Former Gilroy Fire Division Chief Edward Bozzo and current Fire Division Chief Phillip King have filed an appeal to a U.S. Federal Court Judge’s decision to toss out a controversial year-long lawsuit in which they claimed they were cheated out of a combined $30,000 in overtime pay.
Judge Edward Davila of the Northern District of California granted the City of Gilroy’s motion for a summary judgment on Oct. 10, but a San Jose-based labor law attorney representing Bozzo and King, Carol Koenig, filed an appeal to the decision on Nov. 8.
“It’s in the hands of the court now,” said Gilroy Mayor Don Gage. “(Bozzo and King) lost the first time and they can appeal all they want; that’s their right. We will just do what we have to do because we disagree with them. The court said they were wrong and we’re going to defend it because it’s a lot of money.”
Bozzo, who retired in December of 2011, received an annual salary of $167,386 and will collect a monthly pension of $10,800 for the rest of his life, while King’s current salary rests at $180,232. In their complaint, Bozzo and King claimed the City broke federal labor laws by classifying the pair as employees exempt from overtime during City-mandate furloughs during the recession in 2009.
The crux of Koenig’s argument was that both Bozzo and King performed additional work during the furlough period – work that she claimed went uncompensated beyond their salaries.
“I think it’s unfortunate,” said Mayor Pro Tempore Perry Woodward, reacting to the news an appeal was filed. “Often times, people who lose at the trial court level will file an appeal in the hopes of reaching a settlement. There’s always a chance that a court of appeals could reverse what a trial court had done, although the odds of that are, statistically speaking, less than 10 percent. I think it’s a long shot; it’s a hail Mary at the end of the game.”
Gilroy Fire Chief Alan Anderson explained that crews who respond to daily emergencies on Gilroy fire engines are represented by the International Association of Firefighters Local 2805 – and they had nothing to do with what he said was an “unwarranted” and “frivolous lawsuit.”
“Although the lawsuit was filed prior to my arrival in Gilroy, it was a detraction that drew our focus away from our mission,” Anderson previously told the Dispatch. “For two highly compensated exempt management employees to attempt to receive compensation for a couple of hours of work each week was a misguided attempt to extract a few extra dollars from the City.”
LeeAnn McPhillips, Gilroy’s human resource director, estimated in October the City’s legal fees associated with fighting the lawsuit had risen to more than $88,509.
“The City is disappointed that Bozzo and King decided to appeal the ruling that was in the City’s favor and cause the City to incur further expense,” McPhillips said.
On Wednesday, King and Bozzo were charged $2,224.15 for court costs associated with procuring copies of transcripts and paid $455 on Nov. 8 for the appeal.
Gilroy Public Information Officer Joe Kline said Bozzo was even on the negotiating team that reached an agreement with the City, then-vice president of the GMA, on pay and benefit concessions – concessions he later challenged in the lawsuit.
In his original summary judgment in favor of the City, Judge Davila concluded there was no genuine issue or debate that would warrant taking the case to trial.
“Summary judgment must be granted where a party ‘fails to make a showing sufficient to establish the existence of an element essential to the party’s case, on which that party will bear the burden of proof at trial,’” Davila wrote in the judgment.
“For King and Bozzo, there’s no real downside to filing an appeal,” Woodward added. “Their attorney has to do some additional work – but at this point the attorney is getting nothing for her efforts and is hoping to improve the outcome; that’s not surprising. I think their actions speak for themselves.”
Koenig and a majority of the City Council members were not immediately available for comment. Councilman Dion Bracco declined to comment.
