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, but at least one of the cases reads exactly like Crawford’s experience — right down to the missteps by OSHA employees and the attorney general’s overriding concern for adhering to filing deadlines. In 2004, Cheryl Vara was fired from the job she’d held at Menards for nearly a decade after she reported OSHA violations. (See “Whistleblower,” NUVO cover story, Dec. 15, 2004, www.nuvo.net/archive/2004/12/15/whistleblower.html) The mother of two was using her job at Menards to support the family while her husband pursued his college degree. But when two employees, including a 70-year-old gentleman who suffered a broken back, were injured on a faulty scaffolding system Menards used for stocking shelves and her store managers refused to do anything about it, in her view trying to cover up the accidents, Vara reported both incidents to OSHA. An investigator was sent out, the store was cited and fined for the faulty scaffolding and Vara was fired. Cheryl Vara, pictured here with her husband Sergio, maintains she was fired for being a whistleblower. Since then, Vara has continued to maintain that she was fired for reporting the OSHA violations. And she won her case when Menards disputed her Unemployment Benefits Claim and the judge ruled in her favor. She also felt she won when, after a lengthy and thorough investigation, the Department of Labor found that she had indeed been wrongfully terminated for reporting the OSHA violations. According to Department of Labor Director Tim Crouse, Vara’s case was more meritorious than the majority of the claims they receive. “Most cases are resolved with negotiation and a settlement,” Crouse says, “but after our investigation we found this one had enough merit to recommend litigation by the Attorney General’s Office.” Vara is one of the 22 cases the Department of Labor has recommended to the Attorney General’s Office for litigation since 2000. She is also one of the 18 that the AG’s Office turned down. The clock began ticking on Vara’s case the first day she contacted the DOL and included weeks of inactivity by investigator Carmen Varela, who was out sick much of that time and on personal leave. As a result, she was told that the AG’s Office received her case with less than a week left of the requirement that action in circuit court be filed within 120 days of an employee’s termination; and that was simply not enough time to review whether or not her case had merit. She was told to take Menards’ offer of a $9,000 settlement, or hire a private attorney to handle her case. “I couldn’t believe it,” Vara recalls. “Every time I turned on the television I’d see these campaign ads where Steve Carter claimed he was ‘Working For Justice in Indiana.’ But what Menards did to me wasn’t justice. His office refusing to take my case and never even contacting me didn’t seem like justice either. “You know, as a mother you work so hard to teach your kids the difference between right and wrong,” Vara says about her case. “And you teach them that good deeds get rewarded and bad deeds get punished. I just thought they’d be a little older before they learned that sometimes the bad guys win and there’s nothing you can do about it.” What’s to be done? Robert Crawford not only shares Cheryl Vara’s experience with the attorney general, he now also shares her complete lack of trust in public officials and the political process. “This has been the worst two years of my life,” Crawford says. “Everyone that I thought I could rely on for help has brushed me aside. They just want to get rid of my case and do as little as possible, not caring about how much this has impacted my life.” The list of those who have brushed Crawford off in his quest for justice is a veritable “Who’s Who” of local and national politics. Beginning with the administration of Gov. Joe Kernan and continuing with Gov. Mitch Daniels, Crawford has sought the help of every state agency and bureaucrat Indiana has, including Congressman Steve Buyer, Sen. Richard Lugar, Sen. Evan Bayh and newly appointed state Inspector General David Thomas. He has a file folder full of polite brush-offs and promises to pass his complaint on to the appropriate people to prove his claims that “no one is interested in a plea for help from a common working man who has been swept aside.” Making matters even more complicated in Crawford’s case, as well as Cheryl Vara’s and all the other whistleblowers who may or may not have been blown off by Attorney General Steve Carter, there is seemingly nothing that can be done about it. Because the attorney general is an independently elected office, Steve Carter is accountable to no other branch of state government. The governor of Indiana has no inherent powers that would require Carter to prosecute whistleblower cases, nor does the U.S. Senate or the Indiana General Assembly — unless the current laws are rewritten. Nancy Guyott, commissioner of the Indiana Department of Labor, explained the DOL’s inability to force any type of action in a letter that denied Crawford’s appeal of the attorney general’s decision to decline his case: “Under current judicial interpretations of Indiana Law, neither the Governor [nor] the Indiana Department of Labor have the legal authority to file suit concerning your termination. Instead, only the Office of the Attorney General has that authority and it declined to do so ... we simply do not have the legal authority to pursue your matter further. Our authority ended the day we received notice from the Attorney General that he was declining to file suit.” It was essentially the same message he received from Sen. Richard Lugar’s special assistant, Mark Doud: “The decision by the Indiana Attorney General’s office to decline the filing of a lawsuit in this matter is a legally binding decision that is beyond the scope of the Senator’s duties ... I encourage you to contact your state legislators to make them aware of the importance of amending the state statute [for] future whistleblower cases.” Crawford did contact multiple members of the Indiana General Assembly, seeking help in his case and explaining how the current laws are being used to penalize the very people they claim to be written to protect. No new laws were introduced to modify the system this past session in response to his pleas, nor have any of the state legislators responded to Crawford with more than a form letter thanking him for contacting his elected official with his concerns. “I’m not going to give up,” Crawford says. “I know I did the right thing in reporting those things to OSHA, and I know that the right thing for the attorney general to do is to take my case. And until he changes his mind or I can afford a couple hundred thousand dollars to hire a private attorney good enough to sue, I’m just going to keep pushing for some kind of justice.” Editors note: At press time, telephone and e-mail messages to the Attorney General’s Office asking questions about Robert Crawford’s case went unreturned. Here’s the deal Indiana Statute Title 22. Labor and Industrial Safety Article 8. Occupational Health and Safety Laws Chapter 1.1 22-8-1.1-38.1. Discharge of or discrimination against employee for actions here under prohibited — Remedy. No person shall discharge or in any way discriminate against any employee because such employee has filed a complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter. Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this section may, within thirty (30) calendar days after such violation occurs, file a complaint with the commissioner alleging such discrimination. Upon receipt of such complaint, the commissioner shall cause such investigation to be made as he deems appropriate. If after such investigation, the commissioner determines that the provisions of this section have been violated, through the attorney general, shall, within one hundred twenty (120) days after receipt of said complaint, bring an action in the circuit courts of Indiana. The circuit courts of Indiana shall have jurisdiction to restrain violations of this section and order all appropriate relief, including rehiring, or reinstatement of the employee to his former position with back pay, after taking into consideration any interim earnings of the employee.

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