Publish to Newswire
Add an EventFrom the Open-Publishing Calendar
From the Open-Publishing Newswire
Indybay Feature
Stop Workplace Bullying-Speakout & Rally At SF City Hall For A Healthy Workplace
Workers rallied on Bullyfree Workplace Week at SF City Hall to demand an end to workplace bullying including racist attacks on workers in Northern California. There is an epidemic of workplace bullying in the United States destroying worker lives and harming their families. Government officials in San Francisco, the state and the US government are refusing to defend these workers and whistleblowers and in San Francisco this has cost the city over $40 million.
Stop Workplace Bullying-Speakout & Rally At SF City Hall For A Healthy Workplace
https://youtu.be/gRy7hkKolrU
On October 17, 2016 as part of Bullyfree Workplace Week, bay area workers spoke out about the epidemic of workplace bullying and how it is affecting them on the job. This has created a toxic workplace for many workers in San Francisco and throughout the United States.
The rally which took place in front of San Francisco City Hall included many CCSF workers who talked about the conditions at work and the refusal of management to rectify the systemic bullying going on. Workers also discussed racist incidents on the job and the role this playing in harassment and bullying. Also a statement was read by Federal OSHA investigator and lawyer Darrell Whitman who was investigating retaliation against whistleblowers at the Whistleblower Protection Program and he and other AFGE union members were bullied and fired for trying to do their jobs. He also tried to handle the cases of bullied Wells Fargo workers but the agency refused to investigate and defend Wells Fargo workers.
The event was endorsed by SEIU 1021 San Francisco COPE, Stop Work Place Bullying Group, United Public Workers For Action and Bullyfree Workplace.
For more information
http://www.stopworkplacebullyinggroup.org
http://www.bullyfreeworkplace.org
http://www.healthyworkplacebill.org
http://www.upwa.info
Production of Labor Video Project
http://www.laborvideo.org
https://youtu.be/gRy7hkKolrU
On October 17, 2016 as part of Bullyfree Workplace Week, bay area workers spoke out about the epidemic of workplace bullying and how it is affecting them on the job. This has created a toxic workplace for many workers in San Francisco and throughout the United States.
The rally which took place in front of San Francisco City Hall included many CCSF workers who talked about the conditions at work and the refusal of management to rectify the systemic bullying going on. Workers also discussed racist incidents on the job and the role this playing in harassment and bullying. Also a statement was read by Federal OSHA investigator and lawyer Darrell Whitman who was investigating retaliation against whistleblowers at the Whistleblower Protection Program and he and other AFGE union members were bullied and fired for trying to do their jobs. He also tried to handle the cases of bullied Wells Fargo workers but the agency refused to investigate and defend Wells Fargo workers.
The event was endorsed by SEIU 1021 San Francisco COPE, Stop Work Place Bullying Group, United Public Workers For Action and Bullyfree Workplace.
For more information
http://www.stopworkplacebullyinggroup.org
http://www.bullyfreeworkplace.org
http://www.healthyworkplacebill.org
http://www.upwa.info
Production of Labor Video Project
http://www.laborvideo.org
For more information:
https://youtu.be/gRy7hkKolrU
Add Your Comments
Comments
(Hide Comments)
Fired Federal OSHA Whistleblower Protection Program Investigator and Lawyer Darrell Whitman On Workplace Bullying
STATEMENT OF DARRELL WHITMAN
10/16/16
Bullying has become the scourge of the American workplace, not only in the private sector, but also for public employees. The costs of bullying are immeasurable in time and resources consumed in bullying and in workers attempts to protect themselves from bullying. But for public employees, the costs are greater and include loss services to their fellow American workers.
Ironically, employees in the U.S. Department of Labor, which is tasked with protecting and advancing worker’s interests, are among those in the federal government most subject to a hostile workplace and bullying. And among the worst agencies in the Department of Labor is the Occupational Safety and Health Administration, OSHA, which was created specifically to combat threats to workers where they work.
In 2009, the union steward assigned to work with OSHA Region IX here in San Francisco, was harassed, bullied, and eventually fired after she ask for accommodation for a serious health issue. When I assumed her job in 2011 as the OSHA union steward, I too was harassed, bullied, and eventually fired. But the crime was compounded when three other OSHA employees who stood up and reported the bullying to the national OSHA office were also harassed, bullied and eventually forced from their jobs in 2015. Ironically, we were all investigators in OSHA’s Whistleblower Protection Program, which is among the most important programs in the federal government that is tasked with protecting workers from workplace bullying.
Congress passes new laws almost every year aimed at protecting workers. Some are strong and some are weak, but passing laws is not enough. Laws must be enforced to have an effect, and when laws protecting workers are ignored, particularly by the federal government, it breeds a culture of corruption that encourages hostile workplaces and bullying everywhere. Then we all pay the price as the culture of corruption envelopes us, inspiring fears that deny rights and dignity to workers.
I am happy to report my local union stewards came to my assistance, and now the national American Federation of Government Employees, the union that represents all federal workers, is offering to lend a hand to push back against bullying. But even this faithful response is not enough. Only informed, organized, and focused workers, acting together, can turn the tide.
We must know our rights and insist that they be respected. We must organize our workplaces, and where they are already organized we must encourage our union leaders to be aggressive in representing us. We must talk to our families, friends and neighbors, explaining how our fight is their fight, whether or not they are organized. But most of all, we must demand that our political representative represent us, the broad community of American workers, and not pander to corporate interests that are daily attacking us.
In Solidarity,
Darrell Whitman
publicsafety4america [at] gmail.com
Former OSHA Lawyer & Investigator Darrell Whitman At Whistleblower Protection Program On Cal-OSHA and Federal OSHA: Whitman Ordered Not To Attend WorkSafe Meeting On Workplace Safety
STATEMENT OF DARRELL WHITMAN
10/5/16
publicsafety4america [at] gmail.com
Cal-OSHA and Federal OSHA
In January 2015, I was invited by WorkSafe, a California NGO promoting workplace safety, to speak at their Bay Area Conference. When Region IX OSHA became aware of this invitation, I was ordered not to attend, citing conflicts between federal OSHA and Cal-OSHA. If I had attended, I would have discussed the relationship between federal OSHA and Cal-OSHA, which includes:
1) Cal-OSHA operates under the authority of federal OSHA;
2) Cal-OSHA operates with substantial federal funding tied to its performance;
3) Cal-OSHA is required to conduct its Whistleblower Protection Program at a level that reflects the standards set by federal OSHA’s Whistleblower Protection Program;
4) Federal OSHA can process complaints if they are “dual filed”; and
5) Complainants can ask for a federal OSHA review if Cal-OSHA fails to conduct aproper investigation.
Relationship to State Plan States
General.
Section 18 of the Occupational Safety and Health Act of 1970, 29 U.S.C. §667, provides that any State, i.e., States as defined by 29 U.S.C. §652(7), that desires to assume responsibility for development and enforcement of occupational safety and health standards must submit to the Secretary of Labor a state plan for the development of such standards and their enforcement. Approval of a state plan under Section 18 does not affect the Secretary of Labor’s authority to investigate and enforce Section 11(c) of the Act in any state, although 29 CFR 1977.23 and 1902.4(c)(2)(v) require that each state plan include whistleblower protections that are as effective as OSHA’s Section 11(c). Therefore, in state plan states that cover the private sector, such employees may file occupational safety and health whistleblower complaints with federal OSHA, the state, or both.
State Plan State Coverage.
