Further Thoughts on the County's Settlement with Chris Barela

The recent op-ed defending the County's $201,000 settlement with Detention Center Director Chris Barela was sincere and made some valid points. The County Commission genuinely feels it dodged an expensive bullet by settling with Barela. 

But questions remain.

In late 2013, it appeared that Barela had committed breaches of duty that might constitute crimes. Some were reported to authorities by a commissioner and others. Some had been reported to county management earlier, in detailed writings.

A state police investigation ensued. Too much time passed. Some say that the state police sat on it. At least one state police source suggested it was the District Attorney's fault. Eventually DASO investigated. 

Sheriff Kiki Vigil probably should have recused himself. He was already at odds with the County Manager and Commission. Two of his most generous campaign contributors ran private prisons, we later learned. (See March 2016 column.) I've learned since that Vigil articulated (and may still hold) an intention to take over the Detention Center. 

Vigil was not the ideal person to investigate Barela; and the showy arrest, and transportation of Barela to a distant county were unnecessary. 

Still, that investigation by two DASO deputies was thorough. While some of the apparently criminal conduct was time-barred and couldn't be prosecuted now, the investigation uncovered evidence of other possible violations. 

Barela is legally innocent of crimes; but we can still question his conduct and that of other public officials. 

Commissioner Billy Garrett's op-ed takes too much comfort from the grand jury's failure to indict Barela. If prosecutors felt some charges wouldn't sufficiently impress a criminal trial jury, that doesn't mean the alleged actions weren't taken. Statutes of limitations prevent criminal charges, but not administrative discipline. Further, as neither commissioners nor I sat on that grand jury, we don't know why it made certain choices, or even whether it heard all the witnesses it should have heard.

I can't make a reasoned decision on Mr. Barela's guilt unless and until I read the entire investigatory file. I won't rely on others' varying accounts of the facts.

A seasoned magistrate, who has a law degree and is not known (at least by me) to be aligned with any party in county government's civil war, signed the warrants. A seasoned and hard-working prosecutor believed this was a good case. These facts would have weakened Barela's false-arrest claim.

I know too much and too little. I know that Vigil had extraneous reasons to want Barela arrested and convicted, but did those reasons motivate the Sheriff's (mis)conduct? I know that other officials might wish to rub Vigil's nose in this mess by settling generously with Barela; but did those wishes help bring about the settlement? 

I watched the County fight tooth and nail against other employees. It offered no viable settlements to Jorge Granados or Kim Stewart. When two juries gave them ringing endorsements, the County appealed, on dubious grounds. (New Mexico Association of Counties was apparently making decisions in those cases, not the County. NMAC invoked a contractual exclusion to refuse coverage against Barela's claim, leaving the County on its own. Thus it's probably not fair to conclude that the County dealt more generously with Barela because he was one of the gang or knew where the bodies were buried.)

Did an overzealous Vigil screw this up? Did political considerations lessen prosecutorial vigor? Was embarrassing Vigil a motive for the settlement or just a happy by-product for some county officials?

I don't know. I do know that Barela is neither as evil as some detractors charge nor as guiltless as some supporters say. Most of us aren't.

                                                     -30-

[The above column appeared in the Las Cruces Sun-News and other newspapers this morning, Sunday, 11 September.  It's also up on the newspaper's website (supposed to be, anyway) and will soon be up on KRWG-TV's website.]

[September 11!  It snuck up on me this year, that this was the 15th anniversary of that terrible morning.  I was actually in the Library of Congress that morning, researching.  An underground passage away from Congress.  They told us we had to leave -- but not why.  But people knew.  As I motorcycled away from the Capitol, toward where I stayed, there was a humongous traffic jam, of course.  I was grateful for the motorcycle's small size and maneuverability.  At supper that night, we could see the smoke from the Pentagon, still.  For days, people tended to stay in their houses, and numerous military helicopters swarmed overhead.]
[The next morning I motorcycled downtown.  Almost no one was out, except police and military folks.  I had to park further from the Lincoln Memorial than usual.  Security.  But I could walk to it. It was dawn.  None of the usual tourists and joggers.  Just me and the cops and soldiers -- and this one guy, doing his job.  While everyone else was trembling at home, in fear of going down to where the bad guys might strike again, he was just doing his job:]

[I should have written about September 11th in this morning's column.  And a glance at the morning paper, in which Steve Pearce misuses the heroism of everyday people by suggesting it shows that everything is Barack Obama's fault, tells me I'll remedy that omission next Sunday.]

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. 
                                                           -30-

[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.]

County Must Face the Music Juries Hear

Two years ago I sat through a week-long trial involving Doña Ana County.

Witness after witness testified to discrimination, retaliation for reporting discrimination, or just plain meanness and bad management. Permeating the employees' testimony was an extreme and unhealthy fear that key officials could and would do whatever they wanted, without regard to fairness or legality. Other witnesses privately told me that the evidence at trial was just the tip of the iceberg.

The jury awarded $250,000 to Jorge Granados. Plus attorney fees. The jurors I interviewed were passionate that they were sending the County a message they wanted heard.

This month I sat through portions of a week-long trial involving Doña Ana County. Again witnesses testified to discrimination, retaliation for reporting discrimination, and just plain meanness. The case had been pending for four years and could have been settled years ago for $100,000 or so.

This jury awarded $1.45 million (plus attorney fees) to Kim Stewart. Afterward, jurors hugged her and thanked her. Twelve everyday people, given a sudden glimpse into how the County operated, were disgusted. They didn't believe the present and former county officials who testified. Awarding $1 million for “emotional distress” (beyond back-pay, doubled under the Whistleblower Act) sends a strong message.

Curtis Childress drew caricatures of ethnic minorities in a meeting with minority employees who complained.

Kim Stewart investigated Childress, pulling no punches, and was clearly willing to investigate other bad conduct by County officials. She was fired by HR Director Debra Weir. Earlier, then-County Attorney John Caldwell, who'd given her excellent evaluations in July, gave her quite bad ones in December, after she reported on Childress. Maybe her report on Childress was a coincidence, as the County alleged; I don't know; but twelve jurors didn't buy that argument.

Weir apparently ran HR in a way that sparked these two lawsuits and others. Chris Barela ran the jail that mistreated a prisoner so bad that another jury ordered the County to pay $20 million; and according to internal reports, he was guilty of other questionable conduct. Both are still there.

