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The attorneys of The Employment Law Group® law firm represent whistleblowers and others who stand up to wrongdoing by employers. We focus on cases involving retaliation, discrimination, employer fraud, and federal employee representation.

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Rx for Discrimination

With a Backdated Firing, This Bad Boss Hit a New Low in Age Bias

Cody Berguson had laid the groundwork — he was ready to fire James King.

But Mr. King was unavailable: The 65-year-old pharmacist was caring for his wife, Trudy, who was hospitalized for surgery.

Mr. Berguson, a pharmacy supervisor for health giant CVS, waited a few days. Then he called in Mr. King and, in a two-minute meeting, terminated him.

The kicker: Mr. Berguson backdated the termination to before Trudy King’s surgery, which meant that CVS-supplied insurance no longer covered her hospitalization. The Kings had to pay their medical bills with credit cards.

Cody Berguson is our latest “Bad Boss of the Month.”

Earlier this year, a federal jury found CVS liable for age discrimination and awarded Mr. King more than $1 million in damages — then doubled it by finding that CVS “willfully” violated the Age Discrimination in Employment Act, for a final award of more than $2.1 million.

CVS is fighting the verdict.

At the time of his firing, Mr. King had worked at the CVS Pharmacy in Pell City, Ala., for more than seven years. Although he was 65, he had no intention of retiring: “I wanted to work until I died,” he said at trial, joking that his wife “didn’t want me around the house.”

In reality Mr. King enjoyed working and needed to pay for the education of his daughter, who was still in high school and planned to go to college.

Mr. Berguson, however, seemed to have a different plan.

Soon after Mr. King’s 65th birthday, the CVS supervisor started what Judge Virginia Emerson Hopkins characterized as a “retirement-related inquisition,” repeatedly asking Mr. King pointed questions like “Don’t you have enough money to buy an annuity and retire?”

Mr. Berguson also began what Mr. King called “a constant barrage of unjustified and petty criticisms,” writing up the pharmacist for sins including a “bad attitude.”

Before long, Mr. Berguson and another regional official called Mr. King into a meeting and told the pharmacist he was under investigation for allowing other employees to use his “manager card” for voiding transactions, among other things.

They also faulted him for taking too many smoke breaks — they had reviewed an entire day’s video and tracked his smoking to the minute — and for failing to properly document his purchase of two Diet Pepsis.

According to Mr. King, Mr. Berguson called him a “thief,” a “liar,” and “lazy” — and topped off the encounter by asking, “Now, what about retirement?”

Fearing the worst, Mr. King complained to Mr. Berguson’s boss and also called a company hotline to say he felt like a victim of age discrimination. But CVS did nothing — and things escalated.

One day when Mr. King was not working, a younger pharmacist filled a narcotic drug prescription via the store’s drive-through lane. It was for the wife of a local judge but, based on later investigation, was picked up by an unauthorized person.

A few days later, the irate judge — a longtime customer well-known to CVS staff — arrived at the pharmacy to get his wife’s pain medication. Seeking to make things right, Mr. King gave him replacement pills without forcing the judge to contact a doctor first.

In a prior incident of this type, CVS had sorted out details later. This time, however, Mr. Berguson told Mr. King he had violated state law and suspended the pharmacist without pay. CVS referred the incident to the Alabama State Board of Pharmacy — and reported it to local police.

A stunned Mr. King gave a statement to the pharmacy board investigator; he was told he’d be called for a hearing if the matter went any further. Neither the board nor the police ultimately took any action against him; Mr. King remains a pharmacist in good standing.

In the meantime, however, Mr. Berguson had sent an e-mail to CVS officials: “Considering … this latest issue, one month after meeting with him about the Pepsi issue … I would think it’s time to relieve Jim of his duties as an employee of CVS no matter what the state board decides to do with him.”

CVS approved the termination without waiting for further facts, and Mr. Berguson tried to implement it immediately — only to find Mr. King tending to his hospitalized wife.