All state plans extend coverage, including occupational safety and health whistleblower protections, to non-federal public employees; and the majority of the state plans also extend this coverage to private-sector employees in the state. . .
Overview of the 11(c) Referral Policy.
The regulation at 29 CFR §1977.23 provides that OSHA may refer complaints of employees protected by state plans to the appropriate state agency. It is OSHA’s long-standing policy to refer all Section 11(c) complaints to the appropriate state plan for investigation; thus it is rarely the case that a complaint is investigated by both federal OSHA and a state plan. However, utilizing federal whistleblower protection enforcement authority in some unique situations is appropriate. Examples of such situations are summarized below:
1. Exemption to the Referral Policy. The RA may determine, based on monitoring findings or legislative or judicial actions, that a state plan cannot adequately enforce whistleblower protections or for some reason cannot provide protection. In such situations, the RA may elect to temporarily process private-sector Section 11(c) complaints from employees covered by the affected state in accordance with procedures in non-plan states.
2. Federal Review of a Properly Dually-Filed Complaint. If a complaint has been dually filed with federal OSHA and a state plan state, and meets specific criteria as outlined in this chapter, OSHA will review the complaint under the basic principles of its deferral criteria, set forth in 29 CFR §1977.18(c).
. . .
Procedures for Processing Dually Filed 11(c) Complaints
3. Complainant’s Request for Federal Review. If a complainant requests federal review of a dually filed complaint under Section 11(c) (“a dually filed complaint”) after receiving a state determination, it will be evaluated to determine whether it has been properly dually filed.
Proper Dual Filing. OSHA will deem a complaint to be a properly dually filed only if it meets the following criteria:
a. Complainant filed the complaint with federal OSHA in a timely manner (i.e., within 30 days or within the time allowed by extenuating circumstances, see Chapter 2); and
b. A final administrative determination has been made by the State; and
c. Complainant makes a request for federal review of the complaint to the Regional Office, in writing, that is postmarked within 15 calendar days of receiving the state’s determination letter; and
d. Complainant and Respondent would be covered under Section 11(c). (See Paragraph III.)
. . .
Complaints About State Program Administration (CASPAs)
4. OSHA state plan monitoring policies and procedures provide that anyone alleging inadequacies or other problems in the administration of a state’s program may file a Complaint About State Program Administration (CASPA) with the appropriate RA. (See: 29 CFR 1954.20; CSP 01-00-002/STP 2-0.22B, Chap. 11.)
A CASPA is an oral or written complaint about some aspect of the operation or administration of a state plan made to OSHA by any person or group. The CASPA process provides a mechanism for employers, employees, and the public to notify federal OSHA of specific issues, systemic problems, or concerns about a state program. A CASPA may reflect a generic criticism of the state program administration or it may relate to a specific investigation.
Because properly dually-filed 11(c) complaints undergo federal review under the Section 11(c) procedures outlined in Paragraph E of this chapter, no duplicative CASPA investigation is required for such complaints. Complaints about the handling of state whistleblower investigation from non-federal public sector employees, and from private-sector employees who have not properly dually-filed their complaint, will be considered under CASPA procedures.
Upon receipt of a CASPA complaint relating to a state’s handling of a whistleblower case, OSHA at the regional level will review the state’s investigative file and conduct other investigation as necessary to determine if the state’s investigation was adequate and that the determination was supported by appropriate available evidence. A review of the state’s file will be completed to determine if the investigation met the basic requirements outlined in the policies and procedures of the Whistleblower Protection Program.
A CASPA investigation of a whistleblower complaint may result in recommendations with regard to specific findings in the case as well as future state investigations techniques, policies and procedures. A review under CASPA procedures is not an appeal and a review under CASPA procedures will not be reviewed by the Appeals Committee; however, it should always be possible to reopen a discrimination case for corrective action. If the Region finds that the outcome in a specific state whistleblower investigation is not appropriate (i.e., final state action is contrary to federal practice and is less protective than if investigated federally; does not follow state policies and procedures; relied on state policies and procedures that are not at least as effective as OSHA’s policies and procedures), the Region should require the state to take appropriate action to reopen the case or in some manner correct the outcome, whenever possible, as well as make procedural changes to prevent recurrence.
STATEMENT OF DARRELL WHITMAN
10/16/16
Bullying has become the scourge of the American workplace, not only in the private sector, but also for public employees. The costs of bullying are immeasurable in time and resources consumed in bullying and in workers attempts to protect themselves from bullying. But for public employees, the costs are greater and include loss services to their fellow American workers.
Ironically, employees in the U.S. Department of Labor, which is tasked with protecting and advancing worker’s interests, are among those in the federal government most subject to a hostile workplace and bullying. And among the worst agencies in the Department of Labor is the Occupational Safety and Health Administration, OSHA, which was created specifically to combat threats to workers where they work.
In 2009, the union steward assigned to work with OSHA Region IX here in San Francisco, was harassed, bullied, and eventually fired after she ask for accommodation for a serious health issue. When I assumed her job in 2011 as the OSHA union steward, I too was harassed, bullied, and eventually fired. But the crime was compounded when three other OSHA employees who stood up and reported the bullying to the national OSHA office were also harassed, bullied and eventually forced from their jobs in 2015. Ironically, we were all investigators in OSHA’s Whistleblower Protection Program, which is among the most important programs in the federal government that is tasked with protecting workers from workplace bullying.
Congress passes new laws almost every year aimed at protecting workers. Some are strong and some are weak, but passing laws is not enough. Laws must be enforced to have an effect, and when laws protecting workers are ignored, particularly by the federal government, it breeds a culture of corruption that encourages hostile workplaces and bullying everywhere. Then we all pay the price as the culture of corruption envelopes us, inspiring fears that deny rights and dignity to workers.
I am happy to report my local union stewards came to my assistance, and now the national American Federation of Government Employees, the union that represents all federal workers, is offering to lend a hand to push back against bullying. But even this faithful response is not enough. Only informed, organized, and focused workers, acting together, can turn the tide.
We must know our rights and insist that they be respected. We must organize our workplaces, and where they are already organized we must encourage our union leaders to be aggressive in representing us. We must talk to our families, friends and neighbors, explaining how our fight is their fight, whether or not they are organized. But most of all, we must demand that our political representative represent us, the broad community of American workers, and not pander to corporate interests that are daily attacking us.
In Solidarity,
Darrell Whitman
publicsafety4america [at] gmail.com
Former OSHA Lawyer & Investigator Darrell Whitman At Whistleblower Protection Program On Cal-OSHA and Federal OSHA: Whitman Ordered Not To Attend WorkSafe Meeting On Workplace Safety
STATEMENT OF DARRELL WHITMAN
10/5/16
publicsafety4america [at] gmail.com
Cal-OSHA and Federal OSHA
In January 2015, I was invited by WorkSafe, a California NGO promoting workplace safety, to speak at their Bay Area Conference. When Region IX OSHA became aware of this invitation, I was ordered not to attend, citing conflicts between federal OSHA and Cal-OSHA. If I had attended, I would have discussed the relationship between federal OSHA and Cal-OSHA, which includes:
1) Cal-OSHA operates under the authority of federal OSHA;
2) Cal-OSHA operates with substantial federal funding tied to its performance;
3) Cal-OSHA is required to conduct its Whistleblower Protection Program at a level that reflects the standards set by federal OSHA’s Whistleblower Protection Program;
4) Federal OSHA can process complaints if they are “dual filed”; and
5) Complainants can ask for a federal OSHA review if Cal-OSHA fails to conduct aproper investigation.
