At a Pittsburgh Jail, This Bad Boss Put the ‘FML’ in FMLA
Over nearly 30 years of work at the Allegheny County Jail in Pittsburgh, Walter Mikulan became a father figure to many of the officers who served under him.
“He was our teacher,” testified one former captain at the jail. “He was a true leader,” testified another.
Understated and discreet, Mr. Mikulan — “Mick” to his staff — had started his career as a corrections officer in 1984. He rose through the ranks to become a major, the third highest rank at the Pittsburgh facility, with responsibility for the entire jail during his evening shift.
In 2012, however, a hard-nosed Army veteran named Orlando Harper became the jail’s new warden and, according to court testimony, launched an obsessive campaign to “combat” what he saw as overuse of the Family and Medical Leave Act (FMLA) — the law that requires employers to accommodate workers who need time off to take care of themselves or family members.
Mr. Harper was especially ticked by senior officers who took FMLA leave, Mr. Mikulan and others testified, since the warden believed that supervisors should set an example. That posed a problem for Mr. Mikulan, diagnosed with depression and anxiety, and for other older officers who needed leave for health issues.
Before long Mr. Mikulan, who was under doctor’s orders to take sporadic days off, found himself being written up for trivial issues with paperwork — incidents that showed Mr. Mikulan’s unacceptable “insubordination,” the warden would insist at trial. As one example, according to testimony, Mr. Mikulan was disciplined because a subordinate had signed a form electronically rather than with a pen.
After three such incidents, and with no warning, Mr. Harper fired Mr. Mikulan after offering the major a chance to resign to avoid “being disgraced,” according to testimony.
Mr. Mikulan, then 58, was escorted out of the jail in view of other officers; his job was filled by a much younger man.
Orlando Harper is our new Bad Boss of the Month.
Mr. Mikulan filed a lawsuit against Allegheny County, claiming both age discrimination and FMLA retaliation. (It’s illegal to fire employees for exercising their rights under the FMLA.) At trial, a federal jury rejected Mr. Harper’s insubordination rationale and awarded Mr. Mikulan nearly $900,000 in damages. Late last year, the parties settled for a total of $1.15 million, including attorney fees.
Orlando Harper had arrived as warden of the Pittsburgh jail — and as Mr. Mikulan’s boss — in 2012 after spending more than two decades in the Washington, D.C. Department of Corrections. According to testimony, one of his immediate priorities was to curb FMLA “abuse,” which county officials had previously identified as a cause of budget overruns, since the jail paid overtime to cover the shifts of some officers on leave.
Mr. Harper “had a bug about FML,” a former jail captain told the jury. “He believed that we needed to lead by example … He didn’t want [supervisors] off on FMLA.”
Mr. Mikulan testified that he felt singled out in the warden’s staff meetings, where FMLA leave was often discussed: “He would say, ‘If even a major abuses Family Medical Leave, he’s going to be terminated’ — and he would be looking directly at me.”
In other meetings that Mr. Mikulan didn’t attend, a different former captain testified, Mr. Harper said that he “needed both of his majors [at work] on a daily basis” — and that the warden clearly “was not happy” that Mr. Mikulan was using leave.
“There was a comment that [Mr. Mikulan and another, older major] would not be there by the end of the year,” the former captain told jurors. “I felt that Major Mikulan [had been] good to me through the years — that he needed to know — and I asked him, ‘You got plans on retiring or something?'”
Mr. Mikulan did not: He planned to work until “65 or 66 years old. Social Security kicks in, Medicare kicks in. Bingo. You have a nice retirement,” he testified. But his seniority and health issues, he said, made him a target at the jail.
The warden’s FMLA fixation wasn’t limited to Mr. Mikulan, jurors heard. Daniel Troiano, a former captain, testified that he took intermittent FMLA leave for stress after suffering a heart attack while at the jail — and that Mr. Harper ripped him in a meeting for taking “that much” leave, despite doctor’s orders to do so.
“He says to me, ‘I don’t understand how a captain can be stressed,'” Mr. Troiano told the court.
Not long afterward, after an incident where a subordinate forgot to stash her gun in a locker before entering work during his shift, Mr. Troiano was offered a choice between resigning or attending a hearing in which he expected to be fired despite his minor role in the matter, he testified.
Afraid of losing his pension, he resigned.
Mr. Troiano attended the trial despite being on his “last leg,” jurors heard from Mr. Mikulan’s attorney. The witness “barely made it in here and barely made it out of here … [It] may be one of the last things that man will ever do,” the attorney said in court — and indeed, Mr. Troiano died a few months later.
Another former captain told jurors that the shabby treatment of Mr. Troiano and Mr. Mikulan, among others, showed how disciplinary action was used by Mr. Harper — most noticeably for older supervisory officers, who were repeatedly dinged for offenses that were “frankly nonsense” and “ridiculous discipline … to the point where they had to retire.”
