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Trouble in Music City

Running a Nashville Studio with His Famous Wife, This Bad Boss Hit a Series of Wrong Notes

Country music star Martina McBride and her husband John founded Blackbird Studio, a recording facility in Nashville, Tenn., in 2002. Along with Ms. McBride herself, Blackbird’s high-profile clients have ranged from Adele to the Zac Brown Band.

In 2012 Mr. McBride hired Richard Hanson as Blackbird’s operations manager, a job that grew to include oversight of assistant engineers and unpaid interns. According to documents filed in a subsequent lawsuit, Mr. Hanson quickly became concerned that some studio staff weren’t being paid properly for overtime hours — and that interns weren’t getting any educational benefit from menial chores set by Mr. McBride, who ran the facility.

Among other duties, according to court documents, interns had to clean toilets, pick up groceries and lottery tickets for the McBride family, and buy a endless stream of phone chargers for Mr. McBride, who kept breaking them. Both McBrides would publicly “yell at, scold and chastise” interns when a chore wasn’t done to their liking, according to Mr. Hanson’s complaint.

Plus there was the time an intern was asked to prowl around the McBrides’ home with a gun, the lawsuit said.

On several occasions Mr. Hanson informed Mr. McBride that Blackbird might be violating federal labor laws, according to testimony. Things came to a head, Mr. Hanson told the court, when an intern was unfairly blamed for failing to deliver lunch to Ms. McBride at her home. Frustrated, Mr. Hanson contacted the U.S. Department of Labor to see if Blackbird’s practices were legal.

Upon learning of Mr. Hanson’s inquiry, Mr. McBride fired him on the spot. “I’m f***ing done with you,” a court order quotes him as saying. “Get your s*** and get the f*** out of my studio.”

John McBride is our latest Bad Boss of the Month.

Mr. Hanson filed a complaint against the McBrides and Blackbird, claiming illegal retaliation for his good-faith concerns about labor practices. Ms. McBride, the singer, was dismissed as an individual defendant — but early in 2020 a federal jury found her husband and Blackbird liable for about $160,000 in damages.

This month the trial judge awarded Mr. Hanson a further $200,000 to cover attorney fees and interest. Because Mr. McBride fired his employee for an improper reason, the judge wrote in her order, he had himself to blame for “numerous sensitive and embarrassing facts [being] brought to light in a public forum.”

Though his background was in sound engineering, Rich Hanson had never really fit into the Blackbird scene. He was popular with clients and won praise for “his technical abilities and being able to make things happen the way they were supposed to,” the studio’s manager testified, but he also wore people out — including Mr. McBride, the owner — with incessant critiques.

“There were many times where I asked him to calm down, or to chill, or to take a deep breath,” Mr. Hanson’s superior Rolff Zwiep said in a deposition, “and he didn’t even hear me. He would just talk over me.”

Mr. Hanson was especially focused on overtime issues and the treatment of Blackbird’s unpaid interns, who complained in court filings that they were regarded, in essence, as cleaners and personal servants to the McBrides.

One recent college graduate, for instance, wrote that he never received “any sort of training/advice on music recording” during his Blackbird internship, “which was the entire reason I was there in the first place.” Instead, he wrote, he was asked to dust, do food runs, and to pack up equipment and clean toilets after late-night sessions.

Another intern wrote that, in addition to scrubbing toilets, he would mop, vacuum, and do dishes in a shift that ran from 6:00pm to 6:00am. A graduate of audio engineering school, he often ended up taking orders from the McBrides’ young daughters, who would call Blackbird requesting candy — which the intern said he had to buy and deliver to the family home.

“Learning was not a large part of my internship,” he wrote, “but … I can clean your toilet so well you could eat off of it.” When this intern sought employment in Nashville afterward, he said, he was “laughed off the phone” and told that Blackbird “only produces talented cleaners.” Four years later he was waiting tables.

The gun incident happened one night when both McBrides were out of town, according to testimony and court documents, and a sitter was minding two McBride daughters. Believing there was an intruder, one of the daughters had called Mr. McBride — who, rather than contacting police, called Blackbird at 1:30am and asked for an intern to check it out.

(In a deposition, Mr. McBride acknowledged the request and said he frequently asked Blackbird staff to check the security of his home, involving interns “probably three or four times.”)

Two interns and an assistant engineer arrived at the house, where the worried sitter declined to call the police, asked the Blackbird people to secure the house, and gave them a loaded gun, according to court documents. As the only person familiar with firearms, one of the interns took the weapon and led a search of the property. There was no sign of an intruder, but the sitter remained uneasy and took the McBride girls elsewhere to sleep, according to a witness’ summary.

The intern later wrote to Mr. Hanson that he knew he’d sometimes have to “perform some less than desirable tasks” — but that risking personal harm “went so far beyond what I signed up for,” according to an e-mail filed with the court.

Mr. Hanson’s breaking point came in June 2017, the day Ms. McBride didn’t get her lunch fast enough.

An intern had been told to pick up food from The Tavern, a local eatery, and deliver it to the country singer at home. When the star didn’t have her food an hour later, Mr. Hanson recalled in a deposition, her husband became “very angry … and he demanded that [a second intern] go back to the restaurant and pick up another order.”

Mr. Hanson knew the food had been delivered: The first intern already had reported back to Blackbird with the receipt, he testified. It turned out that Ava, the McBrides’ youngest daughter, had accepted the food but forgotten to tell her mom.

In his deposition, Mr. McBride conceded that his daughter “may have had something to do with it,” but still faulted Mr. Hanson for being wound so tight. “A negative attitude is not a good thing to have in a recording studio,” Mr. McBride testified. “It’s a creative environment where … the vibe is very important.”

Steamed at “the accumulation of all the things … over my course of employment,” Mr. Hanson logged onto the Department of Labor’s Web site and filled out a form to report that his employer was “using unpaid interns in a manner that wasn’t appropriate, and also was not paying certain staff members overtime that they were due,” he said in a deposition.

Shortly afterward, Mr. Hanson told Mr. Zwiep what he had done — and Mr. Zwiep promptly informed Mr. McBride. According to court documents, Mr. McBride called Mr. Hanson and lit into him: “I hear you have a f***ing problem and you’re going to call the Better Business Bureau [sic] or some f***ing s***.”

When Mr. Hanson corrected him, saying he had already contacted the Department of Labor, Mr. McBride fired him.

In a deposition, Mr. McBride testified that “the straw that broke the camel’s back was the lunchtime fiasco” — but claimed he didn’t fire Mr. Hanson because of the DOL report. In fact, he said, he already had made plans to fire Mr. Hanson and was waiting only for his intended replacement to return from a European honeymoon.

Mr. Hanson’s firing didn’t stop the DOL investigation that he had triggered, which ultimately found ten separate overtime violations at Blackbird. Mr. McBride agreed to pay staff members more than $40,000 in back wages and damages.

The Blackbird internship program, however, didn’t draw any sanction. Although the interns were unpaid, the DOL said, they got some experience and received educational credit as agreed. The youngsters were “the primary beneficiaries of the relationship,” the investigator concluded.

» Read Mr. Hanson’s complaint in the case

» Read e-mails from interns describing their experience at Blackbird (some information redacted)


The Employment Law Group® law firm was not involved in Hanson v. McBride. 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.

Mr. Hanson was represented by Morgan & Morgan, P.A..


A Matter of Degree

This Bad Boss Gave Her Director-Level Work — But Found Reasons Not to Give Her a Matching Title

Crystal Trawick was a homegrown success at Carmike Cinemas, a Georgia-based chain of minor-market movieplexes that drew crowds with its extra activities such as mini golf, rollerskating, and video games.

Ms. Trawick started at Carmike the age of 19 as a part-time laser tag attendant. By the time she left she had been promoted nine times and served as the company’s top marketing official. She reported to Fred Van Noy, Carmike’s chief operating officer, and drew praise from the company’s CEO.

