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The attorneys of The Employment Law Group® law firm represent whistleblowers and others who stand up to wrongdoing by employers. We focus on cases involving retaliation, discrimination, employer fraud, and federal employee representation.

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Kidney Failure

When an Employee’s Son Got Sick, This Bad Boss Found Reasons to Fire the Mother

Maria Gonzalez’s motherly instinct went into overdrive when her 21-year-old son, Pedro Moreno, began suffering from a kidney condition that led to three years of surgical procedures, infections, complications, and about 30 hospital stays.

Drawing on her experience as a medical assistant at a pain clinic in San Diego, Ms. Gonzalez became a loud crusader for her disabled son’s proper treatment, which included drugs to fight the pain that Pedro often rated as “10” on a 10-point scale.

Ms. Gonzalez was in an unusual position: Her employer, a part of the Kaiser Permanente group, not only provided Pedro’s insurance — it provided his care, too, partly at Ms. Gonzalez’s clinic. And after Ms. Gonzalez started complaining about the quality of Kaiser’s care, she was targeted for retaliation by her supervisor Traci Trask, the clinic’s assistant director, according to a lawsuit.

Along with a senior doctor, Ms. Trask told Pedro that he couldn’t be treated at the clinic anymore, according to the suit. Then Ms. Trask decided that Ms. Gonzalez might be accessing Pedro’s health records improperly. A “sham” investigation followed, according to court filings, during which Ms. Trask wrote out statements for witnesses and put words in a doctor’s mouth. Ms. Gonzalez was fired based on the probe’s results.

Traci Trask is our latest Bad Boss of the Month.

Ms. Gonzalez filed a lawsuit claiming discrimination, retaliation, and wrongful termination. Earlier this year a California state court jury found that Kaiser illegally fired Ms. Gonzalez to avoid the “nuisance” of her association with Pedro, awarding her almost $500,000 in damages. Kaiser has appealed the verdict.

Court records, including medical reports, reveal a complex situation in which Kaiser doctors and administrators were annoyed by Ms. Gonzalez’s repeated requests for medical attention for Pedro, whom the doctors suspected of being a “narcotic seeker” overstating his pain level.

The same people worked with Ms. Gonzalez professionally, and evidently had trouble with her dual role. As the only medical assistant in the clinic’s Pain Management Department, Ms. Gonzalez did for Pedro everything she did for other patients — she checked him in for appointments, took his vital signs, updated his records, tracked the status of medication refills, and so on.

But she was also his emergency contact and she had a durable power of attorney for his health care, according to her lawsuit. Pedro lived with Ms. Gonzalez and she accompanied him to Kaiser hospitals whenever his condition worsened. And during one of Pedro’s visits to the pain clinic, she even took a break so that she could attend the appointment in “mother” mode.

It was this appointment that triggered a reckoning. When Ms. Gonzalez spoke up as a mother to endorse Pedro’s ongoing complaints about Kaiser, she testified in a deposition, the doctor told them that he would no longer see Pedro because Ms. Gonzalez had a “conflict of interest.”

What did he mean, asked Ms. Gonzalez?

“Sooner or later we knew this was coming,” he replied, according to her complaint.

In addition to refusing to see Pedro, the clinic was hesitant to refer him for outside treatment, according to records. Pedro escalated the matter at a meeting with the clinic’s management, including Ms. Trask, but got nowhere. According to Ms. Gonzalez’s complaint, the clinic’s lead doctor told Pedro ominously, “You wouldn’t want anything to happen to your mother, would you?”

Something did happen to her. Within hours, Ms. Trask e-mailed Kaiser administrators to warn them that Pedro would “continue to be persistent” with his demands, according to court documents — and in another e-mail she drew attention to some “hearsay pieces of information” that she believed could justify an internal investigation of his mother.

Ms. Trask took charge of the investigation herself, focusing on the idea that Ms. Gonzalez had used her employee status to access Pedro’s medical records improperly. Ms. Trask suspended Ms. Gonzalez for the duration of the probe and added a “break the glass” notice to Pedro’s records, increasing security in a way that usually requires the patient’s permission — a step that Pedro never requested, according to Ms. Gonzalez’s complaint.

Based on Ms. Trask’s investigation, Kaiser claimed that Ms. Gonzalez had improperly accessed her disabled son’s medical record 16 times, according to court documents. Ms. Gonzalez agreed that she checked Pedro’s record on those occasions — but only based on requests from Pedro or his doctor, and therefore within her scope of duty, she said, which could have been documented easily if Ms. Trask had asked.

Another alleged misdeed: Ms. Trask reported that Ms. Gonzalez had conducted a “pill count” for Pedro’s unused medication, outside her proper duties. Again, Ms. Gonzalez agreed that she had counted pills on several occasions, including once for Pedro, but she testified that it was always explicitly requested by a doctor — and, in this case, had been documented fully by the doctor.

According to court filings, Ms. Trask bolstered her findings with a written statement in which a different doctor said that Ms. Gonzalez shouldn’t be counting pills — except that the statement wasn’t signed and Ms. Trask had never spoken with the doctor on the matter, according to a brief filed on behalf of Ms. Gonzalez.

In the meantime, Pedro’s kidney problems continued. On the evening of his meeting with Ms. Trask, Ms. Gonzalez arrived at home to find her son shivering, fevered, and in pain; she called an ambulance and Pedro was admitted to hospital with septicemia, a blood infection, according to court filings.

Subsequent hospital visits, as documented in court records, showed Ms. Gonzalez’s deep involvement in Pedro’s care while she was suspended from work — sometimes sleeping by his bedside — but also the increasing skepticism of Kaiser doctors.

“His mother is doing most of the talking and she says that she feels that [Pedro] is going to die from so much pain,” says one doctor’s report. “Ironically, she works in the Pain Clinic.”

The following month, while still suspended, Ms. Gonzalez was fired based on Ms. Trask’s findings. Three reasons were cited: Improperly accessing Pedro’s medical records, improperly conducting the pill count, and refusing to admit that her behavior was improper.

Ruling in favor of Ms. Gonzalez, the jury found instead that her association with her disabled son was “a substantial motivating reason” for the termination. It awarded her almost $200,000 for economic damage already done, plus a further $300,000 for damage yet to come. At the time of her firing, Ms. Gonzalez had been the longest-serving staffer in her department; she always received solid performance reviews an a doctor testified that she “really cared about the patients.”

Ms. Trask, meanwhile, left her job at the clinic. She works at a nearby dental practice.

» Read Ms. Gonzalez’s amended complaint
» See video of the opening statement at trial by Ms. Gonzalez’s attorney
 


The Employment Law Group® law firm was not involved in Gonzalez v. Southern California Permanente Medical Group, Inc.. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.

During this case, Ms. Gonzalez was represented by Haeggquist & Eck, LLP and The deRubertis Law Firm, APC.


Beyond a Bad Joke

A Cop Escapes His Toxic Boss — and Gets Arrested as Payback

For more than a decade, according to a lawsuit, Aaron Jensen was the target of taunts about his supposed sexual orientation.

While serving as a police officer in West Jordan City, Utah, Mr. Jensen was baited constantly by his supervisor Dan Gallagher, who rose from a corporal to a captain over the period, according to court documents. Mr. Jensen didn’t fit into the department’s noxious locker-room atmosphere, the suit claims, so Mr. Gallagher called the young recruit “gay” — the older man’s idea of an amusing insult.

Among Mr. Gallagher’s gibes, according to testimony: That Mr. Jensen’s girlfriend was a “front”; that his later marriage was a cover-up; and that Mr. Jensen’s unborn son couldn’t be his because, as he told any officers within earshot, “we all know that you’re gay.”

