Author Archive for Jack Sheridan

Judge Rejects MSA’s Motion for a New Trial and Awards Attorney Fees and Costs To Julie Atwood

January 10, 2018
Kennewick, WA

Today Julie Atwood won another victory against MSA and Steve Young, when Superior Court Judge Doug Federspiel denied MSA’s motion for a new trial, and awarded attorney fees and costs to Ms. Atwood.

Mission Support Alliance is three-company venture owned by Leidos, Jacobs and Centerra Group.  MSA had sought to overturn the $8.1 million jury verdict against MSA entered on October 10, 2017 for gender discrimination, wrongful discharge, and retaliation, which included a verdict against MSA Vice President (and Kennewick mayor) Steve Young for aiding and abetting the discrimination and retaliation.

In a detailed 56-page opinion, Judge Federspiel reviewed and rejected each argument raised by MSA against the verdict.  He found that the verdict was supported by substantial evidence presented at trial and that it was not a result of passion or prejudice.  He also awarded extra attorney fees and costs finding that “the [extra] attorneys’ fee incurred by her legal team [are being] awarded by this Court due to the risk of loss to the Sheridan firm had the jury returned a defense verdict, the complex nature of the factual issues, the skill of Atwood’s counsel, and the Court’s desire to encourage other attorneys to take cases such as this one. The relevant factors stated are supported by the record.”

Jack said, “Justice was done.”  “We are thankful that our trial judge took the time to closely examine the law and the facts, and to bring this case to an end.”  He noted that, “rather than treating Julie as required by law, MSA discriminated and retaliated against her, and rather than admitting to what they did, MSA paid Seattle attorneys to defend and deny their actions.  “It took years to bring this case to trial.  Justice may not always be swift, but justice happens all the same.  Julie Atwood is truly vindicated, and MSA and Steve Young have truly been held accountable for their misconduct.”

Click here to see Court’s 56-page opinion

MSA Seeks New Trial, But Provides No New Evidence In Atwood Case

December 21, 2017
Kennewick, WA

Today MSA’s Counsel, Denise Ashbaugh, argued for a new trial in an attempt to overturn the jury’s verdict of $8.1 million in the Atwood v. MSA and Steve Young retaliation, discrimination, and aiding and abetting case.

The Motion for a New Trial did not challenge the retaliation verdict against MSA for violating the Washington Law Against Discrimination, or the retaliation verdict against MSA for violating the common law claim of wrongful discharge in violation of public policy, or the aiding and abetting verdict against MSA Vice President Steve Young for supporting MSA’s retaliation.

In the post-trial motion, MSA claimed that there was not enough evidence to support only the gender discrimination verdict and the aiding and abetting verdict against Steve Young for supporting gender discrimination.  MSA also argued that the verdict was too large.

Jack Sheridan stated that the verdicts were carefully reached by twelve jurors who sat through the entire trial and heard all the evidence.

Jack’s brief to the Court outlined the strong evidence in support of the verdicts and the damage award.  Jack states here, “some companies seriously hurt their workers without a thought about the damage they do, and then they whine when they are held accountable in front of a jury. Don’t shed a tear for MSA or Steve Young.  MSA managers were bullies, they lied to the jury, they were in the wrong, they acted intentionally, and they hurt Julie badly.”  Jack said, “The three companies that make up MSA, each worth billions, will have to pay the damages awarded by the jury to make Julie whole. The damages here are not designed to punish MSA—only to compensate Julie for what they did to her.  To punish MSA, given its wealth, the jury would have had to award hundreds of millions of dollars.  We didn’t ask the jury to do that.

 

Click here to see Atwood response to Motion for a new trial.

Click here to see recent Tri-Cities article on MSA’s argument.

Click here to see the jury’s verdict

Click here to see Trial Exhibit 16

 

Defendant MSA is Really Three Giant Companies: Leidos, Jacobs, and Centerra Group

According to their website, MSA represents the joining of three companies to perform work for the Department of Energy.  Their website describes the companies as follows:

Mission Support Alliance is made up of Leidos, Jacobs and Centerra Group – as well as several partners with specialized Hanford expertise. MSA provides integrated infrastructure services for the Hanford cleanup mission, including, but not limited to: roads and transportation services; electrical and water services; facility maintenance; emergency response (fire and patrol) services; network and software engineering; cyber security and records management; as well as environmental compliance and clean energy solutions.

