[2017] The Whistleblower Onslaught

by David P. Warren

  Harris is on it. “Objection, the rights to privacy of third parties not a part of this lawsuit are involved here. You are instructed not to answer.”

  I look at Harris. “For clarification, what privacy rights are you asserting?”

  “The rights of the other two employees involved. Their rights are entitled to protection even though they aren't part of this proceeding,” he says somewhat indignantly.

  I pull two documents from my file. “Okay, well, here are the signed consents to release of this information from Mr. Clayton and Mr. Peters, the two employees we are talking about.” There is silence and shock from the other side of the table as I return to my questioning. “How much did Mr. Clayton get?”

  “I object, this is not relevant, invasive of privacy, and inappropriate,” Harris says.

  Constantine looks at Harris. “Do I answer?”

  “We are taking a break,” Harris says and stands again.

  “Bob, we just took a lengthy break at your request. Let's not do it again.”

  “We're breaking now,” he says.

  They return fifteen minutes later, and we go back on the record.

  “Do you recall the question that was pending when your attorney took the last break? It was how much of a bonus did Mr. Clayton get?”

  “I don't recall.”

  “Less than Mr. Walters?”

  “Yes.”

  “And you told Mr. Clayton that he was getting the amount he got because he was doing an excellent job, right?

  “I think so, yes.”

  “Do you remember how much of a bonus Mr. Peters received?

  “No.”

  “Did you tell him his bonus was based upon his excellent performance?”

  “I think so, yes.”

  “And did he receive a smaller bonus than Mr. Walters?”

  Momentary silence, then, “Yes.”

  I take a deep breath. “Mr. Walters also got an award about three months before his termination?”

  He is quiet for a prolonged period. “Yes.”

  “From whom?”

  “An energy association of which Consolidated is a member.”

  “What was the award for?” I ask, suppressing a grin.

  Constantine says, “It was for going above and beyond for the industry.”

  “Were you there?” I ask.

  “I was,” he says. I can see he knows what comes next.

  “Did you say a few words about Mr. Walters at that event?”

  “Yes.”

  “What did you say, sir?”

  “That we appreciated his efforts,” Constantine responds.

  “Did you say anything else?” I ask, expectantly.

  “Not that I recall.”

  “Did you say that Kevin did a wonderful job for the organization?”

  “Maybe. I don't recall.”

  “Did you say that Kevin was a dedicated executive who always did great work?”

  “I don't recall that.”

  “Did you say that Consolidated was lucky to have him?”

  “I might have said that.”

  Harris looks at his watch. “It is two forty-five, and Mr. Constantine has to get to his meeting, so we need to end the deposition.”

  “For today, you mean.”

  He hesitates and then says, “Yes, for today.”

  For the record, I state, “We've agreed that because the witness has another engagement this afternoon we will stop for today and reconvene on another date within the next thirty days.”

  “How about thirty days if we can make it work, otherwise within six weeks,” Harris responds.

  “Too long. I'll compromise with you. The parties will make diligent efforts to have day two within thirty days, but, at the latest, the deposition will occur within five weeks from today.”

  “Okay, agreed.” Harris picks up his briefcase, and he and Constantine walk from the room.

  Kevin looks at me and shakes his head. “That was something,” he says. “Glad I was here to see it.” He pauses and adds, “And I'm glad you're on my team.”

  “Thanks, Kevin. I'm glad I'm on your team, too.”

  I spend a few minutes debriefing with Kevin, going over the day's testimony while the videographer and court reporter gather their belongings. I then say good-bye to everyone and walk back to my office. It is about 3:10 p.m. as I look down on the parking lot to see Harris and Constantine still standing and talking. Constantine's 3:00 p.m. meeting must have a start time that is a little more fluid than was conveyed to me by Harris. Constantine was probably used to making people wait, and most meetings that he was involved in were not going to start without him. He looks unhappy. It has been a good day.

  Chapter 20

  Michael Constantine arrived home at 7:30 p.m. the day of his deposition. He was exhausted. The deposition had been grueling, and the board meeting about the case almost as bad. He walked into the kitchen and mixed a drink.

  Victoria appeared at the kitchen door as he stared into his glass. She walked into the kitchen and looked at him tentatively. “How did the deposition go?” she asked, not really expecting him to be forthcoming.

  He shook his head. “It was even worse than I thought it would be. I spent all day trying to answer as best I could without getting painted into a corner. I also had to work not to be pissed off at Kevin's lawyer, who is an aggressive son of a bitch. He keeps a straight face while turning the knife.” He took a drink from the glass. “And this was day one of at least two. Then I went to the board meeting, and the case was the most controversial item on the agenda.”

  “You thinking about trying to get it settled? How about bringing Kevin back?”

  “Yeah, I told my lawyer to get a mediation set up so we can get this thing resolved.” He pauses a moment. “I think there may be too much spilled blood for Walters to return to Consolidated, but I am considering trying to make that happen. He was a key player for a long time.”

  She smiled and said, “You two were always a great team.” She let that settle and then added, “And you were friends.”