“I think there was a threat of termination hanging over my head and a lot of other people’s heads,” he testified, citing his own medical issues. “After Warden Harper came in [people] counted down how long they had to go until they could retire.”
The captain told jurors that he, too, opted to retire upon reaching 55, the youngest age for such a move.
Under Mr. Harper’s regime, all three of Mr. Mikulan’s write-ups — which the major called “minor” — were about paperwork from his staff.
The first incident concerned a “roll call book” that wasn’t completed by the usual deadline. This task was supposed to be handled by subordinates, according to testimony, but Mr. Mikulan was given a “counseling session” for allowing the lapse, which he learned about on his day off — and which he told jurors he immediately arranged to have finished, still ahead of when it was needed.
The second incident came a couple of months later, when one of Mr. Mikulan’s captains signed an “Overtime Justification Sheet” electronically rather than manually.
And three months after that, Mr. Mikulan got a black mark for failing to turn in his staff’s “Property Accountability Sheets” on time — despite testimony that he had gotten an extension. The sheets were a new formality requested by Mr. Harper, jurors heard: Acknowledgments that each employee was familiar with the county’s property regulations.
None of these disciplinary actions was logged as insubordination — and Mr. Harper’s deputy, who meted out the discipline, told the court that the resulting record didn’t justify the firing of Mr. Mikulan, whom he agreed was a dedicated employee.
Stressed out by the new warden’s scrutiny, Mr. Mikulan’s demeanor “changed dramatically,” according to the major’s wife, Mary Mikulan, who gave her testimony sporting a scarf to cover baldness that was due to chemotherapy treatment for cancer. Her husband previously had been proud and upbeat about his work, she told jurors, but now “he was more stressed, more frustrated. Seemed to talk a lot more, more negative about his job than positive.”
“I would just get to the point where, you know, ‘Just quit,'” Ms. Mikulan testified. “But that wasn’t him. He didn’t quit.”
Instead, he was suddenly fired. Less than a year after Mr. Harper’s arrival, and shortly after the property-sheet issue, the warden called Mr. Mikulan into his office.
“He says, ‘Major Mikulan, the reason we are here today is to terminate your employment with Allegheny County.’ Jeez, I almost dropped on the floor,” Mr. Mikulan told the court. “[But then he] said, ‘I’m going to do you a favor. I’m going to allow you to resign instead of me terminating you.'”
Mr. Mikulan bluntly refused, jurors heard, and Mr. Harper directed his deputy to escort him out of the jail. At the time, said Mr. Mikulan, no reason was offered for his termination. On the same day, according to court documents, Mr. Harper also fired Ruth Howse, a jail administrator who had recently returned from FMLA leave.
“When I left, I felt devastated,” Mr. Mikulan testified. “I felt like I was just beat down with a stick … I really didn’t want to go anywhere, see anybody. I hated to answer the phone because … everybody was calling to find out what happened …. They were stating that they saw it on TV. They were stating they read it in the paper.”
At trial, Mr. Harper was asked repeatedly to justify his claim that Mr. Mikulan had been insubordinate and deserved to be fired, despite conclusions to the contrary by his deputy, who was Mr. Mikulan’s direct supervisor. The warden steadfastly insisted that each of the three disciplinary actions amounted to insubordination — but acknowledged that he never asked his deputy’s opinion on the matter, or on Mr. Mikulan’s performance.
“I don’t have time to ask who, what, when of everything that’s going on inside of a jail, sir,” he replied in court.
The warden also acknowledged that he had never described Mr. Mikulan’s behavior as insubordinate in any jail document — nor read such a description, either.
Since his firing, Mr. Mikulan testified, he hasn’t been able to find another job in corrections, nor an “equal job” more generally. After collecting unemployment he worked briefly as a college safety officer and then as a school security guard until 2016, when he opted to trigger Social Security since it paid more than the job. He’d still happily work, he told jurors, if it pays “a decent wage.”
Mr. Harper, meanwhile, remains warden of the Allegheny County Bureau of Corrections.
» Read an excerpt of Mr. Harper’s testimony about why he fired Mr. Mikulan
The Employment Law Group® law firm was not involved in Mikulan v. Allegheny County. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Mr. Mikulan was represented by The Law Offices of Timothy P. O’Brien and Stember Cohn & Davidson-Welling, LLC.
This Bad Boss Fired a Manager Who Dared to Question His Workplace Canoodling
For Irene Riggs, caring for older people was a “calling.” She began working in nursing homes in 1990; in 2006 she was named as executive director of the Life Care Center in scenic Sandpoint, Idaho, a lakeside haven named by USA Today as America’s “most beautiful small town.”
Ms. Riggs had an exemplary run at Life Care until 2015, when, according to court documents, her married boss — Timothy Needles, a regional vice president — began to flirt with a nurse at Ms. Riggs’ facility.
