Sunday, June 30, 2013

Granados v Dona Ana County - Day 5

[Note: again, if you're a juror in this case DON"T READ THIS -- and if you know a juror in this case, please don't send him or her a link to this!   If you're not a juror, feel free.  This post covers the fifth day of trial, Friday.  If you haven't been following the case, there's some background in Tuesday's post  [Day 2], and in Diana Alba Soular's good article on the opening of the trial.)  You can also just page down to Thursday's post covering Day 4, or further down to the posts for Days 2 and 3.]

        It was another interesting day, which featured testimony by a former county employee and one current one that they'd experienced retaliation by the county and/or seen examples of discrimination.

        Friday morning began with the completion of Interim County Manager's Sue Padilla's direct examination -- and her cross by the lawyer for the County.  (In civil trials a party can call an adverse witness, and then the witness’s own lawyer actually does cross-examination.)
        Much of the testimony focused on the four basic reasons given Mr. Granados for termination of his county employment.   Plaintiff says his firing (which followed by two days a complaint he says he made to County Manager Brian Haines concerning Ms. Padilla) was on trumped-up charges, and that the real reason was to retaliate for his complaint concerning discrimination and a hostile work environment.   Defendant says there was ample reason to fire him, that it was unrelated to whatever complaints he may have made, and that some of the four specific grounds were more significant than they might look at first glance.
        To recap, the four grounds given for his June 2010 termination basically were:
        1. An occasion in mid-2008 when Ms. Padilla had told one of Mr. Granados's subordinates that for budgetary reasons a woman working under that subordinate could not attend certain training in Albuquerque; the woman felt that the training, while not required to get or keep any certification, was very important to her work; it started the following morning at 8; she volunteered to take time off and pay her own way; and Mr. Granados gave her permission.
             He received a reprimand for insubordination.  In his Pre-Termination Notice in 2010, he was cited for insubordination and dishonesty in connection with this training incident.  I understand the insubordination charge, but I haven't yet figured out what the alleged dishonesty was.
Ms. Padilla testified that recession had reduced revenues and required limiting non-necessary training.  She also testified that even if Ms. Guerrero offered to pay for her own training and travel, federal labor standards laws would require the county to reimburse her.
Ms. Padilla testified that this 2008 "training incident" offense was not by itself sufficient ground for Mr. Granados's termination.  However, she testified that it was important because Mr. Granados had disobeyed her, and those working under him would or might model their conduct on his.
         2. Alleged destruction of documents with regard to verbal warnings given two road foremen who apparently were heard shouting at each other.  Two frequent forms of discipline are the verbal warning (of which a written copy is kept in the warnee's department, but is not normally placed in his personnel file) and the written reprimand, which does go into the malefactor's personnel file.   The two road foremen received the lighter "verbal warnings", although there had been discussion of giving them reprimands.  Whichever they got, Mr. Granados was accused of destroying them, but brought copies with him to his Termination Hearing.
Ms. Padilla testified that although Mr. Granados had not destroyed documents reprimanding the two road foremen who shouted at each other, the shouting constituted work-place violence and required the County to follow particular procedures in case one of the participants later acted violently toward another someone while working for the county.
          3. The Jason Ireland Incident.  Jason Ireland worked on a road crew and spoke no Spanish.  Someone reported to Mr. Granados that Mr. Ireland felt overworked and was unhappy that mostly Spanish was spoken by his crew; he was transferred to a crew where mostly English was spoken.  According to Mr. Granados, he asked his immediate subordinate, the Road Manager, to follow up and check how things were going, then heard back that things were fine.
           The Pre-Termination Notice accused him of mishandling a discrimination or EEOC complaint by Mr. Ireland.
The Defense has indicated that Mr. Ireland had later filed an EEOC action for a second incident in which his co-workers allegedly talked about him in Spanish, possibly saying derogatory things.  However, this complaint apparently was filed after Mr. Granados’s departure, and there was no testimony that Mr. Granados had ever known about this or that he’d either observed discrimination against Mr. Ireland or been told about discrimination by Mr. Ireland.  Therefore it’s not clear to this observer how this incident contributes to his termination.
           4. At some point there were discussions of a presentation to honor the road crew, or perhaps the entire Public Works Department.  There was also some sentiment that such a presentation would be somewhat empty in the context of years without a raise.  A city consultant named Cliff Richardson either said or didn't say to Mr. Granados and some of his co-workers something to the effect that the presentation "would ring hollow" in the ears of workers who'd gone three years without a raise.
            The Pre-Termination Notice accused Mr. Granados of lying when he told management that the consultant had said this.  (Ms. Padilla testified that the consultant denied saying any such thing.)
At the Termination Hearing, a second worker presented a signed statement corroborating Mr. Granados's account.
Ms. Padilla testified today that the consultant denied saying any such thing.  She denied that she believed Mr. Richardson rather than Mr. Granados because Mr. Richardson is Caucasian.  She did not articulate her reason for believing Mr. Richardson.  However, the Defense also noted that this allegation was omitted from the post-Hearing letter explaining why Mr. Granados was fired.
(I do not have a copy of the Pre-Termination Notice or the letter explaining why Mr. Granados was fired.)
Ms. Padilla denied that there was a conflict of interest in Mr. Haines, who had signed the Pre-Termination Noice, acting as hearing officer.  Mr. Haines had also been the recipient of some of Mr. Granados’s complaints.
         On cross-examination by her lawyer, Raul Carrillos, Ms. Padilla also testified that the original complaint by Mr. Cordero (passed on by Mr. Granados) didn’t specifically reference a “protected class” so as to implicate EEOC procedural requirements.  On redirect plaintiff’s lawyer, Brett Duke, showed her the letter in which Mr. Cordero said he thought Ms. Padilla’s alleged harassment of his department was because its employees were “mostly minorities and less educated.”
Plaintiff has stressed that EEOC and Dona Ana County procedures forbid the person who allegedly discriminated from being part of the investigation or meeting with the complainant.   The Defense has emphasized that Ms. Padilla testified, and that Mr. Cordero testified, that everything was fine after a meeting among Ms. Padilla, Mr. Cordero, and Human Resources Director Kathe Stark.  (Whether jurors will credit this testimony, in light of Mr. Cordero’s continued employment under Ms. Padilla and confessed “nervousness” about the possibility of retaliaion, is of course uncertain.)
She also testified that the reason Mr. Granados first received a performance evaluation in October 2008, after the Cordero complaint, was that the county had been working on standard forms for such evaluations.

