“That all of it?” Harris asks.
“No.” Harris waited and Kevin said no more. I suppressed a grin at how well Kevin was doing following my instruction that he answer only the question asked and volunteer nothing more.
“What else?” Harris asks.
“I complained that these were knowing cover-ups and that these conditions were dangerous to our miners whose lives were on the line. I also complained that those hiding the ball rather than fixing the problems should be fired rather than encouraged.”
“What's an S&S violation, for the record?”
“It means significant and substantial. Per MSHA standards, it is one likely to lead to serious injury or illness.”
“Anything else you complained about?”
“Yes.” Silence in the room.
“What else did you complain about?” Harris asks, pulling teeth.
“That it was clear that the failure to document and failure to correct violations were starting to become part of the culture, and that managers seemed to be condoning such failures.”
“You would expect the records to bear you out concerning the conditions you were reporting, right?” Harris asks.
“I surely would,” Kevin says.
Harris was grinning. “But they don't, right?”
Kevin looks at me, not wanting to give what we believed away yet.
I jump in. “I object. Vague and ambiguous, compound, overbroad, calling for improper opinion and legal conclusion. Are you asking him to analyze and conclude on the significance of about twenty thousand documents circulating in this case? If so, I am not going to let him. Do you want him to tell you what he read in the newspapers about what happened—how can he possibly answer that?”
Harris thinks a moment, and then nods. “Okay, I'll strike that question. Tell me what documents you created about the complaints you had.”
A much better question, and one that I knew Kevin could run with very well. “I wrote several e-mails about a number of these events. First, to the managers who needed to act on the particular violations that were identified, and, on a number of occasions, to my boss.”
“Did you do that to build a claim?”
“No, this was as the events occurred. I was trying to get someone to fix important safety issues. I had no idea that I would ever have a claim of any kind. I had no idea that the company—meaning Mike—would fire me for trying to fix safety problems.”
“What documents do you have in your possession to substantiate that these communications occurred?”
“I do not have the e-mails; the company does. They fired me and aren't allowing me access to the system.”
Harris smirks in a self-congratulatory way. Such a dick. He leans back in his chair and asks, “Mr. Walters, you knew that you were an at-will employee, right?
“Objection, calls for a legal conclusion, lacks foundation, and calls for speculation,” I interject.
“You can answer, Mr. Walters,” Harris says.
We had prepped for this one as well, so I just wait while Kevin looks contemplatively at Harris. “I have heard the term, but I don't really know what that means, legally,” he says, thoughtfully.
“It means that you can quit anytime you want, and the company can fire you at any time.”
“Was that your understanding of your relationship with Consolidated?”
“No,” Kevin says and then waits.
Harris shakes his head disapprovingly. “You could have quit at any time and without notice, couldn't you?”
“Well, I suppose that would be possible, but I would never leave the company in a bind.”
“But to your understanding, you could, legally, right?”
“Object as calling for a legal conclusion, but you can answer.”
“I suppose so, given that slavery was abolished some time back.”
“All right,” Harris says. “And likewise, the company could have fired you at any time, right?”
“Object as calling for a legal conclusion.” I look at Kevin. “You can respond.”
“No.”
“Why not,” Harris says, sounding annoyed once again.
“Because it is my understanding that an employee cannot be terminated for an unlawful reason, such as retaliation for raising safety issues.”
“Where did you come by that understanding?”
“I don't recall specifically, but at various times during my career. I've been in the workforce a long time.”
Harris wasn't happy. He peruses his notes and then begins asking questions about Kevin's efforts to find reemployment. “So,” Harris asks, “did you find another job?”
“No.”
Harris nods. “So why can't a guy with your level of experience find a new position if working that hard at it.”
“I object. Argumentative, calls for speculation, lacks foundation, and an improper question. But you may answer,” I add, smiling inwardly as I knew what was coming.
“Because Consolidated is preventing me from finding reemployment,” Kevin says.
“What evidence of that do you have?” Harris sounds angry and indignant.
“There is anger in your voice, counsel. Can you simply ask your questions without a show of disapproval or incredulity?”
“There is nothing wrong with my tone,” Harris almost yells. “As for incredulity, a lot of your client's testimony is hard to believe.”
I raise a hand. “Save it for the jury. Do you have another question, or are we done here?”
Harris is now pissed. “You know, counsel, your conduct here has been highly inappropriate and obstreperous all day long. I'm about that far,” he says, holding up a thumb and index finger, “from halting this deposition and getting an order for sanctions.”
I lean back in my chair as Kevin looks on, concerned. I look at him for a moment and then I nod. “If you want to go now, we can still beat traffic. I'll be happy to oppose the motion and convince the court that you had the one and only shot at this deposition that you are entitled to. Just let me know if this is a good time.” I waited.
Harris, now completely pissed off, turns to my client shaking his head, and asks his next question. So it went, all day. At 5:00 p.m., Harris says, “Let's quit for the day and arrange a second day later.”