But even though Ms. Trawick functioned as a director-level executive at publicly traded Carmike, Mr. Van Noy declined to give her a title or salary that matched her responsibilities, according to court filings. When she pressed the matter, she was told she’d need a bachelor’s degree to be named as a director — a credential held by neither her boss, who like her had joined Carmike as a teenager, nor by Ms. Trawick’s most obvious male peer at the company, the director of advertising.

Indeed, the marketing job was Carmike’s only director position to require a bachelor’s degree, Mr. Van Noy told a jury — and the requirement was added only after Ms. Trawick had assumed the role on an informal basis.

When Ms. Trawick persisted, Mr. Van Noy became increasingly harsh and demanding with her, according to testimony. He didn’t pass along her complaints of unfairness to Carmike’s H.R. department, he told jurors. And ultimately he launched an investigation into Ms. Trawick’s handling of a minor sponsorship. He fired her for “insubordination” during the probe, he testified — not because he found any wrongdoing.

Fred Van Noy is our new Bad Boss of the Month.

Ms. Trawick filed a lawsuit against Carmike, claiming sexual discrimination, retaliation, and other wrongdoing. In September a federal jury awarded her more than $1.1 million in damages on the discrimination claim, an amount that was slashed to $367,000 based on statutory limits. Carmike didn’t appeal and earlier this year paid Ms. Trawick more than $1 million, an amount that included her substantial legal costs.

A child of divorce and poverty in Alabama, Ms. Trawick had lived in her mother’s car and in shelters until she was adopted at nine by a grandmother who turned out to be abusive — driving her into foster care as a teenager, she testified. Although she won a scholarship to attend Troy State University in Troy, Ala., she dropped out to work at Carmike, which quickly became, she said at trial, “my life.”

Based in Columbus, Ga., just across the Alabama border, the company targeted small markets and called itself “America’s Hometown Theatre.” Ms. Trawick enjoyed a steadily rising career there, gathering experience in film buying, theater operations, and marketing — and also participating in civic organizations and joining local boards, which Carmike CEO David Passman encouraged her to do, according to testimony.

In 2012 Ms. Trawick joined Carmike’s marketing department at the invitation of Mr. Van Noy, he testified — and when he fired the incumbent marketing director not long afterward, he asked her to assume most of the man’s duties. He didn’t upgrade her title, he acknowledged, or give her a raise to reflect her new responsibilities.

At the time Ms. Trawick had just completed an associate’s degree from Chattahoochee Valley Community College by taking classes “here and there as I could” over more than a decade at Carmike, she testified. Mr. Passman, the Carmike CEO, had urged her to “finish” her college education, she testified, so in 2013 she began classes at a nearby Troy campus in pursuit of a bachelor’s degree — but she found the work impossible to complete because of her expanded duties.

“My hours had severely increased,” she testified. “I took two [classes] and I wasn’t able to manage the workload.”

That year Ms. Trawick earned just under $43,000 at Carmike, based on a W-2 form shown at trial, while the fired marketing director had earned at least $95,000 in salary, according to testimony. During an annual review in the second half of 2013, Mr. Van Noy told Ms. Trawick “he did not realize how little I was being paid,” she told jurors — yet his only action was to grant a four-percent bump for her “exceeded expectations” evaluation.

Ms. Trawick continued as Carmike’s de facto marketing director through 2014 and most of 2015, traveling extensively and even attending conference calls from home during her maternity leave under pressure from Mr. Van Noy, she testified. Executives often referred to her as the director of marketing; Mr. Van Noy even introduced her that way publicly during a theater opening, she testified.

Other Carmike officials began to ask Mr. Van Noy why he hadn’t formally promoted their colleague. One division manager, Jim Lucas, testified that Mr. Van Noy said he’d never elevate Ms. Trawick unless he was forced to do so — and gestured upward, indicating that such an order could come only from above.

“And who was up there?” Mr. Lucas was asked.

“Well, it was either [CEO] David Passman or the Lord,” he replied.

According to Mr. Lucas, Mr. Van Noy behaved more harshly in meetings toward Ms. Trawick than toward her male counterpart Shannon Sailors, the company’s director of advertising. At trial, evidence showed that when Mr. Sailors and Ms. Trawick both received positive performance ratings in 2014 — along with identical comments from Mr. Van Noy — Mr. Sailors got a higher percentage raise than Ms. Trawick, expanding the gap in their base salaries to 37 percent.

Asked in front of the jury whether he could explain the discrepancy in raises, Mr. Van Noy said, simply, “No.”

Finally, in August 2015, Ms. Trawick became more aggressive. She had been approached by a headhunter about switching companies, but she wanted to stay at Carmike. At a meeting with Mr. Van Noy, she told jurors, she made what she described as a discrimination complaint, comparing herself to Mr. Sailors and saying she needed the director title and a pay increase.

At trial, Mr. Van Noy denied that Ms. Trawick complained of being underpaid. He admitted that he never discussed her pay or title with Carmike’s H.R. director and that, around that time, he started interviewing a series of men for the director job — or possibly a newly invented senior position above Ms. Trawick. Frustrated, Ms. Trawick took her problem to Mr. Passman, the Carmike CEO.

Mr. Passman had previously been generous in his praise for Ms. Trawick’s work, lauding her in company e-mails as a “star” and “Superwoman.” Earlier that year, she testified, when she told him that she planned to talk about the glass ceiling in a speech she’d been invited to give to her community college, he had acknowledged its existence and its injustice. Yet in this latest meeting he still insisted, she recalled to jurors, that she’d need to get her bachelor’s degree before advancing because “men are going to require that of you, whether it’s with this company or any company.”

This was the first time Ms. Trawick heard that her academic record was being used to hold her back; Mr. Van Noy had known but never told her, he testified. Meanwhile, neither Mr. Van Noy, Mr. Sailors, nor Mr. Lucas had a bachelor’s degree. According to testimony, Ms. Trawick was the only internal director candidate to whom such a requirement was applied.

At a pre-trial hearing, Ms. Trawick’s attorney lumped Mr. Passman and Mr. Van Noy together as “two bad actors” and cited a pattern of good-old-boy discrimination at the higher levels of Carmike. It was Mr. Van Noy, however, who took the lead role here.

Shortly after Ms. Trawick met with the CEO, Mr. Van Noy and another executive called her into a meeting to discuss a Carmike sponsorship she had helped to secure for Quadrille, a women’s society club in which she was a leader — and they also walked her through various expense submissions, all of which had been approved by Mr. Van Noy, she testified. Carmike executives routinely requested donations for community groups with which they were involved, jurors heard, with cross-checks in place to avoid self-dealing.

Although the $2,000 Quadrille sponsorship had been approved by Mr. Sailors, Ms. Trawick found herself under official investigation and Mr. Van Noy instructed her not to “poll [her] peers” during the process, she told the court. Just a day later, on a Friday, Mr. Van Noy asked if she had talked to anyone: He’d heard a report that she did. Ms. Trawick said she had spoken with a subordinate about an aspect of the matter, she testified, and she railed against the idea that she’d misuse Carmike funds as “just insulting and not true.”

Irritated, Mr. Van Noy immediately looked to fire Ms. Trawick — notwithstanding Carmike’s policy of step-by-step discipline. After the weekend he got an OK from Mr. Passman, who professed to jurors his disappointment that his “high hopes for Crystal” had been dashed. The next day Mr. Van Noy told the 17-year Carmike veteran the price for her “insubordination” and the loss of his confidence.

At trial, Mr. Van Noy affirmed that the termination wasn’t based on any investigatory finding, but rather on Ms. Trawick’s internal discussions about the probe. He gave her “the option to resign” as a face-saving measure, Ms. Trawick testified, but she didn’t want to do that.

Ms. Trawick suffered from the abrupt firing “physically, emotionally, and mentally,” her husband testified — and gossip about it dogged her efforts to bounce back in Columbus’ tight business community. Although she quickly accepted a job as director of marketing for Childcare Network of Georgia, the woman she was replacing “told me she got a call that I had been fired from Carmike for stealing money,” she testified.

