Black employee fired after complained of Disproportionate workload - case settles for $100,000

In the media:

  • Michigan Lawyers Weekly "Woman alleged race was factor in unfair treatment at work She was dismissed after confronting boss over job duties" 10/05/2017

Facts of case:

Plaintiff Stephanie Jones, a black woman, was approached one day by her white female counter-part that Stephanie was given more assignments than others and many that were not a part of her job.  Coincidentally, Stephanie was the only black woman in the position and the only one with the increase work load.  She confronted her white supervisor, opposing this obvious discrimination. Her white supervisor responded by setting Stephanie up to fail.

Specifically, her white supervisor made her job as onerous as possible by taking work from other, non-complaining employees and assigning Plaintiff it as extra required job duties. Stephanie, however, stayed true to her work ethic, and worked 15 hours per day to keep up.

After working through this for months, Stephanie finally went up the chain-of-command to complain about how she was being treated.  Stephanie went to her boss's white woman supervisor, for help and to complain, but this supervisor just “circled the wagons” and backed up what was happening. Together, they then resorted to manufacturing pretextual after-the-fact documents to try to justify wrongfully discharging Stephanie allegedly based on job performance. Within 10 days of complaining up the chain, black employee, Stephanie Jones, was fired.

In order to fire her Defendants created documents in such haste that they didn’t correlate with the real-time events, and even the author of them couldn’t explain how the plan to fire Stephanie appeared in her own personal handwritten notes, which were written a full 6 weeks prior to Plaintiff’s termination.

So, Defendants’ story they concocted story that they didn’t decide to fire Stephanie until a few days before they did so, blew up in their faces.  This phony, manufactured evidence didn’t go unnoticed – Defendants’ former black HR manager/employee, noted in a memo, “I do not have any notes or formal documentation about her performance to support a termination of her employment”. This same HR manager, testified that she believed Defendants were doing things in meetings that were “illegal”.

If these actions weren’t enough to prove the racism, Plaintiff’s position was then filled by a white man.

Though the case was potentially worth hundreds of thousands, because Stephanie was such a diligent and capable worker, Stephanie found new comparable employment within 9 months. The case settled for $100,000 through the Court’s ADR process.

Summary of the case:

Type of Action: ELCRA Discrimination/Race

Injuries Alleged: Loss of job, lost wages, outrage/emotional distress/mental anguish

Court: Genesee County Circuit Court

Name of Judge: Hon. Judith Fullerton

Settlement: $100,000

Date of Settlement: 9/13/17

Key To Winning: Defendants’ former black HR Manager/employee’s testimony which revealed that Defendants were manufacturing documents after-the-fact, in order to support a pretextual proffered business reason concerning Plaintiff’s job performance to cover up their discrimination against the black Plaintiff

Attorney for Plaintiff: Tom R. Pabst, Michael A. Kowalko and Jarrett M. Pabst

Attorney for Defendants: Withheld

Village settles with family after police chief went "zero tolerance" on them

In the news:

Summary of the case:

For 2 generations the Bittermans had a small family owned restaurant in the small Village of Oakley.  In 2013, they employed a young woman who went to her boss, Dennis Bitterman for help, reporting to him that the Chief of the Police Department started sexually harassing and stalking. When Dennis stepped in to protect her, and told the Chief of Police to stop, the Chief waged war against Bitterman’s business, Oakley Family Tavern, and used his power and political clout to try to destroy the Bitterman’s business.

The response shocked the small business owners.  As Dennis testified at his deposition “All of this stuff started after I made that complaint with him. [The chief] called and threatened me on the phone he was going to shut my business down and have my dumb-ass daughter in jail, he’s going to go to zero tolerance on me…”

The Saginaw County Circuit Court Judge saw that this was a direct evidence case as stated in the Court’s Opinion and Order dated 12/29/16, where the Court actually quoted the testimony of Dennis Bitterman.

Two weeks before the Trial was to begin, Dennis Bitterman was finally vindicated for doing the right thing when a settlement was reached with the Village of Oakley for $100,000.

 

GCBA Deposition Seminar 2017

The Genesee County Bar Association, Genesee County Bar Foundation and the Neithercut Fund sponsored the seminar for all local attorneys to improve their deposition skills.  This 1/2 day seminar involveda number of topics, including:

  • How to portect your client
  • Proper objections
  • Using the Michigan Court Rules as both a shield and a sword for discovery
  • Real-life examples from attorneys and court reporters
  • Vignettes

The seminar was only possible through the support of our local organizations and the time donated by featured speakers, Tom R. Pabst & the Honorable Robert Ransom, moderator and GCBA President, Michael Kowalko, local attorney Nancy Chinonis (Cline, Cline & Griffin), court reporter David Ripka  (Ripka, Boroski & Associates) and the amazing staff at the GCBA.

Dep Seminar Flyer.jpg

Lawyers Weekly Article "Protection increases for whistleblowers"

Congratulations, Tom R. Pabst, on having Michigan Lawyers Weekly pick up your article to publish in the their September 5, 2016 edition.

This article is a follow-up to the previous article "Increased Protections for the Whistleblowers of Michigan" published in the Michigan Bar Journal, May 2012 and discusses the how the Courts have now clarified that any attorney of a mandatory State Bar Association is a public body.

