Today Superior Court Judge the Honorable John Lohrmann signed a stipulated judgment awarding Linda Robb $965,100.75 in attorney fees and costs in her wrongful discharge case against Benton and Franklin Counties. This is in addition to the $1.56 million jury award she received from the jury in January. Jack Sheridan said, “by agreeing to our hourly rates and hours worked on this case, the Counties saved themselves thousands of dollars that would have been incurred by the Sheridan Law Firm (and thus paid by the defendants) in any motion practice related to plaintiff’s petition for attorney fees and costs, which are awarded by law in cases like this. Ms. Robb is pleased that she can now put all of this behind her and move on with her life.”
Today, Julie Atwood responded to MSA and Steve Young’s opening brief on appeal at Division 3 of the Washington State Court of Appeals. In her brief, Ms. Atwood outlined the mountain of facts supporting the jury’s $8.1 million verdict in October 2018. Ms. Atwood observed that MSA and Young “chose not to appeal any of those meaty issues [that one typically expects to see in a valid appeal of a jury’s verdict when error was committed during the trial], because [those issues] were correctly and thoughtfully decided by the jury and a hard-working, diligent, and intelligent trial judge [the Honorable Douglas Federspiel], whose well-reasoned written rulings make the case iron clad on appeal. What’s left for MSA and Young to appeal are mainly evidentiary objections.”
MSA and Young get to file a reply brief in 30 days and Ms. Atwood has asked that oral argument be expedited. The date of oral argument will be set later this month.
On February 8, 2019, the U.S. Department of Justice filed a federal lawsuit against MSA and former CEO Jorge Armijo alleging that MSA and Armijo knowingly made false statements to the Department of Energy about their profits and inflated their rates in violation of the False Claims Act. The lawsuit also alleges that Armijo and other MSA executives were paid more than $1 million by a subcontractor in violation of the Anti-Kickback Act. The U.S. Attorney stated, “Fraud, corruption, and self-dealing at Hanford will simply not be tolerated.”
Jack Sheridan said, “we understand that MSA was seeking to rebid the DOE contract at Hanford. The combination of Ms. Atwood’s jury verdict and the DOJ’s lawsuit may disqualify MSA as a competitive applicant on the rebid, which would demonstrate the importance of the judicial branch in regulating improper behavior by big businesses, and in ensuring that the People’s money is properly and honestly spent to benefit the People.”
Today Trooper Ryan Santhuff filed a lawsuit in King County Superior Court against Washington State and Lieutenant David Nobach, the Chief Pilot assigned to the Washington State Patrol’s Aviation Section. Trooper Santhuff alleges in the lawsuit that he was forced to resign from the WSP Aviation Section after he reported misconduct by Lt. Nobach, which included Lt. Nobach’s ordering the destruction of emails to prevent their production under the State’s Public Records Act which was ordered by Lt. Nobach, sexual misconduct involving Lt. Nobach, and Lt. Nobach’s refusal to fly the governor during a budget dispute on a false claim that the airplane was “down for maintenance.”
Trooper Santhuff alleges that after he reported Lt. Nobach’s misconduct, his chain of command whitewashed the misconduct and failed to prevent Nobach’s ongoing retaliation against Santhuff.
Jack Sheridan, his attorney, states that, “this lawsuit seeks damages, which will include judicial oversight of the State Patrol to force accountability and to create and implement systems to encourage state employees working in aviation to come forward to report improper governmental actions and to protect those employees from retaliation.” A jury trial is set for 2020.
Today a twelve-member Walla Walla jury awarded Linda Robb, the former Human Services Administrator for the Benton and Franklin Counties Department of Human Services, $1,561,320 in damages for whistleblower retaliation.
The evidence produced at trial showed that through the winter of 2014, Benton County Commissioner Shon Small was in talks with Barbara Mead, the then head of Lourdes, about giving the Crisis Response Unit (CRU) to Lourdes. At the time, the CRU was a county department under Human Services, that provided assistance to persons in need of mental health services, and made referrals to inpatient facilities for those who need that level of care. Ms. Robb, as head of Human Services, was in charge of the CRU and was responsible for guiding its future. Commissioner Small kept those discussions with Ms. Mead from Ms. Robb, and ordered her subordinates and the Benton County administration to not tell Ms. Robb what he was doing.
