By Tom Hallberg
Jackson Hole News & Guide Via Wyoming News Exchange 

Whistleblowers sue Teton Weed and Pest


August 8, 2019

JACKSON — Thomas Spatafore worked as a seasonal weed technician for Teton County Weed and Pest for a decade. By all accounts, he enjoyed the job and was good at it, moving up the ranks to lead his own crew, including on an important contract with the National Elk Refuge.

The summer job had a crucial perk: free housing, which for at least a few seasons was a one-bedroom apartment he didn’t have to share. As an added bonus, because he returned each summer Weed and Pest allowed him to stay over the winters with a monthly rental payment far below market value, to the tune of $150 to $200 a month.

On Nov. 10, 2017, that changed. Weed and Pest supervisor Erika Edmiston and the agency’s board evicted Spatafore, and the following summer they did not offer him a job with the crew he had worked on for years. The events of just a few months — August to November of that year — led to the loss of his job and housing.

Details of Spatafore’s job performance and personal life were on full display July 22 and 23 in a federal trial that Spatafore’s attorney, Richard Renner, called the “first Affordable Care Act whistleblower case in the Western region.” Spatafore and former co-worker Marta Iwaseczko brought a lawsuit against Weed and Pest in federal court, alleging that discrimination and retaliation led to their firings.

Both sides agreed on basic details, such as the dates of Spatafore and Iwaseczko’s firings and the timeline of events. But in court they sparred over the interpretation of granular details. Over two days, both sides made their case before Judge Stephen Henley, who will decide whether Weed and Pest violated a pair of Affordable Care Act provisions.

Spatafore’s allegations date to 2012, when he refused to participate in a Weed and Pest group photo, claiming that being in photos went against his Native American heritage. He said then-program coordinator Travis Ziehl retaliated by furloughing him for a day.

Edmiston testified that Spatafore was contentious in refusing to participate and that Weed and Pest employees weren’t aware of his claim to indigenous heritage. Spatafore, who dressed in a tan suit for the trial, has shaggy, sandy-colored hair, and Weed and Pest defense attorney Steve Emery used his appearance to question the discrimination claims.

“It’s fair to say you don’t look like what Americans classically see when they think of Native Americans,” Emery said while Spatafore was testifying.

Spatafore countered: “Only if you go by stereotypes of Native Americans.”

Following the incident, positive end-of-season evaluations and progression marked Spatafore’s employment with Weed and Pest. However, after he became a crew lead, the highest classification seasonal workers can attain, and found himself at the maximum hourly rate for seasonals, his momentum stopped.

Before the 2017 season, Spatafore lived alone in a one-bedroom unit. The department had married seasonal workers coming in, and Iwaseczko sent out a survey that spring to the seasonal workers, asking those in employee housing if married couples should be given preference over single people for the stand-alone units.

They gave couples precedence, so Spatafore was asked to move into a shared four-bedroom unit. Emery, who has practiced employment law since 1987 and litigated several whistleblower cases, painted that experience as distressing to Spatafore, implying he felt an entitlement to the one-bedroom unit, though Spatafore denied that. Emery said the move was the beginning of Spatafore’s deterioration as an employee.

Near the end of his 2017 season, Spatafore brought complaints to supervisor Amy Girard about Weed and Pest’s hiring practices, his lack of upward mobility and not being offered benefits like health insurance and retirement. He complained that other employees had been offered promotions without the jobs being posted, which he saw as unfair.

Edmiston testified that he had never applied for any full-time positions, and she said that when the department answered his concerns he simply found new things to complain about.

Edmiston and board member Kasey Mateosky asserted at trial that part-time and seasonal workers are not eligible for benefits, per the Weed and Pest employee handbook. They said that was why he was ineligible for benefits, and discrimination didn’t play a role.

However, Spatafore, with information given to him by Iwaseczko, pointed to several employees who were given benefits and didn’t fit the handbook’s eligibility requirements. For example, two other employees received health benefits when they were not full-time employees, though they later transitioned into full-time work.

He said that because some employees were given benefits even though they were not full-time workers and he didn’t, he experienced “disparate treatment.”

“I spoke to [Marta] and told her believed I was being discriminated against for health benefits,” he testified. “I felt it was connected to the discrimination from 2012.”

If he was indeed discriminated against for his heritage, it would be a violation of Section 1557 of the Affordable Care Act, which “prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities,” just as Title IX law prevents discrimination in education.

At the trial, Edmiston said Spatafore’s job performance deteriorated concurrent with his raising complaints. In his end-of-season evaluation he scored deficiently in several categories, but his overall score still would have qualified him for a raise. He stayed in employee housing following the 2017 season, even as the Weed and Pest board discussed evicting him at both its September and October board meetings because of the evaluation.

“We decided [eviction] would create a hardship for Thomas,” Mateosky testified.

Spatafore continued his investigation in the months he remained in employee housing. In providing the information about other employees’ benefits that she felt corroborated his concerns, Iwaseczko forwarded him several internal emails — in violation of department policy — setting in motion her own ouster.

Iwaseczko had worked at Weed and Pest since 2005 as the assistant supervisor overseeing the mosquito abatement program. She hired seasonal workers and helped Edmiston implement department-level policies, including the May 2017 housing survey that resulted in Spatafore’s move.