“How much longer do you have?” I ask.
“Probably another three hours.”
“Do you want to push on and do them tonight?”
Harris sits back and contemplates. “Yes, let's push on,” he says, probably figuring he could score more points with a tired witness.
“Let me talk to my client,” I say, and Kevin and I step outside and walk down the hall together.
“How are you doing?” I ask.
“A little tired but okay.”
“You want to wrap up for the day or push on and get it done? If you are too tired to have your head fully in the game, we should can it, and come back another day,” I add.
“I'm okay,” Kevin says. “I'd really like to get this all done today.” I nod, and we return to the conference room.
“We are good to go on if the court reporter is okay with it.”
“The reporter tells us she will be okay if we proceed further.”
We reattach our microphones to our lapels, and the videographer announces that we are on tape four of Kevin's deposition.
“Mr. Walters, I am going to ask you about a number of documents. Let's start with what we will mark as Exhibit 1, your employment application with Consolidated.”
“Did you prepare this document?”
“I did.”
“When?”
“Well, from the date on it, I would say about twenty-eight years ago.”
“Is everything on it true and correct?
I chime in with, “Read it all carefully to assure there are no mistakes before answering.” In fact, Kevin and I have been through this and all the documents we have, so I know what he will say.
“It's accurate,” Kevi
n says after reading it over again.
Harris then proceeds through forty-four documents, marking each as exhibits and asking questions about the authenticity and context of a number of them. The deposition continues until 8:10 p.m., when Harris finally states that he has no more questions. With Kevin off the hot seat, and having done a great job, I hand Harris a notice of deposition for Michael Constantine in three weeks. “A present for you,” I say. “It's the deposition notice for Constantine on the date we agreed.”
Harris nods, and then says, “Good night,” to the room and walks out.
When Harris leaves the office, I thank the court reporter and videographer, who are in the process of packing up their equipment, and Kevin and I walk out together.
“Did I do okay?” he asks.
“You did a good job. You came across as direct and honest.”
Kevin gives a slight nod. “Thanks,” he says, then adds, “The company is either hiding or has destroyed all those memos I did. I probably shouldn't be too surprised at this point but after working somewhere for twenty-seven years, you want to think that …” He let his words trail off.
“I know,” I say, “it can be really disappointing to find that documents are gone without explanation and to listen to what you know is pure bullshit. I can almost guarantee there will be a lot more of the story they try to tell about you that you won't recognize.”
Kevin nods. “Thanks for bailing me out in there. I didn't know where to go with a couple of those questions. I also didn't want to talk about that Andrews Company invoice until we can find some backup.”
“I am with you all the way.”
We hop in the elevator alone, and Kevin says, “You know, Scott, I think I have told you that Constantine can be a pretty ruthless son of a bitch. Worse yet, there's something pathological about the way he does it. When you take his deposition, you will see it. He comes across like he believes every word he utters, even when it's pure bullshit.”
“Sounds like a great guy,” I said. “I'm looking forward to meeting him. I'm just hoping we can come up with a little more evidence before that happens. Maybe a document or two or maybe a way to get to Carl Miller and convince him to talk to us.”
“There's something very weird about Miller being suddenly unavailable,” Kevin says. “This guy was around inspecting for years, and then all of a sudden he evaporates without a trace—vaporized into some retirement. Maybe we should start checking the trunks of abandoned cars.”
“Maybe,” I say, reflecting on the vast resources available to Constantine to change history as reflected in records, to intimidate witnesses, and to accomplish anything else he chooses. “Except that these guys are smart enough to see that the car disappears, too.”
“Unfortunately, that seems to be true.” As we step out of the elevator on the first floor of the building, Kevin says, “There's one thing I've always wanted to ask you about litigators.”
“Yeah, what's that?” I ask.
“Do you really go to war with these guys on a case for two years and then when you are off the record talk to each other like casual friends?”
“We sometimes do that. We're advocates, and argue our positions zealously, but try to stay objective knowing that everyone is doing a job.”
“So will you have a beer with Harris when this is over?”
“Nope. Harris is an asshole when we are off the record as well.”
Chapter 11
The wake-up alarm gently comes to life, and I hear Dan Fogelberg sing, “Longer than there have been fishes in the ocean.” I smile and roll over to find Lisa looking at me. “Good morning, my love,” she says. She stands and sheds her nightgown, and then lays down and pulls me to her. “Did you notice that they're playing our song?”
“I did notice that before my senses got taken over by thoughts of what is about to happen,” I say, smiling and kissing her softly.
“You get distracted?” she asks continuing her movement beneath the covers.
“Yeah, seems like all the blood left my head, and I can't think.”
She smiles. “Shouldn't be a problem,” she says. “I know which head you think with anyway.”