In March, 2015, Ms. Robb learned from two subordinates that Small was working to give the CRU to Lourdes. Upon learning this, she gave two presentations to the Commissioners and another to the public outlining the potential for a conflict of interest if the same company that has the CRU also has the inpatient beds. The risk would be that the company would funnel patients, not for medical reasons, from the CRU to fill empty inpatient beds.
At trial, Mr. Robb testified that from that point forward, Small retaliated against her. At one point Small said to her:
“you don’t need to explain anything to me… as far as I am concerned you are a pathetic liar and human being and I will never trust anything you say. You are a miserable liar and person and I do not want to ever see or listen to you again.”
Small then bragged about his statement to the other commissioners and to Ms. Mead (in an email).
Ms. Robb reported Small’s conduct to Janet Taylor, who was the Franklin County Human Resources Director at the time. She began a hostile work environment investigation focused on Small. At trial, plaintiff argued that once Benton County found out about the Taylor investigation they worked to fire Ms. Robb. She was sent home on administrative leave and then fired. Both actions were covered in the local media. No investigation into Small’s conduct was ever completed. Ms. Taylor was removed from her position by the Franklin County Board before she could complete the investigation. Ms. Taylor testified that she was told that she was removed because Benton County wanted her removed. When Ms. Robb was terminated and Ms. Taylor was removed from her position, Ms. Taylor testified that she gave Franklin County Prosecutor Shawn Sant 600 pages of documents and a timeline (as an electronic file) outlining the facts related to the Robb harassment complaint against Small and in rebuttal to Benton County’s decision to terminate Ms. Robb. Mr. Sant testified that he never got it. The 600-page document was never used to complete the investigation into Small’s alleged misconduct. The document was produced by Franklin County during the litigation and was admitted as an exhibit at trial.
Ms. Robb testified that she brought her concerns about Small to Benton County Commissioner Beaver, who initially suggested that Small, who was the Benton County Commissioner assigned to oversee Human Services, could be reassigned to another task to solve the problem, but he quickly withdrew that suggestion in an email. Beaver voted to send Ms. Robb on administrative leave for alleged “misconducts,” which were never identified, and he also voted for Ms. Robb’s termination.
Benton County Commissioner Delvin also voted to send Ms. Robb on administrative leave for alleged “misconducts,” and he also voted for Ms. Robb’s termination. Delvin became the Commissioners’ spokesperson in newspaper articles that covered Ms. Robb’s being sent on administrative leave and covered her termination. Ms. Robb and Commissioner Delvin were named in both articles.
Franklin County Commissioners Koch and Miller voted in favor of Ms. Robb’s termination (they were not consulted by Benton County regarding sending Ms. Robb on administrative leave). Only Commissioner Peck voted against her termination.
Jack Sheridan, the attorney representing Ms. Robb said, “Justice was done. This case revealed the terrible reality that the county commissioners are not accountable for their actions. Small can say or do anything to the Benton County staff and can have them terminated on a whim, but unlike a corporate executive, he can’t be fired. He can’t be counseled, and he can’t be suspended.” “Ms. Robb’s staff betrayed her because Small told them to do so, and because they feared for their jobs.”
He said, “Linda Robb has been vindicated. The courthouse and the ballot box are the only two places the People can hold these commissioners accountable.”
Today the Court of Appeals granted MSA’s and Steve Young’s request for an extra sixty-days to file their opening brief in their appeal of Julie Atwood’s $8.1 million verdict against them for retaliation and discrimination. Their notices of appeal take a shotgun approach claiming that virtually every ruling by the trial court was in error. Jack Sheridan said, “a shotgun approach often means that the defendants have no valid appeal; otherwise, they would target one or two real errors. We see no errors in the record and we are looking forward to seeing their brief.”
Every day of delay comes with interest on the verdict and on the attorney fee judgment, which could easily bring the total judgments with interest (and attorney fees on appeal) to over $10 million dollars. To delay Ms. Atwood’s ability to collect the judgment amounts immediately, MSA had to post a bond, which was initially found to be deficient, and was increased to $10,437.862.17 by court order.
