Webbert responds to Brunswick School Department’s denial student’s civil rights were violated

Read the full article at The Forecaster here.

m-brun-lawsuitBRUNSWICK — The School Department and Brunswick Junior High School Principal Walter Wallace on Aug. 7 denied allegations of unlawful discrimination against a child who was pervasively bullied in school between 2010 and 2012.

The complaint against the department and Wallace was filed in U.S. District Court in Portland on July 7 by the mother of the former student and the Maine Human Rights Commission.

It claims the child, whose identity is protected by a pseudonym, was “subjected to chronic, severe, pervasive, and objectively offensive verbal and physical harassment and abuse,” which resulted in him dropping out of school.

The alleged abuse ranged from other students stabbing the child with a pushpin to see if he would “deflate,” to three sexual assaults.

The plaintiffs argue that Wallace was “deliberately indifferent to the harassment,” repeatedly telling the mother “boys will be boys.” They argue the School Department and Wallace violated the child’s federal civil rights.

According to MHRC Executive Director Amy Sneirson, this is the first time the commission has sued a School Department over a case of bullying.

Wallace and the School Department denied nearly all the allegations in a 12-page answer to the complaint filed last week.

They also claim that a fact-finding report by MHRC investigator Victoria Ternig was not “thorough or careful.”

. . . . . . . .

They also say the plaintiffs inaccurately characterize the school’s proposed safety plan, and argue that the complaint fails to  “state a legally cognizable claim.”

School Department attorney Melissa Hewey on Monday said the plaintiffs make some “creative legal theories, but case law just doesn’t support those claims. I anticipate we’ll ask the court to dismiss the case on legal grounds.”

On Tuesday, plaintiffs’ David Webbert said he was “surprised by how uninformative the (defendants’) answer was. … It seemed to deny things that were indisputable, like certain things that were right from the MHRC report.”

Webbert said he was “disappointed” the defendants consistently claimed to have”no information or belief” about multiple aspects of the case, such as the alleged sexual assaults.

“To have them admit they hadn’t investigated sexual assaults, that was pretty shocking,” Webbert said.

As for the defense that no “legally cognizable” claims were made, Webbert argued that “they’re saying (this case) is so unimportant and trivial it shouldn’t have been filed. … that’s disappointing given how serious the allegations are.”

On Monday, U.S. Magistrate Judge John Rich set a deadline to complete discovery by Jan. 8, 2016. A trial is not expected until next May.

National Coming Out Day and Workplace Protections in Maine Against Sexual Orientation and Gender Identity Discrimination

Read it here.

This past Saturday, October 11, 2014 was the 26th National Coming Out Day, an annual civil awareness day, now internationally observed on October 11 to promote awareness of lesbian, gay, bisexual, and transgender issues and to celebrate the LGBTQ – “Q” for “queer” or “questioning” – community. “It’s a day to be visible,” Candace Gingrich-Jones, an activist at the Human Rights Campaign, has said. “What we know today is people who know someone who is queer are much more likely to understand the issues of inequality and be supportive of the work to gain that equality.”

National Coming Out Day was founded on October 11, 1988 in celebration of the second March on Washington D.C. for Lesbian and Gay Rights a year earlier, in which half a million people participated to demand equal rights. At that time, no anti-discrimination laws protected people on the basis of their sexual orientation or gender identity. Specifically, LGBT individuals had no legal recourse if discriminated against in employment.

Only as recently as 2005 did Maine firmly establish its anti-discrimination law prohibiting discrimination based on sexual orientation, HIV status and gender identity or expression. On November 8, 2005, Maine voters agreed to keep in place a law, LD 1196, “An Act to Extend Civil Rights Protections to All People Regardless of Sexual Orientation”, passed by the Legislature and signed by Governor Baldacci in the spring of 2005. The law went into effect December 28, 2005, making Maine the last New England state to legally protect LGBT individuals from discrimination (but one of the first three states to do so by ballot rather than judicial decision).

The November 2005 vote ratifying the legislation passed earlier that year marked the end of a long struggle in Maine to achieve legal protections for LGBT people. In November 1995, Maine voters rejected an attempt to limit the protected classes to those already included within the non-discrimination law. In May 1997, Maine approved an anti-discrimination law based on sexual orientation, but this law was repealed in a special election in February 1998. Then in November 2000, by the smallest of margins, Maine voters failed to ratify a second anti-discrimination law that had been approved by the legislature.

