To Justify Firing African Employees, This Bad Boss Made Them Take a Biased Test
Not long after she became administrator of the New Mercer Commons assisted living facility in Fort Collins, Colo., Pamela Lewis began pushing for change.
In particular, according to court filings, she aimed to get rid of several African patient care providers (PCPs). “They just can’t speak English,” she complained to Marlene Hoem, her staff development coordinator, Ms. Hoem said in testimony.
Ms. Hoem, who had worked at New Mercer Commons for more than 14 years and knew the staffers well, disagreed with her new boss: She replied that the PCPs in question were well-liked and well-understood by patients, according to a complaint filed by the U.S. Equal Employment Opportunity Commission (EEOC).
Nonetheless, Ms. Lewis soon asked Ms. Hoem about shifting one of the PCPs she had criticized — Sawson Ibrahim, an immigrant from Sudan — to the facility’s housekeeping crew. When Ms. Ibrahim began crying and begged to continue helping patients, Ms. Hoem backed off and informed Ms. Lewis.
About a week later, Ms. Lewis summarily fired Ms. Hoem — and then launched new policies that would result in the dismissal of four African caregivers, including Ms. Ibrahim and her husband, purportedly for failing a written test that the EEOC said was biased against them.
Pamela Lewis is our new Bad Boss of the Month.
After investigating the situation at New Mercer Commons and failing to reach an agreement with its operator, Columbine Management Services, Inc., the EEOC filed a complaint in federal court alleging discrimination against the four African PCPs — and illegal retaliation against Ms. Hoem for refusing to go along. Under a consent decree entered in July 2018, Columbine agreed to settle the case by paying $335,000 to be divided among the five victims, and by submitting to continuing oversight from the EEOC.
Ms. Hoem had gotten her start at New Mercer as a caregiver herself, but quickly was promoted to staff development coordinator. For more than a decade she hired, evaluated, and scheduled the facility’s employees, often volunteering for holiday shifts herself so that staffers could be with their families.
With a caregiving staff that had always included PCPs from many countries — from Spain to Iraq to Nepal to the Philippines — Ms. Hoem testified that she was puzzled by Ms. Lewis’ particular focus on Africans. The new boss “said ‘they’ a lot,” Ms. Hoem recalled in a deposition. “I told her that [the African PCPs] were good employees, they were dependable, reliable, respectful to their coworkers and supervisors, kind to the residents.”
In her deposition, Ms. Hoem said she urged Ms. Lewis to get to know all of the caregivers, to no avail. Instead, Ms. Lewis jumped on Ms. Hoem’s failure to transfer Ms. Ibrahim to the laundry room as a reason for firing her.
In a memo written at the time and filed in connection with the EEOC lawsuit, Ms. Lewis justified the termination, in part, by saying she had received “numerous family complaints about [Ms. Ibrahim’s] ability to care for their loved ones due to her language barrier.” In testimony, Ms. Hoem said she never heard such complaints; Columbine Management offered no further documentation.
In a court filing, meanwhile, the EEOC portrayed Ms. Hoem’s firing not just as retaliatory but also as a possible preemptive strike because Columbine “anticipated she would oppose” a broader plan, fueled by Ms. Lewis’ anti-African views, “to be rid of the African employees.”
In the event, Ms. Lewis soon had five of her facility’s six African caregivers on performance improvement plans (PIPs) — a disciplinary step that’s often a prelude to firing. According to a brief by the EEOC, only one other employee was ever put on a PIP during Ms. Lewis’ tenure, even though many caregivers had comparable English proficiency.
Among the PCPs targeted for “improvement” was Kiros Aregahgn, an Ethiopian immigrant who at the time had worked at New Mercer for eight years, consistently receiving above-average assessments. Under her PIP, Ms. Aregahgn was instructed to speak English at all times and to upgrade her patient paperwork within three weeks — although no specific deficiencies in her documents were noted, according to the EEOC’s filing.
Ms. Aregahgn also was instructed to take a new “PCP Training Course,” which consisted of three days of instruction with a written test covering each day’s content. The tests were created by Penny Rubala, a director of clinical education for Columbine, and featured “linguistic and structural characteristics known to confuse” non-native English speakers, as well as “extraneous variables unrelated to the skills the exam was intended to measure,” according to the EEOC’s complaint. The course would later be rolled out for all PCPs — although not as a hiring criterion.
Ms. Ibrahim and her husband also were put on PIPs and sent to take the first-ever session of the new course along with fellow Sudanese immigrant Hanaa Gual, also on a PIP; two more African PCPs; and nine other caregivers. An e-mail from Ms. Rubala, who administered the course, incorrectly identified all six African employees as being “from Ethiopia” and mentioned “very strong body odor.”
“I don’t envy Pam [Lewis] with her PIPs,” Ms. Rubala wrote in the document, later filed in court.
