May 16th, 2012

Minneapolis City Pages: Bad Bosses Beware

Bad Bosses Beware: Minnesota whistleblower takes on issue of workplace bullying

By Jessica Lussenhop, Minneapolis City Pages, May 16, 2012

Joe Henry hated his boss so much, he would’ve preferred his old Army drill sergeant. “A drill sergeant is consistently one way,” he says. “You know you’re going to get yelled at no matter what.”

Henry, a barrel-chested man with military posture, joined the Army at age 18 and deployed with one of the first battalions to enter Iraq in March 2003. He served a seven-month tour locating weapons caches and maintaining communications lines. A fellow vet remembers Henry as a reliable soldier — steady under the sound of constant gunfire.

For Henry, it turned out wartime was easier to handle than a job in satellite TV installation.

After he returned home, Henry began working as a manager for Dish Network. Six months into the job, his days began to start with the same strange ritual. He’d hit the alarm and lie there, wrestling with the urge to call in sick.

“If I make it to the weekend,” he’d tell himself, “I’ll buy myself a new shirt.”

These little carrots would get him into his car and headed toward the office in Maplewood, but as he neared the low-slung industrial complex, the nausea would set in. There were days he thought he was going to throw up.

All this was over his boss, Marshall Hood.

“He’d get in your face. He’d point, he loved to shove the finger,” Henry recalls. “You never knew what was going to set him off.”

It is nearly impossible to successfully sue your boss for being a bully. While there are decades’ worth of precedents on gender and race discrimination in the workplace, just being an all-around jerk is sanctioned boardroom behavior.

“The standard for outrageous conduct is so high that people lose those lawsuits,” says Dr. Gary Namie, the director of the Workplace Bullying Institute. “Nothing is considered outrageous when committed by management.”

A 2010 study commissioned by the Workplace Bullying Institute showed that 35 percent of adults said they’d experienced some form of “repeated, health harming abusive conduct committed by bosses and co-workers.” Studies in Britain, Finland, and Sweden have all correlated bad bosses with an increased risk of heart disease. Workers’ rights advocates argue that some recourse should exist since bosses can have a profound effect on their subordinates’ careers and mental health, to say nothing of the propensity to go mad with power.

“When you put people in positions of authority, of management, if you look at the behavior, it’s one of the best and most reliable ways to turn someone into a jerk,” says Bob Sutton, a Stanford University professor of management science and author of Good Boss, Bad Boss.

Since there are no existing laws against workplace bullies, up until now it’s been up to the lawyers. In 2007, an underperforming sales executive in Utah was waterboarded as a “team-building” exercise orchestrated by his overzealous boss, and he had to fight to the State Supreme Court to have his claim heard.

An Indiana man sued after his boss, an open-heart surgeon, attacked him in the operating room and told him he was “finished.” In 2008, the victim won $325,000 and media accounts dubbed it the first “workplace bullying” victory in U.S. history.

Despite the scant victories, Sutton believes the days of the feckless corporate boss-holes are numbered.

“You can see it as a part of the zeitgeist, of people being more sensitive about bullying with kids,” he says. “It transfers to the workplace.”

Mitch Absey had no idea, as he watched his wife take a twirl with Marshall Hood on the dance floor of a mutual co-worker’s wedding in 2003, that in nine years they’d be facing off in a civil courtroom.
“He seemed like a nice kid,” recalls Absey.

Dish Network is the second-largest satellite television provider in the country, but when it expanded to Minnesota in the late ’90s, the first office felt like a mom-and-pop operation.

Hood was a stocky, bespectacled Georgia native who’d moved to Minnesota to marry a long-distance girlfriend. While they didn’t have much in common, Absey and most of the employees at Dish became friends.

“We knew what we needed to do and we got the job done,” says Shaun Sheridan, who started at Dish in 2001. “A lot of us would hang around and socialize, play ping pong, go to the bar.”

Peter Beard, the groom from the 2003 nuptials, even had Hood in his wedding party.

“He was a fun guy to be around,” says Beard. “He was friends with pretty much everybody.”

