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Office Politics

This Bad Boss Punished a Career Prosecutor for Following Her Principles

Public prosecutors are hired to exercise unclouded legal judgment about whom to charge with a crime.

But Marlea Dell’Anno was fired for exercising such judgment, a jury found.

As a top prosecutor for the city of San Diego, Ms. Dell’Anno had enjoyed a large corner office, oversaw about 160 attorneys and staff, and reported directly to City Attorney Jan Goldsmith, a combative local politician who used his elected post to draw media attention and settle scores, according to a lawsuit.

In court filings, Ms. Dell’Anno said she ran afoul of Mr. Goldsmith by declining to prosecute flimsy cases that her boss was pushing for mostly political reasons — a battery charge against a troubled homeless man who spat at a cop, for instance.

An adviser to Mr. Goldsmith told Ms. Dell’Anno that she’d find more favor if she agreed to “get [her] hands dirty,” according to testimony. Instead, she refused more dubious requests from her boss. In response, Mr. Goldsmith stripped Ms. Dell’Anno of her staff and responsibilities and assigned her to a newly created position for “homeless related issues,” moving her office to a “filthy” room that had previously been used for storage, according to court filings.

Then, after Ms. Dell’Anno filed a complaint, Mr. Goldsmith quickly fired her — accusing her of dropping the ball on domestic violence reports. “There is absolutely no excuse” for such legal failures, Mr. Goldsmith declared to the media, which portrayed the firing as a valid punishment for Ms. Dell’Anno having “bungled” sensitive cases.

A jury ultimately found the firing to be illegal. In the meantime, however, a formerly rising star’s career lay in tatters.

Jan Goldsmith is our latest Bad Boss of the Month.

Ms. Dell’Anno sued the City of San Diego for retaliation, and earlier this year a California jury awarded her $3.9 million in damages. The judge later tacked on $1.7 million in attorney fees and costs. The city is appealing the verdict .

Being a prosecutor was Ms. Dell’Anno’s “lifelong dream,” according to court filings. After starting out as a public defender in Tulare County, in California’s Central Valley, she became a deputy district attorney for neighboring Fresno County, where she coordinated a program to manage sex offenders .

In 2009, Ms. Dell’Anno moved south to San Diego to become a deputy city attorney under Mr. Goldsmith. She was tapped to run the domestic violence unit, where she notched a 95% conviction rate. By mid-2012, she was heading the entire criminal division , according to court documents.

“My whole identity was being a prosecutor,” Ms. Dell’Anno testified. “I loved everything about being a prosecutor, and I loved my division.”

As the elected city attorney, meanwhile, Mr. Goldsmith was a veteran politician. A Republican, he had served as mayor of Poway, a small city north of San Diego, and then for three terms in the California state assembly. After an unsuccessful run for state treasurer, he served as a judge for almost a decade before being elected as San Diego’s top prosecutor of misdemeanors. (The San Diego County district attorney handles felonies, which are graver crimes.)

Court documents depict Ms. Dell’Anno’s early relationship with Mr. Goldsmith as respectful. In 2013, however, Ms. Dell’Anno attended a city council meeting and publicly answered questions about her division’s budget — too honestly for Mr. Goldsmith’s taste, according to her testimony.

In her complaint, Ms. Dell’Anno described the city attorney chewing her out in front of his entire management team and forbidding her from speaking with council members. The relationship never recovered.

The following year, an elderly homeless man was arrested while he was having a mental crisis. According to court documents, he spat on a police officer. One of Ms. Dell’Anno’s attorneys decided not to file battery charges, but the spat-upon officer appealed to Mr. Goldsmith, who was known as a vocal supporter of the police. Mr. Goldsmith, in turn, asked Ms. Dell’Anno to take a closer look .

Ms. Dell’Anno concluded that the incident — which became known as the “spit battery case” — couldn’t ethically be prosecuted. She wrote a memo to her boss explaining why, but Mr. Goldsmith disagreed and declared that he’d try the case himself, according to court documents, despite never having played such a role before.

Ms. Dell’Anno ended up winning the dispute when San Diego’s police chief told Mr. Goldsmith that her department had no intention of arresting the elderly man.

Hoping to mend fences, Ms. Dell’Anno sought advice around this time from Gerry Braun, a former journalist who was hired by Mr. Goldsmith to manage public relations — and who was known around the office as the “Jan whisperer,” according to filings.

Mr. Braun’s advice cut straight to the point: Mr. Goldsmith “wants you to get your hands dirty,” he advised, according to Ms. Dell’Anno’s complaint. “If you would just get your hands dirty, they would let you in the room.”

A litmus test came quickly. In court documents, Ms. Dell’Anno described a gleeful Mr. Goldsmith calling her into his office with a plan to “get” one of his political enemies — Cory Briggs, a local attorney who ran for the city attorney position.

Mr. Briggs’ supposed criminal offense: Authorizing other people to sign legal pleadings with his electronic signature. When Ms. Dell’Anno told Mr. Goldsmith that she didn’t see it as a prosecutable matter, “she could see the happiness draining from his face, replaced by anger,” according to filings.

In another showdown, Ms. Dell’Anno said in her complaint, Mr. Goldsmith asked her to use a civil subpoena to fish for evidence against a newspaper he wanted to charge criminally; again, she refused. (In filings, Mr. Goldsmith said he had no memory of this.)

Perhaps the last straw was a pair of performance evaluations. Two attorneys got bad ratings from their managers, who worked in turn for Ms. Dell’Anno. The employees sought help directly from Mr. Goldsmith, who asked Ms. Dell’Anno to yank the evaluations from their personnel files, according to testimony — a request she refused, citing state law and the fact that one of the attorneys was the subject of an ongoing internal investigation.

Shortly after, Mr. Goldsmith took action: He shifted Ms. Dell’Anno out of her plum job and into what she described in court documents as a “fict[it]ious position” that included the creation of what Mr. Goldsmith called a “Homeless Court.” She went from supervising 160 people to supervising no one, according to filings, and was assigned a small, dirty office that used to be a storage room .

Ms. Dell’Anno immediately blasted the move as retaliation, calling it “the most professionally and personally devasting event of my twenty-year career” in an email that also informed Mr. Goldsmith that she had hired counsel and filed an employment complaint.

Plus, she noted: “Your actions have had a direct and profound impact on my health and as a result, I have been placed on leave by my doctor.”

The following morning, according to documents filed in the case, Mr. Goldsmith emailed his head of human resources: “My intent is to fire her today.” Told that this would be seen as illegal retaliation, he instead said Ms. Dell’Anno should be fired after she returned from medical leave, according to filings.

And she was, about three weeks later, by which time Mr. Goldsmith had found a reason: Mishandling her portfolio of misdemeanor domestic violence complaints, a matter that hadn’t been raised before her leave.

In court documents, each side tells a different story about these cases. An attorney in Ms. Dell’Anno’s division evidently had allowed the statute of limitations to lapse on some misdemeanor complaints without action, and without informing the alleged victims.

According to Ms. Dell’Anno, she followed protocol, investigated the problem, and properly informed Mr. Goldsmith’s management team. But Mr. Goldsmith testified that the matter never reached his level — even though evidence showed that, during the investigation he convened during Ms. Dell’Anno’s absence, he had found two old memos that “apparently not much was done about.”

The reason for this communication failing is unknown, but in any case, court documents and news articles show that Mr. Goldsmith fired only two people: Ms. Dell’Anno and the lower-level attorney responsible for the cases. The junior attorney quickly found another prosecutor job — pursuing felony crimes, in fact — but Ms. Dell’Anno was shut out based on what she claimed in court documents was a smear campaign by “one or more high ranking officials and/or employees at the City Attorney’s office.”

She also was damaged by Mr. Goldsmith’s savvy media spin, including a story in the prominent San Diego Union-Tribune , according to testimony. While the newspaper quoted Mr. Goldsmith as “declin[ing] to identify the lawyers involved [in] a confidential personnel matter,” it also said four unnamed sources confirmed that Ms. Dell’Anno had been held responsible for “98 bungled cases .”

By her own account, Ms. Dell’Anno became unemployable as a prosecutor, and at one point considered turning to teaching to support her three children as a single mother. “It became pretty clear that I was being blackballed in the legal community,” she said in a deposition.

Ultimately, she opened her own law practice instead. In the interim she survived on loans and savings; her income for 2016, the year after her termination, was just $7,500, she testified. In 2021, an expert found that Ms. Dell’Anno still hadn’t “reached parity with her pre-termination earning capacity.”

In total, the jury in the case said, the former prosecutor’s economic loss due to Mr. Goldsmith’s actions had reached about $734,000 by the time of the trial — and would amount to a further $2.66 million in the future.

It awarded her a further $500,000 for physical and emotional damage.

