Three months before his retirement, this veteran Fresno police officer was fired

Gerald Miller says he did his job for 21 years as a Fresno police officer, investigating crimes, arresting suspects, writing reports and backing up fellow officers.

But three months before Miller was eligible to retire, police Chief Jerry Dyer fired him.

Miller is not being fired for misconduct. Instead, police officials say his disabilities limit him from carrying out his duties as a police officer.

Miller, who is African American, says all was going well for him and his family until 2008, when he sued the Fresno Police Department for discrimination. He lost his discrimination lawsuit in U.S. District Court in 2011, and after that, he says, Dyer and his administrative staff retaliated by making his work life difficult.

Miller, 49, points to other black officers who have sued the city in the past 10 years on racial grounds and an internal report, made public earlier this year, that says the rank and file is discontented and cynical about Dyer and his administrative staff being able to fix problems that have damaged the reputation of the force.

Miller says his termination speaks to a larger issue about Dyer: The chief has no loyalty toward officers who do their job, but speak out about problems within the department. Miller says Dyer also has officers that he favors. “It’s a culture that starts at the top and trickles down: If you don’t toe the company line, they will get rid of you,” Miller says.

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Deputy Police Chief Robert Nevarez, speaking on Dyer’s behalf, says that’s not true: Dyer values input from his officers and there’s no discrimination within the department. “Everyone is treated the same,” Nevarez says.

Miller’s services are no longer needed, Nevarez says, because Miller has told Dyer that he can’t work with one supervising officer out of 750 sworn personnel in the department. Because it is a confidential matter, Nevarez declined to name the officer, but Miller says it is Lt. Joey Alvarez, one of 20 lieutenants.

“We all have to work with one another,” Nevarez says. “We can’t compromise public safety just because someone has a personality conflict.”

Nevarez notes the department did accommodate Miller for many years in separating him from Alvarez until that became impractical. The department also tried to find him another job in the city, but he refused.

Miller has a doctor’s report that was commissioned by the city in 2010 that says working with Alvarez gave him anxiety and stress. He has a more recent report from another doctor that was also commissioned by the city that says he is fit for duty.

Miller says he is willing to take any shift, day or night, to avoid working with Alvarez, who is a commander of the SWAT team and special operations.

But Nevarez says patrol officers can’t dictate who they will work with and when. Staffing is up to Dyer and his administrative officers, he says.

Nevarez says Alvarez is a field commander who, at any given time, could be in charge of police operations for the entire city. A field commander typically is a lieutenant who works the night shift, patrolling the city, monitoring crimes and making sure patrol officers are doing their jobs, Nevarez says. If a major incident happens, such as a barricaded subject, an assailant with a gun, or a police shooting, the field commander is in charge until someone of higher rank steps in, Nevarez says.

Because he’s been fired, Miller says his only recourse is to ask the Civil Service Board to reinstate him. His goal is to get reinstated so he has the option to find another job as a police officer without a termination on his record. He wants the hearing, scheduled for April, open to the public.

“I have nothing to hide,” he says. “My complaint is much more than a personality conflict.”

‘United front’ against Dyer

Miller, who is married with three children, joined the Fresno PD in 1995 and was eligible to retire in February when he turns 50 years old. He says his fight with Dyer has cost him his home in Fresno’s Sunnyside area and has left his family deep in debt. He says his last paycheck was in December 2015. He now draws unemployment.

He credited his wife, Alysa Foster-Miller, and his parents, Harry and Bessie Miller, for giving him the inner strength and financial resources to fight for his job. “We’re a united front,” he says.

Harry Miller, a senior pastor at the Church of God in Christ in southwest Fresno, says his son is fighting for something bigger than his termination. “It’s plain and simple what the chief is doing. It’s called discrimination,” the elder Miller says. “I told him, ‘Son, we’ve got your back.’ ”

His mother told him: “Don’t give up, son, and don’t let Dyer get away with this.”

Also in Miller’s corner is former Fresno police officer Junus Perry, who received national and state awards and nearly two dozen commendations before he left the department in 2010. In an interview, Perry says he, too, was mistreated by Dyer and his administrative staff after he was diagnosed with post-traumatic stress disorder stemming from the fatal shooting of a Roosevelt High School student in April 2008.

