Braille Monitor January 2006
Victory in the First Round of the Christine Boone Case
by Barbara Pierce
Those who read the December 2003 issue of the Braille Monitor will remember the in-depth report of Chris Boone’s firing from her position as director of the Pennsylvania Bureau of Blindness and Visual Services (BBVS). During her three years as director Boone had turned an historically troubled agency around, consumers were being served efficiently, staff morale was rising, and blind Pennsylvanians were beginning to hope that they could count on effective services.
Here is the op-ed statement that former Rehabilitation Services Administration Commissioner Dr. Fredric Schroeder prepared for publication in Pennsylvania newspapers. It summarizes the situation at the time.
Organized Blind of
for a Commission for the Blind
by Fredric Schroeder
On Thursday, September 4, the organized blind of Pennsylvania gathered to protest the unjustified and unceremonious firing of the director of the Bureau of Blindness and Visual Services. Consumers of Bureau services believe that her firing had nothing to do with her ability as a manager, are stunned at the dismissal of such an effective leader, and now wonder why.
For seven years, beginning in 1994, I served as the U.S. commissioner of the Rehabilitation Services Administration. President Clinton appointed me to oversee the nation’s job training programs for people with all types of disabilities, including blindness. I administered a $2.5 billion budget, funding state and territorial programs, providing the training needed to enable blind people and others with disabilities to prepare for and obtain high-quality employment to live normal, productive lives.
Today blind people face an unemployment rate of over 70 percent nationally. Blind people in Pennsylvania have long suffered under a sluggish, bureaucratic rehabilitation program, making a bleak national situation even worse for blind people in the Commonwealth. Blind people cheered when Christine Boone was named director of the Bureau of Blindness and Visual Services. Consumers knew she brought to the job an impressive résumé of professional accomplishments and authority as a blind person who has herself met the challenges facing the Bureau’s clients.
While she was director of the Bureau of Blindness and Visual Services, Christine Boone built credibility and strong relationships with the blind of the state. In three years she dramatically increased the number of blind people who secured employment annually, established strong ties with the blind community, and created an environment of trust. She developed innovative staff training techniques for Bureau employees, raised staff morale, and fostered commitment to helping blind people find good jobs. Her record speaks for itself. It is one of accomplishment, integrity, and commitment to the blind of Pennsylvania.
As the facts unfolded, the firing emerged as petty jealousy exhibited by ineffective, insecure bureaucrats. Steve Nasuti, executive director of the Office of Vocational Rehabilitation (OVR), was threatened by Boone’s effectiveness; threatened by the unprecedented support she enjoyed from staff, blind consumers, and the community at large; and threatened by having a blind member of his executive team know more, do more, and have more respect than he did. He suggested that Boone was too close to her constituents to be objective. Why? Because she was blind! This is discrimination. It is like the suggestion that a previously battered woman would be unsuited to direct a battered women’s shelter.
So what do the blind of Pennsylvania believe is needed? Boone must be immediately exonerated and reinstated. But that will solve only one problem within an ineffective structure. To solve the overall problem of removing employment barriers for blind Pennsylvanians, a permanent reform of blind services in the Commonwealth is required. Such a reform is available.
According to data collected by the U.S. Department of Education, states with separate commissions for the blind outperform states that bury such programs in large umbrella agencies. The effectiveness of separate commissions as job preparedness agencies is not hard to understand. Separate commissions for the blind have a single focus. They have experience and expertise and know the most effective ways of preparing blind people for high-quality employment. They are responsive to the clients they serve, and, most important, they cannot sidestep accountability by hiding within the larger bureaucracy.
The blind of Pennsylvania call on the governor and the legislature to reorganize blindness services to ensure that such an unwarranted attack never happens again. They want blindness services moved out from under the Department of Labor and Industry; out from under the Office of Vocational Rehabilitation; out from under the paternalistic, unimaginative, heavy-handed control of bureaucrats who think “good enough” is good enough for the blind. The blind of the state want services moved into a separate commission for the blind run by a board appointed by the governor with the consent of the Senate, made up of blind people and others who understand how best to prepare blind people for good jobs in their communities.