Today under the Maine Human Rights Act (MHRA), individuals identifying as – or even perceived as – lesbian, gay, bisexual or transgender have legal protection against discrimination in employment, public accommodations, housing, credit and education.

With regard to employment, the MHRA forbids employers from refusing to hire, or discharging, or discriminating against an employee with respect to any employment matter on the basis of the employee’s actual or perceived sexual orientation, identity or expression and also forbids employers from using any employment agency that discriminates. Employment matters include hiring, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment including fringe benefits. The MHRA applies to private employers with any number of employees and local and state governmental employers, as well as employment agencies and labor organizations.

The MHRA does contain a religious exemption to the prohibition of discrimination in employment on account of sexual orientation for certain non-profit religious entities as well as provides an exception when the discrimination is based on a bona fide occupational qualification (BFOQ). However, the BFOQ exception is construed very narrowly, and significantly, the BFOQ exception does not apply to the refusal – and therefore it is an unlawful employment practice to refuse – to select an individual because of the preferences or prejudices of others, including, but not limited to, coworkers, clients, business associates, or customers.

Also, in September 2007, the Maine Human Rights Commission (MHRC) adopted amendments to its employment and housing rules that expressly acknowledge the existence of sexual orientation harassment. Under these rules, unwelcome comments, jokes, acts, and other verbal or physical conduct on the basis of sexual orientation constitute harassment.

We certainly have come a long way since 1953, when President Dwight D. Eisenhower declared homosexuals a threat to national security and ordered the immediate firing of every gay man and lesbian working for the U.S. government. Today the federal government also has a policy of non-discrimination protecting its employees from sexual orientation discrimination; however, unfortunately, there is currently no federal statute prohibiting private sector sexual orientation discrimination in the workplace and there remains much work to be done to achieve LGBT equality.

The Employment Non-Discrimination Act (ENDA) is federal legislation that has been proposed that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. ENDA has been introduced in every Congress since 1994, except the 109th. Beginning in 2009, ENDA legislation that also included gender identity was introduced in both the House and the Senate. Only just last year, on November 7, 2013, did the Senate approve the 2013 version of ENDA – co-sponsored by our senators Angus King and Susan Collins – with bipartisan support by a vote of 64-32. Last month in the House, on September 17, 2014, a petition was filed, which, if signed by a majority of the House members, would force a vote on the 2013 version of ENDA including a narrow religious exemption. By September 22, the petition had been endorsed by 190 of the 218 Representatives that constitute a majority to force further action.

Maine has been ahead of the federal government, as well as many other states, in protecting employees against discrimination on the basis of their actual or perceived sexual orientation or gender identity; however, more can be done. Harvey Milk used to urge workers to come out, to “stand up and let the world know. That would do more to end prejudice overnight,” he would say, “than anybody would imagine…. Only that way will we start to achieve our rights.”

National Coming Out Day remains significant today, and this November, forty years after the first openly LGBT candidate, Kathy Kozachenko, won elected office in the United States – to a seat on the Ann Arbor, Mich., city council in 1974 – Maine voters will decide whether Maine will become the first state to elect an openly-gay gubernatorial candidate to office.

Celebrating 50 Years of Civil Rights and Maine’s Leading Role

Read it here.

Fiftieth birthdays are a big deal. When you turn 50, you’re well into middle age. You’ve been around for a while. And you probably are starting to forget things that happened in your youth.

Which is why 2014 is such an important year for civil rights in America. 2014 is the 50th birthday of a lot of significant moments in the civil rights movement—events that many of us old enough to remember have started to forget and those of us too young to remember should know about.

1964 was a watershed year in American history. It was the year of the freedom summer, when volunteers from all over the country, including Maine, headed to Mississippi to help black citizens register to vote. Three of those volunteers—Michael Schwerner, Andrew Goodman, and James Earl Chaney, lost their lives trying to do so, murdered by the Ku Klux Klan.

1964 is also the year that the 24th Amendment to the Constitution was passed. That’s the amendment that prohibited states from charging a poll tax in order to vote.

