$666,534.11 Judgment in Favor of Water District against Subdivision Developers

Source: Montana Law Week

WATER EASEMENT TRESPASS/NUISANCE: $622,196.56 damages, $29,991 attorney fees, $14,346.55 costs to Water District against subdivision developers for failure to build retaining wall to prevent erosion of earth protecting water & sewer lines consequently requiring new water line to town… $278,521.81 damages to homeowners… Cybulski.
Max & Sue Berg own Fort Yellowstone subdivision in Gardiner. Max Berg owned Berg Excavation for 25 years and has experience building subdivisions, water lines, sewer lines, roads, and retaining walls. Bergs applied in 1992 for the subdivision with water & sewer to be supplied by what is now known as Gardiner-Park Co. Water & Sewer Dist. The sewer line was an existing line serving Gardiner and Mammoth, but a water line extension needed to be constructed by Bergs to serve the subdivision. The DEQ-approved plans provided that a water line would be on a steep slope between Hwy 89 and the Yellowstone River. A road would be built between the water line and river to provide access to condos along the river. A retaining wall was to be built between the road cut and water line to stabilize the slope. Max Berg installed the water line and road in 1995, but did not install a retaining wall. A year after activating the water line, the Water Dist. noticed that he had punched in a road under the line. The Manager explained that the road “destabilized the slope. The main was essentially along a cliff face.” Despite this, Bergs did not install a retaining wall. Bergs sued Gaston Engineering in 1999 alleging negligence in locating the water line and road below it which resulted in Bergs being “forced to import and place fill as well as build a retaining wall.” Bergs and Gaston settled in 11/00. Great West Engineering warned in 5/07 that the water line was in jeopardy of rupturing because of erosion due to lack of a retaining wall. The District advised Bergs that it planned to disconnect the line and install a new one in the highway right of way. DEQ issued Bergs a violation letter in 3/08 for failure to construct the retaining wall, followed by multiple communications. In 4/08 Bergs advised that they had retained an engineer to design & install gabion basket walls instead of a retaining wall. DEQ approved the substitution. As of 7/09, the gabion baskets had not been installed. DEQ issued a notice of revocation to Bergs pertaining to the subdivision in 10/09 for failure to install the retaining wall. Bergs appealed. Board of Environmental Review affirmed the revocation. Bergs sued the Water Dist. in 12/08 for inverse condemnation, trespass, and quiet title. The District counterclaimed alleging trespass and nuisance and requesting injunctive and declarative relief. The District requests summary judgment.
Bergs trespassed on the District’s easements by causing erosion of the earth cover below the water & sewer lines resulting in no longer having the cover required by its easements. The trespasses also include Berg performing excavation work within the easement areas without permission and leaving boulders on the sewer line easement. The trespass is continuing by virtue of the continued erosion.

Bergs’ conduct that caused erosion of the earth supporting the lines amounts to a public nuisance. The eroding condition of the slope continues to be “injurious to health” “so as to interfere with the comfortable enjoyment of life.” §27-30-101(1). The Gardiner community was “affected” by the eroding condition and installation of a new water line at a cost of $100,000. At the very least, a “neighborhood” of Gardiner was “affected” in that the line installed by Bergs had to be abandoned and a new line installed in the highway right of way. The ongoing threat to the existing sewer line and abandoned water line continues to “affect” at the very least a “neighborhood” of Gardiner. Subdivision lot owners McInerney and Hoffers previously sued Bergs for failing to install a retaining wall resulting in inability to build on any properties. The Court granted summary judgment for them. Bergs created a private nuisance to the Water District by diminishing and damaging its rights to the water and sewer lines. Judgment for the Water Dist. is granted on its public and private nuisance claims.

Bergs are enjoined from causing further erosion below the water and sewer lines. The District is granted access to the Ft. Yellowstone property to inspect and maintain its lines and remediate the erosion.

Following a damages hearing, the Court awarded the Water Dist. $622,196.56 against Bergs, $29,991 attorney fees, and $14,346.55 costs, with interest at 10%.
McInerney and Hoffers were awarded $278,521.81 damages against Bergs, and the District recovered $912.50 costs against McInerney and Hoffers.

