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With a few of the thousands of images taken by the Cassini spacecraft
Feckless, n: Lazy, incompetent, irresponsible.

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.

After interviewing me on March 5, 2009, Jhertaune interviewed 5 others without my knowledge.  My attorney and I got to see her interview notes for the first time in November 2010, seven months after we had filed the lawsuit.   After the initial surprise of seeing how few people had complained (and who they were), we began to see a pattern of bias.  No wonder; Jhertaune was a liberal herself who had voted against Prop 8, was utterly ignorant of intelligent design, and gravitated toward co-workers who agreed with her.  My boss, Greg, had spun the complaint for her: Coppedge was pushing his political and religious views.  On the call slip (Exh. 82), she wrote: "Gives him DVD; Prop 8, handed out flyers... Believes in intelligent design – God created."  The first interviewee after me, though, didn't give her the ammunition she was seeking. 
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Group Supervisor Clark's final group shot, Sept 2010
The Supervisor
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.

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Some co-workers at an office party, Sept. 2010
Two other interviewees are in the photo at left: Greg, my office manager (end of table), and Margaret (lower right), the lady who complained about the DVD.  But two others were present who supported me on the witness stand at trial: Bruce (standing, center) and Jennifer (upper right).

The Boss
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.

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Watching first Titan images arrive, July 2, 2004
Content or Conduct?
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.

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In her interview, Carmen unloaded her bitterness to Jhertaune, telling her that "she believes that David has an agenda about Christianity once he discovered she was a Christian and was harassed by him."  (At trial, she backpedaled, saying she was not sure she had said she was "harassed"—just uncomfortable, feeling "judged" somehow).  Carmen gave an example: a Christmas party long, long ago.

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).

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Performing carols at the 2002 Cassini Christmas Party
The "Holiday Party" Flap
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. 

True Colors
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.

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Scott's interview, the final one conducted by Jhertaune, was brief.  Scott was a Cassini scientist I had gotten to know.  Occasionally I would stop by and ask what new discoveries his spacecraft instrument was making.  He testified that he thought I was a nice guy; we both enjoyed these discussions.  Once in 2005 I loaned him The Privileged Planet; turns out he never watched it, but he didn't complain or think it was inappropriate to offer it, even though he testified he thinks "intelligent design" is the same as "creationism"—to him, a religious view and "not science."  Had he ever read anything about intelligent design?  Nope.  Somehow he just knew.

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."

The facts of what actually happened became clearer when Scott and Jhertaune had to defend their comments under oath at deposition and at trial.  Scott admitted that I didn't say "he must be against having children" but rather "he must be against children"—i.e., my concern was about the effect on children if Prop 8 were to lose.  Scott never testified that he felt insulted by that comment, but JPL's lawyers claimed I insulted him.  Scott testified that he understood that I was making the argument that Prop 8 would be harmful to kids.  He didn't say I became angry or passionate; only that I had an "incredulous look" at his reaction.  He also reaffirmed that he had agreed to the discussion.  What he didn't tell Jhertaune was that he called my views "propaganda" – and that he meant it in a disparaging way.  He told Jhertaune that he accepted my apology, but he didn't tell her he stood up to shake my hand in appreciation.  Here's my version I told to my managers in the 4/13/09 discipline meeting (Exh. 102).  Remember that I was unaware of Jhertaune's interview of Scott and had not discussed Prop 8 with him again after the argument.

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.
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Fightin' Words
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.

Scoreboard
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.
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My building is a National Historic Landmark
It's not extreme to say that this one woman, with her feckless investigation, cost me my job.  I believe I would still be working at JPL (or would be on paid disability for cancer treatments) with any fair-minded investigator who actually obeyed JPL's written policies and procedures.  Jhertaune ran the entire investigation alone.  It consisted of only these sloppily-conducted interviews.  She decided on her own that I deserved a Final Written Warning.*  She wrote the warning and delivered it to my managers, who testified that they relied on her 100%.  Then later, when I appealed the disciplinary decision, she ran the appeal, too!  She wrote the "verbiage" for my Section Manager to send me.  Though prompted by Greg and Margaret, It was all her show—beginning to end.  The outcome could have been so different.  She could have told Greg he was out of line to lodge a harassment complaint on flimsy evidence.  She could have seriously investigated him about creating a hostile work environment and denying my civil rights.  It's astonishing the power invested in HR workers who have reached their level of incompetence.  Everyone trusted Jhertaune's investigation—my Group Supervisor, my Section Manager, the other HR staff and managers, and JPL's laywers.  Becker said in his closing statement, "This was an unbalanced, unfair investigation meant to achieve a result and it did."

