by David Kirby
The ex-trainers dismissed it as a worthless idea. Jeff and John suggested they write to OSHA. Lara Padgett was preparing the battle against SeaWorld’s legal appeal. All four wrote to Padgett. Sam’s letter spelled out the main counterarguments well: “I don’t see how ‘spare-air’ would have been any use to Dawn or any of the other trainers in the past who have been injured or killed by killer whales.”
To begin with, killer whales “move FAST,” Sam wrote. “Imagine trying to breathe normally or remember to slowly exhale with your arm or leg in a killer whale’s jaws, while you are being forcibly dragged all over the pool. This is completely unrealistic and, frankly, preposterous.” She mentioned the danger of severe lung damage if a trainer took a breath of spare air while at the bottom of the pool if a whale bolted him to the surface.
Some systems might also offer the whales “something else to grab,” Sam said. “All marine parks” had trouble keeping things out of the mouths of their cetaceans. Sam stated with New York bluntness, “A marginally conscious, hypothermic, badly injured trainer in shock in the jaws of a 12,000 lb whale would be just as dead if he or she were carrying extra air or not.”
* * *
When OSHA issued its citations, SeaWorld’s legal troubles multiplied. One might forgive company officials for thinking Tilikum had become more trouble than he was worth.
Linda Simons was now filing a defamation suit against SeaWorld, in addition to her wrongful termination suit and OSHA complaint. SeaWorld’s response to her allegations had been libelous, she claimed, by stating she lacked “acceptable standards of competence, transparency, integrity or professionalism” and that she tried to extort money in exchange for her silence.
Then, on August 24, 2010, the day after OSHA acted, the Orlando Sentinel’s Jason Garcia reported that Scott Brancheau had retained a Chicago law firm with expertise in wrongful-death litigation, O’Connor & Nakos. “Any potential lawsuit gained ammunition Monday when [OSHA] cited SeaWorld,” Garcia noted. Brancheau’s lawyer, Dan O’Connor, declined to say if his client would sue, though he did state, “It’s not every day that OSHA issues a willful citation for plain indifference or intentional disregard for human life.” He added intriguingly, “It is clear, after reviewing the willful finding, that more of the true facts will be brought out.” Dawn did not violate any safety protocol; she was “working within the customs, practices, and procedures” of SeaWorld, O’Connor said.
It was “the first public sign of a fissure between the Brancheau family and Orlando-based SeaWorld Parks & Entertainment,” Garcia wrote in the Sentinel. The “Brancheau family” did not include Dawn’s siblings and their mother, Marion Loverde, however, who were not party to any potential suit. SeaWorld was helping them to establish a foundation in Dawn’s honor. Scott did join with SeaWorld and the Loverde family to block videos and photos of the incident from being released to the press and public.
Meanwhile the Connells, the New Hampshire family who were filming at “Dine with Shamu” moments before the carnage unfolded, filed suit on behalf of their son, Bobby, for negligence and intentional infliction of emotional distress, after OSHA issued its citations. Bobby had been profoundly traumatized by what he witnessed, the complaint alleged. The boy had looked directly into the victim’s eyes and “saw the look of horror and desperation on Dawn’s face as she was swimming for her life,” the lawsuit charged.
Now he was haunted by nightmares, crying a lot, not eating well, and prone to bursts of anger. “The school’s had some counseling for him,” Mrs. Connell said. “It affected all of us. I’ll start crying while driving.… I see that face every night before I go to bed.”
Most legal analysts pooh-poohed the suit. Eyewitnesses to even the most unspeakable tragedies had no legal standing in court unless they were closely related to the victim. On the Internet, commentators eviscerated the parents. “These people are just disgusting greedy money grubbing low life pigs” was a typical remark. Another critic asked, “When the planes hit the towers on September 11, did all of those people sue the plane companies?”
* * *
As the summer of 2010 morphed into the fall, another former employee stepped forward with a legal complaint. She also claimed to possess troublesome secrets about SeaWorld, including its alleged obstruction of the federal Brancheau probe. Some of her allegations supported much of what Simons contended.