According to witnesses in the two trials, Caldwell and Weir and others did some pretty questionable things. In closing, Stewart's attorney pointed right at Weir and said she needed to go. The jury agreed.
County Commissioners did respond to the Granados verdict. There was an investigation; it became clear that the interim county manager was unlikely to be hired as the permanent manager; and they brought in County Manager Julia Brown. Caldwell left. HSSD Director Silvia Sierra left.

But someone at the County was too arrogant to settle the Stewart case when it could have been settled fairly cheaply. Someone supposed that the failed strategy from Granados – earnest testimony by high county officials and efforts to convince the judge to take parts of the case away from the jury on technicalities – would somehow prevail this time.

But Jorge Granados was not my enemy, or yours. Kim Stewart was not my enemy, or yours. Kim seems to be only the enemy of folks who would provide us a lousy county government. Our agents mistreated both of them. When they sued, maybe we could have gotten off on legal technicalities; but I wish we'd reached reasonable settlements, rather than paying outside counsel a bunch of money to fight them, then paying big judgments (and plaintiffs' attorney fees) anyway.

It's troubling to hear Julia Brown respond that witnesses perjured themselves and Stewart was just a vindictive malcontent. She wasn't around when these things happened. Maybe she should look a little deeper. Two juries and a former investigator shouldn't be dismissed lightly.
                                              -30-
 [The column above appeared in the Las Cruces Sun-News this morning, Sunday, 27 July, and will appear on the KRWG-TV website shortly.]

[Please feel free to review my initial post on the jury verdict in Kim Stewart's case, the Sun-News report on the Stewart verdict,  and/or my several posts reporting daily on the Granados trial  -- or search this blog for "John Caldwell" or "Debra Weir" for additional information.  Searching Jorge Granados yields all the columns/blogs regarding his trial, but they're not in order.]

[To the column as written I'd add a couple of points: (1) that I've met Kim Stewart and judge her to be pretty much of a straight,shooter, as people go; (2) that I have a bit of a bias in favor of juries; and (3) that  legal scholars and lawyers have recognized that a city counsel or county attorney may have a slightly more complex ethical position, and slightly different duties, compared with someone representing an individual or a private company.
That is, (1) to the extent that I've talked to Kim, (a) when I've asked her a question that could be answered in one way that helps her point-of-view on something or in another that's more truthful but less helpful to herself, I've seen her pick the more truthful answer; and (b) where there's independent evidence, it has tended to support what she says.
(2) Despite widespread criticism of the system, I believe juries tend to stumble into a correct result much more often than not.  (Disclaimer: the fact that when I practiced law in San Franscisco we handled quite a few big jury trials without losing one might have created this bias in me.)  I understand objections that the jurors don't see ALL the evidence because of the rules of evidence, that they can be swayed by the personalities of lawyers, and that in complex business litigation, particularly involving science and technology, they can't possibly understand all the issues.  Nevertheless, they seem to find what I might call the human truth.   Here, that means that whichever side should have won on certain legal issues in Granados or Stewart, Jorge and Kim probably did get screwed in a way they ought to be compensated by and the actors within the County ought to be punished for.  (By expressing doubt I do not mean to agree with the County lawyers that Judge Arrieta or Judge Beyer made errors, but only to say that even if that were technically true, the two juries seem to have come to the right results.  From what I saw, Judge Beyers did a fine and fair job.) Of course, what I may think or Julia Brown may think doesn't matter: the juries found what they found.
(3) Ethics are easy when you represent someone who got bitten by a dog or hit by a car, or a criminal defendant, or a company litigating an alleged breach-of-contract: you do the best you can for your client, within certain constraints such as not lying to the court or destroying harmful documents or helping your client commit a crime.  In theory, the clash of two such advocates on opposite sides produces a wonderful opportunity for the judge or the jury to see the actual truth, which may differ from either side's position.
But when your client is a county?  Do you represent the county?  The County Manager?  The Commissioners?  The insurer?  The people of the county? The in-house county attorney?  Or all of them?    What if a County Manager or County Counsel is so clearly implicated in the alleged wrongdoing that s/he may lack an objective view of the case or choose to ignore what's right for the county that employs him or her?  Do you still follow the Manager's or Counsel's instructions?  
These can be difficult questions to answer satisfactorily, theoretically or in practice.  Their relevance is that in closely observing a couple of county cases, and reviewing some others more casually, I'm seeing some questionable decisions get made.  By whom I can't say for sure.]

City Employee Wins Judgment against City

A year after a jury awarded former Doña Ana County Public Works Director Jorge Granados $250,000 in damages, another jury has awarded Las Cruces City employee Sandra Hunter $ 50,000. 

 

On July 3, 2013, a jury determined Granados had been retaliated against and subjected to a hostile work environment. I talked to jurors afterward. They were in Howard Beale mode: damned mad and not going to take it anymore. 

 

On July 11, 2014, a jury held the City liable for a hostile work environment suffered by Hunter. (She did not succeed on other claims.)

(Lawyers Daniela Labinoti and Brett Duke, who represented both Granados and Hunter, also recently filed a lawsuit against the D.A's Office.) 

 

Ms. Hunter began working for the City in 2004. She complained of discrimination, and in 2006 she pointed out that employees were getting paid for unworked time through falsified time records.  

The City allegedly responded by punishing her. She filed charges with the Equal Employment Opportunity Commission. Although filing such charges is legally protected, the City punished her further. Allegedly, Hunter kept doing her job well but the City repeatedly transferred her, placed her on administrative leave, put her through a forced psychiatric evaluation, and unfairly disciplined her for matters that other employees weren't disciplined for. 

 

For example, Hunter alleged that one day she called to tell her supervisor she would be fifteen minutes late.  Her supervisor being unavailable, Hunter left a message with the supervisor's assistant.  The City investigated this incident at length, conducting multiple interviews and drafting numerous memoranda, and eventually suspended Hunter without pay for one day. Hunter says other employees were frequently late and went unreprimanded. 

Hunter will receive some compensation for her emotional distress.

We get no reimbursement for any tax dollars spent harassing this woman. Or for the $50,000 plus very substantial attorney fees we'll pay. 

 

I sat through the week-long Granados trial. (The jurors' disgust with then-County-Manager Sue Padilla and other officials was readily understandable to me.) I also knew the case could have and should have been settled before trial, saving the County a million dollars or so.

