City of The Dalles Employee Says He Was Terminated for Reporting Racist Remarks by Co-Workers and Supervisor

A Wasco County man has filed a $750,000 lawsuit alleging racial discrimination and whistleblower retaliation by his former employer, the city of The Dalles, where he was a maintenance worker in the public works department from 2017 to 2020.

Saul Ascencio alleges that city management and his direct supervisor fostered a hostile work environment where employees openly made racist comments toward him, according to the lawsuit, filed Aug. 31 in Wasco County Circuit Court.

Within a few months of starting with the public works department in July of 2017, the lawsuit alleges, two white coworkers confronted Ascencio and asked him if he had “cross[ed] the border.” Other coworkers allegedly called Ascencio a “lazy Mexican” and claimed the city only hired him because he is a “brown token.” The complaint further alleges a white co-worker openly used the N-word in a break room to describe a Black person.

“A white supervisor informed Plaintiff that white coworkers were scared to work with Plaintiff because ‘they think he is an MS-13 gang member,’” the lawsuit alleges. “A white coworker repeatedly complained about Mexicans speaking Spanish instead of English... A supervisor berated the Plaintiff in the presence of coworkers because he was wearing a hat that said ‘Compton.’”

Ascencio is represented by attorney Marcus Swift, who is also based in The Dalles.

“Mr. Ascencio has devoted his life to serving his community and has worked extremely hard to provide for his family and be a role model for his sons,” Swift said. “His experience at the City of The Dalles was appalling and outrageous and the City’s response was a disgrace. Our government must be held accountable for the harm they have done to Mr. Ascencio and his family so that it does not happen again.”

Ascencio’s lawsuit marks the second time in weeks that the city of The Dalles has been embroiled in public controversy stemming from employee issues: Last month, Oregon Public Broadcasting reported that Wasco County District Attorney Matthew Ellis had filed a complaint against former DA Eric Nisley for allegedly withholding pertinent information for years about The Dalles Police Department Officer Jeff Kienlen, who was fired in March and barred from testifying in court cases after violating the department’s truthfulness policy.

The new lawsuit describes Ascencio as a first-generation Mexican American. The complaint says that for the duration of his employment with the city of The Dalles—almost three years—he was the only person of color employed in the city’s public works department. Conversely, the lawsuit says, more than a quarter of the Wasco County population is non-white.

“The Dalles employs only a small number of people of color, far below twenty-five percent (25%) of their total workforce,” the complaint says.

These workplace demographics exacerbated the discrimination against Ascencio, the lawsuit alleges. It notes that the supervisors Ascencio reported his coworkers’ racist remarks to—including the city manager, human resources director and director of public works—are all white, and that they never took substantive action in response to Ascencio’s complaints.

One of the coworkers who taunted Ascencio for his race later became his boss, the complaint alleges.

“Prior to becoming Plaintiff’s direct supervisor, Defendant [David] Mills, who is white, would engage in negative racial stereotypes by mimicking and mocking the Plaintiff after he left the break room, by engaging in behavior such as turning his ball cap sideways, sagging his pants, and pretending to be a ‘gangster.’ Mills received only a verbal reprimand for this action,” the complaint alleges. (Mills did not immediately respond to WW’s request for comment.)

During performance evaluations in January 2018 and March 2019, the lawsuit says, Ascencio’s then-supervisor rated him as “exceeds expectations” and “meets expectations,” respectively, and both evaluations recommended that Ascencio be considered for a promotion and/or a raise. However, the complaint alleges, Ascencio was passed up for four promotions in favor of his less-qualified coworkers.

Mills was among the employees promoted to a supervisory role, according to the lawsuit: In the fall of 2019, he became Ascencio’s boss. Mills performed the first performance review for Ascencio in January 2020, the lawsuit says, during which he awarded him 28 points out of 66— “below expectations.”

The next month, the lawsuit alleges, Mills put Ascencio on a performance improvement plan. According to the lawsuit, performance improvement plans are not mandatory, and “employees are placed on a [performance improvement plan] solely at the discretion of a Department Head or City Manager.”

“Throughout his Performance Improvement Plan, the Plaintiff received no additional substantive training, mentorship, advice, or guidance in order for him to improve his work performance,” the complaint alleges. “Instead, he received only hyper-critical feedback about minor mistakes with no concrete advice or solutions on how to remedy or improve.”

Mills did not conduct another performance review until five months later in May of 2020, where he again rated Ascencio as “below expectations,” giving him the same score as last time—28 out of 66. During that review, Mills allegedly criticized Ascencio for socializing in the mornings with coworkers.

And for the third time in a row, in an evaluation later that summer, Mills awarded Ascencio 28 out of 66 points, according to the lawsuit. “In this evaluation, Defendant Mills criticized and penalized the Plaintiff for not communicating, socializing, or engaging in conversations, which was directly contrary to his evaluation of May 27, 2020.”

“Throughout [Ascencio’s] Performance Improvement Plan, Defendant Mills repeatedly moved the goal posts on what was expected of the Plaintiff,” the complaint alleges. “On one evaluation he would be penalized for talking too much. In the next, he would be penalized for talking too little. On one evaluation, he would be told he needs excessive help and supervision, but in the next he would be penalized for asking another department or coworkers for help in accomplishing his duties.

“Defendant Mills effectively constructed the [performance improvement plan] so that it became impossible for the Plaintiff to succeed no matter what he did,” the complaint continues. “Despite this, the Plaintiff improved in four of eleven categories between January 26, 2020, and August 28, 2020, but received no credit for the improvement.”

The lawsuit alleges that, during the performance improvement plan process, Mills would give positive feedback and compliments on Ascencio’s improvement, but that the written follow-up reports contained low scores and negative feedback.

“This tactic was an additional way to gaslight the Plaintiff into never knowing how or if he could improve his performance,” the complaint alleges. “The Plaintiff was the subject of overly-critical and hyper-focused attention during the [performance improvement plan] to which similarly situated white employees were not subjected. This includes instances of showing up to work, on time, but being docked points on his performance evaluation because he did not arrive to work earlier than he was required to under the collective bargaining agreement.”

The city terminated Ascencio in September of 2020, citing the results from the performance improvement plan as justification, the lawsuit says.

“Employees who engaged in racist behavior or comments were allowed to remain employed with the City,” the complaint alleges. “No training was conducted by the City regarding diversity, equity, and inclusion practices for employees. No substantive efforts have been taken by the City to increase the racial diversity of their workforce.”

The lawsuit names Mills and the city of The Dalles as defendants. It accuses both parties of discrimination based on race and national origin and whistleblower retaliation; Mills of aiding, abetting, compelling or inciting unlawful discrimination and retaliation; and the city of wrongful discharge.

Ascencio is seeking $750,000: half-a-million dollars for mental and emotional distress, and $250,000 for economic loss.

The city of The Dalles did not immediately respond to WW’s request for comment.