Police: Allegations in city mower death inconclusive

By Peter Salter, Lincoln Journal Star, May 6, 2011

The months-long police investigation into last year’s lawn mower death of a city worker is done, delivered — and largely inconclusive.  And it will likely do nothing to quell complaints that the city’s street maintenance department fosters fear, intimidation and unsafe practices.

“When an investigation about whether they protected employees from safety hazards comes back inconclusive, it doesn’t speak well about the management of the organization,” said Gary Young, attorney for the union representing the city’s blue-collar workers.

Young called the street maintenance department “the worst-managed division of any public employer” of the unions he represents.  ”The accident that happened, if it’s going to happen, this is where it’s going to take place.”

On Aug. 16, Eric Kohles was found crushed by a 1,200-pound riding mower at the bottom of a grassy ditch.  The 37-year-old worked for the city’s storm water division but had been helping mow that day — first near 56th and Sumner streets, and, after lunch, near 56th and Seward in northeast Lincoln.
The husband and father died four days later.

The next week, nearly a dozen street maintenance employees filed a grievance against their supervisors, alleging Kohles was told to mow an unsafe area with an unsafe mower he’d never used before.  They also said they’d warned supervisors about the mower and they’d been punished and humiliated for raising concerns.

They sought a third-party investigation of the accident and in early November — after the Public Works Department’s own probe proved inconclusive — the mayor asked the police to look into the complaints.
An internal affairs detective spent about 80 hours on the assignment, focusing only on complaints in the grievance. He interviewed 18 workers and managers, pored over records, checked aerial photos and weather data.

“All we could conclude was that no supervisor told Eric to mow that ditch with that mower, and that he had never received training on that mower,” Police Chief Tom Casady said.  The investigation found no evidence to conclude Kohles was told to mow with the Heckendorn. He was told to drive the pickup pulling the mower, and he beat his foreman to the site, Casady said. “It looks to me that Eric wasn’t the kind of guy who would stand around waiting for his foreman. He unpacked his equipment and went to work,” Casady said.

An experienced supervisor would have likely prevented the riding mower from mowing the steep slope of the ditch.  There’s little flat ground at the site, so it’s not clear why Kohles was sent there hauling the Heckendorn, Young said.  ”Why was it sent there? Because the management of that department failed to protect against it being sent there. And the person they assigned to use it was inexperienced and didn’t know better. Why they sent it there, I don’t know.”

The police also couldn’t prove employees warned street maintenance director Scott Opfer about the mower in 2008 — or that employees were punished for raising safety concerns.  The workers said they raised concerns about two mowers; Opfer told the investigator he was told about a Toro boom mower and had it checked out, but couldn’t recall warnings about the Heckendorn, Casady said.

Union members also told investigators two workers were forced to cut the shop yard’s grass with push mowers under a hot sun in September 2008. Casady said his department compared mower records with weather data — and found no evidence of the allegation.  And Casady made it clear: Just because his department couldn’t prove an allegation, it wasn’t ruling it out, either. It’s simply inconclusive.

That’s not good enough for Young, the union lawyer. The standard of proof they required decided the matter before it started,” he said.

Multiple employees gave accounts substantiating the grievance, Young said. For example, employees witnessed and reported the alleged push-mower punishment.  The police department should have considered a preponderance of evidence, but the chief set the bar too high.  ”When employees testify and that’s not enough, then you can’t prove anything.”

Casady said his department used the same standard as in all internal affairs investigations: An allegation must be conclusively proven to be sustained.  ”In my book, 51 percent doesn’t cut it when people’s jobs or careers could be on the line, whether it is a laborer, a manager or anything in between.”

With the investigation done, the Public Works Department now must decide whether to grant the grievance — and remove several supervisors from managing employees, as requested by the union — or reject it. Public Works Director Greg MacLean could not be reached for comment Thursday.  Then the union will decide its next step, which includes appealing a rejection to the city personnel board.

Casady did recommend the Public Works Department’s safety committee review the department’s training requirements, which he called “a bit iffy.”  Some equipment — graders and snowplows, for instance — require training. But it’s not as formal for smaller pieces, like riding mowers.  Public works should determine the equipment and tools that require training and then keep records of trained employees, the chief said.

“At the police department, you don’t get a rifle, a pistol, a Taser or a nightstick until you get trained.

If you or a loved one have been injured due to a defective product, call the Keating O’Gara Law Firm at 888/234-5621.