As jurors heard, it wasn’t the first case of age discrimination involving Mr. Berguson. That’s “not coincidental,” Mr. King’s lawyers said: Under direction from CVS to hire a quota of newly-minted pharmacists, the supervisor had to create slots for cheaper, younger new hires across a 23-store territory from Auburn to Birmingham.

In a 2013 jury trial against CVS, veteran pharmacist Roger Harris won $800,000 on similar claims of Mr. Berguson's prejudice.

Like Mr. King, Mr. Harris had been subjected to ageist heckling by Mr. Berguson; like Mr. King, he had received multiple write-ups over the six months before being fired; like Mr. King, he was terminated at age 65.

There was no sick wife in the case, but Mr. Harris suffered his own cruel flourish: Mr. Berguson fired him on his 65th birthday.

» Mr. King's Amended Complaint

 


The Employment Law Group® law firm was not involved in King v. CVS Caremark Corp. 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.


Mentorship Gone Sour

After Her Protégée Fell In Love With a Woman, This Executive Turned Into a Bad Boss

Diana Castle was more than a boss to Shelly Flood—she was her official mentor, tapped to help Ms. Flood advance at Bank of America.

That made what happened next all the worse.

Ms. Castle, a senior bank official, had been paired with Ms. Flood, a customer service employee, in a Bank of America mentoring program for women. The two clicked at first, discussing their shared experiences as working moms and Ms. Flood’s path to promotion. Ms. Flood applied for a job in Ms. Castle’s department, and Ms. Castle hired her.

Things fell apart, however, after Ms. Castle learned that Ms. Flood was romantically involved with a woman. According to documents in a lawsuit filed by Ms. Flood, Ms. Castle launched “a campaign of harassment and discrimination” that ended with the firing of Ms. Flood from the bank’s operation in Belfast, Maine—and the firing of Ms. Flood’s partner, too, from a separate company.

Diana Castle is our latest “Bad Boss of the Month.”

Earlier this year, the U.S. Court of Appeals for the First Circuit ruled that a reasonable jury could hold Bank of America liable for a hostile work environment caused by Ms. Castle’s “constant and disapproving scrutiny.” Rather than face trial, Bank of America opted in August 2015 to settle the case.

The trouble started after Shelly Flood—then called Shelly O’Donnell—started dating her wife-to-be, Keri Flood, who worked for a janitorial service that cleaned the bank. The two women had met in 2009 while on a smoke break; Shelly took Keri’s last name after a commitment ceremony in August 2010.

Stories differ on how Ms. Castle learned of the romance, but around April 2010 the executive’s “demeanor shifted,” according to Shelly Flood—becoming cold and targeting the junior woman’s relationship.

In a deposition, Ms. Castle agrees that she asked middle managers to monitor the couple’s behavior “to make sure that [Shelly Flood] didn’t have distractions.” Whenever Keri Flood approached her desk, says Shelly Flood, a manager “would stand up and watch me the whole time.”

Ms. Castle complained about Keri Flood’s “hanging out” both directly to Shelly Flood and to the bank’s liaison to the janitorial service. Besides distracting bank employees, she said, Keri Flood “didn’t seem to be doing a very good job cleaning.”

Ms. Castle’s comments resulted in a reprimand for Keri Flood but also a slap to Ms. Castle, whose superior intervened at Shelly Flood’s request and said he had no problem with Keri Flood visiting Shelly’s desk.

According to Shelly Flood, Ms. Castle’s actions kept escalating: The executive retroactively downgraded Ms. Flood’s performance, for instance, and forced a manager to issue her an erroneous warning. She told Ms. Flood not to participate in LGBT meetings during work hours—despite being part of the LGBT group herself. (Ms. Castle identifies as heterosexual and is married to a man, but says she has “numerous” gay friends.)

Shelly Flood took the hint: She ended the mentor relationship and began looking for another job at Bank of America—only to have Ms. Castle sabotage her effort by contacting at least one hiring manager to say Ms. Flood wasn’t ready for more responsibility.

Finally, Ms. Flood says, she couldn’t endure any more and stopped going to work. She sent a letter to Ms. Castle explaining that she believed she had been “retaliated against and judged on my personal life’s choices.”