Ms. Rubala gave the session’s only failing grades to Ms. Aregahgn, Ms. Ibrahim and her husband — both of whom she accused of cheating — and Ms. Gual. According to the EEOC’s complaint, the African PCPs weren’t given the same partial credit that their non-African peers received for partially correct answers. Based on information supplied by Columbine for the lawsuit, only two out of almost 170 PCPs failed the course in the six years that followed its initial administration. An expert witness for the EEOC said the aggregated results showed an adverse impact on African employees — and that, independent of this impact, the test was an invalid tool anyhow and “should not have been used for employment decisions.”
After seeing the results of the initial session, however, Ms. Lewis and her team decided that failure should result in dismissal, according to EEOC filings. On a single day, Ms. Lewis terminated Ms. Ibrahim and her husband, Ms. Aregahgn, and Ms. Gual.
In a deposition, the director of the EEOC’s Denver field office equivocated about whether Ms. Lewis had an “evil intent” from the get-go to use test results in “a plot … to potentially run these individuals out,” something Ms. Lewis had denied in testimony.
“[I]t could be that … as time progressed … [the tests] became a vehicle,” the EEOC’s John Lowrie testified. In the end, however, Mr. Lowrie said the agency concluded that Ms. Lewis had requested the testing specifically to push out African PCPs.
Of the two people who failed the course in subsequent sessions, only one was fired as a PCP — and he, a white man, was given a housekeeping position at equivalent pay, according to court documents. An official at Columbine even discussed allowing the man to retake the test, despite his flubbing “basic questions such as infection control,” but rejected the idea because it might look bad: “We are concerned … it would place the program in jeopardy based on previous terminations,” the official wrote in an e-mail that was later filed in court. “I don’t want to have this issue to backfire and cause additional EEOC charges.”
By this time, Ms. Lewis had moved on: She left New Mercer for health reasons a few months after firing Ms. Ibrahim and the other African PCPs. Saying she no longer wanted to work as an administrator, she took a job as a care provider and later started studying for a Ph.D. in clinical psychology that covered, in part, “the importance of understanding different cultures,” she said in a deposition.
She didn’t complete the work, she testified.
The Employment Law Group® law firm was not involved in EEOC v. Columbine Management 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.
This case was filed on behalf of the fired New Mercer employees by the EEOC’s Denver field office.
This Husband and Wife Teamed Up to Become Our First-Ever Joint Bad Bosses
For Justin Driskell and several of his co-workers, the construction site in Charlotte, N.C., seemed “hellish”: Working for Summit Contracting Group, Inc. under a tight deadline, their crew labored without safety equipment, put in exhausting hours, and suffered under a superintendent who drank at lunch and had fits of rage, Mr. Driskell testified in court proceedings.
After a run-in with the superintendent, Mr. Driskell complained about the man’s drinking to Summit’s chief executive, Marc Padgett; Mr. Driskell’s father Tom, who also worked for Summit, echoed his son’s safety concerns to both Mr. Padgett and his wife Nicole, the company’s top administrative officer, according to testimony.
The Padgetts, who live in Jacksonville, Fla., reacted curiously: They somehow figured that the Driskells might be plotting against Summit, Nicole Padgett testified.
Still, the couple agreed to send a senior employee to the work site to investigate. The employee testified that he took the superintendent out for lunch, bought him a beer, and later wrote Mr. Padgett an e-mail with his verdict: The younger Mr. Driskell just needed to “grow a pair of balls.”
Mr. Padgett replied that he agreed.
About a day later, Justin Driskell came across the superintendent after hours, drinking in a parking lot with a co-worker. The men talked, got into a shoving match — and then, according to the co-worker’s testimony, the supervisor punched Mr. Driskell, slammed him onto the concrete, and told him he was fired.
Mr. Driskell ended up in the emergency room.
The Padgetts’ response, according to testimony: They laughed off Mr. Driskell’s injuries; portrayed him as the aggressor, despite an eyewitness account to the contrary; refused to answer his calls about returning to work; “accepted” a resignation that Mr. Driskell said he never tendered; and awarded the violent superintendent a larger-than-expected bonus at the end of the project.
Marc and Nicole Padgett are our first-ever joint Bad Bosses of the Month.
Justin Driskell filed a lawsuit against Florida-based Summit, claiming wrongful termination and retaliation, among other things. Earlier this year a federal jury sided with the construction worker, awarding him more than $750,000 in damages, an amount that will likely be modified after the resolution of post-trial motions. An appeal has been filed.
The Padgetts are a power couple in Jacksonville, where Summit is headquartered and where they’re building a flashy house. Summit, founded in its current form by Marc Padgett in 2007, has built more than 100,000 units across more than 30 states; in 2018, the National Multifamily Housing Council ranked it as the top apartment builder in the U.S. Nicole started at Summit as an accounting temp; she became chief administrative officer in 2009 and married Marc Padgett in 2013, according to testimony. In a recent article she describes herself as someone with “a really big mouth” who doesn’t “back down from a fight.”
Site safety was a delicate subject at Summit, where an unsatisfactory update could draw a tirade from Ms. Padgett: She read an e-mail aloud in court in which she carped that too many accidents were being reported to government regulators and called the end result “A F***ING NIGHTMARE!!!”
It was in this environment that Mr. Driskell complained to Mr. Padgett about dangerous practices at the Charlotte project — including the drinking and temper of Dan Rhyner, the project’s superintendent, according to testimony.