Like an old-style teen bully, Mr. Gallagher would swat Mr. Jensen in the genitals, embarrass him by showing him gay pornography, and even play obscene pranks during duty calls, Mr. Jensen said in a written statement that was filed in court. Although Mr. Jensen resisted the harassment — once loudly at a staff meeting — he feared “brutal retaliation”: When the two men had clashed over a different matter, the volatile Mr. Gallagher threatened to “ruin” Mr. Jensen’s career, according to the lawsuit.

In the end, Mr. Jensen’s worst fears came true. After filing a formal complaint with Utah authorities and the U.S. Equal Employment Opportunity Commission, Mr. Jensen settled with West Jordan City for $80,000. He resigned as part of the deal, and the city agreed not to retaliate.

Just a year later, however, Mr. Jensen was arrested on felony charges resulting from an internal investigation that started on the day of his resignation. According to a complaint filed by Mr. Jensen, the criminal probe was egged on by Mr. Gallagher, who “contrived evidence” against his former subordinate.

All the criminal charges were dismissed — indeed, Mr. Jensen’s record was expunged — but not before he was fired from a new job, tarred as a suspected drug dealer.

Dan Gallagher is our new Bad Boss of the Month.

Mr. Jensen ultimately sued West Jordan City, Mr. Gallagher, and another police supervisor; among other things he claimed retaliation, malicious prosecution, and breach of contract. In June a federal jury told the city to pay Mr. Jensen more than $2.75 million in damages.

The city has requested a new trial or, alternatively, a reduction of the award. Mr. Gallagher and the other individual defendant were dismissed from the case.

According to his lawsuit, Mr. Jensen’s long battle with the West Jordan City police started with Mr. Gallagher’s nonstop homophobic “jokes,” which spread throughout the department as other officers and even high-ranking supervisors played along with the ringleader’s bullying.

Mr. Jensen said he found derisive notes in his office; once, during a staff presentation, he stepped out of the room and returned to see “You’re gay!” projected on the wall, his colleagues sniggering. For Mr. Jensen, a victim of childhood sexual trauma, the relentless abuse left him “feeling like that 12-year-old child again.”

The harassment spread beyond work: According to documents, Mr. Gallagher directly told Mr. Jensen’s wife-to-be that she was a beard — and colleagues who attended the wedding joked about Mr. Jensen’s orientation in the couple’s wedding video.

After a ceremony in which Mr. Jensen was promoted to sergeant, he recalled in the statement filed in court, the chief of police greeted his wife and several close family members by saying, “For years we thought he was gay, so it was good to see him finally get married.”

A respite away from Mr. Gallagher followed, but Mr. Jensen was transferred back to the then-lieutenant’s direct supervision. During their first staff meeting, by Mr. Jensen’s account, Mr. Gallagher welcomed his return because, he said, every unit needed its own Brokeback Mountain — a reference to the 2005 movie about gay love.

Some comments were more cruel than others. After Mr. Jensen’s wife suffered a miscarriage, Mr. Gallagher asked how things were going; Mr. Jensen said they were trying to get pregnant again, but hadn’t had any luck. Mr. Gallagher crudely offered to do Mr. Jensen’s part, according to Mr. Jensen’s statement.

Matters reached a breaking point when the men argued about where certain cases should be assigned. “You need to remember who you are,” said Mr. Gallagher, according to Mr. Jensen’s statement. “Your career is done, got that? … We’ll see who wins this battle when your life is miserable.”

“[Mr.] Gallagher was very — very controlling, very vindictive,” said Reed Motzkus, a lieutenant in the department, in a deposition. “[He] had a reputation for going after … anybody who would confront him or challenge him in any way.”

Before long there were two investigations afoot: An internal-affairs probe opened by Mr. Gallagher, who questioned whether Mr. Jensen was handling cases properly, and a review triggered by Mr. Jensen’s state and federal harassment complaints — frightened by Mr. Gallagher’s inquiry, Mr. Jensen had finally taken legal action.

Mr. Jensen was placed on leave pending the outcome. He didn’t go back to his office after that — but when he resigned as part of the settlement, about six months later, co-workers who cleaned the room came across an envelope with several balloons of heroin and the drivers’ licenses of two people Mr. Jensen had arrested.

Rather than treating the discovery as an oversight or loose end, the police department handed the matter over to the Salt Lake County district attorney’s office for criminal investigation. According to a deposition from Lohra Miller, then the D.A., both Mr. Gallagher and the police chief were “quite insistent” that she should act on the case.

Travis Rees, another lieutenant on the force, called the criminal case against Mr. Jensen “bull***t.” “I felt like the facts were being manipulated to make things look worse than they were,” he said in a deposition.

And who would manipulate facts?

“Dan Gallagher,” testified Mr. Rees, adding that Mr. Gallagher had a vendetta against Mr. Jensen.

“My understanding was, you know, … Aaron filed a complaint,” Mr. Rees said in his deposition. “Gallagher’s M.O. was if you push back against him, you’re — you know, it’s a done deal. He’s going to come at you hard.”

Mr. Jensen had been moving between jobs since resigning from the police force, including a gig at a local guitar store. After his arrest, which featured a charge of possession with intent to distribute a controlled substance, he was fired from that position.

Already battling depression and panic attacks after more than a decade of harassment — and with personal issues, besides — Mr. Jensen became more distraught and contemplated suicide, feeling “hopeless, helpless and worthless.” His marriage had fallen apart, along with his finances, but he kept fighting for his reputation.

After a preliminary hearing, two of the three criminal charges were dismissed. The remaining charge was dismissed the following year — and right around then, his nemesis Mr. Gallagher retired from the West Jordan City police department. Mr. Jensen’s entire record, from arrest onward, was ultimately expunged.

Although the jury vindicated him with its verdict of retaliation and malicious prosecution, the case isn’t over and Mr. Jensen still feels like damaged goods. He’d like to work again as a cop, he says, but believes it’ll never happen.

» Read Mr. Jensen’s original complaint (Note: Strong sexual and scatological content)
» See a post-trial TV interview with Mr. Jensen and his attorney
 


The Employment Law Group® law firm was not involved in Jensen v. City of West Jordan. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.

During this case, Mr. Jensen was represented by Hollingsworth Law Office LLC.


Fighting Words

This Bad Boss’ In-Your-Face Fury Sent His Shell-Shocked Nurse to the E.R.

Scott Davidson, a urologist in Grapevine, Texas, stands well over six feet. He’s a muscular man, trained in karate. And when he loomed angrily over Patricia Hahn, as recounted in court records, she feared for her safety.

Dr. Davidson “screamed violently” about the nurse’s supposed incompetence, Ms. Hahn said in court filings, and “punched [toward her] face repeatedly as if he was sparring in one of his martial arts fights.” His fists came within inches of connecting, she testified.

After Ms. Hahn reported his alarming actions — and also called a mental health line in distress — Dr. Davidson confronted her again, she told the court.

“You want to hear yelling?” he asked, standing over her as she cowered back in a chair. “I’ll show you yelling! NOW THIS IS YELLING. THIS IS WHAT REAL YELLING IS!”

Another doctor in the practice dismissed the verbal attacks as “no big deal,” Ms. Hahn said in documents, but the nurse was seriously traumatized. After one bullying incident she had chest pains and was hospitalized for a suspected heart attack.

Who did this to you? a cardiologist asked in concern, according to Ms. Hahn. When she was able to muster an answer, she did so with a new stutter that has dogged her since.