Mission Support Alliance, LLC

  • Leidos brings a mix of innovative technology and sector expertise to customers in civil, defense, intelligence & homeland security, and health markets. We look for solutions that not only transform businesses, but change the world.
  • Jacobs is one of the world’s largest and most diverse providers of professional technical services. Jacobs has a 40-year history of operating, decommissioning, and closing nuclear facilities and operating bases and command centers for large-scale Department of Defense (DOD) and NASA programs.  We have successfully completed projects at DOE sites such as Fernald, Hanford, Oak Ridge, and Weldon Springs.
  • Centerra Group contractually performs security, law enforcement, operations and maintenance, fire suppression and prevention, facility services management, training, emergency medical services, airfield management, and aircraft operation and maintenance for federal, state and local government agencies.  Centerra Group has more than 50 years of direct experience supporting DOE programs.

 http://msa.hanford.gov/page.cfm/TeamingPartners

Julie Atwood Vindicated—Jury Awards $8.1 Million In Damages For MSA’s Retaliation And Discrimination–MSA VP Steve Young found to have Aided and Abetted

October 10, 2017

Kennewick, WA

Today a jury awarded Julie Atwood damages in the amount of $8.1 million against Hanford contractor Mission Support Alliance (MSA) for retaliation and discrimination.  The jury also found that MSA Vice President and Kennewick Mayor Steve Young aided and abetted in MSA’s wrongful actions.

Ms. Atwood had a thirty-year career working as a manager for the Washington State Department of Ecology and later for private companies involved in waste management. She was an Ecology regulator at Hanford, and had experience working there going back to the days when Hanford was still producing plutonium.  After Ecology, she worked for Hanford, and non-Hanford companies. Her employment track was a record of promotions and increased job responsibilities.  She joined MSA in 2010 as a program manager and was evaluated as a top performer by her MSA managers and her customer, which is the Department of Energy (DOE).

For most of his career, Steve Young worked as a small business owner providing consulting services in a one-person office.  But after he became Mayor of Kennewick, he was recruited by MSA CEO Frank Armijo to be a Vice President reporting directly to Armijo.  For years, MSA billed the DOE for Young’s time based on his working a 40-hour week.  At trial, Young admitted that he worked 16-20 hours a week every week on mayor-related business, and denied that he ever worked less than a 40-hour week for MSA.  However, Young admitted he used his DOE office, his DOE computer, and his DOE email address for mayor business—all during the work day.

At trial, Young testified that being mayor advantaged MSA and DOE:

  • “The biggest return on me being a mayor is the Department of Energy.  I’m able to do what the Department of Energy can’t do because I’m an elected official.”
  • “My job, one of my jobs as mayor, is the ability to go back, meet with the [U.S.] Senate, meet with the House.”
  • “I can actually bump a regular citizen and testify before a committee about an issue because I’m an elected official.”
  • “I use my vacation to go back and lobby — and I’ll use the word lobby — for the local [DOE] offices for the needs that they have to try to get the money they need for the Hanford site.”

Julie was fired three days after she was interviewed by two internal investigators, who reported to MSA vice presidents that Julie had stated that Young had created a hostile work environment, that he treated her differently, and that he used work time to do mayor-related business.  Julie was humiliated by having to bring her belongings from her office to her car during the work day using a wheelchair as a carrier under escort by MSA attorney Steve Cherry.

Jack said, “At trial we contended that Young was so valuable to MSA and to the DOE that when they perceived that Julie has focused a spotlight on him with her report to the investigators, MSA took immediate action to terminate her.”

There was also evidence that under Armijo, women were treated differently, and that men who engaged in improper acts were not fired.  This raised the question: if MSA and Young thought she did something wrong, why was there no counseling, progressive discipline, or use of a performance improvement plan before her termination (there was evidence that Julie was investigated in 2013 without her knowledge). Why did MSA fire Julie, but not fire men who actually engaged in serious misconduct?

The jury found that Julie was fired in retaliation for her statements made to investigators and that her gender was a substantial factor in her termination.  Jack said, “Julie was a model employee and her integrity, and the fact that she is a woman, got her fired.  MSA hurt her and humiliated her, and the jury held MSA accountable.  The system worked.  Hopefully, MSA management will learn from this verdict.”

The jury awarded $2.1 million in lost wages, which is the amount of loss calculated by labor economist Paul Torelli, Ph.D., and $6 million in emotional harm damages, which was supported by the expert testimony of Laura Brown, Ph.D.

Click here to see Tri-City Herald article

Click here to see US News and World Report article

Click here to see the jury’s verdict

Click here to see Steve Young first day testimony

Click here to see Steve Young second day testimony

Click here to see $10,000,000.00 bond posted by MSA to cover costs, fees, and interest on appeal

Formula for Blacklisting at Hanford: have a high-level MSA executive say that Julie Atwood is being investigated for time card fraud; then MSA fires Julie Atwood; MSA leaves the impression Julie was fired for time card fraud, when she was actually fired in retaliation for blowing the whistle on Steve Young.

Click here to see DOE managers’ trial testimony

Doug Shoop

Page 6-7: Shoop recalls MSA COO Dave Ruscitto says someone being investigated for time care fraud, but not sure if it’s Atwood; pages 8: Shoop says Greg Jones is responsible for ensuring contractors comply with time requirements.

Former DOE Manager

Page 16: Manager testifies that Shoop told him heard from Dave Ruscitto that Julie Atwood being investigated; he tells Atwood

Greg Jones

Page 30: Jones is good friends with Steve Young

Page 31: Young and Jones both on Kennewick City Council

Page 32: Jones says didn’t know Atwood being investigated for time card fraud in September 2013

Page 32: Jones says heard Atwood was fired for time card fraud

 

DID YOU KNOW THAT MSA BILLED U.S. DEPARTMENT OF ENERGY  FOR LEGAL FEES AND COSTS THROUGHOUT THIS LITIGATION TOTALING HUNDREDS OF THOUSANDS OF DOLLARS?

