November 17, 2010
Randy Bakke reminded the jury that it was Jim Long's burden of proof he was fired because he filed for whistleblower protection. He reiterated Judge Goodman's instructions that Long had to prove three things: 1) that he be engaged in protected activity; 2) that WSI took adverse action against him; and 3) that a causal connection existed between his protected activity and his firing. Bakke told the jury there was a lot of evidence that Jim Long filed for whistleblower protection because he was trying to save his job.
Bakke said that most of Long's complaints had already been dispensed with and that while there is a discussion of a culture at WSI, the jury needed to focus on the lack of illegality or violations of law in Long's complaints. He further said that they have full documentation in this case, that there is no he said, she said.
Bakke noted that Long said there were no negative references in his personnel file. He said that was because the personnel review that Halvorson had conducted of Long was done only 6 weeks after Halvorson became interim CEO. Since he'd only been supervising Long 6 weeks, he did not have adequate information. Bakke further said that no anonymous information is allowed into a personnel file. Therefore, the butt slapping report would not go into that file. He said the law also says an administration may keep separate notes from the personnel file for possible action.
Bakke told the jury that they heard Tuntland say that Sandy Blunt had fabricated his handwritten side file, but said that Blunt had well before that had problems and complaints about Long and Peltz.
Bakke explained the side file to the jury in this way, he said imagine someone develops a drinking problem, he gets good reviews up until that point, but you can't put that information in the file because you can be sued for putting that information in the file.
Bakke framed Long's complaint as throwing spaghetti against the wall to see what will stick. He cited exhibit 17, the letter from John Halvorson to WSI employees saying that if they were contacted by Highway Patrol it would be there personal choice whether or not to speak with law enforcement. Bakke said there was nothing wrong with that.
Regarding the State Auditor's report that there was a culture of retaliation at WSI, Bakke said Halvorson wasn't CEO at that time.
He said that Long claimed he filed his whistleblower protection request to keep from being retaliated against. In fact, Bakke said, everything was already in place to fire him before he filed that complaint. He cited the audio tapes where Long told Peltz he knew his job was in jeopardy. He cited an email from Evan Mandigo telling Long to change the way he dealt with Halvorson and an email Long had sent to Grinsteinner. This exchange showed that Long knew Halvorson did not trust him and that his judgment was in question. Bakke said that showed Long knew there were employment problems well before he filed.
Bakke reiterated there was nothing illegal, there was no violation of law, and everything Long complained about had already been dealt with. He said Long did not make these complaints until he filed his whistleblower protection request, which he said Long did to save his job. If the complaints had been valid, he would have put something in writing before 10-22-07, but that was when he saw he could undermine John Halvorson.
He referred to the risk management whistleblower complaint that Jim Long said he did not own because it was not signed. It dealt with the tape recording issue but it did not deal with any illegalities.
Bakke asked did Long ever contact law enforcement before 10-17-07. No, he only did it because he was having employee conflicts.
Bakke said there were many legitimate reasons for terminating Long. First an inappropriate relationship with Billie Peltz, which was confirmed by an eye witness.
Then there was the issue surrounding the ITTP project, which Bakke said Long blamed solely on Halvorson. Bakke pointed out that Justin Data had in his letter stated there were problems above and below Jim Long. Therefore, he could not have been talking about Halvorson.
He said Long went behind Halvorson's back and tried to sabotage him.
Then he brought up the issue of impeachment. He said if Long was Pinocchio on the stand, his nose would have been at the door.
With regard to the Armstrong journal, he referred to the investigation conducted by Rob Forward. In that report, Long said that Grinsteinner found the journal and gave it to him. Bakke pointed out that Long had an opportunity to correct Forward's report and sign it, but did not. But Mike Quinn's report, taken just 2 days after the event occurred, stated Long informed Quinn he had retrieved the journal, that he had no authority to look at it, and that he found it in Armstrong's desk drawer. Bakke then turned to Long's testimony in front of this jury where he testified he did not search through anybody's desk and was not involved when Grinsteinner found the journal. Bakke stated that this differing testimony suggested Long is not reliable.
Bakke talked about the Chamber of Commerce meeting and again pointed out that Long had never complained of that until he filed his whistleblower complaint. He attacked Long's allegation that Halvorson and Blunt had admitted there was something illegal about the proposed letter writing campaign. Bakke said that Bjornson had indeed advised him of the Hatch Act, but said that would only apply to fundraising for election activities and there were no election activities going on at that time. Bakke said that after Long voiced concerns to Bjornson about the Chamber of Commerce activities, he went to Strevak at Republican Headquarters and hand-delivered the WSI information to him. Would he have done that if he thought it was a violation of law?
