Rutgers’ “Independent” Investigation

RutgersOne wonders how an “independent” investigation could support a finding that Rutgers bullying basketball coach Mike Rice should remain on the university payroll?

Rice was forced to resign recently after a videotape was leaked to the public and showed him verbally and physically  abusing players, while using homophobic slurs.

 In his letter of resignation letter to Rutger’s President Robert L. Barchi, Athletic Director Tim Pernetti writes:

 “As you know, my first instincts when I saw the videotape of Coach Rice’s behavior was to fire him immediately. However, Rutgers decided to follow a process involving university lawyers, human resources professionals and outside counsel. Following review of the independent investigative report, the consensus was that university policy would not justify dismissal.”

Corporate Counsel  reports that the outside counsel, Attorney John Lacey, an attorney with Connell Foley of Roseland, NJ,  issued a report in January stating that Rice could not be fired “for cause.” because there was no clear violation of his employment contract.

  Lacey found that Rice was extremely demanding of his assistant coaches and players but that his behavior did not constitute “a ‘hostile work environment’ as that term is understood under Rutgers’ anti-discrimination policies.”  Lacy said  the “intensity” of Rice’s misconduct may have breached provisions in his contract against embarrassing the school but, as Rutgers officials conveniently point out, did not recommend termination. 

The conclusion of the so-called independent investigation once again raises questions about these so-called  independent investigations.

 Increasingly,  employers hire  outside parties to “investigate” claims of workplace abuse.  There  often is  an unstated expectation that the result  of the investigation will affirm the employer’s goal of retaining the valued bully while insulating the employer from a potential lawsuit if the less valued target files a lawsuit. Too often the so-called independent investigators are attorneys who place themselves in the position of appearing to be for sale to the highest bidder.

 The videotape is so shocking that it defies reason that any “independent” investigator could reasonably  conclude that Rice’s behavior did not justify dismissal. In fact, some of the basketball  players could have filed criminal assault complaints against Rice for physically manhandling them. Instead of dismissing Rice, Rutgers fined him $50,000 and suspended him for three games in December.

 Just as in the Penn State scandal involving  pedophile football assistant coach Jerry Sandusky, Rutgers appears to have tolerated Rice’s bad behavior.

After the videotape was leaked, the dominos began to fall. Rice was fired.  Assistant Coach Jeremy Martelli, Rutger’s General Counsel John Wolf, and Pernetti resigned.  If I were Barchi, I wouldn’t make plans to redecorate the Presidential suite.  Barchi’s  claim that he never took the time to watch the videotape.until it was made public was met with obvious disdain at a press conference. Barchi blamed his bad decision on a “failure of process.”

Here is what needs to happen so that employers will take workplace bullying seriously – managers  need to be held accountable.  

These student athletes are essentially workers who are paid in the form of scholarship assistance by the university.  Like any other worker, they know that  a complaint can result in retaliation and their termination.  These players  relied upon their unofficial employer, Rutgers, to insure they were treated with dignity and respect and certainly not subjected to emotional and p physical abuse.

 Most of the players just put up with Rice’s abuse. However, according to news reports, at least three players transferred from the program as a result of Rice’s abuse.



OK for Dentist to Fire Object of Desire

flossIn a small office, an employee often has no where to go  when she is mistreated by an employer.

The perils of this predicament are amply demonstrated in a recent ruling by the Supreme Court of Iowa.

The all-male Court  ruled that a dentist did not violate sex discrimination laws when he fired his long-time dental assistant because he (and his wife) was afraid he would have an affair with her.

The  Court upheld a lower court’s grant of summary judgment  in the case of Nelson v. Knight, No. 11–1857 (Dec. 21, 2012). This means the Court concluded  there was absolutely no way a jury could decide against Dentist James H. Knight and hold in favor of his assistant, Melissa Nelson.  Therefore, the case was dismissed before  trial.

Knight said he fired  Nelson, who had worked for him for ten years,  after his wife insisted that Nelson had to go. He gave Nelson one month’s severance.

 Knight admits that on several occasions he asked Nelson to put on a lab coat because her clothing was too tight, revealing and “distracting.”  Nelson denied that her clothing was tight or in any way inappropriate and said she complained to Knight at one point that his criticism was unfair.

 Nelson also recalls that  Knight once texted her to ask how often she experienced an orgasm. Nelson did not answer the text. The Court found it significant that  Nelson did  not remember ever telling  Knight not to text her or telling him that she was offended.