Below is a link to the Lawyers Weekly article:

Protection increases for whistleblowers 

By: Tom R. Pabst in News Stories September 6, 2016

After a recent deicsion, it is clear that reports to an attorney, including reports to the private employer’s attorney, or to plaintiff’s own attorney, constitute “engaging in protected activity” protected by the WPA... [log in for full article]

Judge's Record Cleared After First-Ever Use Of Mediation In A Criminal Case In Michigan

In the Media:

Description of the Case:

    Lapeer County Circuit Court Judge Byron Konschuh was facing 5 felony counts, and of course the destruction of his professional career as a judge in Lapeer County. This case was hotly contested. Konschuh's defense team, special trial attorney, Tom R. Pabst, and criminal law expert, Mike Sharkey, believed so strongly in Judge Konschuh's innocence that they represented him.  Tom R. Pabst even provided his time and services for free (pro bono). The case, however, seemed headed for an expensive and time-consuming trial.

    In an effort to break the impasse, Attorney Tom R. Pabst suggested to Special Prosecuting Attorney, Deanna Finnegan, something unprecedented in Michigan – the use of a mediator. The opposing sides chose the Honorable Robert Ransom, a retired judge with over 40 years experience. With his knowledge and experience, the parties hammered out an agreement fair to everyone concerned under the circumstances. The felony charges were dropped. Judge Konschuh would instead plead "no contest" to an arguable accounting misdemeanor which will be dismissed in its entirety on July 1, 2016, pursuant to the terms of the plea agreement, which was approved by Circuit Court Judge Geoffrey Neithercut, such that Judge Konschuh will have no record whatsoever.

    Requests for restitution from SPA Deanna Finnegan were denied. Importantly, Judge Neithercut pointed out that Judge Konschuh used approximately $7,000+ of his own monies to run his office, whereupon he ruled – "I don't think Lapeer County was denied the money".

    Moreover, SPA Finnegan's request for Judge Konschuh to have to write "letters of apology" to various Lapeer County officials was also denied by Judge Neithercut.

    Special trial attorney Tom R. Pabst praised SPA Finnegan for having the courage to think outside the box and consider mediation in a criminal case:

    "It's a really good deal, and it saves the taxpayers money", said Tom Pabst. "Finnegan was really smart and good, did her job, and I think she realized that the felony charges were just not warranted."

    The importance of what happened in this case should go beyond its immediate effect of saving the career of Judge Konschuh. Specifically, the use of a mediator in criminal cases should become an option utilized by our criminal justice system. The savings in time and money to the taxpayers would be enormous, as the cost of a mediator pales in comparison to the cost of a lengthy criminal trial.

 

Overview of Case:

Type of Action: 5 felony counts

Injuries Alleged: Embezzlement of public monies

Name of Case: People v. Konschuh

Court: Genesee County Circuit Court (special venue)

Case No: 14-36353-FH

Date: Case settled on 3/8/16

Tried Before: N/A

Name of Judge: Geoffrey Neithercut

Name of mediator: retired Judge Robert Ransom

Most Helpful Advice: Defense Counsel, Tom R. Pabst and Special Prosecutor Deanna Finnegan thought "outside the box" and decided to use the mediation process that has been so successful for civil cases in this criminal case.

Attorneys for Defendant: Tom R. Pabst, Michael Sharkey

Attorneys for the People: Special Prosecutor Deanna Finnegan

Key(s) to winning: Having a seasoned and knowledgeable retired Judge mediate this matter to resolution

Related Articles: "Felony charges dismissed as judge pleads no contest to misdeanor" – The Flint Journal

 

   

Eight Years To Get Justice: Former Teacher Settles Retaliation Case For $450,000

In the Media:

Description of Case:

    This case was tried to a jury verdict twice! In the first trial, Beverly Garvin, Plaintiff, sought damages from Defendant Detroit Board of Education and individual Defendants Mary Anderson, Laurie Washington, Debra Williams and Rosa Jackson, after being terminated from her job for alleged retaliatory reasons. In April, 2010, the first jury returned a verdict for Beverly Garvin in the amount of $750,000, which included $490,000 in punitive damages. However, the Michigan Court of Appeals reversed the verdict, dismissed the School District as a Defendant, and ordered a retrial against the individual Defendants only.

    On November 12, 2013, the second jury in the retrial returned a verdict for Beverly Garvin in the total amount of $721,400, finding liability against each of the individual four Defendants, including $52,000 in punitive damages against the head of HR for the School District, Debra Williams, who was found to have an evil motive and retaliatory intent to punish Beverly Garvin.

    In 2004, Garvin, an eight-grade teacher at Arthur Fischer School in Detroit, was told by some of her students that they were being raped and/or sexually assaulted at home and in foster homes. Garvin called Child Protective Services (“CPS”), as required by law, though Jackson, the school principal, ordered Garvin not to do so.

    Garvin was immediately demoted to a fourth-grade teaching position, and later taken out of a program that would have led to her being certified as a teacher, meaning that she would only be able to be a substitute teacher. Her salary was reduced from $52,000 a year to $26,000.

    Garvin later learned that one of her 9-year-old students had been beaten on the school’s playgrounds and forced to perform a sex act on an older school boy.

    When Garvin called CPS, she was ordered to spend all the school days in the teacher’s lounge, staring at the walls, teaching nobody. These types of rooms are euphemistically called “rubber rooms”, basically in school “jail cells” for teachers who administrators want to punish. Later, Garvin was escorted out of the school like a thief by security, suspended for five months, then transferred to another school, Murray Wright, where she won a “Teaching Excellence” award. In 13 years of teaching, Beverly Garvin had a spotless discipline record. After being punished in all of the above ways, the kangaroo court school hearing was held where the administrators found Garvin guilty of work rule violations, and recommended that she be fired. Then she was fired.

    The union grieved the matter, and the arbitrator held a favor of Garvin, saying she had not violated any work rules, and awarded her two years’ back pay for violation of the “just cause” Collective Bargaining Agreement.

    In trial court, plaintiff asserted losing her home, job and livelihood for calling CPS, and was retaliated against for doing so.