A little-known fact is that DOE pays the litigation fees and costs of Hanford contractors who are sued for whistleblower retaliation and discrimination.  Julie Atwood obtained some of the invoices sent to DOE by MSA’s Seattle attorneys through FOIA.  There are more.  How can DOE oversee MSA’s conduct if they are financing MSA’s legal defense?

Click here to see MSA’s law firm billing records to DOE

Click here to see more  attorney fees billed to DOE by MSA.

 

Judge Sanctions Hanford Government Contractor MSA For Hiding Documents In The Atwood v. MSA And Young Discrimination/Whistleblower Lawsuit, which Is Set For Trial On September 11, 2017.

June 20, 2017

Yakima, WA

Today Yakima Superior Court Judge Douglas Federspeil sanctioned Hanford Government Contractor MSA for hiding documents and the existence of a witness who should have been disclosed as a part of the discovery process during the lawsuit. MSA’s former general counsel had reported that former CEO Frank Armijo had treated her with disrespect and paid her and other women below what men were being paid.  She also reported that she was retaliated against, demoted, and forced to resign after she complained.  She ultimately filed a discrimination and retaliation complaint with the EEOC.  Between March 2016 and February 2017, the plaintiff asked for discovery on three separate occasions, which should have caused MSA to produce the EEOC complaint in response, but MSA secretly withheld the EEOC complaint and all related documents while claiming that it had provided all information and documents responsive to the plaintiff’s requests.  The Court found “MSA’s May 23, 2016 discovery answer was ‘misleading,’ as it led plaintiff to believe that all ‘gender discrimination, whistleblower, and/or retaliation complaints, from 2011 to the present’ would be identified by MSA and produced.” Order at ¶80.

During the litigation, plaintiff served the former general counsel with a subpoena, which MSA knew would result in production of the EEOC complaint.  MSA’s counsel attempted to quash the subpoena arguing to the Court that the request was a “was nothing more than a fishing expedition, and raised claims that the content of [the former general counsel’s] document production and testimony would be subject to attorney client privilege.” Order at ¶30. The Court denied the motion, and only then did MSA produce the EEOC complaint to the plaintiff.  Judge Federspeil found that MSA waited to produce the EEOC complaint and the other documents until after learning that the Court would not quash the subpoena. Order at 33.

MSA violated a separate order issued on February 3, 2017, compelling MSA to produce documents “without further delay,” which should have also resulted in production of the EEOC complaint and related documents before the motion to quash was heard.  Order at ¶23.  The Court found that the EEOC complaint and related documents should have been produced in May 2016 and “the lack of disclosure in May 2016 with respect to both the external and internal complaints [by the general counsel and others] reveals either an incompetent investigation (i.e., a lack of a reasonable inquiry), or an intentional withholding of evidence. . . There is simply no reasonable excuse for these omissions, which necessarily call into question the claim that MSA consistently conducted a “reasonable, good faith search for documents.” Order at ¶22.  The Court found, “there can be no question that defendant has stymied plaintiff’s ability to investigate the facts and thereby prejudiced her ability to prepare for trial.” Order at ¶90.

The imposition of sanctions for discovery abuses is mandatory.  Order at ¶73.  As a penalty, the Court ordered that plaintiff can reopen discovery, and the Court ordered MSA to pay plaintiff’s reasonable attorney’s fees and all costs related to the additional discovery caused by MSA’s misconduct, and ordered MSA to certify that it is not withholding any other responsive documents.  Order at ¶¶96-97.  A jury trial is set for September 11, 2017.  Jack Sheridan, Ms. Atwood’s attorney, stated, “We appreciate Judge Federspeil’s attention to this matter, and we look forward to getting the discovery we need so we can get this case to trial in September.”

Click here to see Judge’s Order

DOE Announces Investigation of Busselman Whistleblower Complaint Against Government Contractor Battelle/PNNL

July 13, 2017

Washington, DC

Today the Department of Energy Office of the Inspector General announced that it has initiated an investigation regarding Ms. Busselman’s removal from her position in retaliation for opposing management efforts to change a root cause finding that management lacked policies and procedures to prevent a $530,000 theft at Battelle/PNNL in 2016.

Jack Sheridan, Ms. Busselman’s attorney stated, “We are very pleased that the Inspector General is moving forward with the investigation. The sooner they investigate the sooner Ms. Busselman can be reinstated into her position and policies can be put in place to protect her and her department from improper management pressure to change root cause findings, which they may not like.” “PNNL is supported by taxpayer dollars, and we demand integrity in the operation of our national labs.”