State prison employees file civil rights lawsuit
November 17, 2010
By Lori Pilger
Lincoln Journal Star

Four black prison guards at the Nebraska State Penitentiary filed a lawsuit Wednesday in U.S. District Court alleging the prison is a racially hostile work environment and administrators have failed to address their concerns.

Jaryl Ellis, Michael Hunter, Tiffany Johnson and Paul Zeiger, all of Lincoln, say in the suit they have been subjected to racially offensive comments and discriminatory actions while working at the prison.

“The racially charged environment at NSP is so severe that no reasonable person … should be expected to endure it,” their attorney, Jefferson Downing, wrote in the suit.

They are suing state Corrections Director Robert Houston, Deputy Director Frank Hopkins and penitentiary Warden Dennis Bakewell and Associate Wardens Cathy Sheair and Joseph Staley.

Downing said the comments and conditions the four have had to endure are unacceptable.

Over the past year, he said, it has become common practice for non-black staff and supervisors to make racially charged comments as black employees come in for the first-shift roll call, saying things like “looks like the back of the bus is here,” “smells like fried chicken” and “the hood has arrived.”

He alleged a corporal told one of the guards this summer he hates “how blacks act” and if they were in a group he would “shoot them all,” and that prison staff directed racially offensive words and comments at inmates that humiliated and embarrassed them.

Downing says the four reported their concerns to a lieutenant and a sergeant in August, and to prison management a month later when nothing was done. The response was disappointing, he said, and didn’t follow the prison’s policy in addressing workplace harassment.

He described the response in the lawsuit.

* Despite a policy that ensures confidentiality, word spread among staff and inmates that they had complained of a racially hostile environment after Sheair began an inquiry in October. Two of the employees’ vehicles were vandalized in the parking lot, and one of the guards was told they had better “watch their backs.”

* Later that month, they were called to a meeting with Bakewell and the associate wardens and waited two hours in a room with a picture on the wall of a black man picking crops. One snapped a picture of it with a cell phone.

* When the meeting started, they say, Bakewell said it was the first he had heard of any racial problems at the prison and he didn’t like to get involved in the issue. He said he was going to split them up and transfer them to different facilities within the Department of Correctional Services, but they objected.

* On Nov. 10, they met with Houston, Hopkins, Bakewell and Sheair and were told it would be difficult to take action to stop racially offensive comments, and that the most that could be done was to note inappropriate behavior in employment files.

Downing said it reached a point they didn’t think the institution was taking steps to address the problem, which led to the lawsuit. In it, they seek a judgment declaring the prison’s actions unlawful, an injunction to keep prison management from subjecting them to a racially hostile and intolerable work environment, and damages.

The four hope to improve the culture of the institution, he said, and while that may not happen overnight, it’s not happening at all now.

“If we can speed things along that would benefit not only our clients but also future employees of NSP,” Downing said.

Corrections spokeswoman Dawn-Renee Smith said the department had not officially received the lawsuit late Wednesday afternoon.

“Once we do we will respond through the appropriate channels,” she said.

But, Smith said, the department “has strong policies and practices that uphold equal treatment for all employees.”

The Plaintiffs seek injunctive relief and damages.  But according to their attorney, Jefferson Downing, “They really hope to improve the culture of the institution . . . The comments and conditions they have had to endure are completely unacceptable.” 

          The following excerpts from the Complaint outline the conditions that 1^st shift African-American officers have been subjected to:  

• Plaintiffs are African-American employees at the Nebraska State Penitentiary (“NSP”) who, over an extensive period of time, have been subjected to racially offensive comments and racially discriminatory actions that have served to create an intolerable and racially hostile work environment.  This claim is brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1988 for the deprivation of the plaintiffs’ rights secured to them by the First, Fifth, and Fourteenth Amendments to the United States Constitution.

