Monday, March 9, 2009

Jury Treats Workplace Retaliation as Serious Business

A federal jury in Boston has struck a major blow for victims of workplace retaliation. And that is an issue at the heart of my wrongful termination at the University of Alabama at Birmingham (UAB).

A jury awarded a female neurosurgeon $1.6 million, finding that she had been subject to a hostile work environment and that a hospital retaliated against her when she complained about it.

After a seven-week trial, the jury found for Dr. Sagun Tuli and against Brigham and Women's Hospital and its chairman of neurosurgery, Dr. Arthur Day. Tuli testified that Day repeatedly made demeaning comments to her and that she was forced to work in an environment that included harassment, intimidation, and other forms of abusive conduct.

The jury found that the hostile work environment was driven in part by Tuli's gender and national origin, or both, and about $1 million of the award was to compensate her for working in such conditions.

The jury awarded Tuli about $600,000 for its finding that the hospital retaliated against her for complaining, by requiring her to be evaluated by outside physicians to determine if she was fit to continue practicing at the hospital.

All of this resonates here at Legal Schnauzer because I've been the victim of gross workplace retaliation at UAB.

In essence, UAB engaged in multiple unlawful schemes. First, the university engaged in standard employment discrimination, based on age, and this apparently was driven from within UAB. Second, the university violated my First Amendment rights, firing me because of what I wrote on my blog, and this almost certainly was driven by forces external to UAB.

Some brief background: For roughly the last five months I worked at UAB, my supervisor (Pam Powell) waged a harassment campaign against me based on my age. In the spring of 2007, Powell held individual meetings with each member of our staff and told us that she probably would retire in two or three years and intended to develop a succession plan. That plan involved promoting one of my coworkers to her chief assistant and then trying to ensure that he was named director of our office upon her retirement.

I was in my early 50s at the time, and her planned successor was in his early 30s, with roughly 20 years less experience than I had. When Powell promoted the designated successor to her chief assistant, I discovered later, she bumped his salary above mine.

I didn't raise a stink about Powell's plan at the time because I've been at UAB long enough to know that the university probably will favor external candidates when Powell retires, and no one within our group is likely to get the job. I did, however, think it was inappropriate for Powell to announce her plans to staff members.

When Powell retires, she will be out of the picture, and it will be none of her business who replaces her. But that's not how Powell saw it. She added to the unprofessional nature of her communications by stating to me, "I've worked too hard to let 'them' destroy this group when I retire."

I assumed she was referring to her superior, associate vice president Dale Turnbough, who likely will have responsibility for naming Powell's successor. The message Powell seemed to be sending: "The people above us are incompetent boobs, and I've got to 'save' you and the rest of the group from them." Doesn't seem like the kind of message a supervisor should be sending to her subordinates.

A few months after making this announcement, Powell began waging a harassment campaign against me. Suddenly, I couldn't do the simplest things right. Filling out a vacation sheet, compiling job notes, tracking my daily hours--stuff I had done fine for 12 years--now drew complaints and warnings from Powell. I was told that my job performance would be determined almost totally by whether my clients were "happy" or not, with any objective criteria being tossed out the window. When I asked my younger colleagues if this kind of criteria had been communicated to them--or if they had suddenly been subjected to hyper-strict overview of simple office procedures--they said "no."

As someone with 20 years more experience than Powell's preferred successor, and as a member of a legally protected class based on age (over 40), I clearly could be seen as an impediment to her plan. Powell's superiors, when presented with her plan, probably would say, "Hey, we'd be inviting a discrimination lawsuit by doing this. No dice."

So what was Powell's solution? To make my worklife so miserable that I would want to leave.

Powell's harassment got so bad that on or about April 23, I met with Dale Turnbough and told her I was being harassed and discriminated against because of my age. I also told her about Powell's succession plan, which seemed to be news to Turnbough. Finally, I told Turnbough that I was going to visit UAB Human Resources that day and file a formal grievance against Powell.

The meeting with Turnbough seemed to go well. She seemed to listen carefully and said, "Roger, I hear you saying that you are being treated differently from your coworkers, and you want to be treated the same as everyone else."

"That's right," I said.

Turnbough seemed to be concerned with my use of the terms "harassment" and "discrimination."

"Harassment sounds like too strong a term," she said. I suspect she was promoting a double standard for men and women when it comes to harassment. If a male supervisor had done to a female subordinate what Powell had done to me for five months, it clearly would be considered harassment. And I said as much to Turnbough.

"Well, I've been the target of it, and it sure feels like harassment to me," I said. "And I think it's because of my age, and her plans to eventually promote someone younger."

I didn't know if Turnbough knew about my blog, so for good measure, I told her about it and asked if that might be a partial cause for the harassment I was experiencing. Turnbough almost scoffed at that, ensuring me that my blog was not a problem as long as I wasn't writing it at work. I said I did the blog on my own time, away from work, so it seemed everything was squared away.

She said she would talk to Powell, and I figured everything would be resolved.

Instead, I was placed on administrative leave on May 7--almost two weeks to the day after I had complained to Turnbough about age discrimination and harassment and filed a grievance against Powell. On May 19, I was fired.

It's hard to imagine a more clearcut case of retaliation. Under UAB policy, an employee is to file a grievance without fear of reprisal. And under federal law, an employee is to complain about unlawful behavior (such as age discrimination and harassment) without fear of retaliation. UAB butchered federal law and its own policy in one fell swoop.

The Boston case did not involve termination, but the jury still sent a strong messsage about employers who tolerate harassment and engage in retaliation.

What will happen in my case? I have no idea. No two sets of facts, no two juries, and no two judges are alike. With the way "justice" is practiced in Alabama, a judge could cheat me by unlawfully dismissing my case on summary judgment. In fact, I recently learned about a Birmingham federal judge--a Republican appointee, natch--who is notorious for doing just that on discrimination cases. We will be writing about that judge in detail very soon.

For what it's worth, there is one connection between the Boston case and my experience at UAB. Cheryl E.H. Locke was head of UAB Human Resources during my wrongful termination, before leaving recently to take a job at Wake Forest University. Interestingly, Locke came to UAB from Boston--from Brigham and Women's Hospital, in fact.

Does Cheryl E.H. Locke bounce from one discriminating, retaliating employer to another, bolting when the heat under her chair gets too hot? Kind of makes you wonder.

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