Scott Davidson is our new Bad Boss of the Month.

Ms. Hahn lodged a sex discrimination complaint with the U.S. Equal Employment Opportunity Commission and its Texas counterpart, alleging that Dr. Davidson didn’t bully men in the office. North DFW Urology Associates initially put her on administrative leave, but fired her soon afterward on what her lawyers called a pretext — “poor performance.”

Ms. Hahn filed suit in Texas state court against Dr. Davidson and the urology practice. Dr. Davidson told the court that his practice had dealt fairly with someone he called “a fragile human being” — yet a Dallas County jury voted to award Ms. Hahn more than $1 million in damages. Mere minutes before the verdict, Ms. Hahn agreed to settle the case for $440,000, rendering moot an outcome that likely would have been appealed anyhow.

For Ms. Hahn, now 61, the case had been “about standing up to a bully in the workplace,” according to her lawyer, Rogge Dunn of Clouse Dunn LLP. That workplace was described in court documents as “unprofessional and volatile,” since Dr. Davidson was apt to fly into a rage at any moment.

At one point, Ms. Hahn was unable to move a paralyzed patient onto an exam table. Dr. Davidson screamed at her with fists clenched, she said in court documents. The doctor acknowledged that he “raised his voice,” but only after the nurse had a “complete meltdown.”

Dr. Davidson told the court, by way of explaining the incident, that Ms. Hahn “suffers from depression and suicidal tendencies” and incorrectly “believed she had been ‘assaulted.’ ”

Dr. Davidson wasn’t the only issue at North DFW Urology, the jury heard. After a yelling incident, the practice’s office manager told Ms. Hahn she should “quit because they are going to find a way to fire you,” Ms. Hahn said in documents. The doctors would never provide her with a good reference, the manager warned — they had never written a letter of reference for any prior employee.

Another doctor brandished a gun in front of Ms. Hahn, according to her complaint. The gun wasn’t mentioned at trial, but the complaint called it an act of intimidation.

Ms. Hahn began to have “headaches, cold sweats, sleepless nights, and nightmares,” she said in a deposition. According to a psychological evaluation submitted to the court, the workplace hostility appeared to have triggered symptoms of post-traumatic stress disorder, or PTSD — and it reactivated her “previously dormant” depression. The evaluation recommended five years of psychotherapy.

Ms. Hahn’s chronic stuttering made it difficult to find a job after she was fired, according to court documents. She went back to school to improve her credentials, however, and now is employed again. She testified that she still stutters when she talks about her experience with Dr. Davidson.

Dr. Davidson, meanwhile, left North DFW Urology a year after Ms. Hahn filed her lawsuit; he now works at a different urology practice.

» Read Ms. Hahn’s original complaint (slightly redacted)
» Read a local account of the trial’s outcome
 


The Employment Law Group® law firm was not involved in Hahn v. Davidson. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.

During this case, Ms. Hahn was represented by Clouse Dunn LLP.


Shabby Treatment

This Bad Boss Didn’t Want Anything — Not Even a Death — to Tarnish the Image of a Celebrity Rehab Center

With gorgeous grounds overlooking the Pacific Ocean in Malibu, Calif., Passages rehab center is famed as a high-end haven for addicts — a luxe, spa-like facility where every patient gets a personal assistant. Celebrity graduates include Mel Gibson and David Hasselhoff; the price tag for a month of inpatient treatment tops $80,000.

Soon after Cynthia Begazo was hired as director of human resources for Passages, however, she began to notice problems at the center. Some amounted to illegal corner-cutting, she said in a lawsuit: Underpayment and misclassification of employees, a lack of required paperwork, and so on.

But she also saw blatant discrimination, according to court documents. Her boss, Marina Mahoney, was revamping Passages and, said Ms. Begazo, wanted to hire only healthy young people with blond hair and blue eyes: People who “look like they live in Malibu.”

According to her suit, Ms. Begazo balked — and she also protested when Ms. Mahoney fired employees for being “too old” and unable to “keep up.” That soured her relationship with Ms. Mahoney, who had just become the center’s chief operating officer. Tension between the women deepened when a patient died in a nearby Passages location: Ms. Mahoney wanted to alter documents related to the death, Ms. Begazo testified, but Ms. Begazo refused.

Shortly afterward, Ms. Begazo, herself a 53-year-old leukemia sufferer, took a three-day leave to recover from an infection. Upon her return she was fired by Ms. Mahoney and Passages CEO Pax Prentiss because she was “no longer a fit” at the rehab center.

While she was out sick, she told the court, her job was offered to a coworker.

Marina Mahoney is our new Bad Boss of the Month.

Ms. Begazo filed a complaint in California state court against defendants including Ms. Mahoney, Mr. Prentiss, and various Passages entities. This March, a Los Angeles jury found two of the Passages-related corporations liable for retaliation and wrongful termination, and awarded Ms. Begazo $1.8 million in damages.

Ms. Begazo’s tenure at Passages was short and rocky — about two months in mid-2015. At the time Ms. Mahoney was a newcomer to Passages, too, hired just a few months earlier and promoted to COO around the time that Ms. Begazo arrived.

From the start, things were uncomfortable. Although she knew of Ms. Begazo’s leukemia, and although Ms. Begazo warned her about anti-discrimination laws, Ms. Mahoney repeatedly griped about employees who were older or had medical conditions, according to court documents — often with the support of Mr. Prentiss.

Of an older woman with a bleeding disorder, for example, Ms. Mahoney and Mr. Prentiss complained that she was “sick all the time” and “will never … fit in the new Passages image,” according to court filings. Both executives wanted to fire another older woman who had taken medical leave: “She stinks because of her medical condition,” Mr. Prentiss said, according to Ms. Begazo’s testimony.

After Ms. Mahoney fired a different staffer, Ms. Begazo asked why. The COO’s response, according to the lawsuit: The woman “smelled foul” and couldn’t “keep up because she was too old.” That same month, Ms. Mahoney fired two more employees, both over 50.

In court documents, Passages claimed that Ms. Mahoney’s firings were routine “personnel management activity.”

By any account, however, the patient’s death was not routine. A non-celebrity, Gregory Link died while spending his first night in a shared room in Passages Ventura, just up the California coast in Port Hueneme. According to court documents, Ms. Begazo met with Ms. Mahoney at the scene and discussed the strange details: The dead patient had a bag and a trash can over his head and scratch marks on his face. There was blood on the other bed in the room — and Mr. Link’s roommate had posted photos on social media.

Ms. Begazo began asking questions about bed checks and proper reporting procedures but, according to her lawsuit, Ms. Mahoney shut her down. Later Ms. Begazo discovered that the Passages nurse on duty that night hadn’t been properly trained. In a deposition, she alleged that Ms. Mahoney told her to “fix the files” to hide this fact, which she declined to do.

(The local coroner deemed the death to be a suicide, but Mr. Link’s widow sued both Passages and the roommate for wrongful death; a trial is set for December. The Link complaint alleges, among other things, that Passages didn’t train its staff properly and concealed evidence from authorities.)

A few days later, Ms. Begazo asked for time off to fight an infection. During the absence, Ms. Mahoney pestered her with work requests — and then, the day after Ms. Begazo returned, teamed with Mr. Prentiss to fire her.

In court filings, Passages claimed that the firing wasn’t retaliatory at all — not for Ms. Begazo’s opposition to discriminatory firings, and not for her qualms about the handling of Mr. Link’s death. Instead, said Passages, Ms. Begazo was “terminated for poor performance.” Anyhow, it noted, the HR director was still in her probationary period and had failed to “integrate herself” into the organization.