At one time, Marco Esnaola and Hood held identical managerial positions, and Esnaola says he saw Hood as a level-headed boss — except once, after he got into a yelling match with a technician (Hood “respectfully declined” to comment for this story through his attorney).
“I brought him into the office. I told him if he ever wanted to become something more than a lead technician he had to never do that again,” recalls Esnaola.

Hood ultimately proved him wrong. In 2004, as the business at Dish continued to thrive, Hood was offered leadership of the branch and the title of general manager. At the time, Absey says it seemed like a fine decision.

“It was like, ‘Oh, okay, well, no big deal. Seems like it’ll be all right,'” Absey recalls. “And it wasn’t.”

The corporate executives loved Hood’s management. Technicians were averaging 11 jobs a week, up from eight. Job completion rates were high. By those quantitative measures, Maplewood was ranked 13th out of Dish’s 93 offices nationwide.

But behind the scenes, an HR rep estimated turnover was more than twice that of the neighboring Chanhassen office. Workers were miserable.
There were small signs at first: Hood stopped socializing with the rest of the office, former friends say. When a new directive came down from corporate — for example, the “eight-of-eight” rule that said all technicians must be in trucks and on the road at eight minutes to 8 o’clock — Hood enforced it personally, hustling technicians out the door, Esnaola says.

Employees also reported he could be nasty, or have “meltdowns” in meetings.

“He’d challenge people to look for other work. ‘Good luck finding another job,'” recalls Sheridan. “It’s not the right message to send to people.”

In one managers’ meeting with about five others, including Henry and Esnaola, Hood got heated over some scheduling issues and overall low productivity. Suddenly, he blew up.

“You’re pissing all over me!” he shouted, beet-red in the face, throwing sheets of a PowerPoint presentation in the air.
“I almost started laughing. I thought he was kidding,” recalls Esnaola. “Apparently, he wasn’t.”

Even Beard saw a rapid change in the man he once considered to be a close friend, and says they argued on more than one occasion in the office.

“It was a dictatorship,” he says.

But none of that petulant behavior compared to what happened in the spring of 2009.

A manager named James Kline was sitting at his desk in the office, chatting with a couple of other employees. Suddenly, Hood came through the doorway, livid. In one hand dangled an entire Dish satellite: a 20-inch diameter disk with the metal arm sticking out as if ripped off the roof. Hood walked toward Kline’s desk, raised the dish to about chest height, and let the heavy piece of equipment smash to the floor.

“I was physically afraid,” recalls Kline.

According to one manager’s later testimony, Hood shouted, “You want your [performance appraisal], here’s your P.A.!”

Hood shouted that he’d found the satellite in the Dumpster behind the office, just days after he’d told the technicians to start salvaging dishes that could be recycled. Then he stormed out.

Henry recalls the rest of the office staff quickly followed suit. “It was almost comical how fast they were moving,” he says.

Even though the incident became the talk of the office, it was never reported to corporate HR. The office had no representative, though Kline says he typed up an informal note that was sent to Hood. Still, he says he and others had talked directly to Hood about his behavior in the past without success.

“There wasn’t any point to try to raise any issues,” he says.

At the start of the day on January 21, 2010, Absey was in his office when he heard a commotion in the common space. It was Hood and another manager named Kemal Nezarevic.

Hood had asked a couple of field service managers where their technicians were. They told him that Nezarevic had sent them home early, against Hood’s direction. Hood hit the roof.

“Why don’t you know this?” Hood yelled, according to Nezarevic’s later account to HR.

The two began to argue, and Hood started toward his office, with Nezarevic trailing behind him. At the entrance to the office, Hood threw his fist at the half-open door. It crashed open, and the two walked inside and closed the door, still arguing audibly. On the outside of the door was a visible hole.

Absey was shocked. “I’d be fired for that,” he says.

By his own admission, Absey says Hood mostly left him alone. But he decided that since he had the longest tenure in the office, he ought to do something.

“He’s getting worse and worse and worse,” he recalls. “These people don’t deserve it. They don’t deserve to go to work like this.”

He called the office’s HR representative from his car and said he wanted to make a formal complaint the next day.

Hood apparently also realized he’d gone too far and self-reported to HR late that afternoon. In Hood’s version of the incident, however, he wrote that he “asked Kemal to come into my office” and that instead of opening his door, “I hit it with my hand to open [it].”

