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As 'retaliation' trial unfolds, Erie County officials are watching

David L. Reid claims Erie County targeted him because he's African-American.

He also maintains Daniel Rizzo, the county's current parks commissioner, retaliated against him and two others when they complained about the discrimination.

Four years later, some, but not all, of Reid's allegations will be heard by a federal court jury as part of trial that could become political fire power for Republicans looking to hurt County Executive Mark Poloncarz during a re-election year.

"This shouldn't have happened," Andrew Fleming, Reid's attorney, told the jury Tuesday. "He felt he was being discriminated against because of his race."

Hired in 2012, Reid, part of a crew that cleaned county office buildings downtown, claims he was targeted by Rizzo and his other bosses in the Department of Public Works when a female employee in the District Attorney's Office complained about comments he made to her.

When the county directed him to work elsewhere, Reid took it as a "stay out of sight" order and filed an internal discrimination complaint against the county. Rizzo was a deputy DPW commissioner at the time.

From the outset, county officials denied Reid's allegations and succeeded in getting his discrimination claim dismissed. U.S. Magistrate Judge Jeremiah J. McCarthy allowed the allegations of retaliation to stand.

"To believe the plaintiff's story is to buy into a grand conspiracy," Vincent M. Miranda, a lawyer for the county, told the jury.

Miranda acknowledged Reid was disciplined but insisted it was because he disobeyed a direct order to work in a different area of County Hall, and not because of his allegations of discrimination.

Even now, four years after the suit was filed, it is still a topic of interest among elected officials in county government.

Earlier this year, Joseph Lorigo, a West Seneca Conservative who leads the Republican-dominated minority on the County Legislature, pointed to the Reid case to suggest there is a "disturbing pattern of discrimination that may exist within Erie County government."

Lorigo expressed his concern about Reid and another case – the rape conviction of former Social Services Commissioner Al Dirschberger – in a letter to fellow lawmakers and Poloncarz, Rizzo's boss.

Joining Reid in the suit are two county union representatives – Michael Palmeri and David Ricotta, both white – who claim they were fired when they agreed to serve as witnesses on Reid's behalf.

In court papers, Palmeri said he witnessed Reid's bosses treating him in an "unprofessional and demeaning" manner. The county insists the two men were fired for abusing sick leave.

Rizzo, the first witness to take the stand in the trial Tuesday, was asked about the county's efforts to investigate Reid's discrimination claims, and he acknowledged that first meeting after Reid filed the complaint dealt largely with his conduct in the workplace, not his claims of discrimination.

At the core of Reid's case is the allegation that the county never investigated his discrimination charges and chose instead to retaliate.

"You never even saw Mr. Reid's complaint, did you Mr. Rizzo?" Fleming asked at one point.

"No, I did not," Rizzo answered.

Rizzo was also asked about the woman who complained about Reid's comments to her and whether he ever looked into what really happened between the two of them.

"Did you ever learn if Mr. Reid ever said anything inappropriate to anyone?" Fleming asked.

"Not that I recall," Rizzo said.

Later in the day, during his cross-examination, Rizzo countered by suggesting Reid was the subject of numerous complaints ranging from his poor work habits to his interaction with women in the District Attorney's Office.

Rizzo said Reid was also insubordinate and deserving of the written warning he received in September of 2013, just a month after he filed his internal complaint.

"He was hostile," Rizzo told defense attorney Eric M. Soehnlein. "He said no one is going to tell him where to start work."

"He had disobeyed a direct order," Soehnlein added.

"Yea, three times," Rizzo said.

Rizzo also testified about Palmeri and Ricotta and insisted their abuse of sick leave also warranted discipline.

"It's your testimony that he was stealing from the county," Fleming said of Palmeri.

"Yes," Rizzo said.

The independent arbitrator who handled the Palmeri-Ricotta case agreed that discipline was warranted but found their termination was excessive and ordered them reinstated.

Like Reid, Palmeri and Ricotta are now seeking monetary compensation from the county. The two men are asking for $40,000 apiece in back pay, and Reid is seeking an unspecified amount for "emotional harm and mental anguish."

The two-week-long trial will focus on the allegations of retaliation, not the race discrimination claims made by Reid. In 2017, McCarthy pointed to the county's disciplinary action against Reid and dismissed the discrimination claim.

"Although Reid was given a written warning," the judge said, "it was not accompanied by any demotion or adverse change in his employment status."

McCarthy allowed the retaliation allegations to go to trial, which resumes Wednesday.

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