Fired Gallatin County deputy settles civil cases for $400K

Written by: Whitney Bermes, Bozeman Daily Chronicle

A former Gallatin County sheriff’s deputy, who a judge ordered to be reinstated after being fired in 2014, has settled his civil lawsuits against the county, agreeing to not come back to the department after receiving a settlement.

Gallatin County agreed to pay David Johnston $400,000 to settle his actions against the county.

Johnston sued the county following his firing, asking to be reinstated. Following a three-day trial in 2015, District Judge Brenda Gilbert of Park and Sweet Grass counties reinstated Johnston and ordered the county to pay him more than $125,000 in lost salary and benefits.

The county appealed the decision to the Montana Supreme Court. In the meantime, Johnston filed additional claims against the county in federal court.

This month, the parties settled all the suits with the county agreeing to pay $400,000. As part of the agreement, Johnston agreed to never seek reinstatement with the sheriff’s office.

Johnston was fired in 2014 after sheriff’s office administrators say he refused to turn over a tape recorder after Gallatin County Sheriff Brian Gootkin ordered him to immediately return it.

On that tape recorder was an interaction Johnston had with Deputy Kelly Munter, his ex-girlfriend. He claimed she became angry with him and berated him while the two responded to a call at Monforton School in July 2014.

Munter later filed a complaint against Johnston that led to Johnston being placed on administrative leave.

Two days after Johnston was put on leave, Lt. Jake Wagner requested that Johnston turn over his tape recorder. Johnston said he wanted to seek advice from an attorney first and make a copy prior to turning it over to Wagner.

That same day, accompanied by an attorney, Johnston returned the recorder to the sheriff’s office after making a copy of the audio for himself.

Later that month, following a disciplinary hearing, Johnston was fired.

During the trial, Gootkin testified that the recorder was county property that needed to be returned as soon as possible. But Johnston refused to comply with Gootkin’s order, the sheriff said.

And it is important for his deputies to follow Gootkin’s orders because the sheriff’s office is entrusted to the public, Gootkin testified.

“We have a huge responsibility to the people we serve. When you violate that trust, whether it be lying or disobeying an order,” Gootkin said, “I can’t allow that to occur.”

Johnston’s attorney, Todd Shea, on the other hand, argued that Johnston’s firing was a “punishment (that) simply didn’t fit this crime” and that Johnston was entitled to get a copy of the recorder’s contents.

The firing was “cooked up” by the sheriff’s office command staff as a way to get rid of Johnston, who had prior bad incidents with Munter following their breakup, Shea said.
Judge Gilbert sided with Johnston, saying Johnston’s firing was contrary to sheriff’s office policies and state law.

Johnston didn’t refuse to comply with the sheriff’s order, but rather made it clear that he wanted legal advice prior to giving the recorder back to the sheriff’s office.

“Johnston’s short delay in compliance with the sheriff’s order, under the circumstances presented to Johnston, do not equate with a refusal to comply with the order,” Gilbert wrote in her ruling.

And Johnston, a 10-year veteran in the Gallatin County Sheriff’s Office, was fired after a 10-20 minute hearing where no testimony was presented. Additionally, Gilbert noted the order that Johnston was accused of violating was given by Gootkin, who also conducted the disciplinary hearing and who testified that he was “upset, emotional and mad” during both Johnston’s disciplinary hearing and termination meeting.

“The termination hearing that resulted in Johnson’s termination does not pass muster in terms of basic due process rights afforded to any individual facing the potential loss of his or her livelihood,” Gilbert wrote.

Calvin Stacey, a Billings attorney who represented the county during the case, was out of town and unavailable to comment Thursday. Shea declined to comment on the settlement.