* * *

• For safety and security purposes, it is required of staff to congregate and enter the facility together through what is known as the turnkey entrance.  Plaintiffs arrive for work and with the non-African-American employees of NSP proceed through master control, then through the turnkey area, to the staff dining area for roll call.  Over the last year, it became common practice for a significant number of the non-African-American staff and NSP supervisors to make comments when Plaintiffs arrive to the effect of:  “Looks like the back of the bus is here;” “Smells like fried chicken;”  “The gang has arrived;” “The ‘hood has arrived;” “If the lights went out, all you would see were white teeth;” and other racially charged  comments that are offensive, degrading, and humiliating to the Plaintiffs.
• Once the NSP employees pass through the front entrance, a sergeant is stationed nearby handling a drug-sniffing dog.  As non-African-American employees walk by the canine handler, he generally stands back and lets them pass without incident.  When the Plaintiffs walk through, the canine handler either moves forward or positions himself to have the canine drug-sniff the Plaintiffs.  This, too, is offensive, degrading, and humiliating to the Plaintiffs.
• The Plaintiffs have been subjected to racially offensive words and comments from NSP staff and supervisors that, while directed at inmates, serve to humiliate and embarrass Plaintiffs as African-Americans.  NSP staff have used the word “n_gger” and “n_ggers” in referencing inmates, as well as the term “black mother f____rs,” and other racially derogatory terms.  When observing African-American inmate behavior, the Plaintiffs have been asked by non-African-American staff:  “Why do you blacks act that way?”
• In the summer of 2010, an NSP corporal stated to one of the Plaintiffs that he hates “how blacks act” and that if they were in a group he would “shoot them all.”  The corporal professed to having been a member of a white supremacist group.  When these comments were reported by one of the Plaintiffs to an NSP sergeant, the Plaintiff was told to “Stay away from him; he’s a racist.”

* * *

• After Plaintiffs’ complaints became generally known, two of the Plaintiffs’ vehicles were vandalized while parked in the NSP parking lot.  One vehicle appeared to have been kicked in the side and another had a side view mirror broken and left hanging.
• After Plaintiffs’ complaints became generally known, one of the Plaintiffs was asked by a non-African-American employee near the front entrance, “What’s all this that’s going down . . . ?  You don’t want to be involved and you know what I mean . . . . You should watch your back.”
• After Plaintiffs’ complaints became generally known, one of the Plaintiffs was told by a non-African-American NSP officer that “the problem around here” is that “hotheads stir up trouble” and they (meaning the plaintiffs) had better “watch their backs.”
• After the Plaintiffs’ complaints became generally known, one of the Plaintiffs was told by a non-African-American officer that when he (the Plaintiff) went out into the yard, he had “better pair up” because “you never know what might happen in the yard.”
• Plaintiffs interpreted these remarks as veiled threats that if there would be a physical confrontation with inmates in the yard at NSP, non-African-American staff might not come to the aid of the Plaintiffs.
• In a prison setting, the most critical component of the working environment is the knowledge that despite their personal differences, staff always has one another’s safety at the fore of their minds.  It is an absolute necessity that prison staff protect “each other’s back.”  The veiled threat that some NSP staff might not “be there” for the Plaintiffs, has further served to create a hostile work environment for the Plaintiffs.  
• When Plaintiffs reported these comments in late October 2010 to Defendant Sheair and Defendant Bakewell, the Defendants responded that they would have an outside law enforcement agency investigate the matter.  An officer with an outside law enforcement agency then interviewed several of the Plaintiffs.  At the conclusion of the interviews, he advised the Plaintiffs that the comments did not rise to the level of an illegal threat.
• In late October 2010, the Plaintiffs were summoned to meet with Defendants Bakewell, Sheair, and Staley.  Defendants were late for the meeting and Plaintiffs were made to wait in a room at NSP for approximately two hours for the meeting to begin.  Plaintiffs were shocked and degraded when they saw a picture on the wall of the room that featured an African-American man stooped over picking crops.  One of the Plaintiffs captured an image of the picture with a cell phone camera.
•  When the meeting finally began, Plaintiffs were informed by Defendant Bakewell that this was the first he had heard of any racial problems at NSP.  Rather than address the actions of NSP staff who had made racially insulting and offensive remarks, Defendant Bakewell’s initial response was to blame the Plaintiffs.  Defendant Bakewell was dismissive of the Plaintiffs’ racial concerns and said that he did not like getting involved in “this issue.”  Defendant Bakewell advised the Plaintiffs that he was going to split them up and transfer them out of NSP to different NDCS facilities.  Plaintiffs objected because by working at NSP they have the opportunity to earn overtime and receive other benefits that they were not sure were available to them at other NDCS facilities.
• By placing them in a room for two hours with a picture of an African-American picking crops, making dismissive comments, and threatening an adverse employment action against them, the Plaintiffs felt that the Defendants were not taking the racial concerns of the Plaintiffs seriously and further contributed to the hostile working environment of the Plaintiffs.
• After the meeting with Defendants Bakewell, Sheair, and Staley, word immediately leaked out to NSP staff not in attendance at the meeting that the Plaintiffs were being transferred.  This further served to make the working conditions of the Plaintiffs difficult because it made them to feel that they, and not the racially offensive words and actions of the non-African American staff, were the problem.
• On November 10, 2010 a meeting was held with Plaintiffs and Defendants Houston, Hopkins, Bakewell, and Sheair.  Defendants advised Plaintiffs that the most that could be done to NSP staff who engaged in racially offensive behavior was to put a “B Form” in their employment file noting that their behavior was inappropriate.  Defendants advised the Plaintiffs that it would be difficult to take action to stop the racially offensive comments and behavior of NSP staff.