Jack said, “now their brief is due just before Christmas, so we will have to ask for an extension ourselves owing to the holidays and another trial I have in January. We are still hoping to have oral argument in the spring of 2019.”
Today 81-year-old Abdikarim Karrani filed a federal lawsuit in Seattle for violation of his civil rights owing to his mistreatment on a January 2018 JetBlue flight from JFK to Seattle, which made an unscheduled landing in Billings Montana after another passenger became ill. In the air, a flight attendant pushed Mr. Karrani as he stood in front of a restroom door, and upon landing had him removed by police.
Today a federal judge GRANTED Manager Aleta Busselman’s motion to exclude from the lawsuit a rushed and poorly prepared investigative report that was created by DOE/IG after this lawsuit was filed in federal court—after DOE/IG lost its authority to issue the report. Battelle/PNNL opposed the motion and argued that the late report should be admitted at trial. The judge disagreed.
In granting plaintiff’s motion to exclude the late-created report, the Honorable Salvador Mendoza, Jr. held:
Here, the Inspector General issued its adverse investigative report on July 5, 2018, which was (1) more than 210 days after receiving plaintiff’s administrative complaint on June 21, 2017; (2) more than thirty days after the March 28, 2018 extended deadline that plaintiff agreed to; (3) sixty-nine days after plaintiff was deemed to have exhausted administrative remedies; and (4) three days after plaintiff filed this de novo action in this Court on July 2, 2018. Therefore, the Inspector General report does not deny relief. . . . Consequently, the Inspector General report is not admissible in this de novo action under the NDAA (the contractor whistleblower law). The Court accordingly excludes the Inspector General report from evidence in this case.
Jack Sheridan said, “the Court’s ruling makes perfect sense. The DOE/IG did nothing for almost a year, and after Ms. Busselman filed in federal court and they lost jurisdiction, for reasons known only to them, they sent out a late, rushed, and incomplete report that reflected an incomplete investigation–one that simply took whatever PNNL managers said as true without further investigation and without seeking further evidence that would have contradicted those managers.”
On August 3, 2018,The DOE Office of Hearings and Appeals took the same position as Judge Mendoza finding that the DOE/IG report would not be considered by the Office because in other whistleblower cases brought under other whistleblower laws:
DOL’s Administrative Review Board has repeatedly dismissed complaints for lack of subject matter jurisdiction once the statutory deadline for agency action has run and a complainant files a de novo claim in U.S. district court on the basis of exhaustion of administrative remedies.
. . . .
The parties have identified no compelling rationale for departing from the sound practice of DOL under Sarbanes-Oxley, and we decline to do so here.
This amounts to two wins in a row for Ms. Busselman against Battelle/PNNL. Jack said, “we look forward to bringing this case in front of a jury so that PNNL and its managers can be held accountable for their actions.” No trial date has been set.
Whistleblower Aleta Busselman Wins First Round in federal lawsuit Against Battelle/PNNL for Whistleblower Retaliation
October 10, 2018
Today a federal judge denied Battelle/PNNL’s motion to dismiss PNNL Manager Aleta Busselman’s whistlelblower retaliation lawsuit. The Court found
Here, Plaintiff objected to Defendant changing or manipulating the root cause finding—the official determination of how and why Defendant lost over half a million dollars to a fraudulent entity—in a report that the energy department would rely upon in determining what to do in response. Plaintiff expressed her belief that Defendant’s actions were prohibited. She mentioned the internal policy, which Plaintiff designed and implemented to comply with Defendant’s contract and governing regulations. But it is not reasonable to infer her concerns were limited to the internal policy. After all, it was known even in the absence of a formal written policy that management was prohibited from changing a root cause finding. A disinterested observer with knowledge of the essential facts would reasonably conclude Defendant’s actions evidenced gross mismanagement of, or an abuse of authority relating to, a federal contract, as well as a violation of regulations governing that contract. By inference, Plaintiff held the requisite reasonable belief. The NDAA therefore protects her objection.
