Webbert says, woman earned excellent performance reviews but was abruptly fired after reporting concerns

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County women sue, alleging they were fired after reporting billing fraud

Two Aroostook County women who say they were unlawfully fired from their jobs as program supervisors after they reported concerns about alleged illegal and fraudulent MaineCare billing practices have filed suit in U.S. District Court in Bangor.

Julie Ivey of Houlton and Angela Cowger of Danforth were employees in the Houlton office of Addison Point Specialized Services Inc., a federally and state-funded social services provider for individuals with intellectual and developmental disabilities.

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Attorney David Webbert of Augusta, who is representing Angela Cowger, said Thursday that Ivey and Cowger earned excellent performance reviews at their jobs but were abruptly fired within two working days after reporting their shared concerns to top managers. According to court documents, Cowger and Ivey made reports in 2014 that they believed Addison Point was improperly billing the Department of Health and Human Services for services that were not actually provided to clients.

According to the lawsuit, both women were told by company higher ups that the billing was proper, but when the women continued to raise concerns they were fired.

Ivey and Cowger had no prior discipline or warnings, according to Webbert, and he added that Addison Point admitted it fired Ivey and Cowger based on their reports about illegal billing. Cowger had been working at the agency since 2007 and Ivey since 2011. This lack of progressive discipline violated their employer’s own written policy requiring progressive discipline before termination, according to the lawsuit, including the three prior steps of an oral warning, written warning and a final written warning.

The Maine Human Rights Commission conducted an independent investigation and unanimously determined that there were reasonable grounds to believe Addison Point committed unlawful retaliation against Ivey and Cowger in violation of the Maine Whistleblowers’ Protection Act and the Maine Human Rights Act.

After investigating Cowger’s complaint, the MHRC found that Addison Point “could not show a legitimate reason to discharge her outside of her continued voicing of concerns regarding improper billing.”

After investigating Ivey’s complaint, the MHRC found that Cowger and Ivey were fired at the same time that they brought forth the allegations about improper billing.

“The fact that both reported what they believed was unlawful activity and both were discharged shortly after bringing forward their reports adds forward plausibility to Ivey’s claim of retaliation,” investigators noted in their report.

Webbert said the court this week granted a motion to schedule a settlement conference, and the parties are waiting for a date to be set.

“All of the parties will meet then to discuss a settlement,” he said. “If we don’t agree, we will ask for a jury trial.”

Webbert said the firing was “additionally unfair” to Cowger, who has not been able to find employment since the firing and is going back to college to secure a degree to be able to do the same work she had been doing at Addison Point.

“Cowger had a perfect record there,” her attorney said. “To fire someone who is doing their job and was a top employee and basically admit that you did it was particularly unjust.”

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Cowger and Ivey are seeking damages, including compensatory damages in an amount to be determined at trial, back pay, lost employment benefits, other lost compensation and interest on those amounts. They also are asking that Addison Point provide effective civil rights training for all human resources employees and all supervisors on the requirements of all applicable laws prohibiting whistleblower retaliation.

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Race Discrimination and Retaliation Lawsuit

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WARREN, Maine — A former nurse at the Maine State Prison has filed a federal lawsuit against the private company that provides health care to Maine corrections facilities, claiming she was subjected to frequent racial taunts and that her employer retaliated by firing her when she complained.

Attorney David Webbert of Augusta filed the civil rights lawsuit Tuesday in U.S. District Court in Portland on behalf of Shana E. Cannell, who worked as a licensed practical nurse at the prison from February through October 2010. The lawsuit names Corizon LLC and three of its employees — Brian Castonguay, Larry Brayhall and Tammy Hatch.

Webbert said that the prison was aware of the actions of Corizon although the state is not named in the lawsuit. The lawsuit states that some prison staffers also made derogatory comments toward Cannell, who is black.