Click here to see DOE/IG letter

Click here to see Tri-City Herald article on DOE/IG investigation

Click here to see King5 News story on DOE/IG investigation

NOTICE TO POTENTIAL WITNESSES: UNLESS YOU ARE CURRENTLY EMPLOYED TOP MANAGEMENT (MEANING YOU SIGN DOCUMENTS AS PART OF YOUR JOB TO LEGALLY BIND THE COMPANY), YOU CAN TALK TO ME.  IF PNNL MANAGEMENT TELLS YOU OTHERWISE, LET ME KNOW.  THE LAW PROTECTS YOU FROM RETALIATION AND FROM BEING CHARGED WITH INSUBORDINATION FOR TALKING TO ME.

CLICK HERE TO SEE SUPREME COURT CASE THAT SAYS WITNESSES CAN BE INTERVIEWED

Director Files Whistleblower Retaliation Complaint With DOE/IG After Being Removed From Job For Opposing Management’s Direction To Change “Root Cause” Finding That Blamed PNNL Management In $530,000 Theft At PNNL

June 21, 2017

Richland, WA

Today Battelle/PNNL Issues Management Director Aleta Busselman filed a complaint with the DOE Inspector General alleging retaliation for opposing management efforts to change a root cause finding that management lacked policies and procedures to prevent a $530,000 theft at PNNL.

Pacific Northwest National Laboratory provides scientific expertise in support of the Department of Energy including the Hanford cleanup.

When mistakes happened at PNNL, it was the job of Aleta Busselman and her team to determine the direct and root cause of the event. The root cause conclusion is made by highly trained experts on her team.  Under policies and procedures guiding their work, a root cause conclusion is not subject to management manipulation.  Management are not trained or qualified to determine a root cause.

On November 9, 2016, a request was made via email to the PNNL Procurement Director to change the bank account for electronic payments going to a subcontractor. The email included the company logo and a new email address.

On December 16, 2016, a subcontractor invoice for approximately $530,000.00 was authorized for payment by Battelle/PNNL personnel, and was electronically paid to a new bank account by the U.S. Treasury Department to a fraudulent requestor, who withdrew the funds from the new bank account within a few days and closed the account.

Ms. Busselman and her team examined the fraudulent payment and determine the root cause.  In a March 2017 report, her team determined the root cause to be that management did not clearly define adequate controls to prevent theft by external criminal entities in the Vendor Management Process.

PNNL management sought to water down the root cause finding to make management look better, because as one manager said to Ms. Busselman, the finding makes management look like we were “asleep at the wheel.”

On March 31, 2017, Ms. Busselman wrote to her boss opposing management’s efforts to change the language of the root cause finding. She wrote, “We do not just let concerned stakeholders manipulate root causes at the end of the process to make us sound better.”  She also wrote, “I am not going to make this team sign a product they can’t stand behind.”  Her boss assured her that she had his support.  She went on vacation, and upon her return she was removed from her position.

The April report changed the language of the root cause finding consistent with management’s wishes.

Ms. Busselman was removed from her job, put in an office with no windows, and given no new job responsibilities.  She complained internally, she filed an employee concern with DOE, she emailed her management asking to be reinstated and that her team be protected, and when no action was taken to fix the problem, she filed this complaint.

Jack Sheridan stated, “It defeats the purpose of a root cause analysis to let lay persons input into root cause findings, but when management seeks to change a root cause finding that points to management’s failures, it’s also a conflict of interest.”

Jack said, “Taxpayers spend almost $1 Billion per year to operate PNNL.  In exchange, we expect operational integrity.  Ms. Busselman has invested 30 years in this company. She loves her job and her company.  She filed this complaint to ensure that PNNL management lives up to her belief that Battelle is an ethical company that works in the public interest, and to ensure that integrity trumps politics at PNNL.”

“Her goal is to have the DOE IG order that she be reinstated and that her team be protected from further efforts to manipulate their findings.”

 

Click here to see Busselman Complaint

Click here to see Sheridan Email to DOE IG re: filing

Click here to see DOE IG email acknowledging receipt of complaint

Click here to see March 2017 Cause Analysis Report

Click here to see April 2017 Cause Analysis Report

Click here to see March email exchange in which Busselman opposes manipulation

Click here to see Tri-City Herald article on Busselman complaint

Click here to see King 5 news story on Busselman

Click here to see Tri-City Herald article on PNNL’s work on Hanford cleanup

Click here to see Busselman resume tracking 30 year career at Battelle/PNNL

Trial Postponed; Hanford Executive Julie Atwood Files Updated Sanctions Motion Against MSA

May 3, 2017
Kennewick, WA

The trial in Ms. Atwood’s discrimination/retaliation case against Hanford Contractor MSA, which was set to begin on May 1, 2017,  was postponed owing to unresolved motions, including a sanctions motion filed in February by Ms. Atwood.  Since the February filing, plaintiff alleges that MSA continued to engage in additional pre-trial misconduct in violation of a court order, including dumping 6,500 documents on plaintiff, which should have been produced in 2016, two weeks before trial.  The latest production includes more documents from MSA’s former general counsel (see below).