At a staff costume party where the nurse had dressed as a cat, the pair acted intimately enough to make other staffers squirm, Ms. Riggs testified, and over a period of weeks they had “fondled each other in an office …, suggestively prowl[ed] at each other, … and otherwise made it obvious that they were in a relationship,” according to a court filing.
Ms. Riggs believed that supervisor/subordinate affairs were forbidden at Life Care and potentially illegal, she said in court — but even more than that, she fretted about the rancorous, sexually charged atmosphere that had descended on her facility. Staff members reported sighting the couple at local restaurants, she testified, and they complained that the nurse, Caren Bays, was getting favors in return.
Although she feared the encounter so much that her hands shook, Ms. Riggs confronted Mr. Needles on behalf of herself and her staff. Her boss became angry and denied the affair, Ms. Riggs said in court documents, and her subsequent complaints to human-resources officials went nowhere.
Not long afterward, according to a court filing, Ms. Bays accused Ms. Riggs of “abusing” a belligerent resident by unplugging his loud television — and Mr. Needles seized upon the incident to fire the executive director. After being dismissed for cause, a “crushed” Ms. Riggs was unable to find another job in elder care and ended up cleaning toilets.
Tim Needles is our new Bad Boss of the Month.
Ms. Riggs filed a lawsuit against Life Care Centers of America, Inc., which is based in Tennessee, claiming retaliation and wrongful termination. A federal jury in Spokane, Wash., awarded her more than $1.5 million in damages, including $500,000 for “loss of enjoyment of life”; subsequent judicial orders tacked on more than $500,000 for attorney fees, tax offsets, and other items.
Life Care has appealed the judgment to the U.S. Court of Appeals for the Ninth Circuit, which has yet to hear arguments on the matter.
As executive director of the 124-bed assisted living facility in Sandpoint, Ms. Riggs had watched over an extensive staff — and all of the older residents, whom she said at trial that she “loved.” She once drove a resident’s spouse four hours so that the couple wouldn’t have to spend Christmas apart.
Ms. Riggs’ working relationship with Mr. Needles also was “excellent” before their conflict, she testified, and Mr. Needles had given her positive reviews since becoming her boss in 2012. But after she challenged his behavior with Ms. Bays, she said in court, things changed.
By that time Mr. Needles already had shown favoritism toward Ms. Bays, according to testimony from Elizabeth Beddingfield, a former director of social services at Life Care. Specifically, she told the jury, Mr. Needles became angry and dismissive when Ms. Beddingfield lodged a harassment complaint that claimed Ms. Bays was a workplace bully.
“He jumped on me …,” she testified. “He just dismissed me and discredited what I had to say; said that I was wrong for filing [the complaint].”
Ms. Beddingfield quit shortly afterward.
Faced with complaints about the couple from Ms. Beddingfield and others — and a barrage of gossip, including a sighting of Mr. Needles and Ms. Bays at the Texas Roadhouse in Coeur d’Alene, an hour distant — Ms. Riggs decided to address the matter, she testified. After reviewing Life Care policy and praying, she called a face-to-face meeting with Mr. Needles, who at that time had been married for more than 25 years.
“I was very nervous …,” she said in court. “I showed him my [shaking] hands, and I said that my staff had brought me some concerns about his behavior [with] Caren Bays …. [T]hey were [being] flirtatious with each other to the point where it made the staff uncomfortable.”
Mr. Needles flatly denied any affair, according to Ms. Riggs’ testimony, and he also claimed he never went to Starbucks, where she told him Life Care staffers had reported another rendezvous. But when Ms. Riggs emptied her overflowing trash can later that day, she told jurors, she spotted a Starbucks receipt on top — with Mr. Needles’ name on it.
Feeling lied to, she reported Mr. Needles to corporate HR in Tennessee. Soon afterward, she testified, she got a call from Mr. Needles, who told her to stay away from Ms. Bays, and a call from the top HR person at Life Care warning that Ms. Riggs “should be very careful.”
“People’s lives are involved,” she said she was told. “You have to make sure that you are very sure about this.”
Ms. Riggs began to fear for her job. “It felt like they were protecting Tim Needles,” she told the court. And indeed, during an investigatory call with HR, Ms. Riggs was “berated” and reduced to tears for daring even to raise the matter, according to the testimony of an employee who witnessed the call.
The only result of her complaint, as far as Ms. Riggs knew: She was instructed to tell Ms. Bays to “be a positive member of the team,” and to get her to re-sign the corporate “Code of Conduct.” Mr. Needles was not disciplined, to her knowledge.
From that point onward, Ms. Riggs told the court, Ms. Bays began “watching me like a hawk” — standing by the executive director’s office door and “eavesdropping,” in the words of another witness.
A few weeks later, Ms. Riggs was called to the room of a resident who was paralyzed from the waist down. The man had a history of angry behavior, jurors heard, and on this day he had cranked his television so loud that it could be heard throughout the entire 24-bed wing. He was ignoring the nursing staff’s pleas to turn it down, and had hidden the remote.
