Jaroslaw “Jerry” Waszczuk fled communist Poland and arrived in the United States as an asylum seeker who was granted political asylum.
Mr. Waszczuk, from 1999 to 2010, was continuously employed by UC Davis in the Department of Plant Operations and Maintenance. He consistently received glowing evaluations and outstanding performance marks.
His duties were that he “was solely responsible, on the day shift” for “operating Metasys©, a software product that used an alarm or warning system to detect, identify and locate malfunctioning, failed, and/or failing machinery and equipment, such as air conditioning units, beating units, refrigeration units, freezer units, elevators, generators, and a host of other machines necessary and vital to the health, safety, and welfare of patients, staff, and the public at large who have occasion to present at a teaching hospital, regional trauma center, and research facility such as UC DAVIS Medical Center.”
In March 2011, he notified his supervisor “in writing, of various acts and omissions of misconduct within the HVAC Plumbing Shop.”
As his attorney, Douglas Stein, writes, “Within days or weeks, co-workers, plaintiff once thought were his friends, turned against him. By August, 2011 plaintiff had to take 30-days leave to decrease the stress and anxiety he felt from his co-workers, who were and still are making false statements about the plaintiff. UC Davis did not intend for plaintiff to ever return to work. UC DAVIS kept plaintiff away from the workplace for 1.5 years, until they fired him, effective December 7, 2013.”
This is no isolated incident. The Vanguard has covered the case of Janet Keyzer who was dismissed from UC Davis after blowing the whistle on research that violated the security and privacy rights of San Quentin inmates that took place during a University research project. That case is set to go to trial on Monday, June 30.
There is also Amy Block Joy, who has since told her story in a book, who became a whistleblower in August of 2006, and was asked to be silent while the investigation was taking place. In the words in the forward, she wrote, “Whistleblower is my personal account of the discovery and reporting of crime.” She added, “I wrote this book to educate future whistleblowers, especially those in university settings. My advice: persist, be vigilant, and know that an individual can make a difference.” The Vanguard originally interviewed her in 2010.
Mr. Stein writes that for the past 10 years, UC Davis and the UC Davis Health System have “created, encouraged, and maintained a climate and culture in which managers, supervisors, human resource personnel, investigators, executive directors, police officers, and senior officials consistently, invariably, repeatedly, and unlawfully retaliate, harass, abuse, and discriminate against staff who report misconduct, regardless of the nature of the reported misconduct or to whom the staff member disclosed the misconduct.”
He adds, “UC DAVIS unabashedly and routinely fabricate investigation reports knowing the reports will be used as evidence, routinely identify witnesses as being interviewed when no such interview took place, routinely shred the investigation file and destroy evidence leaving only self-serving reports of investigation, regularly fabricate reasons tor adverse employment actions, rely on witnesses known to lack credibility while they destroy documentary evidence that impeaches the false witnesses, and routinely manipulate the content, crux, and conclusions of investigations to find whistleblowers guilty of fault, wrongdoing, and/or improper conduct that justifies adverse employment actions.”
He concludes, “This case demonstrates UC DAVIS, by and through its managers, supervisors, and more senior officials, knowingly violate the mandate of their own procedures and intentionally deprive employees of due process.”
Mr. Waszczuk was hired in 1999 but, by 2000, his attorney describes “a climate and culture” that existed in the medical center as “a hostile work environment” with incidents of bullying, sustained abuse, discrimination and retaliation for whistleblowing.”
Mr. Stein alleges that, as “a direct consequence” for Mr. Waszczuk helping a co-employee, he was suspended for three days from his position as a plant operator at the power plant. As a result, UC Davis would move his work location to the HVAC Plumbing Shop.
Mr. Waszczuk would file a grievance in 2007. “After 2-days of arbitration in 2009, the arbitrator issued a decision that rejected as unsubstantiated the employer’s decision to move plaintiffs place of work. (Waszczuk) expressed to his employer his desire to return to work at the Power Plant.”
