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Employment defense lawyers sometimes admit feeling a distinct disadvantage before a jury. This stems from the fact that any employers on a jury are likely to be outnumbered by employees, who are considered more sympathetic to a plaintiff’s tale of workplace injustice. In the case of secretary Peggy Farrior, this bias pattern was first affirmed, then soundly refuted. In the decade it took for Farrior’s case to play out — including two trials — she turned from victim to culprit. A federal jury in 1998 listened to Farrior, a Waterford, Conn., school board secretary and self-proclaimed whistleblower, who claimed she was harassed at work because she reported to the board alleged irregularities in purchasing and accounting. The first jury was so convinced of the injustice portrayed at trial by Farrior’s lawyer, New Haven’s Joseph D. Garrison, that it awarded her $442,534 for lost wages and $118,940 for emotional harm. Defense lawyer Michael P. McKeon, of Hartford’s Sullivan, Schoen, Campane & Connon admits he was shocked. He did not expect the jury to buy Farrior’s story of being a public-spirited employee exercising her First Amendment right to speak up about misuse of public funds. To McKeon it paled next to the school board’s version: that it dismissed Farrior for being insubordinate and disruptive on the job. “In our view, she was fired for behavior, not speech,” said McKeon. Farrior was a high-ranking secretary to Edmund Clark, the board’s business manager, and had a specially negotiated employment agreement separate from the teachers’ union contract. In 1989 and 1990, Clark purchased $100,000 worth of computer equipment, and then had to spend nearly $45,000 to correct the system’s flaws. One of Farrior’s complaints to school board members was that Clark failed to obtain proper approvals for the remedial work on the computer system. She also claimed Waterford billed surrounding districts for the blind students it educated, but did not share subsequent state reimbursement of those costs. “That’s what we called double billing,” said Garrison in an interview. In his charge to the jury in 1998, U.S. District Judge Alvin W. Thompson in Hartford explained that, in order to win under the federal civil rights law, 42 U.S.C. 1983, Farrior had to first show that negative comments about her job performance came as retaliation for her exercise of free speech. Then she had to show that the school board actually approved her supervisor’s retaliation. Over four pages of interrogatories, the jury found for Farrior at every turn. Near the end of their deliberations, they made a telling request — to take another look at the chart detailing Farrior’s damages. At that point — as in “The Verdict” when the jurors asked whether they could award more than the damages asked — the plaintiffs could tell they’d all but won. The sweetness of victory soon disappeared when Thompson, in 1999, threw out the verdict as against the weight of the evidence, giving Waterford a new trial. In his opinion, Thompson highlighted Farrior’s most intemperate behavior, like the time when she received a contract proposal not to her liking, and within earshot of her boss called him a “f-king bastard” and tore up the document. She then took the day off — which stretched on to two weeks. When Clark called her about getting a doctor’s note, Farrior testified, “I told him that if he didn’t get off my back I was going to call his wife and tell her what kind of person he was.” With the prospect of a new trial looming, the school board and Farrior made some efforts to settle. Might a second jury award even more? Farrior’s opening request was $750,000, which got down to a low of $450,000 before trial. On his second presentation, McKeon said he began with a hard-knocks understanding that the jury might side with Farrior. He took much more time examining her on the stand, and he brought out one key turn of events not emphasized in the first trial. It was after the “get off my back” call that Farrior called school board member Larry Levine to report her concern that her job might be in jeopardy and blow the whistle on accounting procedures in her boss’s office. “It began to look like the cart was in front of the horse,” said McKeon. Although Farrior’s complaint was that she was harassed at work for being a whistleblower, it appeared she did not sound off, with her call to Levine, until her job was on the line for other reasons, McKeon noted in an interview. At trial, associate Sara Robinson assisted him. The second trial took nine days in early December before U.S. District Judge Ellen Bree Burns. The jury was composed primarily of office employees and blue-collar workers, McKeon said. When the panel went into deliberations, it only requested one piece of evidence to review. Again, it was portentous — Farrior’s testimony about her call to Levine. For this jury, the plaintiff wasn’t a public-spirited whistleblower entitled to years of back pay and thousands in stress damages. Instead, it returned a defense verdict, so Farrior got nothing. Calls to her lawyer, Garrison, were not returned by press time.

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