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.
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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.

 
 
There's a scene in a movie about the Spanish Inquisition in which a young, inexperienced monk is shocked when the senior inquisitor orders soldiers to capture or kill all the friars at a monastery suspected of sheltering heretics.  "That violates the Church's own rules!" he exclaims.  The senior inquisitor just chuckles at his naivete, and responds, "My son, you wouldn't want the arm of the Church weakened by a mere 'technicality,' would you?"
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Cassini group photo at time of launch, October 1997. My position marked with red circle.
In my last blog entry, The HR Investigation Begins, I described JPL's investigation from my vantage point.  You won't believe what was going on behind the scenes at Human Resources (HR).  It's a tale of ignorance, scrambling, and a callous disregard for the rights of the accused.  Basically, one woman, JH, ran the whole show, violating JPL's own documented policy and procedure all along the way.  I'm getting to the HR saga in a future episode, but first, it would be good to see what HR should have done, according to their own published rules.

What good is a policy or procedure if it is not followed?  JPL has a large repository of P&P documents.  JPL's Unlawful Harassment Policy (Exhibit 193) contains a three-page section called "Procedures for Investigating and Resolving Unlawful Harassment Complaints at JPL."  This section lays out what an investigator like JH must do.  The rights of the accused (the "respondent") are protected when the "complainant" lodges an accusation.  Yet look at all the steps that were violated in my case:

1. "An employee who believes he or she has been subjected to harassment, including sexual harassment, should review JPL's policy."  (Emphasis added.)  None of the accusers (MW, and the others who were brought in after the witch hunt for complaints, CV, SE) did this, nor did JH ask them to do it.  Nor did she question them to see if their complaints matched JPL's clearly-stated definition of  harassment.  We'll examine that definition in a future post, but for now, take note that harassment is not the same thing as having a disagreement, or bringing up a controversial subject, including politics or religion – neither of which violates JPL policy.

2. "In general, the goal of the informal options Is to quickly end offending behavior without utilizing disciplinary action."  Well, that didn't happen!  I was given no informal option-- it went straight from the word of the accusers to formal disciplinary action.  MW could have talked to me, talked to the Ombuds office, or used a friend to talk to me.  When she went to my office manager GC, he could have given me an informal warning.  But even when I obeyed his unreasonable order to stop sharing DVDs or stop talking to anybody about intelligent design, he reported me to HR the very next morning.  I didn't even know who my accusers were till 19 months later!  I was told that "a lot of people" had complained when there were only three, actually only one, because neither of the others lodged a harassment complaint specifically.  Even MW testified she only went to GC for advice; she did not ask him to take any action.  GC took her word "harassed" (translation: "uncomfortable") and ran to HR with it.

3. "Formal complaints of harassment can be made orally or in writing, but if made orally should, in the end, be reduced to writing."  This step should happened before discipline was administered.  JH should have told me clearly, "David, you have been accused of harassment, and we are conducting an investigation."  She failed to do that, leaving me under the impression she was trying to reconcile me with my boss (see The HR Investigation Begins).  She further failed to realize that none of the three "complainers" had actually issued a complaint, formally or informally, desiring action be taken.  I was shocked when a Written Warning was handed to me on April 13, because I did not even know I had been accused.

4. "Within a reasonable length of time the accused party ("the respondent") will be notified of the nature of the complaint, and an investigation will begin."  See #3.

5. "The purpose of the Investigation is to determine the facts relating to the complaint."  As we will see, facts were sorely lacking to support a harassment complaint.  JH failed to seek or consider extenuating evidence that would have exonerated me from the accusations.  At deposition and trial, my attorney needled JH for what FACTS she had that I had violated JPL's harassment policy.  She waffled, dodged, and dissembled, focusing only on how the three accusers "felt" about me, not what I had actually done.  For instance, as I described last time, MW took the DVD cheerfully and thanked me for it.  It was only at home that she felt "uncomfortable" that I would share "personal views" of a "religious" nature (her perception, not reality) at work (see The Agenda, the Tracking Sheet and the Infamous Sticky Note).  But rather than talk to me about it, she tattled, telling GC she "felt harassed" and "uncomfortable."  Any unbiased observer would surely have called that an emotional overreaction, but JH used the complainers' feelings as factual evidence!

