This Bad Boss Pitted His Staff Against His Only Black Firefighter
Vernon Creswell was shaking as he made a pot of coffee in the kitchen of his new firehouse.
The emergency responder had just met Greg Mowad, a white battalion chief, and gotten a taste of what he would face as the lone African American in the fire department of Montebello, Calif., a suburb of Los Angeles.
"Hey bud," said Mr. Mowad, who was relaxing in front of Fox News. "I know you'll agree with me on this one. There is good blacks and there is bad blacks, and bad blacks are ni**ers."
As Mr. Creswell later recalled in a deposition, his new superior officer criticized local black fire chiefs and concluded: "All those Compton ni**ers are cut from the same cloth." Mr. Creswell had just moved from the nearby Compton fire department, as Mr. Mowad knew.
Greg Mowad is our new "Bad Boss of the Month."
After enduring several years of tension, Mr. Creswell sued the City of Montebello; a state jury awarded the experienced firefighter-paramedic more than $935,000 in damages for racial harassment and retaliation. In February 2016 the trial judge awarded him a further $1.5 million in legal fees.
Mr. Mowad may have been Mr. Creswell's boldest antagonist in Montebello, but he was not alone. On Mr. Creswell's very first day on the job, for instance, battalion chief Rick Lynsky told Mr. Creswell he had opposed his hiring and said, "You're not going to fit in here — you're an outsider," according to testimony.
Other firefighters told Mr. Creswell that Mr. Mowad and fellow supervisors had referred to him as a "ni**er" and other epithets. Accounts vary, but witnesses also said that either Mr. Mowad or Mr. Lynsky — irritated at Mr. Creswell's use of leave — advised other firefighters to take the black man "out back" and "beat the crap out of him."
When Mr. Creswell heard about some of these incidents, he testified in court, he "wanted to throw up." He went to Montebello's top fire chief to voice his dismay, but said the chief minimized the threats — his top brass was just "running their mouths," he said.
Mr. Creswell filed a complaint with California's Department of Fair Employment and Housing, which ultimately led to the lawsuit and jury award. Separately, Montebello launched an investigation that would conclude that Mr. Mowad indeed had used racial slurs in the firehouse. According to a Montebello fire captain, Mr. Mowad was infuriated at this turn of events. "If I go down," he threatened, "the whole department is going down." Everyone in the department used the n-word, Mr. Mowad asserted.
Mr. Mowad had a history of seeing his workplace through a racial lens: Earlier in his career he had filed a discrimination case of his own — in nearby Anaheim, Calif., where he was passed over for a promotion that went to a black man.
Meanwhile Mr. Creswell faced escalating harassment and retaliation, according to testimony. After applying for a position as acting fire captain, for instance, he was given a different test than three non-black candidates — and told he had failed. He was denied a chance to take refresher courses in strike-team leadership, a prestigious duty he had previously earned. And even though he was a veteran firefighter who enjoyed being a mentor, he was denied the chance to train new firefighters.
Mr. Creswell also was warned not to wear department-approved gear when he exercised at the station: Mr. Lynsky said the standard beanie cap made him look like a "thug," he said.
At trial, the jury awarded Mr. Creswell $185,150 in economic damages for unlawful retaliation — and $750,000 in non-economic damages for racial harassment. He remains a firefighter in Montebello.
And Mr. Mowad? According to court documents, he was placed on paid leave for more than a year, until shortly before the trial. Montebello was poised to fire him for his use of racial slurs, but eventually decided to allow him to "retire in lieu of termination" — with a pension and no disciplinary notes on his record.
There was no investigative finding about Mr. Lynsky, who also retired from the department.
The Employment Law Group® law firm was not involved in Creswell v. City of Montebello. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.
Even an Employee’s Child Suffered the Lewdness of This Bad Boss
At any workplace, the boss sets the tone. Jim McKinney was no exception: His Dallas-based medical company was rife with sex talk and catcalling — much of it from himself.