In their verdict, the jurors confirmed that Ms. Dell’Anno wouldn’t have been fired if she hadn’t raised concerns about the spit battery case, the attempt to charge Mr. Briggs, and the request to remove the evaluation of an attorney under investigation — and that in each case Ms. Dell’Anno had “reasonable cause to believe that [Mr. Goldsmith’s requested actions] would result in … a violation of or noncompliance with” laws or rules.

Mr. Goldsmith didn’t run for reelection in 2016 due to term limits.

» Read Ms. Dell’Anno’s complaint

» Watch a news segment of Ms. Dell’Anno speaking with ABC 10 News


The Employment Law Group® law firm was not involved in Marlea Dell’Anno v. City of San Diego. 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. Dell’Anno was represented by Denning Moores APC.


Truth and Consequences

This Bad Boss Asked an Employee to Lie Under Oath — and Fired Him After He Refused

When Matthew Flanigan saw evidence that a senior executive at his company might be violating security protocols, he alerted a group that included Allan Metzger, the cofounder and then-CEO of Rheumatology Diagnostics Laboratory (RDL), a Los Angeles-based medical testing facility.

At first, Mr. Metzger agreed to restrict the executive’s access to RDL’s computer network, according to a lawsuit filed later by Mr. Flanigan, who was the lab’s IT director.

But after the alleged culprit made a fuss, Mr. Metzger instead reversed course and dragged Mr. Flanigan into a high-stakes corporate battle by asking him to declare under oath that he’d never seen any sign of a security breach, according to testimony.

Mr. Flanigan refused to lie for the CEO, a former doctor who had previously made headlines for his care of pop stars Janet and Michael Jackson — and who had surrendered his medical license in 2014 after being convicted of sexually exploiting a patient during an examination, according to court records.

Instead, the IT director signed a declaration for the other side in the fight — and quickly faced retaliation.

According to court documents, Mr. Metzger suspended Mr. Flanigan and started a probe of his behavior. Among the investigators: The husband of the executive who had earlier been flagged for security violations.

Just two weeks later Mr. Flanigan was fired, supposedly for deleting company files during his suspension, an action he believes was concocted to frame him, according to court documents.

Allan Metzger is our latest Bad Boss of the Month.

Mr. Flanigan sued RDL in California state court, claiming he’d actually been fired for, among other things, refusing to perjure himself. In late 2021, a Los Angeles jury found RDL liable and awarded him $1.68 million in damages. This May a judge awarded Mr. Flanigan nearly $900,000 more in interest, costs, and attorney fees.

RDL, the main assets of which were acquired by testing giant LabCorp in 2020, is appealing the verdict.

Mr. Flanigan had been at RDL for just over a year when the trouble started — but he already was thriving at the lab, having earned a promotion, a company car, and $40,000 in raises during his short tenure.

As IT director his job included overseeing computer security, so he was alarmed in early 2017 when software showed that RDL’s new compliance chief, Kristine Azarraga, had plugged in an unauthorized thumb drive and introduced foreign files into the lab’s network.

The files, Mr. Flanigan said in court documents, came from Ms. Azarraga’s previous employer, also a healthcare company, and included personal data from thousands of patients in apparent violation of HIPAA, the Health Insurance Portability and Accountability Act of 1996, a law that protects the privacy of such information.

The IT director went to the top with his concerns, calling a meeting with Mr. Metzger and two other top executives, Samuel Morris and Richard Kazdan. Faced with Ms. Azarraga’s apparent misuse of a former employer’s data, the men initially agreed to limit her access to RDL’s data, Mr. Flanigan testified.

But then things went sideways.

First, Mr. Metzger reversed the decision about Ms. Azarraga after the compliance chief complained: “I’m the CEO and you’ll … do what I tell you to do,” Mr. Flanigan said Mr. Metzger yelled at him.

And second, the incident pulled the IT director into a fight that was stewing between the CEO and the other two executives to whom Mr. Flanigan had reported Ms. Azarraga’s breach, Mr. Morris and Mr. Kazdan.

Some background: RDL had been founded in 1976 by Mr. Metzger and the late Robert Morris, a noted rheumatologist and the father of Samuel Morris. For decades, the lab was run by the elder Morris, who acted as president, and his wife Barbara, who acted as CEO. Son Samuel later joined as a top manager.

Although Mr. Metzger was a co-owner, he mostly pursued flashier interests, according to court filings — including prescribing medication to stars such as Janet Jackson, for which he was censured in 2000, and accompanying Michael Jackson on tour as a physician.

(Mr. Metzger didn’t prescribe or administer the drugs that caused Mr. Jackson’s death in 2009; indeed, he testified against Conrad Murray, the physician who was convicted of involuntary manslaughter in the case.)

Mr. Kazdan was the lab’s longtime CFO.

By 2016 Robert and Barbara Morris were ailing; both would die before long. Having lost his California medical license in 2014, Mr. Metzger turned his focus to RDL — and, with the help of a minority shareholder, voted for himself as CEO to wrest control of the lab away from the Morrises, according to court filings.

Mr. Metzger treated RDL as a “personal piggy bank,” according to a declaration filed in court by the younger Mr. Morris: The new CEO paid himself an $800,000 salary; leased a Maserati as a company car; flew first-class and stayed in posh hotels with a girlfriend on “alleged … business outings”; and engaged in “sexual harassment” of RDL employees. The lab began to struggle financially, according to Mr. Morris, who testified that he had to lend RDL money just to make payroll.

Against this backdrop, Ms. Azarraga’s network access wasn’t just a security matter: It was fodder for a claim of mismanagement against Mr. Metzger.

Following the Azarraga incident, both Mr. Morris and Mr. Kazdan left RDL; Mr. Morris resigned and Mr. Kazdan was fired after warning the CEO about improper lab practices, according to court documents. In August, the duo filed a derivative action against Mr. Metzger and others, including Ms. Azarraga, claiming a breach of fiduciary duty and seeking at least $20 million for shareholders, along with changes to RDL’s “governance, policies and culture.”

Among the facts they cited: Mr. Flanigan’s warning about Ms. Azarraga — and Mr. Metzger’s subsequent restoration of her network privileges.

After being served with the lawsuit, the CEO summoned Mr. Flanigan into his office, according to testimony. A lawyer for RDL attended via phone and quizzed the IT director about the Azarraga incident; a few days later, Mr. Flanigan received a document in which he was asked to swear that he was unaware of any evidence that Ms. Azarraga had violated security protocols.

“Having reported Ms. Azarraga for doing precisely that only four months earlier,” Judge Terry Green noted in a later order, Mr. Flanigan “could not very well sign the declaration.”

Meanwhile, attorneys for Mr. Morris and Mr. Kazdan had also been in touch with the IT director. They too had drafted a declaration — and on the same day he refused to endorse Mr. Metzger’s document, Mr. Flanigan signed the competing version, which he found to be truthful.

The next day, after his declaration was filed in court, the IT director was put on investigative leave. The issue, according to court documents: In his declaration, Mr. Flanigan might have disclosed privileged information — and Mr. Metzger wanted to see whether he was leaking dirt to the other side. The IT director was forbidden to access RDL’s computer system.

Mr. Flanigan wasn’t at work when he got news of the suspension; the morning after siding against Mr. Metzger, he had called in sick with chest pains. His RDL office was quickly stripped of his personal effects.

“It was pretty obvious that they intended to fire me,” he testified.

Ironically, just weeks earlier Mr. Flanigan had been cleared of any collaboration with the recently departed Mr. Morris and Mr. Kazdan — via a secret investigation launched by Mr. Metzger himself. Concerned that his email had been compromised, the CEO had asked an outside security consultant to assess whether his IT director was “spying,” according to a copy of the report filed in the case.

The resulting exoneration was definitive: “I … would go so far as to stake my professional reputation … that the likelihood of Matt Flanigan committing any wrongdoing or unethical activity [is remote],” the investigator wrote in a report that didn’t surface until years into the lawsuit.

Nonetheless, RDL pressed ahead with another investigation. This time evidence showed that “the conclusion was foregone,” according to Judge Green.

First, according to court documents, came an informal probe by — of all people — Ms. Azarraga’s husband, Garabed Yegavian, himself an IT professional. Mr. Yegavian “might well” have been biased against Mr. Flanigan, according to Judge Green.

Either way, Mr. Yegavian promptly delivered logs that purported to show that Mr. Flanigan had deleted a bunch of files after being banned from the network. Then RDL provided the same logs to an outside investigator, who agreed with Mr. Yegavian’s conclusion — but didn’t address what Judge Green called “the very real possibility” that someone else had used Mr. Flanigan’s passwords, which he had provided to RDL, to create the firing offense. In fact, records showed that the IT director wasn’t at the RDL office when Mr. Yegavian’s logs supposedly showed him logging in from there.

Based on these investigations, which Judge Green wrote “can hardly be called rigorous,” Mr. Metzger fired Mr. Flanigan in September 2017. About a month later, RDL began paying Mr. Yegavian as a consultant, according to court documents.

