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

Former Benton And Franklin County Human Services Administrator Files Discrimination And Whistleblower Lawsuit In Walla Walla County

June 13, 2016

Walla Walla, WA

Today, Linda Robb, the former Human Services Administrator for the Benton and Franklin Counties Department of Human Services, filed a discrimination and whistleblower retaliation lawsuit against her former employers after the defendants failed to seek more information or talk settlement.

Jack Sheridan, the attorney representing Ms. Robb said, “You can’t sue government unless you first file a claim and wait sixty days, to give the defendant time to investigate the case and to discuss settlement. Ms. Robb filed in March, and mo one from either county contacted us to learn more about the case or to talk settlement, so today we filed the lawsuit.” The complaint alleges that Ms. Robb and other women were mistreated by Benton County Commissioner Small, who she claims created a hostile work environment, and that she was fired for opposing the privatization of the Crisis Response Unit, because it would be a waste of taxpayer dollars. A jury trial will take place sometime next year.

According to Sheridan, under Washington law, lawsuits against a county may be filed in an adjacent county to avoid possible bias by judges in the county being sued.

Click here to 6/13/16 Robb Complaint

Click here to see June 2016 Tri-City Herald article

Former County Human Services Administrator Files Whistleblower And Discrimination Claims Against Benton And Franklin CountiesMarch 4, 2016

Tri-Cities, WA

Today Linda Robb, the former Human Services Administrator for the Benton and Franklin County Department of Human Services, filed administrative claims with both counties seeking damages for terminating her employment on August 6, 2015.

Ms. Robb alleges that she was retaliated against and wrongfully terminated for opposing efforts to privatize the Crisis Response Unit in 2015, because twenty years before, it was privatized and became a monopoly, requiring the counties to intervene to protect the citizens from high costs and poor service. Her attorney, Jack Sheridan, said, “the commissioners seem to have forgotten the lessons from before, and are about to repeat the earlier mistakes.”

Ms. Robb also alleges that she was discriminated and harassed by Benton County Commissioner Shon Small, who mistreated her owing to her gender, and that the county boards failed to protect her from Small.

Ms. Robb seek damages for lost wages and emotional harm.

Under Washington law, Ms. Robb now must wait sixty-days before filing a lawsuit. Her attorney, Jack Sheridan, said, “this case shows some examples of government at its worst. We look forward to bringing these claims in front of a jury.”

Click here to see Tri-City Herald Article

030416 Robb Benton County Tort Claim_Redacted Appendix 1-61

030416 Robb Benton County Tort Claim_Redacted Appendix 62-100

030416 Robb Benton County Tort Claim_Redacted Appendix 101-end

030416 Robb Franklin County Tort Claim_Redacted Appendix 1-74

030416 Robb Franklin County Tort Claim_Redacted appendix A75 to end

 

 

Engstrom And Stockwell Get New Trial Date In Microsoft Hostess Bar Whistleblower Claim

May 18, 2016

Today the King County trial court set a trial date in this case for June 2017.

Click here to see Engstrom and Stockwell scheduling order.

Click here to see 2015 Seattle Times article

Click here to see 2015 Reuters article

 

Court Of Appeals overturns King County Trial Judge and Returns Hostess Bar Wrongful Discharge Case Against Microsoft For Trial

April 8, 2016 

Today the Court of Appeals sent the wrongful discharge claim of two former Microsoft executives back to the trial court for trial after the plaintiffs and Microsoft agreed that the trial court’s ruling dismissing the case did not conform with rulings by the Supreme Court.

This case involves former Microsoft Managers Eric Engstrom and Ted Stockwell, who had filed a lawsuit against Microsoft alleging that they were wrongfully discharged for refusing to sign off on expense reports submitted by a subordinate because they believed that money allegedly being billed for dinners included improper payments for hostess bars, and potentially for prostitutes, to benefit potential Microsoft corporate partners in Korea.  Management asked Engstrom and Stockwell to drop the complaint, they would not, and they got laid off.

Engstrom worked for Microsoft since the 1990s, and is credited with being one of three inventors of DirectX, which are the application programming interfaces, upon which Xbox is based. Engstrom was in charge of creating technology for Windows that allows software developers to incorporate audio, video, and animation into their programs. He was a “partner” level employee meaning he was in the top 1% of Microsoft employees for compensation.

