Blowing Off The Whistleblowers 

In his State of the State Address this past January, Indiana Gov. Mitch Daniels stressed the importance of protecting whistleblowers brave enough to “do the right thing” and come forward. He spoke of the necessity for having such protections. “Because tougher rules alone will never make men angels, we established an inspector general. There is now a place for the whistles of whistleblowers to be heard,” the governor told the assembled crowd of lawmakers. In theory, Attorney General Steve Carter agrees with the idea of protecting those who expose wrongdoing, or at least he seemed to during his last campaign. “Each citizen of Indiana should be empowered to be a watchdog regarding government ethics,” he said in response to the new inspector general position. “This plan can encourage citizen whistleblowers to step forward when they see wrongdoing in state government.” By law, the attorney general is charged with representing the State of Indiana in suits brought by or against any agency or individual doing the work of the state. This creates a variety of cases for Steve Carter to handle in his duties — including representing Speaker of the House Brian Bosma both before and after a federal judge ruled that the proselytizing Christian prayers Bosma sanctioned to open each session of the Indiana General Assembly were unconstitutional. He is also the litigator on behalf of the state, ordering Planned Parenthood of Indiana to turn over the medical records of underage girls on Medicaid who are patients in order to determine if Planned Parenthood violated any state laws in the medical treatment the girls received. The attorney general is also charged with prosecuting any employer who wrongfully terminates an employee under Indiana’s whistleblower laws. And like many of his other legal responsibilities, this one might both enforce public skepticism and inflame an American sense of justice about what is right and what is wrong. The saga of Robert Crawford For nearly 10 years, 55-year-old Robert Crawford worked on highway construction crews throughout Indiana as a truck driver. It was a good job, with a good salary and good benefits, and Crawford considered himself a good employee. Married, the father of two grown sons, and soon to be a first-time grandfather, the Danville resident started work on the I-70 changeover near the airport in the winter of 2003, thinking it was a construction project pretty much like any other. Crawford had no idea that it would be his last job as a driver for Mt. Carmel Sand and Gravel. Nor would he have ever imagined he would become another whistleblower seemingly blown off by Indiana Attorney General Steve Carter. “I guess I was pretty naïve,” Crawford says with a shake of his head. “But I sure didn’t expect to have every door I thought was open to help me get slammed in my face. “The trucks that I had to drive were not set up for winter work,” Crawford explains about those first cold weeks on the job. “There were many problems that were safety issues: the trucks had defrosters that wouldn’t clear the windows, heaters that didn’t work, brakes that didn’t work, and having to climb on top of the trucks covered with snow and ice was really dangerous. Almost every day I would say something to [my supervisor] about the problems.” For more than a month, Crawford continued to work and continued to complain. But on Feb. 12 the temperature was 10 degrees, and he was unable to get the windshield on any one of the six trucks he was assigned to defrost. “I did what I was supposed to do, I informed [my supervisor] about the problem,” Crawford maintains, “and he said he was sick of my bellyaching.” When ordered back to work, Crawford told his employer that he planned on making a complaint with OSHA (Occupational Safety and Health Administration) if the trucks weren’t fixed. “I had already taken the next day off of work for a doctor’s appointment, and I was surprised when I got a call from Gary Green, president of the local 716 Teamsters Union. My supervisor had called him to say he wanted me replaced on the job because of my griping about the trucks,” according to Crawford. “I filed a complaint with OHSA that same day.” Money to quit offer During the visit to the I-70 construction site by the OSHA inspector, Mt. Carmel was found to be in violation of six “serious” safety laws and two “nonserious.” Each of Crawford’s complaints was found to be valid by the OSHA inspector, resulting in multiple citations and ensuing fines against his employer. OSHA report Calls to Mt. Carmel Sand and Gravel headquarters in Illinois regarding the firing of Robert Crawford went unreturned. However, according to an OSHA (Occupational Safety and Health Administration) “Safety Order and Notification of Penalty” report filed on Feb. 18, 2002, (five days after Robert Crawford filed his complaint and