The matter finally reached trial in state court in September 2021. After three weeks of proceedings, a Los Angeles jury found Mr. Metzger’s firing of the IT director to be both unlawful and “malicious, oppressive, and/or fraudulent,” awarding Mr. Flanigan $1.08 million in direct damages and a further $600,000 in punitive damages — to which Judge Green later added almost $900,000 in interest, fees, and costs, for a total of more than $2.5 million.

The dispute over RDL’s governance, meanwhile, settled in 2019. After selling most of the business to LabCorp, Mr. Metzger wound up the corporation in 2020, according to state filings. His medical license had been reinstated earlier that year, with a host of probationary conditions that included the use of a chaperone when treating female patients and successful completion of a program on “professional boundaries,” but the now-former CEO agreed to surrender his license again in 2021.

The most recent order by the Medical Board of California doesn’t state a reason, but cites a provision that covers either Mr. Metzger’s decision to stop practicing medicine or his inability “to satisfy the terms and conditions of probation.”

» Read Mr. Flanigan’s complaint

» Watch Mr. Metzger’s testimony in the trial of Conrad Murray, a physician convicted of the involuntary manslaughter of Michael Jackson

 


 
The Employment Law Group® law firm was not involved in Flanigan v. Rheumatology Diagnostics Laboratory, 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. Flanigan was represented by the Law Offices of Edward Y. Lee.
 


 

Prison Break

This Bad Boss Triggered an Injured Employee’s PTSD — Then Took Him to Court.

Getting badly hurt by an inmate should have been the low point of Darrin Rushing’s career as a corrections officer.

But according to a lawsuit, it was just the start of his troubles.

Mr. Rushing’s leg had been shattered as he tried to break up a scuffle between prisoners at the Macomb Correctional Facility, a state prison outside Detroit. He was confined to a wheelchair for months.

When Mr. Rushing finally returned to full duty, he asked to have no further contact with Lester Gunn, the prisoner who broke his leg, but his request was denied. Before long he had an encounter with Mr. Gunn that awakened his post-traumatic stress disorder, according to testimony in the case.

Even so, Mr. Rushing’s boss, James Webster, kept assigning him to the same duty, jurors heard at trial — and when Mr. Rushing left work to avoid another bout of PTSD, Mr. Webster reported him for insubordination.

Tensions escalated between the men, according to testimony, as Mr. Webster harmed Mr. Rushing’s efforts to get a different job and gave him triggering tasks such as cleaning up blood after an assault.

Mr. Webster, a lieutenant, even dragged his subordinate into court, claiming that he feared Mr. Rushing would get physical. The supervisor sought a protective order that could have cost Mr. Rushing his job; a judge denied the request as improper.

James Webster is our latest Bad Boss of the Month.

Ultimately, Mr. Rushing filed a complaint against the Michigan Department of Corrections (MDOC), alleging several violations of Michigan’s Persons with Disabilities Civil Rights Act. This April, a state jury awarded Mr. Rushing more than $1.2 million in damages.

Mr. Rushing had grown up with a strong sense of duty: The youngest of six brothers, he began taking on extra tasks at age seven, including the collection of donated food, when his abusive, alcoholic father left the family, according to court documents.

After high school, Mr. Rushing served for six years in the Marines and held a number of service-oriented jobs. In 1999, he began working for the MDOC, earning a top honor at the training academy, he testified. He had a trouble-free corrections career until 2011, when he received his life-altering injury at Macomb.

According to the incident report, two inmates got into a fight. One prisoner was quickly restrained; Mr. Rushing was among the responders who tried to control the other, Lester Gunn, a large, heavy man who resisted violently.

“He fought, kicked, he dislocated my ankle, we fell to the floor-and when he fell on me, he bent my leg backward and I sustained a grade four spiral fracture” of the calf bone, Mr. Rushing testified. “[His] 230-pound body landed on me. He heard my leg snap in half. Everybody heard it.”

Mr. Rushing had to undergo surgery twice; a doctor advised him that any further injury could disable him permanently, he told jurors.

After the incident, Mr. Rushing took medical leave and, in 2012, swapped his wheelchair for a cane and returned to MDOC for a long transition period with lighter duties. Along the way, he finished up a bachelor’s degree in criminal justice, being cleared by doctors to bear weight on his leg just six days before his graduation.

For several years, Mr. Rushing thrived doing administrative and counseling work. Then in 2015, while he was still limping, he was pushed back into full duty as a corrections officer at Macomb — and quickly learned that Mr. Gunn, the inmate who had broken his leg, was returning to the prison after a move elsewhere.

Mr. Rushing had first requested a no-contact order against Mr. Gunn from his hospital bed immediately after the incident, he testified, but the matter was moot back then. Now, it was more urgent.

Mr. Gunn had a violent history, according to court records. Multiple MDOC officers had no-contact orders against him for injuries that included bites, head-punching, and lacerations, with several requiring stitches and leading to prosecution, according to a “Special Problem Offender Notice” filed in the case.

Mr. Rushing’s concerns, however, were rebuffed .

Within the space of a month, Mr. Rushing faced Mr. Gunn three times in the chow hall at Macomb, triggering symptoms such as anxiety and an uncontrollably jittering foot. On the third occasion, he testified, the hulking inmate addressed him by name, shot a glance at the injured leg, and ominously asked how he was feeling.

This was enough to spark what Mr. Rushing’s doctor diagnosed as a PTSD episode, leading to several weeks of medical leave, another request for a no-contact order, and yet another denial — the fifth, according to Mr. Rushing’s complaint in the case .

When Mr. Rushing returned to Macomb, he was again assigned to the chow hall at the insistence of Mr. Webster, the lieutenant, according to testimony . On the first day, he quietly swapped duties with a colleague, but on the second day, he was ordered to comply. He pleaded with a sergeant for different duty, to no avail.

“I’ll do anything you want … even go dig through a prisoner’s poop,” he testified he said, before escalating the matter to the prison’s control center, where Mr. Webster was.

“I explained everything briefly … how I could not come face-to-face with Prisoner Gunn,” he said in a deposition. “I was not ready. And [Mr. Webster] said, You’re going to the chow hall.”

Feeling the onset of a panic attack, Mr. Rushing instead decided to go home sick. He was trembling as he removed his equipment, he testified, and kept dropping things. Under medical care for his PTSD, he wouldn’t return to the prison for several months.

The day he left, according to testimony, Mr. Webster requested that Mr. Rushing be investigated for insubordination.

Ironically, Mr. Gunn wasn’t even in the chow hall that day. No one told Mr. Rushing at the time, but the inmate he feared had been transferred to another facility for unrelated reasons .

After Mr. Rushing was cleared by his doctor, he returned to Macomb and faced the result of the insubordination probe that had been requested by Mr. Webster: A five-day unpaid suspension. The lieutenant was waiting outside the prison’s HR office after Mr. Rushing was informed and promptly requested another investigation based on his subordinate’s reaction.

In testimony, both men agreed that Mr. Rushing was angry and snapped at Mr. Webster outside the HR office. But Mr. Webster also claimed that Mr. Rushing spoke to another person and hinted at violence against the lieutenant — something Mr. Rushing denied.

Mr. Webster took the extraordinary step of asking a Michigan state judge for a protective order that would bar his subordinate from the workplace. Mr. Rushing was humiliated by being served with the papers in the prison lobby, in front of coworkers, he testified.

The judge quickly denied Mr. Webster’s request, saying at a hearing that the alleged threat, even if it had happened, was “vague” and “heat of the moment.” With no claim of further threats, MDOC’s internal process should be allowed to play out, she said; the lieutenant’s pleading “doesn’t fly.”

“Basically, you’re coming to this court for [Mr. Rushing] to lose his job,” the judge said. “I really don’t think that is the proper place.”

MDOC’s internal investigation led to a second suspension for Mr. Rushing. In an affidavit, a former deputy warden called both suspensions “inappropriate and excessive.”

“Officer Rushing should have been shown some compassion considering he was assaulted by a prisoner he would encounter,” he wrote.

Via a grievance process, Mr. Rushing ultimately retrieved some of the lost pay — but he continued to be harmed by the discipline process and by Mr. Webster’s failed request for a protective order.

In 2016, for instance, Mr. Rushing applied for a position with the Saint Clair County Sheriff’s Department. He reached the final round of interviews — but then, during a reference check, his prospective employer reached Mr. Webster.

“I’m probably not the person you want to talk to,” said Mr. Webster, according to an MDOC email filed in court. “I recently put a [personal protective order] out on Officer Rushing.”

Mr. Rushing didn’t get the job.

His disciplinary record stopped him from being promoted internally, according to testimony, despite Mr. Rushing’s long experience and strong education, plus military service that was considered as a positive factor by MDOC.

In 2017, for example, an assistant deputy warden told him he was the most qualified candidate to become a program coordinator, Mr. Rushing testified — but was “instantly deflated” to learn of the suspensions.

A candidate with less relevant experience was hired instead, according to court records.

