At a Pittsburgh Jail, This Bad Boss Put the ‘FML’ in FMLA
Over nearly 30 years of work at the Allegheny County Jail in Pittsburgh, Walter Mikulan became a father figure to many of the officers who served under him.
“He was our teacher,” testified one former captain at the jail. “He was a true leader,” testified another.
Understated and discreet, Mr. Mikulan — “Mick” to his staff — had started his career as a corrections officer in 1984. He rose through the ranks to become a major, the third highest rank at the Pittsburgh facility, with responsibility for the entire jail during his evening shift.
In 2012, however, a hard-nosed Army veteran named Orlando Harper became the jail’s new warden and, according to court testimony, launched an obsessive campaign to “combat” what he saw as overuse of the Family and Medical Leave Act (FMLA) — the law that requires employers to accommodate workers who need time off to take care of themselves or family members.
Mr. Harper was especially ticked by senior officers who took FMLA leave, Mr. Mikulan and others testified, since the warden believed that supervisors should set an example. That posed a problem for Mr. Mikulan, diagnosed with depression and anxiety, and for other older officers who needed leave for health issues.
Before long Mr. Mikulan, who was under doctor’s orders to take sporadic days off, found himself being written up for trivial issues with paperwork — incidents that showed Mr. Mikulan’s unacceptable “insubordination,” the warden would insist at trial. As one example, according to testimony, Mr. Mikulan was disciplined because a subordinate had signed a form electronically rather than with a pen.
After three such incidents, and with no warning, Mr. Harper fired Mr. Mikulan after offering the major a chance to resign to avoid “being disgraced,” according to testimony.
Mr. Mikulan, then 58, was escorted out of the jail in view of other officers; his job was filled by a much younger man.
Orlando Harper is our new Bad Boss of the Month.
Mr. Mikulan filed a lawsuit against Allegheny County, claiming both age discrimination and FMLA retaliation. (It’s illegal to fire employees for exercising their rights under the FMLA.) At trial, a federal jury rejected Mr. Harper’s insubordination rationale and awarded Mr. Mikulan nearly $900,000 in damages. Late last year, the parties settled for a total of $1.15 million, including attorney fees.
Orlando Harper had arrived as warden of the Pittsburgh jail — and as Mr. Mikulan’s boss — in 2012 after spending more than two decades in the Washington, D.C. Department of Corrections. According to testimony, one of his immediate priorities was to curb FMLA “abuse,” which county officials had previously identified as a cause of budget overruns, since the jail paid overtime to cover the shifts of some officers on leave.
Mr. Harper “had a bug about FML,” a former jail captain told the jury. “He believed that we needed to lead by example … He didn’t want [supervisors] off on FMLA.”
Mr. Mikulan testified that he felt singled out in the warden’s staff meetings, where FMLA leave was often discussed: “He would say, ‘If even a major abuses Family Medical Leave, he’s going to be terminated’ — and he would be looking directly at me.”
In other meetings that Mr. Mikulan didn’t attend, a different former captain testified, Mr. Harper said that he “needed both of his majors [at work] on a daily basis” — and that the warden clearly “was not happy” that Mr. Mikulan was using leave.
“There was a comment that [Mr. Mikulan and another, older major] would not be there by the end of the year,” the former captain told jurors. “I felt that Major Mikulan [had been] good to me through the years — that he needed to know — and I asked him, ‘You got plans on retiring or something?'”
Mr. Mikulan did not: He planned to work until “65 or 66 years old. Social Security kicks in, Medicare kicks in. Bingo. You have a nice retirement,” he testified. But his seniority and health issues, he said, made him a target at the jail.
The warden’s FMLA fixation wasn’t limited to Mr. Mikulan, jurors heard. Daniel Troiano, a former captain, testified that he took intermittent FMLA leave for stress after suffering a heart attack while at the jail — and that Mr. Harper ripped him in a meeting for taking “that much” leave, despite doctor’s orders to do so.
“He says to me, ‘I don’t understand how a captain can be stressed,'” Mr. Troiano told the court.
Not long afterward, after an incident where a subordinate forgot to stash her gun in a locker before entering work during his shift, Mr. Troiano was offered a choice between resigning or attending a hearing in which he expected to be fired despite his minor role in the matter, he testified.
Afraid of losing his pension, he resigned.
Mr. Troiano attended the trial despite being on his “last leg,” jurors heard from Mr. Mikulan’s attorney. The witness “barely made it in here and barely made it out of here … [It] may be one of the last things that man will ever do,” the attorney said in court — and indeed, Mr. Troiano died a few months later.
Another former captain told jurors that the shabby treatment of Mr. Troiano and Mr. Mikulan, among others, showed how disciplinary action was used by Mr. Harper — most noticeably for older supervisory officers, who were repeatedly dinged for offenses that were “frankly nonsense” and “ridiculous discipline … to the point where they had to retire.”
“I think there was a threat of termination hanging over my head and a lot of other people’s heads,” he testified, citing his own medical issues. “After Warden Harper came in [people] counted down how long they had to go until they could retire.”
The captain told jurors that he, too, opted to retire upon reaching 55, the youngest age for such a move.
Under Mr. Harper’s regime, all three of Mr. Mikulan’s write-ups — which the major called “minor” — were about paperwork from his staff.
The first incident concerned a “roll call book” that wasn’t completed by the usual deadline. This task was supposed to be handled by subordinates, according to testimony, but Mr. Mikulan was given a “counseling session” for allowing the lapse, which he learned about on his day off — and which he told jurors he immediately arranged to have finished, still ahead of when it was needed.
The second incident came a couple of months later, when one of Mr. Mikulan’s captains signed an “Overtime Justification Sheet” electronically rather than manually.
And three months after that, Mr. Mikulan got a black mark for failing to turn in his staff’s “Property Accountability Sheets” on time — despite testimony that he had gotten an extension. The sheets were a new formality requested by Mr. Harper, jurors heard: Acknowledgments that each employee was familiar with the county’s property regulations.
None of these disciplinary actions was logged as insubordination — and Mr. Harper’s deputy, who meted out the discipline, told the court that the resulting record didn’t justify the firing of Mr. Mikulan, whom he agreed was a dedicated employee.
Stressed out by the new warden’s scrutiny, Mr. Mikulan’s demeanor “changed dramatically,” according to the major’s wife, Mary Mikulan, who gave her testimony sporting a scarf to cover baldness that was due to chemotherapy treatment for cancer. Her husband previously had been proud and upbeat about his work, she told jurors, but now “he was more stressed, more frustrated. Seemed to talk a lot more, more negative about his job than positive.”
“I would just get to the point where, you know, ‘Just quit,'” Ms. Mikulan testified. “But that wasn’t him. He didn’t quit.”
Instead, he was suddenly fired. Less than a year after Mr. Harper’s arrival, and shortly after the property-sheet issue, the warden called Mr. Mikulan into his office.
“He says, ‘Major Mikulan, the reason we are here today is to terminate your employment with Allegheny County.’ Jeez, I almost dropped on the floor,” Mr. Mikulan told the court. “[But then he] said, ‘I’m going to do you a favor. I’m going to allow you to resign instead of me terminating you.'”
Mr. Mikulan bluntly refused, jurors heard, and Mr. Harper directed his deputy to escort him out of the jail. At the time, said Mr. Mikulan, no reason was offered for his termination. On the same day, according to court documents, Mr. Harper also fired Ruth Howse, a jail administrator who had recently returned from FMLA leave.
“When I left, I felt devastated,” Mr. Mikulan testified. “I felt like I was just beat down with a stick … I really didn’t want to go anywhere, see anybody. I hated to answer the phone because … everybody was calling to find out what happened …. They were stating that they saw it on TV. They were stating they read it in the paper.”
At trial, Mr. Harper was asked repeatedly to justify his claim that Mr. Mikulan had been insubordinate and deserved to be fired, despite conclusions to the contrary by his deputy, who was Mr. Mikulan’s direct supervisor. The warden steadfastly insisted that each of the three disciplinary actions amounted to insubordination — but acknowledged that he never asked his deputy’s opinion on the matter, or on Mr. Mikulan’s performance.
“I don’t have time to ask who, what, when of everything that’s going on inside of a jail, sir,” he replied in court.
The warden also acknowledged that he had never described Mr. Mikulan’s behavior as insubordinate in any jail document — nor read such a description, either.