At trial, Mr. Padgett and Mr. Driskell offered differing versions of an initial phone call between them: Mr. Padgett told jurors that alcohol wasn’t mentioned, while Mr. Driskell insisted that he warned the Padgetts that Mr. Rhyner was drinking during daytime and might do “something stupid” on the site.
In a separate call by the elder Mr. Driskell to Mr. Padgett, overheard by Ms. Padgett while she sat on a recliner beside her husband, Mr. Rhyner’s drinking was discussed — and the Padgetts began to suspect that the Driskells were somehow setting up a lawsuit. The Summit leaders even went so far as to consult an attorney, Ms. Padgett testified.
“I can’t recall every item that [made] me have that suspicion,” Ms. Padgett said in a deposition.
At any rate, the man sent by the Padgetts to investigate the Charlotte site never took urine tests or found much to report besides Justin Driskell’s supposed lack of manhood: Upon hearing about Mr. Rhyner’s drinking, Mr. Driskell testified, the Summit employee simply shrugged that “nobody is perfect.”
“He just told me to shut my mouth … and let it go,” Mr. Driskell said in a deposition.
It was tough to move on, however, since the superintendent now knew that Mr. Driskell had reported him to the Padgetts, according to testimony.
The two men’s confrontation followed in short order. The next evening, Mr. Driskell arrived at the parking lot of the hotel where many Summit workers were staying and encountered Mr. Rhyner drinking beer with Bristen Breaux, a friend of Mr. Driskell. They invited him to join them, but Mr. Rhyner already was “wobbly” from beer and his simmering anger quickly rose to violence, according to Mr. Driskell’s testimony.
At trial, Mr. Breaux told jurors that he didn’t see who started the tussle. However, he said Mr. Driskell only shielded himself from blows and didn’t throw punches even as he was being pounded on the ground. When Mr. Driskell stood up and tried to backpedal away, Mr. Breaux added, Mr. Rhyner pursued him.
A flurry of phone calls and e-mails followed the fight, including an e-mail from Mr. Driskell to Mr. Padgett with a photo that showed his bloodied face. Mr. Driskell went to the hospital, where an E.R. doctor found displaced cartilage around his throat and swelling around his eye, according to court documents.
Mr. Driskell also reported the incident to local police.
Mr. Rhyner, who claimed that he was the victim, didn’t seek medical attention; instead he drove home to Nashville, Tenn., six hours away.
The morning after the fight, the Padgetts began constructing their own version of what happened — and put the blame squarely on Mr. Driskell. In an e-mail included in court records, Ms. Padgett instructed a Summit official to file a human resources report saying that “Dan was attacked by Justin,” and that Mr. Driskell suffered “no bodily damage whatsoever other than a superficial scratch” caused by losing his balance due to alcohol.
This contradicted the statements of Mr. Driskell and Mr. Breaux, which were taken immediately after the fight by a Summit manager in Charlotte, according to the manager’s testimony. Even after being informed of this, however, Ms. Padgett sent a further e-mail — also filed in court — asking the H.R. official to make a police report naming Mr. Driskell as the aggressor.
Later the Padgetts asked Mr. Breaux to supply a new account of the fight — a statement that, as Mr. Breaux admitted at trial, omitted several notable points, including Mr. Rhyner’s angry firing of Mr. Driskell as the men parted, which didn’t fit Summit’s assertion that Mr. Driskell had quit.
Based on her own testimony, Ms. Padgett wasn’t a stranger to shading the truth: In a legal dispute with a different Summit employee, she recounted via an e-mail she read aloud to jurors, she asked a company to backdate a letter about its problems with that employee “so it doesn’t look like we got the letter after we received the notice of the hearing.”
Her husband’s approving response, which Ms. Padgett also read aloud: “He is such a piece of sh*t. You were right. … I love you.”
As for Mr. Driskell, he testified that he never quit Summit — and that he absolutely wanted to continue working for the construction company.
“I had bills to pay,” he said. “I couldn’t just walk away.”
Nonetheless, the Padgetts instructed their managers not to take his calls about returning to work; ultimately Ms. Padgett, after speaking with an attorney, asked a Summit official to tell Mr. Driskell that “we accept your resignation,” according to testimony.
Mr. Rhyner, the supervisor, returned to the worksite and finished the project a few weeks later. Mr. Padgett was asked to review the recommended bonus schedule for the crew: He boosted Mr. Rhyner’s payout by 25% beyond the suggested level, according to testimony, and gave an extra 30% to Mr. Breaux, who had tweaked his account of the fight.
Meanwhile, Mr. Driskell found himself shut out of the construction industry; he took a job at Terminix. In court documents he told of depression and recurring nightmares; family members called him a changed man — a “recluse,” according to his father.
The Padgetts maintain their high social standing in Jacksonville, where both are involved in directing city development. Their new property, on a bluff overlooking the St. Johns River, will boast a 16,000-square-foot mansion with six bedrooms and a two-story closet; two guest houses; an infinity pool; and a view of nearby Dames Point Bridge, where they got engaged.