I didn't hear a word of testimony in Hunter, so I won't assess the verdict. (I've spoken a bit to lawyers on both sides, but don't feel comfortable getting into detail about testimony I wasn't present for. The City disagrees with the verdict but hasn't decided whether or not to appeal.)

But I did immediately wonder how this happened. 

 

One key witness was EEO Specialist Mary Pierce. Ironically, Pierce, then employed by the County, was a major player in the Sally Ramirez discrimination case – which, as I discussed in a column last year, ended with Doña Ana County subjected to U.S. Department of Justice monitoring and required to retrain County employees.

Did the City factor in Ramirez when hiring Pierce? Will the City require some retraining of her after Hunter? Or is Pierce blameless?

Don't know. City officials can't discuss personnel matters.

Meanwhile the recent effort by Sheriff Garrisonberger to fire Undersheriff Eddie Lerma was a ready-made lawsuit. Todd Garrison's the third Sheriff to have Lerma serve as Undersheriff. Lerma served under Garrison for nearly four years – then had the sense to doubt whether Rick Seeberger's tight control of Garrison's operation was good for the County. A firing offense. I doubt Seeberger cared about fairness or whether the County paid Lerma damages some day. 

 

Granados was one among many recent cases by former employees against the County. I hope Hunter is anomalous, and doesn't mean the City is getting equally careless in its treatment of employees.

                                                          -30-

[The column above appeared in the Las Cruces Sun-News today, Sunday, 20 July 2014.]

[With regard to the last paragraph: I can't overstate the difference in context.  I was hearing incredible numbers of complaints -- and incredibly passionate complaints -- about the county manager and her pals from county employees, former county employees, and others doing business (or charity) with the county.  Most of the places I saw or smelled smoke, further investigation turned up a lot of fire.  In addition, there were a host of lawsuits by employees and former employees.  Too, I have the impression from a variety of sources that the Granados case could have been settled for a small fraction of what the County ultimately spent on it.  (I know a lot less about Hunter, but the verdict was a lot smaller than the Granados verdict.) 
I spent a week in court observing the Granados trial because it seemed symptomatic of a serious problem; and when I wrote about it on the blog, hundreds of people, including many county employees and officials, read the posts and many individuals contacted me, some of them anonymously, concerning problems with county administration.  Hunter -- the facts of which started nearly a decade ago, even before the tenure of current City Manager Bob Garza -- seems a more isolated case (and a closer one, if I read the jury's verdict right).    
Having said that, though, let me make clear that I'm open to hearing about problems with any government entity. ]
 

Our Lawless Governments

New Mexico governments are on a rampage recently, trampling on laws and constitutional rights and causing sometimes unnecessary lawsuits.

Our Governor abruptly deep-sixed mental health providers; and now the City of Las Cruces is suing the State over the Gross Receipts Tax.

A bad bill rushed through the legislature at the 11^th hour, unread by most legislators, cut cities' incomes but let them hike the GRT very slightly. Martinez allegedly warned cities not to exercise that right. Las Cruces did so. The State called the increase illegal because it didn't specify certain points – but the City doesn't see that requirement in writing.

Earlier, the State closed more than a dozen mental health providers, replacing them with an Arizona concern.

The State said an audit showed “credible allegations of fraud,” so that federal law required the State to impose the death penalty on all those companies, sans trial.

Actually, that law permitted the State to ignore the “requirement” in the public interest. Avoiding a disruptive change for patients, and keeping several New Mexico companies alive until proven guilty, would seem to qualify.

The State refused to show us the documents, in probable violation of state law, and got sued. Recently it released a little more of the audit. The auditors say they “did not find what we would consider to be credible allegations of fraud.”

No findings of fraud. No findings of “credible allegations of fraud.”

That the State had contacted the Arizona company months before the fatal audit even began adds to questions about whether Governor Martinez simply did what she wanted, for political reasons, without regard to law or fairness.

Maybe there was fraud. The State's behavior suggests not. While some Republican group paid a bunch of bucks for slick radio ads supporting the Governor's action, state officeholders refused opportunities to appear on the radio to articulate their defense, if any – and face questions. One agreed to participate in our radio program – then never answered further phone calls or participated

In July a jury found Dona Ana County had violated the law in firing Jorge Granados. The County was ordered to pay damages and attorney fees.

Now the County opposes Granados's lawyers request for fees. By statute, they get the fees – doubled. They took a gamble, working long unpaid hours for months or years to right a wrong, as they saw it; and the doubling could also deter further such wrongdoing.

The County objects that there were two lawyers – though we saw two in court for the County, and Raul Carrillo didn't do all the legal research and drafting for the defense.

Granados was turned down by all the Las Cruces lawyers he talked to. Then his El Paso lawyers won a case that the County lawyers thought had little chance. Questionably County motions that failed caused some of the legal fees; and the lawyers had to do all their trial preparation twice, because the County won a last-minute postponement from September 2012 to late June 2013.

The County's lawyers (and/or insurers) don't know when to hold 'em and when to fold 'em. (Ask Mr. Slevin.) They're appealing, against long odds. We or the insurers will likely end up paying two sets of lawyers to discuss these issues in the appellate courts.

One county attorney recently denied me a public record the NM Public Records Act clearly required him to show me. He claimed that a certain case supported him. I wasted time reading the case, discovering he was dead wrong, and writing a letter threatening suit. Then he backed down. In February, he startled everyone at a very long hearing by announcing in an odd, rambling way that he suddenly saw the case in a new way – at 3 a.m., after about nine hours.

More recently the same lawyer advised the Extraterritorial Zoning Authority (ETA) to deny two members of the public the right to speak during “Public Input.” We had a basic Constitutional right to do so. Generally, when a government opens an area to public speech, it can't outlaw speech based on content. The lawyer claimed that although we were going to discuss general issues, our statements might somehow be taken as improper ex parte communications about a zoning-change request that might be made at some future date.

But when public officials aren't too confident in their abilities, and suspect they'll screw up, they try to err in what seems the safest direction.

NMSU also doesn't respect free speech or the Constitution. It brought three criminal charges against a some-time student who attended a job fair open to the public and stood quietly out of anyone's path beside the NSA table with a sign suggesting “If you want to work for Big Brother, apply here.” The next day, another student lightly tossed a copy of George Orwell's 1984 onto the NSA table. That's a succinct political statement, but it ain't a crime.

More lawsuits waiting to happen, because of official arrogance, incompetence, or testosterone.

