A Case about Workplace Discrimination and Retaliation over Intelligent Design

SUMMARY
An employee at JPL was disciplined, demoted, and terminated for sharing DVDs about intelligent design (ID) with co-workers. The case is reminiscent of the documentary Expelled: No Intelligence Allowed (2008) featuring Ben Stein.

THE PLAINTIFF
David Coppedge worked for 14 years as a System Administrator (SA) for the Cassini program at NASA’s Jet Propulsion Laboratory (JPL) in California. For 9 consecutive years he was Team Lead of the SA’s, in charge of most of the computers for the prestigious mission to Saturn. David worked on Cassini from before launch (October 1997) into the Second Extended Mission (2011).

WHAT HAPPENED?
Coppedge would, occasionally, share DVDs on intelligent design with willing co-workers. The DVDs, produced by Illustra Media (for whom David is a board member and researcher) present scientific evidence for design without reference to religion. They include:
Unlocking the Mystery of Life, examining evidence for design in life, the cell and DNA.
The Privileged Planet, exploring evidence for design in the Earth and the universe (this documentary includes interviews with 4 JPL scientists).

He had also given out a few flyers in favor of California’s Proposition 8 (the traditional marriage initiative) before the 2008 election.

Triggering Incident. On March 2, 2009, one co-worker complained to Coppedge’s office manager about the DVD, saying that she felt harassed by David’s “religion and politics” (referring to ID and Prop 8). The manager confronted David and accused him of “pushing religion,” claiming a “number of people” had complained. He shouted, “Intelligent design is religion!” and ordered Coppedge to stop discussing religion or politics in the office under threat of termination.

Coppedge responded that he would comply, but stated that the order got into issues of freedom of speech and religion and could be construed as creating a hostile work environment. He did not file a complaint. The manager, however, immediately reported him to other managers and Human Resources (HR). HR investigated Coppedge for harassment. On April 13, he was issued a Written Warning, alleging he was in violation of JPL’s Harassment and Ethics Policies. He was simultaneously demoted from Team Lead.

LEGAL ACTION
While pursuing internal remedies at JPL and appealing the discipline, Coppedge called the Alliance Defending Freedom (ADF). William J. Becker, Jr., an ADF affiliate attorney, responded, serving JPL a Demand Letter in Sept. 2009. JPL did not respond for 7 months. Becker filed suit on April 14, 2010, alleging discrimination for “perceived religion” (even though ID is science, not religion).

Termination. Eight months later, on January 24, 2011, Coppedge was abruptly terminated and escorted off lab. Subsequent depositions showed that the decision makers had been meeting with JPL counsel specifically about the lawsuit and layoff process from the time the lawsuit was filed. In March, Becker amended the lawsuit to include Retaliation. Later that year, Judge Ernest M. Hiroshige denied the Defendants’ Motion for Summary Judgment, and trial was set in California Superior Court.

Trial. Both sides opted for a bench trial rather than a jury. The trial began March 9, 2012, and continued for 5 weeks through April 16, with 22 witnesses testifying. Defense attorneys argued the case had nothing to do with ID, but that Coppedge was let go due to a planned reduction in workforce and for performance/communication issues. Plaintiff witnesses disputed the performance complaints, while Becker argued that Coppedge’s treatment followed a pattern of discrimination against advocates of intelligent design.

Media. The case attracted international media attention and was monitored by the National Center for Science Education (NCSE), a pro-evolution group, whose mission is to keep “creationism” and ID out of public schools. The Discovery Institute, a pro-ID think tank in Seattle, supported the case, along with ADF. Coppedge and Becker had to file more briefs and wait 9 months for the verdict.

VERDICT
In January 2013, Judge Ernest M. Hiroshige of the California Superior Court ruled against Coppedge on all 10 counts, offering no explanation. JPL then demanded $51,000 in court costs. An appeal was discussed (as a state case, the highest appeal was California Supreme Court), but with Coppedge now broke, out of work and facing cancer surgery, and with little hope of success on appeal, he was advised by ADF to settle with JPL for elimination of court costs. Nevertheless, public awareness of ID was raised by this case. Coppedge’s story is scheduled to be included in Vol. 3 of Slaughter of the Dissidents by Dr. Jerry Bergman.

— More information on the Coppedge vs JPL case can be found on www.EvolutionNews.org, a Discovery Institute blog. --
 

Educating for Life

09/15/2016

 
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Thanks to Kevin Conover of Educate for Life for the chance to tell my story on KPRZ radio (San Diego) this month. We recorded about an hour in studio on Sept. 1, 2016; it aired a couple of days later. The interview, videotaped in studio, has been posted online.

See Highlight (4.5 minutes) on YouTube.
See entire interview (about 45 minutes) at EducateForLife.org.

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Kevin is a bright and articulate host, who has a lot going on in his own life and ministry. Not only is he up to speed on many issues in creation and intelligent design, having interviewed many leading spokespeople for those subjects and family issues, he is also running for a local school board in San Diego County.

In the interview, we talk about my youth and parents' ministry, how I got interested in creation, my experience at JPL, the trial and its results, and my cancer surgery and recovery. We also talk about Illustra Media's films and I share amazing news from science.

I appreciated Kevin's enthusiastic promotion of Creation-Evolution Headlines and Illustra Media. His own website, EducateForLife.org, is loaded with resources, includ- ing an apologetics curriculum called Unshakeable Faith, to help families, students and adults deal with the issues of our day. His staff regularly witnesses to people in public places. I hope you will support his ministry and his run for school board. Like me, he believes in standing for the truth and making a difference.

 
 
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Thanks to David Klinghoffer, editor at the Discovery Institute in Seattle, for a kindly article in Evolution News & Views following up on the World Magazine story. 

Discovery Institute did more than provide moral support during my JPL trial. They sent down a legal assistant to help my lawyer, evaluated transcripts of depositions, and publicized why the case was important. I am grateful to all the staff for their help then and continued moral support now.

 
 
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How much are you willing to lose to defend freedom or oppose injustice? Jesus spoke of “counting the cost” before setting out to do battle. It’s something I had to think about very hard before taking on JPL for violating my rights and freedoms. It was going to be a “David vs Goliath” contest, with no assurance I would be as victorious as my Biblical namesake.

As it was, I did lose, and it cost me dearly. Five years ago today, I lost my job, and three years ago this month, I lost the case. Knowing what I know now, would I have done it again? Should I have done it in the first place?

Let me say at the outset that I am not complaining. The Lord's grace has been abundant since the trial ended. Even though I am only earning about a quarter of what I made at JPL, I have a small house, a good car, enough food, and I have the ability to earn a living, even with cancer. Coincidentally (and I believe this was providential), my last mortgage payment was made one month before I was fired. With that large expense done, I am able to pay my monthly bills with a slight margin, not enough to save for major purchases, but enough to get by. Now, I can work from home on things I enjoy and consider worthwhile. So far my health is good with the monthly treatments I get, and I have many friends and family members who keep me encouraged. Life is good. God is good. I am very thankful!