Even by his own crass standard, however, Mr. McKinney hit a new low on Bring Your Child To Work Day. Upon meeting an employee’s teenage daughter, according to a deposition, he sized up the child and said, in front of his team: “Wow — for being 15, your knockers are very big.”
The employee, Bonnie Shaw, was mortified and told Mr. McKinney he was out of line; he just laughed. Ms. Shaw brought her concerns to Human Resources and was fired shortly afterward.
Jim McKinney is our new “Bad Boss of the Month.”
After hearing from Ms. Shaw and others, the U.S. Equal Employment Opportunity Commission (EEOC) filed suit against EmCare, the parent company of Mr. McKinney’s AnesthesiaCare division. At trial a jury awarded $499,000 to the aggrieved former employees; EmCare is fighting the verdict.
The remark about Ms. Shaw’s daughter was far from Mr. McKinney’s only offense. “Every time” her boss was around, Ms. Shaw testified, he had something sexually suggestive to say. Sometimes he’d ask her to lower her neckline to show more cleavage; sometimes he’d ask her to lift up her skirt so he could see her “behind.”
Ms. Shaw said she had complained before to HR, but that nothing had happened. After the incident with her child, which had left her visibly upset and shaking, she complained again. So did co-worker Luke Trahan, who had witnessed Mr. McKinney’s misconduct. Within weeks, both were fired without any indication of poor performance on the job.
Also fired after complaining was Mr. McKinney’s administrative assistant, Gloria Stokes, who had raised concerns about the sexual comments that happened “every time Mr. McKinney was in the office — multiple times a day.”
During her job interview, Ms. Stokes said, Mr. McKinney told her that he hoped she wasn’t the kind of person who would run to HR “every five minutes.” Once hired, she found out why: Mr. McKinney often made lecherous comments, such as saying Ms. Stokes was “busting out” of her shirt. When getting a cold soda, he would tell Ms. Stokes he was “hot and horny.”
Mr. McKinney also talked dirty with men in the office, often in Ms. Stokes’ presence. With one male colleague, she said, “p*nis size came up frequently,” as did wife-swapping braggadocio. In court, Mr. McKinney struggled to explain a series of e-mails that evidently included a photo of a p*nis tattoo: Possibly the words “deep or shallow” referred to an EmCare account, he testified. Asked what “big boys welcome” meant, he had no suggestions.
In court, the EEOC excoriated Mr. McKinney for being more like a “teenage boy going through puberty than a high-level executive in charge of an entire department.” EmCare lawyers defended him as a “character” and a “joker” but not a harasser or retaliator.
Eventually, however, Mr. McKinney resigned from EmCare after a business dinner at which he got drunk, accosted a female employee as “a bitch and a whore,” and (depending on the account) yanked her ponytail. Mr. McKinney claimed he was so inebriated he had no memory of the incident; he was drowning his sorrows after learning that EmCare wanted to name a physician to his position.
For its part, EmCare argued that the dinner was “the first, last, and only time Mr. McKinney crossed over [a] line.” The jury disagreed: It found that Ms. Stokes had been sexually harassed; that Mr. Trahan and Ms. Shaw — the mother whose child Mr. McKinney humiliated — had faced unlawful retaliation; and that EmCare should pay the three former employees a half-million dollars in combined damages.
The Employment Law Group® law firm was not involved in EEOC v. EmCare, Inc.. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.
This Bad Boss Frightened Employees with a Fake Armed Robbery
Harry Starkey's staff had been trained on how to respond to an armed robbery. But did they really know what to do?
Mr. Starkey decided to test them. His brainstorm: Stage a fake stickup at the office of the West Kern Water District (WKWD) in Taft, Calif., where he worked as general manager.
