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.”

Judge dismisses Lancaster Manor defamation suit
Lincoln Journal Star
by Algis J. Laukaitis
March 18, 2010

A judge has dismissed a defamation lawsuit filed by Hunter Management against Kim Kaspar and the union that represented Lancaster Manor employees.

“It’s very good news, and it’s consistent with our theory that this was an attempt to shut down our free speech,” said Lincoln attorney Gary Young, who represented Kaspar and American Federation of State, County, and Municipal Employees Local 2468.

Kaspar is president of the union, which fought unsuccessfully to stop the county board from selling Lancaster Manor, a 293-bed nursing home at 1001 South St. The sale is in the final stage of closing.

During several town hall meetings and appearances before the board, Kaspar and the union voiced concerns about Hunter Management and the care it gave residents. The Evanston, Ill.-based company owns all or part of about 40 nursing homes, including Homestead Rehabilitation Center in Lincoln . . . .

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.

Employee groups are starting to fight back. In Lincoln County, for example, Keating, O’Gara attorney Gary Young helped Fraternal Order of Police Lodge 26 in North Platte stop a recent attempt by the County Sheriff to ignore the Bargaining Agreement and negotiate directly with a favorite employee for a special wage and benefit side deal, meant for him only.

Faced with the reality that the actions of the Sheriff were an unfair labor practice, the Lincoln County Commissioners rethought the plan:

Wages scaled back
By Mark Young , The North Platte Telegraph
01/15/2008

“It’s quite a slap in the face from this board,” said Lt. Dave Williams, jail administrator for the Lincoln County Sheriff’s Department, referring to his wage being scaled back after union representatives from the Fraternal Order of Police filed a complaint against the county.

According to Roland Kramer, state trustee for FOP, complaints were lodged for the way Lincoln County negotiated Williams’ contract when FOP is responsible for negotiating all salary wages for every officer, with the exception of sheriff and chief deputy. All other department officers fall under the FOP negotiated contract.

Attorneys for FOP argued that Williams’ contract with Lincoln County was not negotiated by FOP and that he was hired out of classification. Williams was hired under a Step 3 pay scale, but under a road patrol scale, not corrections.

FOP legal council has labeled it an unfair labor practice and has demanded that Williams’ current salary be rescinded.

“FOP has now been told that (the county) is willing to negotiate, but has refused to rescind its actions,” said legal council for FOP Lodge 26, in a written letter to the Lincoln County Board of Commissioners.

The letter further accused the county of continuing to perpetrate this action and while litigation was not wished, it would become necessary to file litigation against the county if it did not rescind Williams’ salary. Last week, Lincoln County Sheriff Jerome Kramer credited Williams with saving the county up to $15,000 a month in medical expenses alone with his administrative efforts.

Williams expressed disappointment with the commissioners’ actions despite it appearing to be a case of hands tied on the part of the commissioners.

“It’s my opinion we are hamstrung unless we are willing to go to litigation and personally I think it’s litigation that we can’t win,” said Commissioner Joe Hewgley.

Williams was nonetheless disappointed not only for the action, but indicated that the proposed negotiations that were expected to take place this week to resolve the issue apparently never took place.

“It was my understanding at last week’s meeting that the union and the board were going to negotiate this matter,” said Williams. “I’m disappointed and it was my hopes that this board would be behind that.”

Hewgley said he, too, was disappointed, but that it appeared the board had no legal recourse. Williams, however, feels as though he may have some and informed the board that he would be contacting his own attorney and, “will proceed from there.”

Ultimately, the commissioners were able to hire Williams under a Step 4 pay scale for a correctional lieutenant, but Williams said it was still a drastic pay cut that he could not afford to take.

Roland Kramer was asked by County Chairman Duane Deterding if what happened here was going to be satisfactory to the FOP union.

“I’m not sure where you are going with that, but what happened clearly fits the demands,” he said. “All I can do is report back to the executive board and let them know what happened here today.”

The decision by the commissioners apparently eliminated any need for further negotiation on behalf of an individual, but the issue can be brought back up when the county negotiates the FOP contract in September. Legal counsel for FOP indicated in its letter that any new negotiations on behalf of Williams would require new negotiations for all employees, not just one.

Visibly upset, Hewgley assured Williams, “You are not the only one disappointed. . . .”