Nevertheless, anybody considering taking a stand needs to consider the possible downside, materially speaking. Spiritually, of course, one can always be reassured that God’s ultimate will is done even through suffering. Many people far more deserving of justice have suffered far worse. I got just a taste of suffering when within six days I lost the case and got diagnosed with cancer.
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I remember back in April 2009 when I first contacted ADF and spoke with Bill Becker, my lawyer. I wanted to know what this could cost me. As we prepared to sign a contract, Bill reassured me that he was taking this case on contingency (pro bono), so I would not have to pay for his services unless I broke contract with him.

Also, we had reason to believe ADF would fund the case. A multitude of others encouraged me to move forward, agreeing this was a worthy cause. I don’t think either of us at the time knew what to expect. Meanwhile, Bill assured me that JPL would probably not risk firing me while litigation was pending. That would be evidence for a wrongful termination claim.

But they did fire me — over a year before the court trial began. It was January 24, 2011. The Deputy Section Manager appeared at my cubicle as I was busily at work. He called me to an empty office, and gave me a little time to gather my things. They had already blocked my computer access. I was taken out the door, and driven to my car. No going-away party for me; ha! They had even cleared the floor so that I could not say good-bye to anyone.
Before that grim day, I was earning a six-figure salary. At my previous job as an operations manager, I had reached an annual salary of $60,000 with benefits. When I first came to JPL in 1996, I was offered $72,000 by a company contracting IT employees for the lab. Each subsequent year I received hefty raises without ever asking for them. When I transitioned to JPL employee status in 2003, I received another significant raise. Each year the pay continued to climb—a fact that stands against the portrayal by JPL’s lawyers that I was a poor or mediocre worker who didn't get along with people. The only years I didn’t get a substantial raise was when nobody at the lab got one, because of the 2009 financial crisis and its aftermath. My final pay rate was almost $125,000 plus benefits worth perhaps $30,000 more: health care, life insurance, accident insurance, sick leave, and 4 weeks paid vacation. One of the most significant benefits in my final years was 12% matching on my contributions to my IRA—very high compared to industry standards.
PictureSuffering a headache in the courthouse
That all came to a screeching halt the day I was let go. JPL gave me $30,000 separation pay (typical for anyone laid off with my length of service), and from then on, I was on my own, too busy to find a job elsewhere because of the intense work with Bill on the case. It’s kind of laughable to me that JPL’s lawyers argued to the judge that I was not seriously looking for work, therefore did not receive compensation if I were to win.

There was just no way. Having no staff, Bill relied on me for the equivalent of a full-time job as we prepared for trial. Plus, I was sick with cancer and didn’t know it. I also had debilitating headaches almost every day without knowing the cause. Several times during trial we had to take breaks until I got well enough to continue.

Bill hired an expert witness who calculated my losses at $860,238, because I was planning to work until the end of Cassini’s mission in 2017. Six years of lost salary alone is $750,000, but then there were the matching contributions to my IRA that ceased, the health insurance, and the other benefits. Actual losses would have to deduct what I’ve earned since the layoff, but health care costs rose substantially. I had to find a private health insurance plan a year later when the COBRA benefits expired. In 2015 my premiums were over $1,000 a month out of pocket (thank you, “Affordable Care Act”). JPL would have paid most of my insurance and my cancer treatments as well as providing sick leave or short term disability while I recovered.

Then there were other costs I haven’t disclosed till now.

In October of 2011, right after the judge had given his tentative ruling on Summary Judgment, indicating he was inclined to throw out our case, I took Bill to lunch with a heavy heart. I told him how bad I felt that his one-and-a-half years’ worth of work to date appeared to be down the drain. I offered him $50,000 out of my retirement savings as a token of friendship and support, knowing he deserved far more for his professional expertise and devotion to the work. He was grateful and hesitant to take it, but I insisted.
PictureLos Angeles Superior Courthouse
That gift, however, didn’t do him any good. Shortly afterward, the judge reversed himself on Summary Judgment. We had a case! The next thing Bill and I learned was how many fees a plaintiff must pay for his day in court. Those fees quickly ate up the $50,000 and then some (so much for “equal justice under the law.”). We were both scrambling to pay for this fee and that. ADF helped out with three grants, totaling about $30,000, but the rest we had to pay out of our own pockets. A main reason we opted for a bench trial instead of a jury trial was that we couldn’t afford the extra cost; jury members must be paid, and that comes out of the plaintiff's pocket. Paying 14 jurors for 5 weeks would have been substantial. As it was, Bill and I were both pouring money into this effort. We believed in our case, and hoped that a victory would reimburse us. Bill was fresh from his large settlement in the AFA vs California Science Center case, and may have felt a bit overconfident he could win this one, at least on some of the 10 counts.

The outcome knocked our breath away. The judge ruled against us on all counts without explanation. Then, already depressed with the news of my cancer diagnosis 6 days earlier, I was threatened with having to pay JPL’s court costs to the tune of $51,000 on top of everything else. I felt like a wounded warrior being kicked on the ground. I felt equally bad for Bill, having received no compensation for nearly three years of hard, stressful work.  

In the days of deciding whether to appeal, I drove to ADF’s headquarters in Arizona to ask the advice of their lead attorneys. They were very kind and understanding, but strongly advised against appealing. Bill was raring to go, but grew to agree, after many discussions with ADF and other trusted lawyers, that it was probably unlikely to succeed under the best of circumstances. And with me facing major cancer surgery within weeks, the best possible outcome, they said, was to settle with JPL not to charge me for their court costs if we would agree not to appeal. So, reluctantly, that’s what I did. I signed away any right to carry the case forward. This also ended Bill’s last chance to be compensated for his legal work.
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Before going in for surgery, I wanted to express my appreciation to ADF, too, for supporting the case. I thought of all their donors that had given faithfully small amounts for years. In my case, their gifts ended up supporting a loss. A long-time supporter of ADF myself, I couldn’t repay $30,000, but I offered what I could, $10,000, as a one-time donation from my retirement savings, as a token of my appreciation. Someday I hope I can give them more.

I wish I could pay all those who worked so hard on this case, especially Bill Becker. Right now, though, I’m just covering my living expenses, even after having pared back spending significantly (e.g., no TV, rarely eating out, keeping lights off, etc.) Most of my earned income goes to medical insurance and doctor bills, which cost me over $21,000 last year out of pocket. I’m sure my accusers and teammates on Cassini, though, are living well.