Stockwell worked for Microsoft since the 1980s, and became a high-level program manager. He was a “principal” level employee meaning he was in the top 3% of Microsoft employees for compensation.

The complaint alleges that in early 2011, Stockwell became concerned with vaguely described “entertainment expenses,” some for thousands of dollars, that a subordinate submitted for reimbursement. The subordinate told Stockwell that he was meeting with customers at “hostess bars,” Stockwell asked the subordinate if he was “expensing prostitution services of hostesses,” which the subordinate denied.

Stockwell notified Engstrom, his manager, about the amounts of the expense reports and told him that he believed the subordinate was “expensing hostess bars” and potentially prostitution. Stockwell and Engstrom were both aware that in Korea and other parts of Asia, “hostess bars” often provide sexual services to their customers.

Engstrom reported to his boss, Corporate Vice President Erik Jorgensen, of their concerns. Stockwell gave the subordinate a low performance evaluation as a result. Jorgensen referred Engstrom and Stockwell to Human Resources Manager Jeff Williams, who received the same report from Plaintiffs,

The complaint alleges that Williams called Stockwell at home after work and asked him to drop the complaint against the subordinate and to raise his performance rating.

Stockwell responded that he would do as requested, but only if Jorgenson sent him an email asking that he agree to the plan and confirming what was being requested. HR Director Williams responded, “Oh, wow” and dropped the request.

The Complaint alleges that after this incident, the plaintiffs’ careers went off track and they were laid off in late 2013 and early 2014.

Jack Sheridan, the attorney representing the plaintiffs, said, “our appellate courts have done their jobs and clarified the law of wrongful discharge, so that we can get back to preparing for trial.” According to Sheridan, “the trial judge mistakenly adopted Microsoft’s argument that he should follow older Supreme Court wrongful discharge case law from 2005. Three decisions from the Supreme Court published last year clarified the law of wrongful discharge and made it obvious that the old case law did not apply here.”

The case will likely be set for trial sometime in 2017.

021616 Engstrom and Stockwell COA opinon 040816 E&S mandate from COA

040816 E&S mandate from COA

Click here to see complaint.

Why do the policies under the Foreign Corrupt Practices Act apply to this case?

 

RETALIATION IN HOSTESS BAR WRONGFUL DISCHARGE CASE: Engstrom and Stockwell v. Microsoft

June 18, 2015

Seattle, WA

King County Trial Judge Dismisses Hostess Bar Wrongful Discharge Case Against Microsoft–Plaintiffs will appeal

Today King County Superior Court Judge Sean O’Donnell dismissed the wrongful discharge claim of two former Microsoft executives finding that federal laws adequately protect shareholders and citizens from improper actions by American corporations at home and abroad, and thus he ruled that Washington law will not support plaintiffs’ claim against Microsoft.

This case involves former Microsoft Managers Eric Engstrom and Ted Stockwell, who had filed a lawsuit against Microsoft alleging that they were wrongfully discharged for refusing to sign off on expense reports submitted by a subordinate because they believed that money allegedly being billed for dinners included improper payments for hostess bars, and potentially for prostitutes, to benefit potential Microsoft corporate partners in Korea.  Management asked Engstrom and Stockwell to drop the complaint, they would not, and they got laid off.

Engstrom worked for Microsoft since the 1990s, and is credited with being one of three inventors of DirectX, which are the application programming interfaces, upon which Xbox is based. Engstrom was in charge of creating technology for Windows that allows software developers to incorporate audio, video, and animation into their programs. He was a “partner” level employee meaning he was in the top 1% of Microsoft employees for compensation.

Stockwell worked for Microsoft since the 1980s, and became a high-level program manager. He was a “principal” level employee meaning he was in the top 3% of Microsoft employees for compensation.

The complaint alleges that in early 2011, Stockwell became concerned with vaguely described “entertainment expenses,” some for thousands of dollars, that a subordinate submitted for reimbursement. The subordinate told Stockwell that he was meeting with customers at “hostess bars,” Stockwell asked the subordinate if he was “expensing prostitution services of hostesses,” which the subordinate denied.