At trial, however, the jury found Passages acted in retaliation. It awarded her economic damages of almost $280,000 — plus more than $1.5 million for non-economic harms, which Ms. Begazo said required treatment by two doctors and included shock, embarrassment, diminished confidence, anxiety, insomnia, isolation, and numbness.

Ms. Mahoney, meanwhile, moved on to another rehab center. Shortly after the March verdict she wrote to a Malibu newspaper, saying that Ms. Begazo “fooled the entire jury” and defending herself as a “good, honest and ethical person.”

According to the letter, Ms. Mahoney will start an “employer advocacy group” to protect companies from further injustice.

» Read Ms. Begazo’s second amended complaint
» Read the latest wrongful-death complaint of Mr. Link’s widow
 


The Employment Law Group® law firm was not involved in Begazo v. Passages Silver Strand LLC. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.

During this case, Ms. Begazo was represented by Shegerian & Associates, Inc..


Sit. Stay. Good Employee.

This Bad Boss Forced a Whistleblower to Sit in a Lobby for Months

Does your manager assign too much work? Troy Miller had the opposite problem: For seven months his boss made him sit on a sofa all day, twiddling his thumbs as puzzled colleagues walked by.

As a superintendent at a federal prison in Beaumont, Texas, Mr. Miller had overseen the facility’s manufacture of helmets for military use in Afghanistan and Iraq. After investigators began probing the troubled operation, Mr. Miller made his own report of shoddy practices — and urged that production be halted so that no unsafe helmets would go to U.S. troops.

The reaction of his boss, prison warden Jody Upton? He took away Mr. Miller’s computer access, his keys, and his job duties — all to prevent Mr. Miller from obstructing the ongoing investigation, he said. Then the warden gave Mr. Miller, who was not charged with a crime, a series of jobs that were clearly below his pay grade, including wiping tables and shredding paper.

After more than 18 months of these make-work assignments, Warden Upton finally told Mr. Miller to park himself in the lobby of an administrative building — supposedly to cut off communication with the inmates he had overseen.

“I had no duties” besides sitting on a sofa, recalled Mr. Miller in a hearing. A fellow employee said the high-profile exile marked Mr. Miller as “a leper.”

Warden Jody Upton is our new Bad Boss of the Month.

Mr. Miller complained to the government’s Merit Systems Protection Board about the actions of Warden Upton and other bosses. Although an administrative judge called Mr. Miller’s treatment “demoralizing … and extremely inefficient, even wasteful,” the MSPB noted that Warden Upton said he acted at the behest of the U.S. Department of Justice’s Office of the Inspector General (OIG), which was looking into improprieties at Beaumont — including possible wrongdoing by Mr. Miller.

As a result, said the MSPB, Mr. Miller’s do-nothing assignments didn’t qualify as illegal punishment.

In December 2016, a federal appeals court reversed the MSPB and vindicated Mr. Miller, saying that Warden Upton’s story lacked corroboration and, even if true, “affords only minimal support” for the treatment endured by Mr. Miller. It ordered the MSPB to determine a proper remedy for Mr. Miller — although that’s now on hold, as the Justice Department requests a rehearing.

Mr. Miller’s demotion to couch potato was an unlikely outcome for the former U.S. Marine and two-decade veteran of the Federal Bureau of Prisons: Even after the fact, Warden Upton acknowledged him to be a “fantastic” employee — “confident, organized … very on top of things.” His performance rating before the conflict was “Outstanding.”

The trouble started in 2009, about two years after Mr. Miller became a superintendent at Beaumont. The inmate-staffed helmet factory had swung from an $8 million profit to a loss, a change that Mr. Miller blamed on underbilling and mismanagement by Federal Prison Industries, the government-owned corporation that contracts for prison labor and is commonly known as UNICOR.

About two months before he asked for a production halt, Mr. Miller had reported UNICOR’s financial troubles to Warden Upton and others. Now he shifted his focus to safety: He had discovered, he said, that defective Kevlar was being used to make helmets. He suspected “sabotage” on the line.

“The lives of U.S. Marines are more important than anything else,” he wrote in an e-mail to Warden Upton.

Mr. Miller made his discovery the morning after OIG investigators had visited Beaumont; the previous day, he had been ordered not to report to the helmet factory during the visit. According to Warden Upton, the burgeoning OIG probe — which ultimately would lead to the factory’s closing and a $3 million civil settlement — started with a tip from a line manager who had been reported by Mr. Miller for sexual misconduct.

Immediately after hearing Mr. Miller’s helmet-safety concerns, Warden Upton decided to shift him out of the factory, triggering a succession of make-work jobs. The warden was motivated, he said, by a request from an OIG official whom he never named — not by Mr. Miller’s safety warning.

Warden Upton would later learn, he testified, that OIG was considering criminal charges against Mr. Miller and wanted him to be completely isolated from inmates. The warden never cited a specific source for that information, either.

Mr. Miller was never charged criminally, and a civil complaint that named him was dismissed. While the MSPB believed that Warden Upton had acted validly given OIG’s suspicions, the appeals court disagreed: It characterized Mr. Miller as “a valued executive, whose expertise and attention to detail made his product line one of the most successful in the [prison bureau].”

The bottom line for the appeals court: Warden Upton’s unsupported testimony, by itself, couldn’t be the “clear and convincing” evidence that’s required to disprove apparent retaliation under the Whistleblower Protection Act.

“Mr. Miller was repeatedly reassigned,” the court observed, “… and for each step, the Government did not present a single email, memorandum, or personnel action form …. Common sense tells us that these … are the types of personnel actions for which papers would normally attach.”

For his part, Mr. Miller claimed that Warden Upton was moved to retaliate because a potential shutdown would harm the Beaumont prison and deprive inmates of employment. And indeed, the warden himself testified that discipline would be a greater challenge without the factory routine, a fact that caused him “some angst.”

Regardless of the reason, recalled Mr. Miller, “I was done. I’ve never been back in that factory.”

What followed was a downward spiral of job duties. Warden Upton first sent Mr. Miller to oversee inmates as they took meals. But that didn’t last long because, according to the warden, OIG didn’t want Mr. Miller talking to inmates.

Later Mr. Miller was assigned to monitor inmates’ recorded phone calls — until that, too, was nixed by OIG. Mr. Miller did a stint in the prison’s personnel office, where he did “clerical kinds of things, you know, shredding,” explained Warden Upton.

“Is that a waste of his talents?” the warden was asked at a hearing.

“Absolutely,” answered Warden Upton.

Most wasteful, however, was what the MSPB administrative judge called Mr. Miller’s “demoralizing sojourn on the lobby sofa,” which started in 2011. As the couch-sitting wore on, the prison’s safety officer began to worry about the superintendent’s mental state, because virtually no one interacted with him: “He was just kind of like a fixture in the lobby,” he testified.

In the meantime, Warden Upton moved on to a new job in Oklahoma and the helmet factory shut down permanently. Mr. Miller was rescued from the lobby and named as Camp Administrator, then Management Analyst. Although he got an office, the titles meant little: At the end of 2012 the OIG was still investigating and Mr. Miller was pressure-washing the administrative building.

Soon afterward Mr. Miller filed his petition to the MSPB, alleging violations of the Whistleblower Protection Act — a statute that protects federal employees from retaliation for blowing the whistle on fraud, waste, and abuse.