After she switched to a two-year gig as COO at a small local movie company, she heard the same rumors via a potential investor. “Everywhere I go, I think people are talking about it,” she said in court. “I don’t do as much in the community as I used to, because I don’t want to be … I feel shamed.”

By the time of the trial, Ms. Trawick said, she hadn’t had a job for some time. “I’m still broken,” she testified.

Mr. Van Noy, meanwhile, described himself to jurors as “retired.” Not long after he fired Ms. Trawick, the giant theater chain AMC announced it would acquire Carmike — and Mr. Van Noy was reportedly set to walk away with cash and stock worth almost $9 million.

» Read Ms. Trawick’s complaint in the case

» See a local newspaper’s calculation of how much Mr. Van Noy (and Mr. Passman) stood to earn from the AMC acquisition


The Employment Law Group® law firm was not involved in Trawick v. Carmike Cinemas, 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.

Ms. Trawick was represented at trial by Prebula & Associates LLC.


Creep Show

This Bad Boss Offered to Be Her Mentor — But Instead Became a Tormentor

In college, Michelle Tulino set her sights on working for the New York City government — somewhere she could help people “from the ground up,” she told a court.

An internship at the city’s Department of Small Business Services (DSBS) only strengthened her resolve, as she worked happily with woman- and minority-owned businesses while reporting to a “strong woman [who] taught me how women are able to make change in society,” she testified.

After school she snagged a full-time job as client services manager at DSBS — and that’s when she met Shaazad Ali, an assistant DSBS commissioner who would turn her dream job into an ordeal.

According to Ms. Tulino’s testimony, Mr. Ali presented himself as someone who could accept H.R. complaints for the agency. When she told him that her new male boss had crudely propositioned her, however, he replied that sexual demands from managers were simply part of the DSBS culture and “he couldn’t do anything about it,” she testified.

As an alternative, she told jurors, Mr. Ali said he’d act as her personal mentor and protector.

Over the next few years, according to testimony, the assistant commissioner — married and some 30 years older than Ms. Tulino — preyed on the inexperienced employee by gaslighting her about how other managers saw her; by inviting her out and giving her gifts; by probing her private life in unwelcome ways; and by accusing her of harming his health with her rebuffs.

Eventually Mr. Ali made a place for Ms. Tulino in his own operation and installed her in a cubicle near his office. He expressed jealousy of her friendship with a male employee, he admitted in court. And in one especially unnerving display, Mr. Ali slapped himself on the face and berated himself when Ms. Tulino challenged his truthfulness, an incident he also acknowledged to jurors.

Matters reached a head immediately afterward, as Mr. Ali tried to force himself on Ms. Tulino, she testified. The shaken employee geared up to file a complaint — not with Mr. Ali this time — while he retaliated by removing her access to work tools and changing her reporting structure in what she viewed as a demotion, jurors heard.

After an internal investigation found insufficient evidence to support her allegations of harassment, Ms. Tulino testified, she was told to continue working under Mr. Ali — or to leave.

She resigned and, according to testimony, has been psychologically unable to work since.

Shaazad Ali is our new Bad Boss of the Month.

Ms. Tulino sued the City of New York, Mr. Ali, and other officials. Last year a federal jury awarded Ms. Tulino $2 million in emotional damages, later reduced by the judge to $1.5 million. Her case is currently on appeal, with arguments scheduled for mid-2020.

In court Michelle Tulino described herself as a “first-generation American” with Italian and Polish parents. Growing up in Brooklyn, she was taught to value education and hard work.

At DSBS, however, she encountered a culture where sexual favors were expected for advancement, she testified — a sharp contrast to the idyllic internship that had drawn her to the agency. At trial she cried when describing the letdown, to the point that defense attorneys griped to the judge, who declined to intervene. Continuing, Ms. Tulino told jurors of an early supervisor who bluntly told her “that he wanted to f*** me in the back of his car — excuse my language.”

She rejected the advance and approached Mr. Ali, she testified, but the assistant commissioner told her there was no Equal Employment Opportunity process at DSBS, and that “women [are expected] to have sex with the male executives.” Since she didn’t want to do that, she told jurors, Mr. Ali offered to help her “navigate the discriminatory culture.”

In an early example of such help, Ms. Tulino testified, Mr. Ali warned her that she was on the DSBS commissioner’s “s**t list” for declining an invitation to drinks. Mr. Ali said she was in danger of demotion or firing, she testified — but added that he could “help me find a way to stay employed” because “he holds the purse strings.” Mr. Ali pushed Ms. Tulino to switch jobs within DSBS, which she did.

The relationship took a darker turn, Ms. Tulino told jurors, when Mr. Ali began informing her that “his male colleagues and friends” were calling her a “slut” and a “whore” and wanted nude photographs of her — news that she described as “a slap in the face.”

“I wanted him to do something about it,” she testified. “I wanted him to write them up, make a report about it, do something to punish them for it. … And he said, ‘You can’t change the way people think.'”

Ms. Tulino withdrew from him as a result, she told jurors, but Mr. Ali became persistent: He sent “continuous e-mails, voice mails, phone calls”; came to her desk and left notes asking why she wouldn’t answer his calls; even texted her as she attended the funeral of a coworker’s husband, asking “where I was and why wasn’t I answering the phone.”

Mr. Ali complained of being unappreciated, she said at trial, accusing her of causing him ulcers and painting her as “worst person in the world” for being cold to him. Finally he cornered her in a dark area near the freight elevators, she testified.

“You are treating me like a dog,” she said he told her angrily. “How could you do this to me?” Ms. Tulino testified that she was “very, very fearful” as she finally saw “the real face of Shaz Ali,” which she described being “almost like a bear coming at you.”

For some time after that explosion, she said, things calmed down. Ms. Tulino switched jobs again, seeking a promotion that Mr. Ali told her was elusive because other managers believed salacious rumors about her — or because only he recognized her skills, she testified.

Frustrated, Ms. Tulino finally took a job with Mr. Ali as her direct supervisor. It came with a price: She was now “under his complete control all day long,” she said at trial.

Even within his own group, Mr. Ali made Ms. Tulino aware that she faced obstacles: Several co-workers now believed that she was sleeping with Mr. Ali, she testified — and he seemed not only to tolerate these false rumors, but to relish discussing them.

Mr. Ali’s creepiness kept escalating, according to court documents. In her complaint in the case, Ms. Tulino alleged that Mr. Ali asked her for “special pictures” of herself and revealed that he was using her birth date for all his own passwords, she alleged.

Mr. Ali also got physical, she said in court. In one incident, she testified, he grabbed her wrist as they passed in the hallway and spun her around. She was upset because she had just received bad news about her father’s health. “He starts to embrace me and put his face closer to me,” she recalled. “I couldn’t break his grasp.”

Ms. Tulino’s father died shortly afterward, and she began talking with a male coworker who had also lost a parent. Mr. Ali became jealous, according to Ms. Tulino, and told her she shouldn’t be talking to other men. She ignored him.

Finally, Ms. Tulino testified, Mr. Ali called her into his office on November 12, 2014, and again told her to “limit my conversations with that boy — that man.” People were talking about them, Mr. Ali claimed, and now “he has to answer” to the agency’s H.R. director for her actions, she testified.

“It’s always the same story” with Mr. Ali, she said in court. “Someone’s talking about you. I have to protect you about it.”

Except this time, Ms. Tulino testified, she broke the pattern.

“This day was the day,” she told jurors. “This was like a culmination of everything. All the years, all the days, every day …. And I said, I don’t believe you. I don’t believe a thing you’re saying.”

It was then, she recalled, that “Mr. Ali lost his mind.”

“He was slapping himself in the face, calling himself ‘Stupid, stupid — I’m so stupid, I should have left you in [the previous, lesser job] where you belong.'”

In the courtroom, the jury heard a recording that Ms. Tulino had surreptitiously made of the confrontation. Mr. Ali admitted to its content — including his expression of jealousy — and also admitted that he had slapped himself, although he indicated in court that it was more of a “gesture” than a real slap.