Since his firing, Mr. Mikulan testified, he hasn’t been able to find another job in corrections, nor an “equal job” more generally. After collecting unemployment he worked briefly as a college safety officer and then as a school security guard until 2016, when he opted to trigger Social Security since it paid more than the job. He’d still happily work, he told jurors, if it pays “a decent wage.”
Mr. Harper, meanwhile, remains warden of the Allegheny County Bureau of Corrections.
The Employment Law Group® law firm was not involved in Mikulan v. Allegheny County. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
This Bad Boss Fired a Manager Who Dared to Question His Workplace Canoodling
For Irene Riggs, caring for older people was a “calling.” She began working in nursing homes in 1990; in 2006 she was named as executive director of the Life Care Center in scenic Sandpoint, Idaho, a lakeside haven named by USA Today as America’s “most beautiful small town.”
Ms. Riggs had an exemplary run at Life Care until 2015, when, according to court documents, her married boss — Timothy Needles, a regional vice president — began to flirt with a nurse at Ms. Riggs’ facility.
At a staff costume party where the nurse had dressed as a cat, the pair acted intimately enough to make other staffers squirm, Ms. Riggs testified, and over a period of weeks they had “fondled each other in an office …, suggestively prowl[ed] at each other, … and otherwise made it obvious that they were in a relationship,” according to a court filing.
Ms. Riggs believed that supervisor/subordinate affairs were forbidden at Life Care and potentially illegal, she said in court — but even more than that, she fretted about the rancorous, sexually charged atmosphere that had descended on her facility. Staff members reported sighting the couple at local restaurants, she testified, and they complained that the nurse, Caren Bays, was getting favors in return.
Although she feared the encounter so much that her hands shook, Ms. Riggs confronted Mr. Needles on behalf of herself and her staff. Her boss became angry and denied the affair, Ms. Riggs said in court documents, and her subsequent complaints to human-resources officials went nowhere.
Not long afterward, according to a court filing, Ms. Bays accused Ms. Riggs of “abusing” a belligerent resident by unplugging his loud television — and Mr. Needles seized upon the incident to fire the executive director. After being dismissed for cause, a “crushed” Ms. Riggs was unable to find another job in elder care and ended up cleaning toilets.
Tim Needles is our new Bad Boss of the Month.
Ms. Riggs filed a lawsuit against Life Care Centers of America, Inc., which is based in Tennessee, claiming retaliation and wrongful termination. A federal jury in Spokane, Wash., awarded her more than $1.5 million in damages, including $500,000 for “loss of enjoyment of life”; subsequent judicial orders tacked on more than $500,000 for attorney fees, tax offsets, and other items.
Life Care has appealed the judgment to the U.S. Court of Appeals for the Ninth Circuit, which has yet to hear arguments on the matter.
As executive director of the 124-bed assisted living facility in Sandpoint, Ms. Riggs had watched over an extensive staff — and all of the older residents, whom she said at trial that she “loved.” She once drove a resident’s spouse four hours so that the couple wouldn’t have to spend Christmas apart.
Ms. Riggs’ working relationship with Mr. Needles also was “excellent” before their conflict, she testified, and Mr. Needles had given her positive reviews since becoming her boss in 2012. But after she challenged his behavior with Ms. Bays, she said in court, things changed.
By that time Mr. Needles already had shown favoritism toward Ms. Bays, according to testimony from Elizabeth Beddingfield, a former director of social services at Life Care. Specifically, she told the jury, Mr. Needles became angry and dismissive when Ms. Beddingfield lodged a harassment complaint that claimed Ms. Bays was a workplace bully.
“He jumped on me …,” she testified. “He just dismissed me and discredited what I had to say; said that I was wrong for filing [the complaint].”
Ms. Beddingfield quit shortly afterward.
Faced with complaints about the couple from Ms. Beddingfield and others — and a barrage of gossip, including a sighting of Mr. Needles and Ms. Bays at the Texas Roadhouse in Coeur d’Alene, an hour distant — Ms. Riggs decided to address the matter, she testified. After reviewing Life Care policy and praying, she called a face-to-face meeting with Mr. Needles, who at that time had been married for more than 25 years.
“I was very nervous …,” she said in court. “I showed him my [shaking] hands, and I said that my staff had brought me some concerns about his behavior [with] Caren Bays …. [T]hey were [being] flirtatious with each other to the point where it made the staff uncomfortable.”
Mr. Needles flatly denied any affair, according to Ms. Riggs’ testimony, and he also claimed he never went to Starbucks, where she told him Life Care staffers had reported another rendezvous. But when Ms. Riggs emptied her overflowing trash can later that day, she told jurors, she spotted a Starbucks receipt on top — with Mr. Needles’ name on it.
Feeling lied to, she reported Mr. Needles to corporate HR in Tennessee. Soon afterward, she testified, she got a call from Mr. Needles, who told her to stay away from Ms. Bays, and a call from the top HR person at Life Care warning that Ms. Riggs “should be very careful.”
“People’s lives are involved,” she said she was told. “You have to make sure that you are very sure about this.”
Ms. Riggs began to fear for her job. “It felt like they were protecting Tim Needles,” she told the court. And indeed, during an investigatory call with HR, Ms. Riggs was “berated” and reduced to tears for daring even to raise the matter, according to the testimony of an employee who witnessed the call.
The only result of her complaint, as far as Ms. Riggs knew: She was instructed to tell Ms. Bays to “be a positive member of the team,” and to get her to re-sign the corporate “Code of Conduct.” Mr. Needles was not disciplined, to her knowledge.
From that point onward, Ms. Riggs told the court, Ms. Bays began “watching me like a hawk” — standing by the executive director’s office door and “eavesdropping,” in the words of another witness.
A few weeks later, Ms. Riggs was called to the room of a resident who was paralyzed from the waist down. The man had a history of angry behavior, jurors heard, and on this day he had cranked his television so loud that it could be heard throughout the entire 24-bed wing. He was ignoring the nursing staff’s pleas to turn it down, and had hidden the remote.
Ms. Riggs tried to reason with the man, but got only profanities in return. Finally, telling him he was violating other patients’ rights, she unplugged the television set. She told him he could watch it again if he was willing to set it to a proper volume.
A few months prior, Ms. Riggs testified, she had asked Mr. Needles for permission to discharge this resident. Her boss had ruled against it, saying they needed more documentation of the man’s disruptive behavior. Now she renewed her request, based on the new incident, and Mr. Needles approved it, she said in court.
Ms. Riggs also sent a copy of the discharge notice to Life Care’s regional ombudsman, who acts as an advocate for patients. It raised no red flags. At trial the ombudsman said she discussed the unplugging with Ms. Riggs shortly after it happened, concluding that “it was the correct thing to do to defuse the situation.”
A couple of weeks after the TV showdown, however, Life Care received an anonymous complaint that painted Ms. Riggs’ actions far more darkly: Unplugging the television amounted to abuse, it claimed — a firing offense.
In a court document, Ms. Riggs says the complaint came from Ms. Bays.
Life Care took the complaint seriously — and Mr. Needles led the response, according to his own testimony. He promptly passed along the report to Idaho’s Bureau of Facility Standards (BFS), which regulates medical providers, adding two key elements: He described Ms. Riggs as “angry” and the TV unplugging as “a form of punishment.” Neither characterization, he agreed at trial, was in the original complaint, but together they bolstered the case for Ms. Riggs’ dismissal.
Just a few days later, Mr. Needles fired Ms. Riggs via a letter. “I was crushed,” she recalled in court. According to testimony, staffers at Life Center were instructed to tell patients that the popular Ms. Riggs had taken a new job.
In reality, Ms. Riggs had little hope of a new job. She wanted to stay in elder care, but she didn’t get callbacks after revealing the “official” reason she left Life Care — even though Mr. Needles never filed the official abuse report that would have deprived her of a license to work.
Eventually Ms. Riggs gave up on healthcare and began working for Maria’s, a local cleaning service. “They were the only ones who would actually give me a call,” she told jurors.
Later she qualified as an insurance agent, and began working on commission at a company that doesn’t offer benefits.
Mr. Needles, meanwhile, moved to Utah. According to his LinkedIn profile, he is “[w]orking with a wonderful group of professionals … Love it!”
The Employment Law Group® law firm was not involved in Riggs v. Life Care Centers of America, Inc. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Ms. Riggs was represented by Skidmore & Fomina, PLLC.
This Bad Boss Left a Mark on Employees — Sometimes Literally
On her first day at a new surgery center in Cullman, Ala., nurse Dana Anderson happily took a photo of her co-workers to commemorate the occasion.
