Cheryl Vara thought she did the right thing ... and got fired
Cheryl Vara says she played by the rules. But when the rules failed to protect her, she found herself without a job and without any faith in the justice system. Despite federal and state whistleblower laws, Cheryl believes she was fired from Menards in Carmel last April for refusing the request of a supervisor to falsify documents and contacting OSHA after a serious accident left an elderly co-worker nearly paralyzed. Cheryl Vara with her husband, Sergio, at their kitchen table.
Her story isn't limited to wrongful termination. It extends through several dense layers of state bureaucracy - all the way to the Statehouse and the office of Indiana Attorney General Steve Carter.
Sitting at the kitchen table of her family's Westfield home, Cheryl shifts a coffee cup from hand to hand as she begins to tell her story and detail just how much the past seven months have cost her.
Like its competitors Home Depot and Lowes, Menards is a home improvement store catering to do-it-yourself customers looking for easy and economical solutions to renovation projects.
But on Tuesday, April 13, 2004, a customer found 70-year-old Menards employee Bob Deele lying on the concrete floor unable to move. He had fallen nearly 6 feet after the steel and mesh shelving system upon which he stood while stocking windows collapsed beneath him.
Cheryl found out about the accident when a frantic co-worker ran into her office shouting for someone to "Call 911!"
After 10 years as an employee at Menards, Cheryl had worked her way up from cashier to office manager. Her job duties included filling out and filing all accident reports with the insurance company and Menards headquarters in Eau Claire, Wis., where the company's OSHA logs are maintained.
After Deele was taken from the store by ambulance, Cheryl asked a co-worker to take photographs of the collapsed shelving to include in her report.
"We took pictures of all accident scenes, even a cart hitting a car in the parking lot. The insurance company required them," she explains.
But later that same day when she asked for the photos, Cheryl was told General Manager Craig Jarvis was handling it. When Cheryl asked him about the photos, she recalls that he did not think pictures were necessary: "He didn't think the accident was serious enough."
While they waited for the paramedics, another Menards employee told Cheryl that fellow employee Fred Degoyler had fallen through the same shelving a week earlier.
Months later, Cheryl's reaction continues to be a mix of disbelief and anger.
"I was furious, but I was so busy worrying about Bob [Deele] I didn't really think about it at the time. I just said, 'Why didn't anyone tell me this before?'"
"It wasn't Menards' fault"
After Jarvis told her not to take the photos, Cheryl says she checked the store log and called the insurance company. No report had been filed for Degoyler's fall, though several employees had witnessed the accident. Additionally, though the store managers knew about the first accident, they didn't provide an alternative to using the shelving while stocking merchandise.
When Cheryl left work that day, she couldn't shake her concern about what had happened to Bob Deele and what was beginning to look to her like a managerial cover-up.
"I went home that night and talked to my husband about it. I was really worried. People are always on those [shelving] racks and customers are always in the aisles. No one had fixed it [after Degoyler fell], no one had reported it, and no one even seemed to care. I knew that an employee or a customer could get hurt or die if someone or something else fell and I couldn't have that on my conscience."
So the next morning, Cheryl called OSHA herself and reported both accidents and the faulty shelving. Then, with a clear conscience, she went to work.
But her anxiety returned later in the day when a co-worker came to the store after visiting Deele in the hospital.
"All he could talk about was the fact that Bob had a broken back and was on a morphine drip - and his daughter was really, really upset and already talking a lawsuit."
News spread through the store quickly, and it wasn't long before Cheryl's phone rang. It was Jarvis asking if she'd already filed the accident reports.
"When I told him I had, he said, 'I need you to send a note saying it wasn't Menards' fault.' I asked whose fault I should say it was and he said, 'Say it was the construction company's fault.'"
Cheryl hung up stunned.
(When contacted for his side of the story, Craig Jarvis refused to answer any questions about the accidents or Cheryl, saying only that all inquiries had to go to the company attorney in Wisconsin. At press time, Menards attorney Dawn Sands had not returned any of the numerous phone calls placed to her.)
The Carmel store was in the process of a remodel, but Cheryl knew the shelving system was not part of the project. In fact, the racking had been ordered and assembled by Menards, though the store project manager had asked one of the construction workers to adjust it. Now, Jarvis was asking her to say that Menards had not asked for the adjustment.
"I thought about it for a while, and then I asked to meet with all the store managers in the conference room. I walked in there and looked at Craig and said I wasn't going to write the note. He said fine, he'd call them, and he left it at that."
The next day, Cheryl was fired.