Mr. Ali saw Ms. Tulino as a “special friend,” he testified, but he didn’t try to kiss her or force himself on her in any way.

As the November 14 confrontation ended, Ms. Tulino told Mr. Ali she would file a complaint with the agency’s internal EEO office — and Mr. Ali told her in turn that she was “finished.” As she got ready to leave, however, Mr. Ali walked into her cubicle and pushed her against a filing cabinet, she testified.

“He [had] his leg in between my legs,” she told the court. “And he’s holding my arms down and we’re struggling. And he’s trying to kiss me and I’m pushing him off and pushing him off.”

Mr. Ali testified that the incident never happened.

A few days later, Mr. Ali ordered Ms. Tulino to turn in her BlackBerry mobile phone and took other actions that she reported to the agency’s H.R. office as retaliatory. She followed up with an EEO complaint against Mr. Ali.

Meanwhile, Ms. Tulino testified, she was assigned to a new supervisor a level lower than Mr. Ali; frozen out of meetings; and given fewer assignments. “Eventually all of my work was taken away,” she told jurors.

The following May, the EEO investigation ended inconclusively. Although the report recommended a reassignment if possible, Ms. Tulino testified that officials told her in person to “go back to Shaazad Ali, or you have no place here.” Her complaint, she claimed they told her, had “offended the agency.”

Ms. Tulino resigned in early June. She told jurors that her dignity and self-esteem had been destroyed, that she was on multiple medications — including for nightmares — and that “every day is gray.” She has panic attacks “every single day,” she said; she doesn’t have friends, doesn’t socialize, and doesn’t feel comfortable in crowds.

The jury found Mr. Ali not liable on a claim of battery. U.S. District Judge Jed S. Rakoff, meanwhile, dismissed Ms. Tulino’s claim for constructive discharge before it reached the jury — an outcome that her lawyers have appealed. Ms. Tulino’s $2 million award for emotional damages was excessive, Judge Rakoff ruled, knocking it down to a still-hefty $1.5 million while awarding attorney fees of more than $675,000.

Mr. Ali was relieved of his duties immediately after the trial but was allowed to retire with a likely six-figure pension, according to media reports.

» Read Ms. Tulino’s second amended complaint

» Read Judge Rakoff’s rationale for reducing Ms. Tulino’s damages award


The Employment Law Group® law firm was not involved in Tulino v. City of New York. 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.

Ms. Tulino was represented at trial by PGP Law Group, LLC.


I Spy

Facing a Bias Complaint, This Bad Boss Used a Café Surveillance Cam to Get His Accuser Fired

Yes, Tim Pruitt took a half-sandwich from the work cafeteria without paying for it.

But, no, he later testified, he did not steal that sandwich — his friend had paid for it ahead of time, as the friend confirmed under oath.

And yes, he failed to record a few hours properly on a time card — but it was an error made in haste, he testified, to which he had admitted as soon as he was notified.

Regardless, Mr. Pruitt was fired for these seemingly minor offenses by his boss at Genentech, Inc., Steven Graeff, who had been watching Mr. Pruitt extra-closely ever since the African American help desk technician reported him for unfair treatment, according to testimony.

To support the termination, Mr. Graeff teamed up with Mr. Pruitt’s former boss Daniel Williams — who also had been accused of racial bias by Mr. Pruitt, and who was a close work friend of Mr. Graeff — to ask Genentech’s security officer to pull video surveillance tapes of Mr. Pruitt’s movements, both men testified.

The two men confronted Mr. Pruitt with the accusations together, even though Mr. Williams had “no good reason” to be present, in the words of a judge who reviewed the matter, and Mr. Pruitt was quickly marched out of the California biotech company, where he had worked for 21 years, by a guard.

Steven Graeff is our new Bad Boss of the Month.

Mr. Pruitt filed a lawsuit against Genentech, claiming unlawful discrimination and retaliation, among other things. A federal judge allowed the retaliation-related claims to proceed and, in mid-2019, a jury awarded the fired employee nearly $235,000 in damages. An appeal was filed, but the case recently ended in a settlement.

For most of his two decades at Genentech, Mr. Pruitt testified, his experience had been positive. Raised with 10 siblings in a modest household in nearby Benicia, Calif., he earned an associate’s degree locally and was proud to have risen to earn more than $100,000 a year. He viewed Genentech as a “great company,” he told the jury, and he built friendships there that extended outside of work. He took vacations with colleagues to Athens, to see the 2004 Olympics, and to Brazil, to see the 2014 World Cup. His daughter got a job at the company, too.

Mr. Pruitt had started out as a contractor for the Bay Area company. In 1998 he was hired full-time and became the first IT employee to work at Genentech’s manufacturing facility in Vacaville, Calif., where he earned positive performance reviews for years. Mr. Williams was his manager for much of this time — and in 2012, according to testimony, he became the subject of Mr. Pruitt’s first discrimination complaint after writing a “performance counseling document” that Mr. Pruitt felt treated him differently than white employees.

Genentech cleared Mr. Williams, who is white, of racial bias. But it also instructed him to amend the counseling document, according to court filings. Mr. Williams followed up with a performance evaluation that was the lowest of Mr. Pruitt’s career — an act that Mr. Pruitt viewed as retaliatory, especially considering the awards he had received that year, he said in a court filing.

Mr. Williams ultimately moved to another position at Vacaville and Genentech hired Mr. Graeff, who also is white, to replace him. The two managers quickly became tight, eating lunch together two or three times a week, Mr. Graeff said in court. For the remainder of Mr. Pruitt’s time at Genentech, Mr. Williams kept popping up at key moments — despite being outside Mr. Pruitt’s chain of command.

Mr. Williams “is like Forrest Gump, only nefarious as far as we’re concerned,” one of Mr. Pruitt’s lawyers said at a hearing in the case.

At first, Mr. Pruitt told the jury, he was excited that Mr. Williams had been replaced by Mr. Graeff: “You know — new ideas, new manager.” Before long, however, he found that Mr. Graeff was watching his every move, according to testimony. The new manager would hover around Mr. Pruitt, track his breaks, and examine his time cards closely, a level of attention that Mr. Graeff didn’t undertake for white workers, according to court filings.

After being denied a promotion, Mr. Pruitt complained to Genentech’s employee relations department about unfair treatment. Soon afterward, he testified, Mr. Graeff started raising issues about time card inaccuracy. In a one-on-one meeting with the manager, Mr. Pruitt complained of feeling singled out, he told jurors, and Mr. Graeff reacted by being “very rude” to him. Stressed out, Mr. Pruitt began seeing a therapist and took an approved leave for depression and anxiety.

Mr. Pruitt wasn’t the only person feeling bias from Mr. Graeff. In a deposition, a contractor of Afghani national origin said he sometimes drove home “crying all the way” because Mr. Graeff had treated him abusively while questioning every aspect of his time card reports.

“I was afraid to even go to lunch,” testified Humayon Sarwari. “I brought food from home all the time, because I didn’t even want to go to the cafeteria, because when he’d see me [Mr. Graeff would say,] ‘What are you doing here?'” According to Mr. Sarwari, Mr. Graeff never acted this way toward white workers, who saw him as an “awesome guy.”

“He was like Dr. Jekyll and Mr. Hyde,” Mr. Sarwari testified.

(Jurors didn’t hear from Mr. Sarwari or some other witnesses because the judge focused the trial on events in June and July 2016 that might count as retaliation against Mr. Pruitt.)

Not long after Mr. Pruitt returned from his medical leave, he complained again to Genentech about Mr. Graeff’s behavior — this time explicitly labeling it as race discrimination. Genentech opened an investigation but didn’t interview Mr. Pruitt, according to court documents.

About a month later, on July 13, 2016, with the investigation still under way, Mr. Graeff sent Mr. Pruitt to work for a day at Genentech’s nearby office in Dixon, Calif., to cover for an employee who was out. Mr. Pruitt later told jurors that he left Dixon at lunchtime to pick up a prescription back in Vacaville — he suffers from glaucoma and was in pain — and was late returning because of traffic. He then left the Dixon office early because he was still feeling ill. He checked to ensure there were no important tasks pending, and he informed the site administrator, he testified.