Separate programs for the
blind save money in spite of what state bureaucrats say because they develop
expertise and knowledge about how best to invest available funds. Other programs
waste tax money by poorly preparing blind people for jobs.
The end result is rapid and repeated loss of employment, causing the blind person to return to dependence on
tax-supported disability insurance and to undertake frequent, ineffectual retraining.
An example of just such a false economy is Nasuti’s proposal to cut tuition support for blind college students. This policy change will reduce college tuition support by more than half. Yet the completion of a postsecondary degree is well documented to be the most effective way to prepare blind people for high-quality, permanent employment. Nasuti would have you believe that the cuts are needed and harmless even though they will severely limit badly needed job opportunities for blind people.
One of the issues leading to Christine Boone’s dismissal was a complaint by Nasuti that the Bureau was taking too long to prepare blind people for employment. He believes that a newly blind person can be placed in a job with only three or four weeks of instruction in use of the white cane. This demonstrates his total lack of understanding of the needs of blind people and his callousness toward the challenges blind people face in seeking reentry into the workforce.
In 1994 the Pennsylvania legislature sent the governor a bill to create a separate program for the blind in the Commonwealth. Unfortunately the bill was never signed. This year the National Federation of the Blind of Pennsylvania will ask the legislature again to pass a bill establishing a commission for the blind. The blind need effective, specialized services that will move them out of poverty, out of dependence on public benefits, out of hopelessness, and into good jobs, which will enable them to live normal lives, support their families, and contribute to their communities.
Please support the blind
of the Commonwealth in their efforts to establish a separate commission for
the blind, not as an act of charity, but as a recognition that, given the right
kinds of services and support, blind people can work—and deserve the chance
to do so.
In October of 2003, after her firing in August, Boone filed a disability discrimination complaint with the Pennsylvania Human Relations Commission (the state equivalent of the Equal Employment Opportunity Commission), and then filed a lawsuit in state court in February of 2004 alleging a variety of claims, including an assertion that she had been deprived of her Constitutional right of due process when she was terminated without a fair hearing amid defamatory allegations by her employers that she had been insubordinate and incompetent. Boone’s legal team (Arch Stokes, lead attorney, and Anne-Marie Mizel of Shea, Stokes, and Carter) would have preferred that the case be heard in federal court, but their most compelling problem was to ensure that it could not be dismissed under what is known as “sovereign immunity,” the state’s right not to be sued.
The defense, Office of Vocational Rehabilitation Executive Director Stephen Nasuti and Pennsylvania Labor and Industry (L&I) Secretary Stephen Schmerin, as they were required to, referred the case to the Pennsylvania attorney general for review. That office moved to dismiss the case, but first they removed it to federal court. The L&I legal staff (Roger Caffier, L&I chief counsel, and Catherine Wojciechowski, L&I deputy chief counsel) called in Hamburg and Golden P.C., an expensive Philadelphia law firm. This was an interesting decision for Caffier and Wojciechowski to make, given their repeated characterization of the Boone suit as a nuisance case that they were not paying attention to.
As soon as it is clear that a case is going to trial, both sides begin filing interrogatories, demands for documents held by the other side and necessary for the lawyers to prepare for the depositions. Depositions are detailed interviews of each side’s witnesses by the attorneys from the other side. Court reporters take down every word, and the witnesses are under oath to tell the truth.
Because Boone was fired and virtually escorted from the building, she had had no time to gather any documents from her office computer or from her files. Catherine Wojciechowski was known to have spent two months examining the files in Boone’s computer, so Chris was particularly eager to have that information. The defendants were even more anxious to drag their feet. For example, Hamburg and Golden delivered 800 pages of requested documents from Steve Nasuti’s files just three days before that key deposition. The deposition had already been postponed once because the defense attorney was ill, so there was no good reason for the delay in delivering the documents. Boone’s legal team, principally Mizel, had to invest long hours to be ready for the deposition. The final box of documents was delivered to the plaintiff at 6:00 p.m. on Sunday, November 6, 2005, when the trial was to open the morning of November 7 in Federal District Court for the Middle District of Pennsylvania, Judge Sylvia Rambo presiding.
