[2017] The Whistleblower Onslaught

by David P. Warren

  I take a moment to catch up on my notes, and then ask, “You said you knew instantly what it was about—when he fired you. What did you mean by that?”

  “My complaints about dangerous conditions and violations that were not remedied were also not well-received. My complaints as well as some of the violations had to do with the conditions and safety of the shafts in the mine: inadequate ventilation and inadequate safety equipment. It was an old operation, and engineering inspections had shown rebuilding of the shafts were needed for the past year. The cure would have cost twenty million in engineering and construction costs, and would have shut down operations for at least four weeks, which is about another several million in revenue. So you can see what it would cost the company to comply.”

  As Walters draws a breath. I see the lines in his forehead deepen and his color turn ashen. The sincerity and the pain were evident in his face.

  He forces himself to continue. “I had ordered correction of these violations, and it wasn't done. When I confronted the manager who failed to do it, he told me that Constantine had ordered him not to proceed with my instructions. I took the matter to Michael, who admitted that my orders had been …” He pauses and his eyes narrow. “I even remember the term he used so dismissively. My orders had been 'set aside' because it was not a good time for the company to spend that much money. I had to swallow my anger to get the words out. I told him that we were risking lives. His response was that the engineers overstated the problem, and we would address it in due course. That was when the chasm between us opened up. I told him I could not accept that resolution; that something needed to be done now, not after a disaster. Michael stared at me silently for the longest time, and then he said that he would handle the matter from that point forward. I just walked out in silence and disbelief, knowing that there was no way back from this for me or him.

  “I went to my office, and I called the mining inspector from Easton County, who told me that he had received a letter from the company two weeks ago stating that they were in the process of correcting the violations the county issued. I told him that the company was not correcting these violations, and we continued to operate at full strength. He told me he had been called to an emergency meeting in Richmond, but would be at the mine with a team within forty-eight hours, and that I should say nothing inside the company until then. I agreed. Seventeen hours later, before he and his team got there, we had a collapse at the site, and one worker died, and three were seriously injured.”

  “Holy shit,” I say, incredulously.

  “It gets worse. I also think that records were manipulated.”

  “Why do you think so?”

  “Because violations that preexisted the disaster were no longer there. It's like they disappeared from the records.”

  “Unbelievable,” I say. “That's the Wheeling collapse I heard about on the news?”

  “One and the same,” Walters says. “And you probably also saw reports showing everything was first-rate at that site.”

  “Yeah, the company was almost immediately vindicated. I was surprised how quickly.”

  “Right. The reporting said this was a great facility, and no violations were found to have caused the explosion. The whole thing was smoke and mirrors, but it was brilliant, and Constantine somehow got it done like that.” Walters snaps his fingers to drive home the point.

  I nod, reflect, and then ask, “So did this fellow from Easton County—you don't happen to know his name, do you?”

  “I do,” he said. “It's Miller. Carl Miller.”

  “Did he ever show up at the real site?”

  “One day later. I met with him and told him that the conditions had not been corrected. He told me he was going back to the office to get the lawyers involved. He was angry, and he was talking injunctions and major fines. He shook my hand and left.”

  “Did he do it?” I ask, thinking that the fines, or even a report, would help us establish that the site had problems.

  Walters pursed his lips and furrowed his brow. “No,” he says, wonder in his voice. “Two days later, when I had heard nothing, I called him. They told me he no longer worked for the county. After I was fired, I spent a couple of days trying to track him, but I just hit a brick wall. No one seems to know where he is.”

  I stop writing for the first time in twenty minutes and exercise my cramping hand. “That's an incredible story,” I offer. “Based upon what you've told me, I think you can bring a lawsuit for wrongful termination in violation of whistle-blower statute and wrongful termination in violation of public policy, which protects employees from retaliation for the reporting of conduct by the company that was contrary to law and public policy. If you win, you can recover economic losses, such as salary and benefit losses, and emotional distress damages. If a jury believes that the employer acted maliciously, punitive damages to punish the employer's misconduct for profit.”