Meanwhile, Mr. Webster continued to be his supervisor, assigning him tasks that Mr. Rushing viewed as punitive.

In one instance, a friend of Mr. Rushing was attacked by an inmate. According to Mr. Rushing’s deposition, blood was splattered as high as four feet on several walls; Mr. Webster ordered Mr. Rushing to clean it up, even though other officers were available.

According to a psychiatric evaluation in court records, the incident aggravated Mr. Rushing’s PTSD, increasing his nightmares, flashbacks, and panic attacks. At trial, both Mr. Rushing and his wife told jurors that his marriage suffered from the ongoing stress of working with Mr. Webster; he withdrew from his family and stopped having dinner with them.

Mr. Rushing filed an internal complaint against Mr. Webster but, according to court documents, it went nowhere. In 2018, he filed his lawsuit against the Michigan Department of Corrections.

In April 2022, after a three-week trial, a jury found MDOC liable to Mr. Rushing for failing to accommodate his disability; for discriminating against him; and for retaliation. Jury members awarded the officer, who remains employed by MDOC, more than $400,000 in past and future economic damages — and almost $868,000 for physical and emotional harm.

According to his attorney, Mr. Rushing was finally promoted shortly before the trial began.

» Read Mr. Rushing’s first amended complaint in the case

» Read the incident report of Mr. Rushing’s injury


The Employment Law Group® law firm was not involved in Rushing v. Michigan Department of Corrections. 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. Rushing was represented by Marko Law.


Tic, Tic, Boom

This Bad Boss Pushed His Tourette-Suffering Employee Toward a Health Crisis.

Working almost 100 hours in a week is a lot. For Brian Bell, it proved overwhelming.

Mr. Bell’s disabilities — from depression to Tourette Syndrome — hadn’t previously affected his strong performance as a store manager at O’Reilly Auto Parts in Belfast, Maine, according to a lawsuit he later filed. His Tourette’s tics, which manifested as a body jerk and a squeaking sound, were limited to just ten a day via medication.

But when an O’Reilly district manager, Chris Watters, denied his requests for extra help to cover a staff shortage, Mr. Bell was suddenly forced to double his own work hours, he testified. Even after adjusting his meds, his symptoms began to escalate under the stress and exhaustion.

Mr. Bell was near a breaking point, he told a jury, but Mr. Watters — who was partly responsible for the labor emergency, according to testimony — refused his pleas to offer overtime to other store workers or to borrow staff from nearby O’Reilly locations.

By the start of his seventh 15-hour day, Mr. Bell’s tics became almost constant. Other symptoms were cropping up, too, including severe headaches and pain in a previously injured knee. He ducked into the parking lot for a quick break, which didn’t violate any rules — only for Mr. Watters, who had been tipped off by a neighboring store manager, to call Mr. Bell’s cellphone and order him back to work immediately, according to testimony.

Ultimately, a medical provider stepped in and helped the beleaguered Mr. Bell to take some leave and request a disability accommodation that would shield him from excessive schedules in the future. Mr. Watters said he couldn’t make such a guarantee to an O’Reilly store manager, however, a jury heard at trial.

The district manager’s counteroffer: A demotion to a different location that would cut Mr. Bell’s pay in half while tripling his commute.

Chris Watters is our latest Bad Boss of the Month.

Mr. Bell filed a lawsuit against O’Reilly in 2016 under the Maine Human Rights Act and the Americans with Disabilities Act, resulting in two trials in federal court — the second a redo after the first was compromised by faulty jury instructions. In October 2021, the second jury awarded Mr. Bell more than $850,000 in damages, an amount that was affirmed last month by the trial judge.

O’Reilly will contest the outcome, according to court filings.

Mr. Bell was diagnosed with Tourette’s at 16. As with most sufferers, the disorder wasn’t very disruptive — nothing like some lurid media portrayals. His body would occasionally twitch and a squeal-like sound would escape, he told jurors, which might unnerve onlookers who didn’t expect it. With medication, he kept it under good control.

He had previously been diagnosed with ADHD and anxiety, which often accompany Tourette’s, and developed major depressive disorder a few years later. Nonetheless, jurors heard, he thrived. He was an honor student throughout college , even while enduring multiple surgeries for a lacrosse-injured knee. After graduating with a degree in business administration and marketing, he started working in the auto industry.

By 2014, Mr. Bell had earned several Automotive Service Excellence certifications and four years of managerial experience. He joined O’Reilly as its Belfast store manager, bringing the location into profitability for the first time in its history — and logging performance improvements every month, according to testimony. His disabilities were widely known at work, he said, including the Tourette’s, but didn’t require any accommodation.

Meanwhile, as district manager, Mr. Watters oversaw several stores in the area. He visited the Belfast store almost every week and spoke with Mr. Bell almost daily; at trial, he admitted having noticed Mr. Bell’s tics.

They clashed early on. Apparently due to a miscommunication, Mr. Watters wrote up Mr. Bell for failing to work full shifts. According to court documents, Mr. Watters called the behavior — which Mr. Bell denied — “a personal insult.”

Certainly the men had different management styles. According to documents, Mr. Bell wanted to go easy on several employees who faced personal challenges, while Mr. Watters pushed to fire them. In one instance, Mr. Bell said in a court document that wasn’t seen by jurors, Mr. Watters seemed to suggest framing an underperformer for theft.

“I do not care if you put a stereo in his personal vehicle and then find it while walking him out to his car,” Mr. Bell said he was told by Mr. Watters.

At trial, Mr. Bell skipped such details but painted Mr. Watters as a caustic authoritarian. “I think that he believed that the ends justified the means,” he testified. “[A]t the end of the day, you had two ways of doing things, and that was his way or out.”

In May 2015, one of Mr. Watters’ firings coincided with an unrelated resignation to create a sudden staff shortage in the Belfast store, according to testimony. Some of the remaining employees were able to work overtime, Mr. Bell told jurors, but Mr. Watters refused to authorize the expenditure — or to borrow workers from a nearby store.

While he scrambled to find new employees, Mr. Bell had to fill the gap himself. He began working 15 hours a day, from 6:30 a.m. to 9:30 p.m., he testified, and his health took a downward turn.

Mr. Bell’s tics became more frequent and more painful, he told the jury. Standing in the store for long hours also worsened the lingering injury to his knee, he said, and he started to experience headaches and dizziness.

By June 4, he was struggling. He had told Mr. Watters he was burning out, he testified — and Mr. Watters had witnessed his troubles while on a store visit — but no help was forthcoming. Having worked about 90 hours in the past week, he was exhausted and trembling.

According to court documents, Mr. Bell opened the store that day, waited for his staff to arrive, and then went out to his truck to gather himself. His tics were coming with barely a pause. Like other O’Reilly employees, Mr. Bell was entitled to 90 minutes of break time each day; at trial, Mr. Watters agreed that store managers can take this time at their discretion.

Nonetheless, Mr. Watters called Mr. Bell’s cellphone after just 15 minutes.

According to court documents, the district manager had been tipped off by a non-O’Reilly person who worked nearby; Mr. Watters said it was “outrageous” for Mr. Bell to be taking a break and told him to “get [his] ass back in the store now.”

Mr. Bell felt “defeated,” he told jurors, and complied.

A little later, in desperation, he went over Mr. Watters’ head and got permission to leave the store and seek immediate medical help, according to court documents.

Mr. Bell’s healthcare provider, a psychiatric nurse practitioner named Judy Weitzel, insisted that he take a few days off: Coupled with the overwork, his higher medication doses had nearly sent him to the hospital, she said.

Ms. Weitzel also helped Mr. Bell to fill out an O’Reilly form that requested a new accommodation for his disabilities — specifically, that his scheduled hours be limited to 45 hours a week, roughly the average amount he had worked before the staffing emergency. She wrote a cover note offering to answer any questions.

At trial, Mr. Watters admitted initial doubts about Mr. Bell’s disability claims. Although he had noticed the tics, he testified, he didn’t know about any mental health issues. According to court documents, his first response was, “Who will be closing your store?”

Furthermore, O’Reilly lawyers told the court, Mr. Watters misinterpreted Mr. Bell’s accommodation request: He believed that 45 hours was a hard weekly maximum — when in fact, both Ms. Weitzel and Mr. Bell allowed some flexibility for unexpected events.

Mr. Watters never contacted Ms. Weitzel, according to court documents. Instead, according to court documents, he concluded that Mr. Bell couldn’t be accommodated while remaining as an O’Reilly store manager. He offered him a lower position as Shift Lead in a different town, which would increase Mr. Bell’s daily commute while slicing his yearly earnings of $42,000 by half.

Mr. Bell realized the misunderstanding and tried to explain it to Mr. Watters but got nowhere, he testified. He even contacted O’Reilly’s HR department and offered to be demoted to assistant manager in the Belfast store, if that would solve matters, but got no official reply.

Meanwhile, at Mr. Watters’ request, he was staying away from work while negotiations ground on.

