Writing these episodes requires going back over painful memories and poring through piles of documents for hours. While others must evaluate the worth of this story, I guess I continue having faith that somehow it mattered that JPL got away with discrimination and retaliation against a hard-working employee who simply tried to share information about intelligent design, The way JPL did it, moreover, was a story of reckless disregard for my rights. It wasn't just that the investigator, Jhertaune, violated JPL's own policies, as I described last time. (Note, I'm switching from use of initials to first names.) It's that the lab's management and lawyers stood by her to the end, with full knowledge of her reckless, feckless investigation. I hope you will consider this episode entertaining at least, if not informative and motivating.
Jhertaune's interview with Clark, my Group Supervisor, must have been pretty short, because she didn't write down much. What's notable is that she only asked him about intelligent design and politics—mostly about intelligent design. As you read her notes, keep in mind that JPL's lawyers protested that the case had nothing to do with intelligent design—it was all about what a lousy employee I was. Anything about that from my supervisor? Watch also for the H-word harassed:
– Clark states that he has discussed Intelligent Design w/David C and has even purchased some DVDs/CDs from him. Clark has never felt threatened or harassed by David. It was a topic that was casually discussed.
– No cowrkers have complained to Clark about David discussing Intelligent Design w/them nor has he heard it has been discussed w/ his co-wrkers.
– Clark has never witnessed or heard David discuss anything politically related. The political stuff was new info for Clark.
– Clark stated that David told him that he researched NASA information related to religious expression in the wrkplace. Clark states that David does not really understand the claim & wanted to know who complained to Greg.
– Clark was not aware that more than one individual complained about David harassing them during wrk hrs about his political & religious views.
– Per Clark, David does not understand why the individual who complained to Greg did not approach him first. David was under the impression he gave the videos/DVDs to only Christians. [Emphasis added.]
Well, thank you Clark! Thanks for sticking up for me. OK, case closed; false charge, we can all go back to work. Oh, no. Jhertaune needed evidence that this guy was harassing people with "his political & religious views," even though the Group Supervisor, who knew Coppedge well for 12 years, was completely unaware of any complaints. His own experience with the DVDs was comfortable (he bought four). Clark testified at deposition that his own relationship with me was "positive, pleasant." Notice also that Clark said nothing about me being a bad employee, doing poor work, or being unable to get along with people. Of those in the photo above, Jhertaune only interviewed Clark and me, even though I had told her about a co-worker (Bruce, in the photo), to whom I had given a Prop 8 flyer. We had had a respectful conversation about it, even though he disagreed with my views (more on that in a bit). She could have called him for an interview, but she didn't – nor did she call on any of my other close co-workers who would have given favorable reports about me.
My office manager Greg was next in line for Jhertaune's interviews. Since we already know he instigated the harassment complaint, we know what to expect from him. Jhertaune seemed to lap it all right up; it was delicious. Indeed:
Margaret came to his office and stated that David Coppedge was harassing her about personal choices in life and she didn't know what to do.... She found him to be very persistent.... Greg mentioned Margaret's complaint about David to Carmen on 3.2.2009 as well. Carmen replied that she and Scott had been bothered by David as as it related to [crossed out] and his religious beliefs. She was not surprised by Margaret's complaint. Greg states that he is tired of all the complaints re:David harassing people w/ his religious viewpoints during business hours.
Greg's animus against my perceived religious views is evident here. But did he say anything about me being a poor worker? In an upcoming post, I'll describe what Greg did a week after this interview to try to get HR to believe I had problems working with people. That's a juicy subplot that will have to wait till next time; just file it away for now. As of March 17, though, he said absolutely nothing about any problems with my work other than allegedly "harassing" people with what he considered "religious viewpoints" (especially intelligent design).