  Walters regards me for a moment, and then says, “I understand, but I want you to know that this is not about money for me. This company has been my life for over twenty-seven years. I would have been satisfied to walk away, even though I don't think I should have been fired. I'm okay for money, and I'll get by however this suit comes out. I just can't let the company trade lives for money and then cover it up.”

  That was the moment when I knew that I would represent Kevin Walters.

  He takes off his glasses and rubs his eyes, and then replaces them. He looks at me with concern, and a certain vulnerability that gave him a very human, credible quality. My assessment isn't simply an evaluation of jury potential; I really like the man. “I'm told that you're good at what you do. Will you help me?” he asks, getting to the bottom line.

  I momentarily ignore the ultimate question, instead posing one of my own. “What about reports prepared by Carl Miller? Have you attempted to get those?”

  He nods, his expression a combination of perplexed and uncomfortable. “I did. The county says that they have no record of what he wrote or the letter I wrote; no notes, nothing.” He was quiet, and then says, “I'm sure that everyone you talk to sees conspiracies around every corner, but I know what this company can do. What Constantine lacks in humanity, he tries to compensate for in IQ points.”

  I say, “I think you're a credible guy, and that's important to my assessment of whether I represent someone.” I lean back in my chair, and add, “But, to be frank, my concern is how we prove any of this to a jury, especially in the face of disappearing evidence. If we can't turn up any critical documents, the company will do their best to pass you off as a sour grapes case; fired and looking for revenge.” Walters silently considers this. I add, “Give me twenty-four hours to review and consider, and I'll get back to you.”

  “Fair enough,” he says, and we both stand. He adds, “You should also know that they will fight us with everything they've got. And they've got amazing resources.”

  I nod. That fact was not disconcerting to me, because this was the story of my life. In representing an employee against a major corporation, it doesn't take long to become fully indoctrinated to large defense firms aiming to paper you to death; staffing a case with a partner, to make the big decisions; a senior associate, to handle most of the work on the case; and a new associate, to spend countless hours in researching obscure questions, preparing interrogatories and requests to produce documents, and whatever else rolls downhill. “I understand,” I say. “I regularly tangle with members of the Fortune 500, and they never make the job easy.”

  We walk through the front door and then stop on the driveway to shake hands and say good-bye. “I like you, Scott,” Walters tells me. “You seem like a good guy, and I'd be comfortable having you represent me. I hope you decide that you can take the case. In any event, thanks for taking time from your family to talk to me.”

  I had already decided that I would represent him, and I'm still not sure why I didn't tell him then. Instead I smile, extend a hand, and say, “It has been a pleasure to meet you,
Kevin. I will call you tomorrow.”

  As I watch him walk toward the gray Tesla parked in front of Bernie's house, I evaluate the conversation. I believe what he said, and he seemed like a guy who was screwed over by his decision to do what was right rather than what was profitable or expedient. It was courageous, and I respected it. I take satisfaction in my work as a fighter for the underdog. The image of the little David whose rights have been trampled by the all-powerful Goliath is an image I like to convey to juries, who are often employees who don't like one of their own to be victimized by an entity much more powerful than themselves. And employees bringing an action are underdogs. The big company has all of the information, controls many of the personnel, and often has limitless resources at its disposal.

  As I consider Kevin Walters, it occurs to me that he is the real thing. I already know that I want the case, and I will take it on unless Bernie reveals something sinister about the man, or I learn that he is a refugee from a state mental institution, both of which I doubt. As I consider all of this, I have no idea what the decision to represent Kevin Walters is going to do to me and my family life.

  After saying good-bye to Kevin Walters, I turn back toward the house to see Katy standing on the lawn, looking up at the few lights so far in place with her hand on her hip. I suppress a giggle as I watch her shaking her head in displeasure. What a ball-buster she is. “Daddy, are you still going to have time to do this before The Wizard of Oz? Maybe I can get you some coffee to help you.”

