Thursday, November 08, 2018

Henry v MOA: Plaintiff Closing Part 1

The court gallery had 33 people this morning.  Probably the highest number of the trial, or at least since I've been here.

Meg Simonian presented the closing for Henry.  [rough notes warning:  These are what I could type as she talked.  She was slower today so I could keep up a little better.  But this is to give you a sense of the closing statement.  It's relatively close, there here and there my mind/finger connection stopped and I missed a bit. Apologies. I did spell check and made additions or changes only when I was sure.] [After going through these, it's pretty basic.  Doesn't really catch the sense of the comments.  Sorry, it's the best I can offer you.]

Smonian split her statement.  This is the first part.  Then after Doug Parker did his closing statement, Simonian got 30 more minutes.  I'll try to put that up later.

Closing statement - Plaintiff

S:  Said [at opening?], case is simple, but complicated.  What we teach our kids to do.  Stand up against bullies.  When you came here a month ago, you showed up, in common, away from family, classroom. . .  For that sacrifice, we, society, give you tremendous power.  Judge said, Thomas Jefferson said jury is the power of our democracy.  Power to hold the powerful accountable, to give Henry his reputation back.

After Jason Whetsell (JW) diagnosed with MS,  Fanning, Vandegriff, disciplined him. Tony got upset and was removed from SAU, put in closet.  Restricted from communication, moved to Kris Miller’s command.  Restricting what he could do, gag order for 6 months.  After all that Henry didn’t file complaint, kept head down, but when he found they were secretly ??holding?? his file.   The  OEO, found against the MOA.
Discrimination claims here,    you aren’t making a decision about JW, it’s just background info, into their motive, bias, what they did to Henry.
Clear that Tony was retaliated against for standing up for JW.  OEO findings went into Mew’s safe, no one, not even Tony, could see them.  They tried to convince you Marilyn Stewart wasn’t supposed to do investigations and make findings. Mayor Sullivan sent memo saying she should.  Do that.     Didn’t dispute the policy.  They focused on part of role of solving informal complaints and ignored the part that gave her ??unmated??? power to resolve complaints.
Mayor Sullivan sent memo telling everyone she had the power.  OEO’s role to do it.  Did bring in 2006 memo, but that was different administration.  When OEO doesn’t do something they shouldn’t do, they write a memo.  Mr. Wheeler’s own statement - statutes and policies said, she had the power.
Sullivan - wrote her a glowing recommendation - though the others trashed her.

January after 0E0 findings, Henry moved to School Resources.  Others said moved too, but Henry more than most.  Before moved twice in 4 years.  After, moved 6x if ??? months.

[They wanted to?] Undermine OEO findings, find someone that will say JW was sick.  They found Jack Carson.  Kept that complaint secret, after EEOC complaint.  That policy says you don’t get to try to get someone to settle on own.  All sorts of pressure to end EEOC complaint.  No one is supposed to got outside MOA to challenge the power structure.  They asked for her complete investigation, but never got it.  Stewart’s finding.