In short, you can see that I took a very significant financial hit for my stand. It’s hard to quantify, but $800,000 to a million dollars could be defended as a reasonable figure for my personal financial losses from the case. That’s much more than the total retirement income I have left after almost 40 years of full-time work since college. The fact that Cassini is still flying well and is expected to end on schedule in 2017 means I would probably still be at JPL working the mission till then, considering that I was the Team Lead with the most tenure and experience. My demotion and layoff would never have occurred, I believe, except for the discrimination and retaliation mounted against me for the high crime and misdemeanor of sharing DVDs on intelligent design with co-workers. 
PictureAfter returning home from the hospital
I realize that some readers may wish they could trade places with me financially. This is a hard time for many people. Again, let me stress I am content with God and his grace. I haven’t shed blood like many of my Christian brethren in the Middle East. I still have my head attached to my neck. I have a good amount of health. I have shelter, food and clothing that is adequate. In addition, I have even more opportunities now to share the message of creation, intelligent design and the gospel than before. I’m joyful and grateful for my present circumstances. I never asked for a high salary or wealth, so I can't complain when it evaporated. I just wanted to be financially responsible so as not to be a burden on anyone in my senior years. We must all work hard, but trust the Lord for our sustenance. The Lord gives; the Lord takes away; blessed be the name of the Lord!

The losses I have described above are directly attributable to taking a stand against JPL's discrimination. Would I have made the same decision now, knowing now that it was going to cost nearly a million dollars? It’s a hard question, but several things give me hope that it was worth it. 

  1. For one, I probably would have been laid off anyway over the DVD matter without ever learning about JPL’s schemes. Court testimony showed that Chin and Mitchell heard gossip about my DVD lending and were upset about it.
  2. Secondly, I’ve learned many important lessons about our legal system, about life and my relationship with God through these experiences. 
  3. Third, I know there are many Christians around the world who were encouraged by my stand in spite of the unhappy ending.
  4. Fourth, my trial brought together exceptional legal expertise and prayer support from around the world that was amazing to see. 
  5. Fifth, “intelligent design” made global headlines through this case. Even among my detractors, I suspect there were many who sympathized with my situation. I can hear them whispering, “He lost his job over that?” 
  6. And lastly, I’ve seen that God is able to do exceeding abundantly above all we ask or think if we stand true to Him, even if it costs in material terms. My church and various friends pitched in to help me financially when I was under the most strain. Opportunities came to me. I've bounced back and enjoy every new morning.

"The fact is, and you can quote me, you are the rare individual courageous enough to fight to vindicate your rights. I know other people who would, but many more who would rather preserve their secure but unhappy circumstances." — Bill Becker, Jan 8, 2016.
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Tony Perkins of Family Research Council ends his daily podcasts with the challenge of the Apostle Paul in Ephesians 6: “When you’ve done all that you can do, by all means, keep standing.” Paul knew what it feels like to be knocked down, but not knocked out. I hope my experience will encourage others to stand for the right no matter the cost. Sooner or later, I believe, someone is going to win a substantial case against Darwinian bigotry. The case of Martin Gaskell and Bill Becker's hefty settlement in the AFA case against the California Science Center have put them on notice that discrimination against those who support intelligent design can be costly.

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P.S. Bill Becker and I both appreciate your ongoing prayers and support. Please read my science news service Creation-Evolution Headlines, and buy Illustra Media’s great films. Consider becoming a regular donor to Bill Becker's FreedomX non-profit 501(c)(3) public policy law firm where he continues the fight for Freedom of “X”pression wherever injustice threatens our precious liberties. 

 

Injustice Served

01/08/2016

 
We're coming up on 3 years since Judge Hiroshige ruled against me. Some may not have seen the response of Bill Becker, my ADF-affiliated attorney, who wrote this on January 16, 2013.
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David and I are naturally disappointed in the court's decision, the unnecessary lengthy delay in reaching it and, after such a lengthy time, the judge's inability to write the decision himself, or at least explain the contradictions in the evidence....

By failing to address the evidence personally, thoughtfully and carefully, the judge in this case left the door wide open to have the judgment overturned on appeal.   

David was the victim of religious discrimination because a handful of malicious co-workers hated his Christian views, as well as his interest in intelligent design, which they ignorantly perceived to be a religious concept. He was demoted and fired for simply being a Christian and someone who believes that nature can be scientifically explained by reference to designs found within it.

This case took more than three years to litigate. Judge Ernest Hiroshige sat through five weeks of trial last March and April, observed dozens of witnesses, admitted a mountain of evidence, listened to closing arguments, required voluminous post-trial briefing that delayed a ruling by nine months, and never once accepted the responsibility of expressing his view of the evidence. Instead, he farmed the task out to JPL.

By rubber-stamping JPL's ghost-written decision, Judge Hiroshige demonstrated how easy it is to collect a paycheck from the taxpayers without actually having to do the work of a judge.  At the end of the day, we still have no clue how the judge really felt about the evidence. 

It is really remarkable that the judge could sit there for five weeks and still not have the fortitude to tell us what he thinks. This was anything but a bold act, but we will leave it for others to describe it for what it appears to be.

Under state law, we filed specific objections to JPL's statement of decision, which required the judge to reconcile JPL's evidence with our evidence contradicting it. By overruling our objections without giving a reason, the judge has all but handed us a victory on appeal.

As for the community of rabid anti-intelligent design forces that snicker and snark at the concept and ignorantly confuse and conflate it with Creationism, to paraphrase Mark Twain, reports of the demise of this case would be greatly exaggerated.


Bill was raring to go on appeal, but I had just been diagnosed with cancer, and the ADF attorneys doubted the efficacy of an appeal given my condition and the hesitancy of appellate courts to reverse lower courts without evidence of extreme incompetence. Reluctantly, we had to call it quits.

Our loss is not a reflection on Bill or ADF, who put in heroic efforts on my case. Despite being understaffed and underfunded compared to JPL's crack legal team; "we were contending with the liberal judge with his mind basically made up," Bill reminded me today. And we were not alone in losing an important religious liberty case. "Look at Kim Davis. She had Liberty Counsel working for her. Or Elane Photography (the best attorneys at ADF), or Sweet Cakes (same)." 

But there are important victories, too. On Family Research Council's Washington Watch this week (January 6) Ken Kuklowski and Kelly Shackelford of Liberty Institute shared great news of victories in recent cases, and also gave optimistic opinions about some important upcoming cases.

Our rights will erode away unless there are courageous individuals and self-sacrificing attorneys willing to defend them. You can support Bill Becker by donating to FreedomX, a  501(c)(3) non-profit public interest law firm. Your gifts are tax deductible. In the "Right Column" of the FreedomX home page are valuable news items about religious liberty issues, showing that the need is greater than ever.
 
 
At first glance to most people, it would seem a court would want all evidence to be available. That was certainly my assumption; I had nothing to hide, so lay it all out there, I naively thought. Would that human nature could accept that. Our adversarial system of justice is built on the notion that men are not angels. We lack the holiness that would make matters of justice obvious to everyone. As it is, disputing parties have to fight it out at every stage and trust a referee who is fallible, too. Except for law, a court trial would be more like a game of rugby or two-man pinball than justice with a capital J. But even applicable laws can be selectively cited. It's the best we can expect in a fallen world. One important play is the skirmish between the parties on what evidence should be presented at trial. Sometimes evidence that is disallowed or withheld can bias the outcome
PictureJPL's legal offices in downtown L.A.
Dealing the Cards

The first step in evidence gathering is discovery. Each side is supposed to present all documents that bear on the case. In practice, however, there is subjective interpretation about what constitutes relevant evidence. One side could flood the other side with stuff that has little or no bearing on the issues, swamping their ability to sort through it all. 