    Defendants contended that the arbitration award, in and of itself, should have prevented Garvin from making any further type of civil rights claim.

    The jury returned a verdict of $721,400, which, with interest, costs and attorney fees totals $1,097,044. The jury was asked to, and did, send a message to school administrators everywhere that juries will hold them accountable if they punish good teachers who had the courage to risk everything to protect children who can’t protect themselves!

    However, Defendants again appealed the jury verdict and the Court of Appeals reversed the jury verdict and remanded the case for a new trial – a third trial! – this time because the Circuit Court allegedly did not allow Defense Counsel enough time to cross examine the Plaintiff (Defense Counsel was limited to one hour, the same one hour time limitation that Plaintiff’s Counsel had to abide by). The Court of Appeals, at oral argument, stated to Attorney Pabst, “Mr. Pabst, you didn’t do anything wrong”; and, further, asked him if, “he wanted the case remanded to the same Judge or to a different Judge”, whereupon Mr. Pabst said, “yes, I want it remanded to the same Judge who did nothing wrong in my judgment.”

    In January of 2016, the Circuit Court ordered a Settlement Conference and also issued an Order requiring the City’s Emergency Manager to attend. After several hours of negotiations, the now 73-year-old Plaintiff, Beverly Garvin, settled for $450,000, thus ending an eight year legal battle.

 

Overview of Case:

Type of Action: 42 USC §1983 First Amendment Retaliation

Injuries Alleged: Retaliatory loss of job, career and dream of teaching young children

Name of Case: Beverly Garvin v. Detroit Public Schools, et al

Court: Wayne County Circuit Court

Case No: 08-120224-NO

Date: Case settled on 1/5/16

Tried Before: Two separate juries – one in 2010 and one in 2013. Case settled on 1/5/16, prior to the start of the third jury trial.

Name of Judge: John H. Gillis, Jr.

Name of mediator: N/A

Name of arbitrator: N/A

Demand: $75,000

Highest Offer: $0 – Defendants never made an offer until 1/5/16.

Verdict: The first jury verdict in 2010 was for $750,000. The second jury verdict in 2013 was for $726,000. The case was remanded by the Court of Appeals for yet a third trial and settled for $450,000 on 1/5/16.

Settlement amount: $450,000

ADR award: $75,000 (Plaintiff accepted, Defendants rejected)

Insurance carrier: None

Attorneys for Plaintiff: Tom R. Pabst, Michael A. Kowalko, Justin Pabst, Jarrett Pabst

Attorneys for Defendants: Gad Holland, Phyllis Hurks-Hill, W. Mack Faison

Key(s) to winning: Having a courageous and decent teacher like Beverly Garvin who cares more about the sexual safety of 9-year old little girls than her own job.

FIRED CLIO SUPERINTENDENT OF SCHOOLS AND HIS IT EXPERT PAID $300,000 IN SETTLEMENT

In the media:

Description of the case:

            Fired Clio Superintendent Dr. James Tenbusch was just paid $275,000 to settle his lawsuit by the same people who falsely accused him of having pornography on his computer!!  His IT Director, who was fired for refusing to put "spyware" on the computers of unsuspecting administrators, received $25,000.

            PhD Dr. James Tenbusch was hired by Clio Area Schools as its Superintendent by written contract, which remunerated Dr. Tenbusch at the rate of $145,000/year plus benefits.  The adequate salary was in recognition of Dr. Tenbusch's impressive education credentials and leadership qualities, and he always put the welfare of the students first and foremost, as it should be.

            Unfortunately, petty School District politics destroyed the peace and tranquility of Clio High School, and sabotaged the educational mission Dr. Tenbusch sought to maintain for the welfare of the students.  Specifically, another political faction at the School District led by Defendant Fletcher Spears and Defendant Stephen Keskes sought to oust Dr. Tenbusch, and in attempting to do so, did the following:

(1)        Disciplined Dr. Tenbusch on trumped up charges such as:

a.         Smoking on the School grounds;

b.         Not wearing a tie to an event held during the summer break attended primarily by other  administrators;

c.         Shaking hands "too hard"(!);

d.         For criticizing the Union;

(2)        Suspended Dr. Tenbusch, and seized his computers;

(3)        Appointed Defendant Spears as "Co-Superintendent", in such a way that it greatly decreased Dr. Tenbusch's job duties and responsibilities, as set forth in the written contract; and

(4)        Falsely but loudly claimed that Dr. Tenbusch "put porn on the computers" at School.

            Based on the above trumped up and phony charges, Defendants fired Dr. Tenbusch and refused to pay him in accordance with his written contract.

            The two IT experts Defendants themselves claimed would "prove" Dr. Tenbusch put porn on the School computers were (1) Mr. G. Takimura, and (2) another School District's Mr. Wittum.  On cross-examination, Mr. G. Takimura, whom Defendant Spears and Defendant School had paid $50,000, had to admit that Defendants' theory on how Dr. Tenbusch allegedly misused the computers was untenable, and could not be used to show Dr. Tenbusch engaged in wrongdoing.  Moreover, the other School District's Mr. Wittum also submitted a written report indicating that "anyone could have put porn on the computer", as lax as computer security was at Clio High School.

            In other words, Dr. Tenbusch's attorneys were prepared to prove at trial that Defendants own Mr. Takimura whom they paid $50,000, repudiated and refuted Defendants' theory of liability such that Defendants changed their position and said, "He's not our expert".   Additionally, Plaintiff's counsel were prepared to show at trial that the other expert Defendants claimed to be relying upon, Mr. Wittum, would have testified that "anyone at Clio High School could have put porn on the computer".  Just before the case was set to go to trial, Defendants paid $275,000 to settle the case.  Moreover, Defendants also paid Bruce Richards, the IT expert under Superintendent Dr. Tenbusch, who refused Defendants' request to put "spyware" on computers of unsuspecting administrators and teachers at Clio Schools, another $25,000 to avoid having to go to trial on his case.  The total amount Defendants paid for this fiasco they themselves created was $300,000.