Ms. Castle recommended that Bank of America follow its procedures for job abandonment, and Shelly Flood was terminated.

Shortly afterward, Ms. Castle reported an incident in which Keri Flood supposedly tried to push a pregnant bank employee down a stairwell. Keri Flood denies that the altercation ever happened—but Bank of America still banned her from its premises, and her employer fired her as a result.

Both Floods sued. Among other things, Keri Flood claimed that Bank of America defamed her and interfered with her employment; the defendants settled with her in 2013 after a trial became inevitable.

Shelly Flood’s discrimination claims remain open, but will be dismissed this month when a settlement is completed to avoid a trial in which, according to First Circuit judge Kermit Lipez, a reasonable jury could find “that Castle harbored animus toward Flood” and that the bank “actually fired Flood because of her sexual orientation.”

» Opinion of First Circuit

 


The Employment Law Group® law firm was not involved in Flood v. Bank of America Corp. 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.


‘Plain Indifference’

Faced With a Life-or-Death Situation, This Bad Boss Stuck His Head in the Sand

When one of his workers became buried in a bin of sand — initially up to his shoulders — company procedure and government regulations demanded two simple actions of Don MacKenzie, a plant manager at Dukane Precast, Inc.: Mr. McKenzie should have called the local fire department, and he should have halted any unsafe rescue attempts.

Instead, Mr. McKenzie reacted with “plain indifference” and “nonchalance,” according to an administrative law judge. After a few minutes watching untrained employees scramble ineffectively to save their co-worker’s life — actions that were forbidden and could have endangered them all — Mr. McKenzie decided there was no emergency. He left the scene and continued his daily routine in another part of the Dukane concrete-products plant, which is in Naperville, Ill.

Not until an hour or so later, with the engulfed worker begging for someone to dial 911, did Mr. McKenzie return to the area and finally call the fire department.

Mr. MacKenzie is our latest “Bad Boss of the Month.” In May 2015 the U.S. Court of Appeals for the Seventh Circuit found that he acted “recklessly” and “willfully,” and upheld a resulting $70,000 penalty against Dukane.

According to court records, the harrowing incident started one February morning in 2012. William Ortiz, a mid-level supervisor under Mr. MacKenzie, climbed into an 18-foot deep silo to clean the sides of the container. It was about two-thirds full of sand. As he began working, the sand gave way and he was quickly engulfed.

Mr. Ortiz was scared and in pain, he later told a tribunal of the Occupational Safety and Health Administration (OSHA). Every time he took a breath, the pressure grew tighter on his chest. He thought he was going to die.

Upon hearing his screaming, several co-workers ran to the bin, jumped in, and began using buckets to dig out Mr. Ortiz. About 10 minutes later Mr. MacKenzie arrived and, despite having received training to the contrary, allowed their risky efforts to continue. He joked briefly with Mr. Ortiz and then, without acknowledging what an OSHA judge called a “dire need for assistance” — and without informing his superiors of the situation — Mr. MacKenzie matter-of-factly walked away.

(Mr. MacKenzie told OSHA that he believed Mr. Ortiz was in no danger and that the relevant safety rules didn’t apply; the judge dismissed his testimony as “not objectively plausible.”)

By the time the Naperville Fire Department’s Technical Rescue Team arrived, about 90 minutes after Mr. Ortiz’s initial engulfment, the trapped worker needed intravenous morphine for his pain. It took four more hours to free Mr. Ortiz with a special vacuum truck; he was hospitalized with multiple squeezing injuries to his lower body, including a herniated disk and a torn meniscus.

As the fire department was helping Mr. Ortiz, Dukane executives sprang into action — on damage control. They called an attorney and a crisis-management expert; worked with Mr. MacKenzie to get everyone’s story straight; and ordered a plant-wide cleanup ahead of an expected OSHA investigation. Warning signs quickly appeared by the sand bins; none had been posted when Mr. Ortiz got buried.

The next morning, before OSHA arrived, Mr. MacKenzie helped to oversee an all-hands effort to get rid of broken equipment and move improperly stored chemicals.