Stockwell notified Engstrom, his manager, about the amounts of the expense reports and told him that he believed the subordinate was “expensing hostess bars” and potentially prostitution. Stockwell and Engstrom were both aware that in Korea and other parts of Asia, “hostess bars” often provide sexual services to their customers.

Engstrom reported to his boss, Corporate Vice President Erik Jorgensen, of their concerns. Stockwell gave the subordinate a low performance evaluation as a result. Jorgensen referred Engstrom and Stockwell to Human Resources Manager Jeff Williams, who received the same report from Plaintiffs,

The complaint alleges that Williams called Stockwell at home after work and asked him to drop the complaint against the subordinate and to raise his performance rating.

Stockwell responded that he would do as requested, but only if Jorgenson sent him an email asking that he agree to the plan and confirming what was being requested. HR Director Williams responded, “Oh, wow” and dropped the request.

The Complaint alleges that after this incident, the plaintiffs’ careers went off track and they were laid off in late 2013 and early 2014.

Jack Sheridan, the attorney representing the plaintiffs, said, “the reason we have appellate courts is to correct the errors committed by trial judges.  In this case, the trial judge mistakenly adopted Microsoft’s argument that he should follow older Supreme Court wrongful discharge case law from 2005, and ignore the Supreme Court’s 2013 decision on wrongful discharge, which supports our case.”

Sheridan said that the plaintiffs will appeal.  Sheridan also said, “This is David and Goliath litigation.  The trouble with legal errors at the trial court level is that these mistakes can cost time and money to persons who are fighting for their economic survival owing to the wrongs committed against them by big companies or big government. These plaintiffs will now have to wait another year or two before getting their case in front of a jury.  That’s why we say, ‘justice delayed is justice denied.’”

Plaintiffs have thirty days to appeal.

FEDERAL JUDGE SLAMS MICROSOFT FOR TAKING “HOSTESS BAR” CASE OUT OF STATE COURT AND SENDS CASE BACK
April 22, 2015
Seattle, WA
Today Federal Judge James Robart sent the Engstrom and Stockwell “hostess bar” wrongful discharge case back to state court after Microsoft had removed the case to federal court arguing that the Plaintiffs’ claims raised important “federal questions” even though the wrongful discharge claim is brought exclusively under state law.
On February 25, 2015, former Microsoft Managers Eric Engstrom and Ted Stockwell filed a lawsuit in King County Superior Court alleging that they were wrongfully discharged under state common law for refusing to sign off on expense reports submitted by a subordinate because they believed that thousands of dollars allegedly being billed for dinners included improper payments for prostitutes at “hostess bars” to benefit potential Microsoft customers in Korea. Plaintiffs allege that management asked Engstrom and Stockwell to drop the complaint, they would not, and they got laid off.
On March 25, 2015, Microsoft filed a “notice of removal” in the federal district court in Seattle announcing that Microsoft was bringing the state case into federal court because the hostess bar case “implicates a significant federal issue.”

Judge Robart, the federal judge assigned to the case, questioned whether federal jurisdiction was appropriate and on April 7, 2015, in an Order To Show Cause, challenged Microsoft to justify the removal and gave Microsoft 14 days to convince the judge that federal jurisdiction was proper.

On April 21, 2015, Microsoft conceded it had no arguments in support of removal and stated, “Microsoft does not oppose remand of this case to King County Superior Court. The next day, on April 22, 1015, Judge Robart signed an order remanding the case back to state court and instructing the parties, “to seek any further relief to which [the parties] believe they are entitled from the courts of the state of Washington, as may be appropriate in due course . . . .”

Jack Sheridan, the attorney representing Engstrom and Stockwell, stated, “In our view, Microsoft was trying to prevent state trial judges and state appellate court judges from deciding what is a purely state law issue. We are back where we wanted to be and back on track to take this to a King County jury. We will seek attorney fees from Microsoft for the time we wasted in dealing with this issue.”

The Engstrom and Stockwell wrongful discharge case against Microsoft is slated to go to a jury trial in March 2016.