The Employment Law Group® law firm was not involved in Driskell v. Summit Contracting 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, Mr. Driskell was represented by Van Kampen Law, P.C..
At a Pittsburgh Jail, This Bad Boss Put the ‘FML’ in FMLA
Over nearly 30 years of work at the Allegheny County Jail in Pittsburgh, Walter Mikulan became a father figure to many of the officers who served under him.
“He was our teacher,” testified one former captain at the jail. “He was a true leader,” testified another.
Understated and discreet, Mr. Mikulan — “Mick” to his staff — had started his career as a corrections officer in 1984. He rose through the ranks to become a major, the third highest rank at the Pittsburgh facility, with responsibility for the entire jail during his evening shift.
In 2012, however, a hard-nosed Army veteran named Orlando Harper became the jail’s new warden and, according to court testimony, launched an obsessive campaign to “combat” what he saw as overuse of the Family and Medical Leave Act (FMLA) — the law that requires employers to accommodate workers who need time off to take care of themselves or family members.
Mr. Harper was especially ticked by senior officers who took FMLA leave, Mr. Mikulan and others testified, since the warden believed that supervisors should set an example. That posed a problem for Mr. Mikulan, diagnosed with depression and anxiety, and for other older officers who needed leave for health issues.
Before long Mr. Mikulan, who was under doctor’s orders to take sporadic days off, found himself being written up for trivial issues with paperwork — incidents that showed Mr. Mikulan’s unacceptable “insubordination,” the warden would insist at trial. As one example, according to testimony, Mr. Mikulan was disciplined because a subordinate had signed a form electronically rather than with a pen.
After three such incidents, and with no warning, Mr. Harper fired Mr. Mikulan after offering the major a chance to resign to avoid “being disgraced,” according to testimony.
Mr. Mikulan, then 58, was escorted out of the jail in view of other officers; his job was filled by a much younger man.
Orlando Harper is our new Bad Boss of the Month.
Mr. Mikulan filed a lawsuit against Allegheny County, claiming both age discrimination and FMLA retaliation. (It’s illegal to fire employees for exercising their rights under the FMLA.) At trial, a federal jury rejected Mr. Harper’s insubordination rationale and awarded Mr. Mikulan nearly $900,000 in damages. Late last year, the parties settled for a total of $1.15 million, including attorney fees.
Orlando Harper had arrived as warden of the Pittsburgh jail — and as Mr. Mikulan’s boss — in 2012 after spending more than two decades in the Washington, D.C. Department of Corrections. According to testimony, one of his immediate priorities was to curb FMLA “abuse,” which county officials had previously identified as a cause of budget overruns, since the jail paid overtime to cover the shifts of some officers on leave.
Mr. Harper “had a bug about FML,” a former jail captain told the jury. “He believed that we needed to lead by example … He didn’t want [supervisors] off on FMLA.”
Mr. Mikulan testified that he felt singled out in the warden’s staff meetings, where FMLA leave was often discussed: “He would say, ‘If even a major abuses Family Medical Leave, he’s going to be terminated’ — and he would be looking directly at me.”
In other meetings that Mr. Mikulan didn’t attend, a different former captain testified, Mr. Harper said that he “needed both of his majors [at work] on a daily basis” — and that the warden clearly “was not happy” that Mr. Mikulan was using leave.
“There was a comment that [Mr. Mikulan and another, older major] would not be there by the end of the year,” the former captain told jurors. “I felt that Major Mikulan [had been] good to me through the years — that he needed to know — and I asked him, ‘You got plans on retiring or something?'”
Mr. Mikulan did not: He planned to work until “65 or 66 years old. Social Security kicks in, Medicare kicks in. Bingo. You have a nice retirement,” he testified. But his seniority and health issues, he said, made him a target at the jail.
The warden’s FMLA fixation wasn’t limited to Mr. Mikulan, jurors heard. Daniel Troiano, a former captain, testified that he took intermittent FMLA leave for stress after suffering a heart attack while at the jail — and that Mr. Harper ripped him in a meeting for taking “that much” leave, despite doctor’s orders to do so.
“He says to me, ‘I don’t understand how a captain can be stressed,'” Mr. Troiano told the court.
Not long afterward, after an incident where a subordinate forgot to stash her gun in a locker before entering work during his shift, Mr. Troiano was offered a choice between resigning or attending a hearing in which he expected to be fired despite his minor role in the matter, he testified.
Afraid of losing his pension, he resigned.
Mr. Troiano attended the trial despite being on his “last leg,” jurors heard from Mr. Mikulan’s attorney. The witness “barely made it in here and barely made it out of here … [It] may be one of the last things that man will ever do,” the attorney said in court — and indeed, Mr. Troiano died a few months later.
Another former captain told jurors that the shabby treatment of Mr. Troiano and Mr. Mikulan, among others, showed how disciplinary action was used by Mr. Harper — most noticeably for older supervisory officers, who were repeatedly dinged for offenses that were “frankly nonsense” and “ridiculous discipline … to the point where they had to retire.”
