Exultation flooded the courtroom on August 9 when King County Superior Court Judge William C. Goodloe found “the law and the facts” on the side of Clara Fraser in her long and celebrated fight against sex and political ideology discrimination by Seattle City Light.
Goodloe ordered Fraser reinstated with full back pay and benefits, and the spectators who thronged the courtroom burst into applause and cheers.
And on October 22, Goodloe approved an agreement between Fraser and the city that awarded her $135,000 in back pay, out of pocket expenses for job search, medical costs, and processing her case, plus interest.
Fraser will also be credited for her lost years in benefits due her for sick leave, vacations, and retirement system status.
We shall not be moved. Persistence and principle are the key words in this spectacular legal case.
Back in June 1980, after a grueling 8-week public hearing held five years after Fraser first initiated her suit, City Hearing Examiner Sally Pasette ruled that Fraser was fired in July 1975 for political reasons. But one month later, a hearing panel overturned Pasette by a split 2-1 vote.
City Hall hoped that Fraser was finished after this setback. And for two years she and her lawyers thrust and parried with city attorneys as she tried to launch her appeal.
Finally, Judge Goodloe was assigned to the case. He took a hard look at the voluminous record and decided that Pasette was right and that Fraser had been grievously wronged.
Contributing factors. Fraser’s victory was chiefly the product of six factors:
• An extremely strong legal case.
• Tough political conviction on the part of Fraser and her closest allies in the Freedom Socialist Party, Radical Women, and the Clara Fraser Defense Committee.
• A well-organized defense committee that publicized the case far and wide, garnered impressive local, national, and international support, and raised a financial war chest to help defray the enormous case expenses.
• Recognition by key sectors of labor, women, minorities, gays, and progressives that this was a test case of free speech in the ’80s.
• Meticulous work by attorneys Valerie Carlson and Frederick W. Hyde, Jr. aided by the Seatttle chapter of the National Lawyers Guild and dozens of volunteer lawyer-consultants and legal aides.
• A groundswell of determination by public workers around the country to reverse the anti-labor, antiaffirmative- action tide and beat back the city, state, and federal bosses.
Clara Fraser won in court — but not before she had won in the community.
The long road to victory. Fraser was hired in June 1973 as City Light’s first Education Coordinator. She was responsible, among other assignments, for implementing and overseeing the first all-woman Electrical Trades Trainee (ETT) program in the nation. She launched innovative and needed courses for all City Light workers and energetically advocated affirmative action training for minorities and women.
In 1974, Fraser became one of the leaders of a massive employee walkout. She testified in public hearings about the top-level City Light mismanagement that caused the walkout, and she headed the employee negotiation team for a new contract to eliminate management caprice. She also joined the employees’ recall campaign against anti-labor Mayor Uhlman.
Infuriated by Fraser’s outspoken criticism, management suddenly removed her as Coordinator of the ETT program and forced the ten women trainees into the field before their orientation course was completed.
Fraser and ETTs filed sex discrimination suits. Fraser also filed a charge of political ideology discrimination. (The ETTs won theirs the following year, in 1976.)
Management then harried, slandered, and isolated Fraser and on July 11, 1975, laid her off without notice on the pretext of a budget cut.
Five years later, during the administrative hearing, management dropped its phony rationale and claimed, for the first time, that it had properly dispensed with an “incompetent, disruptive, abrasive, and too-radical” employee.
Fraser’s 7-year journey to Goodloe’s courtroom was torturous. It encompassed a favorable Human Rights Department ruling in 1977; a subsequent $30,000-and-city-job settlement that was quashed by the City Council in a 6-2 vote in 1979; the tumultuous 1980 hearing panel overturn; and a 2-year fight to appeal that panel decision in Superior Court.
The latter lap was made doubly arduous by the city’s chronic stalling, and then by a battle over who would pay for the 6,500-page transcript needed for the appeal.
Fraser won this round and the city was ordered to pay $15,000 for the production of the transcript, which set an important precedent for other discrimination victims.
Then, Fraser’s request to investigate the bias and prejudice of the hearing panel majority was peremptorily turned down by two other judges.
In retrospect, the sweat and grit it took to get to Goodloe’s courtroom is simply amazing.
August 9 — D-Day. Fraser’s attorneys aggressively argued her case before Judge Goodloe.
They were joined, over the city’s objection, by National Lawyers Guild official Daniel H. Smith, who spoke on the key civil liberties issues in the case. Smith had previously presented a National Lawyers Guild/ ACLU friend of the court brief supporting Fraser at the 1980 hearing, and he appeared as NLG amicus curiae for Fraser in other vital hearings.