$100,000 Settlement and Dismissed DUI Homicide

Source: Montana Law Week

Michael Soule, 44, was charged with vehicular homicide while DUI following the death of his wife Jennifer, 37, in a crash on I-90 west of Bozeman 1/25/12. The State alleged that he was driving a pickup up to 103 mph with BAC .231 when he crashed into a guardrail, and that he had marijuana and cocaine in his system. He pled nolo in exchange for 10 years probation. Judge Salvagni rejected the agreement and he pled not guilty. Salvagni later dismissed the case after ruling that investigators failed to preserve key evidence including a hair consistent with Jennifer’s that was photographed near the driver’s door and recordings of witness interviews and DNA evidence from the driver’s side dash, which could have been used to rebut the State’s theory that he was driving and that Jennifer was ejected from the sunroof. He also ruled that the probable cause affidavit omitted that Jennifer’s and Soule’s DNA were both on the driver’s airbag but only Soule’s was on the passenger airbag, a hair consistent with Jennifer’s hair was on the driver’s door, no fingerprints were recovered from the keys or steering wheel that could have indicated who was driving, no witnesses could identify who was driving, neither Soule nor Jennifer was belted, and both were found outside the vehicle. He also concluded that troopers conducted warrantless searches & seizures in Soule’s hospital room the morning of the crash while he was unconscious and without permission from his family or hospital staff including obtaining health care information, removing his gown & sheet, examining his body, and taking photos of his injuries and personal items. While a urine screening at the hospital tested positive for marijuana & cocaine, a confirmation test was never done and his BAC was never tested for those drugs. The Crime Lab blood draw test indicated .07 BAC and the marijuana in his system was also below the legal limit for medical marijuana cardholders, which Soule was. Soule was represented by Al Avignone in the criminal case.

Soule sued the MHP, AG Fox, Gallatin Co. Atty. Lambert, former Gallatin Co. Chief Dep. Atty. Whipple, and Troopers Josh Brown, Glen Barcus, Josh Giddings, Patrick McCarthy, and Ace Meskimen alleging negligence, malicious prosecution, violation of constitutional rights, IIED, and NIED. The case settled for $100,000 by the Shea Law Firm.

Additional Resources:

Bozeman Chronicle Article

Man charged in DUI death settles lawsuit with state for $100,000

By Whitney Bermes, Bozeman Daily Chronicle, March 23, 2017

A man accused of killing his wife in a 2012 drunk driving crash near Bozeman — but whose charge was later dismissed — will receive $100,000 after settling a lawsuit with the state over what his attorney called “outrageous conduct” by investigators and prosecutors.

The settlement approved by a Gallatin County judge this week awards 44-year-old Michael Soule $100,000 from the state.

The settlement is not considered an admission of liability, documents say.

Soule’s attorney, Todd Shea, filed the suit in July, alleging negligence, malicious prosecution, violation of constitutional rights, and intentional and negligent infliction of emotional distress, among others, stemming from the investigation and prosecution of the crash that killed his 37-year-old wife Jennifer Soule.

Defendants named in the suit included the Montana Highway Patrol, Attorney General Tim Fox, Gallatin County Attorney Marty Lambert, former Gallatin County Chief Deputy Attorney Todd Whipple and MHP troopers Josh Brown, Glen Barcus, Josh Giddings, Patrick McCarthy and Ace Meskimen.

Soule was charged with felony vehicular homicide while under the influence months after Jennifer’s death in a crash on Interstate 90 west of Bozeman during the early morning hours of Jan. 25, 2012.

The case was later dismissed after former Gallatin County District Court Judge Mike Salvagni ruled that investigators failed to preserve key evidence and that the prosecution didn’t have probable cause to charge Soule with his wife’s death.

Charging documents alleged that Soule was driving a pickup up to 103 mph with a blood-alcohol content of 0.231, nearly three times the legal limit, when the vehicle crashed into a guardrail. Documents also claimed that Soule had marijuana and cocaine in his system at the time.

Soule pleaded no contest to the charge as part of a plea deal that gave him 10 years of probation and no prison time.

However, Salvagni rejected the agreement, and Soule then withdrew his plea and pleaded not guilty.

But following a flurry of motions by Soule’s defense attorney, Al Avignone, as well as testimony from troopers who investigated the crash, Salvagni dismissed the case.
In his ruling, Salvagni said that the highway patrol failed to preserve evidence, which included a long, brown hair consistent with Jennifer’s that was photographed near the driver’s door, as well as multiple recordings of witness interviews at the scene of the crash and a swab of DNA evidence taken from the driver’s side dashboard. That evidence was exculpatory and could have been used by Soule to rebut prosecutors’ theory that he was driving and that Jennifer was ejected from the sunroof in the crash.