First Row (left to right): Carmelia Davis-Raines, Luisa Johnson, Toni Williamson, Cheryl Muskelly
Second row: Pauline Robinson, Elaine Seay-Davis, (Lynda Jones not present)
July 6, 2018
Johnson et.al. v. City of Seattle
Today one Asian American and six African-American former employees at SPU filed a petition with the Washington State Supreme Court asking the justices to grant them a new trial because the jury panel for their race and age discrimination trial lacked racial and economic diversity. At trial in the King County Superior Court, the plaintiffs objected to the venire (the juror pool) and asked the Honorable Suzanne Parisien to dismiss that venire and bring in another panel of potential jurors that contained some black persons. Judge Parisien denied the request. They also asked Judge Parisien to reconstitute the venire because after Judge Parisien granted requests for hardship dismissals based on financial concerns of lower wage earners whose employers would not pay them to sit on the jury for three weeks, those not dismissed constituted an elite cross-section of the citizenry, including non-working retirees and persons who worked for big companies in higher paying salaried jobs who would be paid through a three-week trial. The plaintiffs argued that Judge Parisien should create a trial schedule which may permit more economic diversity in the panel, such as holding court fewer days in a work week. Judge Parisien denied that request as well. The petitioners consider these rulings to be denials of their constitutional rights to equal protection and to a jury trial.
As to the economic diversity issue, if review is granted by the Supreme Court, petitioners will suggest possible solutions include paying jurors at least the minimum wage to enable low-income workers to be jurors, or to have court fewer days each week so hourly workers can still work and earn a living wage. Jack Sheridan said, “we have to find a way to allow all citizens, regardless of their income levels, the right to participate in jury service. It’s the only time that the average citizen has a chance to fight back against abuses by big companies and big government, and we have to make sure that the jury is a jury of our peers. We can’t let the right to a fair trial be diluted.”
As to the racial diversity issue, the petitioners rely on the results of the 2016 juror survey done for the courts showing that white jurors in King County are systematically “overrepresented” in the juror pool, while black jurors are systematically “underrepresented.” See petition at A-50. Supreme Court Justice Wiggins has written that in the criminal context, studies suggest that when comparing a diverse jury to an all-white jury:
All-white jurors tend to spend less time deliberating, make more errors and consider fewer perspectives. . . . In contrast, diverse juries were significantly more able to access reliability and credibility and avoid presumptions of guilt and fairly judge criminally accused in a criminal case. By every deliberation measure heterogenous groups outperformed homogenous groups. These studies seem to confirm what seems obvious from reflection: A more diverse group of juries has a result of fairer trials.
Jack said, “What good is the right to a jury trial if the deck is stacked against you at the start, and the deck is stacked against black plaintiffs in King County and in most counties in the state. The Supreme Court needs to step in and create rules to ensure the juror pool is diverse racially and economically.”
Today, Cita Monroe filed a petition for review with the State Supreme Court. This is from the introduction of the Supreme Court Petition. See if you feel differently about your own views after reading this. We all have implicit bias, and these two petitions seek to address that issue head on, and other important issues so that black plaintiffs can get a fair trial.
At the recommendation of a City retained doctor, a disabled white woman with a documented history of anxiety and depression, was transferred from one City of Seattle department to another as an accommodation, because the City’s doctor opined that in her then current assignment, “her increase in anxiety and depression symptoms would limit her ability to adequately concentrate, withstand day-to-day usual work stresses and interact appropriately with supervisors and coworkers.” So the disabled white woman was transferred to the City’s Department of Transportation, and was assigned to work under the supervision of a six foot two, 305-pound black male supervisor with a history of aggressive behavior at work.
One day her black supervisor cornered the disabled white woman in a women’s restroom at work. He stood outside the restroom door pounding with his fist and yelling for her to get out. He wanted her to take a fitness for duty exam off site, and she said she would go, but she wanted her sister, also an employee, to accompany her, because the disabled white woman was afraid to be alone with this large, black man. Her anxiety peeked in the women’s restroom; she had soiled herself in fear; she called her shop steward from inside the restroom. Through the telephone, the white shop steward heard the yelling and banging, and after the disabled white woman handed the black manager the phone through a partially opened restroom door, she proposed having a third party join them. The black manager yelled at the shop steward saying, “It’s too late” [for the disabled white woman to get the fitness for duty exam now]. The disabled white woman left the workplace after her security badge was taken.