The current motion seeks the harshest sanction: entering a default judgment for the plaintiff.  Jack Sheridan, Ms. Atwood’s attorney, stated, “MSA has unlimited resources and unlimited time.  They have no incentive to comply with court orders.  They win by dragging this case out until Ms. Atwood runs out of resources.  The only way to deter MSA and their attorneys from ongoing misconduct is to enter judgment for the plaintiff on liability and proceed to trial on damages.  Otherwise this case, which was filed in 2015, may drag on for another year or more.”

Click here to see Atwood memo re: sanctions

Click here to see Sheridan 2nd Supp Declaration

Click here to see Rose Declaration Part 1

Click here to see Rose Declaration Part 2

Click here to see Morland Declaration

Click here to see Atwood Declaration

Click here to see Atwood proposed findings of fact

 

February 2017

On February 3, 2017, pursuant to plaintiff’s motion to compel production of MSA’s former general counsel’s EEOC complaint and other such documents, Benton County Judge Carrie Runge ordered MSA to produce the documents “without further delay.”  The day before, MSA had filed an emergency motion requesting that the subpoena be stricken. In a sworn statement in support of the motion, MSA’s attorney stated, “I also noted that any claims by [MSA’s former general counsel] against MSA, who voluntarily left MSA over two years after Ms. Atwood’s employment ended, was nothing more than a fishing expedition designed to harass MSA.”

MSA Attorney Denise Ashbaugh’s Declaration re: subpoena of MSA’s former general counsel

MSA’s Motion to Quash Subpoena of MSA’s former general counsel

MSA’s motion was heard by Judge Bruce Spanner on February 7, 2017.   The “fishing expedition” argument was repeated, but Judge Spanner denied MSA’s motion nevertheless.

The next day, MSA produced sixteen pages of documents pursuant to Judge Runge’s order, which included the EEOC complaint filed by MSA’s former general counsel.

Jack said, “In my view, MSA sought to mislead two judges and the plaintiff by making a bad faith argument claiming that plaintiff was on a  “fishing expedition” for irrelevant documents, all the while withholding the very relevant documents in violation of  Judge Runge’s order, which required that they be produced ‘without further delay.'”

Jack said, “MSA did not produce the documents related to MSA’s former general counsel before the hearing with Judge Spanner.  Instead they orchestrated this so I had to make my argument to Judge Spanner against quashing the subpoena without being able to show Judge Spanner the EEOC complaint and other documents, which would have clearly shown that this was not a fishing expedition.  This misleading behavior by MSA violates the Civil rules and justifies sanctions.”

The deposition of MSA’s former general counsel went forward on February 10, 2017.  At the deposition, Jack learned that:

  • MSA’s former general counsel was hired as MSA’s general counsel by then CEO Frank Figueroa, who treated her as a colleague and with respect.
  • When Frank Armijo replaced Figueroa, Armijo took away many of her duties, and at a meeting, in front of other executives, told her to “You need to shut up.”   Armijo did not treat men this way.
  • Over time, MSA’s former general counsel complained to MSA’s Board “how Frank Armijo, Dave Ruscitto, Todd Beyers, and later Stan Bensussen, had unlawfully treated me.”  The Board took no action.
  • She was demoted by Armijo, but without losing salary, and was replaced by Stan Bensussen, who had been doing contract work MSA before being hired as general counsel.  She testified that Bensussen called her a “man hater,” and told her that day he said, “You should kiss the ground they walk on that you still have a job.”
  • MSA’s former general counsel testified that she was not paid comparably as compared to MSA men, and that she was driven out.

Much of this is summarized in her response to the EEOC, which is Exhibit 6 to the Sheridan Dec.

Click here to see Exhibit 6

Click here to see ATWOOD Amended Motion for Contempt

Click here to see Sheridan first declaration in support of Motion for Contempt

Click here to see Sheridan second declaration in support of motion

The plaintiff seeks additional discovery, attorney fees and costs, and the imposition of a penalty.  Judge Runge will hear the plaintiff’s motion for contempt and sanction at 8:30 on April 14, 2017.

The defendant had sought to have Judge Runge reconsider her order compelling MSA to produce documents.  That motion was denied.

Click here to see order denying MSA’s motion for reconsideration.

 

 

 

Johnson v. City of Seattle–Plaintiffs File Appellate Brief Alleging Errors by Judge Parisien

May 19, 2017

Today, plaintiffs filed a brief with the Court of Appeals outlining alleged errors committed by Trial Court Judge, the Honorable Suzanne Parisien, which justify a new trial. Jack said, “In this appeal, we are hoping to change the way trials are conducted in Washington, because Washington trial courts currently ignore the impacts of implicit bias (the tendency to automatically favor one race over another), even though many federal and state courts have addressed the issue in jury selection and in the conduct of the litigation.  We need to catch up.  We also need to ensure that juries are diverse. This appeal, if successful, with go a long way to obtaining those goals and to ensuring equal justice in Washington.”

Click here to see a copy of the brief.