Relationship to State Plan States
General.
Section 18 of the Occupational Safety and Health Act of 1970, 29 U.S.C. §667, provides that any State, i.e., States as defined by 29 U.S.C. §652(7), that desires to assume responsibility for development and enforcement of occupational safety and health standards must submit to the Secretary of Labor a state plan for the development of such standards and their enforcement. Approval of a state plan under Section 18 does not affect the Secretary of Labor’s authority to investigate and enforce Section 11(c) of the Act in any state, although 29 CFR 1977.23 and 1902.4(c)(2)(v) require that each state plan include whistleblower protections that are as effective as OSHA’s Section 11(c). Therefore, in state plan states that cover the private sector, such employees may file occupational safety and health whistleblower complaints with federal OSHA, the state, or both.
State Plan State Coverage.
All state plans extend coverage, including occupational safety and health whistleblower protections, to non-federal public employees; and the majority of the state plans also extend this coverage to private-sector employees in the state. . .
Overview of the 11(c) Referral Policy.
The regulation at 29 CFR §1977.23 provides that OSHA may refer complaints of employees protected by state plans to the appropriate state agency. It is OSHA’s long-standing policy to refer all Section 11(c) complaints to the appropriate state plan for investigation; thus it is rarely the case that a complaint is investigated by both federal OSHA and a state plan. However, utilizing federal whistleblower protection enforcement authority in some unique situations is appropriate. Examples of such situations are summarized below:
1. Exemption to the Referral Policy. The RA may determine, based on monitoring findings or legislative or judicial actions, that a state plan cannot adequately enforce whistleblower protections or for some reason cannot provide protection. In such situations, the RA may elect to temporarily process private-sector Section 11(c) complaints from employees covered by the affected state in accordance with procedures in non-plan states.
2. Federal Review of a Properly Dually-Filed Complaint. If a complaint has been dually filed with federal OSHA and a state plan state, and meets specific criteria as outlined in this chapter, OSHA will review the complaint under the basic principles of its deferral criteria, set forth in 29 CFR §1977.18(c).
. . .
Procedures for Processing Dually Filed 11(c) Complaints
3. Complainant’s Request for Federal Review. If a complainant requests federal review of a dually filed complaint under Section 11(c) (“a dually filed complaint”) after receiving a state determination, it will be evaluated to determine whether it has been properly dually filed.
Proper Dual Filing. OSHA will deem a complaint to be a properly dually filed only if it meets the following criteria:
a. Complainant filed the complaint with federal OSHA in a timely manner (i.e., within 30 days or within the time allowed by extenuating circumstances, see Chapter 2); and
b. A final administrative determination has been made by the State; and
c. Complainant makes a request for federal review of the complaint to the Regional Office, in writing, that is postmarked within 15 calendar days of receiving the state’s determination letter; and
d. Complainant and Respondent would be covered under Section 11(c). (See Paragraph III.)
. . .
Complaints About State Program Administration (CASPAs)
4. OSHA state plan monitoring policies and procedures provide that anyone alleging inadequacies or other problems in the administration of a state’s program may file a Complaint About State Program Administration (CASPA) with the appropriate RA. (See: 29 CFR 1954.20; CSP 01-00-002/STP 2-0.22B, Chap. 11.)
A CASPA is an oral or written complaint about some aspect of the operation or administration of a state plan made to OSHA by any person or group. The CASPA process provides a mechanism for employers, employees, and the public to notify federal OSHA of specific issues, systemic problems, or concerns about a state program. A CASPA may reflect a generic criticism of the state program administration or it may relate to a specific investigation.
Because properly dually-filed 11(c) complaints undergo federal review under the Section 11(c) procedures outlined in Paragraph E of this chapter, no duplicative CASPA investigation is required for such complaints. Complaints about the handling of state whistleblower investigation from non-federal public sector employees, and from private-sector employees who have not properly dually-filed their complaint, will be considered under CASPA procedures.
Upon receipt of a CASPA complaint relating to a state’s handling of a whistleblower case, OSHA at the regional level will review the state’s investigative file and conduct other investigation as necessary to determine if the state’s investigation was adequate and that the determination was supported by appropriate available evidence. A review of the state’s file will be completed to determine if the investigation met the basic requirements outlined in the policies and procedures of the Whistleblower Protection Program.
A CASPA investigation of a whistleblower complaint may result in recommendations with regard to specific findings in the case as well as future state investigations techniques, policies and procedures. A review under CASPA procedures is not an appeal and a review under CASPA procedures will not be reviewed by the Appeals Committee; however, it should always be possible to reopen a discrimination case for corrective action. If the Region finds that the outcome in a specific state whistleblower investigation is not appropriate (i.e., final state action is contrary to federal practice and is less protective than if investigated federally; does not follow state policies and procedures; relied on state policies and procedures that are not at least as effective as OSHA’s policies and procedures), the Region should require the state to take appropriate action to reopen the case or in some manner correct the outcome, whenever possible, as well as make procedural changes to prevent recurrence.
For more information:
http://www.stopworkplacebullyinggroup.org
Long History Of Workplace Bullying And Criminal Violation of Banking Laws With Fraud At Wells Fargo
http://fortune.com/2016/09/29/wells-fargo-employees-sue/
Wells Fargo Employees Have a History of Suing the Bank
At least five Wells Fargo employees have sued the bank or filed complaints with regulators alleging that they were fired after reporting the opening of customer accounts without their permission, according to a Reuters review of lawsuits and complaints to the U.S. Labor Department.
The suits and complaints, filed between 2010 and 2014, raise questions about how early Wells Fargo knew about such allegations and how it handled them. Earlier this week, two more former Wells Fargo employees filed a class action in California with a similar complaint.
Wells Fargo was ordered to pay $190 million in fines and restitution this month after regulators said its high-pressure sales environment led to the opening of as many as 2 million customer accounts that customers may not have authorized.
Wells Fargo spokeswoman Richele Messick declined to comment on the employees’ allegations but said the bank “takes measures to protect team members from retaliation.”
One of the fired employees was Birinder Kaur Shankar, a former Colorado-based customer sales representative who in July 2014 filed a complaint with the Labor Department’s Occupational Safety and Health Administration (OSHA).
She claimed that the bank retaliated against her after she reported in 2013 that local managers were pressuring employees to engage in “gaming” the bank’s sales quotas by opening unauthorized accounts.
In the complaint reviewed by Reuters, Shankar alleged that service managers, branch managers and district managers were “well versed in the art of creative selling” and that customer sales staffers had “direct orders to mislead customers.”
“Little did I know that my complaints to the ethics hotline of Wells Fargo Bank on these practices would be openly and directly conveyed to the very managers who would then start collecting write-up data on me,” she wrote.
Shankar settled with the bank in 2015 for an undisclosed sum, according to Labor Department records. Shankar declined to comment, citing a confidentiality agreement that was a condition of her settlement.
Another former Wells personal banker, Claudia Ponce de Leon, filed an OSHA complaint in December 2011, alleging that the bank made it “virtually impossible” for branch employees to meet ambitious quotas without cheating.
Ponce de Leon was promoted to become a branch general manager in Pomona, California in June 2011 and discovered employees were engaged in “excessive gaming,” according to the complaint.
Shortly after she raised concerns about the practice, she was “terminated without cause,” according to her complaint.
Nearly five years later, her attorney Yosef Peretz said she has only received sporadic communications from OSHA and has not been interviewed by investigators. Only recently did OSHA show more interest, he said.
