The Whistleblower Onslaught

Chapter 1-2

My walnut desk is angled in the far corner of the room, while two armchairs separated by a small lamp table face the red brick fireplace on the wall closest to the door. Some evenings, when the kids are tucked in, between calls for water, retucking after bathroom trips and the comforting after the occasional nightmare, Lisa and I read by the fire in the warmth of each other's company.

I close the door and gesture to the closest armchair. I grab a yellow legal pad from my desk and sit down in the other chair. “How can I help, Kevin?”

“I don't know if you can, or for that matter if anyone can.” He draws a breath, and then says, “I worked for Consolidated for twenty-seven years. As I'm sure you know, it is a huge international conglomerate. I was senior vice president of administration for the past seven years, reporting directly to the president and CEO, Michael Constantine. Before that, I was a regional vice president for the Central United States. I've been promoted seven times during my career—the whole fast track thing.”

He pauses, and I sense that he was working to suppress emotion. “Anyway, Constantine called me in Thursday, flustered like I have never seen him, and tells me it's not working, and we need to part company. I knew instantly that it was because of my complaints about mine conditions that had gone unremedied, but part of me still couldn't believe it. Mike and I had been close for a lot of years, and I never thought …”

He lets the sentence trail off, and then continues. “I told him that lives were put at risk by some of these conditions, and money can't be the reason not to protect employees. I'll never forget the anger in his eyes. Then he said he didn't know what I was talking about, and the company just needed a … what were his words, yeah, 'a change in its top policy-making team.' I looked into his eyes and saw a flash of anger before he looked away. We sat in an awkward silence for a few minutes, while I tried to put all the pieces together. Then I told him I couldn't believe he could do this after all our years together.”

Walters sits back in his chair and shakes his head as he relives the moment, then says, “He just looked at me and said that Human Resources would contact me to discuss my severance. Then I got up and walked out.”

I am taking copious notes on my yellow pad, and looking up at Walters intermittently as I write. “Did Human Resources contact you?” I ask.

He replies, “Yes. Someone I had never spoken to before gave me a call and sent me the packet. The deal was that they give me a year's salary and medical, then I take early retirement, and I sign a release of any claims against the company.” I could see anger on Walters's face. He pauses a moment, suppresses whatever it was, and speaks calmly. “I was about to take the package and retire, but the sons of bitches called me into a meeting and threatened me.”

“Threatened you how?” I ask, thoroughly engrossed and having forgotten about my time crunch.

“With Alan Larson, one of the in-house lawyers, sitting there, the HR guy tells me that an officer of my rank could be prevented from working for a competitor, or sued for any proprietary information disclosed. I told him that I would disclose nothing proprietary, so he needn't worry.” Walters sits back in his chair and reflects. “He told me that it goes a little deeper than that. That if I were to talk to any more outsiders, that they would construe my actions as disloyal, and act accordingly.”

“What did you say?” I ask, already considering how all of this might play to a jury.

“I said, 'I get it.' Then I took the release they had given me, tore it into pieces, and let it fall to the floor. Sounds a little overly dramatic now, but I was pissed. I told them that they can keep their money, and they could construe my actions any way they liked. Then I said that I would do whatever it takes to see that no one else was hurt by the company's failure to protect them. At that point, I stood up and walked out of the room to complete silence.”

“How long ago was this meeting?” I ask.

“Last Thursday, at two o'clock.”

“Have you spoken to any company representative since then?”

He shakes his head. “No, although I have had five messages on my answering machine, two of which are from Constantine. Each of them assures me that they want me to have my severance and hope I haven't misconstrued what they had said. The bastards.”

I take a moment to catch up on my notes, and then ask, “You said you knew instantly what it was about—when he fired you. What did you mean by that?”