In August 2016, a few months before Mr. Miller’s win at the U.S. Court of Appeals for the Federal Circuit, the OIG finally announced the results of its long-running investigation. The shuttered Beaumont facility had “endemic manufacturing problems” and produced helmets with “numerous defects,” it said. UNICOR staff cheated on inspections, and falsified documents in order to sell rejected helmets to the U.S. military. Mr. Miller was not mentioned.

The OIG said it had no evidence that the faulty helmets caused any deaths or injuries — but the government ended up recalling more than 126,000 units at a cost of more than $19 million.

Earlier in 2016, ArmorSource LLC, an Ohio-based defense contractor that had engaged UNICOR to make helmets at Beaumont, agreed to pay $3 million to settle charges that it had defrauded the government. Part of that settlement will go to the whistleblower who originally accused Mr. Miller of wrongdoing.

» Read the opinion of the Fed Circuit
» Read the Justice Department’s petition for rehearing

 


The Employment Law Group® law firm was not involved in Miller v. Department of Justice. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.

During this case, Troy Miller was represented by Dennis L. Friedman, of Philadelphia; and by David L. Wilson, of Stigler, Okla.


Bada Bing, You’re Fired

This Bad Boss Canned Two High-Achieving Siblings — One of Them “Jersey-Style” at a Parkway Rest Stop

Ramon Cuevas managed residential properties, and he did it well. During his tenure as regional vice president of Wentworth Property Management Corp. (WPM), based in Eatontown, N.J., he received high ratings and expanded his property purview from nine to 24.

WPM also hired Ramon’s brother Jeffrey Cuevas — and Jeffrey quickly thrived, too, rising from portfolio manager to executive director. The siblings were minority success stories: Although the WPM workforce was 20 percent Hispanic, Ramon was the only Hispanic person in upper-level management. Jeffrey hoped to join him there.

Things soured for the Cuevas siblings, according to court documents, when they fell under the supervision of Arthur Bartikofsky, executive vice president of operations at WPM, a part of FirstService Corp., the Canadian property-services giant. Suddenly they found themselves singled out for belittlement as “the two Chihuahuas,” among other slights.

Mr. Bartikofsky set the demeaning tone, according to testimony, with unfunny cracks like the one at a business lunch, where he talked about sending Ramon Cuevas to “join his father” washing dishes in the back of the restaurant. Other executives joined in the mockery — even WPM’s director of human resources.

Both brothers hated the jibes, but tried not to seem thin-skinned. Jeffrey Cuevas finally complained to WPM’s in-house lawyer, however, and Mr. Bartikofsky responded by firing the junior brother. A few weeks later, on New Year’s Day, Mr. Bartikofsky tapped his inner Tony Soprano and asked Ramon Cuevas to meet him at a rest area on the Garden State Parkway.

“Don’t bother sitting down,” said Mr. Bartikofsky. “You’re terminated.” The scene evoked a “Jersey-style” hit, according to one of Mr. Cuevas’ lawyers.

Arthur Bartikofsky is our new Bad Boss of the Month.

The Cuevas brothers filed a complaint claiming discrimination and retaliation, among other things, and a state jury awarded them total damages of $2.5 million — including a combined $1.4 million for emotional distress. In September 2016, the Supreme Court of New Jersey affirmed the emotional damages, noting that the Cuevas were subjected to “mental anguish and humiliation … sustained over a long period.”

In court, Ramon and Jeffrey Cuevas described the ethnic comments as relentless — and said that Mr. Bartikofsky was the enabler, “joking” about their heritage at high-level meetings, staff gatherings, and even in front of vendors and contractors. Other WPM executives in attendance, including the company’s president, said nothing or added their own tired tropes.

While executives were listening to music before a conference call began, for instance, someone asked for “something a little more to Ramon’s taste … a little Mariachi or salsa music?” At catered lunches, people would mock-apologize to Ramon for not having burritos or tacos. At a restaurant, someone pointed out a Hispanic bus boy and told Ramon he “could have been your twin.” One day Ramon had to fix a flat tire on his way to work; a colleague suggested he was lucky not to have been mistaken for a “Puerto Rican … trying to steal … the hubcaps.”

Ramon Cuevas testified that he felt “chopped down day by day, month by month” by the stereotypes. And once he was promoted, Jeffrey Cuevas also faced “extremely degrading” treatment at many of the same meetings. One reaction when Jeffrey joined the executive circle: “[W]e’re going to need … another Chihuahua.”

Mr. Bartikofsky already had been calling Ramon Cuevas “Rico Suave,” a reference to the 1990 hit song about a ladies’ man by Ecuadorian rapper Gerardo. Now Mr. Bartikofsky began talking about the “Rico Suave brothers,” while WPM’s HR chief referred to the Cuevas as “the Latin Lovers,” according to testimony — a label that Jeffrey Cuevas found especially “grotesque” coming from a personnel expert.

Another theme: Dangerous Hispanic people. Two WPM property managers testified that Mr. Bartikofsky assured them that Ramon Cuevas could keep them safe in bad neighborhoods because he was “one of them.” Jeffrey Cuevas heard the same notion from another WPM regional vice president, who added that Ramon would “have his switchblade with him, because, of course, he’s Spanish.”

Both brothers hesitated to complain because WPM’s top brass was already aware of the harassment — and indeed, often participated. When Jeffrey Cuevas couldn’t stand it anymore, however, he flagged his discomfort to WPM’s in-house counsel. Just four days later, Mr. Bartikofsky terminated him.

Shocked, Jeffrey Cuevas initially thought the firing was a joke: He had gotten a merit raise just a few weeks earlier. But Mr. Bartikofsky stood firm and ordered Jeffrey to clear out his desk. As he made what he called his “walk of shame” out of the office, Jeffrey Cuevas wondered how to tell his wife that he had lost his job three weeks before Christmas.

WPM replaced Jeffrey Cuevas with a Caucasian male pest-control manager who had no property management experience.

A few weeks later, on New Year’s Day, Ramon Cuevas got an unexpected call from Mr. Bartikofsky, who asked for a meeting at the Cheesequake Service Area on the Garden State Parkway. Although the request was strange, Ramon agreed. When he arrived, Mr. Bartikovsky handed him an envelope and fired him on the spot. Inside the envelope was a letter blaming Ramon for losing accounts — and accusing him of soliciting a kickback, a charge he denied.

At trial, WPM portrayed the unusual firing location as a matter of convenience. One of Mr. Cuevas’ lawyers, however, said WPM wanted to do it “Jersey-style. [The mob] used to issue hits that way. That was the mentality.”

Ramon, like Jeffrey, was replaced by a Caucasian male. Despondent and edgy from a long period of humiliation, he had been fighting with his wife. Now, just a few months after the termination, she filed for divorce. He wound up sleeping on a friend’s sofa.

In appealing the jury’s verdict for emotional damages, WPM argued that any insensitive remarks attributed to Mr. Bartikofsky or other executives were just “teasing,” and that $1.4 million was excessive as a total award. The New Jersey Supreme Court disagreed, saying that as a general matter it won’t second-guess a jury’s reaction …

… to the timbre of a voice that recalls the emotional cuts and slashes felt from racially animated discrimination; to in-depth descriptions of daily workplace humiliations that mentally beat down an employee; and to first-hand accounts of mental anguish — anguish that leads to depression and frays personal relationships.

The awards — $800,000 to Ramon Cuevas and $600,000 to Jeffrey Cuevas — would stand.

» Read the opinion of the N.J. Supreme Court
» Read the original complaint

 


The Employment Law Group® law firm was not involved in Cuevas v. Wentworth Group. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.