But most importantly, 1964 was the year Congress passed the Civil Rights Act of 1964, which includes Title VII, the law making it illegal to discriminate in employment on the basis of race, color, sex, religion, and national origin. The Civil Rights Act of 1964 is arguably the most important piece of legislation ever passed by Congress; it began to redeem the promise of equality enshrined in the Declaration of Independence that “All men are created equal” by making women, blacks, Jews, Moslems, and people born outside these shores equal to white men in the eyes of the law.

Last week I had the good fortune to attend a seminar put on by the Federal Bar Association of Maine commemorating the fiftieth anniversary of the Civil Rights Act of 1964. The three speakers were an all-star panel of Mainers who have led the fight for civil rights: Professor Mel Zarr, who participated as a young attorney in the Mississippi summer; Mary Bonauto, who days later was named a genius by the MacArthur Foundation and who has been called the Martin Luther King of the struggle for equal rights for gay people; and David Webbert, arguably the leading civil rights attorney in Maine (okay, I’m biased—David is my partner, but I think most attorneys who practice here in Maine would agree).

Much of what I heard was not new to me. For example, the fact that “sex” was added to the protection of Title VII by Sen. Howard Smith of Virginia as a possible attempt to defeat the bill (which almost all Southerners opposed because of the protections against race discrimination; apparently many advocates of the bill, including women’s groups, did not feel that sex should be treated on a par with race). And although I did not know it, I wasn’t surprised to hear that more Republicans voted for the Act than Democrats; the solid South at that time was still represented almost exclusively by Democrats.

But what I did not know about was the key role Mainers played in the passage of the Civil Rights Act of 1964, especially with respect to fighting to include women in the protections of the Act. Margaret Chase Smith, who soon would be the first woman to have her name submitted for nomination for President by a major party, fought zealously to include women over the objection of Senator Everett Dirksen, the minority leader, who wanted to remove “sex” but ultimately gave up “to avoid the wrath of the women.” And Portland Press Herald columnist May Craig, who served as a regular panelist on Meet the Press, was an ardent feminist whose support for inclusion of “sex” in the language of Title VII was so important that the amendment adding “sex” to the draft of Title VII became known as the “May Craig Amendment.”

Sometimes I think we Mainers (if I dare call myself that, having not been born here and having only lived here for almost half my life) can be a bit provincial. If anyone does anything important who has even a remote relation to Maine, we like to proclaim that connection. But when it comes to the Civil Rights Act of 1964, we have good reason to shout it from the rooftops. Without Margaret Chase Smith, without May Craig, where would women—no, where would all Americans—be today? There’s a word for that: Dirigo.  

Most Important Civil Rights Law In 50 Years??? Federal Contractors Ordered To Comply With Law Or Lose Government Contracts

Read it here.

Public Justice, a left-leaning civil rights advocacy group, called President Obama’s Fair Pay and Safe Workplaces executive order last week the most important advance in civil rights since the passage of the Civil Rights Act of 1964 some 50 years ago this summer.  That strikes me as a bit—actually a lot– of hyperbole.  What about the passage of the Americans with Disabilities Act in 1991?  Or the Supreme Court’s decision striking down the Defense of Marriage Act, which has allowed gay people the right to marry and obtain health and other benefits?

But no question about it, the President’s decision to issue the executive order last Thursday  stripping federal contractors of their governmental contracts if they fail to comply with employment laws, and eliminating forced arbitration of disputes, was a mighty big win for workers.  President Obama’s proclamation means that repeat violators of federal wage and hour, discrimination, and safety laws will have to shape up or ship out and risk the loss of lucrative federal contracts.

Indeed, a 2010 study by the Government Accounting Office, or GAO, a non-partisan governmental agency, found that some of the largest violators of federal labor laws continued to do business—a lot of it–with Uncle Sam.  In 2012, they did so to the tune of $80 billion—you read that right, billion, not million—of the taxpayers’ greenbacks.

The contractors’ response is predictable.  They whine (as they always do) that they can’t possibly comply with all these complex regulations.  They vow to fight the Executive Order, appealing to both their Republican friends in Congress (the same ones who repeatedly have voted to overturn the Affordable Care Act and are now suing the President because they can’t get their way).  And if that doesn’t work, they plan to sue.