“My complaints about dangerous conditions and violations that were not remedied were also not well-received. My complaints as well as some of the violations had to do with the conditions and safety of the shafts in the mine: inadequate ventilation and inadequate safety equipment. It was an old operation, and engineering inspections had shown rebuilding of the shafts were needed for the past year. The cure would have cost twenty million in engineering and construction costs, and would have shut down operations for at least four weeks, which is about another several million in revenue. So you can see what it would cost the company to comply.”

As Walters draws a breath. I see the lines in his forehead deepen and his color turn ashen. The sincerity and the pain were evident in his face.

He forces himself to continue. “I had ordered correction of these violations, and it wasn't done. When I confronted the manager who failed to do it, he told me that Constantine had ordered him not to proceed with my instructions. I took the matter to Michael, who admitted that my orders had been …” He pauses and his eyes narrow. “I even remember the term he used so dismissively. My orders had been 'set aside' because it was not a good time for the company to spend that much money. I had to swallow my anger to get the words out. I told him that we were risking lives. His response was that the engineers overstated the problem, and we would address it in due course. That was when the chasm between us opened up. I told him I could not accept that resolution; that something needed to be done now, not after a disaster. Michael stared at me silently for the longest time, and then he said that he would handle the matter from that point forward. I just walked out in silence and disbelief, knowing that there was no way back from this for me or him.

“I went to my office, and I called the mining inspector from Easton County, who told me that he had received a letter from the company two weeks ago stating that they were in the process of correcting the violations the county issued. I told him that the company was not correcting these violations, and we continued to operate at full strength. He told me he had been called to an emergency meeting in Richmond, but would be at the mine with a team within forty-eight hours, and that I should say nothing inside the company until then. I agreed. Seventeen hours later, before he and his team got there, we had a collapse at the site, and one worker died, and three were seriously injured.”

“Holy s**t,” I say, incredulously.

“It gets worse. I also think that records were manipulated.”

“Why do you think so?”

“Because violations that preexisted the disaster were no longer there. It's like they disappeared from the records.”

“Unbelievable,” I say. “That's the Wheeling collapse I heard about on the news?”

“One and the same,” Walters says. “And you probably also saw reports showing everything was first-rate at that site.”

“Yeah, the company was almost immediately vindicated. I was surprised how quickly.”

“Right. The reporting said this was a great facility, and no violations were found to have caused the explosion. The whole thing was smoke and mirrors, but it was brilliant, and Constantine somehow got it done like that.” Walters snaps his fingers to drive home the point.

I nod, reflect, and then ask, “So did this fellow from Easton County—you don't happen to know his name, do you?”

“I do,” he said. “It's Miller. Carl Miller.”

“Did he ever show up at the real site?”

“One day later. I met with him and told him that the conditions had not been corrected. He told me he was going back to the office to get the lawyers involved. He was angry, and he was talking injunctions and major fines. He shook my hand and left.”

“Did he do it?” I ask, thinking that the fines, or even a report, would help us establish that the site had problems.

Walters pursed his lips and furrowed his brow. “No,” he says, wonder in his voice. “Two days later, when I had heard nothing, I called him. They told me he no longer worked for the county. After I was fired, I spent a couple of days trying to track him, but I just hit a brick wall. No one seems to know where he is.”

I stop writing for the first time in twenty minutes and exercise my cramping hand. “That's an incredible story,” I offer. “Based upon what you've told me, I think you can bring a lawsuit for wrongful termination in violation of whistle-blower statute and wrongful termination in violation of public policy, which protects employees from retaliation for the reporting of conduct by the company that was contrary to law and public policy. If you win, you can recover economic losses, such as salary and benefit losses, and emotional distress damages. If a jury believes that the employer acted maliciously, punitive damages to punish the employer's misconduct for profit.”

Walters regards me for a moment, and then says, “I understand, but I want you to know that this is not about money for me. This company has been my life for over twenty-seven years. I would have been satisfied to walk away, even though I don't think I should have been fired. I'm okay for money, and I'll get by however this suit comes out. I just can't let the company trade lives for money and then cover it up.”

