Mixed message:

Equivocal verdict confirms MSD violated the law by laying off workers, but the lack of financial penalties leaves the agency claiming victory

[img_assist|nid=3790|title=A jury said MSD violated the law|desc=illustration by Ashley Cecil / www.ashleycecil.com A jury said MSD violated the law by laying off Sarah Lynn Cunningham, above, but did not impose financial penalties.|link=|align=left|width=186|height=200]There was no smoking gun in the trial of two former employees who sued the Metropolitan Sewer District for wrongful termination, so the whole thing was that much harder to understand, particularly for our “CSI” culture of neatly wrapped hour-long whodunits. You’re excused for not knowing exactly why you should care that the top dog at MSD laid off two employees in part for blowing the whistle on alleged political patronage, only that it matters when public agencies spending the public’s money may be up to no good.

The verdict rendered by the 10-member jury last Wednesday evening was fittingly complex, a mixed ruling confirming that MSD did violate the law by laying off Sarah Lynn Cunningham and terminating the contract of Ronald Barber. In placing the blame with MSD, however, the jury decided against leveling the harsh financial penalties we’ve also grown accustomed to in cases like this one.

The nuance of such a verdict has allowed both sides to claim victory. That’s wrongheaded for several reasons, not the least of which is the fact that the jury said, in no uncertain terms, that MSD violated the law.

Bud Schardein won’t talk to me. MSD’s executive director and the man whose passion it was to make MSD an agency more open to and engaged with the public — this idea was invoked by the defense during the seven-day trial to help debunk one of the claims Cunningham made, that the agency was doing favors it shouldn’t have been — hasn’t returned numerous calls and e-mails since the week before the trial began. That’s understandable, as LEO has been the only news outlet to give more than a mention to this case, and the only thing MSD has left to worry about in this situation is bad press.

Both Cunningham and Barber were relieved by the decision, claiming vindication and adding that they weren’t merely seeking money. “I asked for money because it’s the language of accountability in our society,” Cunningham wrote via e-mail last week. Barber said the case was a lesson in power, oppression and, ultimately, accountability.

Conversely, what Schardein told The Courier-Journal last Wednesday — that MSD has been vindicated by the verdict, that he’s happy the trial is over and that he’s upset MSD had to spend all this ratepayer money defending “people at MSD who did nothing wrong” — is shocking in its apparent denial of reality. Perhaps the only clear message the verdict sent was that MSD laid off two people in part for reporting what they considered violations of the agency’s ethics and regulations. That contravenes the Kentucky statute that protects whistleblowers.
This is an objective reality.

Also an objective reality is the jury’s decision to award virtually no damages. Barber, a contractor who shared information that Cunningham later reported to the state Attorney General, received $35,000 for lost wages. Cunningham received nothing, and no punitive damages were awarded.
Glenda F. Green, a juror in the case, said in a phone interview last week that the jury decided Cunningham — who receives a $40,000 annual pension and is working as a contractor — didn’t need any compensation for the money she lost when MSD laid her off in December 2004.

“We did go around a bit on should we penalize MSD for what they did,” she explained. “At some point, we were getting frustrated because all of us did not agree on everything all the time.”
The jury deliberated for more than six hours, and Green said they could’ve gone all week, had it not been for the compromise. She also said the verdict was colored by Cunningham’s work history — revealed in detail by the defense — which includes several disciplinary instances, most of which date to the 1990s.
It’s called a mixed motive verdict by those who follow legal matters.

“The jury could have said, ‘Well, yes there was a violation here, but this layoff also had legitimate explanations, and (MSD) took advantage of the fact that there was a layoff needed for reasons of declining workload or budgetary reasons, to select you out to also get rid of you,’” said Sam Marcosson, a professor of law at the University of Louisville’s Brandeis School of Law. His background, in part, is in employment discrimination law. “But since somebody was going to go, there’s no justification for damages.”

The ultimate impact to MSD’s wallet is fairly small — the agency spent well over $250,000 on the suit and will likely have to pay a portion of the plaintiff’s legal fees, which Cunningham said were around $60,000. But the only direct “penalty” is Barber’s compensation. As such, Marcosson said the deterrent effect that might’ve been accomplished by punitive damages is diminished. However, he also said there’s some question about the effectiveness of such penalties on agencies that spend public money.

“The person who writes the check isn’t necessarily the person who’s making any of these decisions down the road,” he said.

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