You would think it already would be the law that businesses who don’t abide by the law don’t get to sup at the government trough—but that isn’t the case.  For years, businesses have been held to a lower standard than you or me. You or I, we break the law, we pay a fine or go to jail.  Business—they violate the law, they hire high-priced lawyers to change it!

With the stroke of a pen, not only did President Obama put the boots to employers who benefit from fat government contracts despite flouting the law, but the Executive Order also outlawed forced arbitration by government contractors. That’s the evil I’ve written about before.  The upshot of such forced arbitration agreements is that employees and the public never learn about illegal acts of discrimination and pay violations by employers.

The Fair Pay and Safe Workplaces executive order is no panacea for the plague of wage and hour violations and discriminatory acts occurring daily in our nation’s workplaces.  But maybe now at least some employers will recognize that if they don’t make more of an effort to comply with employment laws, there could be a very steep price to pay.

Ban the Box: Opening Up Employment Opportunities For Ex-Offenders

Read it here.

In Washington DC, where an estimated one in every 10 residents has a criminal record, the chances of getting a job after serving time are about to get a lot better.  Thousands of ex-offenders find that even after they’ve paid their debt to society, they keep getting penalized, because employers routinely screen out applicants who have a criminal history.  But the DC City Council just passed a law that would ban companies from asking job applicants whether they have a criminal record.

And it’s not just DC.  Four states – including two of our New England neighbors, Rhode Island and Massachusetts – have recently passed “ban the box” laws for private companies, and another eight states have such laws for public employers. The “Ban the Box” movement  is named for the box many companies include on their initial application forms, asking “Have you ever been convicted of a crime?” For many who have served their time and are trying to make a life for themselves outside the prison walls, that box acts as an insurmountable barrier.

And even in states that haven’t banned the box, some big companies have decided to do away with it on their own. Wal-Mart and Target, not always seen as friend of the low-wage worker, have stepped up and removed the criminal history question from their application forms.

Of course, the decision by companies like Wal-Mart and Target to ban the box may not be driven purely by compassion for ex-offenders.  It may also stem from a desire to avoid lawsuits.  The Equal Employment Opportunity Commission (EEOC) has made their position clear:  Under civil rights laws, it’s illegal for employers to use criminal arrests and convictions as an automatic bar to employment.

Instead, the EEOC’s position is that employers may only refuse to hire someone once they’ve carefully considered how (if at all) a past conviction might relate to the employee’s ability to perform the job.  In other words, just like an applicant’s other past experiences, a prior conviction may be one factor in the hiring decision, but it can’t be an absolute barrier.

Here in Maine, our crime rates are far lower than in DC.  I’ve spent more time than I’d like to admit reading the police blotter for my small town, and it usually includes many more reports of barking dogs and rowdy neighbors than felony arrests.  But still, thousands of Mainers have criminal records.  Maine has not yet passed any legislation to ban the box, but in the absence of government action, at least one local group is doing something to help.  MaineWorks, an employment agency in Southern Maine, has a mission of employing workers with felony convictions.  It also assists other groups who often face difficulty and discrimination in finding work, including veterans reentering the workforce, and recent immigrants. MaineWorks supplies temp work for construction projects, and over its first two-and-a-half years, it has found work for about 200 ex-offenders.

The “Ban the Box” movement is about ensuring fairness, dignity and a path forward for ex-offenders.  And it’s also about protecting the public and reducing the staggering costs of imprisonment, since finding employment for those who’ve served their time is one of the best ways to reduce recidivism.  Those are goals everyone – liberals and conservatives, employers and employees – should be able to get behind.

The War on Women: The Supreme Court Edition

Read it here.

You’ve no doubt heard the news by now – last week, on the last day of its term, the Supreme Court issued two major decisions limiting the rights of employees. Both cases were decided by slim 5-4 majorities, with the Justices falling on typical ideological lines. What’s striking to me is how these decisions show a profound lack of understanding and empathy not only for workers in general, but for female workers in particular. Perhaps it’s no surprise that in both cases, the five-Justice majority was comprised completely of men, while the three female Justices on the Court dissented.