Kevin Johnson, an anesthesiologist who served as the facility’s medical director, sneered at her Dorothy-style optimism: “I don’t know where you think you are, but you’re not in Kansas anymore,” said Dr. Johnson, Ms. Anderson recalled in court documents. “You and Toto need to get the f**k back where you came from.”
Over the next five-plus years, Ms. Anderson testified, the doctor would ruin many more moments at work. A part-owner of the surgery center who styled himself as “Genghis Khan,” Dr. Johnson brought guns to the workplace, bragged about his sexual prowess, and painted female employees as “whores,” “slaves,” and members of his “harem,” according to testimony.
On a communal calendar he would write a “Sex Word of the Week,” which he’d explain in detail; other times he would distribute pornography to co-workers, promote coarse nicknames, and “pole dance” in the patients’ recovery room, Ms. Anderson said in exhibits filed in court.
Staff members who resisted the hypersexual atmosphere were punished by Dr. Johnson, according to court documents — including, in some cases, by delaying anesthetic care they had requested for patients. The 6’2″ Dr. Johnson tried to force himself on the much smaller Ms. Anderson on several occasions, she testified, once by trapping her in a room at the end of a workday and demanding that she submit and “take his mark” — that is, get a tattoo that would denote sexual slavery to him.
When she refused, Ms. Anderson said in court documents, the doctor humiliated her further before releasing her to join her husband, who was waiting in the parking lot: “You’re going to get down on your hands and knees and beg your master to get out.”
Intimidated, she complied.
Kevin Johnson is our new Bad Boss of the Month.
In the end Ms. Anderson resigned, unable to handle the stress at work. Along with three other former nurses, she filed a complaint in federal court against Dr. Johnson, Surgery Center of Cullman, and associated entities, claiming a wide range of wrongdoing at both federal and state levels.
At trial in September 2017, a jury found Dr. Johnson personally liable for assault and battery and emotional cruelty against Ms. Anderson, awarding her $500,000 in damages. The jury also found Surgical Care Affiliates, LLC — the practice’s ownership — liable for the hostile work environment faced by Ms. Anderson, awarding her a further $500,000, an amount later reduced by the judge to $300,000.
Ms. Anderson’s claims were the only ones to reach trial. Two of the other plaintiffs, Kari Walker and Belinda Beverly, negotiated judgments in the amounts of $450,000 and $187,500 plus attorney fees, respectively, while Kathy Lackey’s claims were rejected before trial by the judge. (Ms. Lackey has filed an appeal.)
During court proceedings the married Dr. Johnson admitted having affairs with several employees, including Ms. Walker, but denied demanding “master/slave” relationships or — as Ms. Anderson had testified — requiring tattoos “marking” women as his. He admitted in a deposition that he paid for a tattoo for Ms. Walker, however, and also that he brought guns to work and wrote sex-related words on the calendar.
He noted that he sometimes wrote Bible verses there, too.
On critical legal matters such as abuse and battery, Dr. Johnson said in testimony, Ms. Anderson and the other nurses were “lying,” a conclusion rejected by the jury. Overall, court documents paint a vivid picture of a facility overseen by, in the words of one filing, a “perverse, misogynistic, and domineering abuse[r] of women.”
Dr. Johnson’s bad behavior was a holdover from his previous job at Woodland Medical Center, also in Cullman, according to testimony from Ms. Walker, who had worked there as a surgical nurse. Dr. Johnson openly watched pornography in his Woodland office, Ms. Walker said in documents, and often would invite female employees to join him.
In an affidavit, Christopher Lucas, an obstetrician at Woodland, also described Dr. Johnson’s pornography habit and said he witnessed his colleague in other inappropriate acts, including ushering a nurse into a delivery room for sex. One Woodland nurse — not Ms. Walker — told Dr. Lucas that Dr. Johnson had paid for her to get a tattoo of a devil with its tail pointing towards her crotch, Dr. Lucas said in the document.
While at Woodland Dr. Johnson also harassed Dr. Lucas’ daughter, who worked there as a nurse, eventually causing her to quit, according to Dr. Lucas’ affidavit. After the daughter filed a complaint with the U.S. Equal Employment Opportunity Commission, Dr. Lucas said in the statement, Dr. Johnson threatened to burn down the family’s house.
(In his deposition, Dr. Johnson said the EEOC complaint was a trumped-up response to his reporting of Dr. Lucas for drug abuse.)
Dr. Johnson’s behavior didn’t improve after he left Woodland to open the new Surgery Center of Cullman, Ms. Anderson told the court: Not only did he still watch pornography at work, he burned extreme porn onto CDs that he handed out “like candy” to staff members, she recalled in notes filed as an exhibit in the case.
In private Dr. Johnson could be sympathetic, Ms. Anderson said in a court document: At times he commiserated and offered her counsel on her difficult marriage, for instance. But he also betrayed such confidences to torment her in front of colleagues, she added, and used her vulnerability as fodder for cruel mind games.
At one point, she said in a deposition, Dr. Johnson texted her a risqué photo of himself and “ordered” her to share a revealing photo in return — something that she resisted but ultimately felt forced to do. Another day, when she became emotional about her marriage, he showed her videos of people committing suicide and said, “Sometimes, there’s only one thing left to do,” she told the court.
The doctor also abused her physically, Ms. Anderson testified. While she was on the phone with a patient, she said in a deposition, Dr. Johnson came up behind her and began choking her so hard that she couldn’t breathe or talk.
“I was frozen with fear,” she said in the deposition.
On a different day, Ms. Anderson testified, Dr. Johnson seemed to overhear her saying something that displeased him and — as he walked by her desk — kicked her hard enough to raise a bruise.
(Dr. Johnson, in a deposition, denied both incidents. Indeed, he asserted, the entire case “has been a lie from the very beginning.”)
After receiving a series of anonymous harassment complaints about Dr. Johnson via a hotline, the Surgery Center’s human resources manager interviewed several of the nurses, including Ms. Anderson. But Gregory Windham, the facility’s managing partner, concluded that nothing had been proved.
“You got three or four little girls here who have all gotten together and decided that they’ve got all these accusations,” Dr. Windham said in a deposition. “You know, it’s a he said/she said.”
Persistent complaints prompted another investigation, however, and Ms. Anderson was interviewed again. Afterward Dr. Johnson approached her and mimed shooting her with an imaginary gun, she told the court. The gesture resonated: In his deposition, Dr. Johnson said he had brought real guns into work on several occasions — and estimated that he owns three AR-15 rifles, “five to six” shotguns, and around eight pistols, including a Glock pistol that he keeps in his car.
The doctor also began tapping his fingernails ominously when he was near Ms. Anderson, she said in documents, aiming to unnerve her. Such drumming is often called the devil’s tattoo.
Around this time, Ms. Anderson and her co-plaintiffs upped the ante with a complaint to the EEOC. The Surgery Center’s board asked Dr. Johnson to step down as medical director and to take a leave of absence, according to court documents — a two-month period during which he went to Kansas for psychotherapy, he said in his deposition.
Dr. Johnson described the leave as “a wonderful experience,” after which he returned to work.
Ms. Anderson, meanwhile, was suffering from anxiety attacks, stress, depression, and loss of sleep, she testified. After Dr. Johnson returned, she told the court, she could “barely function” in her job and took medical leave to seek care and counseling; she later resigned without returning to work.
Ms. Anderson filed a second EEOC complaint and, shortly afterward, joined her three co-plaintiffs to seek justice in federal court. She got a new job at a surgery center in nearby Decatur.
Ms. Anderson, Ms. Walker, and Ms. Beverly all now have judgments in their favor, but their case remains in post-trial motions — in part, concerning how much they should be awarded in legal fees. Ms. Lackey’s appeal proceeds on a separate track, while Dr. Johnson has asked the judge to undo Ms. Anderson’s jury verdict.
The Employment Law Group® law firm was not involved in Anderson v. Surgery Center of Cullman, Inc. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Ms. Anderson and her co-plaintiffs were represented by Haynes & Haynes, P.C.
When an Employee’s Son Got Sick, This Bad Boss Found Reasons to Fire the Mother
Maria Gonzalez’s motherly instinct went into overdrive when her 21-year-old son, Pedro Moreno, began suffering from a kidney condition that led to three years of surgical procedures, infections, complications, and about 30 hospital stays.
Drawing on her experience as a medical assistant at a pain clinic in San Diego, Ms. Gonzalez became a loud crusader for her disabled son’s proper treatment, which included drugs to fight the pain that Pedro often rated as “10” on a 10-point scale.