Carlson recounted the history and facts of the case and then showed how Hearing Examiner Pasette correctly applied discrimination law and how the hearing panel majority erred, according to the Fair Employment Practices Ordinance standard of review. (The Ordinance clearly mandates that a panel can reverse an Examiner’s findings only if they are clearly contrary to the weight of the evidence.)
The basic question, said Carlson, was whether “a female city employee doing an excellent job can be fired because her political ideology differs from management.”
A solid prima facie case. Carlson explained how discrimination law works.
A “prima facie” case for discrimination is demonstrated by differential treatment of an employee, or retaliation against that employee’s legally protected conduct.
The employer must then state legitimate non-discriminatory reasons for the adverse action.
If the employee can show that the stated reasons are a “pretext,” discrimination is established.
In Fraser’s case, said Carlson, differential treatment can be shown because Fraser is “a socialist feminist woman — a member of a legally protected class — who was qualified for her job and performing it well.”
Nevertheless, she was arbitrarily removed as ETT Coordinator, harassed, and fired.
In each case where Fraser was removed from responsibility and when she was fired, she was replaced by a non-feminist, non-radical male.
Retaliation was evident because of management reprisals that followed closely upon Fraser’s engagement in legally protected activities.
For example: Fraser opposed man management’s curtailment of affirmative action courses and programs, and management refused to reinstate those programs and reduced the scope of her duties.
After Fraser became an employee spokesperson during and after the walkout, and testified against management in Public Review Committee hearings, management red-baited her and removed her as ETT Coordinator. Fraser filed a discrimination complaint — and management later fired her for this action.
What were City Light’s “legitimate, non-discriminatory” reasons for these adverse actions?
At the time, management asserted that Fraser was removed from the ETT program because its “developmental stage was complete,” and that Fraser was terminated because of a “budget cut” — the only full-time, white-collar professional affected. The 1977 Human Rights Department findings established these reasons as pretexts.
So in 1979 — five years after the fact — City Light belatedly announced that “poor performance” and “insubordination” were the real reasons Fraser was let go.
These were even more ludicrous pretexts, said Carlson. They were after-the- fact and unsubstantiated. No prior warning about these charges was ever given to Fraser. Her abrupt ouster with severance pay in lieu of notice was illegal, and management’s labeling of Fraser as a “radical” happened too often to be ignored.
This is an open and shut case of discrimination, said Carlson.
The disgraceful panel majority. Carlson then cited the innumerable ways in which panelists Darlene Allison and Beverly Stanton violated the city’s standard of review of an Examiner’s decision.
The panel’s job, she pointed out, was to determine whether Examiner Pasette’s findings were clearly contrary to the weight of the evidence, but not to reweigh the evidence and come to an independent conclusion.
Allison and Stanton, however, blithely altered 67 of Pasette’s 94 findings for no other reason than bias. The findings they came up with could not be substantiated, and were contradictory.
For example, said Carlson, Allison-Stanton threw out Pasette’s findings that Fraser was never informed by management that her job performance was poor. Yet they agreed with Pasette that Fraser indeed “was never told that … her work performance was inadequate or that she would be terminated unless she corrected … these faults.”
Allison-Stanton also declared there was “no evidence to indicate that Vickery made a personnel decision based on Fraser’s ideology or sex.” Then they turned around and admitted that Vickery said that he’d rehire Fraser “if she were as loyal to him as to Karl Marx.”
Carlson noted ironically that Allison- Stanton were so ignorant of discrimination law that they agreed with Pasette on many findings that proved discrimination. They acknowledged that Fraser was a walkout leader and the only one fired; that she uniformly received the highest performance evaluations, but was still subjected to special scrutiny; that Vickery told an Office of Women’s Rights investigator that Fraser’s “politics” were responsible for the ETTs’ discrimination complaints; that Employee Relations Manager Donald Winkley told Fraser that her “outside activities” were in part responsible for management’s adverse actions.
Friend of the court. Attorney Daniel Smith argued the importance of the Fraser case in ensuring workers’ right to free speech on the job.
The Bill of Rights means nothing, he stated, unless it applies to the entire fabric of society and its institutions. “Public employment,” said Smith, “is not conditioned on giving up constitutional rights.” Without these rights, employers would be free to “militate for enforced unanimity” of opinion favorable to management.
Legal precedent in First Amendment cases, he said, holds that decision- making in a public institution like City Light is a political act about which employees have every right to comment.
Frederick W. Hyde, Jr. elaborated on Smith’s arguments.