“I heard from them very recently – after this whole mess with Wells Fargo,” he said.
Labor Department spokeswoman Amanda McClure did not provide comments in response to questions from Reuters about how OSHA handled the Wells Fargo complaints.
Labor Secretary Thomas Perez told Massachusetts Senator Elizabeth Warren in a Sept. 26 letter that his office now plans a “top-to-bottom” review of all allegations that the department has received concerning Wells Fargo.
Two other clients of Peretz – former personal bankers Yesenia Guitron and Judi Klosek – also filed OSHA complaints, as well as a joint federal lawsuit in 2010 claiming Wells Fargo retaliated against them for blowing the whistle on similar conduct.
Guitron alleged that managers responded by falsifying a paper trail that purported to document her poor performance, forbidding her from taking family medical leave and firing her improperly. Klosek said the bank improperly gave away her position while she was on disability to receive treatment for breast cancer. The bank did not rehire her when she sought other positions, according to her complaint.
A federal judge ultimately dismissed all of Guitron’s claims against the bank, saying Wells Fargo was justified for firing her because she failed to meet sales quotas and refused to meet with management.
Guitron said she feels vindicated by the sanctions against Wells Fargo but remains upset that some of the people who she alleges retaliated against her still work at the bank.
“If Wells Fargo wanted to make it right, I would say those people need to go,” she said.
The judge dismissed Klosek’s retalition claims but upheld her contention that she was discriminated against based on her disability. She settled with the bank on terms that were not disclosed. Reuters was not able to locate Klosek for comment.
Julie Tishkoff, a former employee who worked as an administrative assistant to a regional bank president, made similar claims in a state lawsuit in 2011. She alleged that she reported “fraudulent banking practices” as far back as November 2005, involving “bank employees forging customer signatures and fraudulently opening accounts.”
Tishkoff said the bank “instituted a four-year campaign of retaliation” that included attacking her job performance and public criticism, according to the lawsuit.
Messick, the Wells Fargo spokeswoman, said the bank had settled the case in 2012. Attorneys for Tiskoff did not immediately respond to requests for comment.
Price of a blown whistle: Sacramento attorney endured hardship after calling out ‘worst run’ state agency
Commission on Teacher Credentialing ordered to pay $3.1 million in wrongful termination suit
https://www.newsreview.com/sacramento/price-of-a-blown-whistle/content?oid=21873431
By John Flynn
This article was published on 09.01.16.
Seven years ago, Kathy Carroll watched her boss lie.
On August 6, 2009, Carroll was working as an attorney for the California Commission on Teacher Credentialing. The CTC decides whether teachers who have been accused of crimes should have their credentials revoked. At the time, Carroll knew of more than 10,000 complaints that hadn’t been investigated. But her supervisor, Mary Armstrong, told the commission that there was “little” backlog at any given time, according to a trial brief provided by Carroll’s attorney, Dan Siegel.
In December 2009, Carroll blew the whistle on the CTC—and was later fired.
As she fought her termination in a Sacramento County courtroom, her attorney says Carroll spent the next several years battling poverty and joblessness. On August 10, Carroll won a $3.1 million civil judgment. But her fight isn’t over. And her story—recreated from the trial brief, a state audit and interview with Siegel—hints at why more people don’t come forward when they witness wrongdoing.
Carroll feared for the safety of students in California’s public schools. Backlogged cases detailed teachers who had been accused of kidnapping and rape, kissing students, exposing them to pornography and forwarding them white supremacy propaganda. Months or years could pass before cases were resolved. And some teachers went to other schools after being fired because the state never revoked their credentials.
In January 2010, the trial brief states, Carroll alerted CTC Director Dale Janssen of her concerns. Janssen then paid private investigator Elizabeth Ison $24,000 to investigate Carroll’s claims. Ison discredited Carroll and concluded Armstrong hadn’t lied. So Carroll sent her report to then-state Sen. Darrell Steinberg, who requested a formal audit of the CTC.
Carroll’s attorney later argued successfully in court that the decision led to her eventual termination.
During the state’s audit, the CTC’s Janssen, Armstrong and Assistant General Counsel Lee Pope planned to lay Carroll off, using economic reasons to justify the decision, according to the trial brief. But that move raised red flags as a one-person-layoff had never happened and would do little to address their supposed financial troubles.
In September 2010, Carroll declined to attend a CTC meeting with Armstrong, fearing that she would be asked to lie. Later that month, she was denied a merit-based raise and placed on administrative leave, despite having no serious written discipline in her file, the trial brief argued. Steinberg petitioned Janssen to delay these actions until the audit concluded. Janssen declined.
Pope then launched his own investigation into Carroll. In addition to minor complaints about her attitude, he alleged that she had sexually harassed CTC committee member Barbara Kilponen. Janssen fired Carroll on November 29, 2010, based on Pope’s accusations.
But at trial, Siegel said Pope’s central claim wilted under scrutiny. “[Kilponen] had some disagreements with the plaintiff, but there was nothing sexual,” Siegel noted. “The plaintiff didn’t come onto her. Didn’t romance her. Didn’t touch her. Didn’t kiss her. Didn’t [do] anything. So it just showed to the jury that all of these explanations they came up with to try to justify her firing were, frankly, bullshit.”
In April 2011, the Bureau of State Audits confirmed all of Carroll’s allegations. State Auditor Elaine Howle called the CTC one of the “worst-run” state agencies she’d ever investigated. Shortly after, Janssen, Armstrong and Pope resigned.
CTC spokesman Joshua Speaks claimed that the backlog occurred mostly due to furloughs and hiring freezes caused by the recession. Compounding this, the cases had been kept on paper, meaning many got lost, misplaced or forgotten.
After the blistering audit, the CTC digitized its documents, formalized fair hiring procedures and doubled the number of cases it reviews and resolves. In 2014, a follow-up audit declared a near-complete turnaround. The CTC will appeal the $3.1 million verdict, claiming it had justification for Carroll’s termination.
While Siegel said he was “thrilled” with the outcome, he feared it might obscure how Carroll suffered for her whistleblowing.
“She lived in poverty for six years,” he said. “She hasn’t been able to find a job. She can’t pay her heating bill for her house. She’s got a car sitting in her driveway that she hasn’t driven for a couple years because she can’t afford the insurance.”
Now the mayor-elect of Sacramento, Steinberg stressed the importance of protecting whistleblowers like Carroll, saying legislators rely on them to uncover situations hidden to the public. And he sympathized with the losses that accompanied her victory. “Sometimes, the amount of the verdict is impressive,” he said. “But it doesn’t speak to what the person went through.”
California Bar Faces New Whistleblower Case
http://www.courthousenews.com/2016/06/28/california-bar-faces-new-whistleblower-case.htm
Tuesday, June 28, 2016Last Update: 11:44 AM PT
California Bar Faces New Whistleblower Case
By MATT REYNOLDS
ShareThis
LOS ANGELES (CN) - A former fraud investigator for the California State Bar has sued a prosecutor who headed attorney discipline, claiming he lost his job for investigating the alleged removal of 269 cases, to whitewash the Bar's backlog.
Former Managing Director of Investigations John Noonen sued The State Bar of California on Friday in Superior Court, taking a fresh shot at the Bar after former official Joe Dunn leveled similar charges against the Bar in a 2014 lawsuit.
Noonen's whistleblower complaint names the Bar's former top prosecutor Jayne Kim as the chief architect of his ousting. Noonen claims Kim retaliated against him after she removed 269 backlogged cases from internal reports to make her office look more productive, and says she ignored cases involving attorney misconduct.