"I really liked my job"
On Thursday morning, April 15, Cheryl was working in her office at Menards when a certified letter arrived as a follow-up to her OSHA complaint. She signed for it, and then called Jarvis to the front of the store and handed the letter directly to him.
"He stormed off and went into the backroom. Not half an hour later, he came up and asked me to go to lunch with him. I knew what was happening."
Cheryl and her Menards co-workers had a joke: If a store manager asks an employee to go to lunch, say you already ate. You know you won't be coming back from the meal.
Indeed, after a short walk across the parking lot, Jarvis and Cheryl sat down at a table in Heavenly Ham. She didn't eat a bite as she listened to his litany of complaints about her job performance.
"Finally I told him to just get to the point and he said, 'I'm going to have to find a new office manager.'"
Cheryl walked out of the restaurant, went back to her office, left her keys on the desk and went home.
Cheryl was told she was being fired for not communicating problems with the new cash register system. All Menards stores were upgrading the system, and the Carmel store where she worked was the fifth to receive the new equipment.
"We'd had some problems, but I had reported them. In fact, I had given a representative from the main office copies of all my records the same morning."
As office manager, Cheryl was responsible for reporting all equipment problems and keeping a log of all repair calls. The switch to the new system had presented significant problems, but those problems hadn't affected sales.
Of 190 Menards stores, the Carmel store had fallen to 27th in sales immediately after the new register system was installed. But Cheryl maintains that the problems were addressed and the store quickly rebounded.
The week after it ranked 27th, the Carmel store placed fourth in sales overall, and the same week Cheryl was fired, she won a contest for the store's rank as first out of the 190 stores in a companywide competition that took into consideration the proper operation of registers and computer equipment.
"How can you be fired the same week you're ranked No. 1 in the company? It just doesn't make any sense."
Cheryl pauses to take a drink from her coffee cup.
"The thing is," she says after a moment, "I really liked my job. I had a lot of friends there. Up until the time I was terminated I liked my job and I was good at it."
The lunch at Heavenly Ham wasn't the last time Cheryl saw her former supervisor Craig Jarvis. When she filed for unemployment, Menards contested the claim and Cheryl was forced to attend a hearing in court.
As the plaintiff, Menards presented their case against Cheryl first and Jarvis testified that she had been fired for her poor record keeping and not reporting problems with the cash registers.
In response, Cheryl presented the judge with copies of all her documentation showing that she had, in fact, reported the problems.
"Craig [Jarvis] was shocked when he saw I had made copies of all my paperwork, but after he asked me to change the accident report, I made sure I had copies of everything."
After reviewing all of Cheryl's documentation, the judge ruled immediately in her favor.
For the first time since she began talking, Cheryl smiles. "It felt so good to prove my side of the story," she says.
But the small victory at the unemployment hearing wasn't enough to make up for the overall loss of her job and her family's income.
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.
Within ninety (90) days of the receipt of a complaint filed under this section, the commissioner shall notify the complainant in writing of his determination under this section.
"It's kind of degrading"
Losing her job at Menards after over 10 years was more than just a blow to Cheryl's ego. It also meant the loss of the family's source of income and their health insurance. Her husband Sergio had returned to college and Cheryl's paychecks supported them and their two children, 12-year-old Frankie and 5-year-old Lexi.
"I was the main provider for a long time after he went back to school. I had to work a lot of hours, but we got by. It was my job and it was our livelihood."
Since her termination, the family has barely been able to stay one step ahead of the bill collectors. Cheryl's unemployment has run out. Sergio is working part-time and trying to stay in school. Due to the astronomical expense of COBRA, the two of them have no health insurance, and Medicaid covers Frankie and Lexi.
"It's hard for us to go from making good money, getting from paycheck to paycheck, it was hard but we were doing it. And to go from that, from taking care of my family to going on assistance ..."
Cheryl pauses and then adds softly, "It's kind of degrading."
While her family struggled financially, Cheryl remained optimistic. Indiana law prohibits an employer from firing or discriminating against any employee for reporting Occupational Health and Safety violations and Cheryl knew she had a strong case for wrongful termination.
The Indiana Department of Labor agreed.
After she was fired, Cheryl contacted the OSHA Division of the Department of Labor and explained her situation. She was told to write a letter detailing what had happened, which she wrote and faxed the same day.
Cheryl filed her complaint on April 27 and her case was assigned to investigator Carmen Varela. But for weeks afterwards, Cheryl was unable to reach Varela.
"I'd call and call, and they'd say, 'Oh, Carmen's out sick,' or, 'Oh, there was a death in her family.' They said they had my complaint, but Carmen was out of the office."
