Former Prosecutor Wins $3M Retaliation Lawsuit

Case Background

Tracy Miller, a decorated prosecutor who served the Orange County District Attorney’s Office for twenty-five years, filed this explosive lawsuit after she felt the office's executive leadership had forced her into early retirement. Miller had risen to the rank of Senior Assistant District Attorney and held significant responsibility under the newly elected District Attorney, Todd Spitzer. The trouble began when Miller tried to defend junior female colleagues who previously had reported being sexually harassed by one of Spitzer’s closest personal friends and top prosecutors, Gary LoGalbo. Miller stood up to the office's handling of the harassment claims, which she asserted had devolved into a cover-up and retaliation scheme against the victims.

Cause

Miller's cause of action stemmed directly from the executive team's alleged reaction to her defense of the female prosecutors and her whistleblowing efforts regarding other alleged misconduct, including political interference in capital murder cases. She claimed that District Attorney Todd Spitzer and Chief Assistant District Attorney Shawn Nelson (who later became a Superior Court Judge) systematically humiliated her, undermined her authority, and created a hostile and toxic work environment. This pervasive conduct forced her to retire from the job she loved in what the lawsuit termed a "constructive termination."

Injury

Miller sought compensation for significant injuries she suffered as a direct result of the Defendants' actions. These injuries included substantial future economic loss related to her forced, premature retirement from a high-paying executive position. Crucially, she also claimed severe emotional distress, worry, anxiety, and humiliation stemming from the continuous campaign of harassment and the sudden loss of her long-term career.

Damages Sought

Miller sought recovery for past and future economic losses and compensation for emotional distress. Additionally, she pressed the jury to award punitive damages against the individual Defendants, Spitzer and Nelson, arguing that their actions were willful, malicious, and oppressive, deserving of punishment to deter similar future misconduct.

Key Arguments and Proceedings

The trial was not held in Orange County due to the powerful position of the Defendants and instead proceeded in the Superior Court of California, County of San Diego. The intense, multi-week trial unfolded with dramatic testimony from Miller, her allies, and the Defendants themselves.

Legal Representation

Plaintiff(s): Tracy Miller

· Counsel for Plaintiff(s): John D. Barnett | Bijan Darvish

Defendant(s): Todd Spitzer | Shawn Nelson

· Counsel for Defendant(s): Tracey Kennedy | Tyler Johnson | Mullin Sheppard | Richard B. Azada | Nathan Yu

Key Arguments or Remarks by Counsel

Claims

Miller's attorneys, John Barnett and Bijan Darvish, argued that the evidence established a clear pattern of illegal workplace behavior. They asserted that District Attorney Spitzer and then-Chief Assistant DA Nelson systematically marginalized Miller after she had cooperated with an investigator looking into sexual harassment allegations against Spitzer’s friend, LoGalbo. The harassment included Spitzer using gender-based slurs, publicly criticizing Miller, attempting to take away her successful youth anti-gang program, and attempting to discipline a female prosecutor who had reported the harassment. Miller's attorneys contended that this conduct intentionally created a working environment so hostile that any reasonable person would have been forced to leave, which constituted constructive termination. They emphasized that Miller’s report or opposition to sexual harassment was the "substantial motivating reason" for the adverse actions taken against her.

Defense

Attorneys for the County, Spitzer, and Nelson maintained that Miller had not suffered harassment or retaliation. They characterized Miller's retirement as a voluntary "changing of the guard" and argued that she simply disliked the new administration’s management style. The defense asserted that Miller remained an "at-will" employee who could have been dismissed at any time, but instead received a promotion under Spitzer. They vigorously denied any intent to force her out, stating that no documentation existed proving Spitzer or Nelson wanted her to leave. They also countered that the County provided reasonable preventative and corrective measures for harassment, which Miller failed to utilize effectively. Defense counsel also argued strongly against punitive damages, suggesting the $3 million already requested for compensation was sufficient and that the public verdict itself served as a deterrent message.

Verdict

The jury in the Superior Court of California, County of San Diego, returned a special verdict fully in favor of Plaintiff Tracy Miller against Defendants County of Orange, Todd Spitzer, and Shawn Nelson. The jury found that Miller was subjected to severe or pervasive gender-based harassment in the workplace, and that both individual Defendants, Spitzer and Nelson, directly participated in this conduct. Furthermore, the jury determined that the County of Orange failed to take reasonable steps to prevent or correct the harassment, subjected Miller to adverse employment actions and constructive termination in retaliation for reporting sexual harassment, and violated whistleblower protection laws by penalizing her for disclosing unlawful conduct. As a result of these pervasive violations, the Honorable Katherine A. Bacal ordered that Tracy Miller recover a total of $3,000,000.00 in compensatory damages—consisting of $1,000,000.00 for future economic loss, $1,500,000.00 for past emotional distress, and $500,000.00 for future emotional distress—jointly and severally from all three Defendants with 7% annual interest. Additionally, because the jury found Todd Spitzer acted with malice, oppression, or fraud, Miller was awarded $25,000.00 in punitive damages against him individually at a 10% annual interest rate, while Shawn Nelson was cleared of punitive liability. The final judgment also awarded Miller $45,457.42 in costs and disbursements alongside $1,541,945.00 in attorneys' fees, with all payments directed to the Law Office of Bijan Darvish Trust for the benefit of Tracy Miller.

Court documents are available upon request at [email protected]

Gas Mechanic Wins No Relief in Con Ed Discrimination Trial

Trevor Burke, an African-American gas troubleshooter mechanic, filed a lawsuit against Consolidated Edison Company of New York, Inc., alleging race and disability discrimination under federal, state, and local laws. After a multi-vehicle workplace accident in September 2020 left him with severe heart and knee injuries, Mr. Burke underwent emergency open-heart surgery and was placed on an extended medical leave. Under the governing collective bargaining agreement, protected disability leave was capped at one year, making September 9, 2021, his final deadline to return to work. Although cleared by his personal physician with a 25-pound lifting restriction, and initially cleared by a Con Edison doctor with a 20-pound restriction, Mr. Burke received conflicting instructions from operations management on the final day of his leave. Later that same afternoon, his union representative informed him that Con Edison had terminated his employment. Mr. Burke alleged that the company bypassed the mandatory interactive accommodation process and refused to reassign him to open light-duty roles. He also raised a claim of disparate treatment, pointing to a white comparator with a severe cardiac condition whom Con Edison accommodated with light-duty tasks, a partner, and a driver. Con Edison denied all allegations, arguing that a 50-pound lifting capacity was an essential requirement for the mechanic position and that no alternative vacancies were available. Following a full trial, a federal jury returned a complete defense verdict, clearing Con Edison of all liability.