Wednesday, March 30, 2016

Another Fired County Employee Gets a Good Pay Day

We should hear soon that yet another employment case against the County has been resolved: Veronica Apodaca v. County of Dona Ana is being settled, I believe for a payment to her of $450,000.

That's a lot less than the County paid after adverse jury verdicts in Granados v DAC and Stewart v. DAC.  It clearly reflects that the county's lawyers -- or more likely the insurer, New Mexico Association of Counties, or both -- learned from those verdicts.  In the Kim Stewart case, as here, the County tried to argue that Ms. Stewart was not being retaliated against, but had screwed up in ways that hurt the County.  Jurors roundly rejected that argument.  Earlier this month, Judge Marci Beyer denied the County's motion for a new trial or reduction of the $1.5 million verdict.  The County had argued that the award of $1 million in "emotional distress" damages was "excessive, shocks the conscience, [and] without support in the record."

Losing lawyer Randy Bartell also said the award reflected "passion and prejudice" against the County.   Maybe it was, but that argument always amuses me in these cases.  The jurors were, necessarily, citizens of the County.  Voir dire was an opportunity for each side's lawyers to eliminate biased jurors -- say, someone who hated the County.  To the extent that the damage award is paid by the County, the jurors themselves will pay a little toward it.  So if there was "passion and prejudice" it arose solely from what the jurors heard in that courtroom; and it must have been strong, given their [admittedly small] pecuniary interest in a low damage award.  (In Granados, I spoke to jurors afterward, and they were incensed at the County's conduct and grateful to Jorge for making things public; and I've heard one juror embraced Ms. Stewart after that verdict.  The County, I think, tried to argue that that showed strong anti-County feelings; but if it did, those weren't a pre-trial bias, but rather a natural human reaction to news of very bad conduct by county officials.  (And perhaps irritation at, as jurors felt, being lied to.)

The same two lawyers, Daniela Labinoti and Brett Duke, represented Mr. Granados and Ms. Stewart. 

One important observation about this case is that, unlike the others, it arose solely on Julia Brown's watch.  There's no argument that this one reflected the shortcomings of any previous county manager.  This one too reflected badly on the County's HR Department, in that Plaintiff initially complained she was being discriminated against by HR, and sought a transfer to DASO.  Ms. Brown, according to allegations in the lawsuit, initially purported to be helping her, but quickly fired her.  So this one arose on Ms. Brown's watch; and if Ms. Apodaca's allegations were accurate, Ms. Brown was the major actor -- the single person most responsible for the fact that Ms. Apodaca no longer works for the County but is getting paid a bunch of money.

Interestingly, in what I thought was a truly discourteous and unwise talk to county employees, Mr. Brown responded to the Stewart verdict by speaking of employees who -- when their performance was inadequate or they'd made serious mistakes -- ginned up complaints of discrimination and harassment and retaliation to make it difficult for the County to take warranted action against them.  She could have been thinking of Ms. Apodaca's case, in the sense that the County seems to have made pretty much that argument in this lawsuit. 

That $450,000 payment doesn't prove conclusively that Ms. Brown acted improperly; it may be, as the County will say it is, a product of watching two other (in the County's view) unwarranted employee retaliation cases end badly for the County.  In the that view, jurors make mistakes and a jury in this case would have likely made a similar mistake. 

But if I were a commissioner, this would be a serious demerit for Ms. Brown.  Other employee lawsuits against her and the County are almost certainly imminent.  That doesn't mean the employees should win those, and we (and potential jurors) should keep our minds open.  

Most or all of the commissioners, to varying degrees, have been dissatisfied with Ms. Brown.  They'll undoubtedly factor this new event into their thinking.

I'll revise this post (or publish a column) once I've had a chance to reread the Complaint and Answer in this matter, and once the settlement becomes final.  I'll also keep an eye and ear open for the details of the County's appeal of the Stewart verdict. 

[Note: I sat through almost the entire Granados trial, posting nightly reports, and part of the Stewart trial, and searching those names on this blog should yield access to those if someone needs to consult them.]

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