In Burwell v. Hobby Lobby, the conservative majority struck down the Affordable Care Act’s requirement that corporations pay for insurance coverage for contraceptives, finding that it violated the corporations’ federal right to religious freedom.

The Court decided that Hobby Lobby, described by the Court as closely held for-profit family business (with about 30,000 employees!), was a “person” who had a right to religious freedom under a federal law passed in ’93, the Religious Freedom Restoration Act. Hobby Lobby’s owners claimed that it offended their religious beliefs to fund insurance coverage for contraceptives like the morning-after pill and IUDs, which they believe are similar to abortion. (The scientific evidence does not support that belief.)

This case will have broad and immediate repercussions for working women. Without insurance coverage, many low-income women will likely be unable to afford some of the most effective forms of birth control. Emergency contraception (like the morning-after pill) costs about $45 without insurance, and an IUD, one of the most effective means of birth control, costs upward of $1000 – several weeks’ pay for many workers. This could mean more unintended pregnancies, more abortions, and more pregnancy-related health issues. And although the Supreme Court suggested that Congress could instead require insurance companies (or the federal government itself) to pay for the contraceptive coverage, that kind of legislative fix is unlikely to happen anytime soon in this political climate.

As Justice Ginsburg noted in dissent, the majority’s decision in Hobby Lobby was one of “startling breadth.” Although the majority emphasized that it was talking only about “closely held” corporations, the ruling could easily be extended to all for-profit companies – and in any event, closely held corporations represent about 90% of American businesses. And as the dissent pointed out, if owners can object to insurance for contraceptives on religious grounds, what is to stop them from refusing coverage for vaccines, or blood transfusions, or even paying women equal pay for equal work?

The Supreme Court’s second 5-4 decision a week ago last Monday, again along ideological lines, had less obvious – but equally real – implications for working women. In Harris v. Quinn, the Supreme Court ruled that thousands of unionized home health-care workers can’t be forced to pay fair-share union fees to support union contract negotiations. This means that even though the union is legally required to represent everyone within its bargaining unit, unit members will not be required to pay anything for that representation. The ruling allows “quasi-public” employees like the home health workers to free-load, paying nothing for union representation even as they benefit from it. It could lead to thousands of employees opting out of the union while enjoying union benefits.

This is a blow not just for unionized workers but for working women in particular. Home health-care workers are disproportionately women (particularly women of color). Even though they perform the incredibly important and difficult work of caring for our elderly and disabled, they typically receive very low wages and minimal benefits. Before Illinois recognized the union to represent home health workers, there was huge worker turnover and wages were extremely low. In the decade since unionization, wages have risen from $7 to $13/hour, training has increased, workers have gained health insurance, qualifications have been standardized, and retention has increased. And contrary to popular belief, this hasn’t cost the state money – instead, it has saved the state $632 million. But with the Supreme Court’s recent ruling, this vulnerable group of working women may have lost their most important protection, effective union representation.

The attacks on women just keep coming. All I can hope is that voters will remember this at the election this November – when, after all, women make up more than 50 percent of the electorate.

America Turns 238: Three Reasons to Celebrate!

Read it here

“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.” Virtually every American knows these opening words to Lincoln’s Gettysburg Address memorializing those who died in the Battle of Gettysburg July 1-3, 1861, some 151 years ago today. We learned–or memorized–them in high school, in college, from our parents, teachers, brothers and sisters.

In fact, our nation was not conceived in liberty or dedicated to the proposition that all men (let alone women) are created equal. When our nation was born on July 4, 1776, there were slaves in every state of the Union. Altogether, there were over half a million slaves at the time of the Revolution. Of course, Thomas Jefferson, the author of the Declaration of Independence, himself owned slaves. Indeed, Article I Section 2 of the Constitution, written a decade and half after the Declaration, provided that for purposes of calculating electoral representation, slaves counted as 3/5 of a person (although they of course could not vote).

So how do we reconcile Jefferson’s lofty language and Lincoln’s timeless oratory some 85 years later with the reality that was America in 1776? I think the key is to regard these proclamations as inspirational and aspirational, not as fact. Rather, the central theme of our great nation from its founding 238 years ago has been one of struggle to achieve the ambitious goal of equality.