The version in Absey’s report was not so polite.

“When Marshall has done things in the past he gets really nice afterwards and Mitch does not want to take it anymore,” HR rep Dyann Turner wrote. “Everyone is terrified of him — they think they will lose their job if they speak out.”

Turner also took a statement from all the workers present that day.
“That was not cool,” she quotes Nezarevic saying. “I asked him what if that were me instead of the door ….”

The investigation opened a floodgate of complaints. Several of the workers brought up the satellite-throwing incident. One called the office a “place of fear.”

“I was concerned about repercussion of filing a complaint, but I am at the end of my rope,” wrote one supervisor. “I don’t know what’s worse him finding out that I filed a complaint and using it against me or me and our team working in an environment like this.”

About a week and a half later, Hood told Absey his job was terminated.

“All of a sudden I’m getting let go,” Absey recalls. “And he had this kind of, ‘Whup, you know, kind of looks like I got you in the end’ kind of attitude about it. Just nonchalant.”

In the letter Hood gave him, Absey was told the decision was part of a larger restructuring at Dish. In fact, several people lost their jobs that day, but Absey was chosen for termination over an employee with six years less experience.

Esnaola was also let go that day, but because he had racked up some bad numbers in recent months, he expected it. To him, Absey’s firing made no sense.

“I couldn’t believe it,” says Esnaola. “He’d done nothing wrong.”
Absey was in disbelief as well. Hood offered him the much lower-paying position he’d held eight years earlier as a technician, or an internal transfer to a training manager position in Chanhassen. He applied for the transfer and after a brief phone interview was rejected.

Absey went home and told his wife, who runs a flower shop in Linden Hills. “She said, ‘I know this guy who comes in, here’s his number,'” Absey recalls.

Steve Heikens was dubious when Absey first called him. As an attorney with nearly 30 years of experience and a founding member of the National Employment Lawyers Association, Heikens knew right away that the chances of winning in a bully boss case were slim to none.

“Laymen, they think that’s a hostile work environment, but the law defines ‘hostile’ as because of sex, race, age. It doesn’t mean a general hostility,” Heikens explains. “Disrespect for an employee is not illegal. It should be, but it’s not.”

Absey described the crashing satellite dish and the door-punching incident.

“How can it not be against the law to behave that way at work?” he remembers asking. “You have to punch somebody at work for this to be illegal?”

Heikens typed a few terms into Google: “Minnesota,” “violence.” To his surprise, Minnesota Statute 1.5 came up.

“The State of Minnesota hereby adopts a policy of zero tolerance toward violence,” it reads. “It is state policy that every person in the state has a right to live free from violence.”

Heikens surmised that under this statute, he could present Absey as a whistleblower who was retaliated against for trying to keep the workplace “free from violence.” It would be a totally novel approach to a bullying case, but if it worked, it could be precedent-setting.

Almost two years after Absey was fired, Marshall Hood took the stand in Ramsey County Civil Court. Judge Elena Ostby advised him of his right not to incriminate himself. Some of the behavoir he was about to admit to could be considered disorderly conduct.

“Mr. Heikens,” Judge Ostby said, “proceed.”

“Thank you, Your Honor,” he said.

In the two years it took to bring the case to a jury trial, there had been significant changes at the Maplewood office. As Absey was clearing out his desk, a Dish regional manager from Chicago arrived to see the hole in the door for himself. Five days later, the manager sent Hood a letter.

“Based on direct observation of the damage to the door as well as concerns reported from multiple staff members, it was determined that that damage to the door was more extensive than originally reported,” the Chicago manager wrote. “You were not punching the door in an attempt to open it, but instead punching the door in a moment of anger.”
Hood was suspended for three days. Afterward, he remained general manager of the office until it was closed and consolidated with another branch in February 2011 (Hood is now employed with a Dish subcontractor).

Meanwhile, Dish’s attorneys sought unsuccessfully to have Absey’s case tossed. Hood settled privately with Absey, but he still had to testify. It was finally time for Heikens to test his theory.

Heikens asked Hood if he swore at his employees. Hood admitted that he had.