JPL should have had every relevant document about me in their own records, but my lawyer and I provided much of it anyway. Fortunately, I had kept some very hot emails that supported my case, but there were also hundreds of normal everyday work emails that didn't bear on the issues involved. So I hunted for keywords and key people, and supplied everything that had to do with the case. We presented 571 documents to JPL's lawyers. When they learned in deposition that I had kept personal notebooks of my work, they wanted all of them, too, even though 95% of the material (or more) was just incomprehensible computer geek-talk, task lists, and records of meetings. They had the manpower to go on a fishing expedition for incriminating evidence about me or my work, and made hay of it during depositions and at trial. You'll see in a minute that my ability to counter their interpretations was limited, due to other rules of evidence.

PictureDarwin fish found on JPL scientist's door
The first data dump of discovery documents is often incomplete, so I provided additional documents as their possible relevance reached my awareness, such as JPL announcements about lectures on the origin of life, additional emails, or photos I took of "Darwin fish" on the doors of JPL scientists (right).

The Delayed Fuse

JPL's lawyers, however, committed a serious blunder, omitting highly relevant emails almost a year after initial discovery, right as Becker and I were completing our important "Plaintiff's Opposition to Defendant's Motion for Summary Judgment" in September 2011. I remember the situation well. Bill and I were working feverishly out of his home office to get the legal brief done before the deadline, supported by 88 pages of supporting arguments, when JPL's lead attorney Jim Zapp sent a little "whoops" message, saying they had inadvertently omitted 13 emails in discovery 10 months earlier. Bill asked me to see what was in them while he continued typing. Some were boring, but a couple of them almost burned my fingers. I told Bill, "You might want to look at this." Stopping to read them, he came the closest to swearing as I had seen. Here was incriminating evidence that HR (human resources), my boss, my group supervisor, and the Cassini Program Manager were conspiring to get me off the program or fired—within 38 days after Greg Chin's tirade! (see The Triggering Incident.)  One HR employee wrote, "I think we need to ensure that there is no retaliation going on."

Becker fired off an angry email to Zapp, saying, "On the evening before opposition to your summary judgment motion was to be filed, you dropped a bombshell in my lap." It meant that some of the witnesses may have perjured themselves in their depositions. "Your client, JPL, and specifically HR, withheld a key piece of evidence that contradicts testimony in this case and may require me to redepose virtually everyone," he wrote. Sheepishly, Zapp accepted that the trial would have be delayed so that additional depositions could be taken. Conveniently for JPL, most of HR's witnesses had forgotten those emails when they were brought in to testify, now that 2.5 years had passed since they were written. One HR lady literally said "I don't remember" to every question. This episode illustrates how timely production of documents is vital to getting a fair trial. 

PictureCartoon mocking Prop 8 on a JPL scientist's door
Limine Cricket

Motions in Limine (rhymes with "jiminy"), or MIL, are requests that parties make to the court to try to exclude evidence. You heard me right. For various reasons, parties to a trial believe certain evidence to be prejudicial or irrelevant. JPL's lawyers, for instance, opposed our intent to show the DVD's "The Privileged Planet" and "Unlocking the Mystery of Life" to the jury. They opposed our presenting an expert witness on intelligent design. They opposed mentioning that other people had suffered discrimination for their views on ID, as shown in the movie Expelled. They wanted to exclude any reference to "viewpoint discrimination". They wanted to exclude any testimony that my activities were justified because JPL conducts research and activities on the "origin of life."

For our part, we wanted to exclude testimony regarding Proposition 8 (California's "gay-marriage" initative) on the grounds that jurors in Los Angeles might be too prejudiced by that hot issue to be able to address the larger issue of free speech. We wanted to exclude testimony by a JPL economist claiming that I didn't look hard enough for a new job after I was fired. We wanted to exclude "cumulative and irrelevant defendant witnesses" that would not provide new evidence, but would just keep hammering on the defendant's theme. (JPL, remember, could call in anyone they wanted, give them time off work with pay, and coach them on what to say. We were limited to retirees or former employees.) We wanted to prevent JPL from arguing that they had a "right to interfere" with my "political activities" (such as they were: handing out a few Prop 8 flyers on one day in Nov. 2008).

Both sides had other MILs, but you get the idea: each side doesn't want to prejudice the case, and so it is in their interest to include or exclude certain evidence or lines of argument. For each MIL, we had to present additional facts and evidence to the court arguing our reasons, and additional documents opposing the other party's arguments. All the MILs were presented when we thought we would have a jury trial. Since we later opted for a bench trial, the MILs became largely irrelevant; the judge knew all the motions and could not un-learn them ("You can't un-ring a bell," lawyers say). Judge Hiroshige still ruled on each MIL in chambers (with the lawyers behind closed doors). Based on his decisions, he was not "supposed" to take excluded evidence into consideration for his final decision, but who knows what biases entered in anyway? For instance, he was supposed to watch the DVDs privately, but we never found out if he actually did. It's hard to imagine any fair-minded person thinking the films are "pushing religion". I sure wish I knew if he fulfilled that obligation, and what he thought of the films. I can only speculate that he either did not watch them, or is so prejudiced against ID himself that he did not want me, an ID proponent, to succeed. God only knows.

PictureCoppedge's JPL notebooks
What Did You Hearsay?

Another way to bias a trial is with rules about "hearsay" evidence. This can help or hurt a party to a trial. In my case, I think I was hurt. Becker and I could not understand some of the judge's courtroom rules on hearsay. For instance, I had a box full of my personal notebooks from all my time as a JPL employee. We had submitted these to JPL's lawyers to photocopy and examine. They were already in the discovery evidence pool. But during trial, I was hamstrung in using them, on the grounds that they were "hearsay." They were my interpretations of events, the judge said, and therefore were not admissible. 

How much can you remember of things you did seven years ago? That's why I took copious notes. My notebooks provided contemporaneous accounts of events, like who was present at a meeting, what was said, and what was decided. In my thinking, it constituted the best evidence of certain events that were discussed at trial—often the only evidence. JPL's witnesses were allowed to speculate out of their own faulty memories about things that had happened up to 9 years earlier, but I had it all written down! For instance, Ms Weld, one of the Cassini managers, got her facts all confused (and wrong) about meetings I had with her about solving problems with one of her employees, Pam W., back in 2004-2006. In my notebooks, I had the exact dates and records of what she said to me at eight separate meetings, when she was cordial and thanked me for bringing the matter to her attention. But on the stand, she only remembered three meetings, and forgot what she herself had said. This was unfair, I thought, but she got away with it because of rules about hearsay. Becker was able to cross examine her, but we could not consult my notebooks as a source of evidence.