Black Civil Rights Matter—Washington Courts Need To Instruct Juries That Implicit Bias Is Real And Has To Be Considered In Jury Deliberations And That Management’s Lies At Trial May Be Evidence Of Discrimination

Implicit Bias Jury Instruction

As a general rule, in whistleblower and discrimination cases involving white plaintiffs brought by the Sheridan Law Firm, Jack has observed that the plaintiff’s credibility has been on an equal footing with white managers who testify at trial, but in cases involving black plaintiffs, Jack has seen mostly white Washington juries ignore and explain away the lies told by white managers in open court, and magnify minor inconsistencies in the testimonies of the black plaintiffs—concluding that the black plaintiffs are not credible or are at least less credible than their white managers—regardless of the level of contradictory testimony by the white managers. This is implicit bias, and Washington attorneys need to address it with jury instructions that link management’s lies to discrimination and admonish juries to reflect on their automatic tendencies to believe or disbelieve a witness owing to race. Washington courts need to address it by instructing juries on the dangers of implicit bias in deliberations, and by finding ways to make juries more diverse.

In a criminal case, the Washington State Supreme Court recognized the need for diverse juries:

  • From a practical standpoint, studies suggest that compared to diverse juries, all-white juries tend to spend less time deliberating, make more errors, and consider fewer perspectives. Equal Justice Initiative Report. In contrast, diverse juries were significantly more able to assess reliability and credibility, avoid presumptions of guilt, and fairly judge a criminally accused. “By every deliberation measure, … heterogeneous groups outperformed homogeneous groups.” These studies confirm what seems obvious from reflection: more diverse juries result in fairer trials.

State v. Saintcalle, 178 Wn.2d 34, 50, 309 P.3d 326 (2013).

On the issue of implicit bias in the workplace, renowned University of Washington Psychologist Anthony G. Greenwald, Ph.D. has opined that, “There is now little doubt that implicit bias, in the form of unconscious attitudes and stereotypes, is a cause of discrimination.” He has found:

  • Implicit biases are pervasive and are often observed in more than 70% of Americans, most of whom genuinely and sincerely regard themselves as lacking in biases. Research using IAT measures finds that persons are often unaware of discrepancies between (on the one hand) their explicitly expressed—and often genuinely endorsed—egalitarian beliefs and attitudes and (on the other hand) the implicit stereotypes and attitudes that are revealed by their IAT measures. Research studies consistently find that a majority of persons who display implicitly biased associations on Implicit Association Test (IAT) measures are unaware of possessing those biases.

Click here to see example of federal case supporting Dr. Greenwald’s expert testimony under tougher federal standard for admitting such testimony (Samaha v. Washington State Dept. of Transportation (West))

Implicit bias also exists on jury panels, so in 2016, the American Bar Association adopted “Principles for Juries and Jury Trials,” which recognizes the implications of implicit bias in the deliberations of juries and recommended the following remedial practices:

The court should:

  1. Instruct the jury on implicit bias and how such bias may impact the decision-making process without the juror being aware of it; and
  1. Encourage the jurors to resist making decisions based on personal likes or dislikes or gut feelings that may be based on attitudes toward race, national origin, gender, age, religious belief, income, occupation, disability, marital status, sexual orientation, gender identity, or gender expression.

ABA Principle Six. “The American Bar Association recognizes the legal community’s ongoing need to refine and improve jury practice so that the right to jury trial is preserved and juror participation enhanced.”

Washington judges are ignoring the ABA’s recommendations—Washington judges do not presently require or give implicit bias jury instructions. Jurors need such instructions to check themselves and other jurors to ensure that they are not making credibility and trustworthiness decisions based on automatic views of parties and witnesses.

Click here to see ABA Principles for Juries and Jury Trials

Click here to see Dr. Greenwald’s report in Johnson v. City of Seattle

In post-verdict interviews of jurors by Jack, some non-black jurors explained away the lies told by white managers with phrases like, “we thought they just didn’t remember.”  In one case, a juror said that, had the plaintiffs had other witnesses to support their position, the seven plaintiffs would have seemed more believable (six African Americans and one Asian American).  Had the plaintiffs all been white, would this view have been articulated? Jack suggests that implicit bias instructions should be given in every case, because the court cannot know when a juror is using automatic responses to evaluate persons who are different.

Pretext Jury Instruction

The Sheridan Law Firm recently brought three discrimination cases to trial in King County (Seattle) representing black employees as plaintiffs.  In each case, there was solid testimony showing that managers lied about key facts and failed to follow procedures.  In each case, Jack asked the court for a jury instruction, which is given in other jurisdictions, to instruct the jury on pretext:

  • You may find that the plaintiff’s [race or other protected status] was a substantial factor in the defendant’s decision to terminate the plaintiff if it has been proved that the defendant’s stated reasons for the decision are not the real reasons, but a pretext to hide discrimination.