Ms. Riggs tried to reason with the man, but got only profanities in return. Finally, telling him he was violating other patients’ rights, she unplugged the television set. She told him he could watch it again if he was willing to set it to a proper volume.
A few months prior, Ms. Riggs testified, she had asked Mr. Needles for permission to discharge this resident. Her boss had ruled against it, saying they needed more documentation of the man’s disruptive behavior. Now she renewed her request, based on the new incident, and Mr. Needles approved it, she said in court.
Ms. Riggs also sent a copy of the discharge notice to Life Care’s regional ombudsman, who acts as an advocate for patients. It raised no red flags. At trial the ombudsman said she discussed the unplugging with Ms. Riggs shortly after it happened, concluding that “it was the correct thing to do to defuse the situation.”
A couple of weeks after the TV showdown, however, Life Care received an anonymous complaint that painted Ms. Riggs’ actions far more darkly: Unplugging the television amounted to abuse, it claimed — a firing offense.
In a court document, Ms. Riggs says the complaint came from Ms. Bays.
Life Care took the complaint seriously — and Mr. Needles led the response, according to his own testimony. He promptly passed along the report to Idaho’s Bureau of Facility Standards (BFS), which regulates medical providers, adding two key elements: He described Ms. Riggs as “angry” and the TV unplugging as “a form of punishment.” Neither characterization, he agreed at trial, was in the original complaint, but together they bolstered the case for Ms. Riggs’ dismissal.
Just a few days later, Mr. Needles fired Ms. Riggs via a letter. “I was crushed,” she recalled in court. According to testimony, staffers at Life Center were instructed to tell patients that the popular Ms. Riggs had taken a new job.
In reality, Ms. Riggs had little hope of a new job. She wanted to stay in elder care, but she didn’t get callbacks after revealing the “official” reason she left Life Care — even though Mr. Needles never filed the official abuse report that would have deprived her of a license to work.
Eventually Ms. Riggs gave up on healthcare and began working for Maria’s, a local cleaning service. “They were the only ones who would actually give me a call,” she told jurors.
Later she qualified as an insurance agent, and began working on commission at a company that doesn’t offer benefits.
Mr. Needles, meanwhile, moved to Utah. According to his LinkedIn profile, he is “[w]orking with a wonderful group of professionals … Love it!”
» Read Ms. Riggs’ complaint
The Employment Law Group® law firm was not involved in Riggs v. Life Care Centers of America, Inc. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Ms. Riggs was represented by Skidmore & Fomina, PLLC.
This Bad Boss Left a Mark on Employees — Sometimes Literally
On her first day at a new surgery center in Cullman, Ala., nurse Dana Anderson happily took a photo of her co-workers to commemorate the occasion.
Kevin Johnson, an anesthesiologist who served as the facility’s medical director, sneered at her Dorothy-style optimism: “I don’t know where you think you are, but you’re not in Kansas anymore,” said Dr. Johnson, Ms. Anderson recalled in court documents. “You and Toto need to get the f**k back where you came from.”
Over the next five-plus years, Ms. Anderson testified, the doctor would ruin many more moments at work. A part-owner of the surgery center who styled himself as “Genghis Khan,” Dr. Johnson brought guns to the workplace, bragged about his sexual prowess, and painted female employees as “whores,” “slaves,” and members of his “harem,” according to testimony.
On a communal calendar he would write a “Sex Word of the Week,” which he’d explain in detail; other times he would distribute pornography to co-workers, promote coarse nicknames, and “pole dance” in the patients’ recovery room, Ms. Anderson said in exhibits filed in court.
Staff members who resisted the hypersexual atmosphere were punished by Dr. Johnson, according to court documents — including, in some cases, by delaying anesthetic care they had requested for patients. The 6’2″ Dr. Johnson tried to force himself on the much smaller Ms. Anderson on several occasions, she testified, once by trapping her in a room at the end of a workday and demanding that she submit and “take his mark” — that is, get a tattoo that would denote sexual slavery to him.
When she refused, Ms. Anderson said in court documents, the doctor humiliated her further before releasing her to join her husband, who was waiting in the parking lot: “You’re going to get down on your hands and knees and beg your master to get out.”
Intimidated, she complied.
Kevin Johnson is our new Bad Boss of the Month.
In the end Ms. Anderson resigned, unable to handle the stress at work. Along with three other former nurses, she filed a complaint in federal court against Dr. Johnson, Surgery Center of Cullman, and associated entities, claiming a wide range of wrongdoing at both federal and state levels.
At trial in September 2017, a jury found Dr. Johnson personally liable for assault and battery and emotional cruelty against Ms. Anderson, awarding her $500,000 in damages. The jury also found Surgical Care Affiliates, LLC — the practice’s ownership — liable for the hostile work environment faced by Ms. Anderson, awarding her a further $500,000, an amount later reduced by the judge to $300,000.