Details:

Type of Action:          Breach of Contract

Injuries Alleged: Wrongful discharge from approximately $145k/year Superintendent position

Name of Case:           Tenbusch v. Clio Area Schools., et al AND Richards v. Clio Area Schools, et al

 

Court:                         Genesee County Circuit Court

Case No:                    14-102904-CZ; 14-103787-CZ

Name of Judge:          Hon. Archie Hayman

 

Date of ADR Settlement:      2/19/16

Attorney for Plaintiff:            Tom R. Pabst, Michael A. Kowalko and Jarrett M. Pabst

 

Attorney for Defendants:      withheld

Key to Winning:                     Successfully using Defendants' own IT experts to repudiate Defendants' false and phony reasons for Plaintiff's termination

 

Whistleblowing Executive Director Of Housing Commission Fired For Demanding Compliance With Law And Important Rules And Regulations

In the Media:

Description of Case:

    For 17 years, Tony Love was the Executive Director for Defendant Housing Commission. He was well known in the community and good at his job.

    However, everything started to change in 2014. Love started to become aware of Defendant's Board engaging in what he recognized as improper activities, including, opening “blind bids” prematurely to compare amounts, violating the Open Meetings Act to further their own purposes, and even questionable usage of non-profit and public monies.

    Plaintiff reported all of these suspected violations to his superiors, who were the same people committing the violations. Unfortunately Defendants felt they could do whatever they wanted and warned the Plaintiff that he “better just do it”, and let their violations go through uncontested. To his great credit, Plaintiff took a stand and refused to back down, and, almost immediately afterward, Love was the subject of an investigation requested to answer Defendants' inquiries, which attempted to shift the blame from them to Love. When it became clear Love still would not back down, certain members of Defendant's Board of Directors publicly showed their outrage and anger and quickly terminated Love, in violation of the Whistleblower Protection Act, Public Policy of Michigan, and the terms of his contract.

    Fortunately, not all housing commissions agreed with the actions of Defendants and appreciated an Executive Director who would stand up against pressure to protect the rights of the Commission and the people who rely on it. Only 6 months after his termination, the highly qualified Love was made the Executive Director of another housing commission where he actually ended up making more in salary the Defendant previous employer paid.

    The case settled shortly after for $100,000.

 

Overview of Case:

Type of Action: Whistleblower Protection Act, Breach of Contract, Violation of Public Policy

Injuries Alleged: Wrongful discharge from Executive Director position

Name of Case: Love v. Inkster Housing Commission, et al

Court: Wayne County Circuit Court

Case No: 15-008260-CZ

Tried Before: N/A

Name of Judge: Hon. Leslie Kim Smith

Jury Verdict: N/A

Settlement: $100,000 Settlement

Most Helpful Experts: Facilitated to settlement by Judge James Rashid

Allocation of Fault: N/A

Insurance Carrier: N/A

Attorney for Plaintiff: Tom R. Pabst, Michael A. Kowalko and Jarrett M. Pabst

Attorney for Defendants: Withheld

Key to Winning: Being able to prove Plaintiff’s case through pleadings, documents, and plenty of recorded meeting

Former ABC12 Reporter/Anchor, Leslie Toldo, Settles Lawsuit With Station for $80,000

In the Media:

Description of Case:

ON-AIR TALENT FIRED FOR OPPOSING GENDER AND RACE BIAS

     Plaintiff Leslie Toldo was a well-liked local news personality, with loyal viewers and a relatable public image. She is well-known and respected as a person who will speak her mind when something or somebody is wronged. For 10 years she was the meteorologist, co-anchor, and segment creator for the local ABC station. She loved her job, the community loved her work, her work was nationally praised with an Emmy nomination, and, before she stood up against gender and racial bias, her employers praised her too; placing her at the top of the pay scale and called her “the future” of the Station.

     However, in 2014, shortly after receiving her last raise, Toldo complained three separate times about the preferential treatment she witnessed being given to male and African-American employees. She complained that decisions about work rules in the workplace, attendance rules, vacation rules, etc., were being decided with what appeared to be race and/or gender being used as a factor. She specifically complained that white women were on the bottom of the totem pole at the station. Not surprisingly, all Leslie wanted was to be treated equally.

     Her male supervisor didn’t like Leslie standing up for her rights. Less than 20 days after her last complaint to her male manager, Leslie Toldo was informed that her contract was not going to be renewed, and she was immediately "escorted" out of the building, and a ban was placed on talking to her. She was treated like a thief. Defendants were so mad that Leslie Toldo spoke up against them they also banned from the building, contrary to the station's current and past-practice of letting African-Americans finish out their contract terms after being non-renewed. Also, Defendant station enforced the Non-Compete Agreement against Leslie, something that they waived for employees.

     Defendants’ arguments failed at the summary disposition stage, and, shortly before the trial date, the case settled through ADR for $79,901.

     Shortly after being fired, Leslie Toldo was offered a position as a regular contributor and meteorologist at a competing news station in the same market, NBC 25.