In addition, Salvagni ruled that the affidavit of probable cause filed by Whipple contained a number of omissions, which included:

Jennifer’s DNA and Soule’s DNA were both found on the driver’s side airbag, but only Soule’s was found on the passenger side airbag.

A long, brown hair consistent with Jennifer’s hair was found on the driver’s door.

There were no fingerprints recovered from the keys or steering wheel that could have indicated who was driving.

No witnesses could identify who was driving.

Neither person was wearing a seat belt.

Both were found outside the vehicle.

Salvagni’s ruling also said that investigating troopers conducted a number of warrantless searches and seizures in Soule’s hospital room the morning of the crash.

Troopers went into the trauma room where Soule was unconscious and obtained health care information, removed his hospital gown and sheet, examined his body and took photographs of his injuries and personal items, all without permission from Soule’s family or hospital staff.

And while a screening test of Soule’s urine at the hospital tested positive for marijuana and cocaine, a confirmation test was never done, and his blood was never tested for the two drugs. The only legal blood draw tested by the Montana State Crime Lab showed Soule’s BAC was 0.07, under the legal limit for driving, and the amount of marijuana in his system was below the legal limit for medical marijuana cardholders, which Soule was.

Shea declined to comment on the settlement. A call for comment to a spokesperson with the Montana Attorney General’s Office was not returned.

Gallatin County ordered to pay more than $125,000 to wrongfully fired deputy

By Whitney Bermes, Bozeman Daily Chronicle, March 21, 2017

A District Court judge has ordered that Gallatin County pay more than $125,000 for lost wages and benefits to a deputy wrongfully fired by the sheriff in 2014.

In a judgment issued Friday, District Judge Brenda Gilbert of Park and Sweet Grass counties said that Gallatin County must award David Johnston $125,786 for lost wages and benefits from his July 23, 2014, firing through December of last year.

And the county was also ordered to pay about $3,450 for costs incurred as part of the case.

In addition, Johnston will receive interest payments as well as a $247 per diem payment that he will receive until he is reinstated in the Gallatin County Sheriff’s Office or when the case is settled otherwise.

Johnston has yet to be reinstated.

Johnston sued the county following his firing. The case went to trial for three days in December 2015 before Gilbert, who later ruled in favor of Johnston and ordered that he be reinstated as a deputy and receive damages.

In the more than a year since Gilbert ruled in favor of Johnston, attorneys have battled over how much money Johnston was due.

Johnston’s attorney Todd Shea argued for more than $125,000 for back pay and benefits. But Gallatin County’s attorney Calvin Stacey argued that Johnston was only entitled to about $38,520 before taxes.

Since Johnston’s firing, he has received unemployment benefits and has been employed. By allowing Johnston to be reinstated and receive backpay from when he was fired, all while having earned money in that time frame, would be an “obvious windfall” for the deputy, Stacey argued.

Gilbert issued her final judgment Friday, agreeing with Shea’s proposed judgement.
Johnston was fired in 2014 after sheriff’s office administrators say he refused to turn over a tape recorder when Gallatin County Sheriff Brian Gootkin ordered him to immediately return it.

On that tape recorder was an interaction Johnston had with Deputy Kelly Munter, his ex-girlfriend. He claimed she became angry with him and berated him while the two responded to a call at Monforton School in July 2014.

Munter later filed a complaint against Johnston that led to Johnston being placed on administrative leave.

Two days after Johnston was put on leave, Gootkin’s office asked Johnston to turn over his tape recorder. Johnston said he wanted to seek advice from an attorney first and make a copy prior to turning it over.

That same day, accompanied by an attorney, Johnston returned the recorder to the sheriff’s office after making a copy of the audio. Later that month, following a disciplinary hearing, Johnston was fired.

During the trial, Gootkin testified that the recorder was county property and needed to be returned as soon as possible but that Johnston refused to comply with Gootkin’s order.

Shea, on the other hand, argued that Johnston’s firing was “cooked up” by the sheriff’s office command staff to get rid of Johnston, a 10-year department veteran who had prior bad incidents with Munter following their breakup.