“You must feel that if you add a little intensity, they’ll listen to you even more?” asked Heikens.

“Passion, I would say,” Hood answered.

“Did you demonstrate your passion in the workplace?” asked Heikens.
“I would say, yes,” said Hood.

“Was throwing the dish down on the ground an example of the passion?” asked Heikens.

“No, that was more frustration,” said Hood.

Hood admitted on the stand that he’d thrown papers in the air, smashed the satellite dish to the ground, and punched a hole in his door.

“Do you have any problems related to your temper in the management of the employees at Dish?” Heikens asked.

“I would say I would get frustrated with their lack of performance in certain areas,” Hood retorted. “They all had opportunities to be better.”

“Did you also have opportunities to be better?” asked Heikens.
“Absolutely,” said Hood.

After several days of testimony, the jury heard from top brass at Dish who testified that Absey’s job loss was a long-planned restructuring, and based only on two performance surveys Hood had filled out in 2008 and 2009. In one, Absey had scored a 62 — his replacement, who at the time had been on the job for a month, scored a 64. They also heard a string of human resources employees pass the blame on reporting the satellite dish incident.

Both current and former employees spoke, including a current Dish manager who said that he’d expressed a desire to hire Absey back a month after his departure but was cautioned against it: “Do you want to fill the position with him? He was terminated for a reason.”

On the final day of trial, the attorney for Dish closed by saying that while the company did not deny that Hood had “issues” with his leadership, there wasn’t enough evidence to prove retaliation against Absey. Then Heikens rose for his closing argument.

“Somehow companies have to learn to have a conscience. They have to learn not to treat HR as a black hole, where information goes in and gets buried,” he said. “They have to take it seriously.”

The jury agreed with him. On February 2, 2012, they ruled that Absey’s report was a motivating factor for not giving him a position in another office, and that Dish acted “with deliberate disregard for the rights and safety of others.” They awarded Absey $270,000.

In a statement, a spokesperson for Dish wrote, “We were disappointed in the verdict and we have asked the court to set it aside or grant a new trial.”

Dish is preparing to file an appeal that will attempt to dismantle the legal logic of Heiken’s argument and argue they were under no obligation to hire Absey back. But other attorneys are utilizing Heiken’s strategy in the hopes that this is the silver bullet for bully bosses.

Neil Mullin, a New Jersey employment attorney who knows Heikens through the National Employment Lawyers Association, says he has a stack of previously rejected cases to review. Attorney Alf Sivertson of St. Paul says he has already filed three cases in Ramsey County that he plans to argue using Heiken’s strategy.

“Once the defense bar gets wind of this they’re certainly going to start advising their big corporate clients they now have legal exposure for the verbally abusive or threatening manager.”

Seated in a bustling coffee shop just next door to his wife’s flower shop, Absey says this is not at all what he expected when he originally decided to sue.

“Initially, I just thought they’d give me my job back,” he says. “I went from being a perfect employee to, as Steve put it, persona non grata. They wanted nothing to do with me.”

Still, neither he nor any of his old friends from Dish can say they regret the shutdown of the Maplewood office. Henry says his friends tell him he’s back to his old self again. Esnaola lost 120 pounds after he stopped stress-eating all day. All the employees interviewed for this story found new jobs within months of leaving or being fired by Dish.

“It’s vindication for all the people who were under Marshall at one point or another and felt this wrath,” Esnaola says of the verdict. “It was a nightmare working there. You get what you deserve.”

Absey strikes a slightly less triumphant note. Since leaving Dish he’s got a union job as a low-voltage electrician. It’s good work, but he’s starting his career over again.

“I’m older than I’d like to be, doing what I’m doing,” he says.
He takes more pride in the idea that the case will help other employees working under similar conditions.

“I feel like justice was served, to be completely honest,” he says. “Steve shot me a text to say there had been three cases that had used our precedent to move along. It’s kind of crazy that this hadn’t happened before.” 


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This entry was posted on Wednesday, May 16th, 2012 at 10:23 am and is filed under Healthy Workplace Bill (U.S. campaign), Print: News, Blogs, Magazines, Rulings by Courts, WBI in the News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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