Brian Haines testified that Mr. Granados had initially done a very good job but that his work had begun to deteriorate in unspecified ways during 2008.  He denied that Mr. Granados had complained to him of harassment or discrimination.

Former Internal Affairs Investigator Kim Stewart testified by telephone from Ecuador, where she now lives.  Ms. Stewart is the Plaintiff in a separate lawsuit against the county regarding termination of her employment.
Ms. Stewart stated that she had observed relatiaion against employees who filed dsicrimination complaints, and that Leticia Benavidez had complained to her of retaliation by management against her.   She specified Ms. Padilla and County Attorney John W. Caldwell, alleging that an attempt to censure Commissioner. Benavidez had been in fact retaliation for her testimony in an earlier case in which “She told the truth as she saw it.”  (That suit, Ramirez, resulted in payments by the county to five women who alleged sexual harassment.)
On cross-examination, the County established that it had filed a counter-claim against Ms. Stewart alleging that she improperly divulged confidential information.

Commissioner Benavidez testified and, looking somewhat chastened, denied what Ms. Stewart had said.
She denied having seen discrimination or been the subject of retaliation by Ms. Padilla and Mr. Caldwell.
She denied having said that Ms. Padilla’s motives “were questionable sometimes.”  However, she conceded that in deposition in 2012, asked whether Ms. Padilla’s motives were sometimes questionable, she had replied “Yes, I think so.”
            Asked whether Mr. Caldwell had fabricated charges or been untruthful toward her, she replied, “I can’t say yes or no.”  In her deposition she apparently had replied “Yes.”
She was also asked about a meeting with Commissioners Benavidez and Karen Perez, in which Mr. Granados has alleged that he and Dicky Apodaca raised issues of discrimination by Ms. Padilla.  Asked if Mr. Apodaca had made such complaints, she replied, “No.”  Asked if Mr. Granados had done so, she replied, “I don’t recall.”

The final witness Friday was Brenda Biscaino.   Ms. Biscaino has been employed for 23 years with Dona Ana County.  She spent the first 22 years in Human Resources, becoming a Human Resources Administrator; but soon after Debra Weir replaced Kathy Stark as Human Resources Director, she filed an EEOC Complaint against Ms. Weir.  (The complaint was not successful.  However, she alleged that proper policies were not followed.)  In October 2012, she took a demotion and moved to the Detention Center, where she now works.
Asked why she’d left, she replied, “Because I could not work with unethical individuals anymore.”
Asked if she’d personally observed discrimination toward Hispanics, she replied “Different treatment, yes.”  Asked if Sue Padilla had discriminated against Hispanics, she replied, “To a certain point, yes.”  She also complained of favoritism.
As one example of discrimination she noted that although many maintenance workers speak only Spanish, Ms. Padilla ordered that no more interviews could be conducted in Spanish.
Asked whether as a human resources administrator she had observed retaliation in the workplace, she replied, “I’d have to say yes.”
She also testified that she, like Mr. Granados, had complained to Commissioner Perez and been advised that “I would have consequences if they knew.  I would be retaliated against.”
She was asked if she had complained to Commissioner Perez specifically of Sue Padilla retaliating against her.  She testified that “My complaint was against Deborah Weir, Sue Padilla, and John Caldwell.”  When it was elicited that Commissioner Perez had replied that she would have to speak to the County Attorney (Mr. Caldwell), Ms. Biscaino stated, “That defeats the complaint, if it’s against upper management.”
On cross-examination she was asked regarding her testimony that she “felt pushed out” of Human Resources whether she had complained.  “Who was I going to complain to?” she replied. However, she conceded that she did not file any state or federal claim.
She was also asked on cross if she had once been reprimanded for falsifying a benefits application, and replied, “That’s incorrect.”  She was asked if she had been subjected to a disciplinary action for giving false information in a deposition, and replied, “No.”
Plaintiff is expected to rest Monday morning, after calling Internal Affairs Investigator Lupe Quezada and Plaintiff’s wife, Juanita Granados.
Defendant will then present its case, and may recall some witnesses and/or call the three road foremen mentioned in testimony, Ms. Weir, Ms. Perez, and others.
Jurors have been warned that the trial, including their deliberations, may well continue into Wednesday, July 3rd.

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