In July, Mr. Watters offered him a position as Parts Specialist in Belfast at $10 per hour, according to court documents — again, roughly half Mr. Bell’s existing salary. Mr. Bell responded by email, once more clarifying his accommodation request to Mr. Watters and to O’Reilly HR — and asking why he hadn’t been contacted about an assistant manager job that he heard had recently opened up in Belfast.

On August 5, Mr. Watters made him a take-it-or-leave-it offer: The Belfast assistant manager position for $10 per hour. Mr. Bell was troubled: Comparable non-disabled assistant managers got between $11 and $13, he said in court filings. Indeed, he testified, Mr. Watters had recently approved an offer of $13.50 per hour to hire someone with less managerial experience and fewer industry certifications than Mr. Bell.

Mr. Watters had given Mr. Bell just two days to respond or face termination, according to court documents. Mr. Bell asked for a better pay rate but got no immediate reply. His mental health, already precarious, continued to plummet; at trial, an expert witness said he became suicidal and was often bedridden.

His wife Natalie described Mr. Bell to jurors as disconnected, confused, and hurt during this period. In the car together one day, she testified, Mr. Bell asked her if she’d ever thought about just driving into a ditch. At his request, she removed all firearms and ammunition from the house.

“I texted him every hour on the hour just checking in, making sure he was okay and still there,” she testified.

About two months after his request to be paid more than $10 an hour as an assistant manager, Mr. Bell came to realize that he’d been fired when he received a letter from O’Reilly explaining his right to pay for a continuation of health benefits.

Mr. Bell sued in 2016. His first trial ended in defeat, but the U.S. Court of Appeals for the First Circuit found errors and ordered a do-over. Late last year, the second trial ended in his favor: A federal jury awarded him $42,000 in back pay, $75,000 in compensatory damages, and $750,000 in punitive damages.

Mr. Watters stepped down as regional manager in 2016 and ultimately left O’Reilly in June 2018, shortly before the first trial, according to his LinkedIn profile.

» Read Mr. Bell’s first amended complaint in the case

» Read the email complaint Mr. Bell sent to O’Reilly’s HR department

» Read the order from the U.S. Court of Appeals for the First Circuit


The Employment Law Group® law firm was not involved in Bell v. O’Reilly Auto Enterprises, LLC, d/b/a O’Reilly Auto Parts. 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. Bell was represented by Maine Employment Rights Group.


Title Roles

On Paper, This Pastor Was an Anti-Harassment Coordinator. The Reality Was a Bit Different.

Titles meant a lot to Anita Bralock: She had worked hard for hers.

After serving as a registered nurse since 1982, she earned a master’s degree and Ph.D. in nursing so she could teach other medical professionals, eventually rising to department chair at a university just outside Los Angeles. When she was recruited by the Christian-oriented American University of Health Sciences in nearby Signal Hill, Calif., Ms. Bralock believed it was another step upward in her educational career.

Then she got to know Gregory Johnson, the founder of AUHS — a person for whom, according to testimony in a lawsuit filed by Ms. Bralock, titles were less … rigorous.

Mr. Johnson and his wife Kim Dang, a co-founder of AUHS, both went by “doctor,” for example, yet each holds only an honorary degree, the jury heard. Ms. Dang’s degree came from a shadowy school in Liberia; his from an institution that wasn’t stated in court. Neither had any medical training, Mr. Johnson testified.

As AUHS founder, the volatile Mr. Johnson frequently waved aside the school’s titles and hierarchy, Ms. Bralock testified, inserting himself into decisions he was unqualified to make, including student admissions and faculty selection. An independent accreditation group found his operating role at AUHS to be inappropriate, the jury heard.

A pastor whose “Church of Love” focuses on homeless people, Mr. Johnson also served as the federal Title IX coordinator for AUHS — making him responsible for ensuring a non-discriminatory educational environment. But Mr. Johnson himself handed out suggestive materials, inappropriately touched faculty members, exploded in anger, and was the subject of multiple sexual harassment complaints from students, according to court documents.

“I don’t even know what Title IX means,” Mr. Johnson acknowledged in a deposition video that was replayed in court.

Gregory Johnson is our new Bad Boss of the Month.

Ms. Bralock and another administrator began looking into some of the harassment allegations, only to be fired for purportedly unrelated reasons. They filed a lawsuit against Mr. Johnson and AUHS for retaliation, a hostile work environment, and other violations. This past September, a state jury awarded each of them more than $1 million in damages — and declared Mr. Johnson to be “unfit or incompetent” for the operational roles he had held at AUHS. The outcome is being appealed.

By the time of the trial in 2021, Ms. Bralock had devoted nearly four decades of her life to nursing. After starting as an RN, Ms. Bralock trained to become a certified nurse midwife. She then spent years cultivating her academic credentials and, in 1991, began educating others as skilled nurses. According to her testimony, she became a professor and then a department chair at Azusa Pacific University, a Christian-based college. About three years into her tenure, Mr. Johnson came knocking.

At that time, the nursing program at AUHS was still in its infancy. Mr. Johnson and Ms. Dang, a former Vietnamese refugee, had founded AUHS as a vocational school in 1993, when Ms. Dang was just 24. After it got traction, they began developing more advanced programs in pharmacy, clinical research, and — as of 2007 — nursing.

Hired as associate dean for the AUHS nursing school in 2010, Ms. Bralock quickly clashed with the founders. Despite not having graduated from college himself , Mr. Johnson insisted on controlling what he called “his” curriculum, she testified, ignoring the suggestions of faculty and administrators.

When she was promoted to dean the following year, Ms. Bralock gained oversight of the student application process — only to be overruled by Ms. Dang, who forced her to admit candidates who would go on to fail board exams, she told jurors.

Meanwhile Mr. Johnson meddled in hiring, bringing aboard an unqualified faculty member without informing either Ms. Bralock or AUHS’ then-president. He started meeting the young woman behind closed doors, encouraging her to wear revealing outfits and stiletto heels instead of scrubs, Ms. Bralock said in court — adding that the woman, who later accused Mr. Johnson of harassment, told her she feared losing her job if she didn’t comply.

It wasn’t the only example of Mr. Johnson giving unwanted attention to women at AUHS, according to court documents: Another employee accused Mr. Johnson of unwelcome hugging, hair touching, and shoulder massages; at an internal meeting to discuss his behavior, he reached across his wife, Ms. Dang, to stroke the employee’s hair again.

Suggestive talk was common during mandatory, ostensibly religious sessions hosted by Mr. Johnson, jurors heard. One series of meditations was dubbed “Morning Dew,” Ms. Bralock testified, with Mr. Johnson handing out flyers that included, in one case, a scantily clad woman waiting by a window to offer the reader “the favor that God has set before thee.”

At Morning Dew, Mr. Johnson asked employees to repeat and interpret phrases he had written such as “let me move inside you … rise inside you” as he hovered behind each speaker in turn — a practice that felt both uncomfortable and un-Christian , Ms. Bralock testified.

Sexual imagery played a role in AUHS recruitment, too: Mr. Johnson testified that he sought out future students at nearby comic-book conferences, where he took pictures with attendees in risqué costumes, commented on women’s appearances, and handed out AUHS flyers that showed off a self-styled vigilante called “The Pastor” and a bosomy female superhero in a crop top and crotch-hugging miniskirt.

The same sexualized female character, sporting high-heeled boots and crosses on her shoulders, appeared on a 10-foot banner in the school’s lobby, Ms. Bralock testified.

Tensions rose in 2015, as AUHS was seeking an additional accreditation from the Western Association of Schools and Colleges. After a three-day visit, WASC officials criticized the school’s “idiosyncratic leadership structure,” finding that Mr. Johnson lacked the “qualifications and experience” to be chief operating officer — his title at the time — and faced multiple conflicts of interest, especially if he were to be accused of wrongdoing, according to a report presented at trial.

Neither Mr. Johnson nor Ms. Dang could properly call themselves “doctor,” the report added — although Ms. Dang, who remains an owner and trustee of AUHS, continues to use the title on the school’s Web site at this writing.

WASC refused to accredit the school, jurors heard, until Mr. Johnson halted any direct involvement in its operations. He eventually did step back, along with Ms. Dang, but not until 2016, after Ms. Bralock had already been fired, according to testimony.

In the fraught months after the WASC visit, Mr. Johnson’s behavior led to a flurry of discrimination and harassment accusations from students and staff, according to court documents. Among these claims: Mr. Johnson showed preferential treatment to attractive women; pressed up against a woman when hugging her; made lewd comments around students such as “she should have come naked”; and stared down a student’s top.

A sexual harassment training session was organized for AUHS staff, according to testimony, but Mr. Johnson was so disruptive that he was asked to leave by moderators. At trial, Mr. Johnson denied he was a harasser. “There must be an agenda” behind the accusations, he said in court. “Sometimes people have a problem with [other] people being successful.”