Ms. Gonzalez was in an unusual position: Her employer, a part of the Kaiser Permanente group, not only provided Pedro’s insurance — it provided his care, too, partly at Ms. Gonzalez’s clinic. And after Ms. Gonzalez started complaining about the quality of Kaiser’s care, she was targeted for retaliation by her supervisor Traci Trask, the clinic’s assistant director, according to a lawsuit.
Along with a senior doctor, Ms. Trask told Pedro that he couldn’t be treated at the clinic anymore, according to the suit. Then Ms. Trask decided that Ms. Gonzalez might be accessing Pedro’s health records improperly. A “sham” investigation followed, according to court filings, during which Ms. Trask wrote out statements for witnesses and put words in a doctor’s mouth. Ms. Gonzalez was fired based on the probe’s results.
Traci Trask is our latest Bad Boss of the Month.
Ms. Gonzalez filed a lawsuit claiming discrimination, retaliation, and wrongful termination. Earlier this year a California state court jury found that Kaiser illegally fired Ms. Gonzalez to avoid the “nuisance” of her association with Pedro, awarding her almost $500,000 in damages. Kaiser has appealed the verdict.
Court records, including medical reports, reveal a complex situation in which Kaiser doctors and administrators were annoyed by Ms. Gonzalez’s repeated requests for medical attention for Pedro, whom the doctors suspected of being a “narcotic seeker” overstating his pain level.
The same people worked with Ms. Gonzalez professionally, and evidently had trouble with her dual role. As the only medical assistant in the clinic’s Pain Management Department, Ms. Gonzalez did for Pedro everything she did for other patients — she checked him in for appointments, took his vital signs, updated his records, tracked the status of medication refills, and so on.
But she was also his emergency contact and she had a durable power of attorney for his health care, according to her lawsuit. Pedro lived with Ms. Gonzalez and she accompanied him to Kaiser hospitals whenever his condition worsened. And during one of Pedro’s visits to the pain clinic, she even took a break so that she could attend the appointment in “mother” mode.
It was this appointment that triggered a reckoning. When Ms. Gonzalez spoke up as a mother to endorse Pedro’s ongoing complaints about Kaiser, she testified in a deposition, the doctor told them that he would no longer see Pedro because Ms. Gonzalez had a “conflict of interest.”
What did he mean, asked Ms. Gonzalez?
“Sooner or later we knew this was coming,” he replied, according to her complaint.
In addition to refusing to see Pedro, the clinic was hesitant to refer him for outside treatment, according to records. Pedro escalated the matter at a meeting with the clinic’s management, including Ms. Trask, but got nowhere. According to Ms. Gonzalez’s complaint, the clinic’s lead doctor told Pedro ominously, “You wouldn’t want anything to happen to your mother, would you?”
Something did happen to her. Within hours, Ms. Trask e-mailed Kaiser administrators to warn them that Pedro would “continue to be persistent” with his demands, according to court documents — and in another e-mail she drew attention to some “hearsay pieces of information” that she believed could justify an internal investigation of his mother.
Ms. Trask took charge of the investigation herself, focusing on the idea that Ms. Gonzalez had used her employee status to access Pedro’s medical records improperly. Ms. Trask suspended Ms. Gonzalez for the duration of the probe and added a “break the glass” notice to Pedro’s records, increasing security in a way that usually requires the patient’s permission — a step that Pedro never requested, according to Ms. Gonzalez’s complaint.
Based on Ms. Trask’s investigation, Kaiser claimed that Ms. Gonzalez had improperly accessed her disabled son’s medical record 16 times, according to court documents. Ms. Gonzalez agreed that she checked Pedro’s record on those occasions — but only based on requests from Pedro or his doctor, and therefore within her scope of duty, she said, which could have been documented easily if Ms. Trask had asked.
Another alleged misdeed: Ms. Trask reported that Ms. Gonzalez had conducted a “pill count” for Pedro’s unused medication, outside her proper duties. Again, Ms. Gonzalez agreed that she had counted pills on several occasions, including once for Pedro, but she testified that it was always explicitly requested by a doctor — and, in this case, had been documented fully by the doctor.
According to court filings, Ms. Trask bolstered her findings with a written statement in which a different doctor said that Ms. Gonzalez shouldn’t be counting pills — except that the statement wasn’t signed and Ms. Trask had never spoken with the doctor on the matter, according to a brief filed on behalf of Ms. Gonzalez.
In the meantime, Pedro’s kidney problems continued. On the evening of his meeting with Ms. Trask, Ms. Gonzalez arrived at home to find her son shivering, fevered, and in pain; she called an ambulance and Pedro was admitted to hospital with septicemia, a blood infection, according to court filings.
Subsequent hospital visits, as documented in court records, showed Ms. Gonzalez’s deep involvement in Pedro’s care while she was suspended from work — sometimes sleeping by his bedside — but also the increasing skepticism of Kaiser doctors.
“His mother is doing most of the talking and she says that she feels that [Pedro] is going to die from so much pain,” says one doctor’s report. “Ironically, she works in the Pain Clinic.”
The following month, while still suspended, Ms. Gonzalez was fired based on Ms. Trask’s findings. Three reasons were cited: Improperly accessing Pedro’s medical records, improperly conducting the pill count, and refusing to admit that her behavior was improper.
Ruling in favor of Ms. Gonzalez, the jury found instead that her association with her disabled son was “a substantial motivating reason” for the termination. It awarded her almost $200,000 for economic damage already done, plus a further $300,000 for damage yet to come. At the time of her firing, Ms. Gonzalez had been the longest-serving staffer in her department; she always received solid performance reviews an a doctor testified that she “really cared about the patients.”
Ms. Trask, meanwhile, left her job at the clinic. She works at a nearby dental practice.
The Employment Law Group® law firm was not involved in Gonzalez v. Southern California Permanente Medical Group, Inc.. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
A Cop Escapes His Toxic Boss — and Gets Arrested as Payback
For more than a decade, according to a lawsuit, Aaron Jensen was the target of taunts about his supposed sexual orientation.
While serving as a police officer in West Jordan City, Utah, Mr. Jensen was baited constantly by his supervisor Dan Gallagher, who rose from a corporal to a captain over the period, according to court documents. Mr. Jensen didn’t fit into the department’s noxious locker-room atmosphere, the suit claims, so Mr. Gallagher called the young recruit “gay” — the older man’s idea of an amusing insult.
Among Mr. Gallagher’s gibes, according to testimony: That Mr. Jensen’s girlfriend was a “front”; that his later marriage was a cover-up; and that Mr. Jensen’s unborn son couldn’t be his because, as he told any officers within earshot, “we all know that you’re gay.”
Like an old-style teen bully, Mr. Gallagher would swat Mr. Jensen in the genitals, embarrass him by showing him gay pornography, and even play obscene pranks during duty calls, Mr. Jensen said in a written statement that was filed in court. Although Mr. Jensen resisted the harassment — once loudly at a staff meeting — he feared “brutal retaliation”: When the two men had clashed over a different matter, the volatile Mr. Gallagher threatened to “ruin” Mr. Jensen’s career, according to the lawsuit.
In the end, Mr. Jensen’s worst fears came true. After filing a formal complaint with Utah authorities and the U.S. Equal Employment Opportunity Commission, Mr. Jensen settled with West Jordan City for $80,000. He resigned as part of the deal, and the city agreed not to retaliate.
Just a year later, however, Mr. Jensen was arrested on felony charges resulting from an internal investigation that started on the day of his resignation. According to a complaint filed by Mr. Jensen, the criminal probe was egged on by Mr. Gallagher, who “contrived evidence” against his former subordinate.
All the criminal charges were dismissed — indeed, Mr. Jensen’s record was expunged — but not before he was fired from a new job, tarred as a suspected drug dealer.
Dan Gallagher is our new Bad Boss of the Month.
Mr. Jensen ultimately sued West Jordan City, Mr. Gallagher, and another police supervisor; among other things he claimed retaliation, malicious prosecution, and breach of contract. In June a federal jury told the city to pay Mr. Jensen more than $2.75 million in damages.
The city has requested a new trial or, alternatively, a reduction of the award. Mr. Gallagher and the other individual defendant were dismissed from the case.
According to his lawsuit, Mr. Jensen’s long battle with the West Jordan City police started with Mr. Gallagher’s nonstop homophobic “jokes,” which spread throughout the department as other officers and even high-ranking supervisors played along with the ringleader’s bullying.