The State Bar also is a defendant, accused of an "ongoing failure to fulfill its duty to regulate the legal profession" and sacrificing its "integrity and its principles in order to hide this failure."
"It is this willingness of the State Bar to do anything and everything to save face, no matter how egregious or unlawful, that has made this case necessary," the 20-page complaint states.
Noonen's attorney Robert Baker told Courthouse News that the State Bar needs an "overhaul" so it can focus on its job, to "protect the public."
"I think the whole place has run amok," Baker said in a telephone interview.
He noted that the Bar voted to appoint Kim to a second term in December 2015, despite the turmoil in her office.
"It's insane," Baker.
Baker represented Thomas Layton in another lawsuit against the Bar.
Dunn's complaint is in arbitration in San Francisco.
State Bar spokeswoman Laura Ernde said the Bar had not been served and could not comment on the specifics of Noonen's complaint.
"However, we can say that the Bar acted properly with respect to Mr. Noonen's employment, and any suggestion that his termination was retaliatory is simply untrue," Ernde wrote in an email.
Noonen says in the complaint that he discovered the numbers for cases involving attorney discipline had been fudged in the fall of 2013. He says it later became clear that Kim had "deliberately misreported backlog numbers and failed to process and prosecute complaints relating to the unauthorized practice of law."
And he claims that Kim misreported the numbers to "fraudulently inflate her own performance and that of the Office of Chief Trial Counsel."
Noonen says he spent two years building a case against Kim and brought his findings to the State Bar. He says the Bar did not take action until the number-juggling was brought to the public's attention by a negative report from the California State Auditor.
"When it finally came to the attention of Jayne Kim in 2015 that John Noonen was the driving force behind the investigation into her misreported backlog numbers and other acts of misconduct, she and other employees of the State Bar proceeded to create and implement a systematic and well-planned campaign of retaliation against John Noonen," the complaint states.
Noonen says he had two meetings with attorney Nancy Solomon, who was a paid expert in other lawsuits against the Bar. Solomon is not a party to the lawsuit.
But Noonen says that at an interview last year it was clear that Solomon was "simply on a fishing expedition in order to determine Mr. Noonen's knowledge about Ms. Kim's unlawful conduct so that Ms. Kim could then use that knowledge to further protect herself and her misconduct."
When he provided Solomon with a binder of evidence at a second meeting, Noonen says, she did not review it, but interrogated him about emails he had written about Kim.
"The clear implication by Ms. Solomon was that Mr. Noonen had done something wrong by reporting Ms. Kim's misconduct. It was very clear after this second interview that Ms. Solomon had no interest in uncovering the truth," the complaint states.
Noonen says Kim interfered with his job duties and created "numerous fraudulent performance" complaints and reports, leading to his firing on Nov. 16, 2015.
Kim announced she would step down after a vote of no confidence and the "public outrage" that followed the news that her office had misreported the numbers, Noonen says in the complaint.
He seeks damages and punitive damages for wrongful termination, whistleblower retaliation, defamation, breach faith, and intentional interference with prospective economic relations.
Also named as a defendant is Gilda Munoz, head of human resources for the State Bar.
Baker and his co-counsel Derrick Lowe are both with Baker, Keener & Nahra.
As the administrative arm of the California Supreme Court, the State Bar oversees about 250,000 members.
Wells Fargo complaints show flaws in federal whistleblower program
http://www.reuters.com/article/us-wells-fargo-accounts-whistleblower-idUSKCN12D2M0?il=0
Thu Oct 13, 2016 | 6:32pm EDT
Wells Fargo complaints show flaws in federal whistleblower program
Wells Fargo scandal emboldens fight against big banks
By Sarah N. Lynch | WASHINGTON
Former Wells Fargo & Co (WFC.N) general manager Claudia Ponce de Leon filed a whistleblower complaint in December 2011 with federal labor regulators, alleging she was fired for telling superiors about employees opening unauthorized accounts.
Nearly five years later, she has not been interviewed by investigators at the Labor Department's Occupational Safety and Health Administration (OSHA), said her attorney Yosef Peretz.
Her complaint claiming retaliation by Wells Fargo for reporting potential misconduct is one of several dozens filed against the bank over the last 14 years, Reuters has found.
Their existence shows U.S. government regulators are still not meeting targets set by law -- a problem that was also flagged in a critical internal report issued in September 2015.
As of Oct. 6, the agency had yet to close out 34 of the 91 complaints it has received since fiscal year 2002 from Wells Fargo employees alleging they faced retaliation after reporting potential wrongdoing, according to department data obtained through a Reuters public records request. The department did not disclose details of the claims or the dates they were filed, and it remained unclear how many were related to the ongoing scandal involving Wells staffers opening as many as 2 million accounts without customer permission. It is also unclear how those 91 complaints against Wells Fargo compares with other corporations.
The bank last month agreed to pay $190 million in fines and customer restitution in a settlement with the Consumer Finance Protection Bureau and other regulators.
In late September, Reuters identified Ponce de Leon and at least four other former Wells Fargo employees who reported to OSHA between 2009 and 2014 that they were fired for raising concerns about the opening of unauthorized accounts and credit cards. Of the five OSHA complaints seen by Reuters, Ponce de Leon's case has been pending since December 2011, and another 2014 case was initially dismissed by an OSHA investigator on grounds that were later reversed on appeal by a Labor Department administrative law judge. The bank ultimately reached a settlement with the employee in 2015.
The three other complaints - one in 2009 and two in 2010 - were transferred to state and federal courts, respectively.
One employee of the Labor Department involved with the cases has since filed his own whistleblower claim against the agency, alleging his office has a history of mishandling cases. His complaint does not reference the Wells Fargo complaints specifically.
"It's absolutely outrageous that whistleblowers contacted OSHA as early as 2009 about potential fraud at Wells Fargo, and yet these government bureaucrats failed to do their job," said Sen. David Vitter, a Louisiana Republican who has been looking into how Wells Fargo's sales practices have impacted small business owners.
Labor Department Secretary Thomas Perez said last month that the department has launched a "top-to-bottom" review of prior Wells Fargo whistleblower complaints.
Agency spokesman Jesse Lawder said it is the department's policy not to comment on specific whistleblower cases, but said the review aims to "ensure whistleblowers receive the protections and remedies afforded them."
FILE PHOTO -- Protestors gather outside the Wells Fargo & Co corporate campus in Manhattan, New York City, U.S., October 6, 2016. REUTERS/Brendan McDermid/File Photo
Richele Messick, a Wells Fargo spokeswoman, could not comment on individual cases, but said the bank "does not tolerate retaliation against team members who report their concerns and will take measures to protect team members from retaliation."
From fiscal year 2005 through 2015, less than two percent of all whistleblower complaints filed with OSHA were won on the merits, federal statistics show. The rest were either settled, dismissed or transferred to federal courts. Lawyers who represent whistleblowers say OSHA investigators face challenges. One problem is the "crushing case load," which can lead to significant delays, said attorney Jason Zuckerman.
OSHA, which received 3,288 whistleblower cases in fiscal year 2015, currently has 88 full-time investigators across the country in 10 regional offices.
INTERNAL CRITICISM
OSHA refers whistleblower complaints to the relevant federal regulators to investigate. But the office does not always refer them promptly, or sometimes at all, the Labor Department's inspector general found last year.