There were exceptions. The judge allowed me to consult my notebooks from the stand for the purposes of "refreshing my memory" before testifying. But I could not read aloud what I wrote into the court record; I had to find the right page in the notebook, read it silently, then close it before I could say anything. That's hard to do under pressure when there are multiple facts written down. There were also a few pages in evidence we were allowed to reference. For instance, Pam had just trashed my reputation on the stand when Becker cross-examined her with an excerpt from one of my notebooks that showed I had met with her on Sept. 2, 2004, to build a better working relationship, and that she appreciated it. Only then did she recall that. She testified that my notes were accurate. But for most of the other JPL witnesses, they were allowed to freely speculate about distant memories with no documentation whatsoever. It would have been far better, I think, to allow my notebooks to be offered for witnesses to look at, to confirm or dispute my record, rather than to ignore it completely.

PictureAward signed by Greg Chin, Jan. 2001
Blind Man's Bluff

The judge's rules allowed JPL's attorneys to use my notebooks against me. For instance, in 2004, Greg got angry with me three times over rumors Pam had spread up the chain. I had dutifully recorded everything he said at those meetings. It looks pretty damaging until you know the context; in March and August of 2004, Pam had badmouthed not just me but all the System Administration (SA) team. Since I was in the "line of fire" as Team Lead, I got the brunt of her complaints. Greg was responding to her gossip that had gone to Pam's boss, her boss's boss, and the Program Manager, and was unloading it on me, the team lead. Within months, as my notebooks from 2005-2007 show, Greg changed his tune, because he started getting in Pam's line of fire himself—so much so that the Program Manager was about to fire him!  He wrote in emails to the Program Manager and his sub-managers in that period that he felt the attacks on the SA's were unfair. I gleaned choice quotes from Greg and his deputy Tammy in emails and notebook pages about how they had changed their mind about Pam and about me, were no longer accusing us as being the problem, and were defending us before the top managers.

JPL's lawyers took my earlier notebook pages from 2004 out of this broader context. They harped on them to build their case that I was a troublemaker with a long record of poor interpersonal skills. You can ask any of my team members and others in Greg's office about that period, and they will confirm that I was not the problem. The situation involved strife between Greg's office and Pam's office about how to do things. It was turf war that troubled us all. Some of the heat I took was for defending my team's actions against her gossip with the facts. Context matters!  (Note that these conflicts all occurred long before the trouble started over the DVDs, and were resolved when Pam left Cassini in 2007. After that, there was harmony between our offices with her replacement, who was much easier to get along with. Notice too these were work-related conflicts—common in any office—having nothing to do with my case about discrimination and retaliation.)  My notebooks recorded all this, but very little of it was heard in court. Instead, Greg, Tammy, Pam, Ms Weld, the Program Manager, my co-workers and others who testified against me at trial were permitted to speak off the tops of their heads with no written record whatsoever!

Surprising as it seems, hearsay rules also disallow a witness from attesting his own emails. I possessed several time-relevant emails I wrote to myself in 2009 after key events occurred, but these were not considered admissible evidence. Only when a recipient could attest to receiving an email was it admissible. Because of this rule, there were some "hot doc" emails by others that didn't make it into evidence because a key person could not recall receiving it, or was mentioned in the email but was not on the recipient list. 

Even if a witness does attest a document, and it makes it into evidence, it may not get the notice it deserves (see "Crystal Clear: What This Trial Was All About.")

PictureJPL lead attorney Jim Zapp
The Attorney-Client Huddle

The ability of an attorney and client to keep their discussions confidential is an important safeguard in our justice system. Attorney-client privilege was won through a series of historic precedents. Abuses are certainly possible when an attorney or client are forced to reveal what they said in confidence. It can also mean, however, that incriminating evidence will never see the light of day in the courtroom. That happened in my case.

During 2010, after my lawsuit had been filed and before I was laid off, JPL's lawyers met with key decision makers specifically about my case six to eight times. We wouldn't have known about these meetings except that a witness disclosed the fact at deposition, leading to follow-up questions and more revelations about them by that witness and others. In deposition and at trial, we were allowed to inquire about the dates of these meetings and who was present, but we could not ask about what was said, on the grounds of attorney-client privilege. Not even the judge could know.

It's not hard to imagine what was going on. Jim Zapp and the defense team were most likely scheming with Cassini management, HR and my line management about how to get me out of JPL without making it look like retaliation. This would explain a lot of subsequent events: the low ranking, the terrible annual review, the addition of two additional SA's a few months before my firing, the delay of the layoff to appear to coincide with "reduction in funding" for 2011, and the firing of another SA on the same day. It looked very suspicious, but we didn't have a fly on the wall at those meetings, and nobody present was allowed to discuss what was said. This made it difficult for us to prove our retaliation case except by circumstantial evidence. We knew, however, that all those meetings were specifically about my lawsuit, and the key decision makers were present with JPL counsel.

Becker told me that after a trial is adjudicated, the rules of attorney-client privilege are no longer in force. Any participant at those meetings is free to tell me what was said. I doubt that any will, and it wouldn't make any difference in the outcome, but it would be interesting to know. It's another example of not having access to "the whole truth" that bears on a case.

PictureMoses with Decalogue at L.A. Superior Court
The Winnowing Game

The photo shows Moses with the Ten Commandments outside the L.A. Superior Court building where my trial was held. "Thou shalt not bear false witness" is the standard. Witnesses swear to tell "the truth, the whole truth, and nothing but the truth." The whole truth, however, is often unbearably voluminous for mortals who are not omniscient. There's a winnowing process to reduce the whole truth to the relevant truth. This is the last game I'll mention that courts play with evidence: the winnowing game. Who decides what is wheat and what is chaff?

As discussed earlier, discovery is often unwieldy. Both sides give their discovery documents numbers that are Bates-stamped onto the pages. When referred to in depositions, they are given exhibit numbers. As trial approaches, a subset of the Discovery Docs is agreed on by both sides to become the Trial Exhibits. These are given new Bates numbers, requiring tedious cross-correlation of three sets of numbers. All of the Trial Docs had to be printed out in quadruplicate, one set for the court, one set for the plaintiff, one set for the defendant, and one set for the witness. In my case, we had to print 4 copies of five 4-inch binders full of paper. That recalls a long night at the copy center! But we're not done winnowing yet.

During trial, no document can be considered relevant to the case until it is formally "admitted into evidence." During examination and cross, each side's counsel asks the court to admit Exhibit nnn into evidence. If the opposing side agrees, it becomes part of the official case evidential record. There's not time to admit all of them, certainly not the 380 Trial Exhibits in my case. So unless an attorney succeeds in getting all of his "hot docs" submitted while court is in session, essential evidence can be excluded from consideration for the decision. Moreover, the attorney can only ask for admission while examining a witness capable of attesting to the exhibit's veracity (e.g., "Is this your email, Mr. Burgess?"). It means that only a small subset of initial evidence can be considered by a jury (or the judge, in my case) when contemplating the verdict.