On the morning of the drill, Gary Hamilton — a subordinate of Mr. Starkey — donned a mask, sunglasses, and a hat. He approached clerk Kathy Lee, whose job was to accept payments from WKWD customers, shoved a paper bag at her, and pointed to a note written on it —
I HAVE A GUN. PUT YOUR MONEY IN THE BAG.
No one had told Ms. Lee about the holdup plan. Fearing for her life, she complied and the "robber" fled with the cash. Even after WKWD managers revealed the scheme, Ms. Lee was traumatized, crying, and nauseous. She couldn’t return to work for months.
Harry Starkey is our new "Bad Boss of the Month."
Ms. Lee sued for emotional distress and assault. After a nine-day trial, a state jury awarded her $360,000 in damages — but then the judge ordered a retrial because, she said, the jurors were improperly instructed. The case remains on hold pending the ruling of an appeals court.
At the trial, Mr. Starkey claimed that his initial idea for the drill was far tamer: No secrets, no disguises, no messages about guns. Mainly he wanted to know whether clerks like Ms. Lee could locate their silent alarm button.
But Mr. Starkey delegated the exercise to subordinates — and then stood by as things got out of hand.
WKWD supervisor Ginny Miller was one of the drill’s planners. Together with the utility's safety manager, she decided that "realism" was key. Ms. Miller first asked her nephew to play the robber, but that fell through. At the last moment she recruited Mr. Hamilton as the attacker.
Mr. Hamilton was reluctant. Shortly before playing his role, he went to Mr. Starkey's office to express unease about staging a full-blown fake robbery. But Mr. Starkey admits he "consented" even after hearing about the scheme — and indeed, planned to watch it unfold in real time via security cameras.
The holdup man was reassured. At 10 a.m. on July 29, 2011, he put on his disguise and entered the utility's office to "rob" Ms. Lee. Ms. Miller stood guard outside to keep real WKWD customers from getting mixed up in the stunt.
Ms. Lee "was justified in being scared" by Mr. Hamilton, said Mr. Starkey. As the clerk reached for her panic button — as she had been trained to do — Mr. Hamilton banged on the counter to startle her. Intimidated, she skipped the alarm and went for the cash drawer instead. She thought Mr. Hamilton was "going to shoot" her, she testified.
Meanwhile another employee panicked and fled to call the Taft police department.
When Taft police chief Ed Whiting arrived on the scene he was "furious" and said the fake robbery had endangered both WKWD employees and the public, according to Ms. Lee's lawyer. At trial, Chief Whiting testified that any robbery is a "high stress event" and that witnesses "sometimes suffer heart attacks just because of the event."
Even in a mock robbery, said the chief, "there is real potential for injury or death."
Ms. Lee certainly was traumatized: According to her complaint, she sought counseling for recurring nightmares, depression, and insomnia. She also suffered from headaches, nausea, and loss of appetite; to this day, she is fearful of hooded figures. She took almost four months of medical leave before returning to her job.
At trial, Mr. Starkey was asked whether he took responsibility for what happened; he testified that he did. Nonetheless, he chose to discipline several of his subordinates, including the reluctant robber Mr. Hamilton, whom he called "reckless."
Meanwhile Mr. Starkey himself was not disciplined for the incident by his superiors, the WKWD board of directors.
The Employment Law Group® law firm was not involved in Lee v. West Kern Water District. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.
This Bad Boss Said the Only Black Employee in Her Office Stank — Literally
Imagine if your boss put on a gas mask when you were around. You might take it personally.
It happened to Valerie Davis, a paralegal working for a state agency in St. Petersburg, Fla. One of her supervising attorneys, Suzanne Hurley, began wearing a conspicuous pink respirator at work because, she claimed, Ms. Davis wore perfume or another "noxious" substance that caused her to gag.
"I could smell her coming down the hallway," Ms. Hurley said in a deposition.
But Ms. Davis, the only African American in the office, says she never wore perfume: Just unscented lotion. She had recently filed a discrimination grievance, however — and that seemed to trigger Ms. Hurley's allergies.
