City councillor Tim Toomey says there are facts yet to emerge in the firing of a city employee, even after seven years in court.

The audience showed no reaction to a city councillor’s recent election forum answer about the city’s just-settled $11 million lawsuit, but someone was listening.

A YouTube account identified only as CambridgeMApolitics has posted a 1 minute, 20 second clip of the the question — about the racial discrimination claim, wrongful-termination suit and settlement with former city employee Malvina Monteiro — and answer by city councillor Tim Toomey, who suggested Sept. 27 there were facts yet to come out about why Monteiro lost her job and seemed to compare her case with that of Casey Anthony, the Florida woman accused of murdering her 2-year-old daughter, Caylee.

Note: After this post went live Sunday, the video was deleted and the posters shut down their account. There is a longer video posted that includes the question (at the 3 minute mark) and Toomey’s answer (at about 4 minutes, 15 seconds in).

Toomey was e-mailed Thursday morning with a request for clarification of his answer, and called at each of his listed phone numbers more than eight hours later with a second request. He replied by e-mail Thursday night to say, “This is an ongoing legal matter, therefore it is inappropriate to publicly comment at this time.”

Nine days earlier he did talk about it publicly, though. A transcription from the YouTube video, confirmed against a separate recording, shows he said:

“There are still two of these cases in the court system right now, so it’s very difficult to be able to answer part of this question. I think some of the facts of the question itself are inaccurate.

“It’s important to note the city was not found guilty of any discrimination. The jury found the city not guilty of discrimination, and on the charge of retaliation there were 11 jurors that said the city did not retaliate, there was one juror that held out, and then it subsequently went to another jury and that jury found otherwise. So there’s been some conflicting — how this case all came about.

“Certainly we cannot predict how a jury’s going to find. We saw the case of the [inaudible] in Boston, the woman in Florida, Caylee, was found innocent, a lot of people felt otherwise. So there are a lot of aspects to the terms of retaliation that we cannot say publicly yet why she was fired, but I think at some point those facts will come out and —” [the time allotted for an answer ended here, and the moderator cut Toomey off].

The case has been in court since 2005, including a 2008 jury finding that awarded Monteiro more than $4.5 million, a judge’s review in 2009 rejecting the city’s initial appeal and an appeal this year in which a three-judge panel confirmed the jury’s finding by filing under a rule that suggests “no substantial question of law is presented by the appeal.” City Manager Robert W. Healy, who was accused of retaliating against Monteiro, was the decision-maker in the earlier appeal but opted to settle after the August finding.

Toomey’s comment shocked Ellen Zucker, Monteiro’s lawyer — and the lawyer for two more women of color with similar suits pending against Cambridge.

“It is about as irresponsible as any public official could be,” Zucker said. “Mr. Toomey did not sit a single day in the courtroom, he did not listen to the testimony of witnesses, observe their demeanor or spend days poring over evidence. I would guess that he has not taken the time to read the voluminous transcripts in the case … I would doubt that he has read the briefing of Ms. Monteiro’s counsel on appeal and I surely did not see him at the appellate argument. He has never — I know for sure — asked Ms. Monteiro what happened to her or expressed any concern about her welfare as a city employee.”

She spoke at length Thursday in a telephone interview:

“There was a trial. A jury was convened in May 2008 of 14 people — a jury of neutral citizens, not from Cambridge, some were managers themselves. On that jury was a high school principal, an accountant, a retired police officer … for over two weeks they heard from nearly 20 witnesses, took in 65 documents as exhibits and received a charge from the judge we now know was completely unassailable and correct. All 14 issued their verdicts after two full days of deliberation that not only did the city retaliate against Ms. Monteiro for having raised concerns, but that the city’s conduct was so outrageous as to merit the imposition of significant punitive damages.”

“Now, a jury might get it wrong, but that’s why you have the review process,” Zucker said. “The trial court who watched the witnesses and took in evidence reviewed the jury’s verdict and came to the conclusion that this jury got it right [and the appeals court] dismissed the appeal with a summary decision — suggesting that there was no basis whatsoever for overturning the considered judgment of the trial court.”

She expressed disbelief that Toomey would think there was information still to emerge about the Monteiro case.

“Healy was on the stand for nearly three days. Is he now trying to suggest there weren’t facts brought out? It’s really quite curious. You’d assume [the city and city officials] would do all they could to defend the city,” Zucker said. “Mr. Toomey, without a care about established reality, says he knows what really happened but cannot share it with the public. That is ridiculous.”

Toomey’s description of the hung jury’s findings on discrimination is accurate based on a description by WilmerHale, the city’s lawyers. The firm said in 2005 that:

After a six-week trial (including six days of jury deliberations), the jury returned a verdict in favor of the city on the plaintiff’s original claim of discrimination, finding that the city had not discriminated against the plaintiff in the terms and conditions of her employment. Unable to reach agreement on the late-added issue of retaliatory discharge, the jury reportedly itself hung on that issue. The court discharged the jury, but, at the city’s request, refrained from declaring a mistrial as it now considers the city’s motion for a directed verdict (previously deferred) on this remaining aspect of the case. The court will determine whether a five-year hiatus is too long as a matter of law to allow any inference of retaliation to be drawn.

Note: After this story went live, WilmerHale removed the press release including the above text.

Zucker’s version disagrees with WilmerHale’s summation, saying that the court has emphasized that the 2005 jury did not resolve any full claim before it and that an appeals court called the results of the first trial “ambiguous.”

“Jury deliberations are not public, and Mr. Toomey surely cannot pretend to know what actually occurred in a jury room,” Zucker said.

But what’s most disturbing, Zucker said, is that “it does not appear that the council as a whole, or the administration of the city, have even tried to address the underlying message from this case. When will Mr. Toomey address the finding that the city engaged in outrageous conduct when it punished an employee who dared to raise concerns about race discrimination? What are his plans to reassure the employees of Cambridge that they will not face retribution if they dare to express a concern that they are not being treated equally on the job?”

This post was updated Oct. 11, 2011, to reflect minor clarifications by Zucker on her phrasing of a quote.

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