The case lasted eleven days. It went to the jury on November 21, and eight citizens of the state took a mere seven hours to decide the verdict. The plaintiff, Chris Boone, brought twenty-five witnesses; the defense brought seven, four of whom had given depositions. Six of those seven had their aural testimony impeached during cross examination. Mr. Stokes repeatedly pointed out discrepancies between the witness’s deposition and the courtroom testimony. The plaintiff’s witnesses, however, presented a different picture altogether. One called to request that he be permitted to testify; he had not been on the list. Another quietly requested a subpoena because of instructions not to assist the plaintiff. Several voluntarily brought useful documents with them. Needless to say, the attorneys were delighted with such cooperation. Perhaps the clearest way to lay out the issues in this case is to list Chris Boone’s witnesses and briefly summarize their testimony. Sometimes it may appear vague and unspecific. We have tried to protect some people who were courageous enough to come forward but who remain in real danger of retaliation by the agency. The last thing we wish to do is to increase the damage done by the secretary of Labor and Industry and his minions.
Deb Armbruster, Pittsburgh BBVS district manager, said that Boone was the best manager she had ever had. She is still depressed about what happened to Boone and the way the agency has deteriorated since the firing. A number of witnesses, Armbruster included, reported that until Steve Nasuti’s unexpected retirement in June of 2004, he was notorious for screaming and swearing at people in the office and for making denigrating remarks about employees with disabilities. When asked if she had ever heard Boone swear or raise her voice at people, Armbruster laughed in incredulity. When asked about what had been accomplished at BBVS since Boone’s departure, she said, “Nothing.”
Jim Antonacci, president of the National Federation of the Blind of Pennsylvania and retired BBVS employee, provided a careful and thoughtful history from the consumer point of view of what happened to blind Pennsylvanians during the three Boone years and since.
Wendy Buzzanco, BBVS rehabilitation supervisor in Erie, testified about the agency’s latest memo to rehabilitation counselors concerning merit scholarships. Chris Boone had argued strenuously with her supervisors and the legal staff that BBVS could not count merit scholarships, like those awarded by the NFB, as similar benefits that automatically reduce the amount of BBVS educational assistance by the amount of the scholarship. Boone produced documents from the Rehabilitation Services Administration (RSA) demonstrating that her position was RSA policy, but she was told that in Pennsylvania merit scholarships were a similar benefit, and Nasuti later accused Boone of insubordination in this matter. The new memo instructs counselors not to ask about merit scholarships and not to reduce BBVS assistance unless the customer volunteers the information. In that case the reduction can be made. Buzzanco’s testimony demonstrated that BBVS is retreating from Nasuti’s position and admitting that Boone’s understanding of RSA policy was more accurate.
Michele Bornman, a rehabilitation specialist supervisor in the central office who reviews contracts and does training, described a contract identical in all critical respects to one that Boone had signed the spring before she was fired. Boone had planned a statewide staff training conference. Attendees were to pay their own way, and meeting rooms were to be provided at no cost to BBVS. Two days before the meeting Nasuti canceled the event, claiming that Boone had no authority to sign the contract. The contract Bornman discussed was dated shortly after Boone had left and had been signed by a member of the clerical staff. The terms of the contract made it clear that only in case of cancellation would the state incur charges. Though he claimed that Boone had exceeded her authority and incurred exorbitant charges, it was actually Nasuti’s decision to cancel that cost Pennsylvania $6,000.
Joan Bruce, president of Pennsylvania’s Social Services Union, testified to the rise in employee morale during the Boone years and its decline since she left. She said that Boone had always been honest with the union, and they respected her. She described the way that Boone managed to get disabled employees the access technology and training they needed soon after she was hired.
Jim Bruce, rehabilitation counselor and union leader, said that Boone had been one of the three best agency directors he had worked with. He also testified that until the summer of 2003 BBVS had never actually deducted the amount of merit scholarships from education stipends. That summer Boone instructed counselors to begin making these deductions in accordance with the instructions she had been given. This statement pretty well disposed of defense claims of Boone’s insubordination in this matter.
