Tales From The Travels

I had been preparing for my hearing before the Department of Labor for quite a while, but really got into it beginning November 2005. After eighteen months, the hearing was finally scheduled for January 2006. There had been motions and telephone conferences and all sorts of legal wrangling, but the hearing was finally coming. My goal in the hearing was to get as much evidence into the record as I could. I already knew the judge was not going to rule in my favor, no matter what evidence I presented. The best I could hope for was to make it as uncomfortable as possible for the judge and the bad guys.

The reason I was so sure the judge was biased was because of the way he interfered with my discovery. Since I was representing myself, I was authorized to write subpoenas to gather evidence. The bad guys refused to honor my subpoenas and would not give me the evidence I requested. When I took this to the judge, he at first refused to do anything. After several requests from me, he instructed them to produce the emails I requested. This was a verbal instruction and he never made it an order. I also had requested the notes by the EEOC officer on campus that had investigated my grievances. This person was not protected from discovery in any way, but they wouldn’t produce her notes. The judge said he would consider my request, but never did order them to produce the material. He also refused to approve my list of witnesses I wanted to call and would not give me permission to subpoena anyone to appear at the hearing. Finally, on the first morning of the hearing, he hand delivered to me his permission for me to subpoena witnesses. Of course, by this time it was impossible to do so. It would take time to issue and serve the subpoenas, and I was sitting in the hearing all day. So, I went into the hearing with my hands tied and my eyes wide open.

I was still searching for a lawyer, but things were getting increasingly dim. The Latin phrase for representing yourself is ‘pro se,’ which has two meanings. The first is straightforward and means ‘by yourself.’ The second is ‘you lose.’ No kidding, look it up. I was able to find that pretty funny, even in the predicament I was in.

So, I was very motivated to find a lawyer. I had finally found one that said he wasn’t afraid of a long fight against the university and he reviewed my case and evidence with me. Up to now, every lawyer that had reviewed my case with me told me I had a good case, but I needed to find myself a lawyer. This guy, though, told me I had a very good case but wanted to know why I would want a lawyer. He told me I was doing a better job than any lawyer ever would. This was flattering, but it really wasn’t what I wanted to hear. I REALLY wanted to turn all of this over to a lawyer and was willing to pay. I talked to two other lawyers after that and got almost the exact same answer. I found myself still stuck representing myself.

The hearing was held over two days at the University of South Dakota in January, 2006. The judge allowed them to beat me up as much as they pleased. I would object to things as being irrelevant or prejudicial to the case and he would say he wanted to hear it anyway. Then, he would regularly interrupt my questioning and interfere with my case, some of which was to be expected. I was a layman and not formally trained in civil procedures, but I had done my homework and the hearings were specifically established for people to represent themselves. I didn’t get upset with the judge’s behavior because I just figured it gave me grounds for appeal. I just kept reminding myself that what I wanted to do was to get the evidence in the record and set myself up for appeal.

One interesting thing was that the bad guys had changed their tactic. They no longer claimed I was fired for my email; they were now claiming I was fired for a different email they claimed was offensive. There were several problems with their case, though. This email had been written fifteen months before I was fired, I had never been counseled for it, and it was actually an informal grievance allowed and encouraged by the collective bargaining agreement. It was an email I had sent pointing out several practices by Keller that I found to be offensive and insulting and was asking her to stop. They claimed this was threatening and the reason I was fired and built their entire case around it.

Obviously, they had changed their tactics because of the November hearing where I pounded them about censoring me at home. But, this was actually a good thing. The U.S. Supreme Court ruled that when employers change their story it is evidence of discrimination. Retaliation is defined as a form of discrimination and all of those laws apply. Justice Sandra Day O’Conner wrote a very elegant decision on the matter. She said that no one knows the mind of the employer better than they do, so the fact that they keep changing their story is evidence they have something to hide and can be used against them.

By the way, I found Justice O’Conner’s opinions to be superbly written. If you are a student of the law I cannot recommend highly enough that you study her opinions. In the world of legal opinions, her’s are a true pleasure to read. They are very elegant and straight to the point. I really miss her on the court.