Suzanne Hurley is our latest “Bad Boss of the Month.”
On May 18, 2015, a three-judge federal appeals panel upheld a $240,000 jury award to Ms. Davis for the anguish she suffered from Ms. Hurley's retaliation. In addition to wearing the mask, Ms. Hurley had accused the well-liked employee of being lazy, inept, and unable to write or spell. Each allegation conformed to "common racial stereotypes," noted Ms. Davis' lawyers.
The state agency denied any racism or retaliation, but conceded that "it is undisputed" that Ms. Hurley was "difficult." Indeed, the trial judge called this the agency's "only real defense" — the idea that Ms. Hurley treated everyone badly.
It all started when Ms. Davis asked for a promotion.
Before Ms. Hurley arrived at the Florida Agency for Healthcare Administration (ACHA), Ms. Davis was known as a diligent, quick-to-smile paralegal specialist. A senior co-worker had retired months before, leaving an open slot; as a result, Ms. Davis was serving as the only support staff for four lawyers in the office.
Ms. Davis applied for the empty job, but the promotion went instead to a white woman, Cathy Keith, who was from a different department and had no recent legal experience. Ms. Hurley was among those who reviewed the job candidates.
Ms. Davis filed a discrimination grievance with the AHCA Human Resources department. And around that time, she also got a new co-supervisor — Ms. Hurley.
At first, the women got along OK. They would walk around the lake outside the office and talk; Ms. Hurley even baked Ms. Davis a birthday cake. But after the state began investigating the grievance, asking questions of Ms. Hurley, Ms. Davis felt relations chill. The attorney became critical and curt, claiming to observe “deficiencies” in Ms. Davis’ work performance, including “numerous grammar and spelling mistakes.”
Ms. Davis previously had reported only to senior attorney Jim Harris, who regularly gave her high marks on her evaluations. Now Ms. Hurley gave her a far harsher rating: 1.37, a score that usually would be a prelude to firing.
Stung, Ms. Davis sent a rebuttal in which she said that “discrimination and retaliation are rampant at this office.” Ms. Hurley snarked that Ms. Davis must have gotten someone else to write it: “Unlike Ms. Davis, the person who wrote her rebuttal can spell, punctuate, and write using correct English.”
And then there was the mask, which Ms. Hurley wore only for Ms. Davis.
Ms. Davis didn't wear scent at the office, but others did: Ms. Keith wore strong perfume, the trial court heard, and one of the male attorneys wore cologne and aftershave. Ms. Hurley never wore her pink mask around either of those people, however, even though both also were smokers — another declared sensitivity.
Ms. Davis felt shamed: It was “embarrassing to walk into an attorney’s office that you’re trying to work hard for and see her with this pink thing on," she said. "It was hurtful and it brought my self-esteem down."
She became “isolated” in the office and stopped going out to dinner with friends. Some days she didn’t want to eat at all, and her weight fluctuated. “All I want to do [since then] is sleep,” she testified.
Ms. Hurley had drawn a complaint from a black assistant at a previous job, too, yet she insisted that neither race nor retaliation was a factor here. AHCA agreed, but otherwise declined to salvage her reputation. During closing arguments, the AHCA lawyer acknowledged that Ms. Hurley "doesn't get along, frankly, with a lot of people … because she is what she is" — which may be, he later indicated, a "crazy person."
In its verdict, the jury found that race wasn't a factor when Ms. Davis was passed over for the promotion. But it unanimously found that her grievance had resulted in “materially adverse treatment,” and that she was entitled to nearly a quarter-million dollars in damages.
The trial judge said the evidence supporting such a verdict was "strong" — and the appeals court later affirmed that justice was done.
The Employment Law Group® law firm was not involved in Davis v. Florida Agency for Health Care Administration. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.