Ms. Bralock and another administrator, Brandon Fryman, spoke with one of the complainants but were quickly removed from the case by Mr. Johnson, they testified. Not long afterward, the AUHS president resigned after multiple run-ins with Mr. Johnson. Ms. Bralock and Mr. Fryman were suspended the same day, and all three officials were escorted off campus.

A few months later, Ms. Bralock and Mr. Fryman were back to AUHS and officially fired. Ms. Bralock’s meeting lasted only 10 minutes, she told the jury. The purported reasons were murky: At trial, Mr. Johnson said he believed Ms. Bralock and Mr. Fryman were scheming with a former employee to open a competing school but offered no evidence of such a plot. In testimony, Ms. Bralock flatly denied the claim; since being fired, she has taught as an adjunct professor at the University of California, Los Angeles, and no rival school has emerged.

Mr. Johnson was never barred from AUHS events, nor from interacting with students, he testified; the harassment investigations ended without any significant discipline . He remains a school trustee along with Ms. Dang, and both continue to be featured in AUHS videos and updates.

Ms. Bralock’s upward trajectory in medical education, meanwhile, faltered after she was fired, she testified: She’d like someday to become a university president but knows that her UCLA teaching gig — while fulfilling — is a step down from being dean of a nursing school.

“I had to eat,” she told the jury.

» Read Ms. Bralock’s complaint in the case

» See some of the flyers passed out by Mr. Johnson

» Watch a promo video for Mr. Johnson’s violent antihero comic book “The Pastor”


The Employment Law Group® law firm was not involved in Bralock v. American University of Health Sciences, 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. Bralock was represented by Law Office of Twila S. White.


The Enabler

This Bad Boss Had the Facts He Needed to Stop Sexual Harassment, Yet Failed to Act

At first, Tracy White saw LaVerne Armstrong as an ally.

Facing sexual comments from her supervisor at the Iowa Department of Human Services (DHS) — and a lewd office culture that she saw as discriminatory — Ms. White asked to meet with Mr. Armstrong, her higher-level boss, according to testimony in a lawsuit she filed.

“He listened,” the social work administrator said in a deposition. “He was empathetic. … I felt supported.”

Nothing changed, however. In her deposition, Ms. White said she went back to Mr. Armstrong several months later, updating her complaints and reminding him that her supervisor had told her, in front of a co-worker, that he dreamed of her in dominatrix gear.

Mr. Armstrong’s response, according to her testimony?

“You need to stop telling me that … It makes me uncomfortable.”

Mr. Armstrong started an investigation that didn’t focus on discrimination or harassment and found no violations of DHS policy by Ms. White’s supervisor, Michael McInroy. The conclusion, according to testimony: Ms. White needed to upgrade her relationship with Mr. McInroy or look for a job elsewhere in the organization.

Mr. Armstrong also told Ms. White to work with a coach who asked her to consider ways “to make [Mr. McInroy] better” — and who then convened a torturous joint coaching session in which Mr. McInroy implied that his behavior was her fault.

“It felt like … being in marital therapy with my abuser,” Ms. White testified.

LaVerne (Vern) Armstrong is our latest Bad Boss of the Month.

Ultimately, Ms. White complained to someone who acted: Kim Reynolds, the governor of Iowa. Mr. McInroy was fired shortly afterward. Ms. White sued Iowa in state court and, after an 11-day trial this year, won a jury award of $790,000 for emotional distress. Late last month, the trial judge denied two motions to change the outcome.

Ms. White had joined DHS as a social worker in 2000, rising through the ranks of the Des Moines region along with Mr. McInroy, who eventually became her manager. The pair initially got along: Drawn to Ms. White’s office by her stash of chocolate, Mr. McInroy would hang out and chat with the door closed.

“I finally had to ask him to quit coming in so much because people were starting to wonder why he was in my office so much,” Ms. White testified.

But Mr. McInroy was known for playing favorites in the office, according to testimony — and by 2012, Ms. White had fallen into the “out crowd.”

The behavior of some of the “in crowd” troubled Ms. White and other employees: One member of Mr. McInroy’s leadership team, for example, joked about spanking a female employee, whom he allowed to call him “Daddy,” and spoke to co-workers about bodily fluids being “the nectar of the gods,” according to testimony.

Women were frequently assessed in sexual terms. When discussing one employee’s short dress, for instance, Mr. McInroy joked about praying she’d drop her pencil, Ms. White testified. Consequences for bad behavior were rare, she said.

Two incidents prompted Ms. White to seek help from Mr. Armstrong, a level up, in early 2017.

First, a fired employee accused Mr. McInroy in a grievance of discriminating against her as a woman and as a lesbian. While Ms. White agreed with the firing, she testified that she felt the portrayal of Mr. McInroy had merit: Mr. McInroy said he avoided meeting with the employee, for example, and expressed disgust at the idea of the employee having sex with her wife.

Then there was the dominatrix comment.

In the wake of the employee’s firing — which arose from the death of a child under the eye of DHS — the Des Moines office was on edge. A co-worker said she’d had a bad dream that featured Ms. White. According to testimony, Mr. McInroy jumped in: “Oh, was she wearing black leather and whipping you in your nightmare, too?”

The co-worker confirmed the awkward interjection and said she was “taken aback” by Mr. McInroy’s innuendo, an investigator later testified.

Ms. White reviewed her concerns in an initial meeting with Mr. Armstrong, the division administrator for DHS; the session lasted about three hours, she said in a filing. Nevertheless, Mr. Armstrong testified, he never concluded that Ms. White was “making a complaint or an allegation. It was a conversation of … how to make things go better.”

His only action in response: “I talked with Mike to get his perception…[we] talked about how to maybe improve their relationship [and] move forward collaboratively together.”

If anything, however, the opposite happened.

Mr. McInroy became openly hostile toward Ms. White, according to testimony — a change that she saw as retaliation for going up his chain of command. “I had a couple [of meetings] with Mike where he derided and berated me,” she said in a deposition. “I asked to leave the room. I cried.”

When she told Mr. McInroy that she was looking for a way to escape his management, she testified, he seemed “gleeful.”

Stung, Ms. White went back to Mr. Armstrong and then followed up with an e-mail that put her concerns in writing, adding more examples of discrimination. Mr. Armstrong triggered an investigation that ended up being handled internally by DHS rather than by Iowa’s Department of Administrative Services (DAS), which normally looks into harassment allegations.

Court records don’t fully explain why DAS didn’t step in, but the then-director of DHS said in a deposition that both Mr. Armstrong and another top executive, Jean Slaybaugh, had painted Ms. White to higher-ups as “a complainer.”

“That’s the way they referred to her,” testified Jerry Foxhoven, the former director. “To me, they seemed like they were in Mike’s court, you know, particularly Vern … She complains all the time, blah, blah, blah, blah, blah.”

The internal investigation found no violations on the part of Mr. McInroy, according to Mr. Armstrong. “It was a difference of leadership style,” he testified.

His resulting plan: “To clarify that Mike was remaining in his role, that people needed to get along, that they needed to stop … the discord.” He had no worries about Mr. McInroy’s continued supervision of Ms. White, he said — and he suggested hiring a “leadership development specialist,” or coach, to help defuse tensions.

Mr. Armstrong also explored the possibility that Ms. White could take a demotion or move outside of her area in DHS, child welfare. But, he testified, “she’d have to apply and interview. We weren’t going to just be able to move her.” That discussion went nowhere.

The coaching didn’t go anywhere, either.

Besides asking Ms. White to consider changing her own behavior, the coach organized a joint session with her and Mr. McInroy. During that meeting, Mr. McInroy acknowledged in testimony, he argued that Ms. White had faced his “Angry Mike” persona because of her failings — communication lapses and the like.

“She perceived me as Angry Mike,” Mr. McInroy said. “I would say that I was Annoyed Mike.”

Ms. White reported the dysfunctional outcome to Mr. Armstrong, who quickly gave up on coaching, according to court documents.

Meanwhile, the environment in the Des Moines office didn’t improve. Ms. White testified that she heard, for example, that an I.T. technician had sent an e-mail to a departing female employee saying that he’d miss his “eye candy.”

She reported the harassment to a responsible manager, but no action was taken until she pressed the manager several days later — and then, at the conclusion of a meeting on the matter, the same manager told an anecdote that ended with her singing part of Get Low, an explicit song by crunk star Lil Jon.

Mr. McInroy attended the meeting, Ms. White testified, and didn’t intervene.

Ms. White brought her continuing concerns to Mr. Armstrong, who opened a follow-up internal investigation that resulted in “essentially the same” finding of no violations — except that this time, Mr. Armstrong testified, he opted to “coach and counsel” Mr. McInroy on three incidents, including the dominatrix comment.

Counseling at DHS is a verbal process. Mr. McInroy testified that Mr. Armstrong gave him no specific guidance on what he called the “whips and chains” matter: “He just told me to be careful with my comments.”