During this case, Ramon Cuevas and Jeffrey Cuevas were represented by Del Sardo & Montanari, LLC; by Cutolo Mandel LLC; and by John J. Piserchia.


Clinical Trials

This Bad Boss Tracked Employees on Her Smartphone — and Punished Any Naysayers

Teecha Chamblee never had panic attacks before she was hired as the clinic manager at Inland Behavioral and Health Services (IBHS) — but then, she had never worked for Temetry Lindsey before.

For 30 years now, Ms. Lindsey has run the non-profit community clinic in San Bernardino, Calif. As painted in a series of lawsuits filed by former employees, including Ms. Chamblee, she is a dictatorial CEO who hires family members, charges poor patients too much, permits lavish narcotics handouts, and freezes out — or fires — anyone who crosses her.

According to testimony, Ms. Lindsey tracks employees' movements on her smartphone, to which she has piped video feeds from cameras all over IBHS facilities. She allowed one supervisor to deprive "lazy" clinic employees of desks and chairs, forcing them to kneel as they typed. And she used the non-profit's money to buy herself a BMW X5, ostensibly at the request of her board of directors, a hand-picked group that includes her hairdresser.

Ms. Chamblee said she tried to challenge the worst practices at IBHS, including some evident faking of patient data. But for her troubles — which included a run-in with Ms. Lindsey's disruptive daughter, who was on the non-profit's payroll — she was banished from the executive suite and shut out of key meetings. Ultimately she had no choice but to quit.

"I felt like I was in a cult," Ms. Chamblee said in a deposition. "I don't do cults."

Temetry Lindsey is our latest Bad Boss of the Month.

Ms. Chamblee quickly found another job. In July 2016 a California state jury awarded her $50,000 in damages from IBHS, saying that she was effectively fired for speaking up, and that IBHS acted with "malice, fraud or oppression."

In court documents, Ms. Chamblee described her time at the clinic as "hell." Besides having her first-ever panic attack, she gained a lot of weight under the stress of being shunned by Ms. Lindsey, her direct supervisor.

Among other problems at IBHS, Ms. Chamblee had flagged the clinic's improper practice of including food-stamp payments in its calculation of poor patients' income, which allowed IBHS to charge higher fees. Ms. Lindsey listened to her concern, but replied that nothing would change.

Ms. Chamblee also dealt with issues caused by the IBHS medical director, Donald Underwood, who was hired by Ms. Lindsey despite prior suspensions in five other states for problems including overprescription of narcotics, malpractice, and fraud. In New York, by his own account, he was suspended for allowing his wife, who is not a physician, to implant synthetic fiber in patients' scalps in imitation of "authentic hair."

At IBHS, Ms. Chamblee testified, Dr. Underwood was in heavy demand as the only physician willing to prescribe promethazine with codeine, a narcotic cough syrup that's often mixed with soda and candy to make a street cocktail known as "sizzurp" or "purple drank."

"Most of the patients came to see him," said Ms. Chamblee, "because he — well, you know … he gave out meds."

Other IBHS personnel warned about Dr. Underwood. Tiffany Hill, a physician at the clinic, sent an e-mail to Ms. Lindsey saying that Dr. Underwood’s prescriptions "scared" her, noting that one patient had received scripts for a virtual pharmacy of pills, including 485 hydrocodone, 830 Tramadol, 330 Xanax, and 270 Valium. Dr. Hill and another IBHS employee were fired after making such complaints, and later settled a joint lawsuit they filed against the clinic.

According to Ms. Chamblee, the only survivors at IBHS are those who don’t challenge Ms. Lindsey or her protectees, who include family members and Dr. Underwood. "Whatever she said, goes," said Ms. Chamblee. "Nobody contested or questioned anything, even if they knew better." Behind her back, however, disgruntled workers called her "the blue-eyed devil," Ms. Chamblee testified. (Ms. Lindsey has striking blue eyes.)

Even longtime employees could be targets for the CEO. Barbette "Bobbie" Barton, who was Ms. Lindsey’s personal assistant for 13 years, claimed in court documents that Ms. Lindsey was abusive and threatened to fire her, for instance, if she didn’t get her "a** down to the store to pick up snacks" for a meeting.

Ms. Lindsey also was demeaning of Hispanic people, calling them "wetbacks" and "beaners" in front of Ms. Barton, whose daughter-in-law and grandchildren are Hispanic.

Like Ms. Chamblee, Ms. Barton became hobbled by the stress of working for Ms. Lindsey. She filed a workers' compensation claim to take time off — but when she returned, she said, she was stripped of all duties, moved to a different location, and deprived of a computer and telephone. For several weeks, she could do little more than make copies.

Ms. Barton also filed suit against IBHS, and reached a settlement.

Ms. Chamblee herself was frozen out for a variety of reasons. Ms.Lindsey sent security to confiscate her key to the executive suite, for instance, after she raised concerns that IBHS wasn't complying with state and federal regulations — and that data submitted in applications for government funding didn't match IBHS records.

Ms. Lindsey seemed just as upset, however, when Ms. Chamblee passed along complaints about the workplace antics of Samantha Dotson, the CEO's unruly daughter.

Ms. Dotson reported to Ms. Chamblee, but "came and left whenever she wanted" and dressed and behaved unprofessionally. "She would do little stupid things like take people's lunches, hide people's purses," testified Ms. Chamblee. "She'd throw things across the cubicles. I couldn't go and tell her to stop … because that's the boss' daughter."

One of Ms. Dotson's pranks contributed to a sexual harassment lawsuit filed by another employee, which was resolved out of court.

Ms. Lindsey's mother also worked at IBHS, and the CEO's son became pharmacy supervisor, with access to medications, although former employees have challenged his qualifications in court filings.

Ms. Chamblee finally quit under pressure from her boss, who stopped replying to e-mails and declined to give her work assignments. "I just couldn't take it," said Ms. Chamblee, a mother of three who was seeing a doctor for a worsening health condition. "I don't ever want to see [Ms. Lindsey] again, and even talking about her sometimes makes me sick."

Like many former IBHS employees, Ms. Chamblee was represented in her case by Tristan Pelayes, a local attorney and former deputy sheriff who has been dogged in pursuing Ms. Lindsey.

Mr. Pelayes' next IBHS case, representing Anais Parsaeian, a former nurse at the clinic, may reach trial in 2017. He says he has more lined up after that.

» Read Ms. Chamblee's complaint

 


The Employment Law Group® law firm was not involved in Chamblee v. Inland Behavioral and Health Services, Inc.. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.


Anger Mismanagement

This Bad Boss Fired an Employee for Cursing at a Co-Worker Who Tried to Choke Him

It was James Yang's small habits that triggered Cy Tymony's anger.

Mr. Yang worked near Mr. Tymony on a computer help desk. He chewed ice. He put Coke cans in the shared freezer, where they sometimes burst. He tapped his foot against his own chair. He ate candy during team meetings.

Mr. Tymony, known in the office as a hothead, stewed over such minor annoyances before finally asking his boss, Harry Cometa, to shift Mr. Yang to the far side of the room.

Mr. Cometa spoke with both men, and agreed to separate them. But later that day, when Mr. Yang suggested that Mr. Tymony should be the person to move, Mr. Tymony exploded into violence.

According to court documents, he grabbed Mr. Yang's neck, started to choke him, and threatened to kill him. Mr. Tymony then punched and kicked a cubicle wall until it fell down. Security officials arrived and quickly removed the two men; Mr. Tymony ended up handcuffed to a chair.

