Jury finds state guilty of retaliation in whistle-blower case
The New Mexican | 3 comments
Jury says DOH worker wrongly fired
By T.S. Last / Journal Staff Writer | Sat, Aug 10, 2013
Posted: 12:05 am
Compensation to exceed $134K
A Santa Fe jury of 10 women and two men awarded more than $134,000 to a state Department of Health employee who they determined was wrongly fired after she reported problems with federal funding and accounting in the department’s HIV Services Program.
Jennifer Smith, who was fired in July 2012, was seeking compensation under the state’s whistleblower protection act.
The jury’s verdict was unanimous. The judgment included $52,000 in lost wages, which is doubled under the statute, and $30,642 in lost benefits.
Smith, who had been with DOH for six years, was earning $48,000 at the time she was let go.
In addition, the judgment includes attorney fees and costs to bring the lawsuit.
Smith sobbed after the verdict was returned, but didn’t stay around the district courthouse in Santa Fe very long afterward.
“I don’t know if exonerated is the right word, but when you’ve gone through so much and engaged in protective activity for so long, it’s an incredibly powerful and emotional experience,” said Smith’s attorney, Diane Garrity.
Garrity, however, was feeling elated.
“The jury system is the greatest system in the world,” she said. “The jury heard Jennifer’s case and felt the overall conclusion was that Jennifer was a whistleblower who disclosed fraud in the system and because of that was fired.”
Phone messages from the Journal to DOH and its attorney were not immediately returned Friday afternoon. That side had argued that Smith was fired for insubordination.
The jury deliberated about three hours Thursday after closing arguments and another six hours Friday before returning the verdict in Chief Judge Raymond Z. Ortiz’s courtroom.
A year before she was fired, Smith filed a lawsuit against DOH for harassment and retaliation. She alleged then that her supervisors ignored her efforts to correct financial mismanagement and other problems, including failures to compensate providers, missing budget information and failure to file reports with the federal government.
During closing arguments of the four-day trial on Thursday, Garrity argued evidence in the case should lead the jury to conclude that Smith was fired because the DOH had a retaliatory motive to do so.
Garrity noted that Smith was fired just prior to an audit of the department’s books.
“They got rid of the person who could have told the federal investigators what was going on,” she said.
Garrity acknowledged that Smith had written some “nasty” emails to other employees, but others in the department had written emails that were equally bad and were hardly punished, if at all. She said the harshest discipline anyone within the department had received in the previous five years was a reprimand and wondered aloud why Smith was singled out.
Garrity also said that Smith’s letter of dismissal contained allegations that weren’t true and was so “over the top” that it has prevented her from finding another job.
Attorney Michael Cadigan, representing DOH, argued that the real reason Smith was let go was for insubordination, a series of emails she wrote to her superiors and her refusal to attend meetings.
Cadigan said that Smith’s relationship with her supervisors deteriorated to the point that she refused attend any department meetings without her attorney being present.
“That doesn’t work in the real world,” Cadigan said.
Cadigan also cited “personality conflicts” Smith had with people both inside and outside the department, her refusal to return phone calls and emails or to sign evaluations as justification for her dismissal.
Garrity said she wasn’t sure if Smith would seek to be reinstated to her old job at DOH.
“We have to talk to her about that and see how she would feel about going back,” she said.
If Smith does choose to go back to DOH, Garrity said it would be up to Judge Ortiz to determine whether that would be an equitable remedy.
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