The plaintiff, Michelle Dillard, began working in 2007 as a human resources manager for SeaWorld, Discovery Cove, and Aquatica and rose to director of human resources before quitting in anguish in 2010, five months after Dawn’s death. After she quit, Dillard retained Simons’s attorney, Maurice Arcadier, and signed a sworn affidavit outlining her allegations. The document was sent to OSHA and copied to SeaWorld.
Dillard’s first task in 2007 was organizing the chaotic applicant and employee records in advance of a Labor Department audit on possible discrimination in hiring. The records were in “an abominable state,” Dillard said. Her boss, human resources vice president Christine O’Neal, allegedly told her to relax. The feds were “complete idiots” and had “no idea what they are looking for,” O’Neal said, according to the affidavit. Dillard also alleged to have witnessed O’Neal repeatedly “stonewalling the investigation.” The park failed its paper audit and federal inspectors descended on-site. “We created what we wanted them to have,” Dillard charged. “We shredded some papers and stored others.”
Even as the stressful inspection continued, Dillard said she was hit with yet another HR scandal. A senior male trainer at Shamu Stadium entered her office and unburdened himself of a dark secret: “There’s a lot of quid pro quo sexual harassment going on around here. It makes me extremely uncomfortable.” Some male senior trainers were demanding sexual favors from junior female trainers. They would allegedly ask for sex “in return for being given more ‘water time’ with the whales.” Often, they would play the adult make-out game Dirty Jenga, pulling small blocks from a tower with written instructions to do things like spend “5 minutes in heaven” in another room.
According to Dillard, she began an investigation, grilling dozens of staff, and confirming that “indeed, there were severe, pervasive sexual improprieties committed against the junior trainers.” As a result, “two male senior trainers/supervisors were terminated,” she said, though they left with “hefty severance.”
Dillard also learned about safety issues. “August Busch III felt that trainers should make more money because they work with dangerous animals,” she wrote to OSHA. Busch also wanted greater safety measures. “They looked at such things as an underwater breathing apparatus, but trainers felt they were cumbersome and wouldn’t really help.” Trainers also lobbied for false-bottom floors, which could rapidly be raised to beach a rampaging whale. But these were deemed too costly by the “bean counters,” Dillard alleged.
By 2009, Dillard said, she was suffering from emotional anxiety on the job. “I repeatedly witnessed behavior that was morally reprehensible to me. It was proving to be detrimental to me in terms of the unrelenting stress I suffered.” By Christmas of 2009, when Keto killed Alexis Martinez, she was seeking medical help for chronic anxiety and depression.
Then Dawn Brancheau was attacked.
Dillard had sprinted to Shamu Stadium to help with the rescue but was too late. “I was within 30 feet of the whale’s mouth with Dawn’s dismembered body in it,” she wrote, recalling that one of the curators on-site had grumbled, “If we had put in those false-bottom floors, this never would’ve happened.”
In the aftermath of the disaster, during the OSHA investigation, Dillard denounced what she called SeaWorld’s “historical culture” among management of “outright lying to OSHA [and] using misinformation and cover-up, using intentional delay tactics to stonewall the investigation. She wrote that her boss “hid documents, pretended to not know that documents existed and obstructed OSHA’s investigation.”
Dillard also backed up Linda Simons, saying Simons “did ever
ything in her power” to cooperate with OSHA. Simons had urged management to cooperate “so that another park employee might avoid Ms. Brancheau’s fate.” But Dillard feared that Simons would face retaliation.
Two months after Dawn died, the Department of Labor cited SeaWorld parks for employment records that showed a “disparate impact” on African-American and Hispanic applicants. As a result, the company agreed to try to contact hundreds of qualified applicants who had been denied employment, and some were offered either a job or a modest financial settlement.
Meanwhile, Dawn’s death “began haunting me,” Dillard wrote. She sought stronger antianxiety meds. Angst over her job grew, rendering her more physically and mentally unfit. In June, Dillard’s doctor ordered an immediate leave of absence. When she returned in mid-July, nothing had changed. When she asked O’Neal about the probe, the reply was “If Dawn had just reacted like a trainer that day she’d still be alive,” Dillard alleged. She was appalled by the reply. That same day, Dillard tendered her two-week notice. Told by her boss that she was free to go right then, she walked out for good.