Overview of Case:

Type of Action: ELCRA race and gender discrimination

Injuries Alleged: Wrongful discharge from approximately $80k/year on-air position

Name of Case: Leslie Toldo v,WJRT, INC., et al

Court: Genesee County Circuit Court

Case No: 14-103171-CZ

Tried Before: N/A

Name of Judge: Hon. Geoffrey Neithercut

Jury Verdict: N/A

Date of ADR Settlement: 11/10/2015

Offer to Settle: N/A

Most Helpful Experts: N/A

Allocation of Fault: N/A

Insurance Carrier: N/A

Attorney for Plaintiff: Tom R. Pabst, Michael A. Kowalko and Jarrett M. Pabst

Attorney for Defendants: Withheld

Key to Winning: Thorough discovery which turner up key discrepancies in Defendants' own documents

 

EXECUTIVE DIRECTOR OF SENIOR CENTER FIRED FOR TELLING THE TRUTH DURING DEPOSITION

In the Media:

Description of Case:

EXECUTIVE DIRECTOR OF SENIOR CENTER FIRED FOR TELLING THE TRUTH DURING DEPOSITION

(The Case Resolved Against Defendant Senior Center through ADR for $160,000; but Case Against Primary Defendants, Flint Township of Barb Vert, Continues) 

Plaintiff Linda Moore, worked as the Executive Director of Carman-Ainsworth Senior Center for 10 years.  She loved her job.  Even more important than the annual salary of approximately $50,000, her position allowed her to help the elderly people in her community enjoy a better quality of life.  

When Linda Moore was subpoenaed to testify at a deposition in a case filed by a former employee, Linda took her oath seriously and answered the questions truthfully.  The Defendants, primarily Flint Township and its Trustee/Board Member Barb Vert, were angry at Linda for speaking the truth.  Defendant Vert thereafter became the moving force behind getting Plaintiff fired.  Defendant Vert went to the Township Attorney seeking the deposition transcript, lobbied for the voting members of the Board to discharge Plaintiff, and successfully influenced the Board's decision to discharge Linda Moore.  Linda Moore was also falsely accused of stealing money – but was totally innocent.  Also, Linda Moore was singled out for selective enforcement of rules, dissimilar treatment compared to male employees, falsely perceived as disabled, and also retaliated against for opposing discrimination in the workplace.  The Defense Counsel for Carman-Ainsworth Senior Center unsuccessfully sought to have testimony from the Township Attorney precluded on the basis of "privilege" – a privilege that did not exist. 

After ADR, Defendant Carman-Ainsworth wisely settled a very dangerous case potentially worth approximately $400,000, against them for $160,000.  Plaintiff accepted to avoid the possibility of sanctions.  The primary part of the case against Defendant Vert, the troublemaker and moving force behind Plaintiff being wrongfully discharged, and her principal, Defendant Flint Township, now continue and is headed for trial.

Overview of Case:

Type of Action: WPA and ELCRA

Injuries Alleged: Wrongful discharge from approximately $50k/year executive director position

Name of Case: Linda Moore v. Carman-Ainsworth Senior Center., et al

Court: Genesee County Circuit Court 

Case No: 14-102903-CZ

Tried Before: N/A

Name of Judge: Hon. Richard Yuille

Jury Verdict: N/A

Date of ADR Settlement: 8/24/15

Last Offer to Settle: Case against Carman-Ainsworth settled through ADR process

Most Helpful Experts: N/A

Allocation of Fault: N/A

Insurance Carrier: N/A

Attorney for Plaintiff: Tom R. Pabst, Michael A. Kowalko and Jarrett M. Pabst

Attorney for Defendants: Daniel Gwinn for Carman-Ainsworth; Stacey Belisle for 

Flint Township

Key to Winning: Successfully arguing for the admissibility of statements Defendants' counsel sought to preclude by asserting "privilege" – where no privilege existed

MERRILL LYNCH HR MANAGER TO WOMAN EMPLOYEE COMPLAINING OF SEX HARASSMENT: "WHY DON'T YOU JUST F--- HIM"

In the Media:

Description of Case: 

MERRILL LYNCH HR MANAGER TO WOMAN EMPLOYEE COMPLAINING OF SEX HARASSMENT: "WHY DON'T YOU JUST F--- HIM"

(Big Bank And Wall Street "Old Boys' Network" Pay Female Advisor They Forced Out $275,000)

Debra DiPillo, a divorced mother raising a teenage child herself, was lured away from a good paying ($75,000 per year) job to work for Merrill Lynch as a Financial Advisor.  She was recruited by Defendant, Jerry Rhoden, and told that she would become a partner with the NMY Group when Senior Advisor, Renaldo Macciomei, retired, and would make so much money that she would be, “pissing on $75,000 per year”, to use his phrase.  

Shortly after starting her new position, Plaintiff's older, married male supervisor, Defendant Renaldo Macciomei, who was supposed to be training her, began conjuring up reasons for them to be alone, and started making sexual advances towards her, saying he "felt a connection", and "I really want to kiss you right now".  Plaintiff politely rebuffed the advances at first, but as the advances became more constant, she reported them to the Managing Partner and HR functionary, Defendant Jerry Rhoden. 

However, when DiPillo went to the person Merrill Lynch designated to hear sexual harassment complaints, Defendant, Jerry Rhoden, with her concerns about Macciomei’s unwelcome sexual advances, Rhoden looked Plaintiff in the eye, with a straight-face, and said –"Why don't you just f—k him?  Maybe then he'll retire …"(!!!)

Apparently at Merrill Lynch, it is alright for a male employee, including Defendant Macciomei, to solicit sex from female subordinates and co-workers, and treat them like in-house work concubines.  