Nevarez says as far as he knew Perry was not mistreated and left the department on good terms.

Miller, who used to patrol southwest Fresno, has filed several complaints against fellow officers. He says he also has filed two workers’ compensation claims against the department for his disabilities. He says the city has fought his workers’ compensation claims, so he has never received money from them.

Officers feel discrimination

Of the 750 sworn officers, 43 of them are black. In comparison, the department has 383 white officers and 268 Hispanic officers, according to police personnel records. The highest-ranking black officer is Phil Cooley, who was promoted to captain this fall.

For the past 10 years, Dyer has been fending off discrimination claims.

In 2007, Capt. Al Maroney, who is African American, filed a discrimination complaint with the federal Equal Employment Opportunity Commission. The EEOC, which enforces workplace discrimination laws, later recommended that Dyer and his top staff – including his deputy chiefs – take sensitivity training.

In 2012, Maroney told The Bee that Dyer isn’t a racist, but said the chief is hot-tempered and insensitive to discrimination against black officers by other officers. Maroney later sued the city for discrimination, but in 2015 a Fresno County Superior Court dismissed his lawsuit.

Dyer also has successfully defeated similar discrimination lawsuits filed by black officers, including from retired Sgt. James Lewis and former police cadet Jonathan Pierro. But he was unable to win a 2011 lawsuit by Nevarez and Deputy Chief Sharon Shaffer.

In that suit, Dyer was described as a bully who told his administrative staff that he was tired of the discrimination suits and that “he would not go down without a gun fight. He further stated that it was not enough to nick him. You would have to take out his carotid artery and he has lots of blood.”

In 2012, the city paid Nevarez and Shaffer and their attorney, Warren Paboojian, a total of $300,000 to settle their case that included allegations that Dyer created a hostile work environment, harassed them and retaliated against them. Shaffer retired in June 2015.

Maroney, who retired in May 2014, told The Bee that then-Deputy Chief Keith Foster, who is black, played a key role in defeating his lawsuit by telling others that Dyer is a good chief who doesn’t tolerate discrimination. In March 2015, Foster was arrested for his alleged role in a drug-trafficking ring. He faces federal charges of conspiracy to possess with the intent to distribute oxycodone, heroin and marijuana. His trial is in May.

Like Maroney, Miller says Foster’s testimony was critical in his federal discrimination trial in 2011. Miller says Foster testified there was no discrimination in the department and told the jury: “I love Jerry. He is my best friend.”

Almost all of the eight jurors said they felt there was some sort of discrimination or bullying against Miller. But there just wasn’t enough evidence to conclusively prove it, the jurors said.

“Dyer used Foster to get me,” Miller says. “Now the chief is doing everything he can to distance himself from Foster.”

Maroney backed up Miller’s claim, saying Foster kept “African American officers at arm’s length from Dyer,” so the chief would trust him.

Nevarez, however, says Foster had little to do with Miller losing his discrimination trial. He also says Miller’s lawsuit has nothing to do with him being “separated from service.”

Events leading to termination

Firing an officer is a confidential personnel matter. Miller, however, gave The Bee a stack of documents to review, including Dyer’s Order for Removal, doctors reports, risk management letters and other documents.

A city document says Dyer told his officers that Miller was “terminated from the city of Fresno” on Nov. 7.

In an interview, Miller says his stress began in September 2007, when he was pulled over by Fresno police officer Tony Bustos for speeding.

Court records say Bustos was monitoring traffic outside a school zone when he saw three cars speeding. He initially pulled over a woman in a convenience store parking lot. Miller, by happenstance, pulled into the same parking lot. As Miller got out of his car, Bustos yelled: “You are lucky. You could be getting a ticket, too.”

Court records say Miller responded with a raised voice: “For what?”

A verbal altercation began, with Miller using profanity and Bustos losing his temper and writing Miller a citation. Miller eventually showed his driver’s license and his police identification to Bustos. Miller requested a sergeant to come to the scene before he would sign the ticket. He later complained to the sergeant, court records say.