Dillard filed a complaint for “constructive discharge”—a term used when working conditions become so unbearable one had to quit. The case was mandated to confidential, binding arbitration: Dillard had signed a standard agreement handed to all new employees requiring them to arbitrate personnel disputes and barring them from seeking damages in court. Nothing about the arbitration, including its outcome, was to be discussed in public.
SeaWorld’s vice president of communications, Fred Jacobs, said neither Dillard nor Simons should be believed. “Ms. Dillard was not involved in the OSHA inspection of Dawn Brancheau’s death,” he said. “SeaWorld cooperated fully with the agency and, since the OSHA investigation continued for months after [their] employment with SeaWorld ended, they have no knowledge as to what documents or witnesses were provided to the agency.” Both Dillard and Simons were suing SeaWorld and both were represented by Arcadier, who, Jacobs said, “threatened that Simons would go to the press with these unfounded allegations unless SeaWorld agreed to pay her hundreds of thousands of dollars.”
Simons and Arcadier flatly rejected those charges. Meanwhile Fred Jacobs did not deny there were charges of discrimination in hiring at SeaWorld or sexual harassment at Shamu Stadium.
* * *
Colleen Gorman and John Kielty still lived together in Colleen’s two-bedroom condo in St. Pete Beach. Every day, they worked at their computer stations in the living room overlooking a shallow lagoon frequented by wild dolphin pods. (“There’s no need to go to SeaWorld when you can see them right from here!” Colleen liked to say.) The two were central members of the Orca Aware group. They shared with their growing network intelligence they gathered from marine mammal blogs and websites, and even contacts they had established inside the gates of SeaWorld.
John and Colleen kept busy tracking captive-orca issues at parks around the country and the world—Canada, Japan, Spain, France, Holland, and Argentina still had captive killer whales on display—but mostly they were focused on Florida, in particular Lolita at the Miami Seaquarium and Tilikum at SeaWorld. They made frequent drives up to Orlando to perch high in the bleachers of Shamu Stadium to observe Tilikum, often floating alone, in a backstage pool during the “Believe” show.
The show, designed for hotdogging and other types of water work, had already banished all trainers from the water for safety. For “Believe” segments where trainers previously rode whales or launched from their rostrums, now they had little else to do but dance silly jigs on dry land to the blasting music.
Between shows, Colleen would spend long periods gazing through the gate at Tilikum in G Pool. More than once, SeaWorld security asked her to move along.
In September of 2010, John and Colleen decided to formalize their efforts. They began creating a 501(c)(3) nonprofit organization to advance their anti-captivity agenda. They dubbed themselves The Orca Project (TOP) and launched a news and opinion blog by the same name. TOP rapidly grew into an influential and well-trafficked site among whale advocates.
John and Colleen shared writing duties. In early September TOP’s first entry, “Seeing Is Believing: Tilikum’s Lonely Life After Dawn,” was posted by Colleen. For the past six months, as SeaWorld’s internal review was under way, she wrote, Tilikum had been kept out of his segment in the “Believe” show. On one typical day, he “barely moved” from the time Colleen arrived at 9:00 a.m. He “simply rested all day long until it came time to be fed, once at 1 pm, 3 pm and 6 pm when they came with a bucket of ice and a few fish.”
Such prolonged isolation, Colleen wrote, “begs the questions: what does he do with his time? Why does SeaWorld hold on to him versus retiring him to a sea pen?… What does he do for stimulation?” She had asked around among SeaWorld staff about Tilikum. These were social animals, she said. Shouldn’t he be with the other whales? She was told that Tilikum was “an Icelandic ‘transient,’ therefore implying that transients are drifters and spend time alone.”
Colleen continued, “Any sentient being would go out of their mind in such a situation.” If SeaWorld thought that Tilikum was dangerous before, she asked, “What will happen to this poor soul if they continue to keep him separated, isolated, ignored [and] neglected?”