The hearing lasted a day and half with the judge cutting me off short so he could ‘hit the road.’ He disallowed me to call Abbott as a witness because Abbott was out of town and wouldn’t be back before lunch on the second day and the judge didn’t want to wait that long. This was an important witness because I had wanted to introduce an email that he had sent.

After Keller and Heaton had threatened me with false charges of sexual harassment I was so concerned that I started calling lawyers to ask about this. I was advised to report it to the state attorney general’s office, which I did. I called up and had a long conversation with this guy who essentially blew me off. He expressed the typical platitudes, but ultimately, they were not going to take any action on it. What I found out later, when I got hold of their emails, is that this guy had then called up Abbott and told him that one his faculty members was calling about this issue. Abbott then informed the VP for Academic Affairs, my dean, Heaton, Keller, and the chief of the campus public service. I researched this for a long time before I finally found the law that was broken. They violated some sections of the US Code that I was able to identify and have made a complaint to the U.S. Department of Justice about it. I don’t know what they will eventually do, but if I’m right, and the statute of limitations hasn’t expired, they could be punished with jail time. In any event, it was evidence that the real reason I was fired was because of retaliation for my original complaint against Keller. But, the judge wouldn’t allow me to introduce it.

With my hands tied, I still managed to present my case. For some reason, they had Keller and Heaton there to testify. The reason I was surprised by this is because they didn’t have to prove anything. The entire burden of proof was on me. Since I couldn’t call any witnesses, I would have been very challenged to get any evidence into the record. But, with Keller and Heaton sitting there in the room they couldn’t refuse to testify when I called them. To say they were hostile witnesses would be an understatement, but I was still able to force them to testify to almost everything I wanted, corroborating nearly all of my own testimony. Another big break occurred when the guy that had been the VP for Academic Affairs when I was first notified I was going to be non-renewed agreed to testify when I asked him. While still a hostile witness, he was much more cooperative than Heaton and Keller and was very truthful in his testimony. Also, Heaton and Keller plainly lied on the witness stand and just repeated what the other said. The former VP was not in the room when this was happening and provided testimony that conflicted with Heaton and Keller on key points and corroborated mine. This was a big help to me.

But, something remarkable happened on the morning of the second day. I knew we would have to make closing arguments so I stayed up late the night before preparing mine. When we arrived on the morning of the second day the judge announced that we could make oral arguments or written ones and he was going to leave the decision to us.

Written ones?!!! I fought hard not to show my desire to do the written argument. Frieberg, for all of his observed lack of intelligence, was an experienced trial lawyer and was bound to rip me to pieces with oral arguments. The judge asked Frieberg which he would prefer. Unbelievably, Frieberg hesitated! I couldn’t believe my luck. He was just sitting there without responding! So, I jumped in and said that I would prefer oral arguments and was prepared to give mine. As predictable as clockwork, Frieberg said that he would prefer written ones and the judge agreed. It took all of my self-control to hide my glee! I had played them like an instrument. As it turned out, this was a massive mistake on their part, maybe the biggest they had made since they started the fight.

The judge gave us one month to submit our arguments, then two weeks to submit one rebuttal. This gave me plenty of time to research everything that had happened and get all of my arguments in logical order. My initial argument was 30 pages long, emphasized all of the evidence I wanted to, and had over 40 citations to support my case. Their argument was about 15 pages long, and was mostly concerned with stating the case. They had only about six or seven pages of legal arguments, which were very transparent and what I had expected from them. This was ok, though. The burden of proof was on me and they didn’t have to prove their case with their argument.

However, I had made a prima facie case with my argument and they were now bound to refute it. Failing that, the judge was legally bound to find in my favor. I was expecting a very strong rebuttal argument, but it didn’t come. Their rebuttal was even weaker than their original argument. Mine, on the other hand, was another ten pages with several citations showing why their original argument wasn’t valid. I had really researched the issues involved and had my ducks in a row.