Cannell, who now lives in St. Louis, Missouri, claims in the lawsuit that she was subjected to racial slurs. She said when she complained to her supervisors she was given less favorable assignments and ultimately fired.

In her lawsuit, Cannell lists the derogatory comments made by co-workers. In addition to the slurs, she said that other employees would say that “cleaning up messes is what your people do,” “of course your people like chocolate, a chocolate for a chocolate,” and “I can be the fried chicken and you can be the watermelon.” One of the people accused of making the comments was fellow nurse Brayhall.

The woman said she went both to Castonguay, who was the director of nursing, and Hatch, who was the administrator.

“Defendants orchestrated and condoned a continuing campaign of harassment against Cannell because of her race and in retaliation for her opposition to the unlawful race discrimination and harassment in the workplace,” the lawsuit states.

Cannell claims in the lawsuit that after she made her complaints there was an incident in which she was not protected when an inmate made serious and repeated threats against her personal safety, and that her car was ransacked while she was at work.

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.”

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.”

David Webbert wins $210,000 jury verdict for whistleblowing

Eastport security worker awarded $200,000 after jury finds employer wrongly fired him for 2006 whistleblowing, published in Bangor Daily News by Mario Moretto

MACHIAS, Maine — A jury in Washington County Superior Court found that a Hampden-based security company violated the Maine Whistleblower’s Protection Act when it fired an employee who sent an email to Gov. John Baldacci in 2006.

The jury awarded the plaintiff, Richard Hickson, of Eastport, more than $200,000 in damages and attorney fees in a unanimous verdict on March 21.

“The jury sent a message to Maine employers, saying, ‘Look, don’t punish whistleblowers,’” said Hickson’s attorney, David Webbert, on Saturday.
The company, Vescom Security, plans to appeal the verdict, according to an email from its attorney, A.J. Greif.

At the time Hickson was fired in 2006, he was employed by Vescom, which had been contracted by Domtar Industries to run security at the Woodland Pulp and Paper Mill in Baileyville.

According to the original complaint against Vescom, Hickson — who had a supervisory role with Vescom — was running the gate at the mill on July 8, 2006, when then-Gov. Baldacci was given a tour of the mill by Domtar officials. Baldacci was joined by State Rep. Anne Perry, D-Calais, and David Bowler, a lieutenant in the Maine State Police who, at the time, was Baldacci’s head of security.

Hickson claimed the Domtar officials bypassed his security gate, and that he was not given a list of the members in Baldacci’s entourage or the group’s tour route, as was required by federal law and company policy.
He also claimed that members of Baldacci’s entourage were not wearing “safety footwear” or carrying emergency respirators, and that Perry was wearing open-toed shoes, which violated safety rules.

The complaint, filed Dec. 8, 2010, states that in the weeks after the Governor’s group had left, Hickson brought up his concerns with his own supervisor and with members of Domtar’s security detail, but that no action was taken to prevent safety problems in the future.

So on July 25, 2006, Hickson contacted Baldacci’s administration through a “contact me” link on the governor’s website.

He wrote that the governor and his entourage were not made to follow proper safety procedures, and outlined what those procedures should have been. He wrote, “I am rather tough on safety and this is just a reminder for you in case you should happen to tour the mill on another occasion.”
Bowler, Baldacci’s security chief, received the email and sent several communications to Domtar, which Hickson claimed amounted to pressure to fire him.

“I simply wanted you folks to know about this in case you have a rogue security person up there,” Bowler wrote to the company. In another email, he wrote that “you may have a problem employee on your hands, or at least one that has limited common sense.”

According to the complaint, John Barker, Domtar’s Human Resources Manager, told Hickson’s supervisor that the whistleblowing report “shouldn’t have been done. It could hurt [Domtar’s] relationship with the Governor.”

When Hickson showed up for work, just hours after he sent the email, he was told he’d been fired.

Webbert said his client was a “safety nerd,” and wasn’t trying to get anyone at Domtar or Vescom in trouble.