Ms. Anderson’s claims were the only ones to reach trial. Two of the other plaintiffs, Kari Walker and Belinda Beverly, negotiated judgments in the amounts of $450,000 and $187,500 plus attorney fees, respectively, while Kathy Lackey’s claims were rejected before trial by the judge. (Ms. Lackey has filed an appeal.)
During court proceedings the married Dr. Johnson admitted having affairs with several employees, including Ms. Walker, but denied demanding “master/slave” relationships or — as Ms. Anderson had testified — requiring tattoos “marking” women as his. He admitted in a deposition that he paid for a tattoo for Ms. Walker, however, and also that he brought guns to work and wrote sex-related words on the calendar.
He noted that he sometimes wrote Bible verses there, too.
On critical legal matters such as abuse and battery, Dr. Johnson said in testimony, Ms. Anderson and the other nurses were “lying,” a conclusion rejected by the jury. Overall, court documents paint a vivid picture of a facility overseen by, in the words of one filing, a “perverse, misogynistic, and domineering abuse[r] of women.”
Dr. Johnson’s bad behavior was a holdover from his previous job at Woodland Medical Center, also in Cullman, according to testimony from Ms. Walker, who had worked there as a surgical nurse. Dr. Johnson openly watched pornography in his Woodland office, Ms. Walker said in documents, and often would invite female employees to join him.
In an affidavit, an obstetrician at Woodland also described Dr. Johnson’s pornography habit and said he witnessed his colleague in other inappropriate acts, including ushering a nurse into a delivery room for sex. One Woodland nurse — not Ms. Walker — told the obstetrician that Dr. Johnson had paid for her to get a tattoo of a devil with its tail pointing towards her crotch, the obstetrician said in the document.
While at Woodland Dr. Johnson also harassed the obstetrician’s daughter, who worked there as a nurse, eventually causing her to quit, according to the obstetrician’s affidavit. After the daughter filed a complaint with the U.S. Equal Employment Opportunity Commission, the obstetrician said in the statement, Dr. Johnson threatened to burn down the family’s house.
(In his deposition, Dr. Johnson said the EEOC complaint was a trumped-up response to his reporting of the obstetrician for drug abuse.)
Dr. Johnson’s behavior didn’t improve after he left Woodland to open the new Surgery Center of Cullman, Ms. Anderson told the court: Not only did he still watch pornography at work, he burned extreme porn onto CDs that he handed out “like candy” to staff members, she recalled in notes filed as an exhibit in the case.
In private Dr. Johnson could be sympathetic, Ms. Anderson said in a court document: At times he commiserated and offered her counsel on her difficult marriage, for instance. But he also betrayed such confidences to torment her in front of colleagues, she added, and used her vulnerability as fodder for cruel mind games.
At one point, she said in a deposition, Dr. Johnson texted her a risqué photo of himself and “ordered” her to share a revealing photo in return — something that she resisted but ultimately felt forced to do. Another day, when she became emotional about her marriage, he showed her videos of people committing suicide and said, “Sometimes, there’s only one thing left to do,” she told the court.
The doctor also abused her physically, Ms. Anderson testified. While she was on the phone with a patient, she said in a deposition, Dr. Johnson came up behind her and began choking her so hard that she couldn’t breathe or talk.
“I was frozen with fear,” she said in the deposition.
On a different day, Ms. Anderson testified, Dr. Johnson seemed to overhear her saying something that displeased him and — as he walked by her desk — kicked her hard enough to raise a bruise.
(Dr. Johnson, in a deposition, denied both incidents. Indeed, he asserted, the entire case “has been a lie from the very beginning.”)
After receiving a series of anonymous harassment complaints about Dr. Johnson via a hotline, the Surgery Center’s human resources manager interviewed several of the nurses, including Ms. Anderson. But Gregory Windham, the facility’s managing partner, concluded that nothing had been proved.
“You got three or four little girls here who have all gotten together and decided that they’ve got all these accusations,” Dr. Windham said in a deposition. “You know, it’s a he said/she said.”
Persistent complaints prompted another investigation, however, and Ms. Anderson was interviewed again. Afterward Dr. Johnson approached her and mimed shooting her with an imaginary gun, she told the court. The gesture resonated: In his deposition, Dr. Johnson said he had brought real guns into work on several occasions — and estimated that he owns three AR-15 rifles, “five to six” shotguns, and around eight pistols, including a Glock pistol that he keeps in his car.
The doctor also began tapping his fingernails ominously when he was near Ms. Anderson, she said in documents, aiming to unnerve her. Such drumming is often called the devil’s tattoo.
Around this time, Ms. Anderson and her co-plaintiffs upped the ante with a complaint to the EEOC. The Surgery Center’s board asked Dr. Johnson to step down as medical director and to take a leave of absence, according to court documents — a two-month period during which he went to Kansas for psychotherapy, he said in his deposition.
Dr. Johnson described the leave as “a wonderful experience,” after which he returned to work.