I was satisfied with my work. Now, it was just a waiting game. Our final arguments were due at the beginning of March and the state law gave the judge 30 days to render a decision. I was expecting a decision no later that then the middle of April (six weeks), but April ended without one. Then, the months started to pass with no decision. I thought the judge was just working to find a way to rule against me and needed the time to find the necessary citations. But, after a while, I realized that he couldn’t rule against me, and he wasn’t going to rule for me, so he just wasn’t going to make a ruling. He was exercising a pocket veto. As long as the case sat on his desk, I was powerless to do anything. I couldn’t appeal, since there was no ruling, and I couldn’t proceed with any other complaints because I hadn’t exhausted my legal remedies. I spoke with some lawyers about this and everyone I talked to agreed with me.

I made an informal request at the end of July, just to remind him that we were waiting. I didn’t really expect an answer, but hoped that he would decide he had to do something. When there was no decision by early September I wrote a formal letter asking for a timetable. When he didn’t reply, I wrote a letter to his boss, asking for assistance. I had expected I would have to eventually go to court to get an order, but the judge responded after this and said he would make a decision soon. When nothing had come a few weeks later, I wrote his boss’ boss, the state Secretary of Labor. Finally, he issued his decision at the end of October, seven months after final arguments were submitted.

As expected, he ruled against me on all points. But, what I didn’t expect was how poorly written the decision had been. It was just a cut and paste job from the bad guys arguments and had no logical consistency. It was also vehement in his distain for me, making numerous personal attacks. The grounds for appeal were numerous and I filed my appeal right away. You can read his opinion on-line, if you’re interested. Do a search on ‘USD Bingner’ and it should come up right away. The judge’s name was Randy Bingner.

Now, I’m waiting for my hearing before the circuit court judge on July 19th in Vermillion. Will I win? Probably not. It is my belief the judge already has his decision written and any arguments presented to him at the hearing won’t make any difference to him. That’s the way it works in South Dakota. But, that’s ok. I’m aiming for the appeal. I just need to make it as difficult as possible for the judge and the bad guys so that I have grounds for appeal and I’ve already achieved that. The evidence, legal arguments, and legal evidence in my favor are so substantial that any adverse ruling will automatically have grounds for appeal built in.

After the circuit court is the state supreme court. After that is the federal appeals court and I am totally convinced that I will win once I get in the federal courts, although I may have to go all the way to the U.S. Supreme Court. The issues involved in my case have already been decided on, and they have been decided in my favor. It’s only a matter of time before I win.

I’ll let you know how it goes.

When I arrived in New London I was full of a terrible anger. And, I was tired. I was ready to move on with my life and leave everything behind me. But, I knew that the bad guys would come after me and I didn’t have the kind of money it would take to let them win.

The message had been made very clear that they were gunning for me. While I was in Vermillion I would receive all sorts of threats. People I didn’t know, and sometimes people I did know, would tell me that things were going to happen to me. I was told my house would be burned down. I was warned about someone putting stolen goods or drugs in my car and notifying the police. And, it was not my imagination that there seemed to be a police cruiser everywhere I went. I later saw the emails where Abbott said he would have the city police keep an eye on me. I remember the night a guy I had never seen before came up to me in a bar and warned me that my life was in danger. My favorite, though, was when this stranger told me Abbot was going to have Keller killed and frame me for the murder. That way, he would not only get rid of me, but get rid of a troublesome mistress at the same time. The problem was that you not only had to believe that Abbot would engage in contract murder, but that Keller was also his mistress!

Abbot, you see, wasn’t just the president of the university; he was also one of the richest and most powerful men in South Dakota. He had been a lawyer when a client of his died and left him a cable company, instantly making him very wealthy. He had been in the state legislature and was the Democratic candidate for governor in 2002. He lost that election in a landslide to Republican Mike Rounds, but he still had the ear of nearly every policy maker in the state. And, his reputation for vindictiveness is legendary throughout the state. I was warned repeatedly and from people all over the state that he would get me, no matter how long it took. He would find a way to get me. While I didn’t believe in the threats against my life, I certainly believe that Abbott will do everything he can to punish me for standing up to him and I believe he has the resources to do it.