PictureJudge Ernest Hiroshige
The Gutter Ball

Even then, the winnowing game is not over. Attorneys know that jurors often develop a "gut feeling" about the case based on what they hear and see in the courtroom. That was one worry we had when considering a bench trial vs. a jury trial. Would a typical panel of inner-city jurors—probably many of them government workers (or out of work)—be able to process the intricacies of law that pertain to a case like mine? Or would it turn into a popularity contest, ending up with a decision based on whether they liked me or my lawyer better than JPL's lawyers? Would the prestige of JPL and NASA bias them against a lone plaintiff? 

When we decided on a bench trial, the "gut feel" issue became refocused sharply from worries about the biases of 12 people to concerns about one man's integrity. Judge Hiroshige was an experienced employment-law judge with many years' experience. But he was a Jerry Brown appointee, and registered Democrat. We don't know his feelings about ID, but we do know that most Democrats lean left, and leftists are usually the most stridently opposed to intelligent design. How well was he able to lay aside his own biases (if any) and focus completely on the winnowed-down evidence? It's impossible to know. All we know is that despite mounds of evidence, and a painstaking, four-year effort on Becker's part, it came down to one fallible man's judgment. And he wasn't telling what evidence, or lack thereof, influenced him to rule the way he did. 

The weight of the evidence depends what evidence makes it to the scales. Then it depends on how much weight is ascribed to each piece on the stack. As I look at piles of boxes of paper in my garage from this trial, most of it concerning "evidence" that got subjected to all these tricks of the courtroom, I think sometimes we could have saved a lot of trees by tossing a coin. I'll let the reader decide whether justice was served.


 
 
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A year ago, on January 16, 2013, my lawyers and I got word that Judge Ernest Hiroshige had issued his final ruling against us.  My picture had been plastered on newspapers around the world on October 31, 2012, when his tentative ruling suggested he was intending to favor JPL on all counts.  He gave JPL's lawyers the task of writing the proposed opinion.  Once we received a copy in November, lead attorney Bill Becker and I had one more chance to fight it, and we fought hard.  Working 60-hour weeks nonstop till almost Christmas, we submitted a 230-page rebuttal to all of JPL's "findings of fact" and "conclusions of law" that had tried to portray the case as a trivial complaint by a poor worker with no legal basis.  JPL's version had become the official press release when an AP reporter wrote a story about the tentative ruling.  It caught fire and was multiplied thousands of times around the world.  Outside of the Discovery Institute, not a single reporter contacted me or Bill to get our side of the story.  We couldn't rely on the press to get it right or understand what intelligent design is, but we had one last chance to convince the judge our case had merit, or to win on at least one of the ten counts.

Despite our slim hopes, the judge did not change his mind.  With no explanation at all, he simply said, "Plaintiff's objections to the Proposed Statement of Decision and the Proposed Judgment are overruled. The Court signs and adopts the Proposed Statement of Decision and the Proposed Judgment as the Statement of Decision and Judgment of this Court as of January'
15, 2013."  Thus ended our 3-and-a-half year effort to get justice for the clear discrimination I faced when debased, disciplined, demoted and eventually discharged for having shared DVDs on intelligent design. Despite our heroic effort, with support from ADF and Discovery Institute, and about $70,000 out of my own pocket for court costs, it seemed all for naught.  And six days earlier, I had just learned I had cancer.
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Shirt says "Liberty"
Life Goes On

To say "Life goes on" is trite, but for me, to sit here at the computer tonight in good health, with many blessings over the past year, is proof that God stands with us in our trials.  Yes, it hurt a lot to lose, and I was scared of surgery, but I was enormously blessed by countless people who prayed for me and expressed support.  I received numerous cards, emails and letters.   My sister and her family have helped me so much.  My church paid the $8500 deductible for my health insurance.  Other friends contributed, and members of my church brought meals after my surgery, offering encouragement in many ways. And best of all, God heard and answered.

The picture shows me on one of my daily walks in late summer. After the successful surgery in late February, God has let me bounce back rapidly, much better than I thought possible.  I thought I might have just 2-5 years left. Though I face ongoing treatments the rest of my life, my oncologist says chances are good I can enjoy many more years of good health.  I have no symptoms from the remaining tumors; they are being treated with medicine covered by my insurance.  In addition, I have come under the care of one of the top experts for my kind of cancer, and just this week I obtained a health insurance policy that, despite Obamacare, looks like it will be manageable, and will cover all my treatments and doctors.  I'm also encouraged by promising new treatments for cancer working their way through clinical trials; some of them are really amazing.  Immunotherapy, for instance, made Science Magazine's Breakthrough of the Year.  I can hope and pray the new targeted therapies will be available when I need them.  In the meantime, there is an arsenal of treatments already available for carcinoid patients.

Taking advantage of the good recovery, I resolved to do my part to stay healthy as long as possible.  I eat right (see my Cancer Blog) and I walk 2 to 4 miles every day.  Since surgery, I calculate I have walked 800 miles on deliberate walks and hikes, enough to walk from Los Angeles to Denver.  I actually feel healthier than I did in 2012. 

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Keepin' Busy

The Lord has also kept me happy with gainful employment – self-employment, that is.  I don't make near what I did at JPL, but I am able to earn enough from home to keep food on the table and the bills paid.  I make money writing, speaking, and selling books and DVDs, including the ones that cost me my job.  I've had the joy of helping Illustra Media on their latest nature documentary, Flight: The Genius of Birds, including participating in a photo shoot, assisting with interviews, and researching some of the amazing facts discussed in the film.  The staff, some of my best friends, have been wonderful, supporting me and giving me work; now we are busy with the next project.  Some of my writing has made it into magazines and radio, and some gets translated into three other languages.  I've never been bored, but now, even without a full-time job and commute, my days are filled with activity!  I wake up raring to go.

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Diving into a Grand Canyon waterfall
His Mercies Are Everlasting

Within 3 months of surgery, I was carrying a pack and diving into waterfalls.  As you can see, I'm doing OK even with a foot-long abdominal scar, 21" less of small bowel, no gall bladder and a lot of tumors in my liver.  Who would have thought?  I am SO thankful to the Lord and to all who prayed for me!

In 2013 I was able to travel, too.  I led 10 Creation Safaris, including 2 backpacking trips where I carried a full load and did the distance with young people half my age.  I got to photograph some amazing things that I've been posting on my Flickr page.

God is so good.  Whether I truly suffered for righteousness' sake (instead of my own sake) is for God to judge, but I can vouch for His mercy, grace and answers to prayer.  So no need to pity me.  Like Paul, I have learned to be content in whatever circumstances I am, and right now, my circumstances are not too bad.  

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The Power of Prayer

One lesson the Lord has been teaching me is the importance of prayer for others.  Having been its beneficiary, I am learning to devote more time and energy to it.  In the cancer support group I attend, I have seen carcinoid patients much worse off than me.  There are also members of my Sunday School class who have been diagnosed with cancer and other serious conditions  It's been my joy to take their trials to the Lord and to encourage them as I have been encouraged.