Ms. Anderson, meanwhile, was suffering from anxiety attacks, stress, depression, and loss of sleep, she testified. After Dr. Johnson returned, she told the court, she could “barely function” in her job and took medical leave to seek care and counseling; she later resigned without returning to work.
Ms. Anderson filed a second EEOC complaint and, shortly afterward, joined her three co-plaintiffs to seek justice in federal court. She got a new job at a surgery center in nearby Decatur.
Ms. Anderson, Ms. Walker, and Ms. Beverly all now have judgments in their favor, but their case remains in post-trial motions — in part, concerning how much they should be awarded in legal fees. Ms. Lackey’s appeal proceeds on a separate track, while Dr. Johnson has asked the judge to undo Ms. Anderson’s jury verdict.
» Read the second amended complaint from the four nurses
» Read brief excerpts from Dr. Johnson’s deposition about tattoos and guns
The Employment Law Group® law firm was not involved in Anderson v. Surgery Center of Cullman, Inc. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Ms. Anderson and her co-plaintiffs were represented by Haynes & Haynes, P.C.
When an Employee’s Son Got Sick, This Bad Boss Found Reasons to Fire the Mother
Maria Gonzalez’s motherly instinct went into overdrive when her 21-year-old son, Pedro Moreno, began suffering from a kidney condition that led to three years of surgical procedures, infections, complications, and about 30 hospital stays.
Drawing on her experience as a medical assistant at a pain clinic in San Diego, Ms. Gonzalez became a loud crusader for her disabled son’s proper treatment, which included drugs to fight the pain that Pedro often rated as “10” on a 10-point scale.
Ms. Gonzalez was in an unusual position: Her employer, a part of the Kaiser Permanente group, not only provided Pedro’s insurance — it provided his care, too, partly at Ms. Gonzalez’s clinic. And after Ms. Gonzalez started complaining about the quality of Kaiser’s care, she was targeted for retaliation by her supervisor Traci Trask, the clinic’s assistant director, according to a lawsuit.
Along with a senior doctor, Ms. Trask told Pedro that he couldn’t be treated at the clinic anymore, according to the suit. Then Ms. Trask decided that Ms. Gonzalez might be accessing Pedro’s health records improperly. A “sham” investigation followed, according to court filings, during which Ms. Trask wrote out statements for witnesses and put words in a doctor’s mouth. Ms. Gonzalez was fired based on the probe’s results.
Traci Trask is our latest Bad Boss of the Month.
Ms. Gonzalez filed a lawsuit claiming discrimination, retaliation, and wrongful termination. Earlier this year a California state court jury found that Kaiser illegally fired Ms. Gonzalez to avoid the “nuisance” of her association with Pedro, awarding her almost $500,000 in damages. Kaiser has appealed the verdict.
Court records, including medical reports, reveal a complex situation in which Kaiser doctors and administrators were annoyed by Ms. Gonzalez’s repeated requests for medical attention for Pedro, whom the doctors suspected of being a “narcotic seeker” overstating his pain level.
The same people worked with Ms. Gonzalez professionally, and evidently had trouble with her dual role. As the only medical assistant in the clinic’s Pain Management Department, Ms. Gonzalez did for Pedro everything she did for other patients — she checked him in for appointments, took his vital signs, updated his records, tracked the status of medication refills, and so on.
But she was also his emergency contact and she had a durable power of attorney for his health care, according to her lawsuit. Pedro lived with Ms. Gonzalez and she accompanied him to Kaiser hospitals whenever his condition worsened. And during one of Pedro’s visits to the pain clinic, she even took a break so that she could attend the appointment in “mother” mode.
It was this appointment that triggered a reckoning. When Ms. Gonzalez spoke up as a mother to endorse Pedro’s ongoing complaints about Kaiser, she testified in a deposition, the doctor told them that he would no longer see Pedro because Ms. Gonzalez had a “conflict of interest.”
What did he mean, asked Ms. Gonzalez?
“Sooner or later we knew this was coming,” he replied, according to her complaint.
In addition to refusing to see Pedro, the clinic was hesitant to refer him for outside treatment, according to records. Pedro escalated the matter at a meeting with the clinic’s management, including Ms. Trask, but got nowhere. According to Ms. Gonzalez’s complaint, the clinic’s lead doctor told Pedro ominously, “You wouldn’t want anything to happen to your mother, would you?”
Something did happen to her. Within hours, Ms. Trask e-mailed Kaiser administrators to warn them that Pedro would “continue to be persistent” with his demands, according to court documents — and in another e-mail she drew attention to some “hearsay pieces of information” that she believed could justify an internal investigation of his mother.
Ms. Trask took charge of the investigation herself, focusing on the idea that Ms. Gonzalez had used her employee status to access Pedro’s medical records improperly. Ms. Trask suspended Ms. Gonzalez for the duration of the probe and added a “break the glass” notice to Pedro’s records, increasing security in a way that usually requires the patient’s permission — a step that Pedro never requested, according to Ms. Gonzalez’s complaint.