That was the moment when I knew that I would represent Kevin Walters.

He takes off his glasses and rubs his eyes, and then replaces them. He looks at me with concern, and a certain vulnerability that gave him a very human, credible quality. My assessment isn't simply an evaluation of jury potential; I really like the man. “I'm told that you're good at what you do. Will you help me?” he asks, getting to the bottom line.

I momentarily ignore the ultimate question, instead posing one of my own. “What about reports prepared by Carl Miller? Have you attempted to get those?”

He nods, his expression a combination of perplexed and uncomfortable. “I did. The county says that they have no record of what he wrote or the letter I wrote; no notes, nothing.” He was quiet, and then says, “I'm sure that everyone you talk to sees conspiracies around every corner, but I know what this company can do. What Constantine lacks in humanity, he tries to compensate for in IQ points.”

I say, “I think you're a credible guy, and that's important to my assessment of whether I represent someone.” I lean back in my chair, and add, “But, to be frank, my concern is how we prove any of this to a jury, especially in the face of disappearing evidence. If we can't turn up any critical documents, the company will do their best to pass you off as a sour grapes case; fired and looking for revenge.” Walters silently considers this. I add, “Give me twenty-four hours to review and consider, and I'll get back to you.”

“Fair enough,” he says, and we both stand. He adds, “You should also know that they will fight us with everything they've got. And they've got amazing resources.”

I nod. That fact was not disconcerting to me, because this was the story of my life. In representing an employee against a major corporation, it doesn't take long to become fully indoctrinated to large defense firms aiming to paper you to death; staffing a case with a partner, to make the big decisions; a senior associate, to handle most of the work on the case; and a new associate, to spend countless hours in researching obscure questions, preparing interrogatories and requests to produce documents, and whatever else rolls downhill. “I understand,” I say. “I regularly tangle with members of the Fortune 500, and they never make the job easy.”

We walk through the front door and then stop on the driveway to shake hands and say good-bye. “I like you, Scott,” Walters tells me. “You seem like a good guy, and I'd be comfortable having you represent me. I hope you decide that you can take the case. In any event, thanks for taking time from your family to talk to me.”

I had already decided that I would represent him, and I'm still not sure why I didn't tell him then. Instead I smile, extend a hand, and say, “It has been a pleasure to meet you, Kevin. I will call you tomorrow.”

As I watch him walk toward the gray Tesla parked in front of Bernie's house, I evaluate the conversation. I believe what he said, and he seemed like a guy who was screwed over by his decision to do what was right rather than what was profitable or expedient. It was courageous, and I respected it. I take satisfaction in my work as a fighter for the underdog. The image of the little David whose rights have been trampled by the all-powerful Goliath is an image I like to convey to juries, who are often employees who don't like one of their own to be victimized by an entity much more powerful than themselves. And employees bringing an action are underdogs. The big company has all of the information, controls many of the personnel, and often has limitless resources at its disposal.

As I consider Kevin Walters, it occurs to me that he is the real thing. I already know that I want the case, and I will take it on unless Bernie reveals something sinister about the man, or I learn that he is a refugee from a state mental institution, both of which I doubt. As I consider all of this, I have no idea what the decision to represent Kevin Walters is going to do to me and my family life.

After saying good-bye to Kevin Walters, I turn back toward the house to see Katy standing on the lawn, looking up at the few lights so far in place with her hand on her hip. I suppress a giggle as I watch her shaking her head in displeasure. What a ball-buster she is. “Daddy, are you still going to have time to do this before The Wizard of Oz? Maybe I can get you some coffee to help you.”

Apparently, my little girl thinks that caffeine is the only answer to my limited progress. “I'll get it done, sweetie,” I say, reassuringly. “Don't you worry.” I have visions of me outside on the rickety old ladder at midnight. She gives me a wide smile, and the idea of being on that ladder at midnight doesn't seem so bad. Clearly, little girls have way too much influence over their daddies.