I pull her to me and kiss her deeply. She puts her hands on my face and caresses. “I love you,” she says. “Seems like I just love you more and more. Maybe it's because you're a good dad.” She smirks, and then says, “Or maybe it's because you're pretty good at this.” She climbs on top of me and places me inside her. She smiles and begins to move, and we are instantly transported to paradise. God, I love this woman.
* * *
Jerry Anders arrived at the County Probation Department twenty minutes late and informed the receptionist he overslept. She told him to take a seat and someone would be with him shortly. Fifteen minutes later, a tall, thin man with a thick mustache and thinning brown hair emerged from the back offices into the reception area.
“Mr. Anders?” he called.
“Yes, I'm here,” Jerry said, putting down a magazine.
“Hi. I'm John Linder, your probation officer. Follow me, please.”
Jerry followed him down a narrow corridor past groupings of cubicles thick with files, loose paper, and employees on telephones. At the end of the corridor, Linder walked into a conference room Jerry thought to be about the size of a closet, housing a small round table and two chairs. When Jerry walked in, Linder closed the door behind them. Jerry had a sudden claustrophobic sensation. The room was even smaller than the cell he had occupied.
Linder directed Jerry to a chair and sat in the other one. “Mr. Anders,” he began, “you and I don't know each other well, but we will. Today was the first and last time you will be late for our meetings. I have a large case load, and I have to report monthly on every one of them. You don't show up on time, I write that down, and you are one step closer to back inside. It won't matter to me because they are going to give me two new cases for every one that goes away. You with me so far?”
“Yes,” Jerry said. “Sorry for being late.”
“Good. Here are the written rules that govern your probation,” Linder said, handing Jerry a two-page document. He looked directly at Jerry and spoke slowly, in a way that suggested he had spoken the words a thousand times. “No drugs, weapons, or associations with known criminals or anybody who I think is shady. You report two times a week for the first month. You find a job, and I make sure you're doing what the employer says you should be. You don't show there, I violate you. You don't show here, I violate you. You comply with all the rules I just gave you, or I violate you and send you back, no second chances. Still with me?”
“Yes,” Jerry said softly, feeling suddenly like he was already back inside.
Linder softened his expression. “I'm not that hard to deal with if you toe the line. If you don't,” he shrugged, “then at least you know the deal.”
Jerry manages to respond with, “I understand.”
“Good,” Linder said. He threw a five-by-seven card on the table in front of Jerry. “Here are three potential jobs. I suggest you start with number three, Home Town Printers. The owner knows you're coming.”
“Okay, thank you,” Jerry said, suddenly feeling good about his prospects.
“Needless to say, anything goes missing, and you know who gets looked at first.”
Deflated, Jerry says, “I'm not going to take anything.” There was a slight edge to his voice.
“Good,” Linder says. “Sounds like you mean it. See you here Thursday at 8:00 a.m. Don't be late.” He handed Jerry a business card. “Call me if there's anything I need to know, okay?”
“Yes, sir,” Jerry said as he got up from his seat. Linder turned his attention to a stack of documents in a folder.
* * *
When Jerry returned to the Constantine guest house that evening, he was ecstatic. He landed a job. He was now a printer and on his way back to fitting in with the crazy ways of free citizens. He called Vickie to share the news, and she invited him to dinner in the
main house.
As soon as they sat down to eat, Jerry shared his news with Constantine, who seemed to consider it carefully.
“What are you going to be doing?” he asked.
“I'm going to operate a printing press, processing orders and such.”
“You going to stick with it?”
Jerry glanced at Vickie, who looked uncomfortable but remained quiet. “Yes, I plan to make this work.”
“Well, I hope you do,” Constantine said, unable to keep the skepticism out of his voice. The remainder of dinner passes in discussion of Vickie's day, sports, and what was needed around the house. As was always the case, Constantine said nothing about business.
After dinner, Vickie walked her brother back to the guest house. “I want to tell you that I think you're doing great, Jerry. Don't worry about Michael; it may take a little while to …”
Jerry finished the thought. “I know. Look, I fucked up pretty bad. I taught Michael that I couldn't be trusted. It's going to take some time to fix that, but I intend to do it.”
Vickie lit up with happiness. She squeezed his arm and said, “I know you're going to make it. Your time has come.” She gave him a hug, and they said good night. Jerry couldn't remember the last time he felt such a sense of pride.
After Vickie left, Jerry drank a beer and watched Robert Redford's emergence from prisoner to warden in Brubaker. He thought about his own new emergence into a role he could respect. He felt almost euphoric as he opened a second beer. When he finally fell asleep, he dreamed he was back in prison, and all of his progress in moving into the real world had been a dream. At 2:00 a.m., he awoke startled and crying. He knew this new dream would be hard to hold, but he at least hoped to make it through the night. He went to the kitchen and made hot chocolate, just like Vickie had done for him when they were young, and he was stressed out. He needed something stronger, so while the milk was heating he went to the refrigerator and found the chocolate chip ice cream.
[2017] The Whistleblower Onslaught Page 9