Mr. Graeff, meanwhile, had decided to visit the Dixon facility that very afternoon. He asked Mr. Williams to come along with him — to make an introduction to an official whom he hadn’t yet met, he testified. (Mr. Graeff had been working at Genentech for about a year by now, according to filings.) He stopped by Mr. Pruitt’s desk and found him gone.

Mr. Graeff didn’t call Mr. Pruitt’s cellphone to get an explanation, nor did he tell Mr. Pruitt the next day, when they both were working in Vacaville, that he had failed to find him at Dixon. Instead, he told jurors, he waited another day and — while Mr. Pruitt was out — called the Dixon facility to ask for surveillance video so that he could clock Mr. Pruitt’s comings and goings.

As it turned out, Mr. Pruitt hadn’t yet filed a time card for the week in question. He believed he had done so, he testified, but it never registered in the system. (He had been having a technical issue, which he had previously reported to Genentech people including Mr. Graeff.) When Mr. Pruitt returned to work after the weekend, Mr. Graeff ordered him to file his card immediately. Mr. Pruitt complied within minutes — but in his haste he entered his standard hours for the day at Dixon, he testified, rather than reflecting the time he had missed.

Mr. Graeff didn’t discuss this discrepancy with his employee for almost two weeks, he acknowledged in court, until the day Mr. Pruitt was escorted from the building.

Then, on July 21, came the half-sandwich incident.

Mr. Pruitt had arranged to meet a friend, Thomas Barillaro, in the Genentech cafeteria. At a deposition, Mr. Barillaro testified that he paid for Mr. Pruitt’s lunch in advance, as he often did — but that Mr. Pruitt was delayed, so he left and assumed that Mr. Pruitt would pick up his pre-paid BLT later.

And indeed, on that day Mr. Pruitt walked into the cafeteria, got a half-sandwich, and walked out without paying. Unluckily for Mr. Pruitt, Mr. Graeff was in the cafeteria at the time — he was waiting for Mr. Williams, he testified — and saw the incident. He believed he had seen Mr. Pruitt stealing and, as Mr. Pruitt’s lawyer described it in court, the manager’s videotaped reaction resembled “a little victory dance.”

Once more Mr. Graeff didn’t ask Mr. Pruitt to explain himself. Instead, after lunch, he and Mr. Williams went to the Vacaville security office and asked for surveillance tape of the incident — which they later watched together with an employee relations representative, according to testimony.

A security specialist named Javier Vargaz dug a bit deeper, interviewing the cafeteria cashier on the same day as the incident. According to a declaration filed in the case, the cashier confirmed that an unknown “friend” had paid for Mr. Pruitt’s food that day. But the cashier’s account didn’t exactly match the video and, according to the document filed by Genentech, Mr. Vargaz concluded that the cashier must have been recollecting a separate incident “at some other time” than shown on the tape.

Throughout this time, Mr. Graeff had been communicating with the Genentech official responsible for investigating Mr. Pruitt’s claim of discrimination against him — and feeding the investigator, at the same time, his allegations of Mr. Pruitt’s own wrongdoing, according to testimony. No one informed Mr. Pruitt that he was under a cloud, however, or asked for his side of the story.

On July 25, Genentech informed Mr. Graeff (but not Mr. Pruitt) that the discrimination probe was over, and that the manager had been cleared. Mr. Graeff immediately made plans to put Mr. Pruitt on administrative leave — a likely prelude to firing — based on the time card and sandwich incidents, according to testimony.

The following day, Mr. Pruitt arrived at his desk to find a new meeting with Mr. Graeff on his calendar. He walked to Mr. Graeff’s office, only to be led to a small conference room where — to his surprise — Mr. Williams was waiting. When Mr. Pruitt expressed confusion about why Mr. Williams was present, he testified, Mr. Graeff said his friend was there to “help answer questions.”

In the event, Mr. Graeff, a former military police officer, did the speaking. He revealed that Mr. Pruitt had filed an incorrect time card for the day at Dixon — something Mr. Pruitt quickly acknowledged as a mistake — and also said that Mr. Pruitt had been caught on tape stealing a sandwich. It was the first time the employee had heard either accusation.

Flustered at Mr. Williams’ presence and Mr. Graeff’s hostile tone, Mr. Pruitt told the men he had paid for the sandwich before he even knew what day Mr. Graeff was talking about — a response that Genentech cited repeatedly as a “lie” at trial.

“I was very nervous and uncomfortable,” he told jurors. “And basically, I just knew [that] no matter what I said, it wouldn’t matter at that point.”

Mr. Pruitt was placed on leave, escorted out of the building, and shown to his car. Later that day, in a call with Genentech employee relations, he learned that his race discrimination complaint against Mr. Graeff had been closed, according to court documents.

The following day, Mr. Pruitt told jurors, Mr. Graeff called him at home to fire him officially — but first, he said, the manager noted that “he was putting me on speakerphone because Dan Williams was there with him also.”

After dropping the hammer, Mr. Graeff started to explain some logistical matters. A distraught Mr. Pruitt simply hung up. “I started crying,” he told the jury, “and I didn’t want [them] to hear that.”

Mr. Pruitt was 54 at the time he was fired and banned from Genentech’s facilities. He continues to look for a new job, he told jurors, but he is constrained by his age, his two-year degree, and his ongoing health problems. In 2017 his glaucoma finally caused him to lose vision in his left eye, he said, and back pain limits how far he can commute.

At trial his partner testified that the formerly social Mr. Pruitt became subdued and despondant after the firing, and saw his friends much less often. He couldn’t sleep properly anymore, she said, and now gets up several times a night to pace around the house. He continues to see a therapist and take anti-anxiety medication, according to testimony.

Mr. Pruitt did feel “great” when he got one temporary job, he said in court, but that position expired after four months and he returned to fruitless job-hunting. “I almost feel like I don’t have a life,” he said. His partner has taken a part-time retail job to help make ends meet, even though she had previously retired, he testified.

In court last year, jury members never learned of Mr. Pruitt’s explanation for the sandwich incident, since the judge had ruled it irrelevant to his specific retaliation claims. They didn’t hear Mr. Barillaro’s testimony that he had paid for his friend, or that the cafeteria cashier had confirmed the story — albeit with different details — before the firing. Instead, Genentech emphasized Mr. Pruitt’s “lie” about paying.

Nonetheless, the jury found that Mr. Pruitt’s termination was unlawfully based on his discrimination complaint against Mr. Graeff, and awarded him damages for past economic loss and emotional distress. He received no provision for ongoing harm, however, and in his appeal his attorneys said the trial judge had unfairly kept some matters out of the jury’s hands.

The U.S. Court of Appeals for the Ninth Circuit ordered the case into mediation, where the parties reached an undisclosed settlement. The matter was dismissed in November 2019.

» Read Mr. Pruitt’s complaint (originally filed in state court)

» Read the declaration of Javier Vargaz, the Genentech employee who quizzed the cafeteria cashier


The Employment Law Group® law firm was not involved in Pruitt v. Genentech, 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.

Mr. Pruitt was represented in this case by the McHenry Law Firm and Levy, Vinick, Burrell, Hyams.


Holy Orders

This Bad Boss Priest Cast the First Stone — at an Eighth Grade Teacher

Single mom Kourtney Liggins had worked for almost four years as an eighth-grade teacher at Transfiguration Elementary School, a Catholic school in Los Angeles, when Father Michael Tang, the school’s pastor, called her to his office.

Fr. Tang said he had heard Ms. Liggins was pregnant, she later told a court; accordingly, he asked her to stop acting as a youth minister because she was, as she said he put it, “morally corrupt.”

“Does it even have a father?” the priest inquired about the unborn child, a girl, according to testimony from Ms. Liggins, who also was Fr. Tang’s parishioner. “I don’t want to see it on this campus. I don’t want to see it at church.”