Mr. Jensen said he found derisive notes in his office; once, during a staff presentation, he stepped out of the room and returned to see “You’re gay!” projected on the wall, his colleagues sniggering. For Mr. Jensen, a victim of childhood sexual trauma, the relentless abuse left him “feeling like that 12-year-old child again.”
The harassment spread beyond work: According to documents, Mr. Gallagher directly told Mr. Jensen’s wife-to-be that she was a beard — and colleagues who attended the wedding joked about Mr. Jensen’s orientation in the couple’s wedding video.
After a ceremony in which Mr. Jensen was promoted to sergeant, he recalled in the statement filed in court, the chief of police greeted his wife and several close family members by saying, “For years we thought he was gay, so it was good to see him finally get married.”
A respite away from Mr. Gallagher followed, but Mr. Jensen was transferred back to the then-lieutenant’s direct supervision. During their first staff meeting, by Mr. Jensen’s account, Mr. Gallagher welcomed his return because, he said, every unit needed its own Brokeback Mountain — a reference to the 2005 movie about gay love.
Some comments were more cruel than others. After Mr. Jensen’s wife suffered a miscarriage, Mr. Gallagher asked how things were going; Mr. Jensen said they were trying to get pregnant again, but hadn’t had any luck. Mr. Gallagher crudely offered to do Mr. Jensen’s part, according to Mr. Jensen’s statement.
Matters reached a breaking point when the men argued about where certain cases should be assigned. “You need to remember who you are,” said Mr. Gallagher, according to Mr. Jensen’s statement. “Your career is done, got that? … We’ll see who wins this battle when your life is miserable.”
“[Mr.] Gallagher was very — very controlling, very vindictive,” said Reed Motzkus, a lieutenant in the department, in a deposition. “[He] had a reputation for going after … anybody who would confront him or challenge him in any way.”
Before long there were two investigations afoot: An internal-affairs probe opened by Mr. Gallagher, who questioned whether Mr. Jensen was handling cases properly, and a review triggered by Mr. Jensen’s state and federal harassment complaints — frightened by Mr. Gallagher’s inquiry, Mr. Jensen had finally taken legal action.
Mr. Jensen was placed on leave pending the outcome. He didn’t go back to his office after that — but when he resigned as part of the settlement, about six months later, co-workers who cleaned the room came across an envelope with several balloons of heroin and the drivers’ licenses of two people Mr. Jensen had arrested.
Rather than treating the discovery as an oversight or loose end, the police department handed the matter over to the Salt Lake County district attorney’s office for criminal investigation. According to a deposition from Lohra Miller, then the D.A., both Mr. Gallagher and the police chief were “quite insistent” that she should act on the case.
Travis Rees, another lieutenant on the force, called the criminal case against Mr. Jensen “bull***t.” “I felt like the facts were being manipulated to make things look worse than they were,” he said in a deposition.
And who would manipulate facts?
“Dan Gallagher,” testified Mr. Rees, adding that Mr. Gallagher had a vendetta against Mr. Jensen.
“My understanding was, you know, … Aaron filed a complaint,” Mr. Rees said in his deposition. “Gallagher’s M.O. was if you push back against him, you’re — you know, it’s a done deal. He’s going to come at you hard.”
Mr. Jensen had been moving between jobs since resigning from the police force, including a gig at a local guitar store. After his arrest, which featured a charge of possession with intent to distribute a controlled substance, he was fired from that position.
Already battling depression and panic attacks after more than a decade of harassment — and with personal issues, besides — Mr. Jensen became more distraught and contemplated suicide, feeling “hopeless, helpless and worthless.” His marriage had fallen apart, along with his finances, but he kept fighting for his reputation.
After a preliminary hearing, two of the three criminal charges were dismissed. The remaining charge was dismissed the following year — and right around then, his nemesis Mr. Gallagher retired from the West Jordan City police department. Mr. Jensen’s entire record, from arrest onward, was ultimately expunged.
Although the jury vindicated him with its verdict of retaliation and malicious prosecution, the case isn’t over and Mr. Jensen still feels like damaged goods. He’d like to work again as a cop, he says, but believes it’ll never happen.
» Read Mr. Jensen’s original complaint (Note: Strong sexual and scatological content)
» See a post-trial TV interview with Mr. Jensen and his attorney
The Employment Law Group® law firm was not involved in Jensen v. City of West Jordan. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Mr. Jensen was represented by Hollingsworth Law Office LLC.
This Bad Boss’ In-Your-Face Fury Sent His Shell-Shocked Nurse to the E.R.
Scott Davidson, a urologist in Grapevine, Texas, stands well over six feet. He’s a muscular man, trained in karate. And when he loomed angrily over Patricia Hahn, as recounted in court records, she feared for her safety.
Dr. Davidson “screamed violently” about the nurse’s supposed incompetence, Ms. Hahn said in court filings, and “punched [toward her] face repeatedly as if he was sparring in one of his martial arts fights.” His fists came within inches of connecting, she testified.
After Ms. Hahn reported his alarming actions — and also called a mental health line in distress — Dr. Davidson confronted her again, she told the court.
“You want to hear yelling?” he asked, standing over her as she cowered back in a chair. “I’ll show you yelling! NOW THIS IS YELLING. THIS IS WHAT REAL YELLING IS!”
Another doctor in the practice dismissed the verbal attacks as “no big deal,” Ms. Hahn said in documents, but the nurse was seriously traumatized. After one bullying incident she had chest pains and was hospitalized for a suspected heart attack.
Who did this to you? a cardiologist asked in concern, according to Ms. Hahn. When she was able to muster an answer, she did so with a new stutter that has dogged her since.
Scott Davidson is our new Bad Boss of the Month.
Ms. Hahn lodged a sex discrimination complaint with the U.S. Equal Employment Opportunity Commission and its Texas counterpart, alleging that Dr. Davidson didn’t bully men in the office. North DFW Urology Associates initially put her on administrative leave, but fired her soon afterward on what her lawyers called a pretext — “poor performance.”
Ms. Hahn filed suit in Texas state court against Dr. Davidson and the urology practice. Dr. Davidson told the court that his practice had dealt fairly with someone he called “a fragile human being” — yet a Dallas County jury voted to award Ms. Hahn more than $1 million in damages. Mere minutes before the verdict, Ms. Hahn agreed to settle the case for $440,000, rendering moot an outcome that likely would have been appealed anyhow.
For Ms. Hahn, now 61, the case had been “about standing up to a bully in the workplace,” according to her lawyer, Rogge Dunn of Clouse Dunn LLP. That workplace was described in court documents as “unprofessional and volatile,” since Dr. Davidson was apt to fly into a rage at any moment.
At one point, Ms. Hahn was unable to move a paralyzed patient onto an exam table. Dr. Davidson screamed at her with fists clenched, she said in court documents. The doctor acknowledged that he “raised his voice,” but only after the nurse had a “complete meltdown.”
Dr. Davidson told the court, by way of explaining the incident, that Ms. Hahn “suffers from depression and suicidal tendencies” and incorrectly “believed she had been ‘assaulted.’ ”
Dr. Davidson wasn’t the only issue at North DFW Urology, the jury heard. After a yelling incident, the practice’s office manager told Ms. Hahn she should “quit because they are going to find a way to fire you,” Ms. Hahn said in documents. The doctors would never provide her with a good reference, the manager warned — they had never written a letter of reference for any prior employee.
Another doctor brandished a gun in front of Ms. Hahn, according to her complaint. The gun wasn’t mentioned at trial, but the complaint called it an act of intimidation.
Ms. Hahn began to have “headaches, cold sweats, sleepless nights, and nightmares,” she said in a deposition. According to a psychological evaluation submitted to the court, the workplace hostility appeared to have triggered symptoms of post-traumatic stress disorder, or PTSD — and it reactivated her “previously dormant” depression. The evaluation recommended five years of psychotherapy.
Ms. Hahn’s chronic stuttering made it difficult to find a job after she was fired, according to court documents. She went back to school to improve her credentials, however, and now is employed again. She testified that she still stutters when she talks about her experience with Dr. Davidson.
Dr. Davidson, meanwhile, left North DFW Urology a year after Ms. Hahn filed her lawsuit; he now works at a different urology practice.
The Employment Law Group® law firm was not involved in Hahn v. Davidson. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Ms. Hahn was represented by Clouse Dunn LLP.
