with a smirk on his face. She testified that she told him to stop touching her and he jokingly put his hands up in the air as if he wasn’t doing it. A moment later, Angeles said she felt a third squeeze and that she turned again to see Yamamoto again looking at her with the same smirk. She said she yelled at him to stop and was so upset she left the dance floor.
Tania Kanapi also testified during arbitration.
“I felt an arm come around my body and grab my vagina really hard,” she said. When she turned, she saw Yamamoto. According to Kanapi, she asked Yamamoto what his problem was and he yelled, “I paid for this!” Kanapi said she was so upset that she left the party immediately and went home.
According his testimony, once Sistante caught wind of what was going on at the party he drove Yamamoto home to his wife, Allison, and told her that her husband had too much to drink.
On February 9, a month after the incident, Division Chief Paul Lepore received a call from the LAPD informing him of a criminal investigation against Yamamoto for possible sex crimes. By this point, two other victims from the nightclub had also joined the complaint.
On May 5, 2011, the Los Angeles City Attorney charged Yamamoto with six counts of battery: three counts of general battery and three counts of sexual battery.
According court records, the sexual battery charge Yamamoto faced was 243.4(e). California Penal Code 243.4(e) says, “Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceedin g six months, or by both that fine and imprisonment.”
Nineteen days after the incident at Busby’s, Yamamoto submitted a sample of his hair to ARCpoint Lab. The sample was then sent to ExperTox Lab in Texas to be tested for drugs. According to his lawyers, Yamamoto believed someone slipped a drug into one of his drinks at the party, and the drugs made him behave the way he did.
The lab confirmed a presence of doxylamine, an over-the-counter sedative that is found in antihistamines, Unisom and NyQuil. The drug is sometimes considered a date rape drug because it can cause a person to become extremely groggy, therefore vulnerable to an assault. The forensic toxicologist, Dr. Ernest Lykissa of ExTox, reported that he found the drug in Yamamoto’s hair at a level of 28,000 pg/mg, an impossibly high concentration. Lykissa, in later testimony, acknowledged that the number was actually 28 pg/mg.
This is not the first time Lykissa has made a factual error in date rape testing. Lykissa’s misreporting was responsible for having a case dismissed in San Mateo County in 2010.
A Redwood City man named John Sadek was charged with lewd and lascivious acts on a child under 14, cruelty to a child, domestic violence and poisoning after his estranged wife claimed he drugged her with GHB to molest their child. According to Sadek’s defense attorney, Geoff Carr, the prosecution used Lykissa’s lab to test a sample of Ms. Sadek’s hair. Lykissa returned test results that showed a GHB concentration so outlandishly high that it would kill a person. He came back with a lower number, saying he had accidentally added a digit.
Carr said few labs in the United States that are willing to test for date rape drugs. The defense team sent the hair sample to Europe to have it tested. The results came back negative twice. When the prosecution pressed Dr. Lykissa for an additional test on the hair, he provided a report, Carr said, that both the prosecution and defense believed to be outright falsified.
“It was so clumsily cut and pasted,” Carr said. “It was clear to both me and the prosecution that he had probably falsified it. It proved to me what I’d been saying for a long time: this lab had fraudulent results.”
The results were deemed false and the prosecutor dismissed the entire case.
“We were the first lawyers to really uncover Lykissa’s practices,” said Carr. “To be honest, I think he should have been prosecuted for this. Since then, I have received at least five calls from lawyers all over the country who have had similar experiences with this guy.”
Yamamoto’s defense hinged on a reversal of the common date rape drug story: his lawyers claimed he was drugged and, as a result, became not a victim but a perpetrator. He claims he did not knowingly touch the women because he was not in sound mind.
“Our defense expert testified that, in regards to mixing drugs with alcohol, one plus one equals three,” Pachowicz said. “[Yamamoto] has never done anything like this in his life. He had never experienced the combination of alcohol and doxylamine.”
The defense expert was Lykissa. He testified on February 27, 2012 that the doxylamine had a sedative effect on the defendant.
In order to be acquitted of the battery charges, the jury had to agree that Yamamoto was not responsible for his actions that night. The jury unanimously found in his favor and he was acquitted on March 12, 2012.
While the criminal trial was underway, the fire department was leading its own internal investigation into Yamamoto’s conduct. On January 5, 2012, Yamamoto received an intent to terminate letter. Four days after his acquittal, Yamamoto met with Chief Madrigal and representatives of the City of Redondo Beach.
California law allows public employees to have a “Skelly hearing” in order to respond to workplace allegations prior to disciplinary action being taken against them. Chief Madrigal was not swayed by Yamamoto’s testimony at that hearing and, on April 13, 2012, he issued a Final Notice of Discipline, terminating Yamamoto’s employment as of April 20, 2012.
In October of 2012, arbitration proceedings began in Yamamoto’s wrongful termination suit. During the hearings, Madrigal testified to his reasoning in terminating Yamamoto instead of taking some lesser disciplinary action. He said the department has a “zero tolerance” policy regarding sexual misconduct.
“It’s just wrong,” Madrigal told the arbitrator. He said the City could not take a chance of Yamamoto sexually touching any of its citizens when administering aid. “It’s just not who we are,” he said.