In a memo at the end of 2018, Mr. Armstrong informed Ms. White that “appropriate action” now had been taken against Mr. McInroy, who remained in place. In a subsequent meeting, she testified, Mr. Armstrong told her she “needed to get on board.”

A couple of weeks later, she e-mailed Gov. Reynolds in frustration. “I felt I had no other recourse,” Ms. White said in a deposition.

Meanwhile, a different employee had triggered an investigation of another member of the “in crowd” — a female manager whom Ms. White had previously reported to Mr. Armstrong, and who now was accused of sexual harassment. Despite discussing penis size and breast size and giving sex toys to staff members as birthday gifts, an investigator testified, this manager had seemed “untouchable” because of her alignment with Mr. McInroy. Now there was strong evidence, however: A photo of the manager groping the complainant’s breast.

The combination of a phone call from the governor’s office and the new harassment complaint finally spurred DHS into action: This was the point, Mr. Armstrong testified, when he finally realized his office might have a problem.

It was also the point when Mr. Foxhoven, the former DHS director, got more involved. He ordered the firing of Mr. McInroy and told Mr. Armstrong to start looking for a job himself, he said in a deposition.

“Clearly, it was a mess,” he said he told Mr. Armstrong, “and you either didn’t know or didn’t care.”

Mr. Foxhoven warmed Mr. Armstrong that he would be fired on July 1, 2019, if he was still there. He also removed some responsibilities from Jean Slaybaugh, the other executive who had sided with Mr. McInroy over Ms. White, he testified.

But then, in an unexpected twist, Mr. Foxhoven himself was fired in June 2019 — for questioning Gov. Reynolds’ office on an ethical matter, he said in his deposition. Mr. Armstrong, who had never looked for another job anyway, was off the hook.

At trial earlier this year, jurors heard further testimony about the sexually charged Des Moines work environment, which featured photos of action figures in crude poses and a sign that designated one cubicle area as “Sniffer’s Row,” a lurid reference to certain seats at a strip club.

According to court documents, the fired Mr. McInroy agreed at trial that he had talked at work about picturing lesbians having sex — but only, he told jurors, to divert discussion from something inappropriate.

Ms. White cried through much of the trial, according to a filing. Her therapist testified that her distress, which had triggered several mood disorders and two outbreaks of shingles, would continue well into the future — an opinion that the judge cited in finding that the jury’s $790,000 award wasn’t excessive.

Ms. White still works at DHS, according to her attorney. So does Mr. Armstrong, who now serves as the head of DHS field operations, according to a recent org chart.

Ms. Slaybaugh, who with Mr. Armstrong had tagged Ms. White as a “complainer,” according to testimony, has risen to become the agency’s chief operating officer.

» Read Ms. White’s original complaint in the case

» Read the judge’s ruling on post-trial motions


The Employment Law Group® law firm was not involved in White v. State of Iowa. 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. White was represented by Fiedler Law Firm, P.L.C.


Grammar Police

Irked by a Cop’s Dyslexia, This Bad Boss Turned a Minor Traffic Stop into a Firing Offense

Dyslexia and ADHD didn’t stop Timothy Patrick “Pat” Green from working as a police officer for the City of South Pasadena. It was his dream job — and he did it happily for about 25 years.

Working first as a reserve officer and then full-time, Mr. Green became a well-loved figure in the community; fellow officers dubbed him “Father Pat” for his outreach to homeless and at-risk people.

One captain didn’t share the warm feelings, however. According to testimony in a lawsuit filed by Mr. Green, Richard Kowaltschuk was infuriated by his subordinate’s disabilities, to the point of expressing “disgust” at written reports that contained words garbled by the officer’s dyslexia.

The captain even rejected reports that sympathetic co-workers had helped Mr. Green to write, one colleague said at trial. “It was just never good enough,” the officer told jurors, noting that he had warned Mr. Green that Mr. Kowaltschuk was “coming after you.”

The blowup came after Mr. Green pulled over a driver early one morning. The event itself was relatively minor, but Mr. Kowaltschuk latched onto inconsistencies in the report, accusing his subordinate of lying — and twice re-staged the event to bolster his theory, according to court documents.

“This is our opportunity to get Pat Green,” the captain told an investigating officer, according to testimony. Although the investigator ended up recommending no action, Mr. Kowaltschuk wrote a memo urging Mr. Green’s firing — and before long “Father Pat” was out.

Richard Kowaltschuk is our latest Bad Boss of the Month.

Mr. Green filed a lawsuit against South Pasadena, claiming disability discrimination and other violations of California law. A Los Angeles jury sided with Mr. Green, awarding him damages of almost $4.8 million, an amount that was later reduced to about $1.7 million by the trial judge. Mr. Green’s victory withstood an appeal; last year he was paid more than $3.6 million, an amount that included his substantial legal costs.

Mr. Green had wanted to be a cop ever since watching Adam-12 as a kid. After failing third grade he was diagnosed with dyslexia and ADHD, attending a special education program for years, yet his zeal for law enforcement never flagged: He signed up to be a Police Explorer at 14. An ethos of public service was “instilled from my parents,” he explained at trial. His father was a World War II pilot; several of his siblings have served their communities, including in the police.

Mr. Green disclosed his disabilities on his police academy application, he testified, and they were widely known and accepted at work. As a cop he visited schools to talk with kids who had dyslexia and ADHD, to show them that their dreams were still possible.

Former police chief Joseph Payne acknowledged in court documents that Mr. Green’s reports and investigations were affected by his disabilities — but he noted that co-workers often helped out their friend, and that Mr. Green’s community-relations skills were “probably better than just about anybody else in the department.”

At trial, one supervisor called Mr. Green “an excellent officer.” Positive evaluations were entered into evidence: In one internal memo, a captain wrote that Mr. Green “is much too valuable an employee to let [poor] report writing stand in his way.”

Mr. Kowaltschuk disagreed, however, and peppered Mr. Green with negative feedback and nuisance investigations, according to testimony. In conversations, the captain was “often angry and a bit of a martinet,” a witness told jurors, while Mr. Green was “always very proper and courteous and restrained.”

The traffic incident happened in January 2012. During an overnight shift, Mr. Green pulled over a driver for minor speeding — but then got sidetracked by nearby suspicious activity, he testified, allowing the original offender to leave. Although Mr. Green didn’t know it at the time, the driver had been drinking and minutes earlier had left the scene of a fender bender, according to testimony.

The driver later turned himself in; he wasn’t prosecuted for any of his early-morning actions, according to court documents. Still, Mr. Kowaltschuk launched an internal probe based on discrepancies between the driver’s account and that of Mr. Green. Among the questions: Why didn’t Mr. Green realize the driver had been drinking — or ask about the car’s newly damaged front end?

Mr. Green explained that he had spoken to the driver only briefly while standing near the back of the car, but Mr. Kowaltschuk said that simply wasn’t credible, according to documents. When the investigating sergeant declined to recommend any discipline, Mr. Kowaltschuk asked him to alter the findings to include an allegation of dishonesty. The sergeant refused, testifying that he believed Mr. Kowaltschuk was “going after Pat because of his disabilities, like he’s been out for him for years.”

Undeterred, Mr. Kowaltschuk commandeered the matter and sent a memo to then-Chief Payne — who had been supportive of Mr. Green’s career — recommending that the dyslexic officer be fired for lying and negligence, according to court records. The captain’s recommendation was based partly on his own recreations of the incident, which an expert described in court as improper and flawed.

The chief didn’t take Mr. Kowaltschuk’s advice, but he agreed that Mr. Green hadn’t been diligent enough. The officer’s ultimate punishment: A six-day suspension, to be stayed if Mr. Green completed training to help mitigate the effect of his learning disabilities.

Except then, just a few weeks later, Chief Payne retired.

On his very first day as acting chief, newcomer Arthur Miller reviewed Mr. Green’s file — including Mr. Kowaltschuk’s arguments about dishonesty. Based on that record, Acting Chief Miller concluded that Mr. Green had made statements “with intent to deceive.” The stayed suspension, he said, was “too lenient,” according to documents in the case.

After some back-and-forth, Mr. Green was terminated in August 2013 — and his life quickly cratered.

He tried to find another job in law enforcement but “nobody would touch me for getting fired for lying,” he testified; he ended up overseeing maintenance for several Mexican restaurants owned by a family he has known since childhood. He took medication for depression and sleeplessness, but found the side effects intolerable. Eventually he found that exercise helped to stave off his despair.

According to a doctor who spoke at trial, Mr. Green has suffered from the symptoms of major depressive disorder — and, even more deeply, the loss of identity that came from being fired for dishonesty.

“He really viewed himself as a good cop,” the doctor testified, but now “he can’t ever be a police officer, which is something that he was really proud of and fought for. … [T]hat’s not going to go away.”