This is a critical instruction to show the jury that lying matters, and that proving that the defendant lied about the reason for doing what it did (termination, suspension, demotion) is evidence of discrimination. Jack stated, “without a pretext jury instruction to connect the dots, the long list of lies proves nothing more than the managers are liars.  The pretext instruction would have connected the dots in each case.”  This jury instruction would also benefit white plaintiffs who bring gender, age, sexual preference, military service, and disability discrimination cases, because they also have to prove that discrimination was a substantial factor in an adverse employment action (like termination), and in most cases must rely on evidence of pretext as circumstantial evidence of discrimination.

Monroe v. City of Seattle

This case involves an African American plaintiff claiming disability discrimination.  The mostly white and Asian American jury deliberated only 2 hours, and according to the sworn statement of the one black juror, did not review trial exhibits before reaching a decision against the plaintiff.  The trial judge refused to give either an implicit bias or pretext jury instruction. Oral argument on Ms. Monroe’s motion for a new trial will be heard on January 27, 2017, at 9:00 a.m. in the Honorable John Erlick’s courtroom (10th floor, room W-1060). The courthouse address is:

King County Superior Court
Third and James
516 Third Avenue
Seattle, WA 98104

Click here to see trial brief in Monroe v. City of Seattle

Click here to see Monroe v. City of Seattle motion for a new trial

Click here to see Exhibits 1-26 in Monroe v. City of Seattle

Click here to see Juror Declaration in Monroe v. City of Seattle

Click here to read Caucasian Manager Jensen’s trial testimony in Monroe v. City of Seattle

Trial Ex. 5 (procedures for fitness for duty)

Trial Ex. 71 (employee acknowledgement-form)

Trial Ex.-102 (observation form)

Trial Ex. 108 (email)

Trial Ex. 328 (Jensen notes )

Trial Ex. 332 (Jenson timeline)

Click here to read Jensen’s contradictory sworn statement (compare par. 15 to pages 107-110 of Jensen trial transcript; then look at pages 111-112 in which Seattle City Attorney offers to take blame for contradictory testimony by Jensen)

Farah v. Hertz Transporting, Inc

This is a religious discrimination case involving twenty-six Muslim African Americans, who are Somali refugees.  They were fired for praying at work without clocking out—after being permitted to do so for a decade before a new white manager took over—while smokers and others did not have to clock out for breaks.  The trial judge refused to give a pretext instruction.  The Court of Appeals explored the pretext jury instruction, and although the court recognized that it is an accurate statement of the law, the Court ruled that it need not be given.  The Court held, “While the instruction might be appropriate, the arguments in its favor are not compelling enough to hold that it is an abuse of discretion to refuse to give the instruction.” Farah v. Hertz Transporting, Inc., 196 Wn. App. 171, 383 P.3d 552, 558 (2016).

The Sheridan Law Firm has petitioned the Washington State Supreme Court in Farah, asking those nine justices to weigh in and make this instruction mandatory, as it is in a number of federal courts.

Click here to see Supreme Court petition in Farah v. Hertz Transporting

Click here to see Court of Appeals decision Farah v. Hertz Transporting (West)

Click here to see Washington Employment Lawyer’s Association friend of the court brief

Johnson v. City of Seattle

This is a race discrimination case involving seven plaintiffs: six are African American and one is Asian American.  The trial judge refused to give the implicit bias instructions proposed by plaintiffs, refused to allow Dr. Anthony Greenwald to testify about implicit bias in the workplace, and refused to give the pretext instruction.  The case is currently on appeal.

Jack noted, “Our jury had no African Americans on the panel (although three jurors were not Caucasian), which meant that the jury lacked the possibility (not guarantee) of having a perspective of the African American experience.  I asked the court to strike the jury pool and bring in a pool that had African Americans, but the Court denied my request.”

Jack notes there are experiences unique to African Americans, which Caucasians do not experience.  For example, there is a phrase called driving while black, which was explained in the Supreme Court case of State v. Valentine in a dissent by former Justice Sanders:

  • Young African American males frequently report being stopped and detained for reasons that are superficially pretextual. Even affluent people of color, who drive expensive or late-model cars, often report being stopped by law enforcement officers because of their race. This practice has become so prevalent that the actual justification for such detentions has become widely known as “Driving While black (D.W.B.).”

State v. Valentine, 132 Wn.2d 1, 28 n.1, 935 P.2d 1294, 1308 (1997) (Sanders dissent) (majority held that in Washington, a person cannot resist an illegal arrest).  Jack noted that “a Caucasian cannot have experienced the driving while black phenomenon, which is one of those life experiences that affects how one connects the dots when given certain facts, and in evaluating this case, the jury lacked the life experiences needed to give this case fair consideration—they could not connect the dots as to why the plaintiffs’ mistreatment related to race.”

Click here to see Motion for New Trial in Johnson v. City of Seattle

081516 Johnson Trial Transcript morning session (picking jury)

081516 Johnson Trial Transcript afternoon session (picking jury)

081616 Johnson Trial Transcript morning session (picking jury)

081616 Trial Transcript afternoon session (picking jury)

WHAT CAN YOU DO TO ENSURE THAT BLACK CIVIL RIGHTS MATTER IN WASHINGTON?