An earlier audit in September 2010 found that 80 percent of complaints it reviewed were not properly investigated, meaning OSHA staff did not take steps such as interviewing the employee, obtaining a witness list or allowing the employee to refute the employer's defense. The subsequent audit in September 2015 noted improvements, finding that 18 percent of complaints reviewed failed to meet certain investigative criteria. Still, it also found that 72 percent of all of OSHA's investigations were not performed within the 30, 60 or 90-day time frames specified by various whistleblower protection laws.
OSHA disputed some of those findings at the time, saying the audit relied on "inaccurate data" to determine how well it referred cases to other regulators.
Labor Department spokeswoman Amanda McClure said OSHA's practice is to send copies of complaints when it receives them and its findings at the conclusion of the investigation to either the Securities and Exchange Commission or the CFPB, depending on which federal whistleblower law applies.
It is not clear whether OSHA, which received complaints of the unauthorized account openings at Wells Fargo dating at least as far as 2009, referred the matters to federal banking regulators, such as the CFPB and the Office of the Comptroller of the Currency.
The CFPB, a new agency launched in July 2011, has said it did not start investigating the issue until it received tips from whistleblowers in mid-2013.
The OCC has said it first learned about the issues after it received a "small number" of complaints from consumers and bank employees in March 2012. Those complaints and media reports in December 2013 led the regulator to step up its supervision of Wells Fargo.
Darrell Whitman - a former OSHA investigator in the San Francisco office from 2010-2015 - was assigned to three of the five cases examined by Reuters from former Wells Fargo employees alleging retaliation for reporting improper sales tactics. Whitman said he only briefly dealt with Ponce de Leon's 2011 case before it was transferred to another investigator, and he was instructed to close the two 2010 cases because they were slated to be transferred to a federal court.
Another investigator assigned at one point to Ponce de Leon's case, Susan Kamlet, told Reuters the case sat in a stack of other files and that her manager controlled which cases had priority.
Now the former OSHA investigators are making their own claims of retaliation.
Whitman alleges he was fired for raising concerns about the agency's mishandling of whistleblower complaints, and Kamlet says she was fired for supporting his accounts and for raising concerns about a particular case she was investigating.
Whitman has since filed a whistleblower complaint of his own with the Office of Special Counsel, an office that investigates retaliation against federal employees.
His complaint is still pending.
The Labor Department spokeswoman and the Office of Special Counsel declined to comment.
(Reporting by Sarah N. Lynch; Editing by Soyoung Kim and Edward Tobin)
http://fortune.com/2016/09/29/wells-fargo-employees-sue/
Wells Fargo Employees Have a History of Suing the Bank
At least five Wells Fargo employees have sued the bank or filed complaints with regulators alleging that they were fired after reporting the opening of customer accounts without their permission, according to a Reuters review of lawsuits and complaints to the U.S. Labor Department.
The suits and complaints, filed between 2010 and 2014, raise questions about how early Wells Fargo knew about such allegations and how it handled them. Earlier this week, two more former Wells Fargo employees filed a class action in California with a similar complaint.
Wells Fargo was ordered to pay $190 million in fines and restitution this month after regulators said its high-pressure sales environment led to the opening of as many as 2 million customer accounts that customers may not have authorized.
Wells Fargo spokeswoman Richele Messick declined to comment on the employees’ allegations but said the bank “takes measures to protect team members from retaliation.”
One of the fired employees was Birinder Kaur Shankar, a former Colorado-based customer sales representative who in July 2014 filed a complaint with the Labor Department’s Occupational Safety and Health Administration (OSHA).
She claimed that the bank retaliated against her after she reported in 2013 that local managers were pressuring employees to engage in “gaming” the bank’s sales quotas by opening unauthorized accounts.
In the complaint reviewed by Reuters, Shankar alleged that service managers, branch managers and district managers were “well versed in the art of creative selling” and that customer sales staffers had “direct orders to mislead customers.”
“Little did I know that my complaints to the ethics hotline of Wells Fargo Bank on these practices would be openly and directly conveyed to the very managers who would then start collecting write-up data on me,” she wrote.
Shankar settled with the bank in 2015 for an undisclosed sum, according to Labor Department records. Shankar declined to comment, citing a confidentiality agreement that was a condition of her settlement.
Another former Wells personal banker, Claudia Ponce de Leon, filed an OSHA complaint in December 2011, alleging that the bank made it “virtually impossible” for branch employees to meet ambitious quotas without cheating.
Ponce de Leon was promoted to become a branch general manager in Pomona, California in June 2011 and discovered employees were engaged in “excessive gaming,” according to the complaint.
Shortly after she raised concerns about the practice, she was “terminated without cause,” according to her complaint.
Nearly five years later, her attorney Yosef Peretz said she has only received sporadic communications from OSHA and has not been interviewed by investigators. Only recently did OSHA show more interest, he said.
“I heard from them very recently – after this whole mess with Wells Fargo,” he said.
Labor Department spokeswoman Amanda McClure did not provide comments in response to questions from Reuters about how OSHA handled the Wells Fargo complaints.
Labor Secretary Thomas Perez told Massachusetts Senator Elizabeth Warren in a Sept. 26 letter that his office now plans a “top-to-bottom” review of all allegations that the department has received concerning Wells Fargo.
Two other clients of Peretz – former personal bankers Yesenia Guitron and Judi Klosek – also filed OSHA complaints, as well as a joint federal lawsuit in 2010 claiming Wells Fargo retaliated against them for blowing the whistle on similar conduct.
Guitron alleged that managers responded by falsifying a paper trail that purported to document her poor performance, forbidding her from taking family medical leave and firing her improperly. Klosek said the bank improperly gave away her position while she was on disability to receive treatment for breast cancer. The bank did not rehire her when she sought other positions, according to her complaint.
A federal judge ultimately dismissed all of Guitron’s claims against the bank, saying Wells Fargo was justified for firing her because she failed to meet sales quotas and refused to meet with management.
Guitron said she feels vindicated by the sanctions against Wells Fargo but remains upset that some of the people who she alleges retaliated against her still work at the bank.
“If Wells Fargo wanted to make it right, I would say those people need to go,” she said.
The judge dismissed Klosek’s retalition claims but upheld her contention that she was discriminated against based on her disability. She settled with the bank on terms that were not disclosed. Reuters was not able to locate Klosek for comment.
Julie Tishkoff, a former employee who worked as an administrative assistant to a regional bank president, made similar claims in a state lawsuit in 2011. She alleged that she reported “fraudulent banking practices” as far back as November 2005, involving “bank employees forging customer signatures and fraudulently opening accounts.”
Tishkoff said the bank “instituted a four-year campaign of retaliation” that included attacking her job performance and public criticism, according to the lawsuit.
Messick, the Wells Fargo spokeswoman, said the bank had settled the case in 2012. Attorneys for Tiskoff did not immediately respond to requests for comment.
Price of a blown whistle: Sacramento attorney endured hardship after calling out ‘worst run’ state agency
Commission on Teacher Credentialing ordered to pay $3.1 million in wrongful termination suit
https://www.newsreview.com/sacramento/price-of-a-blown-whistle/content?oid=21873431
By John Flynn
This article was published on 09.01.16.
Seven years ago, Kathy Carroll watched her boss lie.
On August 6, 2009, Carroll was working as an attorney for the California Commission on Teacher Credentialing. The CTC decides whether teachers who have been accused of crimes should have their credentials revoked. At the time, Carroll knew of more than 10,000 complaints that hadn’t been investigated. But her supervisor, Mary Armstrong, told the commission that there was “little” backlog at any given time, according to a trial brief provided by Carroll’s attorney, Dan Siegel.