  Apparently, my little girl thinks that caffeine is the only answer to my limited progress. “I'll get it done, sweetie,” I say, reassuringly. “Don't you worry.” I have visions of me outside on the rickety old ladder at midnight. She gives me a wide smile, and the idea of being on that ladder at midnight doesn't seem so bad. Clearly, little girls have way too much influence over their daddies.

  Chapter 2

  At 5:00 p.m., Lisa and I sit in Bernie and Kathy Jacobs' backyard watching the orange-infused clouds reach across the western sky. The four of us sit in a circle talking while Joe and Katy watch the movie A Christmas Story for the twentieth time. They know this movie so well that they periodically recite dialogue before it is spoken. Katy and Joey are both fascinated by Ralphie's obsession with a Red Ryder BB gun and are amused by his father's obsession with a bizarre lamp in the shape of a woman's leg that he won.

  “It's getting cold,” Kathy urges. “Let's go in.”

  “You and Lisa go ahead,” Bernie says. “Scott and I will be in as soon as I pull the steaks off the barbecue. As a matter of fact, they may be done now.”

  I walk with Bernie to the barbecue as Lisa and Kathy move into the house. He grabs a plate and reaches for the meat with tongs. I frown. “If you aren't going to cook it, at least give it a tan before you pull it.”

  Bernie shakes his head. “Not everyone wants beef jerky for dinner. Don't worry, though, I put yours on right after we spoke this morning.”

  We laugh as he pulls three steaks off and turned the fourth. “So, how did it go with Kevin Walters?” he asks.

  “Good. I like the guy.”

  Bernie nods. “Do you think you can help him?”

  “I think I'm going to try, although I haven't committed yet.” Bernie continues watching the grill. “How do you know him?” I ask.

  “Consolidated Energy acquired Lincoln Energy out of Nebraska last year. One of about ten competitors they gobbled up. I brokered the deal, and Kevin and his team negotiated the acquisition from inside. The deal went on for a few months, and I had a number of meetings with Kevin. Smart guy and a good negotiator. When it was all done, I considered him a friend.”

  I nod. “How did you learn that they had fired him?”

  “I ran into him at a ball game a couple of days ago and he told me he wasn't with Consolidated anymore. I pried what had happened out of him—couldn't believe it. Then I told him to call Robin Hood of the legal profession.”

  “That's me?” I ask.

  “Sure. You take money from asshole rich guys and redistribute it to the people they fuck over, right?

  “Certainly an eloquent way of putting it,” I say. “But doesn't it sound a little more like Karl Marx? Each according to his need—that kind of socialist philosophy?”

  “Maybe, but isn't Robin Hood a socialist for that reason?”

  “I don't know, but I have to admit that I like the Robin Hood image.”

  “Yeah,” Bernie says. “Me, too. Put it on your business card or something.”

  “Right. Maybe with a picture of me in tights?” I add.

  “Awesome. I'll pass them out at the next Chamber mixer for you.” Then he adds, “I hope you can do him some good. I really like the guy.”

  “He makes a good first impression.”

  “Second and third are even better,” Bernie says as he pulled the last steak off the fire. “Well, let's eat while you analyze before all this gets cold.”

  Joey and Katy eat hotdogs hurriedly, so they can get back to the Christmas Story movie. Katy's dog was just a bun and a dog. No condiments in sight. Joey's dog was overflowing with ketchup, which could be followed across the plate and onto the table.

  “Hey you guys, this is not a race. Take your time and digest a little bit,” I say.

  “Dad, we need to get back to the movie,” Katy says, as if this were obvious. I suppress a smile.

  “We have the movie recorded. It will wait for you.”

  “Yeah, Dad,” Joey says through a mouthful of hotdog. “But it's at a really good part. A kid is about to get his tongue stuck on a pole.”

  Lisa smiles. “That is a good part.” Then she adds, “Careful, Joe,” and mops the table in front of him with a napkin to gather the escaping ketchup.