Based on Ms. Trask’s investigation, Kaiser claimed that Ms. Gonzalez had improperly accessed her disabled son’s medical record 16 times, according to court documents. Ms. Gonzalez agreed that she checked Pedro’s record on those occasions — but only based on requests from Pedro or his doctor, and therefore within her scope of duty, she said, which could have been documented easily if Ms. Trask had asked.
Another alleged misdeed: Ms. Trask reported that Ms. Gonzalez had conducted a “pill count” for Pedro’s unused medication, outside her proper duties. Again, Ms. Gonzalez agreed that she had counted pills on several occasions, including once for Pedro, but she testified that it was always explicitly requested by a doctor — and, in this case, had been documented fully by the doctor.
According to court filings, Ms. Trask bolstered her findings with a written statement in which a different doctor said that Ms. Gonzalez shouldn’t be counting pills — except that the statement wasn’t signed and Ms. Trask had never spoken with the doctor on the matter, according to a brief filed on behalf of Ms. Gonzalez.
In the meantime, Pedro’s kidney problems continued. On the evening of his meeting with Ms. Trask, Ms. Gonzalez arrived at home to find her son shivering, fevered, and in pain; she called an ambulance and Pedro was admitted to hospital with septicemia, a blood infection, according to court filings.
Subsequent hospital visits, as documented in court records, showed Ms. Gonzalez’s deep involvement in Pedro’s care while she was suspended from work — sometimes sleeping by his bedside — but also the increasing skepticism of Kaiser doctors.
“His mother is doing most of the talking and she says that she feels that [Pedro] is going to die from so much pain,” says one doctor’s report. “Ironically, she works in the Pain Clinic.”
The following month, while still suspended, Ms. Gonzalez was fired based on Ms. Trask’s findings. Three reasons were cited: Improperly accessing Pedro’s medical records, improperly conducting the pill count, and refusing to admit that her behavior was improper.
Ruling in favor of Ms. Gonzalez, the jury found instead that her association with her disabled son was “a substantial motivating reason” for the termination. It awarded her almost $200,000 for economic damage already done, plus a further $300,000 for damage yet to come. At the time of her firing, Ms. Gonzalez had been the longest-serving staffer in her department; she always received solid performance reviews an a doctor testified that she “really cared about the patients.”
Ms. Trask, meanwhile, left her job at the clinic. She works at a nearby dental practice.
» Read Ms. Gonzalez’s amended complaint
» See video of the opening statement at trial by Ms. Gonzalez’s attorney
The Employment Law Group® law firm was not involved in Gonzalez v. Southern California Permanente Medical Group, Inc.. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Ms. Gonzalez was represented by Haeggquist & Eck, LLP and The deRubertis Law Firm, APC.
A Cop Escapes His Toxic Boss — and Gets Arrested as Payback
For more than a decade, according to a lawsuit, Aaron Jensen was the target of taunts about his supposed sexual orientation.
While serving as a police officer in West Jordan City, Utah, Mr. Jensen was baited constantly by his supervisor Dan Gallagher, who rose from a corporal to a captain over the period, according to court documents. Mr. Jensen didn’t fit into the department’s noxious locker-room atmosphere, the suit claims, so Mr. Gallagher called the young recruit “gay” — the older man’s idea of an amusing insult.
Among Mr. Gallagher’s gibes, according to testimony: That Mr. Jensen’s girlfriend was a “front”; that his later marriage was a cover-up; and that Mr. Jensen’s unborn son couldn’t be his because, as he told any officers within earshot, “we all know that you’re gay.”
Like an old-style teen bully, Mr. Gallagher would swat Mr. Jensen in the genitals, embarrass him by showing him gay pornography, and even play obscene pranks during duty calls, Mr. Jensen said in a written statement that was filed in court. Although Mr. Jensen resisted the harassment — once loudly at a staff meeting — he feared “brutal retaliation”: When the two men had clashed over a different matter, the volatile Mr. Gallagher threatened to “ruin” Mr. Jensen’s career, according to the lawsuit.
In the end, Mr. Jensen’s worst fears came true. After filing a formal complaint with Utah authorities and the U.S. Equal Employment Opportunity Commission, Mr. Jensen settled with West Jordan City for $80,000. He resigned as part of the deal, and the city agreed not to retaliate.
Just a year later, however, Mr. Jensen was arrested on felony charges resulting from an internal investigation that started on the day of his resignation. According to a complaint filed by Mr. Jensen, the criminal probe was egged on by Mr. Gallagher, who “contrived evidence” against his former subordinate.
All the criminal charges were dismissed — indeed, Mr. Jensen’s record was expunged — but not before he was fired from a new job, tarred as a suspected drug dealer.
Dan Gallagher is our new Bad Boss of the Month.
Mr. Jensen ultimately sued West Jordan City, Mr. Gallagher, and another police supervisor; among other things he claimed retaliation, malicious prosecution, and breach of contract. In June a federal jury told the city to pay Mr. Jensen more than $2.75 million in damages.
