Henry v MOA: Before Defense Began, They Moved to Dismiss Case

Here are my rough notes.  You can see how rough.    But there was only one person talking - no question and answer.  I'll post them on the theory that this seems to go into what the MOA thinks the plaintiff has to prove and why they failed to do so.  Proceed with caution.  I don't have time over lunch to check too closely.

Sean Halloran is on the defense team with Doug Parker.  His speaking speed is between Parker's and Simonian's


Mr. Halloran, what are your plans?  Rule 50A  matter of law, judgement, no evidentiary basis for overturning termination of Henry.  No evidence of retaliation.  Conceded behavior.  Cases we can point to   listing……  Court early granted summary judgment on causation.  Plaintiff’s simply hasn’t met his burden to production of evidence at this case.
Events - move of Henry to lab, no evidence at all for elicit or retaliatory reasons.  No evidence related to opposing JW separation or EEOC plans.  Hasn’t been done.
Brown investigation, no evidence it’s pretext for retaliation.  Vikalis?  ???  no indication motivated to do that except to protect MOA.  Pointed to Carson Mc timeline - only evidence why created - Mew wanted it for briefing for Murkowski and Parnell.   Had nothing to do with opposing JW discrimination or filing second EEOC invest.
Meehan investigation   comment Henry destroyed more careers than anyone else.  Not related to anything they raised, but evidence the comment is true.  When arbitrating desire to access to witness statements in non- sustained complaints.  Union testimony, We called it Henry policy that Henry for represented employees.  No evidence had to do with JW or EEOC.  Vandegriff’s ref to toxic employees.  He attended a course called toxic employees and what to do, he just attended it and saw it related to Henry and set up buyout agreement.  This never happened.  Never approached him with such a proposal.  No evidence he even knew about this and no connection to his protected activities.  Moved in Dec 2014 - agreed it was positive move.  FB funeral investigation because he was badmouthing fellow officer, no evidence it had anything to EEOC and JW, it was not sustained, can’t be seen as retaliatory act.  Trying to reach out to him and make it everyone can get along, opposite of retaliation.
ASD training Oct 2013 - splog  common at APD.  Mr. Henry’s thin skin.  Even is that he was openly critical of Chief and SGT’s in front of public, he apology and no adverse employment action or retaliation.  After Redick through Henry under the bus, if he knew of knowing that JW wasn’t fit which he admitted.  You have to follow that up, did anyone else know about it.  Natural he called it up - didn’t tell JW anything because he knew.  So they interviewed Mr. H, no complaint, didn’t do anything, that was the end of it.  All the instances they talked about, he settled all of his claims.  All those, even if saying there’s evidence, which I don’t think you can, they are remote from his losing his job.  Can’t have it the far away, case law says needs to be closer.  No nexus.  Causation is standard.  Plaintiff has to prove that the activity caused his termination.  Citing court case   Mirage Casino Hotel example  required proof.  Here we have no evidence that Ms Usera or Vikalis had any improper motivation or pretexted.  Mr. Henry has admitted info given to Rick Brown not ????  Given facts for his being evasive or ??  - Henry has testified he was a political scapegoat, that negates the notion that he would have been terminated except for protected atiity.   Or that Hebee did it because he had affair with Henry’s wife  …… Has to prove… Decision was not actually independent because biased employee influenced.  Blamed Hebee, but he left APD in ?? 2014.  No evidence he was there trying to influence them.  Nor was Ross Plummer around to influence.  Mr. Fanning may have been biased against JW, but nothing that he’s biased against Henry.  