It’s no wonder, he said, that the city has never wanted a clear review of Fraser’s case, because under a proper interpretation of constitutional law, even the hearing panel’s findings are an indictment of City Light.
Hyde showed that the two panelists grossly exaggerated and misrepresented Fraser’s criticisms of management. Fraser was following her legal and job-ordained mandate to promote city affirmative action policies, Hyde noted, and it was not she who disrupted City Light.
“Clara Fraser didn’t cause the lights to go out or the rates to go up,” Hyde quipped, “management did.” So the bosses did not have “legitimate business reasons” for firing her.
Hyde said Fraser was denied the right to a fair hearing in 1980 as a result of violations of the city’s panel selection process and the panel majority’s own ignorance and bias. The city has contended that Fraser did not question their selection at the time, and therefore has no grounds for procedural complaints now.
But Hyde showed that Fraser at that time had no control over case policy set by attorney John Chen Beckwith, hired by the Human Rights Department to take the case to hearing. Fraser, therefore, never waived her right to object to panelist bias.
Hyde addressed the unfairness of legal resources given to Fraser.
The city allocated a multitude of personnel to defend the utility, but gave the HRD only one lawyer to represent it and Fraser.
Beckwith, moreover, suddenly quit the case in the middle of the hearing because he was dissatisfied over the fees paid him; he only returned to the case, without explanation, after the HRD ordered him to respect his contract with them, and this cast a shadow over Fraser’s entire case.
Finally, said Hyde, the city proceeded to defend City Light when Fraser appealed, and refused to give the HRD an attorney to represent Fraser!
Such a refusal was unprecedented.
The city strikes out. Now it was the city’s turn at bat. Assistant City Attorney Rod Kaseguma happily embraced the task of defending the city’s prevarications and the hearing panel’s doubletalk and red-baiting.
His main line was that the judge should look only at the hearing panel’s findings and then determine that they were supported by the evidence. Kaseguma avoided discussing any specifics of those findings.
Like his predecessors, Kaseguma pictured City Light management as beleagured victims of a communist plot, blameless in trying to assert management prerogative over a crazy and dangerous radical.
Kaseguma hammered at the FEP Ordinance definition of protected political conduct. He seized upon the phrase in the Ordinance that reads ” … conduct reasonably related to charges of “Fraser’s incompetence” but in no way substantiated them.
At one point, he claimed that the First Amendment didn’t apply in Fraser’s case because she hadn’t filed in federal court and had thereby waived her constitutional rights!
Kaseguma ended his tirade with a demagogic appeal to prejudice against radicals. He read a statement by Patricia Wong, the renegade ETT who kept her job when the women trainees were dismissed in 1975. Wong wrote that she would “not be used by Clara Fraser in her mad drive toward power.” These words had a particularly hollow ring in the courtroom it had taken Fraser eight years to reach.
The city’s viciousness was the best refutation of its case.
The court took a break after Kaseguma’s arguments, and when the judge came back, he dispensed with rebuttal and ruled strongly in Fraser’s favor. Like everyone else, he had undoubtedly heard enough from the city.
A little respect. Judge Goodloe had some fascinating things to say.
He commended the city’s 1979 attempt to settle out of court with Fraser, who, at the time, had agreed to accept what the judge called a “paltry” $30,000 and a job with the HRD. The City Council’s refusal to accept this settlement was, said the judge, “an outrage.” (The Council’s recalcitrance cost the taxpayers an estimated $250,000 and took another three years out of Fraser’s life.)
“It’s time to get rid of this thing,” the judge declared.
He then exhorted City Light not to be “bigoted and prejudicial,” but to treat Fraser “respectfully and honestly.” He said he was guided by Harvard psychologist Gordon Allport’s The Nature of Prejudice in believing that victims of discrimination and oppression reciprocate kindness if that is what they receive.
Unanswered questions. Prior to the Superior Court appeal, Fraser had filed a motion to introduce evidence on the improper hearing panel selection process. Judge Goodloe’s decision left the motion moot.
Still, some highly explosive questions remain unanswered:
Who are Mrs. Darlene Allison and Mrs. Beverly Stanton?
What is their political ideology?
Why were they, of all unlikely people, sought out and seated on this panel by the Office of Women’s Rights and the Seattle Women’s Commission when dozens of extremely well-qualified, experienced volunteers were passed over?
Why didn’t the city follow its own rules and select panelists who were knowledgeable about discrimination?
What bearing did then-OWR Director Susan Lane’s 1979 trip to Washington, DC — with all expenses paid by the federal office then directed by Gordon Vickery — have on the panel selection?