I’m not someone that scares easily. I’ve fought too many fights and faced long odds too many times to be a shrinking violet. I knew the score when I started the fight, but the relentless pounding was wearing me down. Getting out of town was the best thing for me. It gave me a chance to regroup and regain my strength. It was difficult, especially at first, and I engaged in some pretty heavy drinking during this period. I guess it was all part of the healing process.

I didn’t have any choice but to continue the fight. It was their very vindictiveness that kept me going. If they had been willing to let me slip away I would’ve. I was pretty much beaten at this point and was ready to move on with my life. Its not that things had gone worse than I had thought. The problem is that things had gone exactly as bad as I had thought. I was hoping that I would catch a lucky break somewhere, but it didn’t seem to be happening. Actually, without knowing it at the time, I now realize I had done just that when I moved to New London. It gave me a safe haven that I could operate from.

So, I had to find the strength to keep going and I did. I allowed it all to sit for a couple of months while I recuperated and regained some willingness to fight. Then I dug in and the results were well worth it. Between October 2005 and March 2006 I researched the legal issues of my case even more extensively than I had before and I found all of the evidence and all of the citations I needed.

The fundamental issue here went beyond their vindictiveness and the fact that the law was on my side, however. The real issue is that I had read The Art of War, and they hadn’t. I went back to my roots in Chinese philosophy once again and found the battle strategy I needed. I knew I was not going to win any of my court fights and I was not going to win the Department of Labor hearing. This is isn’t because I didn’t have a case; it was because the game was rigged against me. In fact, the more I learned, the more I knew I had a sound case. I also knew they viewed me as completely incompetent, something I was glad about because they wouldn’t take me seriously and I would be afforded opportunities.

A good example of this occurred in November 2005. I had to go back to Vermillion for a court hearing on a civil suit I had filed against the university. The principle issue was that they had violated my constitutional rights when they fired me for my email. In this particular case they were represented by a woman by the name of Susan Sabers. Unlike Frieberg, Sabers was an ethical lawyer, but she was so extremely arrogant in this hearing that it told me everything I needed to know. She didn’t even rise when addressing the judge. She sat at the table with her legs stretched out and crossed at the ankles, laughing away. She went on and on about how people that say insulting things about their boss at work can be fired for it. Then, I dropped the bomb and pointed out that I didn’t say it at work, I said it at home on my own time. They didn’t fire me for saying something at work, they fired me for saying something in the privacy of my own home!

Sabers then tried to recover by citing some court precedents, but she really did a bad job and misquoted them. I was very familiar with each case she cited and pointed out her errors. In her arrogance she had come to court completely unprepared. She so underestimated me that it wasn’t important to her to spend any time on the case. It was all a big joke to her. Then, when she realized she was getting creamed, she turned to the judge and said, ‘He hasn’t even cited any cases to support his position!’ I pulled out my notes and for the next fifteen minutes went through precedent after precedent that showed what they did was unconstitutional. It was so clear that I had trapped them that the adrenaline started flowing and my hands were shaking so hard I could barely read my notes. They were caught completely flatfooted! It was worth everything I had gone through to paste that arrogant woman and the bad guys that day.

The judge eventually ruled he didn’t have jurisdiction in the case while it was still being heard by the Department of Labor. But, it is all in the court record now. All of their arguments were now official and something I can use against them. And, I was to get great dividends from that hearing. The next big battle in the fight was to occur in January 2006 when I was to have a two-day hearing before the administrative law judge from the state Department of Labor. I knew I would lose it. I was mildly disappointed that I had to unveil my trap early at the Sabers hearing, and Frieberg was at that November hearing so I knew he was well aware of my argument, but I now knew that I had them against the wall. They had been doing a lot of talking and I was getting enough rope to hang them. I knew the only thing between me and winning my case was the judge. That was another fight I was willing to take on.

The tide had really turned in my favor.