But she had a secret: She and Spatafore were romantically involved, a fact Edmiston said Iwaseczko hid from her. In his cross-examination of Iwaseczko, Emery painted the relationship as something that kept her from doing her job well.

When the housing survey came up, Iwaseczko said she elected to involve the seasonal workers to give the power to those most affected. Emery and Edmiston contested that, saying her relationship precluded her from making the choice because it would have affected Spatafore, so she abdicated her duties.

Edmiston said she didn’t become aware of their relationship until the spring of 2017 after the couple took a trip to Europe. Though Weed and Pest’s handbook did not strictly prohibit workplace romance, Edmiston said dating a seasonal worker, even though he was not Iwaseczko’s subordinate, created a conflict of interest.

Emery alluded that the relationship precipitated the actions that led to her ouster, causing her to act as a “paramour,” not a supervisor. The main action was sending Spatafore the emails containing information about other employees.

Renner, the complainants’ lawyer, pointed to one employee in particular as evidence of discrimination.

The employee, a white man, moved from a full-time position to part time. Edmiston allowed him to remain on the agency’s health insurance for the remainder of the year, even though he didn’t fit the handbook’s health insurance requirements. She said she deviated from standard practice because he asked, and she believed she had the leeway to make exceptions for employees who asked.

“Thomas never asked for health benefits,” she testified. The employee “was being considered because he asked for them. Thomas was not part of the thought process at all.”

When it became apparent that department emails had been sent to outside accounts, Edmiston asked her employees, including Iwaseczko and Mark Daluge, the weed program assistant supervisor, for their emails. That investigation uncovered that Iwaseczko had sent the emails to Spatafore.

Edmiston and board member Mary Cernicek called a meeting with Iwaseczko to ask her about violating department policy.

“At first she claimed to know nothing about the emails,” Edmiston said. “Then she asked to record the meeting.”

Three days later, on Dec. 7, 2017, the Weed and Pest board voted to offer her a severance package, concluding that her conduct had violated the department’s guidelines and she had tried to hide it. She never accepted the offer, leading the board to terminate her on Dec. 10, 2017.

Renner has been a whistleblower lawyer for years, including at the National Whistleblowers Center. He even brought and settled a case against the center when it laid him off after he attempted to unionize its workers. He portrayed the Weed and Pest firings as not the result of poor performance or violation of procedure.

Instead, he posited, they were retaliation for delving into the agency’s hiring and employment practices. He pointed out that Spatafore was evicted three months after his season ended. The board discussed evicting him based on the performance review twice, electing to allow him to stay because it would create “hardship” for him, as Mateosky testified.

Following the October board meeting, it became apparent Spatafore had been complaining to agencies like the Wyoming Retirement System and calling lawyers regarding taking action against Weed and Pest. A lawyer who is a friend of Mateosky called to tell him one of his seasonal employees was looking for a lawyer.

At the next meeting, on Nov. 10, 2017, the board voted to evict Spatafore.

Section 1558 of the Affordable Care Act extends whistleblower protections laid out in the Fair Labor Standards Act of 1938 to the health care field. It states that employees who “reasonably believe” their employers are engaging in discriminatory behavior can investigate them or provide information to regulatory agencies.

In questioning Edmiston and Mateosky, Renner attempted to show that the performance review was not the sole reason for the eviction.

“You had known about that end-of-season evaluation in the September meeting and the October meeting,” he asked Mateosky. “What changed between September and November?”

“A few board members may have changed their minds,” Mateosky said. “I was personally in favor” of evicting Spatafore in September.

However, Mateosky also admitted in his deposition that the potential for litigation was on board members’ minds, though he insisted it played no part in the firings.

“I think we began to have concerns that we were gonna be set up for possibly a different litigation opportunity,” he said, “and that by having somebody that apparently was going to take us to court, it was just an unhealthy work environment.”

In regard to Iwaseczko’s firing, both sides agreed it was because she had sent emails outside the district to herself and then Spatafore. But Renner argued that Section 1558 protected her showing Spatafore the information because she believed Weed and Pest was engaged in “disparate treatment” of its employees.

The decision rests with Judge Henley, who asked the lawyers to submit written closing statements. That could take several weeks because he said they could wait until after they receive the transcript of the trial. He then will take several more weeks to consider the evidence, so a decision isn’t imminent.

In the interim Weed and Pest is in the full swing of its summer season, and Iwaseczko and Spatafore are at their new jobs, at which they both testified they are paid significantly less than they were at Weed and Pest. Both said they wanted reinstatement at their previous jobs. That outcome, Emery said in an interview with the News&Guide, was the preferred resolution laid out in the Affordable Care Act should Judge Henley rule in the complainants’ favor, and one Weed and Pest would comply with should that be the ruling.

Iwaseczko and Spatafore said that reinstatement would alleviate the financial and social hardships created by their terminations.

“I very much identify with my job.” Iwaseczko said. “I loved my job. There’s a stigma associated with termination, and I really didn’t want to disparage the district. I really avoided talking about this with people.

“I cut off communication with friends because of this.”


Powered by ROAR Online Publication Software from Lions Light Corporation
© Copyright 2024

Rendered 05/18/2024 03:45