Without that you can’t say he caused wrongful termination about Usera or Vikalis.  They had Brown Report, but nothing about biased.  Brown had no bias or did anything but act as impartial third party and no reason to be disenguous.  Jack Carson unionized employee, no authority in APD.  Asserted running a side investigation into wife’s alleged affairs.  Has nothing to do with EEOC or JW in this case.  Seth McMillan, not one shred of evidence he did anything improperlt.  He prepared a timeline with Carson.  No evidence he tried to influence decision maker.  With regard to Keven Vandegriff.  Testimony was only witness at EEOC.  Argument that he again targeting him from 4 years before.  There was nothing for him to retaliate that long ago.  Two IA investigations where he interviewed people.  BlaireChristiansen is unethical, even if we credit that, no evidence had any reason to go after Henry.  Mew has already been ?? No evidence he conducted evidence, he did anything to push Henry’s investigation.  The opposite is that Mew should have investigated according tot he Brown Report.  Decision Makers were Usera and Vikaiis and no evidence about their bias or knowledge of bias on part of Rick Brown or anyone else.  Shielded by Brown investigation, no indication any knowledge of investigation - brought in after investigation complete.  No temporal connection between protected activity and complaint filed.  2010  standing up for JW.  Aug 2013 made complaint, but termination didn’t occur until April 2015.  Anything more than 4 months between protected activity and adverse action is insufficient.  Your case 9 months is too remote.  Another case said 10 months is too remote.  ASD case said 5 months is too remote.  Brown brought in to review incident big news event.  People looked at timeline and realized issues that needed to be investigated.  Made findings of a couple of proper disclosures and that he lied to him.  He was evasive, not being candid in answers.  Those alone grounds for termination.  Nothing to suggest he didn’t lie , because Henry admitted he didn’t tell the truth and those are grounds for termination.  ….
Spent inordinate time on JW and may have show direct evidence that JW was discriminated against or retaliated against, but nothing on Henry.  Motivating factor analysis would be appropriate in this case.
Turn to good faith and fair dealing - about exhausting remedies.  Henry acknowledged he did not exhaust his admin remedies. Once he took the grievance arbitration process he had to complete it - went to ER appealed that decision, Mayor denied that appeal,  Code, very clear if you don’t take it to binding arbitration the issue is over and can’t be taken.  Even if not, simply hasn’t done it.  Subjective and Objective component.  Subjective component, speculation is insufficient.  Focus on employers true motive, not employees feeling.  Even if Mr Brown, have to show he acted in bad faith.  Simply nothing in the record that Brown or Usera or Vikalis acted in bad faith.
Objective focuses on employee conduct.  Have to treat like employees alike and can’t violate constitutional rights of employees.  Employer can fire if believes termination ….. statements to Brown untruthful.  Most of this presented for last 2+ weeks, all allowed in as background evidence - predates 2013 are barred because settled and can’t be brought in.  Anything predates May 6 2013 cannot be basis for liability.  1997 case.
Second charge with EEOC file , can only reach back 180 days.  Feb 13, 2013.  Background facts are not actionable claims.
With respect to damages, there is no evidence of damages.  Brought expert in to testify.  Made a point of resting case without any evidence of damages.  Nothing he made at MOA or what makes now.  Huge body of law, damages can not be based on conjecture, and that’s what he’s going to ask the jury to do.  No speculative basis for awarding damages.  No testimony or documentation showing damages.  Expert cannot be relied on for the data ????