Hurt and upset, Ms. Liggins dropped much of her religious work but remained as a teacher at Transfiguration. She was approved for a year’s maternity leave upon her daughter’s birth that summer, but was called back early — and at lower pay — after Fr. Tang clashed with her substitute, she testified.

Just a few months after her return, she met again with Fr. Tang and was shocked to hear him claim that Transfiguration parents were now complaining about her. She told the court this was the first time she heard of any criticism — and further, that she came to believe that Fr. Tang had altered employment records and rewarded some of the parents for their complaints.

One week later, Ms. Liggins received a bad year-end review; Fr. Tang said she’d be suspended if she did not sign it, according to court documents. Backed up by a HR official, Ms. Liggins refused. A month later, however, she was told not to return for the next school year.

Michael Tang is our new Bad Boss of the Month.

Ms. Liggins filed a lawsuit against the Archdiocese of Los Angeles and Fr. Tang, among others. After a trial in October 2018, an L.A. County jury awarded her almost $3.6 million in compensation, plus a levy of $87,500 to punish Fr. Tang personally for his “outrageous” conduct. In January the judge invalidated part of that verdict, however, and ordered a new trial on damages alone. No one was happy, and the tangled outcome is now on appeal.

An experienced educator, Ms. Liggins had begun subbing at Transfiguration in 2007, not long after her sister, Mechele Yerima, became principal. It was her second stint at the school, which serves a diverse community of modest means; she had worked there from 1998 to 2003 and “really enjoyed” it. In 2008, Ms. Liggins was promoted to teach eighth graders a range of subjects from science to music to spelling. Often called Mrs. Johnson at school because she had children at Transfiguration with that surname from a previous marriage, she said she had no performance issues until her run-in with Fr. Tang.

Fr. Tang, meanwhile, had arrived at Transfiguration in 2010. A diocesan priest who teaches art and art history at nearby Loyola Marymount University, a Catholic institution with a close relationship to Transfiguration, he moved in a very different world than Ms. Liggins. He is a talented watercolorist and equestrian enthusiast who promotes himself as “America’s premier sporting artist”; his flattering horse-and-rider paintings are owned by society figures such as the Bertam Firestones and Jane Forbes Clark, and by tony institutions including The International Museum of the Horse.

Originally a Jesuit, Fr. Tang told a writer that he left that order partly because its vow of poverty conflicted with his wish to ride and show horses. On his Web site he solicits equestrian painting commissions, promising to capture “you and your favorite mount in pigment for posterity.” His About the Artist page features a glamorous studio photo and no hint of his vocation — although he was profiled as “The Holy Horseman” by UnTacked, a glossy supplement to The Chronicle of the Horse, appearing in his priestly collar as the cover model.

As pastor for Transfiguration, Fr. Tang technically did not supervise the teachers except in their religious role. But as a practical matter, according to testimony including his own, he drove many of the school’s staffing decisions.

Ms. Liggins told jurors that her relationship with Fr. Tang was good at first. He seemed to take an interest in her family, sometimes calling one of her daughters out of class to watch over his “babies” — his Jack Russell terriers, a breed that’s highly valued by fox hunters.

But things changed when the priest learned that she was expecting a child with her boyfriend, an L.A. school district administrator named Adrian Magee, according to Ms. Liggins. At trial, Fr. Tang denied that he judged Ms. Liggins for having an out-of-wedlock birth: “If I had that problem … we wouldn’t have a school,” he said, noting about that half the families at Transfiguration, and at least one other teacher, were in a similar situation.

At the same time, he acknowledged in testimony, he did tell Ms. Liggins not to bring her newborn to school — and he said he was bound, as her pastor, to find that her pregnancy violated “the philosophies and teachings of the Catholic church.”

With two other children enrolled at Transfiguration, Ms. Liggins didn’t want to lose her job. She reported Fr. Tang’s seeming bias to an HR official and to the bishop himself, Fr. Tang’s boss. The bishop’s response, according to filings: He asked her to “pray on it.”

When Ms. Liggins returned to school early from maternity leave, she placed her baby in daycare across the street so that she could leave during lunch to nurse her. But around the same time, she testified, Transfiguration vice principal Evelyn Rickenbacker started scheduling teacher meetings at lunchtime, causing Ms. Liggins to miss out on important updates. Ms. Rickenbacker told her, she said, to “decide which is more important” — the meetings or the nursing.

The vice principal “would always say … ‘I’m sorry things aren’t to your liking, Mrs. Obama,” Ms. Liggins recalled in a deposition.

Both women are African American.

Ms. Liggins began to feel frozen out. At mass on Sundays, she testified, Fr. Tang declined to shake her hand as he did with other parishioners after the service. To make matters worse, her sister Ms. Yerima decided to resign as principal. Ms. Rickenbacker, herself a Transfiguration alumna, was named to fill the slot, and she and Fr. Tang started talking about refreshing the staff, according to Ms. Liggins’ testimony.

Tensions rose quickly. At a meeting that Ms. Liggins believed would be about financial aid for her children, Fr. Tang and Ms. Rickenbacker informed her of parent complaints about “frequent lateness, absences and cell phone use in the class,” according to testimony — but offered no documentation. Blindsided, Ms. Liggins sensed a set-up and flagged the issue to HR immediately.

Five days later, Mr. Magee — Ms. Liggins’ partner and father of their infant daughter — showed up without notice at Ms. Rickenbacker’s classroom to observe Ms. Liggins’ son Jonathan. Ms. Rickenbacker felt intimidated by Mr. Magee’s “glaring,” she told jurors, although she conceded that class observation by family members was an acceptable practice.

Then Mr. Magee accompanied Ms. Liggins to a meeting that Fr. Tang and Ms. Rickenbacker had scheduled to discuss Ms. Liggins’ work performance — and matters really escalated. According to a court filing by Ms. Liggins, the priest told Mr. Magee he couldn’t join the meeting, called him “an uppity-a** Creole n***er,” and banned him from the Transfiguration campus, an incident that jurors didn’t hear about.

Fr. Tang, who is of Chinese descent, then convened some of the school’s administrators and, according to meeting minutes later filed in the case, told them that he was aware of “all the comments and negativity” and “false rumors and petitions” circulating about him, and of “attempts to sabotage his work here.” Any staff member who was insubordinate, he warned — even to the extent of “eye-rolling” — could face termination: As pastor, he said, he had “ultimate authority and power” over the school, including firing power, according to the document.

Indeed, Fr. Tang had been exercising that power lately, jurors heard. Besides directing Ms. Yerima to fire Ms. Liggins’ long-term substitute for “badmouthing” him, he also let go a vice principal in part for “insubordinate behavior,” he said at trial. Another ex-Transfiguration official testified that he was fired after complaining that Fr. Tang had shown up to school meetings — including a PTA meeting — smelling of alcohol and acting “discombobulated.”

Ms. Liggins’ exit from the school took several weeks to play out. She withdrew her kids before the end of the school year, she testified, because they were being “targeted.” Fr. Tang finally provided letters to bolster his claims of parent complaints — but, he admitted in court, they were written after his initial meeting with Ms. Liggins, whose attorney intimated in court that the letters had been obtained in exchange for the priest’s help with debt and scholarships.

In the end, Ms. Liggins learned that her contract would not be renewed via a letter that she received at her parents’ home — and opened in front of her father, she testified, feeling “embarrassed” and “afraid.”

“It was devastating,” she told jurors.

Unable to find a full-time teaching job again, she had to switch all but one of her kids to public school. For a while she continued to attend Fr. Tang’s mass at Transfiguration Church, but it soon became “unbearable” and she found another parish.

“There were times” when she considered suicide, she testified.

The jurors ultimately found for Ms. Liggins on two claims — wrongful termination by the archdiocese and intentional infliction of emotional distress (IIED) by the archdiocese and by Fr. Tang. They awarded her more than $275,000 in economic damages, a further $3.3 million for pain and suffering, and $87,500 as punishment for Fr. Tang specifically.