The city has requested a new trial or, alternatively, a reduction of the award. Mr. Gallagher and the other individual defendant were dismissed from the case.
According to his lawsuit, Mr. Jensen’s long battle with the West Jordan City police started with Mr. Gallagher’s nonstop homophobic “jokes,” which spread throughout the department as other officers and even high-ranking supervisors played along with the ringleader’s bullying.
Mr. Jensen said he found derisive notes in his office; once, during a staff presentation, he stepped out of the room and returned to see “You’re gay!” projected on the wall, his colleagues sniggering. For Mr. Jensen, a victim of childhood sexual trauma, the relentless abuse left him “feeling like that 12-year-old child again.”
The harassment spread beyond work: According to documents, Mr. Gallagher directly told Mr. Jensen’s wife-to-be that she was a beard — and colleagues who attended the wedding joked about Mr. Jensen’s orientation in the couple’s wedding video.
After a ceremony in which Mr. Jensen was promoted to sergeant, he recalled in the statement filed in court, the chief of police greeted his wife and several close family members by saying, “For years we thought he was gay, so it was good to see him finally get married.”
A respite away from Mr. Gallagher followed, but Mr. Jensen was transferred back to the then-lieutenant’s direct supervision. During their first staff meeting, by Mr. Jensen’s account, Mr. Gallagher welcomed his return because, he said, every unit needed its own Brokeback Mountain — a reference to the 2005 movie about gay love.
Some comments were more cruel than others. After Mr. Jensen’s wife suffered a miscarriage, Mr. Gallagher asked how things were going; Mr. Jensen said they were trying to get pregnant again, but hadn’t had any luck. Mr. Gallagher crudely offered to do Mr. Jensen’s part, according to Mr. Jensen’s statement.
Matters reached a breaking point when the men argued about where certain cases should be assigned. “You need to remember who you are,” said Mr. Gallagher, according to Mr. Jensen’s statement. “Your career is done, got that? … We’ll see who wins this battle when your life is miserable.”
“[Mr.] Gallagher was very — very controlling, very vindictive,” said Reed Motzkus, a lieutenant in the department, in a deposition. “[He] had a reputation for going after … anybody who would confront him or challenge him in any way.”
Before long there were two investigations afoot: An internal-affairs probe opened by Mr. Gallagher, who questioned whether Mr. Jensen was handling cases properly, and a review triggered by Mr. Jensen’s state and federal harassment complaints — frightened by Mr. Gallagher’s inquiry, Mr. Jensen had finally taken legal action.
Mr. Jensen was placed on leave pending the outcome. He didn’t go back to his office after that — but when he resigned as part of the settlement, about six months later, co-workers who cleaned the room came across an envelope with several balloons of heroin and the drivers’ licenses of two people Mr. Jensen had arrested.
Rather than treating the discovery as an oversight or loose end, the police department handed the matter over to the Salt Lake County district attorney’s office for criminal investigation. According to a deposition from Lohra Miller, then the D.A., both Mr. Gallagher and the police chief were “quite insistent” that she should act on the case.
Travis Rees, another lieutenant on the force, called the criminal case against Mr. Jensen “bull***t.” “I felt like the facts were being manipulated to make things look worse than they were,” he said in a deposition.
And who would manipulate facts?
“Dan Gallagher,” testified Mr. Rees, adding that Mr. Gallagher had a vendetta against Mr. Jensen.
“My understanding was, you know, … Aaron filed a complaint,” Mr. Rees said in his deposition. “Gallagher’s M.O. was if you push back against him, you’re — you know, it’s a done deal. He’s going to come at you hard.”
Mr. Jensen had been moving between jobs since resigning from the police force, including a gig at a local guitar store. After his arrest, which featured a charge of possession with intent to distribute a controlled substance, he was fired from that position.
Already battling depression and panic attacks after more than a decade of harassment — and with personal issues, besides — Mr. Jensen became more distraught and contemplated suicide, feeling “hopeless, helpless and worthless.” His marriage had fallen apart, along with his finances, but he kept fighting for his reputation.
After a preliminary hearing, two of the three criminal charges were dismissed. The remaining charge was dismissed the following year — and right around then, his nemesis Mr. Gallagher retired from the West Jordan City police department. Mr. Jensen’s entire record, from arrest onward, was ultimately expunged.
Although the jury vindicated him with its verdict of retaliation and malicious prosecution, the case isn’t over and Mr. Jensen still feels like damaged goods. He’d like to work again as a cop, he says, but believes it’ll never happen.
» Read Mr. Jensen’s original complaint (Note: Strong sexual and scatological content)
» See a post-trial TV interview with Mr. Jensen and his attorney
The Employment Law Group® law firm was not involved in Jensen v. City of West Jordan. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Mr. Jensen was represented by Hollingsworth Law Office LLC.