One special joy is to pray regularly with some JPL Christian friends who were very supportive throughout my troubles.  We swap prayer requests by phone as they meet to pray on lab.  We've already seen God work in answer to specific needs.  It's been great to keep that relationship going.

Losses and Gains

In summary, I am moving forward, rejoicing.  It looks like we will never know Judge Hiroshige's reasons for ruling against me, and frankly, I still don't understand fully why God put me through this experience (or allowed it).  One thing I do know is that several individuals told me they were encouraged by my taking a stand.  But I had wanted to ring the liberty bell for freedom; I had wanted the world to hear the truth about intelligent design.  Instead, from a human vantage point, the opposite happened. 

I told Bill Becker the other day that the story appears to be one of justice denied: a trial lost because the defendants had more money, more staff, and more experience with the tricks of the trade. That was also the Discovery Institute's opinion.  Through distraction, distortion and dissembling, JPL's legal team took a clear case of religious discrimination and twisted it into a tale of employee incompetence.  We were outmanned and outmaneuvered.  For all we know, the judge may have had social reasons for his decision: fear of his peer group if he supported ID?  not wanting to hurt JPL's good reputation?  personal dislike for Christians or conservatives?  We don't know, because he gave no reason. We're not even sure he watched the DVDs like he said he would.  (I don't know how anyone could watch The Privileged Planet and Unlocking the Mystery of Life and think for a minute they were "pushing religion".)

But that's looking at it all from a mere human viewpoint.  We can be confident God is in control.  He answers prayer in His way.  He is full of mercy and compassion.  Losses in one area He compensates for with blessings in others.  The main thing is to remain faithful, rejoicing in each day's blessings and opportunities.  The next chapters remain to be written, but we know the story of the adventure of faith has a great ending.
 
 
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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.

 
 
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In my cubicle 3 months before getting fired. This is where I had picked up HR's call.
The day after my boss's tirade about intelligent design (3/3/09), I got a friendly call from a lady at Human Resources (HR).  In hindsight, wow -- was I ever naive.  I thought HR was trying to help me.

A lady with initials JH said that she had heard about a conversation with my boss, and wanted to talk to me about it.  She gave no indication of her real purpose.  I thought, great; she wants to help my boss and me reconcile.  An appointment was set up for a couple of days later.  She would hear my side, I presumed, then hear his side, and then help us work out an agreeable resolution.  I was all for that.  Let's come to an understanding and make peace, then proceed with our work.

Something about this appointment did raise my antennas, though, so I decided to come prepared to defend my sharing of DVDs on intelligent design.  I gathered some "show and tell" material, including copies of the DVDs, my lending log, and a statement describing my practice of sharing them: that it was infrequent, usually at the end of work before a weekend, and contained scientific (not religious) material of great interest to everyone.  I also collected several statements by prominent scientists and philosophers that supported intelligent design (ID) as science.  Then I made a long list of JPL press releases on evolution that made philosophical claims about the origin and fate of the universe, life and humanity that went far beyond any scientific evidence.  I figured if JPL can talk about these subjects openly, I could, too--even if some people find it controversial or uncomfortable.  The subject of origins should be fair game at JPL.

A trusted colleague also found a copy of a document called "Guidelines on Religious Expression in the Federal  Workplace" posted on another NASA center's website, along with "Questions and Answers: Religious Discrimination in the Workplace".  These were very interesting documents. I didn't believe ID was religious, of course, but since my boss did, he should have respected my right of expression. The guidelines seemed to clearly justify what I had done as within my rights--even to the point of "proselytizing" (however that is defined).  For instance, it states:

Many religions strongly encourage their adherents to spread the faith by persuasion and example at every opportunity, a duty that can extend to the adherents' workplace.  As a general matter, proselytizing is entitled to the same constitutional protection as any other form of speech.  Therefore, in the governmental workplace, proselytizing should not be singled out because of its content for harsher treatment than nonreligious expression.  (Bold added.)

The guidelines, written in 1997 to clarify existing law, clearly err on the side of freedom of expression. Sharing a DVD about ID, therefore, even if deemed religious, should have been protected activity.  I want to discuss this document more later.  It became a key focus of legal wrangling about whether JPL was obliged to follow these guidelines.  (Note: I found that the NASA Glenn Research Center has since removed this document from their website.  Was it because of my case?)
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With Cassini managers, watching Saturn images arrive, June 30, 2004
The Interview

So I came to the HR meeting prepared, I thought, to show that sharing DVDs on ID was within my rights.  I was greeted by a middle-aged black lady with initials JH, who welcomed me into a small conference room.  Once again, she only stated she had heard about the conversation with my boss and wanted to ask me some questions.  Still under the impression this was a reconciliation meeting, I laid it all out on the table, talking with her for about an hour, showing my materials and describing what had happened.  I offered her the chance to watch the DVDs and see whether they contained a religious message.  She looked at them but did not take them.  I showed her the lending log, my other papers, and explained clearly how I thought my boss had violated my civil rights by restricting my speech. 

Mostly quiet and expressionless, JH dutifully took notes on a pad of paper and asked a few more questions.  For instance, she wanted to know if I had ever talked to co-workers about politics.  I racked my brain, and did think of some rare instances.  A couple of times, I told her, I had looked up judges on the ballot and offered a few nearby co-workers information about them.  They appreciated it, I said, because most people know nothing about judge candidates.  I told her I had passed out a few flyers on California Proposition 8 (the marriage initiative now before the Supreme Court) before the 2008 election.  I said I had one respectful conversation with a co-worker BE who disagreed with my position, but got into an argument with another co-worker SE when he started criticizing my position after I gave him the flyer and briefly described it.  I told her how the next day I had returned to SE and apologized for allowing the discussion to become heated. even though it had been a mutual exchange, with neither of us making personal attacks or insults-- it was just a strong disagreement about the facts and arguments about the proposition.  When I apologized, he spontaneously stood up and shook my hand.  That should have been the end of it.  I never brought up the subject with him since.  That argument, I would later learn, became a key piece of evidence used against me.

Let this be a warning to all about answering questions truthfully.  I learned this the hard way, especially in depositions.  There are wise and foolish ways to tell the truth, the whole truth, and nothing but the truth.  If I had known that JH was investigating me on harassment charges, that would have changed the complexion of our meeting dramatically.  I would have realized that I have the presumption of innocence, and the burden of proof was on HR to prove otherwise.  Thinking that she was there to help me reconcile with my boss, being the transparent kind of guy I am, with nothing to hide, I volunteered all kinds of details about things unrelated to her questions.  When you are being accused of something, realize that simple, truthful answers are all that is required.  Let the investigator do the work.  Answer: (1) Yes, (2) No, (3) I don't know, or (4) I don't remember.  Answer only the amount of detail that is asked.  If a question seems too probing, or you don't understand it, or it is vague or ambiguous, ask for clarification before answering it.