Expert testimony useful , but not substitute for ??? Williams v Illinois - court said, if prosecution cannot muster independent witness of facts, expert witness cannot be relied on.  He said not considering the facts, only assumptions.  There are no facts.

Turner v Bulington Northern - Expert opinion based on hearsay doesn’t make the underlying hearsay admittable.  No basis for damages.  Even if he met burden of proof.

10:48
J:  any opposition
Just concerned about lunch.  Ten minute recess, advise jury another 30 minutes [they've been out of the court through all this]
P:  Memo from Lt

And then Meg Simonian countered.


11:01
S:  substantial evidence from to 2014 same without failing Steve Hebee, Christianson, the Mew, DC Smith, then EEOC complaint, until he was fired had a pending EEOC complaint except for two week June 2013 and 2014.  Had pending complaint the entire time.  That of itself a protected activity.  Ample evidence that Mew, MOA attorney, Command staff were highly motivated for him to get rid of EEOC complaint.  It weighed into decisions on Herny all along.  A disgruntled employee and problematic and wouldn’t come back into the fold by settling the EEOC complaint.
VAndegriff hid from him that complaint held off until EEOC settled.  Clear that Henry was the target.  You said this is a state of mind cases.  Those are issues solely province of jury.
None stop until Rick Brown hired.  Every month something new came up.  Same people and same movite.  Get him to dismiss EEOC.  That’s the protected activity.
Saying findings no big deal, don’t matter.  That’s not what the law and EEOC say about retaliation.  Remoing from others.  Removed to SRO and Special victims, outside of APD.  Trying to avoid, by saying he settled the claims based on the agreement and MOA violated even point, except one.
Adverse action, disparaging comments about employee to other, we have.  Reprimand,  Scrutinizing work more closely, action against coworkers, isolation, mis applying policy, changing the policy, not giving notice, or … Treating other employees differently - hiring consultant to get rid of him  said it had never been tried before.  Investigation as result of complaint by Carson that was solicited.  Had plan to get Carson to make complaint.  National Guard, …..????, Independent adverse employment decision not independent because of bias of support.  Even if manager is not ultimate decision maker, that employees motive ……
We know that Carson complaint was solicited by Hebee, doesn’t matter he was gone, he set it into motion.  Then rallied chief to do investigation.  Even though gone, the first person interviewed.  Soliciting complaint, MOA attorney misled EEOC, Mew not completely accurate and evidence itself not accurate.  Concerted effort that Marilyn Stewart investigation wrong, but actively mislead the EEOC.  Misleading letter was actually known and purposely hidden.  Smith admitted it and said it shouldn’t be out until settled.
Lt Henry did not lie to Rick Brown or lied to him.  He said he knew of two meetings with Katkus two years before, he mixed the dates up.  FBI agent testified and SGT Smith assigned says it was wrong…..
Mr. Halloran wants court  - state and fed - one is caution the other motivating factor.  We see them claim that they wanted him back in the fold if he drop the EEOC claim.
Direct support to case law - causation.  Discriminatory motivation more likely to be show indirectly.  About Rick Brown’s report - shown repeatedly their explanation.  Relied on Carson and McMillan and ignored everything else that contradicted them .  Policy violation unduly impacted investigation - can’t show that because can’t show there was an investigation.  Blaylock was released before the meeting.  Lots of evidence that Rick Brown targeted Henry and the direction came directly from Christiansen.  Mr. Brown said that in his deposition, spoon feeding and evidence to make connection from Christiansen.  People they should have interviewed they didn’t - Anne Kirklund.  Letter written back by FBI made it clear sharing the info was appropriate.  Left out of report or ignored.  Focused on Carson and McMillan.  Would be unusual to tell General about ongoing investigation - said not at all we do it over and over.
Idea of no evidence of bias, Report so slanted at target, not supported .
Fanning, subject of Meehan, end Aug 2014,  went to Blair Christianson and said you need to investigate Henry.  Finding that he had belittled Henry, because of his EEOC complaints.  Motive of Kevin Vandegrirr - repeatedly violated policy, conversations with Carson, recording, involved with EEOC investigation and settlement.  He was a claimant and important witness, things do not do usually.  Didn’t provide notice to employee.  Followed chief’s instructions not to tell Henry..  glossed over Carson,  suggested Henry… lost it here

Specifically ??acing what said to OEO without even know anything about what was asked what was said.  Destroying DC Smith’s notes.  Not recording conversations.  Recording and deleting recording of Haynes.  Without asking anyone.  Plenty of evidence 0- Hebbee and Christiansen.  She represented Vandegriff and Dept Chief Fanning  And Mew willing to keep findings from Henry.  Court never held decision to come to court rather than finish arbitration…..
If jury finds unfairly fired, they can find for the plaintiff.  To say there is no evidence is false description of what we did the last two weeks.
Idea that expert opinion thrown out unless we introduce every pay stub.  Never heard of case thrown out …. Cites cases.  Experts opinion based on facts and data, even hearsay, is admissible.  Rule assumes experts can rely on the facts.  Didn’t know how much Tony making or made, he was asked and said.  This is a hyper-technical argument about damages.  If court had time we’d call Henry and introduce them piece by piece.
11:27

J:  I don’t know how jury is going to resolve factual issues.  Plaintiff has submitted sufficient evidence to dismiss the motion.  Motion dismissed

Then Seth McMillan came on as the first witness for the defense.  there was a heated debate over admission of some evidence.  The mild mannered Doug Parker asked very loudly "How can it be hearsay if it's something he said himself?"

[I switched to correct while typing.  So spelling may be better, but not sure it changed things to the words I meant.]

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