“I think there was a threat of termination hanging over my head and a lot of other people’s heads,” he testified, citing his own medical issues. “After Warden Harper came in [people] counted down how long they had to go until they could retire.”
The captain told jurors that he, too, opted to retire upon reaching 55, the youngest age for such a move.
Under Mr. Harper’s regime, all three of Mr. Mikulan’s write-ups — which the major called “minor” — were about paperwork from his staff.
The first incident concerned a “roll call book” that wasn’t completed by the usual deadline. This task was supposed to be handled by subordinates, according to testimony, but Mr. Mikulan was given a “counseling session” for allowing the lapse, which he learned about on his day off — and which he told jurors he immediately arranged to have finished, still ahead of when it was needed.
The second incident came a couple of months later, when one of Mr. Mikulan’s captains signed an “Overtime Justification Sheet” electronically rather than manually.
And three months after that, Mr. Mikulan got a black mark for failing to turn in his staff’s “Property Accountability Sheets” on time — despite testimony that he had gotten an extension. The sheets were a new formality requested by Mr. Harper, jurors heard: Acknowledgments that each employee was familiar with the county’s property regulations.
None of these disciplinary actions was logged as insubordination — and Mr. Harper’s deputy, who meted out the discipline, told the court that the resulting record didn’t justify the firing of Mr. Mikulan, whom he agreed was a dedicated employee.
Stressed out by the new warden’s scrutiny, Mr. Mikulan’s demeanor “changed dramatically,” according to the major’s wife, Mary Mikulan, who gave her testimony sporting a scarf to cover baldness that was due to chemotherapy treatment for cancer. Her husband previously had been proud and upbeat about his work, she told jurors, but now “he was more stressed, more frustrated. Seemed to talk a lot more, more negative about his job than positive.”
“I would just get to the point where, you know, ‘Just quit,'” Ms. Mikulan testified. “But that wasn’t him. He didn’t quit.”
Instead, he was suddenly fired. Less than a year after Mr. Harper’s arrival, and shortly after the property-sheet issue, the warden called Mr. Mikulan into his office.
“He says, ‘Major Mikulan, the reason we are here today is to terminate your employment with Allegheny County.’ Jeez, I almost dropped on the floor,” Mr. Mikulan told the court. “[But then he] said, ‘I’m going to do you a favor. I’m going to allow you to resign instead of me terminating you.'”
Mr. Mikulan bluntly refused, jurors heard, and Mr. Harper directed his deputy to escort him out of the jail. At the time, said Mr. Mikulan, no reason was offered for his termination. On the same day, according to court documents, Mr. Harper also fired Ruth Howse, a jail administrator who had recently returned from FMLA leave.
“When I left, I felt devastated,” Mr. Mikulan testified. “I felt like I was just beat down with a stick … I really didn’t want to go anywhere, see anybody. I hated to answer the phone because … everybody was calling to find out what happened …. They were stating that they saw it on TV. They were stating they read it in the paper.”
At trial, Mr. Harper was asked repeatedly to justify his claim that Mr. Mikulan had been insubordinate and deserved to be fired, despite conclusions to the contrary by his deputy, who was Mr. Mikulan’s direct supervisor. The warden steadfastly insisted that each of the three disciplinary actions amounted to insubordination — but acknowledged that he never asked his deputy’s opinion on the matter, or on Mr. Mikulan’s performance.
“I don’t have time to ask who, what, when of everything that’s going on inside of a jail, sir,” he replied in court.
The warden also acknowledged that he had never described Mr. Mikulan’s behavior as insubordinate in any jail document — nor read such a description, either.
Since his firing, Mr. Mikulan testified, he hasn’t been able to find another job in corrections, nor an “equal job” more generally. After collecting unemployment he worked briefly as a college safety officer and then as a school security guard until 2016, when he opted to trigger Social Security since it paid more than the job. He’d still happily work, he told jurors, if it pays “a decent wage.”
Mr. Harper, meanwhile, remains warden of the Allegheny County Bureau of Corrections.
The Employment Law Group® law firm was not involved in Mikulan v. Allegheny County. 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.
This Bad Boss Fired a Manager Who Dared to Question His Workplace Canoodling
For Irene Riggs, caring for older people was a “calling.” She began working in nursing homes in 1990; in 2006 she was named as executive director of the Life Care Center in scenic Sandpoint, Idaho, a lakeside haven named by USA Today as America’s “most beautiful small town.”
Ms. Riggs had an exemplary run at Life Care until 2015, when, according to court documents, her married boss — Timothy Needles, a regional vice president — began to flirt with a nurse at Ms. Riggs’ facility.
At a staff costume party where the nurse had dressed as a cat, the pair acted intimately enough to make other staffers squirm, Ms. Riggs testified, and over a period of weeks they had “fondled each other in an office …, suggestively prowl[ed] at each other, … and otherwise made it obvious that they were in a relationship,” according to a court filing.
Ms. Riggs believed that supervisor/subordinate affairs were forbidden at Life Care and potentially illegal, she said in court — but even more than that, she fretted about the rancorous, sexually charged atmosphere that had descended on her facility. Staff members reported sighting the couple at local restaurants, she testified, and they complained that the nurse, Caren Bays, was getting favors in return.