According to the trial judge, however, Ms. Liggins technically wasn’t terminated: Her contract simply wasn’t renewed for another term, which can’t support a wrongful termination judgment in California, according to his order. Since the jury’s awards were lump sums, not allocated between claims, the judge ordered a new trial on the amount Ms. Liggins should receive for the IIED claim alone. Both sides appealed and the matter likely won’t be resolved until next year.

» Read Ms. Liggins’ first amended complaint

» Read about Fr. Tang’s horsy lifestyle via the profile in UnTacked, “The Intertwined Passions of Father Michael Tang”


The Employment Law Group® law firm was not involved in Liggins v. Archdiocese of Los Angeles. 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.

Ms. Liggins is represented in this case by Shegerian & Associates.


Voicing Concerns

This Bad Boss Fired a Survivor of Throat Cancer After Hearing How He Spoke Post-Surgery

For Troy Coachman, working as finance director for a Mercedes-Benz dealership meant he had reached “the pinnacle of the car industry.”

And by all accounts the sharp-dressed Mr. Coachman excelled at his job, which was to persuade luxury-car purchasers to buy extra products and protections as he did their paperwork. “One of the best,” is how Al Monjazeb, the owner of Mercedes-Benz of Seattle — and Mr. Coachman’s former boss — described him at trial.

So why did Mr. Monjazeb fire his star employee, as he testified he did?

In 2014, shortly after receiving a promotion and more than six years after joining the dealership, the 50-year-old Mr. Coachman was diagnosed with cancer of the larynx, or voice box. Surgeons eventually removed his larynx and vocal cords and inserted a voice prosthesis — a device that allowed him to speak, albeit in a different voice, by activating a button at his throat.

Near the end of that year, after weathering several medical setbacks, Mr. Coachman was preparing to return to work from a period of unpaid leave. He visited the Mercedes dealership, where he ran into Mr. Monjazeb. It was the first time the men had met since Mr. Coachman’s surgery and, according to testimony, Mr. Monjazeb was taken aback by his employee’s still-healing stoma — the opening in his neck that allowed him to breathe — and also by his overall appearance and a voice that Mr. Monjazeb described at trial as “whisper-like” and hard to understand.

Mr. Coachman testified that he was on “voice rest” at the time, to allow his throat to finish healing.

The dealership’s former general manager, who had scheduled Mr. Coachman’s return, said at trial that Mr. Monjazeb told him that high-end Mercedes customers might be “bothered” by Mr. Coachman’s stoma and altered speech. Mr. Monjazeb instructed the GM to stop talking with Mr. Coachman and to let him handle the matter instead, the GM testified.

Not long after, Mr. Monjazeb fired Mr. Coachman via e-mail.

Al Monjazeb is our new Bad Boss of the Month.

Mr. Coachman filed a lawsuit against the dealership and against Mr. Monjazeb personally, claiming violation of the Americans with Disabilities Act and also a Washington State law against discrimination. After a seven-day trial in late 2018, a federal jury sided unanimously with Mr. Coachman and awarded him nearly $5 million in damages — an outcome that’s now under appeal at the U.S. Court of Appeals for the Ninth Circuit, where it will likely be argued this winter.

Until he was fired, Troy Coachman’s successful work life had provided a welcome contrast to his traumatic family background. Raised by an abusive single mother who had “a lot of boyfriends” and walked around their low-income duplex home “butt-naked,” according to the testimony of a childhood friend, Mr. Coachman told the court he was rejected by a father who didn’t accept his son’s homosexuality, and that he also became estranged from his twin brother.

Mr. Coachman escaped into work at an early age, the friend testified, progressing quickly up the ladder at Taco Time restaurants, moving into banking, and finally finding his calling in auto sales and financing. When he first got the opportunity to represent the Mercedes-Benz brand, she said, “I noticed this new glow to him. It was like he was on top of the world.”

Another friend told the court: “Given his childhood, I think Mercedes … was a statement for him as to where he came from — and where he was now.”

Known for his strong bonds with customers, his smart suits, and his wide selection of ties, Mr. Coachman also earned a reputation for great financial results. At Mr. Monjazeb’s luxe dealership he performed at nearly twice the level of his peers, according to deposition testimony from Jason Graham, the dealership’s former GM.

Little surprise, then, that Mr. Graham wanted Mr. Coachman to return to work after his cancer surgery — and that he was mulling how to shuffle staff assignments to make it happen, according to testimony.

Mr. Graham told the court that he scheduled the cancer survivor’s return for January 2, 2015, a date blessed by Mr. Coachman’s doctor, even though the GM wasn’t sure what position Mr. Coachman would initially fill, given his still-developing mastery of the voice prosthesis. And Mr. Monjazeb seemed fine with that plan, Mr. Graham testified, until a meeting in which the “very upset” owner suddenly asserted he had never said the finance director could come back — a statement Mr. Graham said was false.

“Al told [me and another manager] just to leave it alone,” he told jurors. “He was going to take care of it, and to stay out of it.”

Mr. Coachman now needed to meet with Mr. Monjazeb so the owner could judge his ability to work, he was told — even though, as Mr. Monjazeb admitted in a deposition, the owner’s brief single encounter with Mr. Coachman had already convinced him that there was “no way” he could do his job.

“After that last meeting …,” he testified, “my brain knew that he can’t come back.”

In any event, the men never met. Mr. Monjazeb said he was too busy — and then, after Mr. Coachman pressed his desire to return, Mr. Monjazeb ended his employment, saying that the dealership had filled his position, according to court documents. Mr. Monjazeb asked an HR person to do the deed on his behalf, via e-mail, and acknowledged in court that Mr. Coachman was fired because of his voice.

Mr. Graham told jurors he wasn’t consulted about Mr. Coachman’s termination, and didn’t believe it made sense.

“Normally, when an employee is returning from a health issue,” the former GM testified, “you find some type of position they — I guess reasonable accommodation for whatever is going on with their health.” Firing Mr. Coachman rather than somehow easing him back into the dealership, he said, “never crossed my mind.”

At trial, Mr. Coachman recounted his shock and humiliation over the “callous” e-mail.

“I was really disappointed in … how they handled the situation with me,” he testified. “I am different — obviously, look at me. I sound different. Yes, my tone is off a little bit, but it’s still me. I am still Troy. … All I wanted was a chance to be able to prove that I could do my job.”

What’s more, Mr. Coachman told the court, his self-funded disability insurance policy had just stopped paying benefits because his doctor had certified his ability to work — so suddenly he had no source of income.

“I was crushed for him,” his childhood friend testified. “I mean, … all that man knows is work.”

Mr. Coachman quickly snagged a temporary, lesser-paying job at a nearby Subaru dealership, filling in for someone who was taking an extended vacation to Australia. He went through a normal hiring process, according to testimony, with no red flags raised about his voice or his ability to perform.

Just a month after being fired by Mr. Monjazeb, Mr. Coachman began working on the Subaru sales floor to familiarize himself with the brand, then switched to his accustomed finance position.

“Customers loved him,” Wendy Borgert, who managed Mr. Coachman directly in his finance role, recalled in testimony. “He did great … he was actually number one in my department. He had the highest warranty penetration; highest dollar per car; no customer complaints; very, very minimal charge-backs. I mean, he did great.”

In the meantime, Mr. Coachman had lawyered up. In an exchange of letters via their respective attorneys, Mr. Monjazeb ended up offering Mr. Coachman his old job back — but again insisted on meeting his former employee before setting a start date.

“I still would have had to made sure that his communication levels were OK,” Mr. Monjazeb explained in a deposition — although, at trial, he claimed he wanted only “an ordinary conversation I would have with any employees coming on board.”

Mr. Coachman, who was still working at Subaru at the time, declined. The offer was just a reaction to his legal representation, he testified.

“Why did anybody think that I would go back to a place like that,” he asked the court, “after over and over being told, ‘Oh, take your time, take your time’ — and then I get ready to come back and … I’m fired? … I just didn’t feel safe going back.”