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In front of my building, leading a JPL tour (2004)
At the end of the interview, I asked what would happen next.  She said she would be talking to my boss and would get back to me.  This was all fine and good, I felt; I was glad HR was helping resolve the dispute with my boss.

Policies and Procedures

The next day, though, I started having some worries about that interview.  I emailed JH and requested 3 things: (1) a copy of GC's account of the March 2 meeting, (2) a copy of the JPL "procedure for conflict resolution, of which yesterday's meeting was a part," and (3) a statement whether JPL follows the same Guidelines on Religious Expression that I had found on the NASA-Glenn website.  She called back and said she couldn't give me GC's version, but that she would get back to me on the others.  Soon she emailed me the link to JPL's "Problem Resolution Policy," but said she would have to do further research on #3.

What happened next gave me real concern.  I waited and waited, and still did not hear anything.  A simple reconciliation between two parties should have been a quick process. Twelve days after the interview, I asked if she had any news for me.  No response.  I stopped in my group supervisor's office to see if he knew what was going on.  He opened his eyes wide and said that JH was "talking to a lot of people about you."  I was stunned.  Something was going on that was bigger than I realized.  When I asked for more information, I was informed that when JH finishes her investigation, I would find out.

I also noticed that my boss GC had been acting especially cool toward me.  Perhaps that's understandable after his tirade, but I was still Team Lead and had to interact with him daily on work-related matters.  It seemed that whenever I offered a suggestion, he would rebuff it with answers like, "Why do we need that?"  I offered a tutorial on a technical subject for anyone interested but he disputed its value.  Then I got my annual review on April 1, and noticed, for the first time, he had written several paragraphs of negative comments about my presumed inability to get along with people.

JPL has an extensive online library of Policies and Procedures called JPL Rules.  On April 9, I decided to read the "Problem Resolution Policy" JH had sent and realized there was a serious misunderstanding.  That policy was dependent on an employee filing a complaint.  I wrote her,

Thank you for the link to the "Problem Resolution" document #27052. I'm a little confused, though, after reading it. It seems to refer to grievances instigated by the employee. I never filed a grievance. As far as I know, this matter was elevated 
to HR  by [GC]. Are we working through the grievance process, or some other process?  If it's this one, rm not sure what stage we are in. If you can help me out, I would appreciate it.  Also, did you have a chance to find the answer to my earlier question #3?


Notice how I was very concerned about the process she was following.  Way back on March 5, JH should have known that.  I had asked for JPL's "procedure for conflict resolution, of which yesterday's meeting was a part," making it clear I wanted to know what she was doing; I figured something this important would have a documented procedure.  She had sent me an unrelated document that had nothing to do with her activity!  She made that very clear in a voice mail later that afternoon:

Hi David, this is [JH]; I received your email this afternoon and I wanted to respond to you, that when you initially asked for a conflict resolution procedure, the only thing we have even similarly close to conflict resolution is Problem Resolution, which was given to you I believe by myself and also [WH] gave you the information as well, so as I have been told, but no; it does not have anything to do with the Investigation that has taken place based upon the issue that was brought to our attention by [GC]. So they're two totally separate things, and maybe I misread the email and got a little bit confused, but whatever the case may be, I wanted to clarify so there won't be any misunderstanding, that they are two totally separate
issues.
If you have any further questions, by all means, give me a call. I'll be leaving in just a little bit from here and also, I believe you had another question; I'm not sure what it was, I don't have the email in front of me, but anywho, if you have any other questions give me a call back.  Thanks, bye.  (Bold added.)


This was the first time I heard HR use the word "investigation."  I was being accused when I thought this was about reconciliation and defending my civil rights.  Notice how vague JH was: she mentioned "the investigation that has taken place" based on "the issue that was brought to our attention" by my boss.  What issue?  An investigation into what?  I was never told I was being investigated for harassment--a serious charge!  Notice also how she cared nothing about my civil rights.  One would think a black person would appreciate the seriousness of that.  Four times I had asked her if JPL abides by the Guidelines on Religious Expression, and here a month later she couldn't even remember the question!

An Unusual Invitation

That morning (April 9), I had received an unusual meeting invitation from my Section Manager, KK.  It was rare for me to see him at all, but a couple of years prior, we had hit it off well in a one-on-one "get acquainted" meeting when he came on board.  I noticed he included his Deputy and my Group Supervisor in the meeting request for April 13.  I accepted, but asked what it was regarding.  He sent this evasive answer: "We're following up with you regarding your recent discussions with HR."  This lit off sirens in my mind.  I wanted to know what on earth was going on!

Hello [KK]:
This meeting came up on short notice (one workday beforehand). I would like to ask It be delayed till I can review the documentation on the investigation because at this time (1) I have been given no specific information about what exactly this meeting is about, and (2) If there are some kind of charges or accusations being brought against me, I have not even been informed what they are, nor have I been given any JPL policies and procedures that cover these kinds of investigations. I cannot adequately prepare for a meeting about these matters If I do not even know this fundamental information that I feel I have a right to know. 

In this regard, I have requested documentation of the procedures being followed In this investigation. I never received that information. I also asked (twice} whether the policies on the following NASA link apply at JPL, but never received an answer: [link]

If this meeting Is in fact about an investigation instigated by my office manager, it Involves a very sensitive Issue. I know you will want to ensure it is being conducted according to written policy and that the rights of an employee are being protected. Therefore I am again asklng three things be provided me before we meet together: (1) a written copy of the findings by HR, including any accusations being made against me and the evidence for them, (2) a written statement of the official JPL policy and procedure for investigating employees, of which this Investigation Is an example, and (3) copies of any and all JPL policies covering religious expression by employees at JPL.  Upon receipt of this material and sufficient time to review it, I will be willing to reschedule the meeting. I would appreciate a response by email.

Thank you,
David F. Coppedge  
(Bold added.)

He left me a voice mail stating that "all these things would be supplied to me at the meeting."  I agreed to come, but tried one last time to get some information:

Hello KK,· .
Thank you for your call, but in reflecting on It, I still think that at least item #2 is a reasonable thing to have before the meeting: what is the process being followed? Surely there Is a written policy on investigating employees, perhaps on JPL Rules or somewhere, that can tell me what exactly is going on. Can.you just send me a !Ink to the document? 
Thank you,  
David F. Coppedge


No answer.  With an HR investigation underway, a serious meeting coming up with management, and everyone giving me the runaround, it was time to call Alliance Defending Freedom.


In this episode, you've seen how this affair looked from my "naive" perspective, how I was kept in the dark, how I became increasingly suspicious.  My suspicions were confirmed -- and then some -- when I found out how HR really works, policy/process be hanged.  In the next episode, you will hear about what was going on in the background at HR, based on document discovery and oral testimony: blatant disregard for JPL's own written policies, and a complete lack of due process for the accused. 

Lesson to the naive: HR does not exist to protect your rights.  It exists to protect the institution and its management.