The following morning, Rhoden proceeded to retaliate against the victim, DiPillo, by relocating her desk to a remote corner of the office.   He claimed that he had made a call to HR, and they told him to do so, but that was false.  He did not make a call to HR, nor even address the issue.  He simply made a mockery of her and told her that if anyone asked any questions as to why she was being relocated in the office to respond, “My numbers were down and Jerry thought it would be better for me to be in a less busy part of the office so I can focus better.”  Obviously, Defendant Rhoden silently made a decision to himself that the amount of money Macciomei brought in was more important than the honor and dignity of this single working mother – or the law of Michigan.

A month or so passed and DiPillo continued to receive advances and lunch invitations of Macciomei, all the while being put in the corner and accepting such treatment in order to keep food on the table for her and her son.  After DiPillo’s persistent refusals/rejections, Macciomei let DiPillo know that there were “no guarantees” of her Partnership status after his retirement.  The guarantee was now null and void.  DiPillo was forced to make a stand:  accept Macciomei's advances and stay employed by Bank of America Merrill Lynch, or be forced out by him.  She chose to not accept his sexual advances and was forced to leave Bank of America Merrill Lynch, her dignity trumped.

As despicable as the individual Defendants' conduct was, Defendant Merrill Lynch's formal legal response to the lawsuit filed by DiPillo was reprehensible and vicious. When analytically reduced to its legal essence, Defendant Merrill Lynch's defense position in the lawsuit was – 

(1) Defendant Jerry Rhoden did not say, "Why don’t you just F--- him.   Maybe he will retire early", and that DiPillo was lying about that;

(2) But even if Defendant Rhoden did say it, he was "only joking"; and further

(3) Even if he wasn't joking, DiPillo probably "wanted it" anyhow, and that the sexual advances were not "unwelcome".

Defendant Merrill Lynch published these vicious falsities throughout the public record in Genesee County Circuit Court, and in oral argument in front of large groups of people. On August 20, 2015, Defendants, through their attorneys, actually contacted trial Judge Archie Hayman asking the Judge to stop publication of this write-up, which Judge Hayman, to his great credit, refused to do. 

The case went to ADR where a three member panel of prominent Genesee County Attorneys issued an award of $275,000 in favor of Plaintiff and against Defendants Merrill Lynch, Jerry Rhoden and Renaldo Macciomei.  The case resolved through the ADR process for $275,000.  To her great credit, DiPillo refused to accept Defendants' offer of more money to "keep this all confidential", instead choosing to (1) clear her name of the reprehensible slanders Defendant Merril Lynch used to defend this lawsuit, and (2) let other women know that they have rights under Michigan law.

Overview of Case:

Type of Action: ELCRA quid pro quo sex discrimination and sexual harassment

Injuries Alleged: Constructive discharge

Name of Case: Debra DiPillo v. Merrill Lynch, Pierce, Fenner & Smith Inc., et al

Court: Genesee County Circuit Court 

Case No: 14-103504-CZ

Tried Before: N/A

Name of Judge: Hon. Archie Hayman

Jury Verdict: N/A

Date of ADR Settlement: 8/14/15

Last Offer to Settle: Case settled through ADR process

Most Helpful Experts: N/A

Allocation of Fault: N/A

Insurance Carrier: N/A

Attorney for Plaintiff: Tom R. Pabst, Michael A. Kowalko and Jarrett M. Pabst

Attorney for Defendants: Alice Kokodis, and Paul Wilhelm 

Ex-worker claimed weight discrimination, wrongful discharge CEO allegedly made derogatory comments, supervisor fired her

In the Media:

Type of Action:

(1) ELCRA Discrimination (Weight)

(2) Wrongful Discharge in Violation of Public Policy

Injuries Alleged: Loss of job, lost wages, outrage/emotional distress/mental anguish

Name of Case: Jane Doe v. Big Manufacturing Co.

Court: Saginaw County Circuit Court

Case No: withheld

Tried Before: N/A

Name of Judge: Hon. Robert Kaczmarek

Insurance Carrier: N/A

Attorneys for Plaintiff: Tom R. Pabst, Michael A. Kowalko and Jarrett M. Pabst

Attorney for Defendants: Withheld

Key to Winning: Recognizing a textbook wrongful discharge in violation of Public Policy cause of action from the facts disclosed at depositions.

Tom R. Pabst, P.C. Makes Michigan Lawyers Weekly's 2014 Million-Dollar Verdicts & Settlements Issue Twice

Michigan Lawyers Weekly Million-Dollar Verdicts & Settlements 2014 Issue

Counsel argued driver in fatal wreck was asleep at wheel

  • Moore v. Art Van, et al., Oakland County Circuit Court; 14-139524-NI; Dec. 3, 2014

  • Settlement amount: $1,375,000

Ex-school official claimed smear campaign

  • Knox-Pipes v. Genesee Intermediate School District, Genesee County Circuit Court; 11-97246-CK; March 12, 2014
  • Verdict amount: $1.08 million

 

ETHNIC INTIMIDATION/ASSAULT AND BATTERY CASE SETTLED THROUGH CASE EVALUATION FOR $60,000

In the Media:

Description of Case:

Monica is a gay woman, and everyone at Defendant Vic Canever knew this. She was a car detailer/cleaner for the Vic Canever dealership.  She came in and did her job well, if not better than any of her male co-workers. When first hired, she was told by her immediate supervisor, “I can’t believe they hired you!  A woman cannot do this work!” Additionally, some time before her termination of employment, Monica was subjected to sex discrimination and sexual harassment, as well as numerous and forceful touchings and assaults and batteries. Just one example of Defendants' acts of intimidation and assault and battery was when Plaintiff was cornered in the workplace and her male co-workers pressed their genitals into her back, and actually had that co-worker pump and grind against her in a repeated motion, essentially dry-humping her, while telling her, “I will turn you straight!”. In addition to this, she was subjected to daily questions about her sex life. She was also subjected to co-workers telling her, “You’ll clean the bathroom because that’s a woman’s job!”.