Settlement June 2006, 2 days later started JW coverup investigation.
Settlement was Henry’s attempt to get them to stop, get this behind us and move forward.  Stop moving him around, and move stuff from his IA file.
Retaliation began again.  Never gave OEO finding to Henry or EEOC.  Kept moving him, all to places off campus.  Out of the building.  There are good reasons for some to be off campus - sex assault unit, schools, but he wasn’t in schools, he was in ASD office.
Message, if you mess with us, we move you out
Instruction 28 - Jury instructions - Background info OEO
Dep Chief Steve Smith said, all knew Henry was target and they kept him the target.
Filed second EEOC right away because they knew they weren’t going to follow up.  The training they were supposed to do, didn’t happen until we filed lawsuit.
Spent time on EEOC complaint, because defense ???
Vandegriff said not to put OEO in - violating, treating people differently.  Sure, chief ordered him, but he was willing.  Wrote exec summary shows charges against Henry not substantiated.
Covered up info on Whetsell to make it look like Henry just didn’t understand.
After finding wasn’t substantiated.
Use of Force meeting - right after that.  Expresses displeasure.  Chief doesn’t see problem, but Vandegriff does.  Fanning ready to fire him.  Chief says no big deal.
Gave Hebbe, Vandegriff, Fanning - gave them wrong findings and told them to undermine findings. ???
SGT, Carson comes up with next complaint, bombshell guard allegations
Nov.  Carson interviewed with Fanning by FBI
Vandergriff goes on junket, how to fire problem police - how to get rid of him.  May 2014
Then Fairbanks funeral.  Hebee gone.  Carson said at funeral made vile comments about Vandegriff, no one else heard, open investigation,  un substantiated.
EEOC response to matter  - exec summary by Vandegriff and ??? Nothing to look at here, move on.
Move him to Special Victims Unit?  Why would they send him there if Carson’s charge had any merit?   Moved without consultation.  Mew asks him to drop EEOC complaint, in the same email, violating policy to do that, here (jury?) instruction, making management, shouldn’t substitute your opinion for Management.
Instruction 19  - you can disagree if you find these moves are part of retaliations
After funeral, they change policy. Won’t let Henry look at IA file.  Won’t let him see Carson complaint.
Henry filed another complaint (about being kept out of IA files on himself) because didn’t want to be treated differently others .  Big move to stop him.
Meeting about Tony Henry policy, no doubt he was targeted
Henry filed complaint about DC Fanning, DC Fanning said some really bad things about you.  Didn’t wait a year.  As soon as he found out he filed . . ??.  Meehan had to investigate because “IA tainted”   Fanning asked. But Vandegriff to be his witness.  Told Investigator he’s a malcontent, litigious, made complaint outside investigator.
Aug more communication Christianson and EEOC.  After complaint against Fanning substantiated, Vandegriff goes to City Hall.  Nothing different with timelines different from what Carson had a year before.  Only difference DC Fanning disciplined for dissing Henry.  DC Fanning and Vandegriff trying to get him back into the hold ???? for covering up Drug Investigation.
Instruction 16.
No dispute about protected complaint.
Jury Instruction 17 two ways:  More likely than not real reason fact he had participated in those protected activities.  More than 50%  Two ways
 You decide if Rick Brown report was the real reason
Or because of the protected activity - wouldn’t have been terminated if he didn’t file the two EEOC accounts.
Either or, it was #2; or #2 was part of the reason.
Rick Brown hired.  Makes money working for MOA.
Judge found Henry the policy change was wrong and he should have access to the file.
Jury Instruction 18:  Even if reasonable action, if protected activity set in motion or manipulated, or employee’s bias may be attributed to the admins who  - if you find that F V and BC had bias due to EEOC.  That intent, in bad faith, is imputed on those who made the final decision.

Set in Motion
Hebbe and Carson come up with Accusation
Multiple Meetings over a year   -
 no documentation,
no attempt to verify
Myron Fanning to Blair Christiansen
Hire Rick Brown

Claim they wanted to find out what went wrong with National Guard, really goes to EEOC
Used Vandegriff to study Henry.  Everyone got timeline, but Tony Henry.  Everyone has access to police report but Henry.  When he found out something that didn’t match timeline, he just ??? away.
Parker didn’t call Bill Miller - he said it’s ok to talk to Katkus, we have agreement
Hazelaar said they talked to Katkus all the time .  These things not in Brown Report.
It’s a white wash.  Only way you’ll know is by looking at everything.  Destroyed recordings  - Steve Payne interview destroyed, why?   What did he say to Payne that Payne said "it blew my mind."  We don’t know, it’s destroyed.  Vandegriff also destroyed Steve Smith’s notes.  The meticulous note taker.
Didn’t record key interviews - ST (anon sexual assault victim) before . . .
Evidence misconstrued, destroyed, missing.
FBI saying of course we talked to Katkus, that doesn’t make it into the report
Christenson advised Vakalis to fire Henry.
Ms. Usera provided with 17 pages, didn’t look at attachments until afterward.  Didn’t say that in deposition, that was new.

Timelines important only documents that say what happened  No other documents of Carson investigation or use of Blaylock as a source.
First timeline Jack C initialed had things on that Carson said, he get taken out, and 2/26-3/10  added issue about steroids.  No one could explain.
What Brown did have, but ignored, were the 15-6 documents.  Blaylock was known before the June 3 meeting.  Blaylock didn’t say ordered??? not reported to APD.  Ordered to follow the chain command.  He said John Nieves did nothing wrong.  If anyone misleading at meeting it was Blaylock.  Shows got call from Gen K and called him back.  After he called Plummer and told him.  Told?? he said he didn’t remember.  Elaborate power point presentations.  No one said they were kept out of the loop.  Miller or Plummer didn’t say they would have stopped it if knew.
Police officers can’t lie.  Carson.  Objection.
J:  Allowed to argue evidence,  up to jury
S:  Evidence of police officers lying or violated policy.  None of them disciplined.  Carson gets promoted every time.  MOA says this is how to evaluate credibly.  Two people reports conflicting - determine if memory or other reasons, besides lying, may be those are the factors to consider.  Everyone had discrepancies.  Miller says fuzzy.  Only thing they agreed on, Kenneth Blaylock told not to ???
No one, not even Blaylock testified to that.  You make the allegations so horrible and bad, maybe people won’t see there’s no evidence.  Rape, teenage girls lured to parties.
Everyone on this table thinks sexual assault horrible and should be taken seriously.  Nothing at the JUNE 4 meeting about that.  Henry called in for assigning lower rank person to talk to higher rank.  Weaponizing sexual assault.  In the end there was only one person who didn’t want to report a crime.  Fanning.  Blaylock not credible.  Agent Kirkland said disgruntled employee put everything but kitchen sink into allegations.  Used sexual assault victims in fight against Katkus.