Today, the answers to these queries are left to rattle around with other skeletons in the murkiest recesses of City Hall.
Blowing in the wind. The City Attorney was furious at Goodloe’s decision, and made loud noises about appealing it. He immediately filed a motion for reconsideration, and everyone had to troop back to court on August 27. But Judge Goodloe denied the motion.
None of the city fathers, from Mayor Charles Royer and City Attorney Jewett on down, liked the idea of Fraser’s sensational victory, her future reinstatement at City Light, and the prospect of paying her over $100,000 in back pay and damages. But these men are politicians first and last. Jewett is aiming for Henry Jackson’s U.S. Senate seat. They had to see which way the wind was blowing before they could make decisions on how to proceed.
Judge Goodloe had already told City Light and the City Council to drop their anti-Fraser vendetta. And in the following weeks, the Mayor and Jewett learned that most voters shared the judge’s sentiments.
Local newspapers and city offices were inundated with letters and mailgrams from Seattle and around the country, urging the city to abide by the ruling and to use public money to uphold its Fair Employment Practices Ordinance, not destroy it.
The Washington State and King County Labor Councils passed resolutions supporting the decision and opposing appeal, and urged members to add their individual voices in support of the resolution. The ACLU also wrote Jewett opposing appeal.
Ring around the rosie. A September 3 Seattle Post-Intelligencer article by reporter Jack Hopkins announced that the city “probably” wouldn’t appeal. Jewett, he wrote, had met privately with the City Council, which opposed an appeal — “barring unforeseen circumstances.” The article said that Fraser was “apprehensive” that the city might pull another fast one.
The electorate — phone callers, letter writers, and petitioners by the hundreds — expressed their own apprehension and displeasure to Royer, Jewett, and the Council.
On September 9, Hopkins reported that Kaseguma was holding out the possibility that the city would appeal “some conditions” tied to Fraser’s reinstatement at City Light. Hopkins also reported that nobody at City Hall seemed to know when — or even where — Fraser would return to work.
The Human Rights Department referred [Hopkins’] question to the City Attorney. His office referred it to City Light. City Light referred it back to the City Attorney. Mayor Charles Royer, meanwhile, couldn’t be reached for comment.
“That’s par for the course,” Hopkins quoted Fraser. “They’re always stalling, always looking for loopholes, always maneuvering.”
But someone in these offices awoke to the fact that this vicious little comedy being splashed all over the newspaper was making some ambitious politicians look mighty bad.
The very next day, Hopkins reported that a chastened Jewett said he’d “write a letter” telling the utility to rehire Fraser, quickly! And a City Light official announced that Fraser would be rehired, as per Goodloe’s order, within four to eight weeks.
The last gasp. Hearing Examiner Sally Pasette, in June 1980, had ruled that Fraser was entitled to $58,000 in back pay, plus damages. Pasette did not award the customary interest on this amount. Fraser is now owed $53,000 in additional back pay and damages plus 12% on the total amount, plus a large amount in attorneys’ fees.
On September 8, Kaseguma issued a press release stating that the City Attorney’s office “reserves the right” to contest the added back pay and attorneys’ fees.
On October 8, Fraser submitted a proposed agreement to the city covering updated back pay, expenses, interest, and restoration of benefits. After negotiations, the city and Fraser signed a stipulation (agreement) on October 21. Judge Goodloe accepted the stipulation on October 22, awarding Fraser a total of $135,265.14. About $45,000 of this will be deducted for taxes, retirement, and social security.
The figures on attorneys’ fees will be submitted to Goodloe sometime in November.
What it takes to win. Judge Goodloe’s decision is commendable in the face of the rightwing forces aligned against due process, judicial fairness, and the constitutional right to free speech. Still, it took persistence, the building of mass support and a small army of volunteers, and gritty socialist feminist leadership to bring Fraser’s case to court so that the judge could render a fair decision.
Grimly enough, discrimination goes largely unchallenged by its victims in public or private corporations because the legal system is incredibly expensive and time-consuming, and takes too heavy a toll on anyone person’s stamina and nerves.
Clara Fraser gave her whole self, and the politics she lives and breathes, to this case. A woman, a Jew, a socialist, a feminist, a teacher and organizer, a worker who defends workers, a straight woman unmercifully lesbian-baited, and a grandmother, Fraser is someone with whom a wide spectrum of people identify.
She and this case embody the hopes and aspirations of all who are stepped on, reviled, shunted aside, and silenced, whether in court or on the job or anywhere, by the powers-that-be.
She keeps saying that all of us are going to get together and achieve a revolutionary change in this tormented country. And more and more of us are nodding our heads in response.