Despite these actions, OSHA found serious violations — including a missing railing at the top of the sand bins — and was especially critical of Mr. MacKenzie’s “willful” failure to implement safety rules.

In its appeal of the $70,000 penalty before the Seventh Circuit, Dukane argued that Mr. MacKenzie hadn’t done anything wrong: OSHA regulations call for a rescue plan, it said, and Dukane had a plan; the rules don’t say anything about acting on the plan.

“That may be a permissible literal interpretation,” wrote Judge Richard Posner drily, “but it is neither inevitable nor sensible, as it would allow the employer to do nothing at all to rescue a worker injured or endangered at work — not even call 911. Literalism frequently, and in this instance, leads to absurd results.”

There is “no doubt,” concluded Judge Posner, that Mr. MacKenzie failed in his duty.

» Opinion of Seventh Circuit
» Opinion of OSHA administrative law judge

 


The Employment Law Group law firm was not involved in Dukane Precast, Inc. v. Perez. 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.


‘Despicable’ Behavior

We Found Our First Bad Boss at an AutoZone Store in Connecticut

Bad bosses come in many flavors.

There’s the boss who hands you a huge project as you’re trying to leave for the day.

There’s the boss who expects you to answer e-mail while on vacation.

And then there’s the boss who dons a Rasta wig to demean your religion — and compares you sexually to co-workers and customers saying, “I don’t discriminate. I do black, white, Puerto Rican, anything.”

Meet Michael Balboni, a manager at an AutoZone store in Bloomfield, Conn., and our first “Bad Boss of the Month.” In March 2015 the Connecticut Supreme Court found “ample evidence” that Mr. Balboni’s behavior toward a former worker at the store was “despicable.” As a result, the court ruled, a state jury may hear the worker’s claim of sexual harassment.

According to Doris Feliciano, the former AutoZone worker, Mr. Balboni critiqued her “flat ass” and commented on the “black, juicy” physiques of other women — employees and customers alike. Mr. Balboni also “rubbed his crotch against her buttocks” in the store aisles, she said in court filings, despite having “plenty of room” to walk by.

After Ms. Feliciano threatened to complain to AutoZone higher-ups, she said, Mr. Balboni got ticked off and sent her a text message that said, “You b***h.” He made coarse references to having sex with employees. And when she suffered from knee pain, she says, Mr. Balboni called her “a man” and said she should work anyway.

Then there was her hair, which as a Rastafarian Ms. Feliciano wore in dreadlocks.

Mr. Balboni asked what was “wrong” with it, wondering aloud whether she ever washed, according to Ms. Feliciano. She said he paraded in a dreadlock wig in front of her co-workers, declaring, “I’m a Rastafarian. Watch me because I steal.”

Mr. Balboni also mocked Ms. Feliciano’s Caribbean heritage, she said, referring to her as a “f***ing Jamaican” — even though Ms. Feliciano is an American citizen from the U.S. Virgin Islands.

When she challenged him on his behavior, she said, he claimed to be joking.

The Connecticut Supreme Court saw no humor, however, and said a jury should decide whether AutoZone is liable for sexual harassment.

The court’s decision was a limited win for Ms. Feliciano, who had been fired from AutoZone after a computer flagged her for misusing a customer rewards card. In its opinion, the court said that while Mr. Balboni may have discriminated against her, Ms. Feliciano’s actual firing wasn’t discriminatory — as she had claimed — because Mr. Balboni had nothing to do with it.

Astonishingly, two lower courts had said AutoZone didn’t need to face a jury even for Mr. Balboni’s alleged harassment — holdings that the Supreme Court called improper. Reasonable jurors could conclude, the court said, that the Bloomfield AutoZone was “permeated with discriminatory intimidation, ridicule, and insult.”

» Opinion of Connecticut Supreme Court

 


The Employment Law Group law firm was not involved in Feliciano v. AutoZone, 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.


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About This Site

The Employment Law Group, P.C. produces this site to illustrate the continuing relevance of employee protection laws.

Editor-in-Chief
R. Scott Oswald
Managing Principal
The Employment Law Group

Contributing Writer
Ann Oldenburg

Contributing Editor
Laurence Hooper

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