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.

Former Gallatin County Deputy Sues To Get Job Back

By Whitney Bermes, Bozeman Chronicle, August 22, 2014

A former Gallatin County sheriff’s deputy is suing the office he used to work for and his former boss to get his old job back.

David Johnston filed a suit in Gallatin County District Court on Wednesday against the sheriff’s office and Sheriff Brian Gootkin.

According to the suit:

Johnston had been a deputy in Gallatin County for 10 years.

On July 9, Johnston and his former girlfriend, Deputy Kelly Munter, were working the same shift. Johnston found an unlocked door at Monforton School and Munter responded as backup.

While on scene, Johnston said he had difficulties with Munter. When he asked her to help clear the school, Munter responded, “(Expletive) you, I’m leaving.”  Johnston then called dispatch to request a different deputy as backup.

After the incident, Johnston considered filing a formal complaint against Munter, but ultimately decided he wanted more time to think about it.

On July 15, Undersheriff Dan Springer and Lt. Jake Wagner told Johnston that a complaint had been filed against him with the human resources department and that he would be placed on paid administrative leave. They gave Johnston no details about the nature of the complaint but told him to expect to be out of work for two to three weeks.
On July 17, Wagner requested that Johnston turn over his recorder and its contents form the evening of July 9. Johnston said he wanted to seek advice from an attorney and make a copy of the recording prior to turning it over to Wagner.

“The sheriff’s office and the Bozeman Police Department have both recently been accused of, and acknowledged, deleting select portions of recorded conversations,” Johnston’s attorney Todd Shea wrote in the complaint.

That same day, accompanied by an attorney, Johnston retuned the recorder to the sheriff’s office and a copy of the recording was made for Johnston.

At that time, Johnston was given a letter of discipline advising him that a disciplinary hearing would be held on July 22 on the charge of insubordination because Johnston didn’t immediately surrender the recorder.

The day after Johnston’s disciplinary hearing, Gootkin fired him for not immediately giving the sheriff’s office his recorder.

Johnston said he has still yet to see a copy of the underlying complaint against him and has never been contacted by the human resources department regarding the complaint.
The lawsuit is requesting that Johnston be reinstated as a deputy and receive back pay, reinstatement of seniority, vacation benefits, insurance, sick leave, and all other benefits deputies receive, as well as attorney fees.

The sheriff’s office has not responded to the suit.

Employee Rights Case Against Firm Heads to Hearing

By Eddie Gregg at The Billings Gazette March 18, 2014

An investigation by the Montana Human Rights Bureau has determined that a Helena employee of CTA Architects has “reasonable cause” to believe the company discriminated against her because of health conditions.

The investigator in the case found the “preponderance of the evidence” supports Michelle Campbell’s claim that CTA “cut her hours and eliminated her medical insurance benefit in March 2013 because she disclosed she was pregnant and recently diagnosed with MS.”

Scott Wilson, president of CTA, said Monday he couldn’t discuss any employee issues, adding: “We do deny any discrimination or any wrongdoing” in the case.

Campbell started working as a full-time administrative assistant in CTA’s Helena office in 2009. The Billings-based company has 18 offices across the U.S. and in Canada.

According to the Human Rights Bureau report, Campbell’s employer reduced her position from 40 hours a week to 16 hours a week shortly after she informed her superiors of her pregnancy and diagnosis.

The report states that CTA officials told an investigator that Campbell’s job was reduced to part time as part of a companywide office restructuring triggered by budgeting problems and a projected shortage of work.

The eight-page report was signed on Jan. 14, which gave the parties involved 30 days to reach a settlement. No settlement was reached, so the case will go before a hearing examiner appointed by the Hearings Bureau of the state Department of Labor and Industry.

Wilson said the hearing hasn’t been scheduled, but he is confident CTA will prevail.
Campbell’s attorney, Todd Shea, of Bozeman, said that his client hasn’t been terminated from her job, but that she no longer works in the Helena office.

Since her diagnosis, Campbell has racked up more than $25,000 in outstanding medical bills, according to Shea.

Shea said Tuesday the amount of damages sought in the case hasn’t been determined.
“She cannot get her recommended treatment and medication for her MS treatment as she has no insurance and very little money after her hours were reduced,” Shea wrote in an email to The Gazette. “This has resulted in the exacerbation of her MS symptoms.”

Settlement Proposed in Bozeman Police Excessive Force Lawsuit

By Whitney Bermes – Bozeman Chronicle Staff Writer

The Bozeman Police Department has reached a settlement in a federal lawsuit that claimed excessive force against two of its officers.

In a proposed settlement, the city will pay $150,000 in the 2009 lawsuit filed by Jesse Soheil Verdi against the city of Bozeman, the Bozeman Police Department, the former police chief, a former deputy chief, a former officers and a current officer.

The settlement is awaiting approval of Utah Bankruptcy Court. Verdi, who filed for bankruptcy in Utah and failed o include the lawsuit as an asset, was removed as the plaintiff from the case and replaced by a bankruptcy trustee.

The original suit claimed negligence, assault, battery, false imprisonment and intentional infliction of emotional distress, among other accusations. The lawsuit stems from a 2007 incident in which Verdi was tased by police. Verdi’s friend called Bozeman police requesting a welfare check on Verdi. Former Sgt. Greg Megargel and current officer Marek Ziegler responded.

Verdi was naked and intoxicated when he answered the door. Officers claimed Verdi suddenly attacked Megargel, and Ziegler tased Verdi in the back. Verdi fell face down onto his deck outside of the apartment, hitting his head and injuring his skull. Verdi’s attorneys say he’s had three brain surgeries to remove excessive blood on his brain and help remedy headaches.