6.  "Because of the sensitive nature of these investigations, he or she will consult with General Counsel for legal assistance in investigative techniques, in applying legal standards regarding harassment, and in determining the JPL's legal duties and obligations."  There is no evidence JH did this.  Instead, there are emails showing that her colleagues at HR were scrambling behind the scenes trying to figure out what to do.  None of them had ever seen a case like this before.  JPL's "legal duties and obligations" should have included due process and protection of the rights of the accused.

7.  "The complainant and respondent will be informed of the relevant procedures, and will have an opportunity to comment on the suitability of the investigator(s)."  This was egregiously violated.  I repeatedly asked JH for the procedure she was following, but got the runaround four times between March 6 and April 9!  Then I asked the Section Manager and Group Supervisor for the procedure, and got the runaround again.  (There was no indication that the complainers were "informed of the relevant procedures," either.)  As for commenting on the suitability of the investigator, violated again: I didn't even know it was an investigation, let alone having a chance to comment about JH's suitability.  JH tried to wiggle out of this on the witness stand by claiming HR has a limited staff and can't let the employee choose.  Is that an excuse for violating the written procedure?  Incidentally, for a case this unfamiliar to her, JH could have asked for help or a committee to be formed.  She did not.  She basically ran the whole show, as ignorant of intelligent design as a zombie.

8.  "The complainant and respondent shall be given the opportunity to present their cases separately to the investigator(s) and to suggest others who might be interviewed."  Another violation of my rights.  JH interviewed me, but never told me this.  I could have given her a long list of character witnesses to vouch for my integrity had she obeyed this step.  She did not interview a single individual who gave a favorable opinion of me, save for my Group Supervisor who did tell her that he never had a problem with my DVDs.  (Because he was my line manager, she would have interviewed him anyway.)  As a matter of fact, I did mention one co-worker who was NOT offended by a conversation on Prop 8.  He knew me well.  He could have provided testimony I was not a harassing kind of person.  JH failed to call him, or anyone else who might have contradicted the narrative she was building.

9.  "All parties who participate in investigative interviews may submit written statements."  I was never notified of this right.  I did submit some "show and tell" documents at the interview (see The HR Investigation Begins), but those were without the knowledge that a formal harassment complaint had been lodged against me.  Had I known that, I could have written a full treatise.  But even then, I would have been hobbled without knowing who was accusing me of what.

10.  "The investigator(s) will summarize for the respondent the evidence in support of the complaint to allow the respondent the opportunity to reply."  Huge violation!  I never heard of the evidence (if there even was any) till we filed our lawsuit a year later and got discovery documents seven months after that.  It went straight from accusation to discipline before I knew what hit me.  JH admitted on the stand that she did not return to me to give me a chance to reply.  She felt she didn't have to, because the complainers were talking about their "feelings" and I, not being them, could not respond to their "feelings" (cf. #5).  But I surely could have responded to any "evidence in support of the complaint" had there been any.  We found out from JH's interview notes that several specific accusations had been made I didn't know about.  I should have had a chance to respond to them.  HR was so concerned that I might somehow retaliate against the accuser(s) if I knew who he/she/it/them was, they didn't even tell me how many there were!  (Note: retaliation is not my style.)

11.  "Exceptions to or modification of these procedures can be made by the Manager of Employee Relations, if required for fairness or practical necessity. Exceptions must be made in writing and notice provided to both the complainant and respondent."  Another huge violation.  This gives the lie to the notion that HR has leeway to change the process as it goes.  If JH needed to make an exception, it had to be in writing, and I was supposed to be told about it.

12.  "Likewise, if the complainant is found to have brought charges without any basis or without a reasonable, good faith belief that a basis existed, appropriate sanctions will be Imposed on the complainant."  This is to protect the accused from baseless complaints and put fear into the hearts of would-be slanderers.  JH never substantiated the accusations made by MW, CV or SE with facts, but did any of them get reprimanded for making false accusations?  No.  In fact, they all still have their jobs at JPL to this day.  For attempting to defend my rights, I was kicked out the door.
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A large American flag flies 24x7 above JPL's Administration Building
Look at all these "mere technicalities" JPL violated!  This was a gross miscarriage of justice.  Yet Judge Hiroshige let JPL's attorneys get away with it, citing precedent that an organization's policies and procedures do not have the force of law.  Well, they should have force of American traditions of due process and protecting the rights of the accused.  Instead, courts give organizations like JPL license to violate their own published policies with reckless abandon.  Why even have a policy? 