The disabled white woman was then terminated for leaving her work place and for refusing the fitness for duty exam despite testimony to the contrary.
The facts stated above describe the case of the petitioner with one vital exception—PetitionerAloncita Monroe is not white; she is black.
Many white readers of these paragraphs may have been horrified and outraged by the black manager’s treatment of the disabled white woman in the workplace. Yet for reasons they may not be able to explain, they may find that the effect of knowing now that the female employee is actually black, has somewhat diminished the outrage and horror felt in hearing the facts. This is the nature of implicit bias: bias held by all of us including by the jury, the judge, and all persons present at trial.
In recent history, in some states, lesser conduct by a black man, if directed against a white woman, could have led to a lynching. In those same states, this author knows of no instance in which the same alleged conduct by a black or white man against a black woman, ever led to a lynching. It may be that white society discounts the significance of violence against black women.
A means of fighting against such bias in the courtroom is through the use of an implicit bias jury instruction. The petitioner proposed two, but the Respondent City of Seattle vehemently objected to their use, and the Honorable John Erlick agreed with the respondent. He also excluded a pretext instruction proposed by the petitioner, a continuing duty to accommodate instruction proposed by the petitioner, and included an essential functions element in the disability discrimination instruction even though the trial court admitted its inclusion made little sense and was confusing.
During deliberations, Mr. Willie J. Neal, Jr., the only black juror out of the twelve deliberating jurors, left the deliberations to visit the restroom. Judge Erlick had cautioned the jury not to deliberate unless everyone was in the room. At the time of his departure, he and two white jurors had voted in favor of plaintiff’s failure to accommodate claim. While in the restroom, he could hear talking. When he came out, without further discussion, a new vote was taken, and without explanation or discussion, one of the two white jurors changed her vote now voting against liability. Immediately, the Asian American foreperson pressed the button to summon the clerk and to present their decision. The jury was polled and confirmed a 10-2 verdict for the City on the failure to accommodate claim and 11-1 verdicts on the other claims. Two days later, Mr. Neal completed a sworn statement outlining these troubling facts. He concluded that improper deliberations occurred while he was in the restroom. CP 972-74 (Appendix at 1-3).
The Neal Declaration became the focus of plaintiff’s motion for a new trial, but the uncontradicted sworn statement by Mr. Neal, the only black juror, was not enough to overturn the verdict. The City submitted no contradictory evidence from any other juror or any other source. Judge Erlick denied the motion and asked, “How do we know that it wasn’t the African American juror’s implicit bias towards your client?” See RP (1/27 Albino) 17 (emphasis added). The following exchange followed:
SHERIDAN: Well, that is the difficulty, Your Honor, is that we — we have to be mindful that our own implicit biases don’t infect the proceedings here today. And the whole purpose — the whole purpose of the implicit bias jury instruction and the whole purpose of the ABA’s . . . 2016 guidance on how we should conduct jury trials is that this exists in everything we do, and it exists in whites against blacks. That’s what the studies say. And the terrible part about not giving that instruction, given the fact that the ABA says to give it, is that it’s not like, you know, the global warming argument where you an find 1 percent of the scientific community say, ‘There’s no evidence.’ We have a situation where every single scholarly article — including Judge Doyle’s article, which I just happened to see yesterday — they all say that it is helpful to address implicit bias head-on. And — and —
THE COURT: And you did.
SHERIDAN: — yes.
THE COURT: You addressed it in voir dire. You addressed in the opening — your opening statement. You addressed it in your closing argument. You raised it throughout this entire trial.
. . . .
SHERIDAN: … [S]ometime in our lives, Judge, it is going to be a no-brainer that implicit bias is examined, and maybe those — maybe that test is going to be given during jury — during — you know, during jury orientation to sensitize people. But also, to get back to what you said, which is the idea of Sheridan got to argue it; what’s the harm? Well, we have extensive citation in our briefs where courts have said there’s a big difference between having an instruction and having a defense — a plaintiff’s or defense lawyer argue something. The instruction is — carries the weight. The lawyers arguments — remember the first thing out of [defense counsel] Mr. Johnson’s mouth when he — when he stood up was — in closing was, ‘Well, good thing this is argument. You don’t have to believe what Sheridan said.’ And that’s the difference between you saying it and me saying it. And, basically, the cases that – you’ll see them in our reply brief and other places — but it’s — basically says that, you know — the Townsend case, it says, ‘It’s unreasonable to expect jurors, aided only by arguments of counsel, will intuitively grasp a point of law until recently eluded by both judge . . . — ’
RP (1/27 Albino) 17; see also RP (12/19 Moll) 1916.