This Bad Boss Didn’t Want Anything — Not Even a Death — to Tarnish the Image of a Celebrity Rehab Center
With gorgeous grounds overlooking the Pacific Ocean in Malibu, Calif., Passages rehab center is famed as a high-end haven for addicts — a luxe, spa-like facility where every patient gets a personal assistant. Celebrity graduates include Mel Gibson and David Hasselhoff; the price tag for a month of inpatient treatment tops $80,000.
Soon after Cynthia Begazo was hired as director of human resources for Passages, however, she began to notice problems at the center. Some amounted to illegal corner-cutting, she said in a lawsuit: Underpayment and misclassification of employees, a lack of required paperwork, and so on.
But she also saw blatant discrimination, according to court documents. Her boss, Marina Mahoney, was revamping Passages and, said Ms. Begazo, wanted to hire only healthy young people with blond hair and blue eyes: People who “look like they live in Malibu.”
According to her suit, Ms. Begazo balked — and she also protested when Ms. Mahoney fired employees for being “too old” and unable to “keep up.” That soured her relationship with Ms. Mahoney, who had just become the center’s chief operating officer. Tension between the women deepened when a patient died in a nearby Passages location: Ms. Mahoney wanted to alter documents related to the death, Ms. Begazo testified, but Ms. Begazo refused.
Shortly afterward, Ms. Begazo, herself a 53-year-old leukemia sufferer, took a three-day leave to recover from an infection. Upon her return she was fired by Ms. Mahoney and Passages CEO Pax Prentiss because she was “no longer a fit” at the rehab center.
While she was out sick, she told the court, her job was offered to a coworker.
Marina Mahoney is our new Bad Boss of the Month.
Ms. Begazo filed a complaint in California state court against defendants including Ms. Mahoney, Mr. Prentiss, and various Passages entities. This March, a Los Angeles jury found two of the Passages-related corporations liable for retaliation and wrongful termination, and awarded Ms. Begazo $1.8 million in damages.
Ms. Begazo’s tenure at Passages was short and rocky — about two months in mid-2015. At the time Ms. Mahoney was a newcomer to Passages, too, hired just a few months earlier and promoted to COO around the time that Ms. Begazo arrived.
From the start, things were uncomfortable. Although she knew of Ms. Begazo’s leukemia, and although Ms. Begazo warned her about anti-discrimination laws, Ms. Mahoney repeatedly griped about employees who were older or had medical conditions, according to court documents — often with the support of Mr. Prentiss.
Of an older woman with a bleeding disorder, for example, Ms. Mahoney and Mr. Prentiss complained that she was “sick all the time” and “will never … fit in the new Passages image,” according to court filings. Both executives wanted to fire another older woman who had taken medical leave: “She stinks because of her medical condition,” Mr. Prentiss said, according to Ms. Begazo’s testimony.
After Ms. Mahoney fired a different staffer, Ms. Begazo asked why. The COO’s response, according to the lawsuit: The woman “smelled foul” and couldn’t “keep up because she was too old.” That same month, Ms. Mahoney fired two more employees, both over 50.
In court documents, Passages claimed that Ms. Mahoney’s firings were routine “personnel management activity.”
By any account, however, the patient’s death was not routine. A non-celebrity, Gregory Link died while spending his first night in a shared room in Passages Ventura, just up the California coast in Port Hueneme. According to court documents, Ms. Begazo met with Ms. Mahoney at the scene and discussed the strange details: The dead patient had a bag and a trash can over his head and scratch marks on his face. There was blood on the other bed in the room — and Mr. Link’s roommate had posted photos on social media.
Ms. Begazo began asking questions about bed checks and proper reporting procedures but, according to her lawsuit, Ms. Mahoney shut her down. Later Ms. Begazo discovered that the Passages nurse on duty that night hadn’t been properly trained. In a deposition, she alleged that Ms. Mahoney told her to “fix the files” to hide this fact, which she declined to do.
(The local coroner deemed the death to be a suicide, but Mr. Link’s widow sued both Passages and the roommate for wrongful death; a trial is set for December. The Link complaint alleges, among other things, that Passages didn’t train its staff properly and concealed evidence from authorities.)
A few days later, Ms. Begazo asked for time off to fight an infection. During the absence, Ms. Mahoney pestered her with work requests — and then, the day after Ms. Begazo returned, teamed with Mr. Prentiss to fire her.
In court filings, Passages claimed that the firing wasn’t retaliatory at all — not for Ms. Begazo’s opposition to discriminatory firings, and not for her qualms about the handling of Mr. Link’s death. Instead, said Passages, Ms. Begazo was “terminated for poor performance.” Anyhow, it noted, the HR director was still in her probationary period and had failed to “integrate herself” into the organization.
At trial, however, the jury found Passages acted in retaliation. It awarded her economic damages of almost $280,000 — plus more than $1.5 million for non-economic harms, which Ms. Begazo said required treatment by two doctors and included shock, embarrassment, diminished confidence, anxiety, insomnia, isolation, and numbness.
Ms. Mahoney, meanwhile, moved on to another rehab center. Shortly after the March verdict she wrote to a Malibu newspaper, saying that Ms. Begazo “fooled the entire jury” and defending herself as a “good, honest and ethical person.”
According to the letter, Ms. Mahoney will start an “employer advocacy group” to protect companies from further injustice.
The Employment Law Group® law firm was not involved in Begazo v. Passages Silver Strand LLC. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Ms. Begazo was represented by Shegerian & Associates, Inc..
This Bad Boss Forced a Whistleblower to Sit in a Lobby for Months
Does your manager assign too much work? Troy Miller had the opposite problem: For seven months his boss made him sit on a sofa all day, twiddling his thumbs as puzzled colleagues walked by.
As a superintendent at a federal prison in Beaumont, Texas, Mr. Miller had overseen the facility’s manufacture of helmets for military use in Afghanistan and Iraq. After investigators began probing the troubled operation, Mr. Miller made his own report of shoddy practices — and urged that production be halted so that no unsafe helmets would go to U.S. troops.
The reaction of his boss, prison warden Jody Upton? He took away Mr. Miller’s computer access, his keys, and his job duties — all to prevent Mr. Miller from obstructing the ongoing investigation, he said. Then the warden gave Mr. Miller, who was not charged with a crime, a series of jobs that were clearly below his pay grade, including wiping tables and shredding paper.
After more than 18 months of these make-work assignments, Warden Upton finally told Mr. Miller to park himself in the lobby of an administrative building — supposedly to cut off communication with the inmates he had overseen.
“I had no duties” besides sitting on a sofa, recalled Mr. Miller in a hearing. A fellow employee said the high-profile exile marked Mr. Miller as “a leper.”
Warden Jody Upton is our new Bad Boss of the Month.
Mr. Miller complained to the government’s Merit Systems Protection Board about the actions of Warden Upton and other bosses. Although an administrative judge called Mr. Miller’s treatment “demoralizing … and extremely inefficient, even wasteful,” the MSPB noted that Warden Upton said he acted at the behest of the U.S. Department of Justice’s Office of the Inspector General (OIG), which was looking into improprieties at Beaumont — including possible wrongdoing by Mr. Miller.
As a result, said the MSPB, Mr. Miller’s do-nothing assignments didn’t qualify as illegal punishment.
In December 2016, a federal appeals court reversed the MSPB and vindicated Mr. Miller, saying that Warden Upton’s story lacked corroboration and, even if true, “affords only minimal support” for the treatment endured by Mr. Miller. It ordered the MSPB to determine a proper remedy for Mr. Miller — although that’s now on hold, as the Justice Department requests a rehearing.
Mr. Miller’s demotion to couch potato was an unlikely outcome for the former U.S. Marine and two-decade veteran of the Federal Bureau of Prisons: Even after the fact, Warden Upton acknowledged him to be a “fantastic” employee — “confident, organized … very on top of things.” His performance rating before the conflict was “Outstanding.”
The trouble started in 2009, about two years after Mr. Miller became a superintendent at Beaumont. The inmate-staffed helmet factory had swung from an $8 million profit to a loss, a change that Mr. Miller blamed on underbilling and mismanagement by Federal Prison Industries, the government-owned corporation that contracts for prison labor and is commonly known as UNICOR.
About two months before he asked for a production halt, Mr. Miller had reported UNICOR’s financial troubles to Warden Upton and others. Now he shifted his focus to safety: He had discovered, he said, that defective Kevlar was being used to make helmets. He suspected “sabotage” on the line.