With a Backdated Firing, This Bad Boss Hit a New Low in Age Bias
Cody Berguson had laid the groundwork — he was ready to fire James King.
But Mr. King was unavailable: The 65-year-old pharmacist was caring for his wife, Trudy, who was hospitalized for surgery.
Mr. Berguson, a pharmacy supervisor for health giant CVS, waited a few days. Then he called in Mr. King and, in a two-minute meeting, terminated him.
The kicker: Mr. Berguson backdated the termination to before Trudy King’s surgery, which meant that CVS-supplied insurance no longer covered her hospitalization. The Kings had to pay their medical bills with credit cards.
Cody Berguson is our latest “Bad Boss of the Month.”
Earlier this year, a federal jury found CVS liable for age discrimination and awarded Mr. King more than $1 million in damages — then doubled it by finding that CVS “willfully” violated the Age Discrimination in Employment Act, for a final award of more than $2.1 million.
CVS is fighting the verdict.
At the time of his firing, Mr. King had worked at the CVS Pharmacy in Pell City, Ala., for more than seven years. Although he was 65, he had no intention of retiring: “I wanted to work until I died,” he said at trial, joking that his wife “didn’t want me around the house.”
In reality Mr. King enjoyed working and needed to pay for the education of his daughter, who was still in high school and planned to go to college.
Mr. Berguson, however, seemed to have a different plan.
Soon after Mr. King’s 65th birthday, the CVS supervisor started what Judge Virginia Emerson Hopkins characterized as a “retirement-related inquisition,” repeatedly asking Mr. King pointed questions like “Don’t you have enough money to buy an annuity and retire?”
Mr. Berguson also began what Mr. King called “a constant barrage of unjustified and petty criticisms,” writing up the pharmacist for sins including a “bad attitude.”
Before long, Mr. Berguson and another regional official called Mr. King into a meeting and told the pharmacist he was under investigation for allowing other employees to use his “manager card” for voiding transactions, among other things.
They also faulted him for taking too many smoke breaks — they had reviewed an entire day’s video and tracked his smoking to the minute — and for failing to properly document his purchase of two Diet Pepsis.
According to Mr. King, Mr. Berguson called him a “thief,” a “liar,” and “lazy” — and topped off the encounter by asking, “Now, what about retirement?”
Fearing the worst, Mr. King complained to Mr. Berguson’s boss and also called a company hotline to say he felt like a victim of age discrimination. But CVS did nothing — and things escalated.
One day when Mr. King was not working, a younger pharmacist filled a narcotic drug prescription via the store’s drive-through lane. It was for the wife of a local judge but, based on later investigation, was picked up by an unauthorized person.
A few days later, the irate judge — a longtime customer well-known to CVS staff — arrived at the pharmacy to get his wife’s pain medication. Seeking to make things right, Mr. King gave him replacement pills without forcing the judge to contact a doctor first.
In a prior incident of this type, CVS had sorted out details later. This time, however, Mr. Berguson told Mr. King he had violated state law and suspended the pharmacist without pay. CVS referred the incident to the Alabama State Board of Pharmacy — and reported it to local police.
A stunned Mr. King gave a statement to the pharmacy board investigator; he was told he’d be called for a hearing if the matter went any further. Neither the board nor the police ultimately took any action against him; Mr. King remains a pharmacist in good standing.
In the meantime, however, Mr. Berguson had sent an e-mail to CVS officials: “Considering … this latest issue, one month after meeting with him about the Pepsi issue … I would think it’s time to relieve Jim of his duties as an employee of CVS no matter what the state board decides to do with him.”
CVS approved the termination without waiting for further facts, and Mr. Berguson tried to implement it immediately — only to find Mr. King tending to his hospitalized wife.
As jurors heard, it wasn’t the first case of age discrimination involving Mr. Berguson. That’s “not coincidental,” Mr. King’s lawyers said: Under direction from CVS to hire a quota of newly-minted pharmacists, the supervisor had to create slots for cheaper, younger new hires across a 23-store territory from Auburn to Birmingham.