Former police chief Mark Tymrak and former deputy chief Martin Kent were originally named in the suit, but last month U.S. District Court Judge Dana Christensen dismissed all counts against the two.

The settlement will be covered by the Montana Municipal Inter-local Authority, an insurance pool for cities and towns, including Bozeman. City attorney Greg Sullivan said, despite the proposed settlement, the city stands by its officers.

“We still fully believe the officers did everything right that night in 2007,” Sullivan said. “It’s a business decision.”

While Bozeman police Chief Ron Price was not with the department at that time, Price reviewed the officers’ conduct and is “comfortable with everything they did,” Sullivan said.

Ryan Jackson and Todd Shea, the plaintiff’s attorneys, declined to comment until the settlement is approved.

City of Bozeman Offers Settlement in Stun Gun Lawsuit

Source: The Associated Press

The city of Bozeman has offered a $150,000 settlement in a federal lawsuit that alleges police used excessive force when they shocked a man with a stun gun during a 2007 welfare check.

Officers said Jesse Soheil Verdi was naked and intoxicated and attacked them, leading one of them to shock him with the stun gun. Verdi’s 2009 lawsuit said he fell and hit his head and has had to undergo three brain surgeries.

The settlement must be approved in U.S. Bankruptcy Court in Utah. Verdi filed for bankruptcy in Utah, but didn’t include the lawsuit as an asset. The bankruptcy trustee replaced Verdi as plaintiff.

City attorney Greg Sullivan says the settlement is a business decision. The payment would be covered by the city’s insurance pool.


Judge Criticizes Police in Excessive Force Lawsuit

A federal judge overseeing an excessive force lawsuit against Bozeman police has found that authorities intentionally erased a missing audio recording of he incident.  And while U.S. District Judge Richard Anderson found the recording central to figuring out what happened during the incident more than five years ago, he didn’t immediately find the Bozeman Police Department liable for the injuries sustained by Soheil Jesse Verdi.

In his ruling, the judge said all the defendants agreed the audio segment was missing, but they haven’t made any meaningful effort to figure out why. If the audio existed, the judge said it would be favorable to Verdi’s claims of excessive force. “Segment 170 [of the audio tape] is the best evidence regarding what transpired during the three to four minutes in question and is, therefore, relevant material,” Anderson wrote.


Roof Collapse at Havre High School

The Shea Law Office represents Havre High School as a result of a roof collapse at the school. Thankfully, the collapse happened over Christmas break and no one was injured.

However, the high school incurred damages from the collapse and the rebuilding of the roof.    Havre High School filed suit against the builder and architect of the roof.   The case is pending in Hill  County, Montana.

Foreclosure Sale Ordeal Gets Remedied

The Shea Law Office represented the purchasers of a home at a foreclosure sale in a case of first impressions under Montana law.

A  Trustee was appointed to run the foreclosure sale and send notices under Montana’s foreclosure statute before the sale to all individuals and entities that had filed liens on the home.  At the foreclosure sale, the purchasers were the winning bidders for the home.   They paid $737,000 for the home.  Under the foreclosure statute, the winning bidder must make the payment in cash.

Shortly after the sale the purchasers discovered that the Trustee did not notify a number of lienholders of the upcoming sale.   Given that these lienholders did not receive notice of the sale, they did not have a chance to make a bid on the home at the sale.  Also, because they did not receive notice of the sale, under the foreclosure statute their liens remained on the home after the sale.

The purchasers then asked the Trustee, and the Title Company that performed the title search of the home for the Trustee, to take care of the liens. However, the Trustee and the Title Company did not accept responsibility for the liens that remained on the home.   The total amount of the liens on the home was more than double the purchase price. This rendered the purchasers’ new $737,000 home virtually worthless because the purchasers were unable to sell the home, or take out a mortgage on the home (and recapture some of the cash used to buy the home) while the liens remained on the home.   The purchasers were retired and their savings were used to buy the home. The purchasers suffered substantial damages as a result of the Trustee’s and Title Company’s refusal to address the purchasers’ ordeal.

The purchasers then filed a lawsuit against the Trustee and Title Company requesting the Court to order them to take care of the liens, and to compensate them for their attorneys’ fees, costs, and emotional distress damages.  The Trustee asserted he did not have a duty to notify the lienholders of the sale and that the purchasers were obligated to deal with the remaining liens themselves.   The Title Company argued that it owed no duty to the purchasers when it conducted its search for liens on the home.  The Court held that the Trustee did have a duty to notify the lienholders and the purchasers had a right to rely on the Trustee doing this.  The Court also determined that the Title Company owed a legal duty to the purchasers to properly conduct the search for liens on the home.

Following this, the Trustee and the Title Company made payments to the lienholders, and the liens were taken off the purchasers’ home.  The purchasers then settled their damage claims against the Trustee and Title Company on a confidential basis.

Sexual Harassment/Retaliation Lawsuit

Shea Law represented an employee who was sexually harassed by her employer and then fired after complaining about it.   The Court found that the employer had fired the employee in retaliation for filing a complaint with the Montana Human Rights Bureau. Below is an excerpt of the ruling from Montana Law Week.

“[The Court] find[s] it disingenuous for [the employer] to claim it had no knowledge of [the employee’s] allegations [of sexual harassment] until the issue came up at her appraisal. Clearly [the employer] had knowledge of her complaint prior to the 11/10/11 meeting. The appraisal itself makes very clear that [the employer] was angry with her allegations and his assessment of her performance was scathing at best. There is reasonable cause to believe that illegal discrimination occurred.”  Montana Law Week, 12/1/12