  He grunts an okay and takes another bite.

  Bernie looks at Lisa and then at me. “I hope you guys are still planning on joining us to celebrate our anniversary next Friday.”

  “We are,” Lisa said. “We wouldn't miss it.”

  Bernie looks over at Kathy. “I am a lucky man,” he says.

  “Even after twelve years?” Kathy asks.

  “More than ever.”

  “It's getting pretty romantic,” Katy says, looking up from her hotdog.

  The room bursts into laughter. “Yes it is, sweetie,” Bernie says. “We'll try to keep that under control.

  “Thank you,” Katy says, turning back to her show.

  After a moment, Kathy turns to Lisa. “I don't think we ever heard how you guys met.”

  Lisa looks over at me and shakes her head. “Scott is such an asshole,” Lisa says, mouthing the expletive silently because of the smaller ears in the area.

  Kathy wore a look that was half amusement and half surprise. “What?”

  Lisa says, “All right, let me tell you about our first meeting, and you'll see why we almost never happened. Scott and I both went to a party with friends. We saw each other across a large room and smiled at each other. I asked who he was, and I was told his name. I'm also told he is a great guy.”

  “Sounds good, so far,” Bernie says.

  “Yeah, but then he walked over to me and said, “Hi, how are you?”

  I said, “I'm fine. And then he said, get this, 'Do we belong together, or is it just wishful thinking on your part?' ”

  Kathy and Bernie laugh hard. “Damn,” Bernie says. He looks at me and says, “You really are an asshole. I'm surprised the two of you ever got off the ground.”

  “We almost didn't.” Lisa says. “I groaned and said, 'What a creep.' I was turning to walk away when Scott started to laugh hysterically. I stared at him, a little confused, and then it hit me that this was a bizarre joke. I just looked at him. “I'm sorry, he said. “I just wanted to make an impression. I told him that it was obvious that he didn't care if it was a good one.”

  “Don't you love it,” I say. “That's when I knew that I had to get to know this woman.”

  “And in spite of that start, she let you?” K
athy asks.

  I nod. “Remarkable, isn't it? I had to work hard to overcome that first impression, but within a year she liked me.”

  “And most of the time I still do,” Lisa adds.

  “See,” I say, “she also takes care of herself pretty damned well.”

  Bernie pours more wine, and we talk until we realize it is almost ten o'clock. We pick up our little girl, who had fallen asleep during the second running of the movie, and tell Joe it is time to go home. We hug our friends, and they walk us to the front yard. We thank them, and, as we walk toward home, I find myself contemplating Kevin Walters. I am intrigued and thinking about his case. Oddly, as I think about Kevin's case I have an inexplicable feeling of foreboding.

  * * *

  Two days later, at 10:00 a.m., I meet with Kevin Walters to discuss my final decision on whether I will take his case. When I take a case, I study what my new client did for a living before being terminated, demoted, harassed, or discriminated against. That way I can sound like I know what I'm talking about when I argue with a defense lawyer about whether my client graced the planet with brilliance never before witnessed in his industry. They, in turn, respond that he or she was a complete idiot, who lasted as long as he or she did only out of unparalleled levels of corporate benevolence. The truth, of course, is usually somewhere between the polar extremities I and my adversaries seek out, but we cannot accept that reality. There is simply no percentage in arguing mediocrity to a jury.

  This process of identifying a client's virtues is what I engage in this afternoon, and I'm feeling pretty good about what I see. Kevin Walters sits across the conference room table in my office, waiting patiently while I review a neatly organized file documenting his history with Consolidated Energy that he brought along. He has documents revealing raises, promotions, performance evaluations commendations, policies, and other documents that chronicle over twenty-seven years of employment history, most of it spent climbing to great heights before the fall. I am considering how I will use these documents to prove my client is the good guy in this fight. After about fifteen minutes of silent review, I tear my eyes from the files long enough to look up at Walters and say, “I notice that the evaluations stopped about ten years ago.”