Although she feared the encounter so much that her hands shook, Ms. Riggs confronted Mr. Needles on behalf of herself and her staff. Her boss became angry and denied the affair, Ms. Riggs said in court documents, and her subsequent complaints to human-resources officials went nowhere.
Not long afterward, according to a court filing, Ms. Bays accused Ms. Riggs of “abusing” a belligerent resident by unplugging his loud television — and Mr. Needles seized upon the incident to fire the executive director. After being dismissed for cause, a “crushed” Ms. Riggs was unable to find another job in elder care and ended up cleaning toilets.
Tim Needles is our new Bad Boss of the Month.
Ms. Riggs filed a lawsuit against Life Care Centers of America, Inc., which is based in Tennessee, claiming retaliation and wrongful termination. A federal jury in Spokane, Wash., awarded her more than $1.5 million in damages, including $500,000 for “loss of enjoyment of life”; subsequent judicial orders tacked on more than $500,000 for attorney fees, tax offsets, and other items.
Life Care has appealed the judgment to the U.S. Court of Appeals for the Ninth Circuit, which has yet to hear arguments on the matter.
As executive director of the 124-bed assisted living facility in Sandpoint, Ms. Riggs had watched over an extensive staff — and all of the older residents, whom she said at trial that she “loved.” She once drove a resident’s spouse four hours so that the couple wouldn’t have to spend Christmas apart.
Ms. Riggs’ working relationship with Mr. Needles also was “excellent” before their conflict, she testified, and Mr. Needles had given her positive reviews since becoming her boss in 2012. But after she challenged his behavior with Ms. Bays, she said in court, things changed.
By that time Mr. Needles already had shown favoritism toward Ms. Bays, according to testimony from Elizabeth Beddingfield, a former director of social services at Life Care. Specifically, she told the jury, Mr. Needles became angry and dismissive when Ms. Beddingfield lodged a harassment complaint that claimed Ms. Bays was a workplace bully.
“He jumped on me …,” she testified. “He just dismissed me and discredited what I had to say; said that I was wrong for filing [the complaint].”
Ms. Beddingfield quit shortly afterward.
Faced with complaints about the couple from Ms. Beddingfield and others — and a barrage of gossip, including a sighting of Mr. Needles and Ms. Bays at the Texas Roadhouse in Coeur d’Alene, an hour distant — Ms. Riggs decided to address the matter, she testified. After reviewing Life Care policy and praying, she called a face-to-face meeting with Mr. Needles, who at that time had been married for more than 25 years.
“I was very nervous …,” she said in court. “I showed him my [shaking] hands, and I said that my staff had brought me some concerns about his behavior [with] Caren Bays …. [T]hey were [being] flirtatious with each other to the point where it made the staff uncomfortable.”
Mr. Needles flatly denied any affair, according to Ms. Riggs’ testimony, and he also claimed he never went to Starbucks, where she told him Life Care staffers had reported another rendezvous. But when Ms. Riggs emptied her overflowing trash can later that day, she told jurors, she spotted a Starbucks receipt on top — with Mr. Needles’ name on it.
Feeling lied to, she reported Mr. Needles to corporate HR in Tennessee. Soon afterward, she testified, she got a call from Mr. Needles, who told her to stay away from Ms. Bays, and a call from the top HR person at Life Care warning that Ms. Riggs “should be very careful.”
“People’s lives are involved,” she said she was told. “You have to make sure that you are very sure about this.”
Ms. Riggs began to fear for her job. “It felt like they were protecting Tim Needles,” she told the court. And indeed, during an investigatory call with HR, Ms. Riggs was “berated” and reduced to tears for daring even to raise the matter, according to the testimony of an employee who witnessed the call.
The only result of her complaint, as far as Ms. Riggs knew: She was instructed to tell Ms. Bays to “be a positive member of the team,” and to get her to re-sign the corporate “Code of Conduct.” Mr. Needles was not disciplined, to her knowledge.
From that point onward, Ms. Riggs told the court, Ms. Bays began “watching me like a hawk” — standing by the executive director’s office door and “eavesdropping,” in the words of another witness.
A few weeks later, Ms. Riggs was called to the room of a resident who was paralyzed from the waist down. The man had a history of angry behavior, jurors heard, and on this day he had cranked his television so loud that it could be heard throughout the entire 24-bed wing. He was ignoring the nursing staff’s pleas to turn it down, and had hidden the remote.
Ms. Riggs tried to reason with the man, but got only profanities in return. Finally, telling him he was violating other patients’ rights, she unplugged the television set. She told him he could watch it again if he was willing to set it to a proper volume.
A few months prior, Ms. Riggs testified, she had asked Mr. Needles for permission to discharge this resident. Her boss had ruled against it, saying they needed more documentation of the man’s disruptive behavior. Now she renewed her request, based on the new incident, and Mr. Needles approved it, she said in court.