Trying to Get Justice

JH lied to my Group Supervisor (CB) and me that "there is no procedure" that she had to follow.  She told me that on the phone right before the discipline meeting.  During the discipline meeting on April 13 (Exhibit 102, page 5), CB said,

"[JH] called me this morning and said there is nothing written down as far as procedure for them to follow other than investigating what's in these ... rules here."  Coppedge: "...I find it hard to believe that an institution as, you know, large as JPL does not have written procedures for investigating employees. And that's what I've been requesting for a month now, and no one wiII give it to me. [CB]: Well, [JH] reminded me that she told you that they don't have anything. [Coppedge] She said that on Thursday. [April 9].  [CB]: Yeah, she reminded me today that they had nothing written on that as far as what they go through as an organization." '

Consider the irony of JH's direct lie.  CB had just handed me the Written Warning for harassment, and with it, a copy of JPL's Unlawful Harassment Policy, with the Procedure for Investigating Unlawful Harassment Complaints right there!  I should have opened it up right then, held it up in front of the two managers, and said, "Then what's this?"

Better late than never.  Three months later (July 7) while pursuing my appeal, I took a closer look at the Harassment Policy and found all the procedural violations listed above.  I met with CB and showed them to him, reading them aloud and highlighting them in his presence.  I documented his reaction later in an email to myself (Exhibit 130): 

[CB] could not answer any of these things. Here was a written procedure, in black and white, right before his eyes, and he had to agree that I made some substantive points. He offered no reason why HR had not followed the steps outlined in the procedure. He wondered if maybe they were just guidelines, but I showed him (point [11] above) that it appears it is a binding document, because any changes to it had to be made in writing.... Again, [CB] appeared thoughtful about what I was telling him and offered no explanation.

So with this revelation in his hands, did CB get on the phone to HR and say, "You guys screwed up!"?  No.  He did nothing.

Exhibit 130 was the only record of that conversation written contemporary with the events, but JPL's lawyers succeeded in keeping it out of evidence on the grounds it was "hearsay."

Discovered: The Warriors Against ID

Discovery documents in Nov 2010 finally showed my attorney and me what had been going on behind the scenes.  It was so careless it would have been humorous had it not cost me my job.  We also got hold of emails between JH and her colleagues in HR, showing nearly everyone in that department to be clueless about the procedures.  Each of them testified that they had never encountered a situation like this.  They didn't know what to do, so JH made it up as she went, and the others just said ho-hum and let her get away with it.  That's justice, JPL style.

Also, my attorney and I finally learned who the accusers were, and we got to read JH's handwritten interview notes. After JH interviewed me on March 5, 2009, she interviewed two of my managers and the three complainers.   When I learned that MW, CV, and SE were the only ones who had complained, I was dumbstruck; "You've got to be kidding," was my immediate reaction.  These were coworkers I had known for years and considered friends.  We were all cordial with one another.  I had been told that a lot of people had complained about me.  I had visualized a mighty battle between a league of Darwinian scientists and me, the lone supporter of intelligent design.  (In a future post, I will provide clues that the scientists were, indeed, unhappy a "creationist" was in their midst.  Indeed, the Program Manager himself testified that he believed my DVDs were "pushing religion" and he spoke of "general hallway conversation" about them.)

It was actually a bit of a letdown to see that only a librarian (MW), a secretary (CV) and one scientist (SE) were interviewed--and the scientist was primarily upset about Prop 8 (more on that later).  CV was more upset about years-old perceptions regarding my Christian beliefs than intelligent design.  But one thing all the interviewees, my boss, JH, and the Program Manager had in common was a pitiful ignorance of what intelligent design is, with no desire at all to learn about it.  And with the possible exception of my Group Supervisor and Section Manager, who merely rubberstamped the investigation without doing any fact checking of their own, they were all political leftists, proud of their "tolerance."

I trust the irony of that last sentence was not lost on you.