SeaWorld did not respond to the blog. But as Colleen reported, company officials were telling the media that Tilikum was receiving “much interaction, play, stimulation from the trainers and is doing very well.”
* * *
On Monday, September 6, trainers at SeaWorld San Diego noticed that Sumar, the twelve-year-old son of Tilikum and Taima (who died during a stillbirth in Orlando), was not feeling well. The young male, separated years earlier from his mother after she tried to drown him, began to show signs of “slowness” during the afternoon. Staff veterinarians took blood samples and quickly initiated a full regimen of antibiotics.
On Tuesday, his condition deteriorated. The 12:30 Shamu show was canceled to allow trainers and veterinarians to devote their full attention to Sumar. “Despite these efforts,” SeaWorld said in a statement, “Sumar did not survive.”1
Sumar had no history of health problems and his passing “shocked” park employees, the San Diego Union-Tribune reported. Shamu Stadium was closed, although the “Believe” show resumed on Wednesday. “All of us, especially his trainers, will miss Sumar more than you know. He was a truly wonderful whale and was very deeply loved,” the company said on its Facebook page. The cause of death was unknown and necropsy results were not expected for several weeks. It left SeaWorld with six killer whales in San Diego and eighteen in total.
Sumar’s death “complicated challenges for SeaWorld,” which relied on the breeding of whales such as Sumar, instead of capturing them in the ocean, the Union-Tribune noted. But that wasn’t the only thing SeaWorld relied upon. It also needed continued public support for keeping killer whales in captivity, “something that animal rights groups said is eroding after a string of high-profile incidents,” the paper observed.
Despite Sumar’s youth, SeaWorld spokesman Dave Koontz said captive orcas “routinely live into their thirties or forties.” Colleen and John went on the attack. “They DO NOT routinely live into their 30s and 40s,” TOP wrote. Of the 41 captive orcas still alive, only 2 had reached age forty and 3 had reached thirty. More than 150 died before those ages. Put another way, of the more than 190 whales held in captivity since the 1960s, only 5 so far had survived past the age of thirty—the mean age of longevity for males in the oceans. The figures TOP used had been compiled by Wendy Cooke, although both HSUS and Stefan Jacobs’s Orcahome website had also reported much of the data.
“To give you a sense of how young orcas in captivity mostly are when they die,” TOP wrote, “here is a list” (SeaWorld whales only, and some calves who died before age one, excluding stillbirths and miscarriages):
Shamu (F), lived 6 years
Ramu (M), lived 15 years
Kilroy (M
), lived 11.5 years
Kandu (F), lived 4 years
Orky 2 (M), lived 20 years
Nootka (F), lived 20 years
Winston (M), lived 15.5 years
Kandu 3 (F), lived 4 years
Sandy (F), lived 4.5 years
Kona (F), lived 6 years
Canuck (M), lived 2.5 years
Frankie (M), lived 5 months
Kanduke (M), lived 15 years
Kenau (F), lived 15 years
Gudrun (F), lived 19.5 years
Canuck 2 (M), lived 4 years
Kona 2 (F), lived 10 years
Kandu 5 (F), lived 12 years
Winnie (F), lived 24.5 years
Kotar (M), lived 16.5 years
Shawn (F), lived 1 year
Kahana (F), lived 12.5 years
Nootka 4 (F), lived 12 years
Haida 2 (F), lived 19 years
Samoa (F), lived 8.5 years
Bjossa (F), lived 21 years
Katerina (F), lived 10.5 years
Splash (M), lived 15.5 years
Taku (M), lived 14 years
Nyar (F), lived 2 years
Baby, lived 38 days (Haida 2)
Halyn (F), lived 2.5 years
Taima (F), lived 21 years
Baby Shamu 2, lived 11 days
Sumar (M), lived 12 years
Local news accounts stated that parts of Sumar’s corpse were donated to research, some may have been sold to pet-food processors, and the rest went to landfill.2
* * *
By the end of the summer, SeaWorld had still not put orca trainers back in the water—though park officials made no secret of their desire to do so. If they could deploy the right technologies, they might be able to return to water work safely and still be in compliance with OSHA’s “feasible means of abatement.”