Ms. Riggs also sent a copy of the discharge notice to Life Care’s regional ombudsman, who acts as an advocate for patients. It raised no red flags. At trial the ombudsman said she discussed the unplugging with Ms. Riggs shortly after it happened, concluding that “it was the correct thing to do to defuse the situation.”
A couple of weeks after the TV showdown, however, Life Care received an anonymous complaint that painted Ms. Riggs’ actions far more darkly: Unplugging the television amounted to abuse, it claimed — a firing offense.
In a court document, Ms. Riggs says the complaint came from Ms. Bays.
Life Care took the complaint seriously — and Mr. Needles led the response, according to his own testimony. He promptly passed along the report to Idaho’s Bureau of Facility Standards (BFS), which regulates medical providers, adding two key elements: He described Ms. Riggs as “angry” and the TV unplugging as “a form of punishment.” Neither characterization, he agreed at trial, was in the original complaint, but together they bolstered the case for Ms. Riggs’ dismissal.
Just a few days later, Mr. Needles fired Ms. Riggs via a letter. “I was crushed,” she recalled in court. According to testimony, staffers at Life Center were instructed to tell patients that the popular Ms. Riggs had taken a new job.
In reality, Ms. Riggs had little hope of a new job. She wanted to stay in elder care, but she didn’t get callbacks after revealing the “official” reason she left Life Care — even though Mr. Needles never filed the official abuse report that would have deprived her of a license to work.
Eventually Ms. Riggs gave up on healthcare and began working for Maria’s, a local cleaning service. “They were the only ones who would actually give me a call,” she told jurors.
Later she qualified as an insurance agent, and began working on commission at a company that doesn’t offer benefits.
Mr. Needles, meanwhile, moved to Utah. According to his LinkedIn profile, he is “[w]orking with a wonderful group of professionals … Love it!”
The Employment Law Group® law firm was not involved in Riggs v. Life Care Centers of America, 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. Riggs was represented by Skidmore & Fomina, PLLC.
This Bad Boss Left a Mark on Employees — Sometimes Literally
On her first day at a new surgery center in Cullman, Ala., nurse Dana Anderson happily took a photo of her co-workers to commemorate the occasion.
Kevin Johnson, an anesthesiologist who served as the facility’s medical director, sneered at her Dorothy-style optimism: “I don’t know where you think you are, but you’re not in Kansas anymore,” said Dr. Johnson, Ms. Anderson recalled in court documents. “You and Toto need to get the f**k back where you came from.”
Over the next five-plus years, Ms. Anderson testified, the doctor would ruin many more moments at work. A part-owner of the surgery center who styled himself as “Genghis Khan,” Dr. Johnson brought guns to the workplace, bragged about his sexual prowess, and painted female employees as “whores,” “slaves,” and members of his “harem,” according to testimony.
On a communal calendar he would write a “Sex Word of the Week,” which he’d explain in detail; other times he would distribute pornography to co-workers, promote coarse nicknames, and “pole dance” in the patients’ recovery room, Ms. Anderson said in exhibits filed in court.
Staff members who resisted the hypersexual atmosphere were punished by Dr. Johnson, according to court documents — including, in some cases, by delaying anesthetic care they had requested for patients. The 6’2″ Dr. Johnson tried to force himself on the much smaller Ms. Anderson on several occasions, she testified, once by trapping her in a room at the end of a workday and demanding that she submit and “take his mark” — that is, get a tattoo that would denote sexual slavery to him.
When she refused, Ms. Anderson said in court documents, the doctor humiliated her further before releasing her to join her husband, who was waiting in the parking lot: “You’re going to get down on your hands and knees and beg your master to get out.”
Intimidated, she complied.
Kevin Johnson is our new Bad Boss of the Month.
In the end Ms. Anderson resigned, unable to handle the stress at work. Along with three other former nurses, she filed a complaint in federal court against Dr. Johnson, Surgery Center of Cullman, and associated entities, claiming a wide range of wrongdoing at both federal and state levels.
At trial in September 2017, a jury found Dr. Johnson personally liable for assault and battery and emotional cruelty against Ms. Anderson, awarding her $500,000 in damages. The jury also found Surgical Care Affiliates, LLC — the practice’s ownership — liable for the hostile work environment faced by Ms. Anderson, awarding her a further $500,000, an amount later reduced by the judge to $300,000.
Ms. Anderson’s claims were the only ones to reach trial. Two of the other plaintiffs, Kari Walker and Belinda Beverly, negotiated judgments in the amounts of $450,000 and $187,500 plus attorney fees, respectively, while Kathy Lackey’s claims were rejected before trial by the judge. (Ms. Lackey has filed an appeal.)
During court proceedings the married Dr. Johnson admitted having affairs with several employees, including Ms. Walker, but denied demanding “master/slave” relationships or — as Ms. Anderson had testified — requiring tattoos “marking” women as his. He admitted in a deposition that he paid for a tattoo for Ms. Walker, however, and also that he brought guns to work and wrote sex-related words on the calendar.
He noted that he sometimes wrote Bible verses there, too.
On critical legal matters such as abuse and battery, Dr. Johnson said in testimony, Ms. Anderson and the other nurses were “lying,” a conclusion rejected by the jury. Overall, court documents paint a vivid picture of a facility overseen by, in the words of one filing, a “perverse, misogynistic, and domineering abuse[r] of women.”