nearly two months since he began complaining about the safety problems to his employer) the following violations by Mount Carmel Sand and Gravel were found at the I-70 job site: Violation No. 1 (Serious): The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to slick and slippery surfaces on tops of tanks or hoppers. Among other methods, one feasible and acceptable abatement method to correct this hazard is to establish a walkway system. Violation No. 2 (Serious): The employer did not instruct each employee in the recognition and avoidance of unsafe condition(s) and the regulation(s) applicable to his work environment to control or eliminate any hazard(s) or exposure to illness or injury. Violation No. 3 (Serious): The employer did not retrain each employee when inadequacies in an affected employee’s knowledge indicated that the employee had not retained the requisite understanding or skill. Violation No. 4 (Serious): All defects were not corrected before vehicle(s) were placed in service. This includes, but is not limited to faulty brake lights and defrosters. Violation No. 4 (Serious): All six spreader trucks [the ones used by Crawford] were found to have no working brake lights. Violation No. 5 (Serious): Motor vehicle(s) operated under conditions that cause fogging or frosting of the windshield were not equipped with operable defogging or defrosting devices. Violation No. 7 (Nonserious): The employer did not develop, implement and/or maintain at the workplace a written hazard communication program which describes how [safety] criteria will be met. Violation No. 8 (Nonserious): The latest training certification was not maintained. On March 13, Crawford was sent home early, just before lunchtime. His supervisor said the company was going to have a mechanic check out the trucks Crawford was assigned to drive, and they would call him back to work when the repairs were completed. That was the last day Robert Crawford worked for Mt. Carmel. A week later, having heard nothing from his employers, Crawford called his union rep to find out the status of his job. “I was told that Mt. Carmel was offering me $10,000 to quit. They didn’t want me to work for them again.” Crawford filed a formal grievance with the union against Mt. Carmel on March 18. The next day, Mt. Carmel upped their offer to $25,000. “I knew this was all in retaliation for my reporting the OSHA violations, I knew I was being harassed because I’d complained,” Crawford says. “I called the OSHA office to see if I had a course of action I could take with them. I spoke to Mr. Deal; I told him that Mt. Carmel had offered me money to quit. I told him I felt it was in retaliation for the complaints. He said the violations were still under investigation, and that there was nothing he could do for me at that time. He suggested I contact the NLRB [National Labor Relations Board].” For the next month, Crawford followed OSHA’s recommendation and continued to turn down Mt. Carmel’s offer to quit his job as he pursued a wrongful termination complaint with the NLRB. He was finally given an appointment on April 27, when he met with Rebekah Ramirez to give his sworn affidavit. “During the process, Ms. Ramirez told me that she thought that OSHA had a course of action for the retaliation of an employer for making a complaint, and to contact OSHA again. The next day [April 28] I called Mr. Deal again, and told him what the NLRB had told me. He said it sounded like I had a discrimination complaint, took my number and said he would have someone call me back.” Carmen Varela of the Indiana Department of Labor called Crawford the next day (April 29) and opened a formal complaint investigation as to whether or not Mt. Carmel had violated Indiana whistleblower statues by firing Crawford in retaliation for reporting safety violations. Money to quit offer … retracted The Department of Labor investigates hundreds of cases every year based on wrongful termination complaints. In the majority of cases, no violation of law is found to have occurred. In many, many cases, the DOL ends up brokering an agreement between employers and employees, and the cases are closed as a result of a settlement. However, if a violation is found to have occurred and no agreement is reached, the DOL refers the cases to the office of the Indiana attorney general for prosecution. This happens very, very rarely. Even with a cursory understanding of the state laws, Crawford felt certain his case met the requirements for wrongful termination under the whistleblower law — and it is important to keep in mind that no evidence to the contrary has ever been presented. Despite the preponderance of facts on his side, however, Crawford began to get nervous about his case when he received a letter from Mt. Carmel’s attorneys retracting their $25,000 settlement offer on June 24, 2003, on the basis of what some might