In a 2013 jury trial against CVS, veteran pharmacist Roger Harris won $800,000 on similar claims of Mr. Berguson's prejudice.
Like Mr. King, Mr. Harris had been subjected to ageist heckling by Mr. Berguson; like Mr. King, he had received multiple write-ups over the six months before being fired; like Mr. King, he was terminated at age 65.
There was no sick wife in the case, but Mr. Harris suffered his own cruel flourish: Mr. Berguson fired him on his 65th birthday.
The Employment Law Group® law firm was not involved in King v. CVS Caremark Corp. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.
After Her Protégée Fell In Love With a Woman, This Executive Turned Into a Bad Boss
Diana Castle was more than a boss to Shelly Flood—she was her official mentor, tapped to help Ms. Flood advance at Bank of America.
That made what happened next all the worse.
Ms. Castle, a senior bank official, had been paired with Ms. Flood, a customer service employee, in a Bank of America mentoring program for women. The two clicked at first, discussing their shared experiences as working moms and Ms. Flood’s path to promotion. Ms. Flood applied for a job in Ms. Castle’s department, and Ms. Castle hired her.
Things fell apart, however, after Ms. Castle learned that Ms. Flood was romantically involved with a woman. According to documents in a lawsuit filed by Ms. Flood, Ms. Castle launched “a campaign of harassment and discrimination” that ended with the firing of Ms. Flood from the bank’s operation in Belfast, Maine—and the firing of Ms. Flood’s partner, too, from a separate company.
Diana Castle is our latest “Bad Boss of the Month.”
Earlier this year, the U.S. Court of Appeals for the First Circuit ruled that a reasonable jury could hold Bank of America liable for a hostile work environment caused by Ms. Castle’s “constant and disapproving scrutiny.” Rather than face trial, Bank of America opted in August 2015 to settle the case.
The trouble started after Shelly Flood—then called Shelly O’Donnell—started dating her wife-to-be, Keri Flood, who worked for a janitorial service that cleaned the bank. The two women had met in 2009 while on a smoke break; Shelly took Keri’s last name after a commitment ceremony in August 2010.
Stories differ on how Ms. Castle learned of the romance, but around April 2010 the executive’s “demeanor shifted,” according to Shelly Flood—becoming cold and targeting the junior woman’s relationship.
In a deposition, Ms. Castle agrees that she asked middle managers to monitor the couple’s behavior “to make sure that [Shelly Flood] didn’t have distractions.” Whenever Keri Flood approached her desk, says Shelly Flood, a manager “would stand up and watch me the whole time.”
Ms. Castle complained about Keri Flood’s “hanging out” both directly to Shelly Flood and to the bank’s liaison to the janitorial service. Besides distracting bank employees, she said, Keri Flood “didn’t seem to be doing a very good job cleaning.”
Ms. Castle’s comments resulted in a reprimand for Keri Flood but also a slap to Ms. Castle, whose superior intervened at Shelly Flood’s request and said he had no problem with Keri Flood visiting Shelly’s desk.
According to Shelly Flood, Ms. Castle’s actions kept escalating: The executive retroactively downgraded Ms. Flood’s performance, for instance, and forced a manager to issue her an erroneous warning. She told Ms. Flood not to participate in LGBT meetings during work hours—despite being part of the LGBT group herself. (Ms. Castle identifies as heterosexual and is married to a man, but says she has “numerous” gay friends.)
Shelly Flood took the hint: She ended the mentor relationship and began looking for another job at Bank of America—only to have Ms. Castle sabotage her effort by contacting at least one hiring manager to say Ms. Flood wasn’t ready for more responsibility.
Finally, Ms. Flood says, she couldn’t endure any more and stopped going to work. She sent a letter to Ms. Castle explaining that she believed she had been “retaliated against and judged on my personal life’s choices.”