Greg also told Jhertaune that "David had previously tried to get him (Greg) to believe in his religion during wrk hrs. David had left religious material (ie. DVD) in Greg's Inbox." To the second sentence, I will confess; yes, it is true. On Christmas Eve 2008, I left a friendly Christmas card in his inbox, wishing him well, and inside, I inserted a quicksleeve DVD called The Case for Christ. Well, you know; it was Christmas Eve. Merry Christmas! But for the first sentence, claiming I "tried to get him ... to believe in his religion" during work hours, I flatly deny it. I had put the card in his mailbox at the end of the day, right before the holiday. He must have picked it up even later. Was that "work hours"? Hardly.
It's a really interesting DVD, anyway, highly rated. Lee Strobel, former atheist, turned Christian after researching the historical evidence for Christ and the resurrection, interviewing leading Bible scholars. As a board member of the production company, I'm pretty proud of the film and like people to see it. There's no altar call or hellfire sermonizing at the end; Strobel merely asks the viewer to consider the evidence seriously, and make it a priority. Why would I give this to Greg? I knew from his uncle that he had grown up in a Christian home but had rejected his family's faith in college. So yes, I thought Christmastime might be a good time for him to reconsider the evidence. Incidentally, Greg testified that he never watched it. He just assumed the DVD must be my attempt to convert him. He was "tired of all the complaints re:David harassing people w/his religious viewpoints during business hours." What did he mean by "all the complaints"? Did Jhertaune ask for evidence to back up his broad-brush accusations? None. Greg stated twice, as if a settled fact, that I harassed people. Jhertaune, our trusty investigator, never questioned his conclusory statements.
The last three interviews were conducted in rapid succession on March 19th and 20th. And again – not one of them complained about my work habits or technical competence. It was only "religion and politics" Jhertaune was digging for. Strangely, only Carmen used the word "harassed," and that was about something 6 years earlier that made her feel "uncomfortable," though she never let on to me how she felt. (Hint: it too was about Christmas.)
Margaret told Jhertaune that she had felt "uncomfortable" (not harassed) about the topics I had brought up – not the manner in which I broached them. This became a huge point of controversy at trial: was it the content, or the conduct? The material, or the manner? At the discipline meeting, and later at trial, management and counsel tried their hardest to push the "conduct" angle, but they had a wicked time trying to identify any particular manner I had committed that was inappropriate. On the contrary, Jhertaune's notes speak only about content:
Margaret stated that she was thinking while being asked this question by David, that she probably should not talk about political issues during wrk hrs.... Margaret did not want to get into a discussion w/ David about the DVD so she waited until he was not in his work space to place it on his chair.... She further expressed to Greg that she does not want to deal w/ him re: these type of issues.... Margaret further states that David is nice but she feels that he is stepping over the line by discussing religion & politics in the workplace.
Her beef, in other words, was with the very idea of bringing up the subjects of "religion" (which intelligent design is not) or "politics" (though Prop 8 was not about political candidates, but the cultural issue of redefining marriage). So what did I, "nice" person that I am, actually do? What was my harassing manner? Jhertaune recorded her saying that Margaret "did not want to discuss the issue w/ him because he was so persistent." Any good investigator would want to know, "OK, how was he persistent?" Margaret did not describe the conversation in any detail. Jhertaune wrote, "Margaret said that David's approach was, 'Can I talk to you about Prop 8' then had a Prop 8 paper in his hand." So, apparently "persistent" is defined as having a paper in your hand and asking permission to talk about something once in 12 years, even if the entire conversation lasts less than a minute. Jhertaune stood by her claim at trial. I had a paper in my hand. It showed I had an agenda, because I came prepared. At trial, Becker asked her, "When a person has a piece of paper in their hand and they approach somebody, is that a threatening act in your view? A. It depends on the piece of paper and what they're approaching them about." Aha! So it is about content!
Strangely, Margaret also emphasized to Jhertaune twice that she was an "ordained minister (Christian)," adding once, "but would never let David Coppedge know." She did not reveal that her ordination was by proxy through a website for some "Metaphysical Interfaith Church" that endorsed all religions. That's hardly Christian. Jhertaune dutifully wrote it down without asking for any details about whether she had a congregation, a church, or anything else usually associated with ordination.