This exchange with this highly respected white trial judge demonstrates that implicit bias infects us all, and that failure to give an implicit bias jury instruction in this case is a constitutional violation and an abuse of discretion, because an implicit bias jury instruction promotes consciousness and introspection, which are methods of fighting those biases. The uncontested sworn statement of the only black juror should have been enough to support a new trial. His sworn factual testimony was strong circumstantial evidence of juror misconduct in violation of the Washington State Constitution and the failure to grant a new trial was an abuse of discretion.
Today more than ever, we need a frequent recurrence to fundamental principles because—today more than ever—it is essential to the security of individual rights and the perpetuity of free government. Const. art. I, § 32. The overarching issue is, what Supreme Court actions are needed to ensure that a black person gets a fair trial in Washington State? If this Court does nothing, injustice will prevail and discontent will ferment in all affected communities.
This petition for review should be accepted by the Supreme Court because the petition raises significant questions of law under the Constitution of the State of Washington; and involves issues of substantial public interest that should be determined by the Supreme Court. RAP 13.4(b) (3) and (4). Additionally, once the juror misconduct is confirmed, the petition demonstrates that the Court of Appeals decision is in conflict with Supreme Court precedent. RAP 13.4(b) (1). Upon review, the jury verdict should be set aside and a new trial granted with new rules requiring an implicit bias instruction when requested and for evaluating juror misconduct.
 According to prominent scholar and expert witness Dr. Anthony Greenwald, “seventy percent of Americans hold implicit prejudiced views based on race, color, national origin and ethnicity.” Samaha v. Washington State Dep’t of Transp., No. CV-10-175-RMP, 2012 WL 11091843, at *1 (E.D. Wash. Jan. 3, 2012).
 See Equal Justice Initiative, “Lynching In America: Confronting The Legacy Of Racial Terror,” Third Edition, available at: https://lynchinginamerica.eji.org/report/.
 “The legal and social double standard that allowed white men to commit sexual violence against black women with impunity, while the most baseless fear of sexual contact between a black man and white woman resulted in deadly violence, continued after emancipation. Nearly one in four black people lynched from 1877 to 1945 were accused of improper contact with a disabled white woman.” Equal Justice Initiative, available at https://eji.org/history-racial-injustice-sexual-exploitation-black-women.
 See American Bar Association, Principles for Juries and Jury Trials, Principle 6(c) (2016), filed at CP 1127 (Appendix at 26).
 “Research on the role of attention in weakening the effects of implicit cognition . . . supports consciousness raising as a strategy for avoiding unintended discrimination. That is, when a decision maker is aware of the source and nature of a bias in judgment, that bias may effectively be anticipated and avoided. Consciousness raising may also have some value in attenuating implicit bias when the source of implicit bias is not properly identified, as suggested by findings that attentional effort reduces effects of weak cues.” Greenwald, A. G., & Banaji, M. R. (1995). “Implicit social cognition: Attitudes, Self-Esteem, and Stereotypes.” Psychological Review, page 16. Available at: http://faculty.washington.edu/agg/pdf/Greenwald_Banaji_PsychRev_1995.OCR.pdf.
Today a King County jury found that managers at the Washington State Department of Transportation are guilty of retaliation against Stacy Trussler, a former director who was “disability separated” by WSDOT management in 2016. The jury awarded Ms. Trussler $1.2 million in damages and recommended that she be reinstated to a comparable position at WSDOT with protections against further retaliation.