Dr. Johnson’s bad behavior was a holdover from his previous job at Woodland Medical Center, also in Cullman, according to testimony from Ms. Walker, who had worked there as a surgical nurse. Dr. Johnson openly watched pornography in his Woodland office, Ms. Walker said in documents, and often would invite female employees to join him.
In an affidavit, Christopher Lucas, an obstetrician at Woodland, also described Dr. Johnson’s pornography habit and said he witnessed his colleague in other inappropriate acts, including ushering a nurse into a delivery room for sex. One Woodland nurse — not Ms. Walker — told Dr. Lucas that Dr. Johnson had paid for her to get a tattoo of a devil with its tail pointing towards her crotch, Dr. Lucas said in the document.
While at Woodland Dr. Johnson also harassed Dr. Lucas’ daughter, who worked there as a nurse, eventually causing her to quit, according to Dr. Lucas’ affidavit. After the daughter filed a complaint with the U.S. Equal Employment Opportunity Commission, Dr. Lucas said in the statement, Dr. Johnson threatened to burn down the family’s house.
(In his deposition, Dr. Johnson said the EEOC complaint was a trumped-up response to his reporting of Dr. Lucas for drug abuse.)
Dr. Johnson’s behavior didn’t improve after he left Woodland to open the new Surgery Center of Cullman, Ms. Anderson told the court: Not only did he still watch pornography at work, he burned extreme porn onto CDs that he handed out “like candy” to staff members, she recalled in notes filed as an exhibit in the case.
In private Dr. Johnson could be sympathetic, Ms. Anderson said in a court document: At times he commiserated and offered her counsel on her difficult marriage, for instance. But he also betrayed such confidences to torment her in front of colleagues, she added, and used her vulnerability as fodder for cruel mind games.
At one point, she said in a deposition, Dr. Johnson texted her a risqué photo of himself and “ordered” her to share a revealing photo in return — something that she resisted but ultimately felt forced to do. Another day, when she became emotional about her marriage, he showed her videos of people committing suicide and said, “Sometimes, there’s only one thing left to do,” she told the court.
The doctor also abused her physically, Ms. Anderson testified. While she was on the phone with a patient, she said in a deposition, Dr. Johnson came up behind her and began choking her so hard that she couldn’t breathe or talk.
“I was frozen with fear,” she said in the deposition.
On a different day, Ms. Anderson testified, Dr. Johnson seemed to overhear her saying something that displeased him and — as he walked by her desk — kicked her hard enough to raise a bruise.
(Dr. Johnson, in a deposition, denied both incidents. Indeed, he asserted, the entire case “has been a lie from the very beginning.”)
After receiving a series of anonymous harassment complaints about Dr. Johnson via a hotline, the Surgery Center’s human resources manager interviewed several of the nurses, including Ms. Anderson. But Gregory Windham, the facility’s managing partner, concluded that nothing had been proved.
“You got three or four little girls here who have all gotten together and decided that they’ve got all these accusations,” Dr. Windham said in a deposition. “You know, it’s a he said/she said.”
Persistent complaints prompted another investigation, however, and Ms. Anderson was interviewed again. Afterward Dr. Johnson approached her and mimed shooting her with an imaginary gun, she told the court. The gesture resonated: In his deposition, Dr. Johnson said he had brought real guns into work on several occasions — and estimated that he owns three AR-15 rifles, “five to six” shotguns, and around eight pistols, including a Glock pistol that he keeps in his car.
The doctor also began tapping his fingernails ominously when he was near Ms. Anderson, she said in documents, aiming to unnerve her. Such drumming is often called the devil’s tattoo.
Around this time, Ms. Anderson and her co-plaintiffs upped the ante with a complaint to the EEOC. The Surgery Center’s board asked Dr. Johnson to step down as medical director and to take a leave of absence, according to court documents — a two-month period during which he went to Kansas for psychotherapy, he said in his deposition.
Dr. Johnson described the leave as “a wonderful experience,” after which he returned to work.
Ms. Anderson, meanwhile, was suffering from anxiety attacks, stress, depression, and loss of sleep, she testified. After Dr. Johnson returned, she told the court, she could “barely function” in her job and took medical leave to seek care and counseling; she later resigned without returning to work.
Ms. Anderson filed a second EEOC complaint and, shortly afterward, joined her three co-plaintiffs to seek justice in federal court. She got a new job at a surgery center in nearby Decatur.
Ms. Anderson, Ms. Walker, and Ms. Beverly all now have judgments in their favor, but their case remains in post-trial motions — in part, concerning how much they should be awarded in legal fees. Ms. Lackey’s appeal proceeds on a separate track, while Dr. Johnson has asked the judge to undo Ms. Anderson’s jury verdict.
The Employment Law Group® law firm was not involved in Anderson v. Surgery Center of Cullman, 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. Anderson and her co-plaintiffs were represented by Haynes & Haynes, P.C.
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.
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.
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.
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.
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.
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.
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..
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.
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.