For Christmas 2002, at her invitation, I had performed traditional carols at the
Christmas Party on my French horn. Most previous Christmas parties had also been decorated with Christmas colors, and the singing group often adapted Christmas carols to satirize with Cassini lyrics (see example, right).
The next year, December, 2003, I asked Carmen why the party was being called a "Holiday Party" instead of a "Christmas Party" as it had been previously. For some reason, the question really upset this woman who claimed to be a Christian. I sent a followup email (Exh. 24) to her and to Greg with a link to an article by Dennis Prager, a devout Jew, who feels a Christmas Party should be called a Christmas Party, not a Holiday Party. I told Greg and Carmen this was a "small potatoes" issue for me, but I thought they might find it interesting to read about a Jew supporting Christmas parties. I hoped they might consider the logic of his arguments.
Here's what Jhertaune wrote from what Carmen told her: "A couple of years ago (4 to 5 yrs) he demanded that she put the word "Christ" on the Holiday Potluck Invitation flyer. She spoke to Greg about the incident to make it stop." So according to Carmen, I had "demanded" she not only call it "Christmas" but use the word "Christ" on the party flyer. In deposition and trial testimony, Carmen and Jhertaune both backtracked about those details; Carmen said "I don't recall him asking about 'Christ'. It was from Holiday Party to Christmas." Jhertaune agreed Carmen had said "Christmas" even though she used quote marks around "Christ" in her interview notes and repeated this error two months later in an email to her manager. At trial, the Cassini Program Manager said the name change was to be "politically correct" for the non-religious, but I reminded the judge that Christmas is a federal holiday and very inclusive by its nature; these days it's more about secular festivities, Santa and Frosty the Snowman than about religious themes.
Dissembling about DVDs
Two years after the Holiday Party flap, in 2005, Carmen and I were apparently still on good terms. She had cheerfully accepted a DVD copy of The Privileged Planet and liked it so much, she bought a copy. Two weeks later I loaned her Unlocking the Mystery of Life. My lending log says she "Liked it very much." Here's what Jhertaune wrote down about that from Carmen's interview:
A couple of years ago, David approached her about the "Intelligent Design" DVD. She watched it as a courtesy and told him it was interesting but nothing more. David did not pursue engaging her in a further discussion about the DVD. He has left her alone recently. Greg assisted w/that issue.
I couldn't win. Carmen told me not only that the DVD was interesting, but that she liked it very much—so much so that she wanted to buy a copy. And even when I "did not pursue engaging her in a further discussion" about it, and "left her alone," I was guilty of persistent harassment? Come on. Carmen also alleged that I "bothered/approached" other employees about my "religious views" (a veiled reference to the DVDs) but that she referred them to Greg. "Carmen stated that people have complained to her about David in the past but she directed them to Greg for handling." This was all news to me. Did Jhertaune ask for specifics? Nope. Did Carmen remember any names or specific instances in deposition or at trial? Nope. "It was a long time ago. I don't recall." Did Greg remember any names? Only Scott (more on him in a bit).
What came across most strongly in Carmen's interview was her umbrage that I would bring up certain topics in the workplace at all, regardless of conduct or manner. This is similar to what Margaret testified: I was "nice" but I was "stepping over the line" by even mentioning certain topics. Jhertaune wrote, "Carmen believes that David is inappropriate and has a passion about getting his point across as it relates to religion. David can't see the line he is crossing when he brings religion in the workplace." Some imaginary line that JPL does not draw in any of its policies existed in Carmen's mind.