The entire complaint can be viewed here:  File Stamped Complaint.

SUIT CITES BIZARRE REASONING FOR FIRING
By Juan Perez Jr.
Omaha World Herald
June 30, 2010

A former employee of Omaha’s largest homebuilder has filed a lawsuit alleging that the company’s chief executive officer forced a religious agenda on workers and fired her because her unborn child carried “negative energy.”

The lawsuit was filed in U.S. District Court by Jammie D. Harms of Lincoln, who worked as administrative assistant to John J. Smith, chief executive officer of HearthStone Homes.

Harms alleged that Smith and other company managers “actively attempted to create a spiritual, religious work environment based on concepts incorporating universal energy, concepts of reincarnation, and intuitive spiritualism.”

Smith told employees that past lives can explain current behaviors, and they can be understood through positive and negative force fields, according to the lawsuit.

Harms, who alleges religious and pregnancy discrimination, is seeking back pay, reinstatement and compensatory and punitive damages.

An official with HearthStone Homes denied any wrongdoing and said Harms was fired, along with many other workers, because of the economic downturn that continues to plague the U.S. housing market.

Harms, hired in April 2008, believed she was required to follow these religious beliefs in the workplace and had to attend mandatory training sessions that reinforced the beliefs, said her attorney, Doug Peterson.

In April 2009, about one month after Harms told her boss she was pregnant, the lawsuit alleges that the following incidents occurred:

• Harms was called into a meeting led by Smith and other company managers. They told Harms that she had a troubling “disconnect” with her fetus.

• Harms was asked to take part in a conference call with an Arizona-based psychic to determine “whether or not negative energy was being created with the pregnant plaintiff because she had a male boss versus a female boss.”

• Smith consulted with a chiropractor and “self-described energy worker” who told Smith he shared a former life with Harms’ unborn child and suggested that he “partner” with the baby. Smith declined, saying the baby’s energy was hostile toward him.

Harms, who was paid $45,100 annually, was fired in June 2009.

Neil Smith, a HearthStone vice president who said he is not related to the company’s chief executive, declined to comment on the lawsuit’s allegations.

He said that Harms was let go because of the recession and that she declined the company’s offer of a severance package.

“This would appear to be just her next response as she tries to bring some sort of conclusion to her moving beyond HearthStone,” he said.

Neil Smith acknowledged that the company follows certain practices believed to help employees develop their intuition.

In addition to what he described as coaching sessions that help develop employee potential, he said the company uses massage therapy and creates quiet “meditative-type spaces, where people can take that time to get clear … so they can function at a higher level.”

Though the company’s practices may seem unorthodox, Neil Smith said, they should not be demonized. They even may have contributed to some of the company’s success despite bleak economic conditions, he said.

“The notion of ‘spiritualism’ takes it to more of an esoteric place that I’m not sure is productive,” he said. “We look at the body from a holistic perspective, and there are tons of different resources out there and we’re just open to exploring them.”

The company’s alleged emphasis on spiritualism has been argued before in the federal courts.

The 8th U.S. Circuit Court of Appeals upheld a jury verdict that favored a former HearthStone employee who sued the company for religious discrimination in 2003.

The employee, a Protestant, had alleged that the company fired him because he resisted attending “Mind Body Energy” sessions designed to cleanse his body of negative energy.

Neil Smith, the company vice president, said HearthStone did not want to force its views on any of its employees.

“I’ve not had anybody personally come to me and tell me that it’s been pushed on them,” he said. “We have a pretty open environment here. If someone feels like they had been pushed upon, it’s not while they’ve been working here.”

HearthStone has built homes in Omaha since 1970.