Click here to see Microsoft Notice of Removal

Click here to see Order to Show Cause Re Remand

Click here to see Microsoft response to Court’s order

Court’s Order re Remand

MICROSOFT BACKS DOWN AFTER PLAINTIFFS FILE MOTION TO PROTECT THEIR COUNSEL FROM “BULLYING”

March 20, 2015

Seattle, WA

Former Microsoft Managers Eric Engstrom and Ted Stockwell are claiming an early victory against Microsoft for successfully opposing what their attorney calls “Microsoft’s bullying trial tactics.”

This week the Honorable Sean O’Donnell signed a stipulated order in which each party agreed not to file motions when the other party’s attorneys are unavailable. The order stems from a motion filed by Engstrom and Stockwell claiming that Microsoft was threatening to file emergency motions against them while their attorney was tied up in a two-week jury trial in another case.

Jack Sheridan, the plaintiff’s counsel, said, “I considered their actions to be bullying, so I filed a motion seeking protection, and Microsoft backed down and signed a stipulated order.” According to Sheridan, “The order has two important effects. First, I can focus on my other whistleblower trial, which is in Olympia, without interference from Microsoft, and second, Judge O’Donnell is now protected from being removed from the case by Microsoft.”

Under Washington law, RCW 4.12.050, in a civil case, any party has one opportunity to remove the assigned judge simply by filing what’s called an affidavit of prejudice. The affidavit simply has to state that a party thinks the judge would be unfair, and once filed, the judge is removed. Sheridan said, “The trick is that once a judge makes a discretionary ruling, that judge cannot be removed under the statute.” Sheridan said, “We wanted Judge O’Donnell to stay on this case, because of his reputation for working to protect vulnerable women, and now that he’s signed the stipulated order, he will stay on.” Sheridan said, “We consider Judge O’Donnell a good draw because our case alleges that the plaintiffs were wrongfully discharged for refusing to sign off on expense reports submitted by a subordinate, because they believed that money, allegedly being billed for dinners, included improper payments for prostitutes to benefit potential Microsoft customers in Korea.”

Plaintiffs’ Motion to Enforce Notice of Unavailability claimed that soon after Sheridan came on the case, he learned that Engstrom had made a few audio recordings while at work. According to Sheridan, “Engstrom recorded meetings with a few Microsoft managers to discuss his performance, because he was afraid of what they were doing and that the only witnesses would be his adversaries who he believed were removing him because of the hostess bar issue.” Sheridan said, “Mr. Engstrom didn’t have the benefit of counsel, and didn’t realize that his attempt to protect himself with a ‘spy pen’ he bought at Fry’s constituted a misdemeanor.”

Sheridan directed that the recordings be placed with a third party and a copy provided to Microsoft.

Sheridan said, “After I returned or safeguarded all the files, I thought I would be able to focus on my upcoming trial.” So on March 5, 2015, Sheridan filed a notice of unavailability, which is a typical filing in King County, and which, in Sheridan’s experience, is honored by attorneys practicing in Seattle, because he had a two-week jury trial beginning in Thurston County on Mary 16, 2015. The notice protects the attorney from having to respond to motions filed in other cases during the trial.

Microsoft’s counsel sent a letter on the 5th, and spoke with Sheridan on March 6, 2015, by telephone. Microsoft’s letter stated:

While Microsoft appreciates your oral representation to me that your clients no longer retain any Microsoft information or recordings and have not used or disclosed such information or materials, the seriousness of this issue requires sworn testimony. Given the criminal misconduct, we cannot wait for the routine discovery process to unfold to ensure Microsoft’s information – and its employees’ rights – are protected.

Microsoft demanded sworn statements from the plaintiffs, which is not required by the Civil Rules. Microsoft went on to demand:

If your clients will not provide sworn statements, Microsoft anticipates seeking assistance from the court to ensure protection of its information and employees.

According to Sheridan, in the phone call, Microsoft’s counsel claimed that the need to get sworn statements from Engstrom and Stockwell was an “emergency,” and unless Sheridan produced sworn statements immediately, he would not promise that Microsoft would not file an emergency motion while Sheridan was tied up in trial, even though, according to Sheridan, there was no emergency since he had safeguarded the files.