Ms. Castle recommended that Bank of America follow its procedures for job abandonment, and Shelly Flood was terminated.
Shortly afterward, Ms. Castle reported an incident in which Keri Flood supposedly tried to push a pregnant bank employee down a stairwell. Keri Flood denies that the altercation ever happened—but Bank of America still banned her from its premises, and her employer fired her as a result.
Both Floods sued. Among other things, Keri Flood claimed that Bank of America defamed her and interfered with her employment; the defendants settled with her in 2013 after a trial became inevitable.
Shelly Flood’s discrimination claims remain open, but will be dismissed this month when a settlement is completed to avoid a trial in which, according to First Circuit judge Kermit Lipez, a reasonable jury could find “that Castle harbored animus toward Flood” and that the bank “actually fired Flood because of her sexual orientation.”
The Employment Law Group® law firm was not involved in Flood v. Bank of America Corp. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.
Faced With a Life-or-Death Situation, This Bad Boss Stuck His Head in the Sand
When one of his workers became buried in a bin of sand — initially up to his shoulders — company procedure and government regulations demanded two simple actions of Don MacKenzie, a plant manager at Dukane Precast, Inc.: Mr. McKenzie should have called the local fire department, and he should have halted any unsafe rescue attempts.
Instead, Mr. McKenzie reacted with “plain indifference” and “nonchalance,” according to an administrative law judge. After a few minutes watching untrained employees scramble ineffectively to save their co-worker’s life — actions that were forbidden and could have endangered them all — Mr. McKenzie decided there was no emergency. He left the scene and continued his daily routine in another part of the Dukane concrete-products plant, which is in Naperville, Ill.
Not until an hour or so later, with the engulfed worker begging for someone to dial 911, did Mr. McKenzie return to the area and finally call the fire department.
Mr. MacKenzie is our latest “Bad Boss of the Month.” In May 2015 the U.S. Court of Appeals for the Seventh Circuit found that he acted “recklessly” and “willfully,” and upheld a resulting $70,000 penalty against Dukane.
According to court records, the harrowing incident started one February morning in 2012. William Ortiz, a mid-level supervisor under Mr. MacKenzie, climbed into an 18-foot deep silo to clean the sides of the container. It was about two-thirds full of sand. As he began working, the sand gave way and he was quickly engulfed.
Mr. Ortiz was scared and in pain, he later told a tribunal of the Occupational Safety and Health Administration (OSHA). Every time he took a breath, the pressure grew tighter on his chest. He thought he was going to die.
Upon hearing his screaming, several co-workers ran to the bin, jumped in, and began using buckets to dig out Mr. Ortiz. About 10 minutes later Mr. MacKenzie arrived and, despite having received training to the contrary, allowed their risky efforts to continue. He joked briefly with Mr. Ortiz and then, without acknowledging what an OSHA judge called a “dire need for assistance” — and without informing his superiors of the situation — Mr. MacKenzie matter-of-factly walked away.
(Mr. MacKenzie told OSHA that he believed Mr. Ortiz was in no danger and that the relevant safety rules didn’t apply; the judge dismissed his testimony as “not objectively plausible.”)
By the time the Naperville Fire Department’s Technical Rescue Team arrived, about 90 minutes after Mr. Ortiz’s initial engulfment, the trapped worker needed intravenous morphine for his pain. It took four more hours to free Mr. Ortiz with a special vacuum truck; he was hospitalized with multiple squeezing injuries to his lower body, including a herniated disk and a torn meniscus.
As the fire department was helping Mr. Ortiz, Dukane executives sprang into action — on damage control. They called an attorney and a crisis-management expert; worked with Mr. MacKenzie to get everyone’s story straight; and ordered a plant-wide cleanup ahead of an expected OSHA investigation. Warning signs quickly appeared by the sand bins; none had been posted when Mr. Ortiz got buried.