Mr. Cometa wasn't in the office at the time, but he listened to the aftermath over an employee's phone. Since both workers were yelling obscenities, Mr. Cometa decided to fire them both. He didn't answer follow-up e-mail or calls from the anguished Mr. Yang, who wanted to explain what happened.

And Mr. Cometa never backed down — not even after getting an official report that caused his HR manager to describe Mr. Yang as "a complete victim."

Harry Cometa is our new Bad Boss of the Month.

After the trauma, Mr. Yang's life fell apart: He lost his career, his apartment, his self-esteem — even a chance at reconnecting with a long-ago love. Ultimately he filed a lawsuit claiming wrongful termination and infliction of emotional distress. Earlier this year, a federal jury found in his favor and awarded him $7.4 million in damages.

At time of the incident, Mr. Yang had been employed for about four years by ActioNet, a company with a help-desk contract for the Federal Aviation Administration in Lawndale, Calif. A dedicated employee, he regularly received raises; his latest came just a month before he was fired.

Mr. Tymony joined the help desk shortly after Mr. Yang. He was an amateur inventor and author of a series of kids books called Sneaky Uses for Everyday Things. His tinkering started early: As a child he had created a device that would shock bullies who menaced him, according to a Los Angeles Times profile.

At work, however, Mr. Tymony sometimes did the menacing himself. A co-worker testified, for instance, that Mr. Tymony became livid when nearby employees "pinged" each other too loudly on an instant-messaging system — so he sent them crudely worded demands to stop.

Another profane showdown came when several co-workers believed Mr. Tymony had been drinking coffee for which they had paid. His angry retort: "I drank my own f***ing coffee." Mr. Tymony reopened the argument at a subsequent department meeting, waving a bag of coffee and proclaiming his innocence.

At other team meetings, according to testimony, Mr. Tymony cursed at Mr. Yang, his peer, for asking "stupid" questions and for eating candy.

"F***, you never stop eating," he shouted after the candy run-in, slamming a wall with his fist. "You don't respect anyone — your co-workers, not even your manager!"

Mr. Yang didn't complain to ActioNet about Mr. Tymony's behavior, he said in court, because he was "afraid" of his co-worker. But another employee sent e-mail to management after the candy outburst, suggesting that Mr. Tymony's rage was undermining a safe work environment.

In early 2012, Mr. Cometa joined ActioNet as a manager for both Mr. Yang and Mr. Tymony. Apparently he was aware of previous troubles: He asked employees to go "easy" on Mr. Tymony, saying that the help-desk worker was "going through family issues."

That summer, however, Mr. Tymony's anger bubbled over again. First, according to testimony, he sent Mr. Cometa an e-mail complaining about Mr. Yang's habits — about his yawning, about his loud chewing noises, and about his exercises, which Mr. Yang performed in a small area by his desk. Mr. Tymony asked that Mr. Yang be moved.

Three days later, Mr. Cometa talked to each man about separating their cubes. Mr. Yang didn't want to move, but Mr. Cometa asked both men to avoid discussing the matter; he would make a decision the next day. Then the manager went home.

Shortly afterward, according to testimony, Mr. Yang overheard Mr. Tymony talking on the phone about a "Korean guy" who is an "a**hole." He approached Mr. Tymony and said that Mr. Tymony — not Mr. Yang — should be the person to move cubicles.

Enraged, Mr. Tymony grabbed Mr. Yang's neck and threatened to "kill" him, according to testimony. Mr. Yang closed his eyes and didn't fight back. Mr. Tymony let go but, still furious, "punched the cubicle in," according to a coworker who quickly called Mr. Cometa.

During that call, Mr. Cometa could hear the two employees yelling "F*** you" at each other in the background. Without knowing any details, he decided to fire them both.

Security officers separated the feuding men and, at Mr. Cometa's request, confiscated their access badges and sent them home. Mr. Yang was crying, he recalled at trial. "I didn't do anything," he remembers insisting.

An upset Mr. Yang called Mr. Cometa the next day, but Mr. Cometa didn't take the call. He also e-mailed Mr. Cometa, pleading his side of the story, but Mr. Cometa just referred him to Human Resources, where no one answered or returned his calls.

FAA agents had conducted interviews for a "spot report" about the fight — a report that prompted ActioNet's HR manager to send an e-mail that said, "it sounds like [Mr. Yang] was a complete victim." Mr. Cometa responded that he was still comfortable with the firing. At trial, he confirmed that he did nothing to investigate the matter. "I didn't need to," he said.

At Mr. Yang's home, meanwhile, a packet arrived with termination papers. It was the final insult, recalled Mr. Yang: "To me this letter was the most cruel letter ever in my life … I mean, this was to me just: We don't care. Go die."

Mr. Yang, then in his forties, had expected to work at the help desk until retirement. After being fired for cause, however, he couldn't find another job and teetered on the edge of homelessness. He was depressed and numb, and had suicidal thoughts.

Just before he was fired, the never-married Mr. Yang had gotten an unexpected call from his "first love," a high-school friend who now wanted to reconnect. He couldn't even face her initially, but after a few weeks he went to visit her. She told him to get a job. By the time of his trial, however, the only job Mr. Yang had secured was as a part-time, minimum-wage caregiver who lived in his patient’s home.

Mr. Tymony, meanwhile, found another computer job soon after being terminated — in a higher position than before.

» Read Mr. Yang’s trial testimony about the effects of his termination — and his lost love
» Read Mr. Yang’s third amended complaint

 


The Employment Law Group® law firm was not involved in Yang v. ActioNet, Inc.. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.


‘Camel People’

This Bad Boss Knew Nothing About Middle Easterners — Except That He Disliked Them

Shortly after Greg Washenko joined Fairview Property Investments as its chief financial officer, he had a “meet and greet” in his office with Monica Guessous, a bookkeeper who would serve as his direct report.

Upon learning that Ms. Guessous was born in Morocco, he informed her — based on an experience with some Iraqi customers — that “Middle Easterners … are a bunch of crooks [who] will stop at nothing to screw you.”

That insult set the tone for the next four years, according to court documents. Mr. Washenko bullied Ms. Guessous, a Muslim Arab American, and peppered her with ignorant and offensive remarks, often conflating her Moroccan heritage with other Middle Eastern identities.

At one point, irked that Ms. Guessous couldn’t act as translator for an Iranian restaurant employee — because she does not speak Farsi — Mr. Washenko blurted, “Shouldn’t there be some secret language that you all understand?”

At other times, Ms. Guessous testified, Mr. Washenko interrupted her workday to grill her about Islam, Palestinian suicide bombers, or an uprising in Egypt. When she mentioned the modernity of Dubai, he dismissed its residents as “just a bunch of camel people.”

Matters came to a head when Ms. Guessous returned from maternity leave to find that Mr. Washenko had withdrawn most of her work assignments. She confronted him about his ongoing behavior and asked to get her duties back — only to be fired soon afterward.

Greg Washenko is our new Bad Boss of the Month.

Ms. Guessous filed a federal lawsuit against Fairview, a property management company based in Falls Church, Va. In July, the U.S. Court of Appeals for the Fourth Circuit ruled that a jury should hear her claims of discrimination, retaliation, and hostile work environment, citing evidence of “a history of discomfort, distrust, … disparaging treatment [and] discriminatory animus.”

Fairview quickly settled with Ms. Guessous on undisclosed terms.

Besides Mr. Washenko’s comments — which even a Fairview attorney agreed were inappropriate — the Fourth Circuit also cited evidence of “intimidating and intrusive” behavior that was designed to make Ms. Guessous feel untrusted.