Also in October of 2012, Yamamoto’s lawyer filed a tort claim against Madrigal, Division Fire Chiefs Robert Rapapport and Paul Lepore, then City Manager Bill Workman, Assistant City Manager Peter Grant and “past and present” City Councils. Tort claim presentation is the first step suing a public entity or employee.
In the tort claim, Pachowicz asserts that Yamamoto was not fired “because of any intentional conduct on his part” but because of one or more of the following reasons: Yamamoto filed a worker’s compensation claim; he was a board member of the firefighters union; he filed union grievances; he complained about violations to state and federal law; he is of Japanese American descent.
The contention of racial or ethnic discrimination has since been dropped.
In closing briefs to the arbitrator, the attorneys for the City of Redondo Beach, Philip Toomey and William Benz, articulated the city’s position on Yamamoto’s conduct and why he should not be allowed to return to the department:
“Yamamoto, a licensed EMT and Fire Engineer, voluntarily consumed alcohol. He spent the following hours sexually touching four women against their will. Each touching became more invasive, intrusive, predatory and perverted. Like a schoolyard bully saying, ‘catch me if you can,’ Yamamoto moved from victim to victim. This matter was, is and will remain a big deal. When a member of the public safety department engages in sexually impermissible action, the long-term consequences reverberate not only within the department but outward to the general public…When the perpetrator is also a licensed EMT who must be trusted and is placed in a situation of touching the private protected areas of female members of the public within the scope of his duties, the consequences and impact are made exponentially more complex.”
Arbitration closed in October of 2013, and, on December 18, 2013, arbitrator Louis M. Zigman issued his decision. Zigman’s Arbitration Decision and Award document is a curious one. In it, he agrees with almost all of the City’s claims. Most notably, he asserts that there was no medical testimony proving that Yamamoto’s sexual touching was the result of combining alcohol and doxylamine; that most experts say the combination would likely have the opposite effect of what Yamamoto suggests. Yet Zigman did not find the City’s concerns persuasive enough to sustain the termination. He found that Yamamoto had been wrongfully terminated, should be reinstated, and was owed lost wages.
“Having carefully considered the rationale by the City, I found the City’s contention that the public would be at risk by the grievant’s continued employment highly unlikely,” the decision reads. “While I do agree that the grievant acted improperly when he touched/groped several women on the night in question, the evidence demonstrated that he was so drunk that he was not in control of his actions.”
Yamamoto returned to work as a Redondo Beach firefighter early last month. He also returned to court on May 20 with an attempt to confirm and correct the arbitration agreement. Though Zigman’s decision was in his favor, Yamamoto took issue with two pieces of the decision.
Yamamoto argued that the arbitrator mistakenly demoted him to the position of firefighter/EMT. Yamamoto was a Fire Engineer at the time of the incident; firefighter is the entry level position Yamamoto held when he joined the department in 2001. His lawyers also suggested that the arbitrator mistakenly wrote August 20 instead of April 20 when determining the backdate for benefit reimbursement.
On May 20, Yamamoto sat quietly in the otherwise empty courtroom gallery while his lawyers and those for the City sparred on the two issues before Judge Stuart M. Rice.
“I wonder how am I supposed to understand what the arbitrator meant and what he was thinking,” Rice said. “I don’t think it’s appropriate for the court to put in its own thought about this.”
Rice questioned why the team hadn’t asked the arbitrator for clarification at the time. He also suggested that the statutory time limit for doing so had passed. Attorney Toomey, for the City, agreed.
“Jurisdictional time limits are jurisdictional time limits,” Toomey said. “I appreciate the fact that there is an issue with the language of the damages but after reading the first 20 pages of the award and listening to nine days of testimony, I don’t profess to understand Zigman’s mind when he wrote his decision.”
Judge Rice shared Toomey’s reaction to the decision.
“He does take a turn at the end that seems separate from everything he had said,” Rice said.
“The word absurd comes to mind,” said Toomey. “This has to be the most bizarre award…voluntary intoxication as a defense. But the city is committed to live with the award as it is written. It’s a Hobson’s Choice. We hate this decision but we will live with it.”
Rice moved to confirm the award as it was written.
Yamamoto is not the first Redondo Beach firefighter to be accused of offenses against women in recent years. According to court documents, in 2009, Jacqueline Sebiane sought a temporary restraining order on firefighter James Caldwell for allegations of domestic violence. And, according to city records, firefighter Kevin Coffelt was demoted from Fire Captain to firefighter/EMT in 2011, shortly after a series of lewd emails he’d written to Sebiane, on duty, were made public.
Yamamoto’s lawsuit against the city, the fire department, and the former fire chief goes to trial on October 10. While the civil complaint does not quantify the damages sought, it says that “Mr. Yamamoto seeks reinstatement to his former employment, monetary damages that are incident to his reinstatements as well as just and fair compensation for his harms and losses.”
According to the complaint, Yamamoto has suffered “emotional distress and financial hardship” and that he continues to have “anxiety, nervousness, depression, lack of confidence, a feeling of helplessness, a feeling of humiliation and sleeplessness.”
A judge and jury will once again be asked to determine who was to blame in the long, entangled, problematic story of Andrew Yamamoto and the Redondo Beach Fire Department.
December 18, 2014
December 18, 2014
December 18, 2014
December 18, 2014
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December 17, 2014