 When Knight’s wife found out that her husband and Nelson had been  texting each other, she confronted her husband and demanded that he terminate Nelson’s employment.  The Court finds it significant that Knight and his wife  consulted with the senior pastor of their church, who agreed with the decision.

After the firing, Knight told Nelson’s husband that nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.

Nelson charged that Knight had discriminated against her on the basis of sex in violation of the Iowa Civil Rights Act. She contended that she would not have been fired if she were male. Nelson did not raise the issue of sexual harassment.

 The Court states in its decision that the question  to be decided was “whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction.”   In this case, the Court held that  Knight’s decision was driven by individual feelings and emotions regarding a specific person. The Court concluded Knight’s decision was not gender-based or based on factors that might be a proxy for gender.

The Court states that an employer does not violate sex discrimination laws by ” treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.”

 The Court did concede that it might be possible to infer that gender was an issue if an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues.

 So if  Knight repeatedly fires future assistants because he thinks he might want to have an affair with them, or if Knights’ wife demands that he fire future assistants because she thinks he might want to have an affair with them,  presumably a Court could find discrimination  on the basis of sex.

Meanwhile, Melissa Nelson is unemployed, with one month’s severance.

This may not come as a surprise to some readers but, according to the Court’s web site, there are no women justices on the Iowa Supreme Court. The seven justices are Chief Justice Mark S. Cady, David S. Wiggins, Daryl L. Hecht, Brent R. Appel, Thomas D. Waterman, Edward Mansfield and Bruce Zager.  Justice Mansfield wrote the opinion.

I Will Ruin … Who?

NOTE:  State College of Florida President Lars Hafner subsequently  resigned on Oct. 30, 2012 with a $363,000 settlement agreement.  The board  voted 7-0 in January 2013 to hire a new president,   Dr. Carol Probstfeld,  formerly vice president for business and administrative services at the college.  Carlos Beruff, a realtor, remains on the board.  Sigh.

Go quietly or I will ruin you

That alleged threat is at the heart of what promises to be a costly battle between two titans at State College of Florida (SCF) in Manatee-Sarasota.

The Bradenton Herald reports that the college’s board of trustees voted  5-2 this week to ask Florida’s Attorney General to investigate an allegation of forgery against SCF President Lars Hafner.

Hafner says the vote stems from a campaign of bullying by SCF board chairperson Carlos Beruff.  He recounted a private conversation with Beruff about nine months ago in which Beruff allegedly told Hafner, “If you don’t go quietly, I’m going to ruin you and ruin your reputation.”

Beruff has accused Hafner of forging former board president Steve Harner’s name on a 2010 state grant application for SCF’s Collegiate School charter school. Hafner contends he signed Harner’s to the document with Harner’s permission.

Hafner accused Beruff of risking the college’s reputation for the sake of what Hafner called Beruff’s personal and political agenda against him.

“This has been nine months of, basically, a witch hunt, and of you bullying me,” Hafner said to Beruff. “You’ve been doing it in private so other board members were not aware of what you’re saying or doing.”

At a special board meeting called by Beruff , Beruff presented an affidavit from attorney Greg Porges, whom Beruff had hired privately to research the forgery question, in which Porges said Harner did not authorize Hafner to sign the grant application in his stead.

Hafner presented an affidavit directly from former president Harner, in which Harner stated he believed that in up to four instances he had authorized Hafner to sign his name on Harner’s behalf and with Harner’s “direction and instruction.”

Meanwhile, board member Jennifer Saslaw, one of two board members to vote against taking the case to the attorney general, said Harner told her that Hafner’s signature on the application was made with Harner’s approval.

Joe Miller, the other board member to vote against involving the attorney general, questioned whether Beruff was attacking Hafner at the behest of Gov. Rick Scott, whose has proposed eliminating tenure for university employees and cutting the pay of university and college presidents.

Judge Ed Nicholas, a member of the SCF Foundation, accused the SCF board of “destroying the morale of this school” and driving away donors.  “Ever since you’ve been chairman, you’ve done nothing but attack this college or attack the staff,” Miller said. “I’m not sure who’s running things, the governor or this board.”

Hafner also said he was exploring whether Beruff violated state statutes by sharing information about Hafner’s evaluation.

One can’t help but wonder whether at any point the above officials considered other options to settle their difference? Say, mediation?  Counseling about the proper role of the administration versus the board? A duel?

Great Policy; No Follow-Through

The best policy in the world won’t protect you without follow-through.

That’s the lesson of a decision by the Seventh Circuit  Court of Appeals  in a Wisconsin sexual harassment case, Equal Employment Opportunity Commission v. Management Hospitality of Racine, Inc., et al., No. 10-3247 (Jan. 9, 2012,).