consider a legal technicality. According to the law firm of Baker and Daniels, attorneys for Mt. Carmel Sand and Gravel, because Crawford filed his complaint with OSHA on May 5, he had not met the state requirement that an employee must file their grievance within 30 days of being terminated. They contended that Crawford’s last paid date of work was March 13, making that the date of his termination. Therefore, state law required that his complaint be filed before April 13, 2003. “Consequently,” according to Mt. Carmel’s lawyers, “Crawford’s complaint of discrimination was filed approximately 54 days after the alleged unlawful act — clearly not within the required time limits.” The DOL and Robert Crawford did not consider May 5 to be the date of the complaint. Using the date when Crawford was mistakenly told by OSHA’s Frank Deal to pursue his claim with the NLRB, the Department of Labor “tolled” Crawford’s complaint — backdating it to the original phone call Crawford made to OHSA the day after Crawford was told he would not return to work at Mt. Carmel. In fact, Crawford has a letter dated May 16, 2003, from Tim Crouse, director of the OSHA division of the Indiana Department of Labor, that reads, in part: “This is to confirm that your discrimination complaint, filed with this office on March 19, 2003, has been docketed.” On July 11, Crawford received a second letter from Tim Crouse of the DOL with the news he had been hoping for: “... due to the information gathered by our investigator and since a settlement could not be reached in the above referenced case, we have referred this matter to the Attorney General’s Office and recommended litigation.” The genuine hope Crawford felt at hearing that the Indiana attorney general would be taking his case was the first good news he’d had since losing his job at Mt. Carmel. But his joy was short-lived. On Sept. 24, 2003, Deputy Attorney General Patricia Orloff Grow decided not to prosecute an action against Mt. Carmel. The basis for this decision, according to a letter Grow sent to the Department of Labor, was that Crawford did not file his discrimination complaint in a timely manner. The letter from the Attorney General’s Office declining Crawford’s case is remarkably similar to the letter Baker and Daniels lawyers had used months earlier to retract their settlement offer. Specifically, Grow argued that Crawford was terminated on March 13, 2003, making the deadline for filing his complaint April 13. Because his complaint was filed after that date, it was not eligible for prosecution. Further, the Attorney General’s Office was declining to honor OSHA’s “tolling” of the date of Crawford’s complaint to his original phone call on March 19. Crawford was stunned at the decision. But those who know the history of how Indiana Attorney General Steve Carter has chosen to deal with whistleblower cases since taking office shouldn’t be. Steve Carter, Attorney General, supports the new inspector general position: "This plan can encourage citizen whistleblowers..." Whistleblower blues Since February of 2000, the Department of Labor has recommended 22 cases to the office of the Indiana attorney general and recommended litigation against employers for the wrongful termination of an employee. Of those cases, the attorney general declined to prosecute in 18 instances, reached a settlement in three cases and successfully prosecuted one case on behalf of the employees — who were all wrongfully terminated by the City of Gary, Ind., according to court documents. Maybe. It’s hard to know for sure the exact details because the Attorney General’s Office claims it does not keep track of the records in such a way that would make it possible to know for sure what the ratio of DOL recommendations for wrongful terminations to the successful prosecution of those cases actually amounts to — and that means that there are no public records for the cases that were declined or settled out of court. Hence, there is no way to know in which cases the employer was actually punished for the wrongful termination of an employee whistleblower. “We don’t really keep track of the cases that way,” Press Secretary for the Attorney General Staci Schneider told Robert Crawford when he asked for the information; she told the same thing to attorney Michael Sutherland (who was hired by Crawford to review his case) when he asked for the information, and members of the media, including NUVO, when they asked for the information. Even using the Freedom of Information Act to require a disclosure, the Attorney General’s Office will only provide 22 case names, and no details — citing attorney/client privilege. It’s not clear just how many of the 18 wrongful termination whistleblower cases were turned down by the Attorney General’s Office on the basis of missed deadlines, bu


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