The incident caused Miller to file an Internal Affairs complaint about Bustos. Months later, he filed his federal lawsuit, accusing Bustos of being “hostile and derogatory” and the department of discrimination.

Court records say Miller was issued a “blue sheet,” which is a low-level reprimand. But after he challenged the speeding ticket, an Internal Affairs investigation was launched against him, accusing him of unprofessional behavior during his traffic court appearance. Miller fought the citation, but lost. Later, Miller was issued an old patrol vehicle for a day, which he says he interpreted as discrimination and retaliation.

In court papers, Fresno lawyers James Betts and Joseph Rubin, who were hired by the city, say Miller was not subject to discrimination because Bustos received similar punishment. The two lawyers also say the Internal Affairs investigation against Miller resulted in “an unsustained finding and no resulting discipline.”

Miller says his spat with Alvarez began in spring 2010, when they both were dispatched to a burglary at Sunset Elementary School in southwest Fresno. After the incident was cleared, Miller says he called his wife, and they had a heated conversation. He says Alvarez overheard him and tried to butt into his personal business. The two officers then argued.

After the incident, Miller filed a workers’ compensation complaint, which prompted the city to hire Dr. Marcel Ponton to examine Miller. Miller says that in response to the complaint, the department put him on unpaid leave from May 2010 to May 2011.

In examining Miller, Ponton documented instances in which Miller said he felt harassed by Alvarez and others in the department.

In one incident, Ponton wrote that Miller was at the southwest police station in September 2011 talking to another officer when Bustos interrupted the conversation. Miller recalled that Bustos sneaked up behind him and held a gun inappropriately. Ponton said Miller left the station and sat in his car. He was upset and had shortness of breath, Ponton wrote.

In another incident, according to Ponton’s report, Miller received a credible threat against his life by a civilian in January 2014. But the Fresno Police Department ignored the complaint, Ponton wrote in his report. Miller said he learned of the threat from another law enforcement agency.

Miller says he asked Nevarez and Foster to help him get a restraining order, but they told him that he would not get assistance from the department.

Miller also was assigned to take a training class in October 2014. When he showed up, he learned that Alvarez was the instructor, so Miller declined to take the class. The department accommodated Miller by having him take the class with another instructor.

“Dr. Ponton took in the totality of what was happening to me,” Miller says. “What Alvarez did to me was the coup de gras.”

Nevarez says he could not discuss Ponton’s report because it is a confidential personnel matter. But he says Miller got in trouble in fall 2015 when he responded to a call of a man with a knife. Nevarez says Miller told Alvarez not to respond.

Miller contends that when he arrived at the scene, there was no disturbance and that the alleged victim was with friends and inside a store buying something. He says Alvarez didn’t need to respond to the scene.

The chief’s response

In Dyer’s order, dated Oct. 31 this year, the chief says Miller’s last day of regular work was Oct. 13, 2015. The order says Miller exhausted his paid leave in December 2015 and has been on unpaid leave since March 28 this year.

Dyer says his action against Miller was necessary because since 2010 Ponton has put limits on Miller’s ability to work, specifically that he should not be supervised by Alvarez nor should Alvarez have input over Miller’s job condition or performance.

Dyer says the department “reasonably accommodated this restriction” up until October 2015, when Alvarez was promoted from sergeant to lieutenant. Dyer also noted that Alvarez’s new job duties are much broader than a sergeant in that he would at times be responsible for all policing districts.

In the order, Dyer says the city offered Miller the opportunity to work other jobs such as bus driver or in the parks department, but Miller wanted to remain a police officer.

In the end, Dyer’s order says: “With your limitations and restrictions which preclude you from performing the essential functions of a police officer based upon your permanent limitations and restrictions, it is necessary to proceed with this Order of Removal.”

Miller, however, said Dyer is missing the point: Ponton, who was hired by the city, said Alvarez caused Miller’s disability. “Yet, Alvarez has never been punished,” Miller says.

Correction: An earlier version of this story reported that Police Chief Jerry Dyer defeated a discrimination lawsuit filed by officer Ron Manning. Manning reached a confidential settlement with the city in September 2011, court records say.

This story was originally published December 29, 2016 at 5:30 AM with the headline "Three months before his retirement, this veteran Fresno police officer was fired."