State Court judges are elected by the people at every level.  They campaign for election and reelection.  Attend forums where the candidates speak and ask:

  • What will you do to ensure that juries are diverse, since our Supreme Court recognizes that diverse juries do a better job?
  • Will you adopt the American Bar Association’s recommendation on instructing juries about implicit bias and if not, why not?

That’s a good start.  Dialogue is the first step toward change.  The Sheridan Law Firm and other law firms throughout the State that focus on civil rights will continue to bring these issues to the attention of trial judges and judges at the appellate level until our judiciary recognizes that black civil rights matter, and until they do something about it.

Click here to see ABA Principles for Juries and Jury Trials

Click here for a copy of State-v-Saintcalle (West)

Click here for copy of State v. Valentine (West)

Judge Awards Seattle City Light Whistleblower Aaron Swanson Over $100K in attorney Fees and Costs

April 21, 2017

Today Administrative Law Judge Lisa Dublin ordered the City of Seattle to pay Aaron Swanson over $100,000 in attorney fees and costs in connection with his whistleblower retaliation win in his case against the City.  The facts supporting the decision are outlined in the Court of Appeals opinion (see below).  Jack Sheridan, Aaron’s attorney, stated, “Aaron is very pleased that justice was finally done, and that the City was held accountable.”

Click here to see Court’s Findings re: attorney fees and costs

Click here to see Swanson Signed Attorney Fee Judgment Against City of Seattle

May 9, 2016

Today, the Court of Appeals reinstated the decision of the administrative law judge holding that Aaron Swanson was subjected to years of whistleblower retaliation after he reported that Lineworker Instructor Ron Allen had arbitrarily created and administered a test as a part of the lineworker apprenticeship process—a test no one could pass—then agreed to pass the apprentices if they brought him whiskey.  Every apprentice brought whiskey to class except for Aaron.  Ron Allen happened to be the nephew of the union’s business manager, and Aaron was shunned and harassed by crew chiefs while City Light management ignored his complaints.  The administrative law judge found in Aaron’s favor but the Superior Court overturned his victory.  The Court of Appeals agreed with the ALJ finding that the City’s former whistleblower ordinance was inadequate, and that under the State statute (RCW 42.41), Aaron produced substantial evidence to support his claim.  Open the Champaign!

Click here to see Court of Appeals decision

Click her to see the 2013 ALJ’s decision

Ferry Whistleblower Settles Lawsuit Against the State For $700,000.

Tacoma, WA

July 6, 2016

Today the State agreed to pay Don Gillespie $700,000 to settle his whistleblower retaliation lawsuit against the Washington State Ferries. Gillespie is a Shipwright Foreman for the Ferries. He works at the Eagle Harbor Division on Bainbridge Island.

According to papers filed in the case, in 2015, ferry worker Steve Chaussee was awarded $1 million by a Thurston County jury for whistleblower retaliation by ferry management, who perceived Chaussee to be the whistleblower who reported another worker’s charging his time for being at work while he was really away from work coaching baseball. Chaussee was demoted twice as a result, but he was not the actual whistleblower.

Don Gillespie was the actual whistleblower. After he and Chaussee had reported the improper conduct to management without any action being taken, Gillespie hired a third party to take pictures of Ferry Worker Jack Nannery coaching instead of working. Gillespie drafted a handwritten whistleblower complaint, and he and the third party brought the photos and complaint to a meeting with an investigator at the State Auditor’s office, who formally received the complaint and the photos.

The investigator promised them that no one would learn their identities. Under the law, “the identity or identifying characteristics of any person who in good faith provides information in an investigation under this section is confidential at all times, unless the person consents to disclosure by written waiver or by acknowledging his or her identity as a witness who provides information in an investigation.” RCW 42.40.040(2).

In 2009, the State Auditor released Gillespie’s whistleblower complaint to the Ferry’s managers, and it circulated from one manager to the next. At the Chaussee trial, his managers admitted that they could tell from the handwriting that Gillespie was in fact the real whistleblower, but no one in management returned the complaint to the auditor, or made an effort to tell Gillespie that they knew he was the whistleblower. After that, Gillespie alleged he was subjected to a hostile work environment and ongoing retaliation, but he didn’t know why until February 2015, when Vern Day, the Shop Manager, submitted a sworn statement in court saying that he recognized the handwriting. In a later sworn deposition, he admitted to knowing that Gillespie wrote the complaint.

Jack Sheridan, the attorney representing Gillespie said, “We are very pleased that the State came to the table to resolve this case now. This case reveals a significant security breach at the State Auditor’s Office, which calls into question whether the identities of state whistleblowers who report fraud, waste, and abuse will be protected by the very department entrusted to investigate that abuse. We all hope that the actions that led to release of the Gillespie complaint will not be repeated.”

The case was set for trial in February 2017.

Click here to see King5 news story

Click here to see Gillespie complaint

Click here to see Gillespie Tort Claim

Click here to See Vern Day Declaration saying recognized handwriting

Click here to see Chaussee Verdict Form

Click here to see Chaussee Trial Brief