In December 2009, Carroll blew the whistle on the CTC—and was later fired.
As she fought her termination in a Sacramento County courtroom, her attorney says Carroll spent the next several years battling poverty and joblessness. On August 10, Carroll won a $3.1 million civil judgment. But her fight isn’t over. And her story—recreated from the trial brief, a state audit and interview with Siegel—hints at why more people don’t come forward when they witness wrongdoing.
Carroll feared for the safety of students in California’s public schools. Backlogged cases detailed teachers who had been accused of kidnapping and rape, kissing students, exposing them to pornography and forwarding them white supremacy propaganda. Months or years could pass before cases were resolved. And some teachers went to other schools after being fired because the state never revoked their credentials.
In January 2010, the trial brief states, Carroll alerted CTC Director Dale Janssen of her concerns. Janssen then paid private investigator Elizabeth Ison $24,000 to investigate Carroll’s claims. Ison discredited Carroll and concluded Armstrong hadn’t lied. So Carroll sent her report to then-state Sen. Darrell Steinberg, who requested a formal audit of the CTC.
Carroll’s attorney later argued successfully in court that the decision led to her eventual termination.
During the state’s audit, the CTC’s Janssen, Armstrong and Assistant General Counsel Lee Pope planned to lay Carroll off, using economic reasons to justify the decision, according to the trial brief. But that move raised red flags as a one-person-layoff had never happened and would do little to address their supposed financial troubles.
In September 2010, Carroll declined to attend a CTC meeting with Armstrong, fearing that she would be asked to lie. Later that month, she was denied a merit-based raise and placed on administrative leave, despite having no serious written discipline in her file, the trial brief argued. Steinberg petitioned Janssen to delay these actions until the audit concluded. Janssen declined.
Pope then launched his own investigation into Carroll. In addition to minor complaints about her attitude, he alleged that she had sexually harassed CTC committee member Barbara Kilponen. Janssen fired Carroll on November 29, 2010, based on Pope’s accusations.
But at trial, Siegel said Pope’s central claim wilted under scrutiny. “[Kilponen] had some disagreements with the plaintiff, but there was nothing sexual,” Siegel noted. “The plaintiff didn’t come onto her. Didn’t romance her. Didn’t touch her. Didn’t kiss her. Didn’t [do] anything. So it just showed to the jury that all of these explanations they came up with to try to justify her firing were, frankly, bullshit.”
In April 2011, the Bureau of State Audits confirmed all of Carroll’s allegations. State Auditor Elaine Howle called the CTC one of the “worst-run” state agencies she’d ever investigated. Shortly after, Janssen, Armstrong and Pope resigned.
CTC spokesman Joshua Speaks claimed that the backlog occurred mostly due to furloughs and hiring freezes caused by the recession. Compounding this, the cases had been kept on paper, meaning many got lost, misplaced or forgotten.
After the blistering audit, the CTC digitized its documents, formalized fair hiring procedures and doubled the number of cases it reviews and resolves. In 2014, a follow-up audit declared a near-complete turnaround. The CTC will appeal the $3.1 million verdict, claiming it had justification for Carroll’s termination.
While Siegel said he was “thrilled” with the outcome, he feared it might obscure how Carroll suffered for her whistleblowing.
“She lived in poverty for six years,” he said. “She hasn’t been able to find a job. She can’t pay her heating bill for her house. She’s got a car sitting in her driveway that she hasn’t driven for a couple years because she can’t afford the insurance.”
Now the mayor-elect of Sacramento, Steinberg stressed the importance of protecting whistleblowers like Carroll, saying legislators rely on them to uncover situations hidden to the public. And he sympathized with the losses that accompanied her victory. “Sometimes, the amount of the verdict is impressive,” he said. “But it doesn’t speak to what the person went through.”
California Bar Faces New Whistleblower Case
http://www.courthousenews.com/2016/06/28/california-bar-faces-new-whistleblower-case.htm
Tuesday, June 28, 2016Last Update: 11:44 AM PT
California Bar Faces New Whistleblower Case
By MATT REYNOLDS
ShareThis
LOS ANGELES (CN) - A former fraud investigator for the California State Bar has sued a prosecutor who headed attorney discipline, claiming he lost his job for investigating the alleged removal of 269 cases, to whitewash the Bar's backlog.
Former Managing Director of Investigations John Noonen sued The State Bar of California on Friday in Superior Court, taking a fresh shot at the Bar after former official Joe Dunn leveled similar charges against the Bar in a 2014 lawsuit.
Noonen's whistleblower complaint names the Bar's former top prosecutor Jayne Kim as the chief architect of his ousting. Noonen claims Kim retaliated against him after she removed 269 backlogged cases from internal reports to make her office look more productive, and says she ignored cases involving attorney misconduct.
The State Bar also is a defendant, accused of an "ongoing failure to fulfill its duty to regulate the legal profession" and sacrificing its "integrity and its principles in order to hide this failure."
"It is this willingness of the State Bar to do anything and everything to save face, no matter how egregious or unlawful, that has made this case necessary," the 20-page complaint states.
Noonen's attorney Robert Baker told Courthouse News that the State Bar needs an "overhaul" so it can focus on its job, to "protect the public."
"I think the whole place has run amok," Baker said in a telephone interview.
He noted that the Bar voted to appoint Kim to a second term in December 2015, despite the turmoil in her office.
"It's insane," Baker.
Baker represented Thomas Layton in another lawsuit against the Bar.
Dunn's complaint is in arbitration in San Francisco.
State Bar spokeswoman Laura Ernde said the Bar had not been served and could not comment on the specifics of Noonen's complaint.
"However, we can say that the Bar acted properly with respect to Mr. Noonen's employment, and any suggestion that his termination was retaliatory is simply untrue," Ernde wrote in an email.
Noonen says in the complaint that he discovered the numbers for cases involving attorney discipline had been fudged in the fall of 2013. He says it later became clear that Kim had "deliberately misreported backlog numbers and failed to process and prosecute complaints relating to the unauthorized practice of law."
And he claims that Kim misreported the numbers to "fraudulently inflate her own performance and that of the Office of Chief Trial Counsel."
Noonen says he spent two years building a case against Kim and brought his findings to the State Bar. He says the Bar did not take action until the number-juggling was brought to the public's attention by a negative report from the California State Auditor.
"When it finally came to the attention of Jayne Kim in 2015 that John Noonen was the driving force behind the investigation into her misreported backlog numbers and other acts of misconduct, she and other employees of the State Bar proceeded to create and implement a systematic and well-planned campaign of retaliation against John Noonen," the complaint states.
Noonen says he had two meetings with attorney Nancy Solomon, who was a paid expert in other lawsuits against the Bar. Solomon is not a party to the lawsuit.
But Noonen says that at an interview last year it was clear that Solomon was "simply on a fishing expedition in order to determine Mr. Noonen's knowledge about Ms. Kim's unlawful conduct so that Ms. Kim could then use that knowledge to further protect herself and her misconduct."
When he provided Solomon with a binder of evidence at a second meeting, Noonen says, she did not review it, but interrogated him about emails he had written about Kim.
"The clear implication by Ms. Solomon was that Mr. Noonen had done something wrong by reporting Ms. Kim's misconduct. It was very clear after this second interview that Ms. Solomon had no interest in uncovering the truth," the complaint states.