                                                                           -30-
[The column above appeared in the Las Cruces Sun-News today, Sunday, 27 October.]

[One difficulty at 845 Motel Boulevard is that the place seems to be run by the lawyers.  More than once this year they've put the commissioners in a tough spot, because none of the commissioners are lawyers themselves and thus can't fully judge the advice they get -- or, if they suspect something's off-kilter, understandably have a tough time disobeying their lawyers.  Further, I have a strong feeling that as to a couple of commissioners the lawyers have either been involved in questionable action against them or have threatened them.  There are also rules -- put in place to keep commissioners from meddling in matters left to the county manager's discretion and judgment -- that hamstring those commissioners who might like to take action regarding the lawyers.   We can only hope that one retires soon and a new city manager doesn't promote from within to replace him.
With regard to the ETA incident: I'd like for it not to end up in court.  However, the initial response by the county offered no legal support for the county's position, but merely asserted that the county lawyer was right and we were wrong.  That's unfortunate, but further discussion might lead to a resolution.]

Sunday Column: Doña Ana County

I hope and believe that the Doña Ana County Commission is moving toward a full – and fully independent – investigation of the problems with top-level county management.

Jury verdicts in Slevin and Granados are but the tip of the iceberg.  The Slevin verdict was huge, but the Granados verdict more significant, because much of the testimony pointed to systemic management problems.

Privately, employees and former employees had described working in “a climate of fear.”  In Granados, loyal employees testified to fears of retaliation for their testimony.

Employees had told me of intimidation.  Several witnesses looked intimidated.

People had spoken of the management styles of Sue Padilla and Silvia Sierra as based less on performance than on who’s “in” or “out” with the boss.  Some trial testimony portrayed the same thing.

How significant is the problem?

I’ve spoken with many employees and former employees.  I’ve tried to keep an open mind.  I’ve assessed credibility and tried to verify things independently.  Since I do not have access to all the documents and some folks are not free to talk to me, my information is necessarily incomplete.

If I were required to show that there are reasonable grounds for serious disciplinary action against Assistant County Manager Sue Padilla, County Counsel John Caldwell, HHS Director Silvia Sierra, and HR Director Deborah Weir, I believe that with power to subpoena documents and witnesses, I could do so.  On some issues, I probably could do so now. I stop short of stating any misconduct as fact because I haven’t had the opportunity to do a full investigation.

Some issues are somewhat out in the open.  An audit by Milton Duran found that Ms. Sierra’s Department routinely approved fraudulent applications for health services, many with false social security numbers.  Several women who worked under her at that time say that when they raised the question of fraud, Ms. Sierra ordered them, sometimes angrily, to approve all the applications.  They were honest (as Sierra had told them to be) with the auditor, when he came around.  Duran’s audit put the total wrongly spent in one year at two or three hundred thousand dollars.  One woman working there said some fraudulent applications were for “amounts in the tens of thousands.”

Mr. Duran and others say that he was driven from the county employ, in part based on misconduct allegations that may have been trumped up.  No one disproved his audit findings.   The young ladies who were honest – and who were assured of protection as “whistle-blowers” – were retaliated against in various ways, including the elimination of their department and improper interference with their efforts to work in other positions within the county.

That just ain’t right.  (Management delayed filling the audit position, then hired a splendid candidate who took a nine-day look at the way things were run and resigned.  Seven months ago.)   Glenn Thomas, currently investigating matters for the County, reportedly responded to an account of these events by expressing shock that Ms. Sierra still holds her position.

More appalling allegations have been made, less publically but quite credibly, against one or more of the four members of management named earlier. (To protect sources, I wont discuss these in detail.)  I can’t say whether these allegations are true; but it would be dereliction of duty for the Commission not to mount a serious investigation.

The interviews conducted by Universal are well-intentioned.  Interviewees tell me that the investigator did his work appropriately, in tone and manner, and assured them that what they said would not go to Mr. Caldwell – but also that he taped interviews and reported to Mr. Caldwell.  While he reported being flooded with calls from employees, other employees did not speak with him, because of their fears he’d tell Mr. Caldwell what they said.  Others gave only the most muted versions of what they’d have liked to say.  Commissioners should factor in this fear and reticence when assessing the final report.

The Commission is in a tough spot.  It’s only employee is Ms. Padilla.  It must work through her.  It gets its legal advice from Mr. Caldwell.  Commissioners are precluded from the kinds of direct inquiry or action citizens might expect from them.

The facts, testimony, and allegations warrant a special counsel,  an independent and able committee or commission, or an appeal to the state audit department.  Such action could also help ameliorate the related morale problem.

I hope and trust that the commissioners will give serious consideration to such action.  (The EEOC complaint filed by Ms. Sierra should neither motivate nor dissuade them.)  Any inquiry should be fair, both to employees and to upper management.  And it should be conducted discreetly but in a way that not only is fair but appears fair to employees and the public.

Meanwhile citizens should make every effort to keep these issues separate in their minds from the upcoming vote on bonds and taxes.   The commission seems to be headed toward doing the right thing on these issues, if a little later than I might have wished.  The alleged misconduct by some highly-placed individuals, whether the allegations prove accurate or inaccurate, has no relationship to whether or not the County needs the items the vote concerns.  Voters should consider each of the ballot choices on its own merits.

Granados has helped the Commissioners recognize the problem.  They must face it.  I believe they will.

                                                                          -30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 21 June.  If you haven't been following this story, something like ten of my last 12 blog posts concern the County, including a day-by-day account of the Granados trial that ended July 3rd.

      If I seem to have Doña Ana County on the brain recently, sorry; but it's a critical moment for our little county, and an interesting one.

      If I seem to have Doña Ana County on the brain recently, and you've strayed to this blog for nature-writing or photography or some other subject, sorry.

      But it's a critical moment for our little county, and an interesting one.

       Monday the Commission reportedly will receive a draft of the investigation done by Universal Investigations of Albuquerque.  It may not contain as much information as it might have, but I suspect it will contain sufficient information to warrant further action.  Some of the folks who spoke to Mr. Thomas told me about their visits with him.  He said he was receiving great numbers of requests from people to hear their stories or review documents they had.  He visited with one ex-employee at her current place of employment, and (I'm told) walked away shaking his head in amazement over the fact that Silvia Sierra, for example, is still a Director.  He apparently found some of what he was told to be pretty compelling.  He seems to have tried to accomplish his mission successfully, despite very reasonable fears that he'd mostly steer information right to some of the folks he was investigating.

