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168 Days: The Paper War

By Ken Snyder

On 13 November 2012 the complaint was filed against the Unified Government (doing business as the Kansas City, Kansas Board of Public Utilities), Johnson and Clark. It was masterfully written by Ms. Leeds and sets out the events and complaint in perfect detail. I can't describe the joy it gave me to know that this was finally taking place -- I would get "my day in court" and expose these people for what they did.

Almost immediately BPU started playing games. First, Johnson and Clark wouldn't accept the papers being served on them -- the process server was not allowed into the Service Center to serve the papers. Next, Jessica Leiker, a member of the BPU Human Resources staff "accepted" the papers for Johnson and Clark. Not long after that, Wonnell and Sieve-Wilson, BPU's attorneys at McAnany, Van Cleave & Phillips filed a paper noting that Leiker was not authorized to accept papers for Johnson and Clark, meaning they had not been served. This was nothing more than a stall tactic, as eventually Johnson and Clark were served with papers. By the way, guess who's a friend of Leiker, the one who was (and then wasn't) allowed to "accept" Johnson's and Clark's papers? MVP/BPU attorney Sieve-Wilson -- how convenient.

For some time I had made a habit out of attending the semi-monthly BPU Board of Directors meetings. You could tell the instant they saw me they were not pleased. I could imagine the comments made in their "executive sessions" about how they were going to "deal with" this case. Nearly all the time these meetings were a "dog and pony show," touchy-feely good stuff with the occasional disgruntled customer they would pooh-pooh about and send off to have some functionary try to appease as well as the time-to-time real problem: water main leaks, power disruptions, and equipment failures. As tedious as these would get, I would attend every time I was in town and didn't have other, more pressing issues to deal with. This caught the attention of the Board president, who remarked to me once about being there -- I just stared back, is there a reason a member of the public shouldn't attend a public Board session?

In December of 2012 BPU responded to the complaint. While it could be said that some of their responses were legal-speak to cover their behinds, looking at their responses to basic comments reflects their arrogance:

I could give example after example of things that show the same attitude. It's almost as if they aren't really giving this much attention, like they expect me to get tired of waiting for them to take this seriously and give up. Nice try.

Legal Precedent

Their next tactic was not only a stalling manuever, but it failed on a grand stage. Wonnell and Sieve-Wilson filed a "Motion to Dismiss" with the District Court. They tried to say that USERRA didn't apply to Johnson and Clark, that they were employees of BPU, a "political subdivision of a state" and that "the USERRA does not authorize suits against employees of a state political subdivision." They went on to say that "the USERRA does not allow for a suit by an individual against state employees." On 20 February 2013 Judge Julie A. Robinson filed a "Memorandum and Order" that dismissed their Motion to Dismiss. Simply put, USERRA does authorize suits against employees of a political subdivision in Federal Court. Johnson and Clark were not off the hook, and the legal process would continue.

Since this ruling was handed down, it has been quoted in other USERRA cases and employment law attorneys' continuing education seminars. It was also the subject of Service Member's Law Center Law Review #13091 (click the link to open the page in a new tab or window).

Another Settlement Offer

Once again in March of 2013, an offer was made to settle this case by Ms. Leeds. In civil cases like this, you have to show that you are willing to settle this before it actually gets to court -- the next page talks about another mechanism the court system has in place to try to get parties to settle before court itself.

Our offer would have made up a portion of the $73,000.00+ yearly wages I would have earned at BPU since July of 2010 (and by this time we were over two-and-a-half years away from my termination), interest on the lost amount and my attorney's fees. Their response was typical BPU arrogance: $1,000.00. Obviously, this was an insult and their response:
"Your client's military service had absolutely no relation to his termination"
was another example of their arrogance.

"Admissions" That Don't Admit Much

By April of 2013, when BPU responded to our "Request For Admissions" their comment above about not having "sufficient information" regarding my military service has changed from "without sufficient information to admit or deny" to "It is Defendant's belief and understanding that, during his employment with the Defendant, Plaintiff had obligations to the U.S. Air National Guard." Wow -- you think? However, they are now saying that the 21 June evaluation was "presented to me" -- when did this supposedly happen?

Even when asked specifically when the "decision" to terminate me was actually made, they side-step this crucial item -- to read what they responded with (on 26 April 2013) it would appear the decision was made on 8 July 2010. But I know better.

BPU's insistence that they "did nothing wrong" was looking more and more flimsy. As answers were given in their responses to our questions (interrogatories, in legal-speak) I kept seeing the same pat lines: "unable to complete work on jobs and tasks required of the position" "did not pay attention to detail when asked to complete a task" "not completing tasks in a timely manner" -- but nothing about the FACT that I was working independently most of the time, that I was so far ahead on the new traffic signal control cabinets that it took them NEARLY TWO YEARS to "catch up" with the work I had already finished. Still, no one has disputed the work I have claimed to have done while at BPU. They have been shown the same files over and over, yet no one has said they were not accurate.

What will be their next tactic? At this point it's hard to tell, but one thing I know for certain: they're worried.


Next: Mediation
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The standard you walk past is the standard you accept.