Bakke noted that Long raised concerns about the State Auditor's Report, but that report was completed in October of 2006, a year before Long filed his report. The same with Long's complaint about the 4% WSI pay increase. That issue had been resolved many months before Long complained. With regard to Dave Spencer's sick leave, that issue also had been resolved before his complaint. Bakke then went into a detailed timeline to demonstrate Long had not been fired because he filed a whistleblower complaint.
December 2006 Nallie accuses Long and Peltz of having an affair.
March 2007 A complaint was brought to Sandy Blunt regarding the touching incident.
April 2, 1007 Blunt meets with executive team regarding sexual harassment.
April 18, 2007 Sandy Blunt is charges with felonies. John Halvorson appointed interim CEO.
April 19, 2007 Long meets with Indvik saying he is more qualified to be the CEO. Indvik says 90% of the staff would have left.
April 23, 2007 Wahlin finds there is no violation of the nepotism statute in Halvorson's appointment, but Long still includes that in his whistleblower complaint.
May 7, 2007 Halvorson meets with Long regarding perceptions of an inappropriate relationship with Peltz.
June 13, 2007 Halvorson completes Long mid year performance.
June 15, 2007 ICF report says WSI employees do not respect the senior leaders in support services.
August 30, 2007 Long is reprimanded for tape recording Nallie and Hutchings. He files his first whistleblower complaint the same day saying he should not have been reprimanded.
August 31, 2007 Long records conversations with Peltz and Ripplinger. Says he'll start to play dirty to see if he can get Halvorson to crack and start applying external pressure by going to the media via Chad Nodland.
September 24, 2007 Long writes board members Mandigo and Ballweber that Justin Data's concerns were solely with Halvorson. Bakke says that Data did not say that. This email was not cc'd to Halvorson.
September 24, 2007 through October 3, 2007 Halvorson meets with Bjornson about terminating Long.
October 3, 2007 Halvorson emails HR specialist Hunter Lott.
October 4, 2007 Halvorson talks on the phone with Lott.
October 11, 2007 Halvorson and Bjornson meet with North Dakota AG's Tag Anderson about terminating Long.
October 17, 2007 Halvorson delivers the critical incident file to Tag Anderson.
October 18, 2007 Long meets with BCI's Quinn. Says he took the journal and gave it to Grinsteinner and Peltz.
October 19, 2007 Search warrant was executed for Mark Armstrong's office.
October 20, 2007 Long emails a request for whistleblower protection.
October 22, 2007 Sandy Blunt returns to WSI.
October 31, 2007 Grinsteinner sends her dirty little secrets memo to the State Auditor, does not copy the board but knows it will become public.
November 7, 2007 Wahlin and Forward interview Long.
November 14, 2007 WSI calls for an independent review of Long's claims with the Governor's office.
November 15, 2007 Long is put on paid administrative leave. Within 3 weeks, Long was making disparaging remarks about WSI trying to politicize it. Remember, he is a democrat.
December 6, 2007 Sandy Blunt leaves WSI.
November 2007 - February 2008 Long launches a media campaign against WSI. Peltz advises him not to do that.
January 23, 2008 Long releases his manifesto to the press. WSI obtains a copy.
January 30, 2008 Halvorson writes Long a letter regarding can he come back.
February 3, 2008 Long writes a defiant letter back to Halvorson and copies it to the news media.
Mid February 2008 Halvorson holds an executive management meeting and determines that no one thought Long could return to WSI.
March 5, 2008 The Marsh and Conolly reports come out. They are critical of the HR function at WSI and Long's position is phased out.
March 12, 2008 WSI terminates Long's employment. This letter lists numerous reasons.
Bakke said he didn't understand why Kay Grinsteinner was called and that she did not say Long reported anything illegal. He said her testimony was a non-factor in this case.
Bakke said there were clearly legitimate reasons for termination.
He then went over the form the jury would be filling out.
Question 1: Has the Plaintiff shown by the greater weight of the evidence that he engaged in protected whistleblower activity?
Bakke said that if the jury's answer to that question was no, then the case was over.
Question 2: Has the Plaintiff shown by the greater weight of evidence that Defendants terminated his employment because he engaged in protected whistleblower activity?
Bakke said their answer to that question should be no because they had a history of problems with Long.
Bakke concluded by telling the story of Don Quixote who became obsessed with doing deeds of chivalry. He said Long was jousting and lancing at windmills that he thought were giants. He said Long made up claims to make himself into the shining knight for his Dulcinea, who was Billie Peltz.