Plaintiff reported these incidents to her supervisors, who not only declined to get involved, but shrugged off what she was going through, and told Plaintiff, “Oh, you know how Glenn (her assaulter) is.” In fact, Plaintiff repeatedly complained to Defendant Employer to stop the above conduct, but they deliberately failed and/or refused to do so.

Legally, the type of "sex stereotyping" Defendants subjected Plaintiff to is specifically actionable pursuant to the U.S. Supreme Court case of Price Waterhouse v Hopkins, 490 U.S. 228, 235 (1989), where the plaintiff was told to, "for God's sake, put some jewelry on, put some perfume on, dress and act like a woman if you want to make partner!". And, same sex harassment was also made specifically actionable by the U.S. Supreme Court in the case of Oncale v. Sundowner Offshore Services, Inc, 523 US 75 (1998). Most importantly, what made this an extremely dangerous case for Defendants to try in front of a jury is Michigan's Ethnic Intimidation law, found in MCLA 750.147(b), which provides that if there is gender discrimination and actual threats or contact – such as dry-humping a woman to "screw her straight" – whatever damages the jury awards are tripled!!!

 

This case settled through an Genesee County ADR panel for $60,000.

Attorneys for this case were Tom R. Pabst, Michael A. Kowalko, and Jarrett M. Pabst.

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Case Info:

Type of Action: ELCRA Ethnic Intimidation, Hostile Work Environment, Opposition/Retaliation, and Assault and Battery

Injuries Alleged: Loss of income, mental anguish, emotional distress

Name of Case: McVay v. Vic Canever Chevrolet, et al

Court: Genesee County Circuit Court

Case No: 13-101477-CZ

Name of Judge: Judge Judith Fullerton

ADR/Settlement: $60,000

Key to Winning: Defendants' fear of Ethnic Intimidation statute's trebled damages in front of a jury

Attorney for Plaintiff: Tom R. Pabst, Michael A. Kowalko, and Jarrett M. Pabst

Attorney for Defendant: Withheld

Older X-Ray Technician Fired While Younger Employees Not Even Disciplined - $225,000

In the Media:

Description of Case:

GENDER AND AGE DISCRIMINATION CASE SETTLED THROUGH CASE EVALUATION FOR $225,000

Gary Sergent was a hardworking and long-term x-ray technician in the Genesee County community, who spent his last 15 years working for Defendant Hospital. Unfortunately, there was a change at the hospital such that female management started to weed out all of the older employees. This was done through a selectively enforced vicious and phantom “patient mis-identification” rule, which Defendants claimed Plaintiff and other older employees violated. This tarnished their records in such a way that if they dared choose to not retire early, then they knew they wouldn't be able to find work elsewhere in the medical community.

The phantom and selectively enforced “patient identification rule” that Defendant Hospital used to hammer the older employees was never finalized by management, even after multiple complaints and concerns were raised by the staff and union. So the unanswered question became, “Why would Defendants have a supposed safety rule to protect patients, but never properly inform anybody or train the employees who are supposed to implement the rule. In the end, there was only one answer that made sense; it was a deliberately ambiguous and amorphous rule they selectively enforced because it was a great way to terminate older employees when they wanted to.

Another problem for Defendant Hospital was they had younger employees admitting in writing to knowing what the rule required, and not following the rule. Management knew about this and never issued the younger employees any disciplines, while at the same time threatening the older employees for their violations of this very same rule. After Plaintiff and other older male employees were fired, when shown all of the disciplines, one of Defendants' decision-makers had to admit that the disciplines “seemed to be coming frequently” for these older employees.

The evidence showed that Defendant Hospital had a modus operandi/de facto policy of giving older male employees a deluge of write ups in a short period of time, and then pressuring them to resign or be fired, which is classic evidence of discrimination in the form of dissimilar treatment of similarly situated individuals.   

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Case info:

 

This case settled through an Genesee County ADR panel for $225,000.

Attorneys for this case were Tom R. Pabst, Michael A. Kowalko, and Jarrett M. Pabst.

Type of Action: ELCRA Gender/sex and Age Discrimination

Injuries Alleged: Loss of income, mental anguish, emotional distress

Name of Case: Sergent v. Genesys Health Systems, et al

Court: Genesee County Circuit Court

Case No: 14-102138-CZ

Name of Judge: Judge Richard B. Yuille

ADR/Settlement: $225,000

Special Damages: N/A

Date of Verdict: N/A

Key to Winning: Showing Defendants' pattern of terminating older male employees by using selective enforcement of company rules/policies

Attorney for Plaintiff: Tom R. Pabst, Michael A. Kowalko, and Jarrett M. Pabst

Attorney for Defendant: Withheld

Malicious Prosecution Nightmare Ended for Former Village of Oxford Clerk

In the media:

Type of Action: 42 USC §1983, First Amendment Retaliation; State and Federal "Malicious Prosecution" claims

Description of Case:

FORMER VILLAGE OF OXFORD CLERK WHO WAS FALSELY ACCUSED AND PROSECUTED FOR EMBEZZLEMENT SETTLES CASE FOR $300,000

Plaintiff, Marion "Pat" Paad, lived the Kafkaesque nightmare of being falsely accused of embezzlement, losing her job and going through a criminal trial with the prospect of facing years in prison. Plaintiff was Defendants’ Deputy Clerk, and became aware that taxpayers' money was being misappropriated and/or stolen. Plaintiff went outside her chain of command to report this to the Village Council. Individual Village Manager Defendant Joe Young, for reasons only known to himself, then attempted to deflect attention away from himself by fabricating "probable cause" to not only get Plaintiff fired but to have her prosecuted criminally. Specifically, individual Defendant Joe Young scapegoated Pat Paad by lying to the police authorities, falsely claiming Plaintiff "confessed" to the crime, even though the local police captain whom individual Defendant Joe Young hand-picked to be present as a witness denied that he had heard any such confession! Plaintiff always denied that she made any type of confession of any sort. Nevertheless, Plaintiff was criminally prosecuted based on the false, phony and fraudulent story concocted by individual Defendant Joe Young, which included the complete lie that she had "confessed" to the crime.