For his suffering, past and future, the jury awarded Mr. Green $4 million. South Pasadena argued the amount was excessive and the trial judge agreed, giving Mr. Green a choice of a new trial or a $3.1 million reduction in his non-economic damages. He took the slashed damages. South Pasadena and Mr. Green both appealed the outcome, but an appellate court affirmed the final judgment.

Last year Mr. Green asked the city to reclassify his firing as an honorable retirement, and to grant him a retired police badge.

So far the city has declined.

» Read Mr. Green’s original complaint in the case

» Read a local newspaper’s interview with Mr. Green


The Employment Law Group® law firm was not involved in Green v. City of South Pasadena. 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. Green was represented by The Law Offices of Vincent Miller.


Beyond Belief

This Bad Boss Froze Out Her Employee as a “Non-Believer.” He Complained and Ended Up Working Next to a Urinal.

Rasean Johnson was a proud third-generation employee of the City of San Diego. He loved his job in the downtown City Clerk’s Office — until Sheila Beale became his supervisor.

A demonstrative Christian, Ms. Beale regularly proclaimed her religious beliefs in the workplace. According to a federal lawsuit filed by Mr. Johnson, she led “prayer sessions” during staff meetings, touted the virtues of attending church, and inquired about employees’ religious affiliations.

During one performance review, Ms. Beale instructed Mr. Johnson to read the Bible because “even good people go to hell if they don’t give their life to the word of God,” his complaint alleged. She told one of his direct reports to ignore him as a “non-believer,” according to the complaint, and she later assigned Mr. Johnson entry-level work after he refused to pray with her.

Mr. Johnson finally went to his labor union, the San Diego Municipal Employees Association. MEA filed a grievance with the city, accusing Ms. Beale of creating a hostile work environment and discriminating against Mr. Johnson and two other employees.

While the investigation proceeded, Ms. Beale stripped Mr. Johnson of his supervisory duties, reassigned his staff to another manager, and excluded him from projects, he said in his federal complaint. Even after the city had corroborated much of Ms. Beale’s alleged behavior, according to testimony, the only option it offered Mr. Johnson was a transfer to a different job site.

He reluctantly made the move, only to end up in a repurposed storage space with a hole that opened into the plumbing of a neighboring space: The men’s bathroom.

Sheila Beale is our new Bad Boss of the Month.

Mr. Johnson filed a lawsuit against the City of San Diego claiming religious discrimination, a hostile work environment, and retaliation. His retaliation claim reached trial in May 2019, and a federal jury awarded him $350,000. The parties have since reached a settlement.

Mr. Johnson had started working for the city in 2004 as a stock clerk in the Records Management Department, according to court documents. It took six or seven applications before he finally landed the job, Mr. Johnson testified, but working with the city was important to him. He was following in the footsteps of many relatives who worked for the city, including his grandfather and great-grandfather.

“It’s a family thing,” he said at trial.

At first, the atmosphere in the clerk’s office was “wonderful,” he recalled. He saw budding politicians launch their careers, and he was friendly with each mayor in office. He had a mentor in the deputy director of his department. He loved the work he did, especially his dream of digitizing records and making them available online. At trial, he called this project his “baby.”

Then Mr. Johnson began reporting to Ms. Beale, according to court documents — and the topic of religion suddenly entered the workplace.

On one occasion, Ms. Beale quizzed Mr. Johnson about Prop 8, a California ballot initiative that banned same-sex marriage and later was found unconstitutional. Is it “okay if gays marry?” she asked, according to Mr. Johnson’s complaint. Hearing that Mr. Johnson had no problem with it, she told him he was “not a child of God.”

Another time, according to court filings, Ms. Beale singled out Mr. Johnson during a staff meeting because his relationship with his girlfriend was not “blessed,” she said — they weren’t “married under the Lord.”

By 2013, Mr. Johnson oversaw a six-person staff plus volunteers but still reported to Ms. Beale. Chafing and feeling marginalized by her religious zeal, he applied for a job with the nearby city of Chula Vista.

Mr. Johnson ranked highly among the applicants, according to court documents. During the interview process, however, he was shocked to see that Ms. Beale sat on Chula Vista’s Civil Service Commission and was a part of the hiring committee for the position. Mr. Johnson did not get the job — and after that, he testified, Ms. Beale’s religious scrutiny only grew.

A reckoning came the following year. In a deposition, Mr. Johnson recalled that Ms. Beale called him into her office upon his return to the office after a bereavement. She grabbed Mr. Johnson’s hands and began praying for him, he testified, but he rebuffed her and insisted on getting back to work.

Soon afterward, he said, Ms. Beale sent him to extract hundreds of archived records from the basement for scanning — a rote job usually performed by a records stock clerk, the same entry-level position Mr. Johnson had held a decade prior. Finally fed up, Mr. Johnson contacted his union and filed a grievance. Inevitably, Ms. Beale heard about his action.

“I was hurt,” she said at trial.

While the investigation was ongoing, Mr. Johnson claimed in court filings, Ms. Beale curtailed his authority and reassigned his staff elsewhere. He reported the retaliation to his union rep.

Then Ms. Beale learned that the city had granted Mr. Johnson’s request to be removed from her direct supervision. She informed Elena Mendoza, a co-worker of Mr. Johnson, that she’d serve as Mr. Johnson’s manager — but she testified at trial that she failed to tell Mr. Johnson that his request had been approved.

He found out the hard way: He e-mailed Ms. Beale and received an out-of-office reply that listed people to contact for various concerns. In the e-mail filed with the court, Ms. Mendoza was incorrectly listed with Mr. Johnson’s title: Imaging Supervisor.

“I was surprised,” Mr. Johnson said at trial. “Typically, my name should’ve been right there.”

Ms. Beale testified that the e-mail error was “just an oversight.” Mr. Johnson, on the other hand, said he felt targeted.

Tensions grew. Mr. Johnson testified at trial that Ms. Beale stopped speaking directly to him: She didn’t return his “good mornings” and would ask Ms. Mendoza to relay comments to him even when all three were physically together. He was excluded from staff meetings and even from casual conversations, he said.

“I felt like an elephant in the room every time,” Mr. Johnson said at trial. “If you ever felt that way, it’s not good, especially when you got your heart and soul in what you’re doing.”

After five months of investigation, Mr. Johnson received a letter saying the city had found sufficient evidence to support his allegation of a hostile work environment. By this point, however, Ms. Beale had relegated him to the basement to take inventory and mark boxes, he testified; his access to computer systems was limited, and some of his keys were taken. Ms. Beale remained closely involved in his management, even writing his performance evaluation the month after the investigation concluded — more typically a task for Ms. Mendoza, his new direct supervisor, according to testimony.

Despite city policy, Mr. Johnson didn’t get a mediation session to resolve his grievance, according to testimony. He was given only two options, he told the court: Put up with the situation, or transfer. Although he didn’t want to leave the clerk’s office, Mr. Johnson decided he had no choice.

He knew little about his new job, he testified, until he was told to report to the Public Utilities Department operation yard, where he would catalog water meters that were being taken out of service.

“It made me sick,” he told jurors. The only good part about it: “I got out from under Sheila Beale.”

At trial, Mr. Johnson described his new office as a “converted closet.” A hole in the wall allowed the smell from the men’s urinal next door to waft into his space every day. On rainy days or whenever there was a backup, Mr. Johnson testified, the smell was even worse.

Ms. Beale, meanwhile, testified that she felt “relieved” by Mr. Johnson’s transfer. “It was just a stressful situation,” she said.

Ms. Beale told the court that no one ever discussed with her the findings in the city’s 20-page investigative report into her behavior — although her boss, Elizabeth Maland, testified to giving Ms. Beale confidential “corrective action” in writing.

Ms. Maland also said at trial that she ordered department-wide training in response to the conflict over Ms. Beale’s conduct. Still, she admitted to telling the H.R. department that Mr. Johnson’s transfer would make things “better.”

In a deposition, Mr. Johnson said he felt his career had been “derailed.” He filed a complaint with the U.S. Equal Employment Opportunity Commission and, after a period of investigation, received a letter giving him the right to sue the municipality he had worked so hard to join.

“I lost the ability to look at the city logo and be proud of it,” Mr. Johnson said at trial. “I [used to feel] a sense of importance where I worked at. I felt a part of the team. Now I just take a piece of paper by the stacks and put it in the database and file accordingly.”

Although the jury found in Mr. Johnson’s favor, his monetary award was reduced to $300,000 because of a statutory cap on non-economic damages, commonly known as pain and suffering. The San Diego City Council subsequently voted to settle his case for $565,000, including attorney fees.

Sheila Beale remains a deputy director in the Office of the City Clerk, according to its Web site.

» Read Mr. Johnson’s complaint in the case

» See the hole in the wall of Mr. Johnson’s office at the Chollas Operational Yard

 


The Employment Law Group® law firm was not involved in Johnson v. City of San Diego. 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. Johnson was represented by Smith Steiner Vanderpool, APC.


 

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.


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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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Managing Principal
The Employment Law Group

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The Employment Law Group

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