“The lives of U.S. Marines are more important than anything else,” he wrote in an e-mail to Warden Upton.
Mr. Miller made his discovery the morning after OIG investigators had visited Beaumont; the previous day, he had been ordered not to report to the helmet factory during the visit. According to Warden Upton, the burgeoning OIG probe — which ultimately would lead to the factory’s closing and a $3 million civil settlement — started with a tip from a line manager who had been reported by Mr. Miller for sexual misconduct.
Immediately after hearing Mr. Miller’s helmet-safety concerns, Warden Upton decided to shift him out of the factory, triggering a succession of make-work jobs. The warden was motivated, he said, by a request from an OIG official whom he never named — not by Mr. Miller’s safety warning.
Warden Upton would later learn, he testified, that OIG was considering criminal charges against Mr. Miller and wanted him to be completely isolated from inmates. The warden never cited a specific source for that information, either.
Mr. Miller was never charged criminally, and a civil complaint that named him was dismissed. While the MSPB believed that Warden Upton had acted validly given OIG’s suspicions, the appeals court disagreed: It characterized Mr. Miller as “a valued executive, whose expertise and attention to detail made his product line one of the most successful in the [prison bureau].”
The bottom line for the appeals court: Warden Upton’s unsupported testimony, by itself, couldn’t be the “clear and convincing” evidence that’s required to disprove apparent retaliation under the Whistleblower Protection Act.
“Mr. Miller was repeatedly reassigned,” the court observed, “… and for each step, the Government did not present a single email, memorandum, or personnel action form …. Common sense tells us that these … are the types of personnel actions for which papers would normally attach.”
For his part, Mr. Miller claimed that Warden Upton was moved to retaliate because a potential shutdown would harm the Beaumont prison and deprive inmates of employment. And indeed, the warden himself testified that discipline would be a greater challenge without the factory routine, a fact that caused him “some angst.”
Regardless of the reason, recalled Mr. Miller, “I was done. I’ve never been back in that factory.”
What followed was a downward spiral of job duties. Warden Upton first sent Mr. Miller to oversee inmates as they took meals. But that didn’t last long because, according to the warden, OIG didn’t want Mr. Miller talking to inmates.
Later Mr. Miller was assigned to monitor inmates’ recorded phone calls — until that, too, was nixed by OIG. Mr. Miller did a stint in the prison’s personnel office, where he did “clerical kinds of things, you know, shredding,” explained Warden Upton.
“Is that a waste of his talents?” the warden was asked at a hearing.
“Absolutely,” answered Warden Upton.
Most wasteful, however, was what the MSPB administrative judge called Mr. Miller’s “demoralizing sojourn on the lobby sofa,” which started in 2011. As the couch-sitting wore on, the prison’s safety officer began to worry about the superintendent’s mental state, because virtually no one interacted with him: “He was just kind of like a fixture in the lobby,” he testified.
In the meantime, Warden Upton moved on to a new job in Oklahoma and the helmet factory shut down permanently. Mr. Miller was rescued from the lobby and named as Camp Administrator, then Management Analyst. Although he got an office, the titles meant little: At the end of 2012 the OIG was still investigating and Mr. Miller was pressure-washing the administrative building.
Soon afterward Mr. Miller filed his petition to the MSPB, alleging violations of the Whistleblower Protection Act — a statute that protects federal employees from retaliation for blowing the whistle on fraud, waste, and abuse.
In August 2016, a few months before Mr. Miller’s win at the U.S. Court of Appeals for the Federal Circuit, the OIG finally announced the results of its long-running investigation. The shuttered Beaumont facility had “endemic manufacturing problems” and produced helmets with “numerous defects,” it said. UNICOR staff cheated on inspections, and falsified documents in order to sell rejected helmets to the U.S. military. Mr. Miller was not mentioned.
The OIG said it had no evidence that the faulty helmets caused any deaths or injuries — but the government ended up recalling more than 126,000 units at a cost of more than $19 million.
Earlier in 2016, ArmorSource LLC, an Ohio-based defense contractor that had engaged UNICOR to make helmets at Beaumont, agreed to pay $3 million to settle charges that it had defrauded the government. Part of that settlement will go to the whistleblower who originally accused Mr. Miller of wrongdoing.
The Employment Law Group® law firm was not involved in Miller v. Department of Justice. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
During this case, Troy Miller was represented by Dennis L. Friedman, of Philadelphia; and by David L. Wilson, of Stigler, Okla.
This Bad Boss Canned Two High-Achieving Siblings — One of Them “Jersey-Style” at a Parkway Rest Stop
Ramon Cuevas managed residential properties, and he did it well. During his tenure as regional vice president of Wentworth Property Management Corp. (WPM), based in Eatontown, N.J., he received high ratings and expanded his property purview from nine to 24.
WPM also hired Ramon’s brother Jeffrey Cuevas — and Jeffrey quickly thrived, too, rising from portfolio manager to executive director. The siblings were minority success stories: Although the WPM workforce was 20 percent Hispanic, Ramon was the only Hispanic person in upper-level management. Jeffrey hoped to join him there.
Things soured for the Cuevas siblings, according to court documents, when they fell under the supervision of Arthur Bartikofsky, executive vice president of operations at WPM, a part of FirstService Corp., the Canadian property-services giant. Suddenly they found themselves singled out for belittlement as “the two Chihuahuas,” among other slights.
Mr. Bartikofsky set the demeaning tone, according to testimony, with unfunny cracks like the one at a business lunch, where he talked about sending Ramon Cuevas to “join his father” washing dishes in the back of the restaurant. Other executives joined in the mockery — even WPM’s director of human resources.
Both brothers hated the jibes, but tried not to seem thin-skinned. Jeffrey Cuevas finally complained to WPM’s in-house lawyer, however, and Mr. Bartikofsky responded by firing the junior brother. A few weeks later, on New Year’s Day, Mr. Bartikofsky tapped his inner Tony Soprano and asked Ramon Cuevas to meet him at a rest area on the Garden State Parkway.
“Don’t bother sitting down,” said Mr. Bartikofsky. “You’re terminated.” The scene evoked a “Jersey-style” hit, according to one of Mr. Cuevas’ lawyers.
Arthur Bartikofsky is our new Bad Boss of the Month.
The Cuevas brothers filed a complaint claiming discrimination and retaliation, among other things, and a state jury awarded them total damages of $2.5 million — including a combined $1.4 million for emotional distress. In September 2016, the Supreme Court of New Jersey affirmed the emotional damages, noting that the Cuevas were subjected to “mental anguish and humiliation … sustained over a long period.”
In court, Ramon and Jeffrey Cuevas described the ethnic comments as relentless — and said that Mr. Bartikofsky was the enabler, “joking” about their heritage at high-level meetings, staff gatherings, and even in front of vendors and contractors. Other WPM executives in attendance, including the company’s president, said nothing or added their own tired tropes.
While executives were listening to music before a conference call began, for instance, someone asked for “something a little more to Ramon’s taste … a little Mariachi or salsa music?” At catered lunches, people would mock-apologize to Ramon for not having burritos or tacos. At a restaurant, someone pointed out a Hispanic bus boy and told Ramon he “could have been your twin.” One day Ramon had to fix a flat tire on his way to work; a colleague suggested he was lucky not to have been mistaken for a “Puerto Rican … trying to steal … the hubcaps.”
Ramon Cuevas testified that he felt “chopped down day by day, month by month” by the stereotypes. And once he was promoted, Jeffrey Cuevas also faced “extremely degrading” treatment at many of the same meetings. One reaction when Jeffrey joined the executive circle: “[W]e’re going to need … another Chihuahua.”
Mr. Bartikofsky already had been calling Ramon Cuevas “Rico Suave,” a reference to the 1990 hit song about a ladies’ man by Ecuadorian rapper Gerardo. Now Mr. Bartikofsky began talking about the “Rico Suave brothers,” while WPM’s HR chief referred to the Cuevas as “the Latin Lovers,” according to testimony — a label that Jeffrey Cuevas found especially “grotesque” coming from a personnel expert.
Another theme: Dangerous Hispanic people. Two WPM property managers testified that Mr. Bartikofsky assured them that Ramon Cuevas could keep them safe in bad neighborhoods because he was “one of them.” Jeffrey Cuevas heard the same notion from another WPM regional vice president, who added that Ramon would “have his switchblade with him, because, of course, he’s Spanish.”