The defendant, a company owned by Salauddin Janmohammed  which operates 21 International House of Pancakes restaurants, had a “zero-tolerance”  anti-harassment policy in place, anti-harassment training, and a policy of investigations of complaints.

What it didn’t have was follow-through. Or, in the words of the Court, “the policy and complaint mechanism were not reasonably effective in practice.”

According to the Court:  “the presence of a sexual harassment policy is encouraged by Title VII [but] the mere creation of a sexual harassment policy will not shield a company from its responsibility to actively prevent sexual harassment in the workplace.”

The Court upheld an award of $105,000 to two teenage servers at an IHOP operated by the defendant in Racine.  Katrina Shisler and Michelle Powell said they were sexually harassed in 2004 and 2005 by an IHOP assistant manager in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

Normally, an employer can advance the so-called Faragher/Ellerth affirmative defense in a Title VII case sexual harassment claim involving a hostile work environment. This allows the employer to escape liability for damages if:

 (a) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and

 (b) “the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.”

The Court said the  Faragher/Ellerth affirmative defense was not available to the Management Hospitality because both teens had complained to managers about sexual harassment  and the managers did nothing.  The company did not begin investigating until a private investigator hired by an attorney for one of the teenager began asking questions.

The Court said a rational jury could have found that the sexual harassment occurred “every shift,”  was “highly offensive,” and included “physical touching.”

The Court said a rational jury also could conclude that the employer failed to follow its own policies by discouraging  employees from reporting complaints, providing inadequate anti-harassment training to supervisors, and failing to “promptly” investigate the complaints.

The EEOC filed suit on behalf of the two teenaged servers. A jury awarded one of the servers $1,000 in compensatory damages and the other $4,000 in compensatory damages and $100,000 in punitive damages.

Lessons for Ebenezer Scrooge

*** As we read about the one percent who own 40 percent of our nation’s wealth, the millions of unemployed, the plague of home foreclosures, the failure of schools, and the GOP’s insistence upon extending Bush tax cuts to the richest Americans, let us remember the lessons of the original bully boss. PGB

 Lessons for Ebenezer Scrooge

Spirit of Christmas Past: “And as your business prospered, Ebenezer Scrooge, a golden idol took possession of your heart, as Alice said it would.”


Ebenezer: “I suppose you’ll be wanting the whole day tomorrow.”

Bob Cratchit: “If quite convenient, sir.”

Ebenezer: “Every Christmas you say the same thing. And every Christmas it’s just as inconvenient as the Christmas before. Good night.”


Jacob Marley: “In life, my spirit never rose beyond the limits of our money-changing holes! Now I am doomed to wander without rest or peace, incessant torture and remorse!”

Ebenezer: ” But it was only that you were a good man of business, Jacob!”

Jacob Marley: “BUSINESS? Mankind was my business! Their common welfare was my business! And it is at this time of the rolling year that I suffer most!”


Spirit of Christmas Present: “My time with you is at an end, Ebenezer Scrooge. Will you profit from what I’ve shown you of the good in most men’s hearts?”

Ebenezer: “I don’t know, how can I promise!”

Spirit of Christmas Present: “If it’s too hard a lesson for you to learn, then learn this lesson!”

[opens his robe, revealing two starving children]

Ebenezer: [shocked] “Spirit, are these yours?”

Spirit of Christmas Present:  “They are Man’s. This boy is Ignorance, this girl is Want. Beware them both, but most of all, beware this boy!”

Ebenezer: “But have they no refuge, no resource?”

Spirit of Christmas Present: [quoting Scrooge] “Are there no prisons? Are there no workhouses?”


Tiny Tim: “God bless us, every one!”

*From A Christmas Carol by Charles Dickens

‘Queen Bee’ Boss is Obstacle to Other Women

What follows are excerpts from a study by psychologists at the University of Cincinnati concluding that female ‘Queen Bee’ bosses tend to be “cogs in the machine” to other women in the workplace.According to the researchers, a female boss is more likely to wreck a woman’s promotion prospects in male-dominated environments and men who report to a female manager get much more mentoring and support than their female colleagues. The researchers say that women who manage to break the glass ceiling may not want competition from other women and/or may want to blend in as much as possible with their male counterparts.  The excerpt is from:  Maume, David J. ,  Meet the new boss…same as the old boss? Female supervisors and subordinate career prospects,  Social Science Research Volume 40, Issue 1, January 2011, Pages 287-298.