However, instead of being returned to the power plant, UC Davis made an offer, which Mr. Waszczuk accepted, where UC Davis would pay him $8500 despite the fact that they argued that they did not owe him for lost wages. Mr. Waszczuk also received a raise to $70,000 per year.
Mr. Stein noted that if the HVAC systems and other machinery were allowed to operate with malfunctions or other problems, there was a risk of patient death or serious injury.
Mr. Stein believes that when Mr. Waszczuk arrived as an “exempt” employee, the two existing employees “became obviously upset, angry, and/or outraged” when Mr. Waszczuk arrived “as the third exempt employee.” He documents actual complaints filed by one of the other employees.
There was a memo dated September 20, 2010, signed by 11 Central Plant Operators that indicated “we reached a point where we can no longer monitor these systems…” The memo concluded, “We cannot troubleshoot and respond to phone calls and Metasys alarms. It is a miracle that nothing tragic has happened yet.”
Despite this strong wording, nothing was done to address the issue other than give the employees an hourly raise that “would not impact the claimed ‘inability’ of the plant operators to monitor the Metasys system.” Mr. Waszczuk “expressed that the employer left a serious safety concern unaddressed. (Mr. Waszczuk) rightly raised the lack of logic in the contents of the Petition and the absurd response from the employer.”
Mr. Waszczuk’s “communication also expressed the actual risk of harm identified by the plant operators, and the seemingly unlawful way the plant operators used the threat to secure a raise, especially when the raise would do nothing to fix the hazard.”
Mr. Stein alleges that the letter from Mr. Waszczuk “sparked retaliation. Defendants, and each of them, targeted plaintiff with acts of intimidation, stalking, and sabotage.”
The suit lays out a long list of complaints as the result of this action and eventually he attempts to disclose “the misconduct, safety problems, harassment, and abuse to Human Resources.” However, “Human Resources did not and has never responded to plaintiff with any help whatsoever.”
Instead, Human Resources referred him to the very people that were the problem in the first place.
“Between May 2011 and August 1, 2011, Plaintiff, on numerous occasions, in addition to the previously plead items of disclosure, brought the following to the attention of managers, officers, and executives higher up the chain as time passed seemingly without any response or action.”
His working conditions became so intolerable and stressful that in July 2011 his physician placed Mr. Waszczuk “on stress-related sick leave for one month, which ended on August 31, 2011.”
He was then on investigative leave from September 1, 2011, to September 23, 2011, even though Mr. Stein documents that the investigation was already completed by September 11.
He was placed on medical leave again from September 23 to January 5, 2012, “with the opinion that if the stress from plaintiffs’ supervisors was gone, plaintiff could return to work.”
However, Charles Witcher, his supervisor, argued that he refused to come to be interviewed on December 5, 2011 and “unilaterally took plaintiff off medical leave and placed him on administrative leave without pay effective December 22, 2011.”
Mr. Stein notes he did not “have an obligation to come to an interview while on medical leave.” He was placed on leave with pay until May 13, 2011 and it is noted that the letter was sent “knowing plaintiff was suffering from emotional distress.”
In February 2012, Mr. Waszczuk agreed to an informal resolution of the matter. However, that individual in HR was removed from their position and, by April 2012, a Notice of Intent to Suspend was issued for “continued inappropriate behavior in the workplace.”
On May 31, 2012, Mr. Witcher handed plaintiff an unexpected Notice of Investigatory Leave when plaintiff showed up to return to work. “This time Mr. Witcher referred to plaintiffs’ reaction to the suspension, that plaintiff sent emails.”
“From May 31, 2012 through December 7, 2012, the employer undertook minimal investigation. In that time, essentially two investigation reports were published and both did not have any investigation past June 2012, and at that the investigation involved only a few witnesses.”
On March 7, 2012, Mr. Waszczuk filed a whistleblower retaliation complaint. On September 12, 2013, he was notified that the time for them to issue a decision was extended to November 30, 2013. As of the filing of the complaint last week, UC Davis still has not issued a decision, despite being required to do so within 120 days unless they provide written notice of an extension.
—David M. Greenwald reporting