        Tuesday the Commission, following its regular meeting, will meet in closed session "to discuss personnel matters involving the County Manager, the County Attorney, and the Human Resources Director; and threatened or pending litigation involving employment discrimination; and Granados v. DAC."  A lot of employees are holding their breath.]

Trial Points up County Management Problems

County management is under fire for alleged favoritism, retaliatory firings, and possibly discrimination.  Wednesday’s jury verdict highlights the problem..

The jury in Granados v. Dona Ana County awarded former Director of Public Works Jorge Granados $250,000 on claims he was illegally retaliated against for pushing discrimination claims.   (There are daily reports on the trial in my recent blog posts.)  Granados, who was fired in 2010, had passed on a complaint by a subordinate that then-Assistant County Manager Sue Padilla mistreated his department because it employed people who were “mostly minorities and less educated.”  Granados also reportedly complained frequently of discrimination and retaliation.

In closing, Plaintiff’s counsel Daniela Labinoti spoke passionately, showed summaries of testimony regarding discrimination, and closed with a reference to the imminent Fourth of July – urging jurors to “make history” and reassure victims of discrimination in Dona Ana County that they can speak up.

Defendant’s counsel, Raul Carrillo calmly urged jurors to consult the policies and documents in the record rather than following their passions.  “Our job is to come and reason together,” he said.  If he didn’t quite manage to explain just why Granados was fired, he did pretty well at suggesting that the witnesses who testified on Granados’s behalf were malcontents.

It’s troubling that so many county employees testified they feared that they would be retaliated against for testifying truthfully.

Pretty much every lower-level and/or Hispanic employee said so to some degree.  In a brief interview Wednesday, Padilla said that the people testifying to a fear of retaliation were “a very small population countywide” and “not representative of the general feeling,” adding, “I don’t supervise any of those people.  There are several layers in between.”  She said Granados “was held accountable.”

Even current employees who testified that they now got on with Ms. Padilla described her management-style in terms she won’t add to her resume.

Some said she discriminates against Hispanics.  (Paidlla is not Hispanic, her husband’s roots are Spanish, not Mexican.)  The witnesses were less than unanimous, but most who testified that she didn’t discriminate said that she used to, or that they used to believe she did, or that they weren’t sure. Padilla denied discriminating.

Many current and former county employees, as well as civic leaders who deal with the county, have told me that county management (below commission-level) is more concerned with secrecy and watching each others’ backs than with what’s best for the county.  (Padilla, former County Manager Brian Haines, County Counsel John W. Caldwell, and Human Resources Director Deborah Weir are often mentioned, as is Sylvia Sierra.)   If an employee is or might be a whistle-blower, or tells them things they don’t want to hear, they invent or exaggerate grounds to fire the employee, or harass that employee into quitting.  Employees who play ball can get away with most anything.

My investigation has turned up some evidence of this.  I’ve heard some heart-breaking accounts from people who sound very credible.  Most – even former employees happy in new jobs -- won’t let me use their names.   This month I’ve also had employees suddenly appear beside me and thank me for writing about the trial, or discreetly indicate their feelings that county management problems need airing.

The “official” reasons for firing Granados were pathetic nonsense.  If there were good reasons to fire him, those went unstated.   Management just wanted him gone.

Former auditor Milton Duran testified that Padilla asked to expedite a scheduled audit of Granados’s department, then – unlike most managers – was extremely dissatisfied when he gave that department a relatively clean bill of health.  Meanwhile, he made serious findings regarding a different department – run by someone more popular with top management – who is still in her position.  Others have told me, and Duran testified that whistle-blowers in the other department were driven from their jobs, as was he.  The defense brought out three black marks on Duran’s record.  Were those created in retaliation or genuine transgressions? Probably there are passionate believers on each side.

Management avoided hiring a new auditor for a long time.  Then they hired a woman who quickly saw how things stood.  She quit after just nine days.  (The county denied my NMPRA request for a copy of her resignation letter, then provided it under threat of litigation.)  The watchdog position remains unfilled.

Fortunately, Ms. Padilla is the Interim County Manager.   A search will bring the commissioners five candidates, possibly including Ms. Padilla if she applies.  (Wednesday, she reiterated that she hasn’t decided – and another county official jumped in to say, “I can tell you this: a lot of people want her to.”)  Commissioners will have a chance to make a fresh start with someone in whom they believe, whether it’s Ms. Padilla or a stranger..

The Granados jury hoped to send the county a message, and one juror told me they thought there should be an investigation of Ms. Padilla.  The larger jury is still out on the management problems facing the county, which are not limited to Ms. Padilla.

The trial holds three important lessons: commissioners should choose the next county manager carefully; the county should not appeal Granados without extremely solid legal grounds; and decision-makers should appraise the settlement value of the other cases more realistically.

Above all, a public entity shouldn’t lean on employees not to testify honestly about public matters.  It ain’t what citizens want, and it doesn’t work.
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[The column above appeared in the Las Cruces Sun-News today, Sunday, July 7th.  As always, it represents my opinions and not necessarily those of the newspaper.]
[ If you didn't follow the trial and want to read about it in more detail,  I posted pretty much daily reports starting with  Day 2  [June 25th];  and Diana Alba Soular wrote a good article on the opening of the trial, and another on the final day, including closing arguments and the jury's verdict.  My take on that final day is the post right before this one, and can be reached by simply scrolling down a ways.

What will this verdict mean to the County?  First of all, its insurer, NMAC, will presumably pay the $250,000 and change to Mr. Granados, as well as a very substantial some to his attorneys -- who took on a case no one in Las Cruces had jumped at taking, and pursued it against significant obstacles.  NMAC will also pay the attorneys who represented the County.

Will the defense appeal?  As always, the first reaction among county folks I talked to was "Yes," but that may change on reflection.   I did not immerse myself in the legal arguments sufficiently to opine, and didn't do any independent research; but Judge Arrieta seemed to have little trouble deciding the motions made by the County; and any reviewing court will give a great deal of deference to the jury's view on most issues.  There was contradictory evidence on most points; there was enough evidence for a rational jury to find as this one did, and would have been enough evidence to support a contrary finding, because much depended upon the credibility of witnesses.  That's specifically the jury's area of authority, and they chose to reject much of the testimony proffered by the county -- and to take with a grain of salt the pro-County elements of testimony by witnesses who felt intimidated by the County or its lawyers.   In such a situation, unless there's a clear legal error that I didn't see, I'd urge the County (and/or its insurer) to pay up and move on, without incurring two sets of attorneys' fees for appellate proceedings that would merely delay the payoff.