I thought about the Declaration and recalled Lincoln’s famous speech this past week while attending a conference in Boston. The conference opened with a tribute to the 50th anniversary of the Civil Rights Act of 1964, which outlawed discrimination based upon race, color, sex, religion, and national origin, and to several unsung heroes of the struggle for equality. We met Percy Green II, an activist who in 1964 climbed the Gateway Arch in St. Louis to protest that no colored workers (as they were known then) were employed in the construction of the landmark and who also brought a case of race discrimination which every employment lawyer is familiar with today. We heard from Sheila White, a black woman who in 1997 was the only female working in the Maintenance of Way Department at Burlington Northern Railroad. Her case reached the Supreme Court after her boss, who did not believe women should be working on the railroad, retaliated against her for complaining about his sexually harassing behavior.

During a break from the conference, I was privileged to attend the ceremony celebrating the appointment of my friend Indira Talwani, a woman of Indian descent, as a federal district judge in Massachusetts. Her presence as a judge was striking against a tableau of largely older gray-haired male judges.

Percy Green. Sheila White. Indi Talwani. Three Americans you probably never have heard of. They are all living proof of how far we have come as a nation in our struggle for equality. And their life stories and triumphs are all reason for us to celebrate this Independence Day.

Happy July 4!

Webbert sues former state agriculture commissioner for illegal vendetta against dairy farmer

Read the Bangor Daily News Article Here

Webbert told [Justice] Levy on Monday that [Commissioner] Bradstreet’s threats against his client were made clear during their previous dispute over the corn subsidies.

“The defendant said, ‘I will ruin you, I will bury you, I will put you out of business,’” Webbert told the judge. “That’s a lot more than speculation.”

Falling Off the “Glass Cliff”: Are Female and Minority CEOs Being Set Up to Fail?

Read it here

We’ve all heard of the “glass ceiling,” the invisible (but very real) barrier that working women and minorities bump up against as they ascend the corporate ladder. Today just 5% of Fortune 500 CEOs are women, and only 3% percent are black or Latino.

But until recently, I had never heard of the “glass cliff.” Now, I don’t know why I hadn’t heard it before. It finally gives a name to a very powerful – and destructive – employment barrier for working women and people of color.

The “glass cliff” is in many ways the flip side of the glass ceiling. In the words of sociologist Christy Glass, who studies the phenomenon: “If the glass ceiling means that there are invisible barriers that limit the mobility of women and minorities, the glass cliff suggests that when women and minorities are promoted they tend to be promoted to struggle at firms or firms in crisis. In other words, they’re pushed off the glass cliff.”

Even when women and minorities are able to break through the glass ceiling to the top spots (like CEO), they are often put into the jobs that no one else wants and no one else has been able to succeed in. It’s not hard to think of recent examples.

There’s Mary Barra, who recently became the first female CEO ever of a major car company, General Motors, only to be hit two weeks into the job with a massive faulty-ignition scandal that the company had known about for years.

There’s Jill Abramson, who became the first female executive editor ever of the New York Times, as the Times was in the midst of a battle for the survival of print media. And of course, Abramson was promoted only to be fired two years later.

And there’s Marissa Mayer, who in 2012 was appointed the CEO of Yahoo!, the company that ruled the web in 2001 but has been struggling to find its identity in recent years. Ms. Mayer ignited even further controversy when she announced soon after her hire that she was pregnant. A similar controversy has arisen here in Maine, where Melissa Smith, the new CEO of South Portland-based WEX, Inc., recently announced her pregnancy at age 45 and has made national headlines (something that would never happen to a male CEO announcing he was starting a family).

The phenomenon is more than just a few high-profile anecdotes – researchers have recently found powerful empirical evidence of the glass cliff. Looking at hundreds of promotions in sports and business, researchers found that minority coaches were much more likely to be promoted to head up losing NCAA teams, and woman and minorities were much more likely to be appointed as CEO of struggling companies.