Noonen says Kim interfered with his job duties and created "numerous fraudulent performance" complaints and reports, leading to his firing on Nov. 16, 2015.
Kim announced she would step down after a vote of no confidence and the "public outrage" that followed the news that her office had misreported the numbers, Noonen says in the complaint.
He seeks damages and punitive damages for wrongful termination, whistleblower retaliation, defamation, breach faith, and intentional interference with prospective economic relations.
Also named as a defendant is Gilda Munoz, head of human resources for the State Bar.
Baker and his co-counsel Derrick Lowe are both with Baker, Keener & Nahra.
As the administrative arm of the California Supreme Court, the State Bar oversees about 250,000 members.
Wells Fargo complaints show flaws in federal whistleblower program
http://www.reuters.com/article/us-wells-fargo-accounts-whistleblower-idUSKCN12D2M0?il=0
Thu Oct 13, 2016 | 6:32pm EDT
Wells Fargo complaints show flaws in federal whistleblower program
Wells Fargo scandal emboldens fight against big banks
By Sarah N. Lynch | WASHINGTON
Former Wells Fargo & Co (WFC.N) general manager Claudia Ponce de Leon filed a whistleblower complaint in December 2011 with federal labor regulators, alleging she was fired for telling superiors about employees opening unauthorized accounts.
Nearly five years later, she has not been interviewed by investigators at the Labor Department's Occupational Safety and Health Administration (OSHA), said her attorney Yosef Peretz.
Her complaint claiming retaliation by Wells Fargo for reporting potential misconduct is one of several dozens filed against the bank over the last 14 years, Reuters has found.
Their existence shows U.S. government regulators are still not meeting targets set by law -- a problem that was also flagged in a critical internal report issued in September 2015.
As of Oct. 6, the agency had yet to close out 34 of the 91 complaints it has received since fiscal year 2002 from Wells Fargo employees alleging they faced retaliation after reporting potential wrongdoing, according to department data obtained through a Reuters public records request. The department did not disclose details of the claims or the dates they were filed, and it remained unclear how many were related to the ongoing scandal involving Wells staffers opening as many as 2 million accounts without customer permission. It is also unclear how those 91 complaints against Wells Fargo compares with other corporations.
The bank last month agreed to pay $190 million in fines and customer restitution in a settlement with the Consumer Finance Protection Bureau and other regulators.
In late September, Reuters identified Ponce de Leon and at least four other former Wells Fargo employees who reported to OSHA between 2009 and 2014 that they were fired for raising concerns about the opening of unauthorized accounts and credit cards. Of the five OSHA complaints seen by Reuters, Ponce de Leon's case has been pending since December 2011, and another 2014 case was initially dismissed by an OSHA investigator on grounds that were later reversed on appeal by a Labor Department administrative law judge. The bank ultimately reached a settlement with the employee in 2015.
The three other complaints - one in 2009 and two in 2010 - were transferred to state and federal courts, respectively.
One employee of the Labor Department involved with the cases has since filed his own whistleblower claim against the agency, alleging his office has a history of mishandling cases. His complaint does not reference the Wells Fargo complaints specifically.
"It's absolutely outrageous that whistleblowers contacted OSHA as early as 2009 about potential fraud at Wells Fargo, and yet these government bureaucrats failed to do their job," said Sen. David Vitter, a Louisiana Republican who has been looking into how Wells Fargo's sales practices have impacted small business owners.
Labor Department Secretary Thomas Perez said last month that the department has launched a "top-to-bottom" review of prior Wells Fargo whistleblower complaints.
Agency spokesman Jesse Lawder said it is the department's policy not to comment on specific whistleblower cases, but said the review aims to "ensure whistleblowers receive the protections and remedies afforded them."
FILE PHOTO -- Protestors gather outside the Wells Fargo & Co corporate campus in Manhattan, New York City, U.S., October 6, 2016. REUTERS/Brendan McDermid/File Photo
Richele Messick, a Wells Fargo spokeswoman, could not comment on individual cases, but said the bank "does not tolerate retaliation against team members who report their concerns and will take measures to protect team members from retaliation."
From fiscal year 2005 through 2015, less than two percent of all whistleblower complaints filed with OSHA were won on the merits, federal statistics show. The rest were either settled, dismissed or transferred to federal courts. Lawyers who represent whistleblowers say OSHA investigators face challenges. One problem is the "crushing case load," which can lead to significant delays, said attorney Jason Zuckerman.
OSHA, which received 3,288 whistleblower cases in fiscal year 2015, currently has 88 full-time investigators across the country in 10 regional offices.
INTERNAL CRITICISM
OSHA refers whistleblower complaints to the relevant federal regulators to investigate. But the office does not always refer them promptly, or sometimes at all, the Labor Department's inspector general found last year.
An earlier audit in September 2010 found that 80 percent of complaints it reviewed were not properly investigated, meaning OSHA staff did not take steps such as interviewing the employee, obtaining a witness list or allowing the employee to refute the employer's defense. The subsequent audit in September 2015 noted improvements, finding that 18 percent of complaints reviewed failed to meet certain investigative criteria. Still, it also found that 72 percent of all of OSHA's investigations were not performed within the 30, 60 or 90-day time frames specified by various whistleblower protection laws.
OSHA disputed some of those findings at the time, saying the audit relied on "inaccurate data" to determine how well it referred cases to other regulators.
Labor Department spokeswoman Amanda McClure said OSHA's practice is to send copies of complaints when it receives them and its findings at the conclusion of the investigation to either the Securities and Exchange Commission or the CFPB, depending on which federal whistleblower law applies.
It is not clear whether OSHA, which received complaints of the unauthorized account openings at Wells Fargo dating at least as far as 2009, referred the matters to federal banking regulators, such as the CFPB and the Office of the Comptroller of the Currency.
The CFPB, a new agency launched in July 2011, has said it did not start investigating the issue until it received tips from whistleblowers in mid-2013.
The OCC has said it first learned about the issues after it received a "small number" of complaints from consumers and bank employees in March 2012. Those complaints and media reports in December 2013 led the regulator to step up its supervision of Wells Fargo.
Darrell Whitman - a former OSHA investigator in the San Francisco office from 2010-2015 - was assigned to three of the five cases examined by Reuters from former Wells Fargo employees alleging retaliation for reporting improper sales tactics. Whitman said he only briefly dealt with Ponce de Leon's 2011 case before it was transferred to another investigator, and he was instructed to close the two 2010 cases because they were slated to be transferred to a federal court.
Another investigator assigned at one point to Ponce de Leon's case, Susan Kamlet, told Reuters the case sat in a stack of other files and that her manager controlled which cases had priority.
Now the former OSHA investigators are making their own claims of retaliation.
Whitman alleges he was fired for raising concerns about the agency's mishandling of whistleblower complaints, and Kamlet says she was fired for supporting his accounts and for raising concerns about a particular case she was investigating.
Whitman has since filed a whistleblower complaint of his own with the Office of Special Counsel, an office that investigates retaliation against federal employees.
His complaint is still pending.
The Labor Department spokeswoman and the Office of Special Counsel declined to comment.
(Reporting by Sarah N. Lynch; Editing by Soyoung Kim and Edward Tobin)
We are 100% volunteer and depend on your participation to sustain our efforts!
Donate
$55.00 donated
in the past month
Get Involved
If you'd like to help with maintaining or developing the website, contact us.
Publish
Publish your stories and upcoming events on Indybay.
Topics
More
Search Indybay's Archives
Advanced Search
►
▼
IMC Network