… Drawing a 2002 national sample of non-managerial workers, men exceeded women in receiving job-related support from female supervisors and were more optimistic about their promotion chances as a result. Although cross-sectional data precludes drawing firm conclusions regarding processes that occur over-time, the results are consistent with the notion that female managers are cogs in the machine, in that female supervisors have little or no effect on the career prospects of female subordinates, and instead foster men’s career prospects.

… when women attain jobs paying wages similar to men’s, informal workplace dynamics are unleashed that seek to restore men’s more privileged position in the workplace. These processes include isolation and exclusion from informal networks and professional growth opportunities ([Purcell, 2007] and [Reskin et al., 1999]), ratcheting up job demands to determine if women will put work ahead of family life as men do ([Fried, 1998] and [Hochschild, 1997]), and harassment of a general and/or sexual nature ([Acker, 1990] and [Roscigno, 2007]). The cumulative effect of these informal processes is that women’s work effectiveness is compromised, increasing the likelihood that they will either quit their jobs or be fired.

Given gendered informal dynamics that are pervasive in the workplace, some contend that female bosses either lack the power to impede organizational preferences to foster men’s careers, or that female bosses agree with negative stereotypes of female workers ([Cooper, 1997] and [Deaux, 1985]; Wajcman, 1998). And of course, female supervisors may themselves be the victims of informal processes to marginalize them and compromise their effectiveness ([Kanter, 1977] and [Fried, 1998]). In either case, when subordinates report to female supervisors, they may not perceive them to be any different from male bosses who give male subordinates more attention and more chances for promotion as way to advance their own careers. If so, female subordinates will be more likely to quit out of frustration or be fired, even though they may hold jobs paying wages similar to men’s. Jacobs (1989) characterized this process as one of “revolving doors,” in which women enter high-paying male-typed jobs only to exit these jobs later. This dynamic could reconcile the apparent inconsistency between studies reporting an association between more female managers and a lower gender wage gap, and this study’s finding that men’s, but not women’s, career prospects are enhanced when reporting a female superior.

… Despite these caveats, this study is the first representative analysis of how subordinate career prospects are affected by directly reporting to a female supervisor. The results are consistent with much research showing that workplaces are pervasively male-oriented in their customs, policies, and structures, and that female bosses are no different from male bosses in reacting to organizational preferences to invest in men’s careers more so than women’s. Additional research is needed on the organizational mechanisms fostering or impeding women’s ascendance to supervisory positions in order to assess progress toward the goal of affording men and women equal opportunity to exercise managerial authority. Yet, irrespective of what future studies of managerial attainment show, those who expect that female bosses will dramatically change the nature of superior-subordinate relations are likely to be disappointed.

Employer Picks Up the Tab?

Here’s a 2/15/11 article in The New York Post about an alleged bully boss.  Whether or not Mr. Dingle prevails,  this story should give employers pause to think about the high cost to THEM of alleged bullying – higher health costs, sick leave, complaints to human resources that tie up personnel, lost work hours, poor morale, bad publicity that may discourage quality job applicants and taint the organization, turnover, and, of course, costly litigation.  As a lawyer and consultant with experience in employment law and domestic violence, I have done substantial research in this area and believe that training, monitoring and early intervention could resolve many of these problems before they reach the critical stage.  PGB

‘My boss’ voice made me vomit’


The mere sound of his boss’ voice made his stomach turn.

Housing Authority Superintendent Anthony Dingle was so sickened by higher-up Demetrice Gadson’s constant berating that he would literally vomit, according to a lawsuit.

“I was constantly being attacked by her. I felt like attacks could come at any time. Every time I heard her voice, it triggered a sickening feeling in me,” Dingle said through his lawyers, Michael Borrelli and Alexander Coleman.

Dingle, 48, claims that his boss became verbally abusive after he blew the whistle on her for alleged shenanigans.

He says he was forced to go to a doctor because of the abuse to get “prescribed medication to calm his stomach and to get his intestinal system properly functioning,” the Manhattan Supreme Court suit charges.

A colleague even told him that Gadson relished in his suffering, the suit alleges, saying, “I did not know that I made men throw up” — and then laughed hysterically.

Gadson, 43, who is deputy director of the Housing Authority’s Manhattan Management unit, was so heartless that she even chastised Dingle as he grieved for his dead uncle, the suit says.

While Dingle was attending his uncle’s funeral in South Carolina, Gadson allegedly fired off e-mails to him that ripped him for not requesting overtime to address certain issues and accusing him of “not knowing his role.”