  He nodded. “Yes, we were. Maybe I saw disloyalty in him when I should have seen that he had the character to stand up to me.”

  “I'm glad you are keeping an open mind,” she said.

  Jerry sat alone in the living room, nervously awaiting dinner, when he would have to explain to Michael that he lost his job. He could hear, and listened carefully to, the conversation taking place in the kitchen. Michael's bad day would not make this conversation any easier.

  Vickie put her arms around Michael and kissed him. “I'm really sorry you had a rough day,” she said.

  He smiled at her. “Thanks for that. It helps.”

  “You give this company everything. The board needs to support whatever decision you make about resolving the case.”

  He shook his head. “A number of them are supportive of whatever I want to do. Some are angry at Kevin for this lawsuit. And I had a go-around with three of the board members who think this lawsuit is my fault. There was also a good deal of discussion about the potential for bad press coming from the case. They want it contained, so the majority want it settled with a confidentiality agreement.”

  She nods. “Makes sense to me.” She draws a breath. “I know that this is probably not a good day for this, but Jerry is here for dinner.”

  “Tonight?”

  “Yeah, I'm really sorry, but something happened that he needs to tell us about.” She whispered, “He lost the job.”

  “The perfect day,” he said.

  “He's been thinking hard about how he is going to tell you about this. He is very nervous.”

  “How many times do we deal with his crazy shit, Vickie? This was his last chance, remember?”

  “I remember, Michael. He hasn't done well, but he's still my brother.”

  “I know that, but it's time to cut the cord. We gave good words to the print company and the probation officer to help him land this gig, and these guys wa
nted to help make it work.” He studied the sadness in Vickie's eyes. “All right, we'll listen, but I think it's time for him to make his own way.”

  They walked into the living room and found Jerry sitting on a couch in the closest of the three conversation areas spread across the expansive room. They sat in armchairs across from the couch, a large coffee table filling the space between them and Jerry.

  Michael looked at Jerry and said nothing.

  “I lost my job,” Jerry said, resisting tears. Admitting to Michael Constantine that he failed again was devastating. He had promised he was going to make Michael proud, and he meant it. But somehow, the job and the new start were gone.

  “What happened?” Constantine asked.

  “I really tried to make it work. I learned the job, and I could do it.”

  Victoria looked at her brother, and then in the direction of her husband to gauge his response. Constantine looked at Jerry, silently awaited more of an explanation.

  “I stopped at a bar at lunch and lost track of time. They wouldn't give me another chance.”

  “This was your other chance, Jerry.”

  “I know. I know that. I learned the job, and I was doing okay. I just let time get away from me.”

  “Jerry, come on. You were drinking, right? That's how time got away from you. Own it.”

  Jerry looked at the floor. He rubbed his hands together and closed his eyes. “I want you guys to know that I can do this. I can make things work.”

  Michael looked at Vickie with a “this guy just doesn't get it” expression.

  Vickie said, “Jerry, you know we want to believe that. And we have helped you because we believe it. You know that, right?”

  “I do. I know that, and I am so sorry I let you both down.” Tears were flowing as he spoke.

  “Have dinner with us, Jerry. Then go home and start looking for jobs,” Michael said.

  “I will. I will look hard, but you know how hard it is for someone with a criminal record.”

  “We know,” Vickie said. “It means you have to work that much harder. You are the one who has to make this work.”

  Jerry looked at Michael. “I know what you did for me, Michael, and I won't forget it. I will find a way to pay you back, I promise.”

  “You don't owe me anything, Jerry. You owe yourself the opportunity to make a go of it in the world. Focus on that,” Michael said.

  “I will find a way to make you proud of me, Michael. I will find a way to help you in return.”

  Michael found this puzzling. All he could think of to say was, “Pick yourself up and find a way to support yourself, and I will be proud of you.”

  Jerry nodded, tearfully. Vickie looked at Michael and mouthed a “thank you.”

  After a quiet dinner, Jerry thanked Michael and Vickie and again swore that he would make them proud. He bought a six pack of beer and went home. He started his secondhand computer and made a couple of notes on a pad beside him. The name he had heard was Kevin. Kevin what? Walters—that was it. Kevin Walters and Consolidated. He began searching the web for information about the lawsuit between Walters and Consolidated that had caused Michael so much distress. He will find a way to help Michael be done with the case. After the way Michael had helped him, he had to find a way to make Michael proud.

  * * *

  Lee knocked on Darden's door at 3:00 p.m. It had been twenty-four hours since he first arrived at Hidden Court, and he had used the time productively. He knocked twice more before the door opened slightly and a man with short dark hair, a close cropped beard, and wire-rimmed glasses said, “Yes?” through the crack in the door.

  “Mr. Darden?”

  “Yes.”

  “Good afternoon, Mr. Darden. My name is Lyle Redmond, and I'm vice president of the Tennessee Association of Professional Engineers.” Lee wasn't making up the organization. He found them on the Internet, gave himself a nice title and had business cards printed, one of which he now handed to Darden. It always amazed Lee that people accepted a business card as some sort of real identification when for twelve bucks you could be anyone you wanted. Lee could see that Darden now breathed easier after that introduction. He was understandably concerned about strangers.