Yet these two women prided themselves on how tolerant and sensitive they are. An interesting anecdote surfaced at deposition. Being kindred spirits, Carmen and Margaret once traveled together to a training session some distance away, for a class called "True Colors," the purpose of which is to facilitate communication in the workplace. The thesis was that if people knew the interaction styles of others, represented by four "colors," they could reduce tensions, avoid conflicts, understand one another and interact more comfortably. Having been "certified" as instructors of the course, they put it on several times for Cassini staff—sometimes together, sometimes Margaret alone. This became hilarious at deposition when Bill Becker asked Margaret why she didn't try to ascertain my color. "Q: Based on your skill and certification in teaching courses in True Colors, which deals with interpersonal communication skills, why did you not apply the rules or techniques of True Colors to determine how best to deal with David before reporting him to a supervisor? A: I don't know Dave that well, and I didn't feel comfortable talking to him... I don't know. I just didn't feel comfortable." Go figure. Twelve years' acquaintance with me in the same office, in weekly team lead meetings most of that time, and she didn't know me well enough use her self-proclaimed expertise in communication techniques and her religious ordination to reduce tension, avoid conflicts, and interact in a comfortable way about a DVD? This was rich.
What Jhertaune needed was a juicy story about the Prop 8 argument in November 2008. It "was the 1st time he had been approached by David about his religions and/or political beliefs," she wrote from what he told her. Here is his version of the incident the way she recorded it:
Scott stated that David approached him one day during wrk hrs (during the national elections) and asked if he could talk to him about Proposition 8. Scott stated that they had chatted about sports in prior occassions [sic] so he did not think much of it and agreed to what he thought would be a short discussion. Scott stated that David discussed his viewpoint on the Proposition and asked if Scott agreed. When Scott replied that he did not agree David became more passionate about his viewpoint and kept going on about his personal views. Scott thought that David was going to stop but he keep [sic] talking and was becoming increasingly upset about Scott's stance on Prop 8. Per Scott, David at one point stated, "he must be against having children." Scott had to ask David to leave his office and he left. The next Day, David approached Scott and apologized for his behavior and stated that he did not want their heated conversation to come between them. Scott accepted his apology. Scott told David that you have your opinion and I have mine."
I was just, you know, offering him some information to read. He chose to get angry about it and started arguing about it. I - I would have just left it right there except that he wanted to talk about it and kind of put me on the defensive. He didn't say this is unwelcome or disruptive. Yes, it got a little bit animated to the point where I thought, you know, I want to affirm to him that he's a friend even if he doesn't agree with me, and I went to him the next day and told him that. He spontaneously stood up and shook my hand.
Readers can judge for themselves what must have happened. Fact is, men sometimes get into mutually heated disagreements about things. That's what happened here. It wasn't personal, just animated. I had never disagreed with Scott about anything before. We were casual friends. In this argument, though, I felt Scott was wrong; he felt I was wrong, so we each wanted to get our points into the discussion. We both thought each other started the argument. Shouldn't the benefit of the doubt go to the guy who returns and apologizes for his part, trying to mend the friendship? Scott accepted and appreciated my initiative so much so that he reached out and shook my hand. I never brought up Prop 8 with him again. He testified at deposition, "I had no ill will towards David. I did not -- I just wanted the situation to go away. I had no desire to see him get into any trouble at all about it." That should have been the end of it, but this incident became JPL's Exhibit A (so to speak) of my misdeeds.
My attorney Bill Becker took Jhertaune to task for "editorializing" in her interview notes. Remember, "The purpose of the Investigation is to determine the facts relating to the complaint." Instead, Jhertaune used inflammatory language to state the complainers' feelings, accepting their generalities with no follow-up questions to explore the factual basis for those feelings. Why did she write that Scott "had to" ask me to leave his office? Why did she write that I became more "passionate,' but Scott did not? Why did she write that I "kept going on and on," that I was becoming "increasingly upset"? Why didn't she try to ascertain who started the argument? Why didn't she call the other witness (Bruce) I told her about? Bruce also disagreed with my Prop 8 views, but we had a respectful dialogue that was overheard by Jennifer, who testified about it in court. Asked what the tone of that conversation was, she said, "It was quiet, very polite, courteous, very respectful. And I remember that because I remember thinking how just observing and noticing how polite and cordial and courteous the whole conversation was and how courteous David was toward Bruce, very nondisruptive." Jhertaune failed to gather exculpatory evidence like this, but displayed bias during the investigation and after. In a later email to her manager (Exh. 116) on May 6, Jhertaune wrote that I was "ranting and raving" during the argument with Scott (remember, all her knowledge was second-hand). Becker asked her about her use of inflammatory language. Her excuse was that she didn't record everything verbatim; she was only writing a "synopsis" of the story. That's not an excuse. A synopsis doesn't have to be inflammatory.