In hiring Rick Brown, that’s what they did.  Text messages and email.  So excited when they got evidence against Tony.  “good news!”  “Call you later”  I want to get you the beefed up findings.”  “I’ll get it cleaned up and get with your comments.  Make it smoking.”  He did, he delivered.  If about sexual assaults - but Blair C said don’t look there, keep focus on Henry.
Rick Brown said K’s laptop could be icing on the cake.  Vandegriff, I hope so. . .
Ignored findings that didn’t support their findings.  Even analysis because drug not supported.  Focus on sex, because when you say rape, people look closer.
No evidence of separate investigation.  None of them kicked out of NG by drugs.  Jane W who was hired by Katkus didn’t show anything about drugs.  Lots of bad behavior.  Only sexual assault was a women he had an affair with, who said not completely consensual.

Lt. McCoy.  Most likely - about ST - only person not reporting their finding.  Only victim Blaylock had..  Restricted report in March but had nothing to do with???  .  Rick Brown knew that but didn’t report it.  When he met with ST off the record said she spoke to McCoy and Blaylock.  Means she reported after disclosure.  Delayed reporting for other reasons.  Not the June 4 meeting.  Not what they wanted to hear.

Mia Carson.  Should be clear major drug deal at NG, everything to do with the guard.  Charges were there.  Even tho Rick Brown said weren’t.  “Quote on illegal activities in the report.”  Like Christiansen.  Stylistic changes Brown said of Christiansen.  You can see, it’s spoon fed.  You can see it here
 9:42am  - direction to make report - seems like they should have made a big finding - lying - Blair Christiansen advice why informant be bad - verbatim.
Jury Instruction 20 - good faith and fair dealing  - if you find they didn’t treat him fairly, then this would be a yes.
When they castigated him and publicly humiliated him.  In this court room justice is only about winning.  That’s all we can do.  Only way we can prove they’ve done something wrong.  And we did.  We had Dr Foster come and talk about damage calculations.  You’ll hear instructions about loss. Jury Instruction-30 includes Dr. F testimony, not some conjecture.
Instruction-31  tells you do simple arithmetic, pretty complicated.  Amount would have been earned if continued working at APD, subtracting what he earned elsewhere at comparable employment - working Iraq away from his wife 7 days a week, not comparable employment as APD - 1000 more hours.  What loss if he worked comparable work and hours.
You can figure out when he would have retired.  His wife ten years younger, if allowed to retire and rehire - Nancy Usera said no one had been denied [retire/rehire program].  Also asked if Foster - doesn’t want to keep working for 3 Canopy.  If you annualize any of these, ??% more.
Mr. Voth said no difference at 3 Canopy - none of the extra hours matter because he volunteered at APD.  Glossed over fact 3000 hours over ten years.  Not the same if he volunteered to help APD is not the same as required work.
I-33 you may award fair, and any losses reasonable experience? In the future
I-34 - we bore proof of losses.  Because he didn’t ??? Failure to mitigate damages.  He didn’t relinquish police certificate, it wasn’t voluntary.  He lost it because APD fired him and so they took his certificate.  He may never get it back.  An exemplary officer lost it.
Finally you get to decide non-financial damages.  Didn’t get to sit through trial, not based on evidence.  Lies.  Two meetings, conflating two meetings together?  Seth M did get into trouble for running his mouth.  Henry told you that and others.  Brown didn’t mention that.
How do you compensate someone who was called liar, said covering illegal activity?  What motive would Tony have not to say anything about June 4 meeting?  He said I never told them about Blaylock because they knew about him.  I didn’t tell them about ??? Said in first and second interview.  He’s not a liar  You get to decide.
That, again is a very difficult thing to do.

You can get to an index of all posts on this trial at the Henry v MOA tab under the blog header at top.  Or click here. 

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