Ed Butler, rehabilitation specialist with cerebral palsy, testified to Steve Nasuti’s disrespect for and poor treatment of employees with disabilities. He also testified that unlike Boone he had been granted a parking accommodation.
The Rev. Neal Carrigan, president of the Pennsylvania Association for the Blind, testified that a few months before Boone’s firing, Pennsylvania Governor Ed Rendell had publicly complimented her job performance. After her termination Carrigan got a negative response at the governor’s office when he called to support Boone.
Vito DeSantis, director of the New Jersey Commission for the Blind and Visually Impaired, reported what he knew about agency efforts to defame Boone’s character. He discussed with his human resources personnel the possibility of hiring Boone, but he was discouraged from doing so because of what was being said about her by Pennsylvania officials. He also attended a gathering of the Blinded Veterans Association, where he heard defamatory comments about Boone based on her conflicts with L&I officials.
Jonathan Fister, president of Keystone Blind Association, a member agency of the Pennsylvania Association for the Blind with more than twenty-five years of experience with the largest private comprehensive blindness rehabilitation facility in Pennsylvania, agreed with the Rev. Carrigan about Boone’s abilities. He applied for her job when she left and was passed over when the decision was made to appoint Pam Shaw.
Mark Frankel, acting assistant director of BBVS under Boone with thirty years of experience, knew more about what was going on with Nasuti and Schmerin than anyone else. He too was passed over when Pam Shaw was appointed as BBVS director and was never spoken to about becoming the acting director immediately following the firing. He was able to expose a number of untruths and inaccuracies in the defense’s case.
Allen Harris, director of the Iowa Department for the Blind, also testified that Boone’s professional reputation had been ruined by what happened in August of 2003. He said that the reputation of the Pennsylvania program had been improving while Boone was the director but that it had now eroded again.
Passle Helminski, blind artist and member of the Pennsylvania Rehabilitation Council, the body that advises OVR, described the September 2003 meeting of the Pennsylvania Board of Vocational Rehabilitation, the entity that oversees OVR. The Governor’s Advisory Committee for BBVS had requested that the OVR board discuss the Boone firing. Secretary Schmerin refused to allow it to do so. When Judy Jobes requested that the OVR board go into executive session to discuss this obvious personnel matter, Schmerin again refused.
Lynn Heitz, BBVS consumer and president of the Keystone Chapter of the NFB of Pennsylvania, related the abuse she received from the agency after she protested the Boone firing. She also explained that she had received NFB scholarships in 2002 and 2004 and is still fighting to reverse the BBVS decision to reduce the amount of her state assistance by the amount of the two awards.
Judy Jobes, first vice president of the NFB of Pennsylvania and a member of the Pennsylvania Board of Vocational Rehabilitation, told the story of the September OVR board meeting from her perspective and described the BBVS initiatives, particularly serving blind children, that had begun during the Boone administration and have now fallen apart.
George Leader, former governor of Pennsylvania, testified that he had called Stephen Schmerin to request a meeting for Chris Boone to discuss her firing with him in person. Schmerin refused.
Harold Longmore, a rehabilitation supervisor, testified to his conversation with Nasuti about the upcoming statewide staff training meeting that Nasuti later canceled, saying that Boone had planned it without his permission or knowledge.
Demielo Luckette, a bureau director when Boone was, testified that every bureau director had a parking place underground at the L&I headquarters building except Chris Boone, who repeatedly asked for one and was refused. She also reported that Nasuti had commented to her that Boone was not an effective supervisor because she could not watch facial expressions and alter her approach as a result. She said that Nasuti habitually screamed and swore at employees and specifically at her. She left her job soon after Boone was fired. She also said that Nasuti pigeonholed people based on their race or disability.
Jerry Manganelo, vendor in the state’s Business Enterprise Program, requested to testify about how much Boone had done for vendors and what had happened since her departure.
Fred Schroeder, former commissioner of the Rehabilitation Services Administration, at one time a state agency director and Boone’s former boss, testified that she was an excellent employee. He explained that as RSA commissioner he had codified the merit scholarship exemption in the Federal Code of Regulations. In other words, his testimony demonstrated clearly that Boone’s position had been correct and agency officials had been wrong.