At this point, there’s little question that the glass cliff exists. But the big question is: why? It could be that companies are intentionally setting women and minorities up to fail, while getting credit all the while for being open-minded and diverse. Or it could be that companies are offering these high-risk jobs to both white men as well, but the male candidates are turning the jobs down because they’re confident they’ll get another (less risky) opportunity later on. Women and minorities are (rightly) not so confident they’ll get another chance, given their incredible low representation at the CEO level. Or it could be that gender stereotypes are subtly shaping these promotion decisions. Companies in crisis look to hire a woman as CEO because they assume that female leaders will be calmer and more emotionally aware.

Whatever the reason (and my guess is that it’s often a combination of all three), the glass cliff threatens to be as pernicious as the glass ceiling. Each time that a woman or person of color is promoted to a risky high-profile leadership job, they become an example. If they fail, their stories become further ammunition for those who would like to keep the status quo. And they become cautionary tales for women and minorities who are considering shooting for those top jobs.

Max Katler supports Webbert Jury trial win with cutting edge trial technology

Jury Finds for Whistleblower, published in Maine Lawyers Review by Jo Lynn Southard

A jury in Washington County Superior Court unanimously reached a verdict in 30 minutes on March 21 in favor of Richard Hickson, who was fired for sending an email to Governor John Baldacci about safety issues at a paper mill. Governor Baldacci had just visited the mill, and Hickson sent an email to the governor’s website noting that several members of the governor’s party, and the governor himself, were not wearing proper footwear or respirators while touring the mill.

Hickson, who was represented by David Webbert of Johnson & Webbert in Augusta, was fired and filed suit under the Whistleblower Protection Act.

“This was a good case to emphasize the importance” of the Whistleblower Protection Act, Webbert said. He added that he believed it was the largest civil rights verdict ever rendered in Washington County, with his client awarded $175,000 in punitive damages, $35,000 in nonwage compensatory damages, back pay damages of about $7,000, and attorney fees.

The plaintiff found a new job at higher pay within six month of his firing, which explains the relatively low back pay award. In an email, defendant’s attorney AJ Greif, of Gilbert & Greif in Bangor, said, “We have already filed a renewed motion for judgment as a matter of law …. An appeal is certain and we hope that it is plaintiff who appeals from the trial court, posttrial, entering judgment for defendant.”

Greif continued, “We feel extremely confident that the Law Court will ultimately rule that it meant what it said in Costain v. Sunbury Primary Care, P.A.: that the whistleblowing must. be about a violation ‘committed or practiced by that employer.’Mr. Hickson readily admitted that any safety violation he perceived was by officials at Domtar [Maine, LLC] over whom Vescom had no control. He admitted that Vescom did nothing wrong that day.

“As we conceded to the jury and the court that the email to the Governor led to the firing and the jury was never instructed that the whistleblowing had to be about a ‘violation committed or practiced by that employer,’ we were deprived of any defense. The jury had to decide whether Hickson had raised a safety concern and whether he got fired for doing that. “For them it was a no-brainer, as they were never told what the law actually required. “The jury still deliberated for 45 minutes.”

Webbert replied, “Pamela Treadwell, the Vescom official who fired Mr. Hickson and who is the top management official for the Company and who reports only to a passive owner, testified under oath that the safety rule for visitors that Mr. Hickson relied on in his whistleblower email to the Governor was Vescom’s ‘bible’, Vescom’s ‘responsibility’ to enforce for the client, and ‘the rules that Vescom lives by.”

He continued, “Justice Murray already carefully considered and rejected Defendant’s reliance on Costain when the court rejected that argument in its ruling denying summary judgment. …As Justice Murray ruled on summary judgment, Costain is not on point because it did not involve retaliation for a whistleblower report about unsafe conditions in Plaintiff’s workplace but instead an employee who participated in a legal proceeding that had nothing to do with the employer who fired the Plaintiff.”

Webbert was assisted at trial by his daughter, Johnson & Webbert Legal Assistant Theresa Katler, son-in-law, Max Katler (a third-year student at Maine Law), and son, Jacob Webbert-who was on spring break. His son-in-law setup equipment that allowed the jury to see videotaped depositions. “It’s probably the first time in Washington County that video depositions were shown during trial,” Webbert said.

“It’s rare in this state; most courthouses don’t have the technology.” However, Webbert said, “The technology really connected with the jury. It’s so much more powerful to let the jury see the evidence. It may become a new requirement in trials.”