Plaintiff was now jobless, broke and not only dealing with the humiliating media coverage in her local community, but also facing a felony criminal trial. Criminal defense Attorney Denis McCarthy showed through his skillful cross-examination that Defendants' story was discombobulated, fragmented and just plain incredible. Pat Paad was quickly acquitted of all criminal charges by the jury.

However, by this point, Pat Paad's whole life had been destroyed. She then brought this civil action seeking not only financial justice but to clear her name. Defendants filed their Motion for Summary Judgment, relying primarily on the Garcetti, supra, defense that her reports of Defendants' misappropriation of public monies was not First Amendment protected speech because it was part of her job duties. This defense failed, however, for the reason that the post-Garcetti case of Handy-Clay v City of Memphis, 695 F3d 531 (2012), was directly on point and carried the day. Just as the plaintiff in Handy-Clay, supra, had done, Plaintiff Pat Paad complained to the Village Council in this case. Additionally, Defendants' MSJ regarding the malicious prosecution claim was defeated because the case precedent cited by Defendants to the District Court actually supported Plaintiff's position!

An attempt at private facilitation was not fruitful and the case did not appear as if it could possibly settle. However, at the Settlement Conference just prior to trial, Judge Steeh himself became involved and was instrumental in effecting a $300,000.00 settlement.

This case is significant because it is an example of how the "Garcetti/job duties" defense can be overcome, and because it should clear Pat Paad’s name and reputation with most thinking people.

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Injuries Alleged: Lost income, mental anguish, emotional distress

Name of Case: Paad v. Village of Oxford, et al

Court: Federal District Court

Case No: 12-15574-CV

Tried Before: N/A

Name of Judge: George Caram Steeh

Verdict/Settlement: $300,000.00 settlement

Special Damages: N/A

Date of Verdict: N/A

Key to Winning: Defeating Defendants' Motion for Summary Judgment, especially Defendants’ Garcetti v. Cabello's, 547 US 410 (2006) defense to the First Amendment claim.

Attorney for Plaintiff: Tom R. Pabst, Michael A. Kowalko, Jarrett M. Pabst and Denis McCarthy

Attorney for Defendant: Withheld

Art Van pays $1.375 million to end lawsuit against deceased father

In the media:

Type of Action: Wrongful Death (automobile accident)

Description of Case:

We understand that  no amount of money can bring this loved son, brother, father and friend back.  We hope that the proper questions are asked of the parties involved and that the family finally finds closure.

Lonnie Moore, Plaintiff, and his fiancée had just started a new chapter in their lives. Lonnie had a new job and they just had their first baby together five months prior. After months at home with just the baby, Lonnie decided they both needed just one night away from it all to celebrate their good fortune, future and new family. So, on the night of June 30, 2013, Lonnie and his fiancée set out for an evening in downtown Detroit. The evening was going great per Lonnie's brother, who was last person to talk to Lonnie, who received a phone call after the evening was underway and said he hadn't heard that much joy in his brother’s voice in months.

On their way back, their car experienced mechanical problems which affected some of the exterior lights, so they put on their hazards and continued at a reduced speed. The rest of what is known comes from a crucially important eyewitness, Steven Mildge, who was also a Border Patrol Officer and 15-year veteran truck driver who was traveling one lane over from Lonnie and Defendant Art Van’s tractor trailer rig. He said Lonnie's car was there to be seen, "plain as day", and that Defendant Art Van Truck Driver had "ample time to avoid what happened" and he did not understand why the truck did not simply switch lanes to avoid it. In fact, Eyewitness Mildge testified that he had enough time to think over and over and over again in his mind, “Why isn’t the Art Van truck taking evasive action? Why isn’t he pulling over? Why isn’t he doing something to avoid the crash?”, until finally, the eyewitness had to look away.

After the terrible rear-end collision by a huge Art Van semi-truck that killed the Art Van Driver claimed he had no recollection of even hitting the car.   After Defendant's driver admitted he wasn't paying attention while driving, Defendants then resorted to attempting to intimidate Lonnie's surviving family members, including his mom, the Personal Representative, by going on an all-out smear campaign against him. Specifically, Defendants deposed Lonnie’s ex-wife and ex-girlfriends and even their relatives, including Lonnie's 18 year-old daughter from his first marriage, to try to find someone who would say that Lonnie was a worthless person, a bad father. In other words, that Lonnie was someone a jury should not consider worthy and whose life didn't matter much. However, everybody testified the same way, namely, that Lonnie was a good and caring man, a great father, and their best friend.

This case settled through an Oakland County ADR panel for $1,375,000.

Attorneys for this case were Tom R. Pabst, Michael A. Kowalko, Jarrett M. Pabst and Kenneth Karasick.

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Injuries Alleged: Lost future income, death, mental anguish, emotional distress

Name of Case: Moore v. Art Van, et al

Court: Oakland County Circuit Court

Case No: 14-139524-NI

Tried Before: N/A

Name of Judge: Patrick O'Brien

ADR/Settlement: $1,375,000

Special Damages: N/A

Date of Verdict: N/A