Vetting the messenger: In MSD trial, the focus is squarely on Sarah Lynn Cunningham

Jan 23, 2007 at 9:02 pm

[img_assist|nid=3727|title=MSD court|desc=illustration by Ashley Cecil / U.S. District Judge Thomas Russell is presiding over the case in which former MSD engineer Sarah Lynn Cunningham alleges that she was fired for blowing the whistle on unethical dealings at MSD.|link=|align=left|width=200|height=183]Offering his opening statement last Tuesday morning in an ornate, maroon-carpeted federal courtroom, plaintiffs’ attorney David Friedman told the jury that the case, which involves former Metropolitan Sewer District employees who were laid off six months after alleging ethical violations within the public agency, hedges on a simple cliché: Don’t shoot the messenger. The veracity of a May 2004 report to the Attorney General alleging six instances of impropriety and political patronage isn’t the purpose of this trial so much as who delivered it, why she did, and what happened to her and other employees directly after that, he asserted to the 10-member panel.

Not an hour later, MSD attorney Larry Zielke told the jury we shouldn’t be here, that the report by former MSD engineer Sarah Lynn Cunningham was without merit; his voice roiled with incredulity as he explained that this case is “making a mountain out of a mole hill.” Unsurprisingly, Zielke took aim at the messenger, unfurling Cunningham’s 14-year performance history at MSD as if it were a record of how not to behave in a government agency. He called her “cunning,” a neat rhetorical trick meant to conjure negative thoughts every time her last name is uttered.

“This woman knows how to abuse her authority,” he said, citing an instance in the mid-’90s when Cunningham used her MSD badge to enter a private development she suspected of being at odds with regulations.

And so has gone the last week of volleying in Courtroom One of the Gene Snyder Courthouse on West Broadway, a building so steeped in its own fantastic history that the gallery benches have remained glorified church pews — every so often you find yourself wedging your spine between the wooden posts of the backrest, trying to massage the adjoining muscles in a vain pursuit of temporary comfort. There is no real relief.

The short version of this long, weird saga that has put MSD’s ethics on trial — as detailed in court testimony — is this: a couple of MSD employees and one contract inspector, Ronald Barber, began telling Cunningham of potential ethical violations on an MSD capital project in early spring 2004. They involved MSD Board member William Gray (now deceased), 14th District Metro Councilman Bob Henderson and his legislative aide, Larry Mattingly, asking for — and allegedly receiving — favors during a sewer expansion project in South Louisville.

Cunningham took the information to her boss, MSD executive director Bud Schardein, three times — in the third instance, after Cunningham had visited the job site to conduct an audit and found fill dirt from the job improperly stored on a lot owned by Mattingly, Schardein instructed her to put her complaints in writing, and said that he would investigate. During a closed-door meeting on May 7, 2004, the day after Cunningham visited the site in question, she yelled at Schardein, using some derivation of the words “fuck” and “goddamn.” She testified this week that she used profanity to get Schardein’s attention to warn him that politicians were taking advantage of him and would ultimately let him take the fall, if there was a fall to be taken.

Schardein’s version of the meeting is starkly different. He said — and wrote in an e-mail to MSD’s human resources director shortly after the meeting — that Cunningham said he was “too fucking stupid to manage this agency.” In court, MSD’s attorney has characterized the incident as an “assault.”

Four days later, on May 11, Cunningham — a trained and certified engineer — was stripped of all her job duties except one: to maintain and expand the “After We Flush” education program the agency tailors for 5th graders. MSD has said it wanted Cunningham to expand the program — it no longer has a full-time employee for that job.

On May 24, just over two weeks later, Cunningham sent a report to the Attorney General detailing six allegations of impropriety on the part of Gray, Henderson, Mattingly and, by extension, the top brass at MSD. She also sent the report to MSD — she’d not previously submitted a separate report. The agency conducted an internal investigation during the summer and found no wrongdoing.

Cunningham was laid off on Dec. 7 of that year, along with six other MSD employees and a contract worker — Barber. In fact, five of those eight people were involved in Cunningham’s report to the AG. They were also part of the Mill Creek Area Team, which MSD’s attorney has said in court this week — and several witnesses have testified in support of — was finished with its duties and, as such, no longer needed. Of course, the plaintiffs have pointed out, capital projects have ended before at MSD without layoffs.

Nothing particularly revelatory has surfaced during the trial, other than the details of the case, which are nonetheless revealing. Cunningham and Barber, who sued MSD seeking whistleblower status, have both testified that they’d never, in 14- and 12-year MSD careers, respectively, seen political figures so intimately involved in an MSD project, and that by reporting what they’d seen and heard, they were trying to protect the agency. The defense has attempted to paint Cunningham as spiteful and plotting, an overzealous ex-employee trying to squeeze money out of MSD for personal gain.
Testimony ended Tuesday afternoon. A verdict is expected this week.

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UPDATE: VERDICT — MSD retaliated in firing workers
The Metropolitan Sewer District fired two employees in retaliation for a report made to the state Attorney General alleging wrongdoing within the public agency, a jury said this evening, ending an eight-day trial that called to question the ethics of MSD's top brass, including executive director Bud Schardein.

The jury delivered its verdict at 6:15 Wednesday night, saying the agency violated the state Whistleblower Act by firing Sarah Lynn Cunningham and terminating the contract of Ronald Barber after the former filed a complaint with the AG alleging political patronage and intimidation on an MSD sewer expansion project. Barber was a contract inspector who was let go in the same layoff as Cunningham — Dec. 7, 2004.

Barber was awarded $35,000 in lost wages, but the jury gave no money to Cunningham. It also denied Cunningham's claim under the First Amendment, and awarded no punitive damages.

Essentially, the jury decided that MSD had in fact broken the law, yet failed to punish it for doing so, other than philosophically. The verdict seems somewhat inconsistent in that sense — typically in trials where liability is found, damages are awarded. MSD has already spent more than a quarter of a million dollars on its own legal defense; because it lost this case, it will be required to pay at least some of Cunningham’s and Barber’s legal fees as well.

Schardein, who sat stoically at the defense table throughout the trial, was not present for the verdict. Afterward, MSD attorneys Larry Zielke and Nancy Shook left the courtroom quickly. This morning, around 20 MSD supporters, most of whom are employees of the agency and several also witnesses in the trial, sat through closing statements. None were there for the verdict.

Meanwhile, a small group of supporters gathered around Cunningham and Barber to offer congratulations, while the co-plaintiffs hugged and thanked their attorney, David Friedman.

No one from either side was willing to comment for the record immediately after the verdict.

Look for updates at The Lip, as well as in next week’s print edition of LEO. (Stephen George)