Builder Magazine recently ranked the company No. 28 on its annual Builder 100 list, up from No. 30 in 2008 and No. 64 in 2007, placing the company among the nation’s largest home construction companies.

If you or a loved one have suffered employment discrimination, please call the experienced Nebraska employment attorneys of the Keating, O’Gara Law Firm at 888/234-0621.

From Law.com:

‘Pants Judge’ Loses Wrongful Termination Appeal

Former administrative law judge Roy Pearson Jr. just can’t catch a break in his quest to hold someone accountable for losing his job with the District of Columbia.

Pearson, recall, was the judge who filed a multimillion-dollar suit against a dry cleaner over a lost pair of pants. The suit didn’t go unnoticed. In 2007, Pearson was denied reappointment to his post as a D.C. administrative law judge. Pearson sued, making a host of claims.

When Pearson’s wrongful termination suit was dismissed by the federal district court in Washington, he turned to the U.S. Court of Appeals for the D.C. Circuit. Thursday, a three-judge panel upheld the dismissal of the suit . . . .

“The district court correctly concluded Pearson’s testimony before the D.C. Council and private communication with the Council’s staff were not protected by the First Amendment to the Constitution of the United States,” D.C. Circuit Judges Douglas Ginsburg, Karen LeCraft Henderson and Merrick Garland said in a two-page judgment Thursday.

The judges pointed to a D.C. Circuit ruling last year in an unrelated case where the court said that a public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities. “Pearson did just that,” the panel judges said Thursday.

Pearson’s suit against his dry cleaner was also not protected speech, the appeals court said. “That suit did not involve a matter of public concern; as the district court stated, it was more properly ‘characterized as a personal vendetta against a dry cleaners over a pair of pants.’”

Former Beatrice bank worker wins appeal
Saturday, Mar 14, 2009 – 09:00:17 am CDT
The Associated Press

OMAHA – A federal appeals court has reversed a lower court’s decision against a former Beatrice bank worker who said he lost his job because of his rare voice disorder.

The 8th U.S. Circuit Court of Appeals on Friday said the U.S. District Court was wrong to rule in favor of First National of Nebraska before trial and against Jeffrey Willnerd. There are significant facts in the case that warrant a jury trial.

The case has been sent back to the federal court.

First National is the parent company of First National Bank.

Willnerd, of Beatrice, sued First National in 2005, saying the company’s decision to eliminate his job and refuse to rehire him violated rights guaranteed by the Americans With Disabilities Act.

Years earlier, Willnerd was diagnosed with a neurological voice disorder that made it difficult for him to speak.

First National has said Willnerd’s job was eliminated for economic reasons. The company also said he wasn’t rehired because of the merits of other job applicants, according to court documents.

In 2007, a federal judge granted First National’s request for a summary judgment in its favor, without a trial.

But, said the three-judge appellate panel, “Because reasonable jurors could resolve these outstanding questions in Willnerd’s favor and conclude he is entitled to relief on his claims, we reverse.”

Doug Peterson, Willnerd’s Lincoln-based attorney, said he was encouraged by the decision and believes the court analysis was very complete.

Phone messages left with First National’s attorneys were not immediately returned.

Willnerd began working at a Beatrice bank in 1982. He was primarily responsible for real-estate loans and some commercial and installment lending. In 1983, First National acquired the bank.

In 1999, he noticed his voice was starting to cut out and worsened in following years to the point where he could only whisper. He interacted regularly with customers and didn’t request any accommodations or seek different bank duties.

First National has said that during the same period between 1999 and 2003, the bank branch’s performance suffered. The company realized it needed to cut expenses or boost income. In 2002, it began moving some duties of smaller branches to Omaha and that included some of Willnerd’s responsibilities.

Willnerd’s job was eliminated in September 2003. Later that year, he was diagnosed with a rare neurological voice disorder.

A supervisor later wrote in a memo that a downturn in the economy forced the move. He also described the merits of Willnerd and other employees and concluded that Willnerd’s position as a sales representative was the most expendable, according to court documents.

In total, Willnerd applied for 22 positions with First National between December 2003 and October 2005, but he raised issue with only four instances in his appeal.

“It is not necessarily the case that Willnerd was more qualified than the person actually hired, and at the end of the day, a jury may well accept First National’s proffered rationale,” the panel wrote.

If your employment rights have been violated, call the attorneys of Keating, O’Gara, Nedved, & Peter at 888/234-0621 for a free consultation.