  “I understand that you are an engineer?”

  “Yes, although now retired.”

  “How about joining our organization? Not only do we support other engineers, we do association funding for research and development and scholarships through the foundation, and we keep you abreast of all that is happening in your discipline. We also do monthly luncheons to discuss new ideas, and we provide mentoring to new members. What do you think? Can I count on you to be a part of our organization?”

  Darden was quiet for a moment, so Lee said, “Dues are only $125 a year, and you get the monthly magazine and great comradery. We have a general coming from the Pentagon to discuss air force programs this month, and lunch is included. It's really worthwhile, and we can always use new ideas.”

  “Well, why don't you leave me your card and material, and I will think it over,” Darden said.

  “Sure, happy to do that.” He presented a packet that contained the business card he had printed and a brochure he picked up at the Chamber of Commerce. “Anything I can say to get you to sign up with me today?

  “The career was crazy time-consuming, so I'm taking things a little easy for a while, but I'll think it over.”

  “Fair enough,” Lee said and turned to walk toward the front door. At the door he turned and said, “Where did you work the longest?”

  Not surprisingly, Darden had an answer ready. “I spent almost twenty years with a small firm in Juneau, Alaska.

  Lee almost laughed. Darden may as well have said the South Pole. He was being careful to make it hard to check on him.

  “Oh, okay,” Lee said. “Please call me as soon as you decide.”

  “Yeah. Thanks again for stopping by.”

  Lee walked back into the living room and sat down on the couch. “We really need to talk, you know.”

  Darden stood frozen in place, trying to gather himself. “We just did.”

  “No, we really didn't. So far we've only talked about what got me through your front door. Now let's talk business.”

  * * *

  At 9:00 a.m., Jack Bernard arrives. I sit expectantly in the conference room with Kevin Walters and Donna while Jack grabs coffee from the table and sits back in his chair.

  He grins.

  “What, already? What did you find?”

  “It's not what I found; it's what Kevin recognizes.” He takes a sip of coffee and made us wait. “The roof supports and stabilizers that Kevin knew were purchased and used in Wheeling are in Wheeling. Our tests and the manufacturer confirms it.”

  Kevin smiles.

  Donna stops taking notes. “Does that mean what I think it does?”

  “Yeah,” Bernard says. “The records show that those supports and stabilizers are in Ruston. It lends a lot of support to your argument that the mine records have been conflated.”

  “Yes,” Kevin says, thumping the table. “I knew it, damn it.”

  “That's all you, Kevin,” I say, in genuine admiration of his powers of observation. “After staring at a warehouse full of documents for two days, to come up with that is amazing. I can't help but think that if I or Donna had been the one to find that invoice, it would have meant nothing to us, and we'd have blown right by it.”

  Kevin's expression changes. “So this means that someone really did switch the records for Wheeling and Ruston, doesn't it?”

  I nod. “Some switched, and some just missing. Net effect to eliminate what points to Ruston. Ballsy as hell.”

  “Whoever did it wanted to show Wheeling records as Ruston to eliminate the impact of the uncorrected S&S violations in Ruston. Those violations would put the company in a public shitstorm after this latest accident,” Kevin adds.

  “Who could have done this?” Bernard asks. “This is a big time gamble fo
r someone.”

  “I think we have a pretty good idea who did it,” I add. “And we are in the process of locating him so that we can have a discussion about the right thing to do.”

  “Anything else?” Kevin asks.

  “I can't draw any conclusions from the equipment. Nothing looks out of whack, but they have had plenty of time to make changes since the accident, so who knows. From the records, we know that there are three times as many reports of excessive methane in one mine than the other. The records now show that was a bigger problem in Wheeling.”

  “I know that's not true, and I can identify other witnesses who can testify to it too,” Kevin says.

  “One other item,” I add. “The production records for the mines show that the smaller mine was generating the greatest output.”

  “Nice,” Kevin says. “Use that for day two of Mike Constantine's deposition. He will tell you that the larger mine would be substantially more productive.”

  “Good thought. I'm looking forward to day two of his deposition already.” I looked up at Kevin. “Do you think Constantine engineered this reversal of records?”

  Kevin pushes his glasses toward the bridge of his nose and then says, “There is no way he was engaged in carrying this out. It would have been undertaken at lower levels of management, and there would always be distance to protect him and give him plausible deniability. But I think he knows what happened.” He paused and shook his head. “But proving that he was involved is something else entirely.”

  * * *

  Lee stared silently at Darden. He could feel the man starting to sweat.

  “So what is your business? Are you with Tennessee Professional Engineers?”

  Lee sat back and looked directly into Darden's eyes. “No, I'm not.”

  “Then you need to leave, sir. You are not welcome in my house.”

  “No,” Lee said evenly, “not just yet.”

  “What do you want from me?” Darden asked.

  “Well, first you can tell me how much you were paid.”

  “What? Paid for what?” He was talking faster. “You are out of your mind, and I am going to call the police.”

  “In a minute, maybe we will both call the police. But for right now, tell me what you were paid.”