Mr. Coachman finished his Subaru stint and soon afterward, sadly, learned that his cancer had metastasized to his lungs. Within a few months he was totally disabled, according to court documents, and his treatment triggered a further condition known as chemotherapy-induced peripheral neuropathy, which prevented him from working. Since he could no longer afford payments on the house he had owned for 14 years, he sold it and moved 50 miles south of Seattle to a mobile home.

The sociable Mr. Coachman told jurors that he stopped having parties and inviting people over. The emotional impact, he testified, was severe — but he “never thought thought I wasn’t going to beat it, especially the third time.”

At trial, Mr. Coachman said he remains on therapy for cancer but “I’m two-and-a-half years no recurrence, so I feel great. … I’m lucky to be sitting here.”

Just a few weeks before the trial, he started his first job since the temporary Subaru gig, working as a finance director for Larson Automotive Group in Tacoma, Wash.

“Are you happy to be back at work?” he was asked in court.

“You have no idea,” he answered.

» Read Mr. Coachman’s complaint

» Read the trial judge’s post-trial order rejecting numerous arguments from Mr. Monjazeb, including the idea that the jury’s award was excessive


The Employment Law Group® law firm was not involved in Coachman v. Seattle Auto Management, 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. Coachman was represented by Frank Freed Subit & Thomas and Schroeter Goldmark & Bender.


Mock Trial

Jurors Backed a Stutterer — and Made This Bad Boss Choke on His Words

For Augustine Caldera, a longtime corrections officer, speaking in front of Sgt. James Grove — his superior at a California prison — often led to humiliation, according to a state appeals court.

Mr. Caldera has stuttered since he was 12. When he did so at the California Institution for Men in Chino, Calif., Mr. Grove would ape his disability in a schoolyard display aimed at their co-workers — on one occasion even jumping onto the prison’s radio system to mimic an announcement in which Mr. Caldera had stammered, the court said in an opinion.

In another incident, after Mr. Grove had mocked him in front of two dozen fellow officers, Mr. Caldera asked the sergeant to stop.

F- f- f- f**k you,” replied Mr. Grove, according to the opinion.

When Mr. Caldera warned that he’d lodge a complaint, the court said, Mr. Grove replied: “I don’t give a fu- fu- f**kfi- fi- file on me. Make sure you get my name right.”

Mr. Caldera did request an investigation, according to testimony, but within days he learned that his situation would get even worse. Mr. Grove wouldn’t face significant discipline; instead he would become Mr. Caldera’s direct supervisor.

James Grove is our new Bad Boss of the Month.

In the end Mr. Caldera filed a lawsuit against the state of California, the California prison system, and Mr. Grove individually, claiming disability-based harassment and a hostile work environment, among other things. At trial a state jury awarded Mr. Caldera $500,000 in damages, an award that was affirmed in 2018 after dueling appeals. In February 2019 the trial judge added almost $870,000 in costs and attorney fees.

Mr. Grove’s actions were responsible for 25 percent of the damages, the jury said, with the remainder allotted to the prison system for its actions and its inaction.

Mr. Caldera’s stuttering never affected his prison work, which mainly involved escorting troubled inmates to and from mental-health appointments. The prison’s chief psychologist called him an “outstanding” officer and testified that Mr. Grove’s tormenting, which the psychologist said he witnessed at least a dozen times, was mean-spirited and contributed to a “culture of joking” against Mr. Caldera.

Other officers joined in, according to testimony, calling Mr. Caldera nicknames such as “Mumbles” and “Machine Gun.”

The ridicule wore Mr. Caldera down, and he testified that he suffered “paranoia, anxiety, and distress.” After Mr. Grove’s mocking radio transmission — heard by as many as 100 prison employees — a sympathetic officer noted Mr. Caldera’s evident shock and “saddened” expression, the officer recalled in testimony.

“That’s kind of [messed] up, on the radio like that,” the officer later said to Mr. Caldera.

“Yeah, I get it all the time,” sighed Mr. Caldera.

Mr. Grove’s subsequent “get my name right” taunt — witnessed by the psychologist and plenty of others, according to the appellate opinion — was the trigger for Mr. Caldera finally to make an Equal Employment Opportunity (EEO) complaint.

Just days later, however, Mr. Grove’s superior, a lieutenant, put Mr. Grove in line for direct oversight of Mr. Caldera. The two higher-ranking officers had worked together at another facility and sometime socialized together, according to testimony, but the lieutenant claimed in court documents that he showed no bias when giving Mr. Grove this upper hand.

As for the disciplinary issue, the lieutenant decided that Mr. Grove’s punishment should be to sign a generic list of job expectations, which Mr. Caldera later called “a slap on the hand,” according to court records.

In later testimony, the lieutenant would call Mr. Caldera a “liar” for his claims of discrimination — while the appellate court, in an interim opinion before the trial, flagged the lieutenant’s account of events as a possible cover for discrimination.

For several weeks, a panicky Mr. Caldera met with anyone he thought might be able to stop Mr. Grove from becoming his direct boss. Nothing changed: His superiors indicated they wouldn’t “be held hostage” by Mr. Caldera’s EEO complaint, a different lieutenant testified.

Mr. Caldera ultimately met with the prison warden, who said he’d look into the matter. Yet only a few days later — shortly before becoming Mr. Caldera’s official boss — Mr. Grove was at it again, according to testimony.

The sergeant, a big man known as Rhino, attended a training session about the prison’s electric fences. When another sergeant asked Mr. Grove how he was doing, she testified, he responded with a fake stammer:

“Everything is fine except for Ca- Ca- Ca- Caldera.”

Mr. Grove went on to mimic his future employee “throughout the whole conversation,” she testified.

“It seems striking to us,” said the appellate court in affirming the jury’s verdict, “that the harassment was so pervasive within the institution that Grove apparently felt he could openly mimic Caldera’s stutter in front of his peers … without any sense of shame or fear of reprisal.”

The EEO complaint ended up sidetracked at the prison: About a week after Mr. Grove became his direct supervisor, Mr. Caldera got a letter saying that stuttering isn’t an EEO matter — and that his problems therefore were being bounced back as a “supervisory issue.”

About a month later, without further action, the prison’s associate warden wrote to the EEO officer that the matter was “resolved,” according to court records.

Mr. Caldera predictably did not enjoy working for Mr. Grove, although he wasn’t mocked to his face anymore. He filed a different discrimination charge and requested a transfer as an accommodation of his disability, which wasn’t acted upon, according to court documents. He testified that the sergeant was “consistently critical” of his work and treated Mr. Caldera differently than his fellow officers.

Mr. Caldera began taking anti-anxiety medication, he said in a deposition, and suffered from feelings of paranoia and claustrophobia that he never had experienced at work before.

After about nine months, Mr. Grove moved to become supervisor at the prison’s weapons range, where Mr. Caldera often had worked as an instructor. Unlike previous supervisors, the sergeant called Mr. Caldera to instruct at the range only once or twice, according to testimony.

Mr. Caldera filed his lawsuit a few months after Mr. Grove’s reassignment. Since the resulting trial he has taken an early retirement, and no longer works as a corrections officer.

“It was just too stressful an environment for him to continue in,” said his lawyer, Todd F. Nevell.

» Read Mr. Caldera’s first amended complaint

» Read the California appellate opinion that affirmed the jury’s verdict

 


The Employment Law Group® law firm was not involved in Caldera v. California Department of Corrections and Rehabilitation. 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. Caldera was represented by Scolinos, Sheldon & Nevell.


Obstacle Course

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.

» Read the EEOC’s amended complaint
 


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.


Double Trouble

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.

» See a photo of Justin Driskell after the fight
» Read Mr. Driskell’s original complaint, which was filed in state court
 


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.


Minimum Security

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.

» Read an excerpt of Mr. Harper’s testimony about why he fired Mr. Mikulan
 


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.

During this case, Mr. Mikulan was represented by The Law Offices of Timothy P. O’Brien and Stember Cohn & Davidson-Welling, LLC.


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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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R. Scott Oswald
Managing Principal
The Employment Law Group

Contributing Writer
Ann Oldenburg

Contributing Editor
Laurence Hooper

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