This story was originally printed Wednesday, Jan. 23, in the Daily Post.
BY ALLISON LEVITSKY
Daily Post Staff Writer
The managing artistic director of the Palo Alto Children’s Theater has settled his racial discrimination suit against the city for $55,000, which the city gave directly to his lawyer for attorney’s fees.
James “Judge” Luckey’s lawyer, Redwood City employment attorney Andrew Pierce, declined to say how much of the Nov. 27 settlement went to attorney’s fees, but said Luckey did get some money.
“I would never take the entirety of someone’s settlement,” Pierce said.
Luckey, who is black, sued the city in December 2016, alleging his white supervisor, Rhyena Halpern, “took an immediate aversion” to him and treated him differently from white colleagues, excluding him from one-on-one meetings and an open house party and denying him raises that he earned by getting positive reviews and performing work that went beyond his normal job duties.
Halpern, 61, has since retired and declined to speak on the record about the settlement.
In court documents, the attorneys for the city, Warren Metlitzky and Gabriela Kipnis, deny Luckey’s claims, arguing that many of them are legally inadmissible because of a settlement that he reached with the city over a prior discrimination complaint in 2012.
Prior to his 2016 lawsuit, Luckey filed discrimination complaints with the Equal Employment Opportunity Commission in August 2012 and again in September 2015.
In the August 2012 complaint, Luckey alleged that his then-supervisor, Greg Betts, had discriminated against him on the basis of race.
The month before, Luckey had been reprimanded and written a warning letter after he allowed a contractor with multiple convictions, including for prostitution, to work with children before receiving fingerprint clearance, according to the city’s attorneys.
The city settled Luckey’s first discrimination claim in November 2012, agreeing to revise its fingerprinting policy, complete an extra performance review for Luckey in 2013, remove a 2011 disciplinary action from his personnel file and reduce his related five-day suspension.
As part of the 2012 settlement, Luckey agreed to not file any additional claims against the city for employment-related issues that had arisen through Nov. 28, 2012.
The Equal Employment Opportunity Commission rejected Luckey’s September 2015 complaint, stating it was unable to confirm any violations, according to the city’s attorneys.
The city’s attorneys also argued that most of Luckey’s claims were inadmissible because he didn’t bring them within a year of his September 2015 claim, exceeding the statute of limitations.
These include Luckey’s claims that Halpern denied him one-on-one budget meetings in 2013, that Halpern delayed his raise in 2013, that additional duties were assigned in 2009, 2012 and early 2014 and that he was denied pay for extra work in 2010.
City disputed his claims
The city’s attorneys went on to argue that Luckey’s claims — including that Halpern met with other employees for one-on-one budget meetings in 2013 and didn’t meet with him and that Halpern purposely delayed sending Luckey emails to hinder his job performance — didn’t qualify as adverse employment actions under the law.
“Delay of his 2013 merit bonus might have been an adverse action if it had happened. It didn’t,” Metlitzky and Kipnis wrote. “And it is not an adverse action to require Luckey, like his peers, to seek manager approval when devi- ating from his assigned work schedule. He even admits that such approval has never been withheld.”
The city’s attorneys also contended that it’s not illegal retaliation for the city government to make budget cuts, to give performance reviews or to give Luckey the “absolute highest merit bo- nus” in 2014, 2015 and 2016.
“Those decisions were made by fol- lowing the city’s lengthy processes for budgeting and, for personnel reviews, were based on the independent judgment of decision makers other than the supervisor he alleged retaliated against him, and there is no evidence that they were made for the purpose of intentionally retaliating against Luckey,” Metlitzky and Kipnis wrote.
Luckey did not return a request for comment yesterday (Jan. 22).
Update: After the story was printed in the Post, Luckey sent this response via email:
“I have no comment regarding the settlement agreement reached in November 2018.
“In January 2009 when I became the artistic director of the Palo Alto Children’s Theatre my professional goal was to have a positive impact on the lives of children, youth and families in this community through the performing arts. In the past 10 years the Children’s Theatre has experienced tremendous growth in participation, audience attendance and revenue.
“I am humbled and grateful to this community for the support extended to me privately and for their ongoing public support of Children’s Theatre and the other performing arts programs managed by the dedicated staff that I have the honor of leading.”