Louise Fink-Smith, a lawyer for the Commonwealth of Pennsylvania and Boone’s carpool driver, testified that they had requested that Fink-Smith be issued an access card so that she could step inside the OVR building to let Boone know she had arrived. (At the time she did not carry a cell phone.) Nasuti refused, saying that to do so would be a security risk. Fink-Smith already possessed an access card that gave her entrance to every building in the complex except OVR, whose building was leased and therefore on a different system. In fact Fink-Smith returned to the stand to report that she had double-checked to be sure that her testimony that she did have access everywhere but OVR had been accurate and that, unlike Secretary Schmerin, who had testified that after 6:30 p.m. even he could not get access to buildings, her card worked late into the evening. She clearly had a high level of clearance and was generally recognized as trustworthy.
Since Fink-Smith was not
allowed to enter the building, Nasuti left Boone no choice but to wait outside
since she could not hear Fink-Smith’s voice or recognize her horn from inside.
The neighborhood was run down, and women did not feel safe standing alone in
the dark. At one point Boone had shingles, and cold air was very painful. This
made no difference to Nasuti; she could stand outside to wait for her ride.
In fact, since the end of the trial Boone has learned from a female security
guard who for a while stood with her while she was waiting for her ride that
Nasuti had threatened her with the loss of her job if she continued to
protect Boone at night.
Ed Staudt, owner of Virtual Vision Technology and an early Boone supporter, was a member of the Governor’s Advisory Committee for the Blind. He testified that the committee went to Secretary Schmerin to ask that he meet with Boone to hear her side of the dispute with Nasuti. The committee asked to record the meeting. Schmerin refused, saying that his staff would take notes and circulate them afterward. Needless to say, he never produced the minutes of the meeting, and he refused to meet with Boone. This is as good a place as any to mention that under oath Schmerin stated that he never allowed recording of his meetings since he might say something that he would not want anyone to know about.
Aside from Doug and Chris Boone, there you have the witness list, and the testimony they gave was powerful.
Previous to his appointment, Stephen Schmerin, a member of the governor of Pennsylvania’s cabinet, had supervised only two secretaries and one paralegal in his entire working career. Stephen Nasuti, the supervisor who believed that Chris Boone could not supervise successfully because she was blind, himself managed his subordinates by yelling, swearing, and stereotyping them. Perhaps he simply took it into his head to resign in June of 2004, but he was in the middle of building an opulent home when he made the decision. Luckily for him the monetary award made by the jury will be covered by the taxpayers of Pennsylvania.
Of course the defense has said that it will appeal the jury’s decision, but a seven-hour deliberation is remarkably short for a case like this, and the jury’s assessment was clear. It awarded Chris Boone triple the amount she asked for. The front pay it awarded was only $180,000 ($90,000 from each official), which is much less than she could actually have expected to earn in salary and pension during the years remaining in her working life, but if she is reinstated in the job as BBVS director, she must give up the front pay award, whereas, the award for emotional damages is hers unless the decision is overturned on appeal. Here are the questions the jury was asked to answer and its responses:
Case 1:04-cv-005 SHR Document
171 Filed 11/22/2005
IN THE UNITED STATES
FOR THE MIDDLE DISTRICT OF
CHRISTINE BOONE, Plaintiff
PENNSYLVANIA OFFICE OF
et al., Defendants
CIVIL NO. l:CV-04-0588
JUDGE SYLVIA H. RAMBO
FILED Harrisburg Nov. 22, 2005
Mary Dandrea, Clerk Deputy Clerk
Question No. 1
Did Plaintiff prove by
a preponderance of the evidence that her blindness was a determinative factor
that caused her dismissal from her job for any of the following Defendants?
Department of Labor & Industry Office of Vocational Rehabilitation Yes X No
Stephen Nasuti Yes X No
Stephen Schmerin Yes X No
Question No. 2
Did Plaintiff prove by
a preponderance of the evidence that the following persons aided or abetted
the discrimination against her?
