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San Jose Police Lieutenant Sues Department, City

San Jose Mercury News via YellowBrix

December 17, 2009

The list expires after two years, at which point candidates must retake the exam.

“You study hard, do all kinds of things, and to allow the chief to vary it in any way, shape or form is unfair,” Lopez said. “If you’re on that list, you’re eligible to be promoted and they should go down that line or give a good reason” why not.

“It’s a competitive process,” said Doyle, adding that “the fact you don’t get it the first or second time doesn’t mean there is discrimination. It just means it’s not your time. The bottom line is he’s now a lieutenant, and we found no evidence of discrimination.”

In the lawsuit, filed Dec. 8 in San Jose federal court, Harper contends that he has been harassed by San Jose police officials and falsely accused of petty incidents of misconduct in an effort to make a file on him in order to justify their decision not to promote him.

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According to the lawsuit, Harper took the lieutenant’s exam in 2002 and 2004. In December 2004, Davis promoted a number of nonblack officers who were ranked below Harper on the list. Harper requested an explanation from police officials as to why he was not promoted but was not given a reason, according to the lawsuit.

In June 2005, Harper filed a complaint of race discrimination with the state Department of Fair Employment and Housing. The complaint was referred to the U.S. Equal Employment Opportunity Commission, which did not take action and sent Harper a right-to-sue letter, according to the lawsuit.

Harper took the promotional examination again in 2006 and was ranked fifth on the list. On Feb. 7, 2007, Davis promoted the top four-ranked officers on the list, as well as those ranked 8, 10 and 11, according to the lawsuit. Harper alleges the reason he was passed over was because of the complaint he filed in 2005.

On Jan. 13, 2008, Davis promoted nine officers who were ranked below Harper from the list based off 2006 exam scores. That list expired Dec. 20, 2008, according to the lawsuit.

Harper took the exam again in December 2008 and was promoted to lieutenant in February, according to the lawsuit.

In July 2007, Harper received a “nondisciplinary” transfer from vice to patrol after being told by his superiors that a female officer made a discrimination/harassment complaint against him. Harper argues that an investigation into the allegation was completed in March 2008 and determined the claim to be “unfounded.”

Harper alleges Davis used that situation as a pretext to publicly embarrass and discipline him in retaliation for filing the racial discrimination complaint with the state board in 2005.

“I think San Jose has a very good record of not having any racial discrimination in employment,” Doyle said. “We go to great pains to make sure we don’t.”

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