Edward Jones Files Interpleader Over Disputed Investment Funds

Source: Montana Law Week

INTERPLEADER: Investment entity granted interpleader in Tribal Court dispute over funds in account, awarded fees & costs… Best.

Edward D. Jones seeks an interpleader to join Lisa Copiskey and Dennis Bohnert because they have claims against each other which may expose Jones to double or multiple liability based on their competing claims for funds in a Jones account. Jones asserts the following, which neither Defendant disputes: Blackfeet Tribal Court issued an order prohibiting Jones from using, reducing, diminishing, transferring, disposing of, and/or in any respect dissipating any funds in Bohnert’s Jones account. Bohnert and Copiskey have appealed several Tribal Court orders relating to distribution of the funds and have disputed its jurisdiction at various times. In light of her appeals, Copiskey has asked Jones not to distribute funds to Bohnert until the appeals are resolved and all underlying claims are heard by Tribal Court. Bohnert has disputed Tribal Court jurisdiction, alleged procedural errors, and disputed Copiskey’s right to execute against the funds.

In Bohnert’s argument to this Court, most of which is inconsistent and difficult to follow logically, he seems to want to have his cake and eat it too: to require Jones to follow Tribal Court orders which favor him, but not follow Tribal Court orders which favor Copiskey. This is patently absurd and points up the problem Jones seeks to solve with this interpleader. None of Bohnert’s arguments, even were they logical, go to the questions this Court must answer. His counterclaim flies in the face of the policy reasons for Rule 22 and is unsupported by the law. There are no legal claims — nor do there appear to be any specific allegations — in support of his counterclaim. Bringing a valid interpleader shields a plaintiff from liability for counterclaims where they are based on a plaintiff bringing an interpleader rather than having to choose between competing claimants. Comyne (ED Wis. 2002).

The Court may in its discretion award attorney fees & costs in bringing the interpleader against the stake. Soha (Mont. 1981). Jones appears to be a disinterested stakeholder, which the parties concede. It is entitled to an award of fees & costs from the stake.
Jones and the parties agree that it has in its possession or control money which is the subject of litigation, held in trust for Bohnert. §25-8-101. The funds in the Bohnert account are ordered to be deposited with the Court. Jones is dismissed with prejudice following payment of the funds into the Court’s registry and determination of fees & costs following a hearing.

Bohnert and Copiskey are ordered to interplead and litigate among themselves their claims to the funds. Jones is discharged from any liability on account of Defendants’ claims in interpleader.

Gardiner Water and Sewer District Sues NPS Over Arsenic

Source: Liz Kearney, Enterprise Staff Writer

The Gardiner Water and Sewer District has filed a lawsuit against the National Park Service over the amount of arsenic flowing into the District’s sewage treatment plant.
In the lawsuit, filed Dec. 21 in U.S. District Court in Billings, the Water and Sewer District alleges that wastewater coming from Mammoth Hot Springs is carrying such a large amount of naturally occurring arsenic that it will cost the district more than $2 million to remove arsenic-laden sludge from its sewage treatment ponds, per a requirement from the Montana Department of Environmental Quality.

The Gardiner Water and Sewer District has treated the sewage from Mammoth for many years, according to the complaint filed by the district’s attorney, Todd Shea, of Bozeman.
The district’s engineer believes the arsenic gets into the system through leaking pipes or manholes from within the park, “and that such conditions are likely prevalent along the route” from the park to the district’s sewage treatment plant, according to the complaint.

The complaint states that arsenic levels in drinking water in both Mammoth and Gardiner, as reported to the district by its engineer, test below the allowable limits.
The NPS needs to address the excess arsenic, the complaint states, because there’s no point in removing the sludge and replacing sewage ponds liners only to have more arsenic accumulate.

The complaint further states that the district wrote several letters to the NPS beginning in February of 2015 that went unanswered before the park agreed to contribute toward the sludge removal and lining replacement. But the park indicated it may not have any funds available until sometime in the year 2020, according to the complaint.