Both brothers hesitated to complain because WPM’s top brass was already aware of the harassment — and indeed, often participated. When Jeffrey Cuevas couldn’t stand it anymore, however, he flagged his discomfort to WPM’s in-house counsel. Just four days later, Mr. Bartikofsky terminated him.
Shocked, Jeffrey Cuevas initially thought the firing was a joke: He had gotten a merit raise just a few weeks earlier. But Mr. Bartikofsky stood firm and ordered Jeffrey to clear out his desk. As he made what he called his “walk of shame” out of the office, Jeffrey Cuevas wondered how to tell his wife that he had lost his job three weeks before Christmas.
WPM replaced Jeffrey Cuevas with a Caucasian male pest-control manager who had no property management experience.
A few weeks later, on New Year’s Day, Ramon Cuevas got an unexpected call from Mr. Bartikofsky, who asked for a meeting at the Cheesequake Service Area on the Garden State Parkway. Although the request was strange, Ramon agreed. When he arrived, Mr. Bartikovsky handed him an envelope and fired him on the spot. Inside the envelope was a letter blaming Ramon for losing accounts — and accusing him of soliciting a kickback, a charge he denied.
At trial, WPM portrayed the unusual firing location as a matter of convenience. One of Mr. Cuevas’ lawyers, however, said WPM wanted to do it “Jersey-style. [The mob] used to issue hits that way. That was the mentality.”
Ramon, like Jeffrey, was replaced by a Caucasian male. Despondent and edgy from a long period of humiliation, he had been fighting with his wife. Now, just a few months after the termination, she filed for divorce. He wound up sleeping on a friend’s sofa.
In appealing the jury’s verdict for emotional damages, WPM argued that any insensitive remarks attributed to Mr. Bartikofsky or other executives were just “teasing,” and that $1.4 million was excessive as a total award. The New Jersey Supreme Court disagreed, saying that as a general matter it won’t second-guess a jury’s reaction …
… to the timbre of a voice that recalls the emotional cuts and slashes felt from racially animated discrimination; to in-depth descriptions of daily workplace humiliations that mentally beat down an employee; and to first-hand accounts of mental anguish — anguish that leads to depression and frays personal relationships.
The awards — $800,000 to Ramon Cuevas and $600,000 to Jeffrey Cuevas — would stand.
The Employment Law Group® law firm was not involved in Cuevas v. Wentworth Group. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
This Bad Boss Tracked Employees on Her Smartphone — and Punished Any Naysayers
Teecha Chamblee never had panic attacks before she was hired as the clinic manager at Inland Behavioral and Health Services (IBHS) — but then, she had never worked for Temetry Lindsey before.
For 30 years now, Ms. Lindsey has run the non-profit community clinic in San Bernardino, Calif. As painted in a series of lawsuits filed by former employees, including Ms. Chamblee, she is a dictatorial CEO who hires family members, charges poor patients too much, permits lavish narcotics handouts, and freezes out — or fires — anyone who crosses her.
According to testimony, Ms. Lindsey tracks employees' movements on her smartphone, to which she has piped video feeds from cameras all over IBHS facilities. She allowed one supervisor to deprive "lazy" clinic employees of desks and chairs, forcing them to kneel as they typed. And she used the non-profit's money to buy herself a BMW X5, ostensibly at the request of her board of directors, a hand-picked group that includes her hairdresser.
Ms. Chamblee said she tried to challenge the worst practices at IBHS, including some evident faking of patient data. But for her troubles — which included a run-in with Ms. Lindsey's disruptive daughter, who was on the non-profit's payroll — she was banished from the executive suite and shut out of key meetings. Ultimately she had no choice but to quit.
"I felt like I was in a cult," Ms. Chamblee said in a deposition. "I don't do cults."
Temetry Lindsey is our latest Bad Boss of the Month.
Ms. Chamblee quickly found another job. In July 2016 a California state jury awarded her $50,000 in damages from IBHS, saying that she was effectively fired for speaking up, and that IBHS acted with "malice, fraud or oppression."
In court documents, Ms. Chamblee described her time at the clinic as "hell." Besides having her first-ever panic attack, she gained a lot of weight under the stress of being shunned by Ms. Lindsey, her direct supervisor.
Among other problems at IBHS, Ms. Chamblee had flagged the clinic's improper practice of including food-stamp payments in its calculation of poor patients' income, which allowed IBHS to charge higher fees. Ms. Lindsey listened to her concern, but replied that nothing would change.
Ms. Chamblee also dealt with issues caused by the IBHS medical director, Donald Underwood, who was hired by Ms. Lindsey despite prior suspensions in five other states for problems including overprescription of narcotics, malpractice, and fraud. In New York, by his own account, he was suspended for allowing his wife, who is not a physician, to implant synthetic fiber in patients' scalps in imitation of "authentic hair."
At IBHS, Ms. Chamblee testified, Dr. Underwood was in heavy demand as the only physician willing to prescribe promethazine with codeine, a narcotic cough syrup that's often mixed with soda and candy to make a street cocktail known as "sizzurp" or "purple drank."
"Most of the patients came to see him," said Ms. Chamblee, "because he — well, you know … he gave out meds."
Other IBHS personnel warned about Dr. Underwood. Tiffany Hill, a physician at the clinic, sent an e-mail to Ms. Lindsey saying that Dr. Underwood’s prescriptions "scared" her, noting that one patient had received scripts for a virtual pharmacy of pills, including 485 hydrocodone, 830 Tramadol, 330 Xanax, and 270 Valium. Dr. Hill and another IBHS employee were fired after making such complaints, and later settled a joint lawsuit they filed against the clinic.
According to Ms. Chamblee, the only survivors at IBHS are those who don’t challenge Ms. Lindsey or her protectees, who include family members and Dr. Underwood. "Whatever she said, goes," said Ms. Chamblee. "Nobody contested or questioned anything, even if they knew better." Behind her back, however, disgruntled workers called her "the blue-eyed devil," Ms. Chamblee testified. (Ms. Lindsey has striking blue eyes.)
Even longtime employees could be targets for the CEO. Barbette "Bobbie" Barton, who was Ms. Lindsey’s personal assistant for 13 years, claimed in court documents that Ms. Lindsey was abusive and threatened to fire her, for instance, if she didn’t get her "a** down to the store to pick up snacks" for a meeting.
Ms. Lindsey also was demeaning of Hispanic people, calling them "wetbacks" and "beaners" in front of Ms. Barton, whose daughter-in-law and grandchildren are Hispanic.
Like Ms. Chamblee, Ms. Barton became hobbled by the stress of working for Ms. Lindsey. She filed a workers' compensation claim to take time off — but when she returned, she said, she was stripped of all duties, moved to a different location, and deprived of a computer and telephone. For several weeks, she could do little more than make copies.
Ms. Barton also filed suit against IBHS, and reached a settlement.
Ms. Chamblee herself was frozen out for a variety of reasons. Ms.Lindsey sent security to confiscate her key to the executive suite, for instance, after she raised concerns that IBHS wasn't complying with state and federal regulations — and that data submitted in applications for government funding didn't match IBHS records.
Ms. Lindsey seemed just as upset, however, when Ms. Chamblee passed along complaints about the workplace antics of Samantha Dotson, the CEO's unruly daughter.
Ms. Dotson reported to Ms. Chamblee, but "came and left whenever she wanted" and dressed and behaved unprofessionally. "She would do little stupid things like take people's lunches, hide people's purses," testified Ms. Chamblee. "She'd throw things across the cubicles. I couldn't go and tell her to stop … because that's the boss' daughter."
One of Ms. Dotson's pranks contributed to a sexual harassment lawsuit filed by another employee, which was resolved out of court.
Ms. Lindsey's mother also worked at IBHS, and the CEO's son became pharmacy supervisor, with access to medications, although former employees have challenged his qualifications in court filings.
Ms. Chamblee finally quit under pressure from her boss, who stopped replying to e-mails and declined to give her work assignments. "I just couldn't take it," said Ms. Chamblee, a mother of three who was seeing a doctor for a worsening health condition. "I don't ever want to see [Ms. Lindsey] again, and even talking about her sometimes makes me sick."
Like many former IBHS employees, Ms. Chamblee was represented in her case by Tristan Pelayes, a local attorney and former deputy sheriff who has been dogged in pursuing Ms. Lindsey.
Mr. Pelayes' next IBHS case, representing Anais Parsaeian, a former nurse at the clinic, may reach trial in 2017. He says he has more lined up after that.
The Employment Law Group® law firm was not involved in Chamblee v. Inland Behavioral and Health Services, Inc.. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.