As many as 40 times a day, for instance, Mr. Washenko would loom over Ms. Guessous at her desk, making her feel “cornered,” and ask what she was working on.

“He would stand with shoulders wide,” Ms. Guessous said at a deposition. “He made me feel like I was small, like I was nothing. I was this little camel-riding person that came here to the U.S. and that he was better than me.”

Just five minutes after she started one assignment, Mr. Washenko asked her whether it was done — and when she said it was not, he “looked at his watch, snapped his fingers, and said, ‘[T]his is not Moroccan time,'” according to the Fourth Circuit opinion.

Mr. Washenko didn’t monitor other Fairview employees so closely, and Ms. Guessous felt isolated, depressed, and anxious as a result. She testified that she often left the office to cry; she fretted about how workplace stress might affect her pregnancy.

Some of Mr. Washenko’s needling was intensely personal: For months he insisted on addressing Ms. Guessous as “Mounia,” her Moroccan name, for instance, despite her repeated requests to use her Americanized preference, “Monica.” A professed Christian, he denigrated her faith for not believing in “the same God.”

And when she wished him well on his birthday, which happens to fall on September 11, Mr. Washenko said he was reminded of “the terrorist attacks by the Muslims” and stalked off.

“I have never felt so inferior to anyone as I am feeling at this point,” she wrote in a personal e-mail at the time, noting that she was “sick and tired of [being] the 411 for issues relating to a Muslim terrorist.”

Ms. Guessous’ three-month maternity leave triggered a showdown. Mr. Washenko declined to give her any substantive work when she returned. She challenged him, citing his bias against her — and within minutes Fairview’s president had started soliciting a new job for “a wonderful girl that works for me that we simply do not have enough work for right now.”

Ms. Guessous was formally fired three months later, but Fairview admitted that the decision was made at roughly the time she confronted Mr. Washenko. “A reasonable jury could easily conclude” that the firing was retaliation, according to the Fourth Circuit.

Ms. Guessous’ husband was not working at the time, her new baby had special needs, and she subsequently went on welfare. Her family relationships suffered, and she sought therapy to “combat the years of mental torture and abuse” inflicted at Fairview.

Even as he was firing Ms. Guessous, however, Mr. Washenko seemed blind to the pain he was causing her. Indeed, according to her deposition, he halted her termination meeting to a receive a personal text — and then laughed aloud.

“My wife is out of town and I’m playing Mr. Mom today,” he explained, chuckling at the text. “My daughter just got her period at school.

“Any advice?”

» Read the Fourth Circuit opinion
» Read Ms. Guessous’ amended complaint

 


The Employment Law Group® law firm was not involved in Guessous v. Fairview Property Investments, LLC. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.


Hunger Games

As a Pretext for Firing, This Bad Boss Picked a 68-Cent Pepper

Bobby Dean Nickel never dreamed that his career would end over a 68-cent bell pepper — but that’s exactly what his boss, Lionel Marrero, used as an excuse to dump him.

Mr. Nickel was working as a manager at an office-supplies warehouse in La Mirada, Calif., when Mr. Marrero started to push out older, higher-paid workers in favor of “young energetic people,” according to court testimony. Among other tactics, Mr. Marrero told his staff to walk around the warehouse with older workers and “if they cannot keep up then get rid of them.”

Mr. Nickel, then 64, had gotten mostly good reviews for a decade. Still, Mr. Marrero needled him about retiring from the Staples, Inc. subsidiary. He piled on extra work and called Mr. Nickel an old “goat” and “coot,” according to documents.

Finally, Mr. Marrero saw Mr. Nickel carrying a bell pepper from a salad he had discarded during an after-hours inspection of the warehouse cafeteria. That was it: Mr. Nickel was labeled a thief and fired — a result that Mr. Marrero later admitted in court was “almost … ridiculous.”

Lionel Marrero is our new Bad Boss of the Month.

Mr. Nickel’s life crumpled after the firing, and he sued Staples and its subsidiary. A California jury found the companies liable for age discrimination and awarded Mr. Nickel $26 million — a sum that included almost $23 million in punitive damages. The trial judge disallowed $10 million of that amount; Staples appealed the remainder. This May a state appeals court affirmed the revised verdict, saying it was supported by ample evidence that Staples’ behavior was “base, contemptible, and vile.”

At the time of his termination in 2011, Mr. Nickel had been making nearly $90,000 a year as facilities manager in La Mirada: The operation had a higher pay scale than other parts of Staples, inherited when the office-supplies giant acquired the business in 2008.

Then came Mr. Marrero’s cost-cutting campaign. In meetings attended by Mr. Nickel, according to testimony, Mr. Marrero told managers to take “a closer look at the older people. They are starting to drag and are slowing down.”

Any older person who was not a top performer should be written up and dismissed, said Mr. Marrero, because “we can get younger people to work cheaper.” Mr. Marrero even offered older workers paid leave so they could look for other jobs, according to Mr. Nickel.

Mr. Marrero repeatedly asked Mr. Nickel when he planned to stop working. Mr. Nickel replied that he didn’t plan to retire until the day he died — an answer that didn’t please Mr. Marrero.

Based on his manager’s hostility, Mr. Nickel became anxious about his future with Staples. His wife testified that he withdrew from his family and was “consumed with this fear of losing his job and not being able to provide for us.”

Things came to a head with “the bell pepper incident,” as the appeals court called it.

One day Mr. Marrero had bumped into Mr. Nickel, who was carrying a bell pepper he had rescued from a ruined cafeteria salad. When Mr. Marrero asked about the pepper, Mr. Nickel said he would pay for it the next day when the cafeteria reopened — an honor system that both men knew was common practice.

The next thing Mr. Nickel knew, however, the company’s security chief was accusing him of theft and yelling at him, “We got you. We got you. You did it.” Although he ultimately paid for the pepper, Mr. Nickel was suspended for three days. When he returned to work, he was fired for “conduct unbecoming a manager.”

Shortly afterward, Mr. Nickel says he met with another of his supervisors, who told him the real story: “They were trying to make you quit. You did not. So they found something else.”

Several older Staples workers testified that they also were pushed out of their jobs due to discrimination or retaliation. For instance, one former manager said that Mr. Marrero derided his request for medical accommodation after a stroke — and that he was fired shortly after complaining about this treatment, for what the appeals court called “an apparently trivial reason.”

A 24-year employee said he was terminated shortly after reporting a theft by Mr. Marrero. A 28-year employee said she felt compelled to take a buyout after Mr. Marrero and another manager told her she was getting older and moving too slowly — and then shifted her start time to 3 a.m.

And there were other examples, too, which the appeals court said could reasonably show malice “as Staples sought to reduce the cost of its operations by systematically removing older, higher-paid employees.”

Mr. Nickel, meanwhile, couldn’t find a new job in California and was forced to move his family to Idaho. He suffered depression, anxiety, and guilt over not being able to provide for his family — gaining weight and becoming a “broken spirit” and “just a shell of who he had been,” according to his wife.

In its appeal, Staples argued that $16 million in damages was excessive punishment for this outcome. The court disagreed, citing Staples’ “high degree of reprehensibility” and awarding Mr. Nickel his appeal costs besides — which likely makes the disputed bell pepper the most expensive cafeteria item ever.

» Read the opinion of California’s Court of Appeal
» Read Mr. Nickel’s complaint

 


The Employment Law Group® law firm was not involved in Nickel v. Staples Contract & Commercial, Inc. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.


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The Employment Law Group, P.C. produces this site to illustrate the continuing relevance of employee protection laws.

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