“She showed me a complete lack of respect,” Dingle said through his lawyers.

Dingle’s health continued to deteriorate, the suit says, and he suffered from a bleeding prostate that was treated by a urologist.

He was so beaten down emotionally that he sought out a shrink.

“Mr. Dingle began seeing a psychological therapist, and he continues, to date, to see this therapist on a weekly basis,” the suit charges.

The suit, filed late last year against the Housing Authority and Gadson, alleges the boss began verbally bashing Dingle after he complained about her to higher ups while he was superintendent at the Polo Grounds Towers in Harlem.

It follows a federal suit filed by Dingle against both last year. In that suit, the judge dismissed the case against the Housing Authority while the claims against Gadson remain pending. The Housing Authority declined to comment.

Reached by telephone, Gadson declined to comment.

Employers that Abuse Job Applicants

We have all read about the self-defeating mistakes a job applicant can make at a job interview.

The woman who brought her toddler. The guy who took the phone call from his wife. The girl who wore a revealing T-Shirt and flip-flops.

It is less well understood that this is a two-way street. Employers make “mistakes” too.  Some employers use tactics that are abusive to potential employees, who often have no recourse to complain.

A potential employer is in a power position. The employer has what the applicant wants – a job. For that reason, most job applicants seek to please. However,  some employers seem to feel that by consenting to an interview, the applicant has forfeited his or her right to be treated with dignity, respect and fairly.

The Society for Human Resources Management exhorts its 250,000 members to abide by a Code of Ethics that includes: “Encourage my employer to make the fair and equitable treatment of all employees a primary concern.” That tenet should be broadened to apply to job applicants also.

An applicant found her dream job at a non-profit organization halfway across the country. She was offered the job and moved there with her children. However, in the month between the offer and her arrival, there was a management shakeup. When she arrived, her job description had changed and she was reporting to a new supervisor who had not participated in her job interview. Furthermore, the new supervisor was 20 years younger, far less experienced, and was hostile from the start. The applicant estimates it cost her about $8,000 to relocate for the job, and that it will cost her many thousands more to relocate again – not including lost pension benefits and the emotional distress.

In another instance, after meeting with the Human Resources person, a job applicant for a position in Long Island  literally waited six hours sitting in a chair outside the boss’ office. At one point, he heard the boss  talking on the phone, laughing, and making plans for dinner.  The interview was finally conducted at the end of the day. It lasted about ten minutes. To add insult to injury, he was stuck on the drive home in Long Island’s infamous rush hour traffic for about two hours.

One applicant, an unemployed father of two, says he was strongly encouraged to fly to Philadelphia to meet with a prospective employer, who indicated he was a finalist for the position but could not be appointed without a face-to-face meeting.  This was a job at a state agency that, he was told, had no travel budget.  Upon arrival in Philadelphia, the prospective employer administered the equivalent of a standardized test  that he said he was giving to all applicants.  The “test” could easily have been conducted over the phone. The applicant, who didn’t get the job, advises:  “Never pay for travel!” (Suggest Skype – it’s the equivalent of a  face to face interview and it’s free.)

Finally,  an attractive woman in her mid-50s recalls a job interview in Connecticut with a direct supervisor that was going well.  The supervisor said the company president planned to stop by and say hello.  At one point, a man in his 40s walked briskly into the supervisor’s office, took one look at the applicant, and, wordlessly, turned on his heels and walked out. There was a long  and awkward silence.  After a few moments, the supervisor,  a woman in her 30s, left the room. When she returned, she said the boss wouldn’t be able to meet with the applicant after-all.  The applicant suspected the man who entered the room was the company president.  She was devastated. “I guess I was too old?” she says.

When a prospective employer makes a mistake or uses abusive tactics, more often than not, the job seeker pays the price. You may not get the job. If you do, you may end up feeling used and abused. And you have little recourse.  The woman at the Connecticut interview might argue she was the victim of age discrimination but what she wanted was a job, not a costly and time consuming lawsuit (assuming she could get an attorney to take her case).

Of course, an abusive employer may lose a valuable potential employee and engender ill will that could cost the employer business in the long run.  And, what’s the point?

Suffice to say that it is amusing when a job applicant makes a snafu but it is troubling when an employer does. The employer exerts power and control over the interview and a bad employer can wreak both emotional and economic hardship on the applicant.

These are difficult times. An unprecedented number of Americans are out of work and ripe for exploitation. A job advertisement for a menial position can precipitate a line of hundreds around a block.  Job applicants need to beware and employers need to insure that their processes accord dignity and respect to all job applicants.