Finally, on May 24, Cheryl's case was reassigned to investigator Jim Casey.
"He was absolutely wonderful," Cheryl says. "The day after he got my complaint he came to the house and talked to us. A few days later he went to Menards and started asking questions. For him, it was just meeting after meeting, but he kept me informed the whole time."
As part of his investigation, Casey sat down with Menards attorneys and employees on several occasions. In his written statement to the investigator, Jarvis claimed that he didn't know Cheryl had made a complaint to OSHA because the mail did not arrive that day until after she was fired. Her signature on the certified letter receipt disproved his version of the facts.
When Jarvis then claimed that she had not given him the letter, that he had found it after she left, Casey requested store surveillance tapes that would reveal the truth.
Though company policy requires stores to keep the videos on hand for several months, Menards initially claimed the tapes from the day Cheryl was fired had been misplaced and then later said they had been destroyed.
When a subpoena signed by Gov. Frank O'Bannon was issued for the tapes, Menards attorneys offered to settle the case.
"Around the first of August, Jim called and told me Menards was offering me $5,000 to drop my complaint. I asked him what my options were and he told me I could take the money, or he could recommend my case to the Attorney General's Office for litigation.
"More than once, Jim told me my case was one of the strongest he'd ever worked on. And when I said 'no way' to the $5,000, he said he was glad. He believed mine was a case they could win."
A few days later, Cheryl received a letter from the Indiana Department of Labor saying her case had been forwarded to the attorney general recommending litigation against Menards for her wrongful termination.
According to Department of Labor Director Tim Crouse, Cheryl'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."
Up until this point, Cheryl's case had proceeded in accordance with Indiana's Whistleblower Law (Indiana Statute 22-8-1.1-38.1.). She had filed her claim within the prescribed 30-day period, the claim had been investigated by the Department of Labor and the investigator determined that Menards had violated state law.
More than 100 days after being fired, Cheryl had reason to believe that justice would prevail. "It felt good to know that I wasn't going to be the one punished."
"They fired me for trying to protect people"
As August became September and September became October, Cheryl grew impatient and concerned. She'd heard nothing from either the Department of Labor or the Attorney General's Office since receiving the letter dated Aug. 13 recommending litigation.
Finally, on Oct. 5, she received the news: The Attorney General's Office had declined to accept her case.
"I hadn't heard a word," Cheryl says. "No one had called. No one from the Attorney General's Office ever contacted me. And then Tim Crouse called and said they weren't going to take it. He said they thought I should take Menards' new offer of $9,000. I kept asking why, why weren't they going to litigate? But he didn't have an answer. He just told me I should take the money."
Cheryl shakes her head. Her voice has risen, and she is careful not to draw the attention of her daughter who is playing with a friend in the next room.
"It wasn't ever about the money. It was about the principle. Menards had done something wrong - and I don't just mean they fired me. They fired me for trying to protect people."
A few days later, Cheryl wrote a letter directly to Attorney General Steve Carter and says she literally begged for her case to be reconsidered.
Four weeks passed, and she heard nothing in reply.
"I couldn't believe it," she 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."
In early November, Cheryl finally received her first contact from the attorney general in the form of a letter from Deputy Attorney General Richard Bramer dated the day after the election.
Though they offered no explanation or rationale, the decision remained the same. The Attorney General's Office was declining to litigate her case and recommending she take the settlement offered by Menards.
When she dialed the telephone number on the letterhead, Cheryl was disappointed by Bramer's response. "He didn't even know the particulars of my case. He wouldn't give me a reason why they wouldn't take it. All he could say was that the Department of Labor was his client, not me, and I would have to direct my questions to them."
And on Nov. 23, when Cheryl and her husband Sergio were finally granted a meeting with the deputy attorney general, Cheryl was given a two-page settlement agreement and strongly urged to sign it.
The agreement acknowledged no wrong-doing on the part of Menards and included several paragraphs of dense legalese that neither Cheryl nor Sergio understood. "Every time I asked a question, or asked for clarification, they said they couldn't offer legal advice," Cheryl claims.
Though they would not provide a formal reason why her case didn't warrant litigation, citing attorney-client privilege, at least one reason was offered - a reason Cheryl found difficult to believe.
"We followed procedure"
The same law that prohibits an employer from firing an employee for blowing the whistle on misdeeds also requires that an action must be filed in circuit court within 120 days of the original complaint.
The clock had begun ticking on Cheryl's case the first day she contacted the Department of Labor and included the nearly four weeks of inactivity due to investigator Carmen Varela's absence and inattention.