According to Sheridan, “After we filed the Motion To Enforce Notice of Unavailability, Microsoft backed down and agreed to honor my notice of unavailability and to sign a stipulation to that effect.”

Also, the “criminal misconduct” alleged in the Microsoft letter, in reference to Engstrom and Stockwell, is describing the same conduct committed by Microsoft’s counsel, which recently lost an appeal in which DWT was a defendant in a case claiming that an attorney in the firm secretly recorded phone calls with a witness using a court reporter.

In DILLON v. SEATTLE DEPOSITION REPORTERS, LLC, a Washington Company; DAVIS WRIGHT TREMAINE, LLP, a Washington Company; and JAMES GRANT, Mr. Dillon met with lawyers at the same law firm as here, and there, the lawyer secretly recorded a witness phone call without telling the witness using a court reporter.

The Court of Appeals sent the case back to trial and wrote:

Although Grant (the lawyer) informed Dillon that “Thad” (the court reporter) was present during the first call, Grant disingenuously introduced [Thad] Byrd as if he were a Davis Wright and Tremaine employee “taking notes,” not a third party transcribing the conversation. Even worse, Grant and Kennan never told Dillon about the presence of another person during the second call.

The Engstrom and Stockwell wrongful discharge case against Microsoft is slated to go to a jury trial in 2016.

Click here to see 030615 Engstrom-Stockwell motion for relief

Click here to see 030615 Engstrom-Stockwell JPS Declaration

Click here to see DWT letter to Sheridan

Click here to see Stipulation & Order Enforcing Notices of Unavailability – signed

Blank Engagement Agreement

February 25, 2015

FORMER MICROSOFT EXECUTIVES SUE FOR WHISTLEBLOWER RETALIATION

Seattle, WA

Today former Microsoft Managers Eric Engstrom and Ted Stockwell filed a lawsuit in King County Superior Court alleging that they were wrongfully discharged for refusing the sign off on expense reports submitted by a subordinate because they believed that money allegedly being billed for dinners included improper payments for hostess bars, and potentially for prostitutes, to benefit potential Microsoft customers in Korea.  Management asked Engstrom and Stockwell to drop the complaint, they would not, and they got laid off.

Engstrom worked for Microsoft since the 1990s, and is credited with being one of three inventors of DirectX, which are the application programming interfaces, upon which Xbox is based. Engstrom was in charge of creating technology for Windows that allows software developers to incorporate audio, video, and animation into their programs. He was a “partner” level employee meaning he was in the top 1% of Microsoft employees for compensation.

Stockwell worked for Microsoft since the 1980s, and became a high-level program manager. He was a “principal” level employee meaning he was in the top 3% of Microsoft employees for compensation.

The complaint alleges that in early 2011, Stockwell became concerned with vaguely described “entertainment expenses,” some for thousands of dollars, that a subordinate submitted for reimbursement. The subordinate told Stockwell that he was meeting with customers at “hostess bars,” Stockwell asked the subordinate if he was “expensing prostitution services of hostesses,” which the subordinate denied.

Stockwell notified Engstrom, his manager, about the amounts of the expense reports and told him that he believed the subordinate was “expensing hostess bars” and potentially prostitution. Stockwell and Engstrom were both aware that in Korea and other parts of Asia, “hostess bars” often provide sexual services to their customers.

Engstrom reported to his boss, Corporate Vice President Erik Jorgensen, of their concerns. Stockwell gave the subordinate a low performance evaluation as a result. Jorgensen referred Engstrom and Stockwell to Human Resources Manager Jeff Williams, who received the same report from Plaintiffs,

The complaint alleges that Williams called Stockwell at home after hours and asked him to drop the complaint against the subordinate and to raise his performance rating.

Stockwell responded that he would do as requested, but only if Jorgenson sent him an email asking that he agree to the plan and confirming what was being requested. HR Director Williams responded, “Oh, wow” and dropped the request.

The Complaint alleges that after this incident, the plaintiffs’ careers went off track and they were laid off in late 2013 and early 2014.

Click here to see complaint.

Click here to see case schedule.

Why do the policies under the Foreign Corrupt Practices Act apply to this case?