“Given that the District has been directed by the DEQ to dispose of the sludge and replace the liners in its treatment ponds and cannot wait for the Park Service’s responses any longer, it has been compelled to file suit,” the complaint states.

The complaint brings five charges against Yellowstone National Park:

• Breach of contract, for failing to follow through on addressing the high levels of arsenic and failing to contribute funds toward the repair process.
• Trespass. The complaint alleges the park is committing a “continuing trespass,” as the arsenic damage is ongoing and will continue until the park locates the areas of infiltration and repairs them.
• Public nuisance. The park “created a danger to public safety by permitting high levels of arsenic to flow into the District’s sewer treatment plant,” the complaint states.
• Private nuisance. The arsenic from the park forces the district to be responsible for removing and disposing of sludge with a high arsenic level.
• Negligence. The complaint alleges the park failed to monitor the condition of the pipes emptying sewage into the district’s plant, causing the district to suffer damages.

The Gardiner Water and Sewer District is asking the court to issue a mandatory injunction requiring the park to address and correct the high levels of arsenic; that the park contribute funds to the district’s sludge removal project “commensurate with their responsibility for the high levels of arsenic;” that the park pay financial damages and any other relief the court “deems to be just and proper;” and to pay attorneys’ fees and costs.

Representatives from the Water and Sewer District, Yellowstone National Park and the DEQ did not immediately return calls Monday seeking comment.

Morgan Stanley Smith Barney Recovers $258,983

Source: Montana Law Week

Morgan Stanley recovered a $258,983.72 judgment against Paul Stafford in 8/15 in Billings Federal Court for a loan he had not repaid. Stafford requested a Hearing on Claimed Exemptions — $6,200.31 in an HSA at First Interstate Bank. The issue is whether an HSA is exempt from execution under §25-13-608(1)(f):
A judgment debtor is entitled to exemption from execution of the following:
(f) Benefits payable for medical, surgical, or hospital care to the extent they are                      used or will be used to pay for the care;

It is clear that this section does not specifically exempt HSAs. If the Legislature intended them to be exempt, it could have put them in the law. Further, while HSAs may be used for medical, surgical, or hospital care, they are not required to be used for those purposes; they may be used to pay for long-term care insurance or for health insurance if the person is receiving unemployment comp. 26 USC §223(d)(2)(C)(ii). Most importantly, they may be used for non-medical purposes, although subject to a 20% tax. 223(f)(4)(A). Primarily due to this last exemption, the Court does not find that 25-13-608(1)(f) exempts HSAs from execution. Although a penalty may be imposed, they may be used for non-medical purposes. This fact, coupled with the fact that the Legislature has not specifically exempted HSAs, leads to the conclusion that they are subject to execution. Morgan Stanley’s writ of execution on the $6,200.31 in Stafford’s HSA is allowed.

Judge reinstates wrongfully fired Gallatin County deputy

By Whitney Bermes Chronicle Staff Writer Whitney Bermes – March  2, 2016

A judge has reinstated a former Gallatin County sheriff’s deputy and ruled that Sheriff Brian Gootkin wrongfully fired him in 2014.

In her ruling issued Wednesday, District Judge Brenda Gilbert of Park and Sweet Grass counties said that David Johnston can be reinstated as a deputy and be awarded damages for his lost salary and benefits from his July 23, 2014, firing through the end of the case.

While no exact cost of damages has been decided, Johnston’s attorney, Todd Shea, said Johnston’s lost salary and benefits will be at least $126,000.

Johnston was fired in 2014 after sheriff’s office administrators say he refused to turn over a tape recorder after Gootkin ordered him to immediately return it.

On that tape recorder was an interaction Johnston had with Deputy Kelly Munter, his ex-girlfriend. He claimed she became angry with him and berated him while the two responded to a call at Monforton School in July 2014.

Munter later filed a complaint against Johnston that led to Johnston being placed on administrative leave.

Two days after Johnston was put on leave, Lt. Jake Wagner requested that Johnston turn over his tape recorder. Johnston said he wanted to seek advice from an attorney first and make a copy prior to turning it over to Wagner.

That same day, accompanied by an attorney, Johnston returned the recorder to the sheriff’s office after making a copy of the audio for himself.

