Monday, September 28, 2009

Shirlena's Story

Shirlena, (not her real name), was one of the most courageous whistle-blowers I have represented. I have written about Marley (not her real name). However, Marley might not have come forward against the not-for-profit company the two worked for had it not been for the Shirlena's singular act of courage. Shirlena worked for this company for 26 years, and with the Executive Director for that whole time.
This company was founded to assist a group of professionals and was similar to a local bar association, but for a different profession. The company had an Executive Director, an Assistant Director (Shirlena), the Executive Director's administrative assistant (Marley), another secretary and the bookkeeper. The professionals had a full board of directors with an executive board including a president, vice-president, secretary and treasurer. In addition to the secretary, there was a finance committee.
One of the functions of the not-for-profit was to organize to get public knowledge out so that the Legislature would pass tort reform, since these professionals believed they were getting sued too much. They were largely successful in their endeavor. The board members focused on tort reform, but many seemed to have little concern about the day-to-day operation of the business.
Shirlena was one of the most hard-working, diligent and intelligent employees a business could have. She was discrete, honest and caring. One day, she decided to look into one of the business' expenditures, a television/recorder set that was supposed to be given as a raffle prize as a convention the business had sponsored. Shirlena asked the Executive Director (we'll call him Ed for short) which professional had won the prize. Ed hemmed and hawwed and named someone in Arkansas. Shirlena checked it out and it was untrue. The following day, Shirlena found a check on her desk in the amount of the television/recorder combo with an apology from Ed. Shirlena decided to search farther to see if there were other irregularities. She found many other things, small in nature, but stealing nonetheless. In Ed's employment contract, the company was obligated to purchase life insurance for Ed, upon which Ed had taken personal loans. Ed had taken other items from the not-for-profit company, trips, televisions, a video recorder, even petty cash money. Ed regularly charged the company for personal items and ordered extra food for events so that he could take the food home to his family. He took cases of soda pop home.
Shirlena decided to tell the former treasurer, a professional whom she had trusted. This fellow told Shirlena that he would relay Shirlena's concerns to the Board and that Ed would probably be suspended while an investigation was conducted. The Board did meet, and decided to appoint one of their members, an ambitious fellow who not only practiced in the field but also held an M.B.A. and whose purpose was to make his honored profession into big business. He wanted a foot into this not-for-profit's door and he got it. This fellow told the Board he would conduct an investigation, but did nothing. He told Ed about Shirlena's complaints and the two of them conspired in ways to get Shirlena to quit.
The company had a valuable retirement program and knew Shirlena was dependent upon it since she intended to retire within 10 years. Ed and the board member decided to slice Shirlena's anticipated compensation. Shirlena was upset, but she did not quit. So Ed and the other decided to tell Shirlena they were taking her duties away and that she could either quit or be paid a fraction of her salary as a bookkeeper. Some of the Board members gave lip service to being upset, the former President resigned, but no one raised one finger to help Shirlena.
Shirlena is a very religious person and she was shocked that after 26 years, after giving her blood, sweat and tears to this company that they, of all people, would treat her this way. Her confidence was shaken and it was just the beginning.
Shirlena came to me. It was after Shirlena was forced out that Marley came forward. I hope you have already read of her situation, which I related below. We took deposition after deposition. Ed admitted to stealing in his deposition. The television was a Christmas gift to his son. In addition, Ed purchased, with company money, gift certificates to the Plaza shopping district and gave them to his daughter and daughter-in-law as Christmas presents. Ed was still employed, Shirlena was not.
In the meantime, Rafe Foreman and I tried Marley's case and the jury awarded a total of $551,500. Shirlena's case was set for trial, but this time there was no dispute that the company had a valid insurance policy in effect that would cover this case. Shirlena was quieter and quieter as time progressed. Ed had stolen her self-confidence, but she was determined to get it back.
When I began voir dire, I knew that Ed was nowhere to be found because we could not subpoena him to testify. He was hiding. I asked the panel if it would make a difference if he did not show. The consensus was a resounding ,"Hell, yes, it would make a difference." The jurors insisted that if Ed did not show, that would say volumes.
Before trial, Shirlena had decided that she would agree to settle her case if the defendant offered $450,000.00. We had been through a mediation some months before trial, where the defendant offered $50,000 and the mediator said she would never recommend that they pay over $100,000.00. Rafe had Ed on the stand when we took a break. The defense attorney offered the $450,000. Shirlena, to my amazement said no. She wanted a sign from God and if God wanted her to settle, then she would know if by the defendant offering $500,000. We went back into trial. As Rafe cross-examined Ed, I saw the defense counsel take his cell phone and leave the courtroom. A few moments later, he returned, went to Rafe and said loudly so the jury could hear, "They will pay the $500,000." I guess he didn't want to risk Shirlena balking, but she didn't.
I believe I witnessed an already strong woman grow stronger that day. Shirlena, as is true of most of us, was afraid of testifying in front of strangers. She was afraid of not being taken seriously again, after the Board had betrayed her. She never had to testify.
Shirlena quit the job she had taken as a legal assistant and set up her own accounting firm. Her honesty, courage, and fortitude paid off. I am a better person for having represented her.

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