And there are four or five more cases wending their ways toward trial.   Judge Martin has recused himself from hearing any of them, and I'm told the County disqualified Judge Arrieta from taking on any of the ones Judge Martin took himself out of.  That may delay trial -- and give two sets of attorneys time to spar further, upping someone's ultimate legal bill.  A rational county management would take a long, hard look at which of those, if any, deserve to be fought all the way to trial.

All five cases, including Granados, could probably have been settled for less than Granados will cost. I think personalities and stubbornness played roles in the County's failure tomake a serious try at settlement.   As I mentioned in the column, I don't know enough to quote odds on the other cases, although I did get the impression a few months ago that at least one of them seemed to the plaintiffs' attorneys a stronger case than Granados.  I do know that whoever was making the decisions didn't appraise Granados (and presumably the other cases) reasonably.

I don't say that merely because of the verdict.  I was thinking it before trial.  Watching the trial, I thought Plaintiff would win, and said so to both sides, but couldn't be sure.  Either side could have won, depending on how the jurors reacted; and if either side could win, that's something the decision-makers should have seen before trial and certainly saw during trial.  If the jury's going to give one of us $100, and I figure there's a 60% chance they'll give it to you, and each of us will spend another $50 on lawyers squabbling about it, I wouldn't have to be real smart to suggest we split the $100 before trial.  My 40% chance of winning it is arguably worth $40, so if I can walk away with $50 that's a good result, particularly since I save the legal fees.  Plus, unlike certain business cases, the jury verdict doesn't mean loser pays the winner's attorney fees.  In these cases, the County must pay attorney fees if it loses, but if Granados had lost he'd only have had to pay his own attorney. 

 Someone -- insurer, litigation counsel, in-house counsel, management, commissioners, or all of the above -- needs to take a fresh look at the merits of those other cases, without being distracted by personality conflicts among lawyers, defensiveness on the part of county officials, or arrogance.  If some of those other cases are frivolous, fight 'em.  The county should not become a pushover, settling with anyone who can find a lawyer.  But if an unbiased examination indicates either side could win, I'd rather our representatives make a reasonable try at settlement.  I don't think these cases have gotten that kind of look yet -- and settling them will cost more now than it would have.

And going forward, the county manager, county counsel, and directors need to take this jury verdict as an unbiased message that management styles need to change.  Whatever happens or should happens with the other cases now in progress, we shouldn't be generating new lawsuits.  This jury ws not blindly pro-Plaintiff; it didn't look like a group of people necessarily sympathetic to Plaintiff, and it did discriminate among its choices on the special verdict, finding that Plaintiff hadn't proved specifically ethic discrimination against him but had proven the County retaliated for his complaints about discrimination on behalf of his department.  In short, some of the citizens of this County have sent management a message (even though a friend of mine in the jury pool remarked during voir dire that we'd all have to pay a share of any verdict; he didn't make it onto the jury) and management would be well advised to take it into consideration.]

Jury Finds for Jorge Granados

     I'll assume you've been following the trial on this blog [for which, thanks] and cut right to the chase.  [If you haven't, but are interested, please page down to earlier posts -- or go back to last Tuesday's post  [Day 2], and/or Diana Alba Soular's good article on the opening of the trial, then skim through the succeeding days' posts.)  You can also just page down to Thursday's post covering Day 4, or further down to the posts for Days 2 and 3.]
     At about 7:20 p,m, the jury of twelve of his peers handed their verdict in the Granados case to Judge Arrieta, who then read it:
      The jury did not find that Dona Ana County had discriminated against him for being Hispanic, bud did find that the county had retaliated against him for raising discrimination complaints and had created a hostile working environment.  Both sides had agreed that if the jurors found the County liable, the damages for lost wages and benefits would be $60,497.05, and the jury foreman duly entered that number on the verdict form.  The jurors then found that the County's conduct had caused Mr. Granados emotional damages as well, and awarded an additional $190,000.
      The verdict was unanimous.  The foreman later told me that there'd been "a majority" from the start of deliberations.  A second juror told me that several jurors had wanted to award $250,000 in emotional-distress damages.
       As soon as the verdict was announced, lawyer Daniela Labinoti began sobbing, and embraced first her client then co-counsel Brett Duke.  Mr. Granados's wife and daughter were also sobbing -- as was Mr. Granados when he came outside and embraced one of the jurors, thanking him.
        "I didn't come for the money," he told the juror.
        "We figured that out," the juror replied.  The same juror had just stated to us that "there should be an investigation into Ms. Padilla" and that "we wanted to set a precedent for the county.  Paying out all that money in the Ramirez case didn't set a precedent, so we wanted to, and stop all this harassment."
        [btw, Diana Alba Soular from the Sun-News was present for closing arguments and the announcement of the verdict, so there should be a Sun-News story tomorrow morning.]
.       [I've also written Sunday's column about the case and the county management, although I'll make some changes to incorporate the verdict, having submitted the column an hour before the jury submitted its verdict.]
        Among other things, my column noted that whatever this jury might find with regard to Jorge Granados, the larger jury was still out concerning county management. It still is.  But these jurors -- twelve average folks, not primarily Hispanic, not necessarily an unduly sympathetic jury to Mr. Granados's case -- have weighed in loud and clear.   A county citizen who knows there are a half-dozen somewhat similar cases out currently wending their way toward trial might wonder how the verdict will affect the county's view of those.
         A citizen might reasonably wonder too about the conduct of this one.   Hindsight is always 20-20, but I came to believe weeks ago that the county (or, more precisely, its insurer) should try to settle the case.  I'm pretty sure the case could have been settled for a lot less than the county (or the insurer) will now pay: $250,000 to Mr. Granados, and several hundred thousand dollars to his lawyers and the County's.  As trial went on, I thought Plaintiff was winning.  I told both sides today that I thought the verdict would be for Mr. Granados, although I guessed the amount of money would be less and added that obviously none of us could know.  The county's insurer, or the commissioners, or the county counsel -- whoever makes these decisions -- did not choose to re-open settlement discussions during trial.
        A little-known secret outside legal circles is that your people win trials, not your legal arguments.  With apologies to friends in county administration who tell me Mr. Granados is a liar, he didn't seem like one this week -- to me or to the jurors.  I'm guessing he may have stretched some things to fit his case into the right legal pigeon-holes, but maybe he didn't even do that.  He didn't seem like a liar or a greedy man.  Rather obviously, he seemed to the jurors a sympathetic figure and a straight shooter.  Most witnesses, though employed by the county, certainly said he was honest and trustworthy -- and said it more clearly than they said much of anything else.  The County did not show otherwise at trial.
        Watching the jurors through the trial, I felt as if they were leaning toward Plaintiff.  Trying to sense a jury's mood can be a treacherous game, but there were some clues in body language, in whose jokes they laughed at, and the like.
        More to the point is whether or not the verdict will affect the county's conduct or its decisions regarding the additional litigation.  Without pre-judging those other cases (and as to most of them I know little more than the names), I'm concerned.  Can the county's insurer and legal team turn off their personal views and look at these cases the way jurors would, in order to calculate settlement value?  If there are trials, will we again see witnesses who work at the county, and feel intimidated by counsel or management, try doggedly to hide their resentment of that intimidation and shade their testimony to be as favorable to the county as they can really make it?. Is there some reason to think jurors won't see through that six months from now as easily as they did this week?
        I know from my own investigation of the county that in certain departments there's a climate of fear.  That's been described or expressed to me by people who look me in the eye and sound generally credible -- and by quite a few of them, while others are too scared even to say "Hello."  Still others appear out of nowhere now and then and give me a sign that although they can't speak to me, and courteously decline to do so when I ask, they see things wrong in county government that they wish were known more generally by county citizens.
       At the same time, I genuinely enjoy and respect some of the higher-ups about whom I find it necessary to write uncomplimentary things.