Later that month, following a disciplinary hearing, Johnston was fired.

During a three-day judge trial in December, Gootkin testified that the recorder was county property that needed to be returned as soon as possible. But Johnston refused to comply with Gootkin’s order, the sheriff said.

Shea, on the other hand, argued that Johnston’s firing was a “punishment (that) simply didn’t fit this crime” and that Johnston was entitled to get a copy of the recorder’s contents. The firing was “cooked up” by the sheriff’s office command staff as a way to get rid of Johnston, who had prior bad incidents with Munter following their breakup, Shea said.

Gilbert sided with Johnston, saying Johnston’s firing was contrary to sheriff’s office policies and state law.

Case Dismissed in Wrongful Termination of Transgender Server

Source: Montana Law Week

SEX DISCRIMINATION: No reasonable cause to believe unlawful discrimination in termination of transgender server.

Nash Walden was hired by Silver Star Steak Co., Helena, in 4/13 as a server. In early 8/14 he requested a 4-week leave from GM Jeff Hiel to complete his transition from female to male (look into legal & medical issues and return to work as Nash rather than Natt, short for Natalie, by which most co-workers referred to him). Hiel stated that Walden could return to work if a position was available, but no guarantees. Walden said he is aware of other instances in which Silver Star granted extended leaves for non-transgender employees. On 8/30/14 Walden had an emergency and needed to take the day off. He followed protocol in alerting Silver Star at least 2 hours before his shift. The manager on duty said he needed to find someone to cover his shift or he would have to work. Walden said he texted other employees to ask if they could cover and continued to advise Silver Star of his progress. He was unable to find a replacement and arrived to work about 12 minutes late. The manager on duty told him to clock out and go home. Later that day he was told to attend a meeting 3 days later. At that meeting, Hiel terminated him. Walden said one of the reasons given is that he ruined the manager’s morning on 8/30 because he called multiple times to discuss his leave request. Silver Star cited this as insubordination, he said, although he is aware of other instances in which non-transgenders were allowed to miss shifts for personal reasons. He alleges that Silver Star discriminated against him because of his sex.

According to Silver Star, Walden was terminated for well-documented performance problems and his transgender status had “no impact” on it. He had been given a written warning in early 4/14 over poor work, conduct with guests, and policy & procedure violations. It requires an employee to find a replacement at least 2 hours prior to a shift, which Walden did not do. It said the software it provides for employees to view their shifts and make arrangements for coverage shows his first attempt to find coverage at 9:43 a.m. for the shift scheduled to start at 10:30 a.m. A reprimand was written that day by food & beverage director Joey Balbas. Silver Star said Walden was suspended for attendance, attitude toward his supervisor, tardiness, and a policy/procedure violation over the incident, and was terminated for insubordination, disrespect, disorderly conduct, and repeated profanity.

Walden established a prima facie case of employment discrimination. He is a transgender and falls under the protected class of sex-gender stereotypes based on recent case law and EEOC guidelines. He had been employed since 4/13. He said Silver Star denied extended leave provided others and terminated him in circumstances where others were not terminated. He asserts that he believes others were treated better in requests for extended leave, and highlighted what he perceived to be a harsh denial when Hiel told him to “not make a big deal” of his transition from female to male.

I find no reasonable cause to believe unlawful discrimination occurred. Walden was unable to show that he was treated differently from others because of his transgender status. Hiel, bar manager Eric Anderson, and Balbas described that its policy is to lay off employees who request extended leave and hire them back on their return. While this may appear unusual, Balbas described it in some detail, noting “bookkeeping” concerns, and Hiel and Anderson described what they believed to be practical aspects. Walden’s behavior at the meeting was unprofessional and provided basis for termination. Walden acknowledged that he was “extremely upset” given the circumstances and timing. Silver Star said he came in with a chip on his shoulder. Hiel commented that his behavior was unlike any he had ever seen in an employment setting. Walden acknowledged repeated use of the “F-bomb.” Balbas fired 5 others in 2014 over behavior and performance, and recently fired an employee over violations of call-off procedures. None of the terminated employees was known by Silver Star to be outside the stereotypical gender status.