The next morning, before OSHA arrived, Mr. MacKenzie helped to oversee an all-hands effort to get rid of broken equipment and move improperly stored chemicals.
Despite these actions, OSHA found serious violations — including a missing railing at the top of the sand bins — and was especially critical of Mr. MacKenzie’s “willful” failure to implement safety rules.
In its appeal of the $70,000 penalty before the Seventh Circuit, Dukane argued that Mr. MacKenzie hadn’t done anything wrong: OSHA regulations call for a rescue plan, it said, and Dukane had a plan; the rules don’t say anything about acting on the plan.
“That may be a permissible literal interpretation,” wrote Judge Richard Posner drily, “but it is neither inevitable nor sensible, as it would allow the employer to do nothing at all to rescue a worker injured or endangered at work — not even call 911. Literalism frequently, and in this instance, leads to absurd results.”
There is “no doubt,” concluded Judge Posner, that Mr. MacKenzie failed in his duty.
The Employment Law Group law firm was not involved in Dukane Precast, Inc. v. Perez. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.
We Found Our First Bad Boss at an AutoZone Store in Connecticut
Bad bosses come in many flavors.
There’s the boss who hands you a huge project as you’re trying to leave for the day.
There’s the boss who expects you to answer e-mail while on vacation.
And then there’s the boss who dons a Rasta wig to demean your religion — and compares you sexually to co-workers and customers saying, “I don’t discriminate. I do black, white, Puerto Rican, anything.”
Meet Michael Balboni, a manager at an AutoZone store in Bloomfield, Conn., and our first “Bad Boss of the Month.” In March 2015 the Connecticut Supreme Court found “ample evidence” that Mr. Balboni’s behavior toward a former worker at the store was “despicable.” As a result, the court ruled, a state jury may hear the worker’s claim of sexual harassment.
According to Doris Feliciano, the former AutoZone worker, Mr. Balboni critiqued her “flat ass” and commented on the “black, juicy” physiques of other women — employees and customers alike. Mr. Balboni also “rubbed his crotch against her buttocks” in the store aisles, she said in court filings, despite having “plenty of room” to walk by.
After Ms. Feliciano threatened to complain to AutoZone higher-ups, she said, Mr. Balboni got ticked off and sent her a text message that said, “You b***h.” He made coarse references to having sex with employees. And when she suffered from knee pain, she says, Mr. Balboni called her “a man” and said she should work anyway.
Then there was her hair, which as a Rastafarian Ms. Feliciano wore in dreadlocks.
Mr. Balboni asked what was “wrong” with it, wondering aloud whether she ever washed, according to Ms. Feliciano. She said he paraded in a dreadlock wig in front of her co-workers, declaring, “I’m a Rastafarian. Watch me because I steal.”
Mr. Balboni also mocked Ms. Feliciano’s Caribbean heritage, she said, referring to her as a “f***ing Jamaican” — even though Ms. Feliciano is an American citizen from the U.S. Virgin Islands.
When she challenged him on his behavior, she said, he claimed to be joking.
The Connecticut Supreme Court saw no humor, however, and said a jury should decide whether AutoZone is liable for sexual harassment.
The court’s decision was a limited win for Ms. Feliciano, who had been fired from AutoZone after a computer flagged her for misusing a customer rewards card. In its opinion, the court said that while Mr. Balboni may have discriminated against her, Ms. Feliciano’s actual firing wasn’t discriminatory — as she had claimed — because Mr. Balboni had nothing to do with it.
Astonishingly, two lower courts had said AutoZone didn’t need to face a jury even for Mr. Balboni’s alleged harassment — holdings that the Supreme Court called improper. Reasonable jurors could conclude, the court said, that the Bloomfield AutoZone was “permeated with discriminatory intimidation, ridicule, and insult.”
The Employment Law Group law firm was not involved in Feliciano v. AutoZone, Inc. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.