Ms. Trussler is an experienced civil engineer with a master’s degree in environmental engineering from Washington State University (1993). She joined WSDOT in 1995, and in 2010 she was promoted to Director of the WSDOT Urban Planning Office (UPO). The UPO was responsible for representing the Transportation Secretary at regional boards and county-wide forums, and as the Director of UPO, Ms. Trussler did so and led three technical teams: travel demand modeling, corridor planning studies, and transportation systems analysis.
In October 2012, Ms. Trussler suffered a head injury in a motorcycle accident, and after she returned to work she was informally accommodated by her then manger, Brian Smith, who permitted Ms. Trussler to telecommute, rest as needed, and to have a flex schedule until he retired in February 2014. Under Mr. Smith, Ms. Trussler had positive performance evaluations before and after her accident.
Ms. Trussler alleged in her complaint and at trial that after Mr. Smith retired, the newly hired Assistant Secretary for Economy and Community, Amy Scarton (who is currently the assistant secretary for the Washington State Ferries Division), harassed, retaliated, and discriminated against her owing to her disability, and that Kerry Woehler, Mr. Smith’s replacement (who is currently the WSDOT planning manager), also engaged in harassment, retaliation, and discrimination, which included cutting off Ms. Trussler’s telecommuting rights after Ms. Trussler reported discrimination against her and another employee, both of whom were disabled and telecommuting as accommodations long before Ms. Scarton was hired. The jury found for Ms. Trussler on her retaliation claim.
The Honorable Jim Rogers presided over the three-week jury trial. The jury deliberated for a total of two days before reaching its verdict, which included lost wages totaling $600,000.00 and emotional harm damages totaling $600,000.00. The jury also recommended that Ms. Trussler be reinstated. Jack Sheridan, the attorney representing Ms. Trussler, said, “The decision as to whether reinstatement is appropriate will be decided by Judge Rogers at a later date.”
Mr. Sheridan said, “This has been a terrible ordeal for Stacy. She is so grateful for the jury’s verdict. After trying for years to get someone at WSDOT to listen to her complaints, the jury’s attention and understanding are everything to her.”
Mr. Sheridan said, Ms. Trussler testified that by October 2014, she was so upset with the conduct of Ms. Scarton, Ms. Woehler, and Human Resources, that she called the WSDOT Assistant Secretary of Strategic, Enterprise Services, Katy Taylor, and reported what she believed to be misconduct amounting to discrimination and fraud.
At trial, Ms. Taylor could not recall most of the facts, so most of her written statement was read to the jury (see below). She admitted that she did not follow up on Ms. Trussler’s report, and that she told the substance of the report to the persons identified by Ms. Trussler as having engaged in misconduct.
Mr. Sheridan said, “Beginning in January 2015, Ms. Trussler was sent home on what plaintiff alleged were trumped up charges of time card fraud, and while she was gone with orders not to communicate with anyone other than WSDOT Director of Human Resources Jeff Pelton, the management team dismantled the UPO, so when she returned in June, after it became obvious that she would be vindicated, she was subject to a “lay-off” of just one person (Ms. Trussler ) and all of her direct reports were assigned elsewhere. She was then placed in another job that would soon also be eliminated and after that placement she was told she could not perform the job owing to her disability. She was later “disability separated” in February 2016. Except for a brief homework assignment in June, from June 2015 to February 2016, she was never placed in a job.”
After ten months of waiting for the DOE Inspector General to complete its investigation into whistleblower retaliation by Battelle/PNNL, today Management Director Aleta Busselman used the “kickout” provision of the federal whistleblower law to leave the administrative forum and to file a complaint in federal district court making the same allegations, but this time asking a jury to hold Battelle/PNNL accountable and asking a judge to order that she be returned to her position.
The complaint alleges 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.
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 Battelle/PNNL management did not clearly define adequate controls to prevent theft by external criminal entities in the Vendor Management Process.
Battelle/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.
Attorney Jack Sheridan stated, “federal whistleblowers have long suffered because government agencies whose task it is to investigate whistleblower retaliation claims, take no action, sometimes for years. For some federal whistleblower laws, Congress has wisely permitted whistleblowers to leave the administrative forum if the agency fails to timely investigate. Ms. Busselman is heading for federal court because DOE-IG has made no headway in this case over the course of ten months.”
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.”
Ms. Busselman remains employed at PNNL, but has not been returned to her position.
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