Stephen Nasuti Yes X No
Stephen Schmerin Yes X No
Question No. 3
Did Plaintiff prove by
a preponderance of the evidence that the following persons made false, defamatory,
and stigmatizing statements to the public in the proximate time of her termination
that called into question Plaintiff’s good name, reputation, and professional
qualifications in the field of vocational rehabilitation?
Stephen Nasuti Yes X No
Stephen Schmerin Yes X No
Question No. 4
Did Plaintiff prove by a pre-ponderance of the evidence that the stigmatizing statements were a substantial factor that severely impaired her ability to obtain employment in her profession? Yes X No
Question No. 5
Did Plaintiff prove by a preponderance of the evidence that Defendants Nasuti and Schmerin had an agreement or understanding with each other that they would impose a stigma upon Plaintiff’s reputation and harm to her other employment opportunities in the field of vocational rehabilitation without giving her an opportunity to defend herself; that one or more of these participants in the agreement committed an act or acts to accomplish that objective; and that their conduct caused damage to Plaintiff? Yes X No
Question No. 6
If the Commonwealth Defendants had given Plaintiff a meaningful post-termination name clearing hearing, would Defendants have refused to reinstate Plaintiff in any event? Yes X No
Question No. 7
Has Plaintiff failed to mitigate her damages? Yes No X
Question No. 8 - Damages
Plaintiff may be awarded damages if she has proven by a preponderance of the evidence that she incurred damages as a proximate cause of Defendants’ conduct.
A. Back Pay Damages
Stephen Nasuti $ 0
Stephen Schmerin $ 0
B. Emotional Distress
Stephen Nasuti $1,500,000
Stephen Schmerin $1,500,000
C. Front Pay
Stephen Nasuti $90,000
Stephen Schmerin $90,000
Question No. 9
If you have answered “Yes” to Question No. 7 and have otherwise awarded damages to Plaintiff under any part of Question No. 8, by what amount do you find Plaintiff has failed to mitigate her damages? $ 0
Jury Foreperson signature
From the jury’s punitive damages form:
Did you find that any of
the following Defendants were motivated by an evil motive or intent or acted
with reckless or callous indifference to Ms. Boone’s protected rights?
Stephen Nasuti Yes X No
Stephen Schmerin Yes X No
Stephen Nasuti $25,000
Stephen Schmerin $150,000
Dated: 22 November 2005
As accurately as we have been able to record it, this is the information that emerged during the trial. When asked for comment on the case, Labor and Industry Press Secretary Barry Ciccocioppo said, “The department is planning to appeal and is confident that the decision of this court will be overturned.” When pressed for any further statement about the case, he pointed out that Pam Shaw, who replaced Chris Boone as BBVS director, is also visually impaired and remains on the job. He said that she has expressed the desire to find a position closer to home, but unless she does, she will remain on the job at BBVS. Because the case is being appealed, beyond this statement Mr. Ciccocioppo was not prepared to make any statement.
The press secretary’s statement of confidence about the ultimate outcome of the case is exactly what he was required to say. Time will determine its accuracy. But his comment about Pam Shaw is interesting because twice on cross examination Secretary Schmerin stated that he had received Shaw’s letter of resignation the previous week. He explained that she wished to exercise her right to return to a Civil Service job—a right that ceases twenty-four months after leaving the Civil Service. Shaw’s deadline for returning to the haven of the Civil Service occurs at about the time this article is being written, so who knows how all the seeming inconsistencies of the various statements will resolve themselves? But the tangle of statements and misstatements involved in this insignificant detail seem illustrative of the entire case as laid out by the defendants.
Whatever the final outcome, the people of Pennsylvania continue to be the losers. Secretary Schmerin recently told the press that the entire jury award, including punitive damages, will be covered by insurance. (Pennsylvania is self-insured, so he is clearly planning to manipulate the system to make Pennsylvania taxpayers pay everything.) When Chris Boone was hired, blind Pennsylvanians were allowed to hope for better services than they had ever had, but the jealousy and pettiness of a few incompetent bureaucrats have destroyed their dream. A jury has done what it could to set matters to rights. Chris Boone has achieved a measure of vindication. We can only hope that the good work begun in a Pennsylvania courtroom will be completed in the appeals court.