“At trial, he explained that he was trying to prevent similar unsafe conditions from ever happening again,” Webbert said Saturday. “He was blowing the whistle on safety problems, and trying to make sure they were fixed.”

A.J. Greif, attorney for Vescom, said that the alleged safety violations regarding sign in and emergency respirators didn’t happen. Domtar, which shared responsibility for security, maintained a sign-in sheet for the governor’s group, and the tour did not visit any areas that needed an emergency respirator.

But Webbert argued that whistleblower protection doesn’t require that a whistleblower be correct in the facts of the complaint, only that there be a sound basis to believe a violation had occurred.

“He was the top guy running security. He was not told where they were going. He was not told they’d signed in with Domtar,” Webbert said. “And he had been told the group would receive a full tour,” which would have made the respirators necessary.

Greif said in an email Friday that the jury only ruled as it did because it had not been properly instructed by Justice Robert Murray. He said that Maine law protects whistleblowing employees who “complain about a safety violation ‘committed or practiced by that employer.’”

Since Hickson was complaining about perceived violations on the part of Domtar, not Vescom, Greif said he should not have been eligible for whistleblower protection.

“Mr. Webbert’s theory, which the Court accepted for purposes of jury instruction, was that any complaint about illegal conduct, even if unrelated to the employer, was protected,” Greif wrote. “Thus, he would claim whistleblower status for an employee who endlessly complained that ‘Obamacare is illegal’ on company time. This is not the law.”

Justice Murray had written in an earlier order that there was precedent for whistleblower protections in situations such as Hicksons, where a contractor reported alleged violations “by representatives of the company the defendant contracted with to provide security services.”

Webbert said Hickson found employment again six months after being fired by Vescom, and has remained employed there since. Hickson also filed federal charges against Bowler and Domtar Industries in 2008. Those charges were settled out of court.

Roberta de Araujo wins Maine Human Rights Commission ruling for whistleblower

Link

Published in Bangor Daily News

AUGUSTA, Maine — A man who claimed he was fired from his job as a bartender at a Portland [Employer location] likely was terminated in retaliation, the Maine Human Rights Commission ruled Monday.

In the first case, documents filed with the commission indicated that [Employee] of Portland had worked at [Employer location] since 1989, most recently as assistant bar manager. More than two years ago, he observed what he thought was evidence that the bar manager had taken $100 from the sale of chance tickets sold at the club. He presented the information to the [Employer’s] board of directors and the bar manager was fired.

[Employee] then was offered the bar manager job, which he took on two conditions: that he be given a written job description and that he be able to return to his assistant manager job if the manager position did not work out. [Employee] was fired a few weeks later.

[MHRC] Investigator told the panel that in reviewing minutes from the [Employer] board meetings, it was clear the former bar manager had support from some board members and that they believed he had been falsely accused of stealing. The former manager was rehired, and that man — unnamed in the documents — wanted [Employee] fired.

Attorney representing the [Employer], told commissioners the post had wanted a continuance to better prepare its response, in part because a mailed notice went to a man who had died, delaying its review. That request was denied by the rights commission.

“The [Employer] did the best they could,” [Employer’s Attorney] said, but maintained that there was more to the story than the investigator found. “It’s obvious that there is additional information,” he said. [Employee’s] attorney, Roberta de Araujo, countered that the [Employer] “had ample opportunity to include any information.”

[Investigator] told commissioners that the [Employer] listed several reasons why they fired [Employee], but never mentioned the so-called whistle-blower event in which the apparent theft was reported.

“I found it notable that the [Employer] made no mention of the elephant in the room,” he said.

The commission voted 4-0 that [Employee’s] claim had reasonable grounds. In cases in which the commission finds reasonable grounds, both parties are encouraged to reconcile and reach a settlement. If conciliation fails, the complainant may file a civil lawsuit in Maine Superior Court, where a binding settlement can include monetary damages.