Let's recount some of the ways that Jhertaune botched the investigation. Incidentally, she was a substitute. A lady named Nancy was supposed to run investigations for my section, but was out on jury duty, so Jhertaune took the call. We don't know if the investigation would have gone any better with Nancy. One thing we do know is that Nancy was useless as a witness. Her memory was so bad that at deposition she could not remember anything. We also know that none of the HR ladies had ever encountered a situation like mine before – and Jhertaune testified she had conducted "800 to a thousand" investigations. (Scary thought: she testified that she ran all her investigations like this one.)
In the last post I listed 12 specific JPL procedural steps Jhertaune disobeyed. Here are another dozen things she did wrong:
• Failed to answer my question about what procedure she was following; lied to me and Clark that "there is no procedure"
• Failed to check if the witnesses' accusations conformed to JPL's definition of harassment
• Failed to consider the ideological biases of the witnesses
• Failed to gather exculpatory evidence from favorable witnesses
• Failed to investigate Greg for creating a hostile work environment
• Failed to take seriously my complaint that my civil rights had been violated
• Failed to question the witnesses about factual details of their accusations
• Failed to use unbiased language in her notes
• Failed to include her HR managers in the process, with one brief exception*
• Failed to produce a report in writing
• Failed to look at the DVDs to see if they "pushed religion"
• Failed to determine if intelligent design is religious
For that last bullet point, Jhertaune made a weak attempt. She testified that she "Googled" intelligent design. Here is the extent of her education: "Q. What did you Google? What did you come up with? A. A web site with different publications. I can't recall the exact titles. I do remember that Kirk Cameron, the actor, was a part of the web site, and religion was discussed." She could have spent one hour to watch the DVD I offered her, and heard from the leading lights of the ID movement, but no. She came to equate ID with Kirk Cameron. And why not? It supported her predetermined narrative: I had harassed people with religion, just like Greg said.
On the witness stand, at deposition and trial, Jhertaune qualified for the Dodgers. She was a master of delay and evasion. Bill couldn't ask a question without her asking what he meant: e.g., "Q. Did you provide your attorney with that report you just referred to? A. Can you clarify 'report'?" He could not get a straight answer out of her, to the point of frustration. She would hear a question and stare at the ceiling for 20-30 seconds before saying she didn't understand the question. No matter how clear and pointed his questions, she would resort to her standard talking points. She would dissemble, at one moment saying the subjects I discussed were causing the harassment, and at other times it was the manner. How HR and JPL's lawyers could stand by this gal is beyond me.
Readers may get a kick out of a post on Evolution News & Views where they compared Jhertaune's style to that of a frustrating bureaucrat. Watch the embedded video skit, "DMV Tyrant," to see how I felt trying to get justice out of HR.
*Footnote: There was only one point in the investigation where another HR manager intruded herself into Jhertaune's decisions. Karen, the manager of employee relations, received merely a verbal report from Jhertaune about the investigation. Karen thought Jhertaune's solution (a Final Written Warning, the last step before termination) was too severe, so she told her to reduce it to just a Written Warning. Karen also spent an hour with me during the appeal process to "just have a conversation," claiming that's all an appeal was. (Even so, she left all the decisions to Jhertaune.) Unfortunately, when we called Karen before trial to ask about these, her memory was poor, too, so she was unable to provide much useful information, except that she agreed HR was a bureaucratic mess run by an autocratic woman not open to new ideas. By December 2009, Karen had been laid off from JPL herself in what she considered an unfair manner, and was working elsewhere when we found her number. The information she gave was revealing but too vague to be useful, so we did not call her as a witness.
