THE DALLES — Former City of The Dalles employee Saul Ascencio filed a lawsuit against the city, as well as his former direct supervisor, on Aug. 31 for unlawful employment practices including racial discrimination and wrongful termination.
According to the lawsuit, Ascencio began working for the Public Works Department in July 2017 as a maintenance worker for the transportation division. He was fired on Sept. 14, 2020, based on statements from the performance evaluations that the official complaint alleges are biased and “cherry-picked.”
While Ascencio was employed by the city, he was subject to hostile, racially-charged behavior in the workplace, the lawsuit alleges. He was the only person of color in the Public Works Department throughout his entire employment and was frequently confronted by white coworkers.
In particular, the lawsuit alleges that Ascencio’s coworker David Mills, who would later become his supervisor, “would engage in negative racial stereotypes by mimicking and mocking the plaintiff after he left the break room, by engaging in behavior such as turning his ball cap sideways, sagging his pants, and pretending to be a ‘gangster.’” Mills was only verbally reprimanded for this behavior, according to the lawsuit.
Mills, one of the defendants in the suit, was Ascencio’s coworker from July 2017 until October 2019. During this time, Mills tried to convince Ascencio to falsify information about one of their supervisors, the lawsuit alleges. After Ascencio refused, Mills “pleaded with” the supervisor to fire Ascencio, according to the lawsuit.
After Mills was promoted in October 2019, the former supervisor told Ascencio that Mills “would make every attempt to terminate (Ascencio), up to and including falsifying information about his work performance,” according to the lawsuit.
The former supervisor also told Mills he believed he was being treated differently than other employees because of his race, ethnicity and nationality, the lawsuit alleges.
On Jan. 28, 2020, Mills conducted Ascencio’s first performance evaluation, the lawsuit alleges. Ascencio received 28 points out of a possible 66, a rating of “Below Expectations,” despite having received 40 points, a rating of “Meets Expectations” at his last evaluation nine months prior.
After this evaluation, the city and Mills placed Ascencio on a performance improvement plan (PIP), which required Ascencio to meet with Mills once a week for six months. According to the lawsuit, PIP’s are not mandatory, and are solely at the discretion of the department head or city manager.
According to the lawsuit, Ascencio was told “the process was not a disciplinary action.”
After five months, during which no additional performance evaluations had been performed, the city and Mills decided to extend Ascencio’s PIP by two months due to COVID-19, the lawsuit alleges. According to the lawsuit, “This extension was a violation of the Employee Handbook and collective bargaining agreement, which limits PIP’s to only six months.” Additionally, two white employees hired by the Public Works Department during the same time frame were given the standard six-month probation period and did not have their probations extended due to COVID-19, according to the lawsuit.
On May 27, 2020, when Ascencio was told his plan would be extended, Mills conducted another review where Ascencio once again received 28 points out of 66. In the review, he was criticized for socializing with other coworkers, according to the lawsuit.
The lawsuit goes on to say that in the next two months, Ascencio was evaluated once more and once again received 28 points, this time being criticized for “not communicating, socializing, or engaging in conversations,” the opposite of his previous evaluation.
According to the lawsuit, “Mills effectively constructed the PIP so that it became impossible for the Plaintiff to succeed no matter what he did. Despite this, the plaintiff improved in four of 11 categories between Jan. 26, 2020, and Aug. 28, 2020, but received no credit for the improvement.”
The lawsuit alleges that in the in-person conversations with Mills, Ascencio received praise and positive feedback but would receive negative feedback in the written reports. The complaint says this was “an additional way to gaslight (Ascencio) into never knowing how or if he could improve his performance.”
After Ascencio’s PIP concluded, he once again complained of a hostile work environment. According to the lawsuit, he was terminated thereafter on Sept. 14, 2020. The lawsuit alleges that the city “relied upon the results of the PIP process, despite the admission that the PIP process is not itself a disciplinary action or process.”
The lawsuit also alleges that they “based part of their decision to terminate the plaintiff on cherry-picked statements contained within a mostly-positive review given by an white administrative assistant who admitted she had no knowledge of his job duties, policies, or procedures. This assistant was not his supervisor, and admitted that the alleged failings she associated with the plaintiff, may not actually have been his responsibility.”
Marcus Swift, Ascencio’s attorney, said in an email that white employees were not subject to this treatment.
“We have alleged that similarly situated white employees were not forced to be supervised by administrative assistants and have their performance critiqued by non-supervisors, nor were similarly situated white employees terminated based on performance reviews of non-supervisory administrative assistants,” Swift wrote.
Throughout his employment, Ascencio faced discrimination from many of his coworkers. According to the lawsuit, Ascencio was also asked by white coworkers if he had “just crossed the border,” told he was only hired because he was a “brown token,” was referred to as a “lazy Mexican,” and was told by a supervisor that his white coworkers were afraid to work with him because they thought he was “an MS-13 gang member.”
Ascencio was also present in the break room when a white coworker told a story about an African-American person and referred to them by the n-word, the lawsuit alleges.
Though Ascencio frequently reported these issues to his supervisors, the director of public works, the human resources director, and the city manager, “no substantive action was taken,” according to the lawsuit. Furthermore, employees who engaged in the behavior faced no disciplinary action.
After Ascencio was fired by the city, he was hired by the Oregon Department of Transportation in October of 2020. According to the lawsuit, he received a “glowing review” at his six-month performance evaluation.
However, shortly after Ascencio was hired by ODOT, the lawsuit alleges that Defendant Mills sent a Public Works employee to approach the ODOT office in The Dalles. According to the lawsuit, the employee “inquired if they had hired ‘the little Hispanic guy from the city,’” in reference to Ascencio.
The lawsuit is for $750,000 for “economic damages, non-economic damages, costs and attorneys’ fees,” Swift said. “We have also asked the court for injunctive relief prohibiting the City of The Dalles and David Mills from engaging in further employment discrimination against Mr. Ascencio and other workers of color at the city.”
City Attorney Jonathan Kara said the city received the suit but does not comment on pending litigation.
The court date has not yet been set.
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