The attorney for former Charlottesville Police Chief RaShall Brackney says he is ready to take “whatever legal action is necessary” after a federal judge dismissed her $10 million wrongful termination lawsuit against the city.
But if Brackney’s lawyer is planning to appeal the decision of Judge Norman K. Moon, he’s stuck with the same facts he presented in the original claim, which Moon called insufficient and a legal expert has called ignorant of the law.
“There were a lot of claims that just weren’t good,” George Rutherglen, a law professor at the University of Virginia, told The Daily Progress on Thursday. “The plaintiff’s lawyers just don’t know or tried to ignore the law.”
Brackney, the city’s first black female police chief who was fired in 2021 after three years of service in the wake of the deadly Unite the Right riot, filed a 73-page federal complaint on June 15 accusing 10 city government and police leaders of race and gender discrimination, a “conspiracy” to have her ousted and defamation damaging her reputation.
Moon dismissed the suit on Jan. 20. In a 39-page opinion, he said that Brackney did not allege sufficient facts to support any of her claims.
Charles Tucker Jr. of the Cochran Group, Brackney’s attorney, told The Daily Progress on Thursday that they “have multiple avenues to bring justice to Dr. Brackney” and that the battle had “only just begun.” He would not, however, say if that meant an appeal or a second lawsuit.
Tucker did say that he believed he had presented an extensive, but not exhaustive, complaint. At such an early stage, and prior to the benefit of discovery, it should have been enough and Moon should have allowed the case to proceed, he said.
“Judge Moon got it right. He is pretty well-respected by the folks in the 4th Circuit,” Rutherglen said. “I think there were a lot of mistakes in the complaint and, once Judge Moon started seeing all these mistakes, he became very skeptical of every claim.”
Rutherglen specifically called out Brackney’s claims of race discrimination in violation of Title VII of the Civil Rights Act of 1964.
Those claims highlighted a survey conducted by the Police Benevolent Association, which suggested that officers had lost faith in the department’s leadership and which Brackney claimed was specifically intended to target and highlight her in a negative manner. The claims also highlighted comments made by former City Manager Chip Boyles, including press releases, verbal comments and an op-ed in The Daily Progress, which she called disparaging.
Brackney’s suit “relies upon the PBA survey and statements made after she was notified of her termination as bases for her Title VII claims,” according to Moon’s opinion. “But the City did not conduct the PBA survey. And even if City Manager Boyles made the alleged statements, disparaging remarks by a supervisor, without disciplinary action, do not qualify as adverse employment actions.”
Rutherglen said he thought that Brackney’s lawyer should not have targeted individual officials in a suit claiming Title VII violations.
“An individual government official is not liable for violating Title VII,” Rutherglen said. “The city can, but not the individual.”
Rutherglen’s remarks mirror Moon’s.
Moon said multiple times in his opinion that Brackney’s claims against several individuals listed in her suit were dismissed because they either were not agents or employees of the city she worked for or because as city employees they “cannot intentionally interfere with the City’s contract.”
Rutherglen said he predicts that Brackney and Tucker will appeal the case to the 4th Circuit. But if they do, they’ll be stuck with the same “extensive – not exhaustive” facts Tucker said he brought in the first round.
“They can’t bring in new evidence on the appeal,” Rutherglen said. “One of the natures of this kind of motion and this kind of denial and the appeal process is the record is that the record is.”
Charlottesville Mayor Lloyd Snook, who was a target of Brackney’s suit and is himself an attorney, said he is not surprised there’s talk of an appeal.
“We always assume that people are going to talk about an appeal,” Snook told The Daily Progress on Thursday. “They’ve got nothing to lose in this case. Having lost at this state, the appeal costs a few hundred dollars in filing fees and that’s really about it.”
Snook added that he was confident than an appeal would end the same way the original suit ended.
Tucker said he stands by his belief that Brackney’s discrimination claims have plausibility based on the uniqueness of her experience.
“She’s not the first chief that was dismissed, but she is the first one whose picture they took down,” Tucker said. “They treated her as if she wasn’t even still the chief during her tenure. If that’s allowed to go on, what kind of situation do you have? It would be different if everybody was treated like that. It would be different if everyone was fired because they were doing their job. No, that wasn’t the case in these facts.”