As a result, Cheryl was told that the Attorney General's Office didn't have time to file the case. They had received it too close to the deadline.
It's unclear exactly how much time the Attorney General's Office had to review Cheryl's case.
When first questioned, Press Secretary Staci Schneider stated that the recommendation from the Department of Labor was received one day before the deadline, a claim Director Crouse flatly denies: "That's simply not true. I walked it over there myself. I watched them put a date stamp on it. There were 10 days left before the deadline expired. All I can say is we followed procedure; we submitted our case in a timely manner."
After further inquiry, Schneider later admitted that the case was submitted for review a week before the deadline, but she maintained that there was still not enough time for the case to be pursued: "Our attorneys look at several factors when deciding whether or not to litigate. It's their reputation on the line, and they have to know the case will prevail in court. They also have to look at the broader implications of the case for the entire state of Indiana.
"Another thing we look at," Schneider continued, "is whether or not there are any outstanding violations the company has refused to pay. In this case, OSHA fined Menards $4,500 and they paid it. There are no outstanding violations for our attorneys to pursue."
Cheryl's anger over this last claim is unrestrained. "Because they paid the fine for the violation I reported, they're off the hook? The state gets its money and that's the end of it?" she asks, incredulous. "Meanwhile, the fact that I lost my job for reporting that violation just doesn't matter to them."
But the attorney general has other reasons as well.
According to Schneider, the investigation conducted by Casey and the Department of Labor was not sufficient to take the case forward. "The bottom line is that our attorneys didn't find enough evidence to proceed. We also have to have time to conduct our own investigation, and in this case there just wasn't enough time to do that."
"All I can say," the Department of Labor's Crouse says, "is we conducted a thorough investigation. We looked at all the facts. We felt the case had merit and we recommended it for litigation. After that, it's out of our hands."
And while blame bounces between the two bureaucracies and both offices maintain they have done their jobs, Cheryl remains without employment and without answers or compensation she finds satisfactory.
"There's nothing you can do about it"
When Cheryl and her husband Sergio left the meeting with the Attorney General's Office in late November, Deputy Attorney General Bramer agreed to go back to Menards and negotiate on Cheryl's behalf one more time.
In the current agreement, Cheryl is barred from trespassing on any Menards property. She is also under a non-compete clause that prevents her from seeking employment with any of Menards' competitors. Additionally, the $9,000 Menards has offered is subject to standard payroll tax, netting her a little over $5,000.
She has asked for the trespassing and non-compete clauses to be removed, and for either no payroll tax deductions or an amount of money that will net her closer to $9,000.
"At one point during the meeting, I asked if they could get me my old job back; that's what the law says I'm entitled to, but they just laughed," she says without a trace of humor.
As she finishes the long story of the last seven months, Cheryl leans back in her chair. There is more disbelief than anger in her voice, more sadness than bitterness.
"You know, as a mother you work so hard to teach your kids the difference between right and wrong. 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."
'Juarez v. Menard, Inc.'
On Dec. 1, 2003, lawyers for Maria Juarez argued that she was entitled to both compensatory and punitive damages as a result of injuries sustained while shopping at Menards in Schereville, Ind.
According to her testimony, on Jan. 19, 2002, two Menards employees were stocking doors on a high shelf when one fell, hitting Juarez and breaking four vertebrae in her back, causing head injuries, blurred vision and permanent back and neck injuries.
Between June 28, 1997, and Jan. 19, 2002, merchandise fell and injured customers in this particular Menards store on 16 separate occasions, and Juarez claimed that because Menards knew of the risks of falling merchandise but consciously disregarded those risks, she was entitled not only to compensatory damages, but to punitive damages as well.
Though the jury awarded Juarez $385,000 in compensatory damages, the district courts summary judgment determined that she was not entitled to punitive damages because although Menards' failure to protect customers from falling merchandise was, as Menards admitted, negligent, it did not constitute the type of willful and wanton or quasi-criminal conduct for which punitive damages can be awarded.
Indiana law requires that punitive damages only be accessed in cases where the plaintiff can prove by clear and compelling evidence that the defendant acted in conscious and intentional misconduct with knowledge that an injury could result. Mistakes of fact, honest errors of judgment, overzealousness, mere negligence and human failing are not sufficient.
On April 26, 11 days after Cheryl Vara was fired from Menards, Judge Rudy Lozano upheld the earlier court's decision and denied Maria Juarez's appeal, citing insufficient evidence that Menards knowingly and purposefully compromised the safety of their employees and customers. - LM