      The jury began deliberating at about 3:20 p.m. Wednesday.
Closing arguments presented a rich contrast in styles and substance.  Plaintiff’s counsel Daniela Labinoti spoke passionately, showed summaries of testimony regarding discrimination, and closed with a reference to the imminent Fourth of July – urging jurors to “make history” and reassure aggrieved victims of discrimination here that they can speak up.
Defendant’s counsel, Raul Carrillo, spoke calmly and dispassionately, and urged the jurors to consult the mass of policies and documents in the record, rather than following their passions.  “Our job is to come and reason together,” he said.  If he didn’t quite manage to explain just why Granados was fired, he did pretty well at suggesting that the witnesses who testified favorably to Granados were malcontents.
        The county or its insurer will likely decide to appeal.  I'll be interested in their grounds.
                                                 
       

Granados v. Dona Ana County Day 6

[If you're a juror in this case PLEASE 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 Monday, July 1st, the sixth day of trial.  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.]

Today Plaintiff rested, after calling Internal Affairs Investigator Guadalupe Quezada and Plaintiff's wife, Juanita Granados.  Defendant, after an unsuccessful motion for a directed verdict, presented the bulk of its case, but did not finish.  Human Rights Director Deborah Weir testified for much of the day, and there were also brief appearances by Donald Fenerty, Henry Cornelius, Paul Dugie, and Misty Dawn Benavidez.  Testimony will continue tomorrow morning and probably end by mid-afternoon.  The jury will likely get to go home early, while Judge Arrieta and the lawyers finish hashing out jury instructions, and then closing arguments will occur Wednesday morning -- starting at 10..

The single most striking aspect of the trial so far is the vast number of County employees who have admitted during their testimony that they feared retaliation by their employer if they testified truthfully.

      It struck me at some point that in decades of doing trials (and, before that, covering them) I've never seen that.  I've seen witnesses who seemed cowed by their employer and who tried to say the opposite of things they'd told me casually in private.  But I've rarely seen so many witnesses whose testimony was largely favorable to the county concede in one way or another that they feared retaliation. Pretty much every Hispanic employee-witness has made such a statement.  However, each testified that s/he was telling the truth from the witness stand and had not been influenced by retirement concerns or fears of retaliation.  

When Ms. Quezada, a ten-year county employee, testified this morning, the following Q and A sequence occurred:

Q. Are you afraid of testifying today?

A. Yes.

Q. Are you afraid of retaliation?

A. Yes, I am.

      In fact, her substantive testimony was minimal.  She testified to having located and attached to her report certain documents Plaintiff had been accused of destroying. This was approximately two months before Defendant was terminated.  She testified she hadn't been aware he'd been accused of destroying them.  Asked whether it was unfair to accuse him if the documents were in the possession of the Human Resources Department, she carefully replied, "If that is how it is, I would have to agree with you."

      On cross by Defendant, she testified concerning the documents regarding discipline meted out to two Road Department supervisors.  She also testified that she'd written a memo regarding the Jason Ireland incident, but that it contained solely information provided by Ms. Weir, and that she hadn't spoken with Mr. Granados.

      Regarding her fear of retaliation, she testified that she'd testified in one other case, involving a friend, and had suffered a neither a pay decrease not a decrease in benefits or authority.  Asked whether, then, "in any objective sense" she had not been retaliated against, she replied, "Not yet."

She was followed by Ms. Granados, who testified that she and Plaintiff had been married 21 years and had two daughters, and that they'd moved back to Las Cruces, despite a pay-cut for Mr. Granados, so as to raise their daughters around extended family.  

      Regarding her husband's reaction to his notice of termination, she said he was "in shock" but pointed out to her his right to a hearing, and expressed confidence that the hearing would  turn things around.  After the hearing, she testified, "I guess he was in shock.  He came out and said, 'They didn't even let me speak.  Brian kept interrupting me.  They'd already made up their mind to fire me.'"

      Later, she said, he became "very withdrawn."  

      She said that what she wanted from the trial was "to clear my husband's name.  He was accused of being dishonest."

      Her testimony was potentially moving but not highly substantive.  I wrote in my notebook as she finished, "I wouldn't cross at all."   Moments later, after a brief conference, the County's lawyers announced, "No questions, your honor."

      That ended Plaintiff's presentation of evidence, at 9:18 a.m.