The Plot Thickens
Just when Jhertaune was finishing up her investigation in late March, Greg was scheming to make sure I would be moved off Cassini immediately, if not fired outright. We'll learn the explosive story about his "strategy" with HR next time.
Encore: Golden Moments Under Oath: Becker Nails the Witnesses
Bill Becker had a knack for needling a witness when he sniffed hypocrisy or dissembling. JPL's lawyers got really mad at him when he hit some raw nerves with his carefully-aimed questions. Here are some choice moments.
Carmen's deposition, 2/22/11: "Q. Is there any reason why you have not told David, 'religion and conversations about it make me uncomfortable, David. Please don't bring them up"? A. Because I'm a very courteous person and politely move myself away from the situation where I don't have to talk about it anymore. Q. Was it courteous of you to report him to his superiors so he would lose his job? Ms. Fox: Counsel, that's inappropriate, and you're staring down the witness. Stop it. We're going to take a break."
Margaret's deposition, 2/28/11: "Q. Are you tolerant of other people's religious faiths? A. I believe myself to be tolerant of other people's viewpoints, whether it's religion or any other subject. ... Q. Did you ever consider taking the DVD back to David directly and thanking him but telling him that it wasn't something you were interested in looking at? A. ... I -- I don't remember -- No. Q. That never crossed your mind? A. No. Q. Wouldn't that have been the sensitive thing to do? Ms. Fox: Objection. Argumentative. Vague as to "sensitive." Harassing. ... Q. Wouldn't that have been the sensitive thing to do? A. Depends on your interpretation of "sensitive." Q. Well, rather than cost him his job, let's say. Wouldn't that have been the sensitive thing to do, to go up to him and say, "David, I don't want any sparks to come between us. This isn't an issue I care about. But thank you for loaning me the DVD"? Wouldn't that have been the sensitive thing to do? Ms. Fox: Objection. Assumes facts. Objection to the preamble. Argumentative. A. I didn't feel comfortable doing that. Q. Because you're very tolerant, aren't you, and very sensitive? Why wouldn't you think of that? Ms. Fox: Counsel, you're being argumentative. Mr. Becker: No, I'm not. Ms. Fox: You are. The witness: I didn't."
Scott's deposition, 2/22/11: "Q: Do you believe it is proper to discriminate against somebody because of their sincerely held religious beliefs? [objections] A. It is wrong to discriminate. Q. And when you discriminate, it's a violation of somebody's civil rights, isn't that right? [objections] A. I -- it is wrong to discriminate. Q. Were you as concerned about the rights of Christians and other people -- other religious people in connection with Proposition 8? [objections] Do you understand the question? A. No, I do not. Q. Well, you were concerned about the rights of people who fall in love -- no matter what their gender, they have the right to be married, right? [objections] A. Whatever a couple decides to do is their own decision to make. Q. A consenting couple? A. I would hope so. Q. An adult couple? A. Yes. Q. You don't advocate pedophilia, do you? A. No. Q. You don't advocate polygamy, do you? A. No. Q. So there are some things people are not allowed to do when it comes to marriage; right? [objections] A. Please repeat the question. Q. Well, do you believe that four people who are in love with each other should be married? ... Do you believe in polygamy? A. I don't believe it. Some people do. Q. Don't polygamists have civil rights to marry whomever they love? Ms. Fox: Asked and answered. Improper opinion. Legal conclusion. A. That is up to society to decide. Q. And it's up to society to decide if gays can get married; right? A. Yes. Q. And that's why the constitutional initiative was on the ballot; right? A. I do not know why it was on the ballot.