      Defendant then moved for a directed verdict.  Such motions, which are probably made by defendants in more civil cases than not, can occur at the end of Plaintiff's case.  Defendant is essentially saying that it is entitled to have the Judge direct a verdict for Defendant because Plaintiff has failed to introduce, as to some required element of each cause of action, sufficient evidence that a reasonable jury could find that particular cause of action to be proven.  That is, even if everything said so far is true, Defendant wins.   (A simple example: if my cause of action involved discrimination based on race, and I failed to put in evidence regarding my race, Defendant could prevail on a motion for directed verdict; in a case for patent infringement, if Plaintiff failed to show evidence that s/he was the legal owner of the patent, Defendant might win such a motion.

      Here, briefly, Defendant's argument was based in part on a lapse of nearly two years between Plaintiff's passing on of a complaint by a subordinate and Plaintiff's firing meant, under previous court decisions, that without specific evidence that passing on the complaint caused the firing, a reasonable jury could not hold that there was a causal connection.  Defendant also questioned whether that complaint, which referred to Ms. Padilla acting against the complainant's department because it was mostly minorities and people of low education, concerned ethnic origin or other factors.

       Judge Arrieta denied the motion and stated that "Clearly in my mind," there was some evidence from which a jury could find discrimination based on national origin.  I should note that this does not mean Judge Arrieta thinks Plaintiff should win, but only that Plaintiff has produced enough evidence to go forward and let the jury decide who wins.

Donald J. Fennerty, briefly the Interim Human Resources Director and now employed at the Detention Center, testified that he recalled no such conversation as Plaintiff Granados had testified occurred between them.  Mr. Granados had testified that when he talked to Mr. Fennerty about his discrimination complaint, Mr. Fennerty said something to the effect of, "You have to stand up for your employees."  Mr. Fennerty testified that Mr. Granados had never spoken to him about any complaint regarding discrimination/retaliation. "He never spoke to me about these subjects at all.  I am very adamant about that."  As to a discussion of discrimination based on national origin, he said "Sir, I never heard those words." He later added, "I am very certain about these things."  He said such a conversation, during his mere six weeks as Interim H.R. Director, would have been "a significant event" that would have stood out in his memory.

      On cross by Plaintiff, asked whether he had once told Kim Stewart that he failed to land the permanent H.R. Directorship because he refused to do the things Sue Padilla told him to do, he replied, "I would doubt that very much.   I don't believe that's accurate."

      He also testified that while he needed one more year for his retirement to vest, and "would be foolish not to want that to be vested," his testimony was not in any way influenced by that desire.

Henry Cornelius testified concerning a period when he was working under the supervision of Robert Armijo, a Hispanic, but making more money.  He testified that he had "43 years' experience" and that Armijo was about 43 years old, and also that the disparity had been corrected in 2012.

Paul Dugie, Flood Commissioner, testified that his salary (which Plaintiff had noted was higher than Plaintiff's, although they were both directors and equivalent in status) came from a different (and state-administered) fund than other county employees.

Deborah Weir testified at great length, but during the morning she primarily authenticated various documents Defendant wished to introduce into evidence.  She also testified that the Sally Ramirez sexual-harassment case (in which the County settled a claim by the U.S. Department of Justice and paid a total of $150,000 to five plaintiffs who had worked as maintenance people in Facilities and Parks) had made management very sensitive about careful reporting of any possible discrimination complaint.

After lunch Misty Dawn Benavidez testified before Ms. Weir continued her testimony.

      Ms. Benavidez, an administrative assistant in Facilities and Parks, testified that there had been a time when she didn't get along with Sue Padilla but had talked to her about issues and "Now we're good."  She said she'd come to resent not only Ms. Padilla but her job.  She also testified that she hadn't been retliated against over her national origin.

Under direct examination by Mr. Carrillo, Ms. Benavidez testified:

Q. Are you testifying today to keep your job?"

A. It's crossed my mind.  However, I'm here to tell exactly what happened.

Q. Do you fear retaliation from anyone?

A. Yes.

Q. Have you gotten over that feeling by talking to Ms. Padilla?

A. It comes and goes."

On cross-examination, she was asked whether she'd felt harassed by Sue Padilla and experienced a hostile work environment.  She replied that she'd felt that if she spoke out, Ms. Padilla would retaliate.  She conceded that she'd still felt harassed in 2010.  She was asked whether she'd experienced a $4 pay cut, and replied "And then some.  It was very harsh."  Asked if this was the result of Sue Padilla, she replied in the affirmative.  Asked if she felt it was the result of truthful testimony in the Sally Ramirez case, she replied "I'm not sure why --- I just felt harassed."  However, Plaintiff showed her a June 2012 statement in which Ms. Benavidez had also been asked whether truthful testimony in that lawsuit had led to a demotion and pay cut and had replied, "Yes, ma'am."  

Q. You don't want another $4 pay cut after testifying, do you?"

A. "No, ma'am."

      On Redirect, Mr. Carrillo ask whether she feared another pay cut.  She replied, "Kind of, yes."

Ms. Weir then returned to the stand, and testified until late afternoon.  She testified to having been involved in drawing up the Notice of Intent to Terminate, and said that she'd recommended terminating Mr. Granados's employment "because of dishonesty and insubordination."  She added that directors must be credible and trustworthy, and said, "It's not a performance issue.  It's a character issue."

      She also suggested, with regard to the Jason Ireland incident, that although county manuals mandated reporting an incident of discrimination when the supervisor either observes it personally or is told of it by the complainant, there should also be a "knew or should have known" standard.  Mr. Granados was not told of any discrimination by Mr. Ireland, did not personally observe any, and (I believe) testified he hadn't even met the man.  However he was told something of an incident, or possibly two incidents, in which Mr. Ireland was unhappy because others on his work crew were speaking Spanish to or about him.  Under the "knew or should have known" standard, he would have been obligated to report that.  Ms. Weir testified that that standard is taught in training sessions.  Judge Arrieta jumped in to question her about where it appeared in the manuals and to clarify that Mr. Granados was not Mr. Ireland's direct supervisor.  As to the "knew or should have known" standard, he later stated, out of the jury's presence, "I don't know where that came from.  It's not the law as I see it."

      She also testified to "heightened sensitivity" to allegations of workplace violence.

      On cross-examination she was asked, and conceded, that a black woman working for the county had filed a discrimination complaint against her personally two month ago, and that it had included retaliation, although she said she wasn't sure if it also alleged a hostile work environment.  (No one indicated that the claim had been adjudicated yet.)

[Again, sorry to have written this so hurriedly.  I will likely have to miss most or all of what testimony there is tomorrow, but will hope to be there Wednesday for closing arguments.]

     

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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