NCTD prevails in harassment lawsuit
An NCTD COASTER train travels north along the LOSSAN corridor. Photo courtesy NCTD.

NCTD prevails in harassment lawsuit

A jury rejected claims Thursday that a former human resources employee at the North County Transit District was laid off because of her age and gender.

Virginia Moeller sued the transportation agency in 2013, saying the CEO of NCTD “made various age and age/gender based remarks indicating a bias against female, and/or older female employees.” But one of the jurors in the two-week trial in Vista Superior Court said Moeller didn’t prove her case.

“I think all of us wanted to go with the plaintiff,” said Joshua Silva, one of the 12 jurors on the two-week trial, “but we just couldn’t.”

Silva was the only juror inewsource could reach who was willing to speak on the record about the case. Others confirmed Silva’s summary of the proceedings but weren’t willing to be quoted.

Evidence compiled for the case produced harsh criticism of NCTD’s CEO, Matthew Tucker, from former managers and female employees who recounted first-hand incidents of Tucker’s age or gender-based harassment. Yet no one, including Moeller, could provide hard evidence — beyond anecdotes — that Tucker targeted the 67-year-old directly.

The case wasn’t against Mr. Tucker and his business practices. We really tried to focus on age and gender.”
—Joshua Silva, juror

Tim Watson, the lead attorney for NCTD, told inewsource both of Moeller’s female managers — who are over 50 — testified that the decision to lay off Moeller was their own and that they never heard Tucker make any inappropriate or discriminatory comments.

“It doesn’t surprise me that a jury saw the facts the way we did,” said NCTD board member Tony Kranz. “It does disappoint me a lot that we had to expend public resources on this case.”

Moeller’s case, Kranz said, is an example of a lawsuit manufactured for a quick payout.

NCTD fought the suit for nearly two years using Lewis Brisbois Bisgaard & Smith, a national law firm headquartered in Los Angeles. Moeller was represented by William Woodson, an employment law litigator and mediator out of Texas.

Kranz, who is also an Encinitas city councilman, spoke openly and at length with inewsource after the verdict. Kranz covered a wide range of topics, not just the Moeller lawsuit but several aspects of inewsource’s previous coverage of the district with which he took issue.

“Matt (Tucker), like me, is not perfect, but he is doing a damn good job — in spite of being personally attacked by you and inewsource.”

Kranz said he wasn’t speaking on behalf of fellow board members, which for the better part of the past two years have declined nearly every inewsource interview attempt or request for comment.

Why this case was news

Moeller’s case has its roots in NCTD’s recent turbulent history.

During the great recession in 2009, NCTD, a taxpayer-funded agency responsible for operating San Diego’s BREEZE, FLEX and LIFT bus services, COASTER trains and SPRINTER light rail, faced serious money problems.

That year, NCTD hired Tucker to remedy what a board member at the time termed “unprecedented budget challenges.”

Tucker downsized the agency from more than 500 employees to around 100 and contracted out in-house services to private companies. Hundreds of employees, mostly bus drivers, were laid off.

Since that time, the agency has experienced a series of problems.

When inewsource exposed a serious safety and security issue in 2013, NCTD placed the blame on its private security company and later cut its contract. When the district’s light rail SPRINTER vehicles were taken off the tracks that year due to faulty brake rotors, NCTD placed the blame on its former rail mechanical maintenance officer. In the past three years, an inewsource analysis and five separate audits found NCTD’s turnover drastic and costly, its contract oversight department inefficient and ineffective, its disabled bus service failing its customers and its overall operations facing worsening federal reviews. Tucker and the board said the dust was still settling from the reorganizations after the move to privatize.

Although many ex-district employees have placed the blame on Tucker and the culture established after he downsized, Kranz said that reaction could be expected.

“What we have is an agency that went through hell,” Kranz told inewsource. “Out of that, some people came away pretty upset.”

When asked how long NCTD can keep using that argument — chaos resulting from the move to privatize — Kranz paused.

“How long does it take to change a culture?” he said. “I really don’t know. Does it take 100 percent turnover? Maybe.”

Skewed testimony

According to jurors and Moeller’s lawyer William Woodson, a big flaw in Moeller’s case was the testimony of a key witness — NCTD’s former Chief Financial Officer Richard Hannasch — who claimed he heard Tucker make derogatory comments toward and regarding female employees during their time working together. Jurors felt Hannasch held a vendetta toward Tucker.

NCTD’s lawyers presented evidence showing Hannasch had applied for Tucker’s current job when it was open in 2008. Hannasch said he didn’t remember applying for the position but the jury didn’t believe him, according to Silva.

“Indeed, the Plaintiff herself admitted that Mr. Tucker never made any comment to her that was inappropriate or discriminatory, and that they got along well.”
—Tim Watson, attorney for NCTD.

“In our opinion he lied on the stand under oath,” Silva said, “so anything he tells you you’re going to have to put it under a filter.”

Hannasch, who spoke with inewsource, said forgetting the application was an honest mistake that shouldn’t have affected the jury’s decision to the extent that it did.

He wrote in an email,

I was subpoenaed to be a witness in this case. I took my oath to tell the whole truth very seriously. A witness is specifically instructed not to guess or speculate. I was asked, under oath, whether I had applied for a position in 2008. That was a full 7 years ago. I knew I had considered it, but was honestly unsure whether I had actually applied or not. I answered truthfully that I was not sure. I am saddened if any juror misunderstood my sincere effort to be as scrupulously honest as possible.

Woodson thinks he has a strong case for filing an appeal, which must be done within 60 days of Thursday’s decision. But, he said, that doesn’t necessarily mean he will.

“I don’t know whether the plaintiff is going to want to do that,” he said.

Kranz’s comments

Kranz is the first NCTD board member to speak at length with inewsource since its investigation into the district began in 2013. He shared strong opinions about the style and manner of inewsource’s reporting on the agency, but conceded he didn’t have all the answers to questions about responsibility, measurements for success or the volume of allegations lodged against the top boss.

He said despite it all, he is confident in Tucker’s leadership and the direction of the agency.

“I have no problem with you taking credit with the security thing,” Kranz said, referencing an inewsource investigation into NCTD’s security force which was found to be unequipped and unprepared to handle the most basic safety scenarios, not to mention potential disasters.

“We now have sheriff’s deputies,” Kranz said. “There were some board conversations and the whole approach to security changed in large part because you were doing some reporting.”

But everything since then, he contended, has been a personal attack on Tucker.

“Is the agency perfect? No,” he said. “Public agencies are not easy to run. Resources are hard to come by. We’re always striving to do better.”

Some of the substantial questions about responsibility Kranz answered were about:

  • The Sprinter shutdown, which came just days before the fleet’s five-year anniversary celebration: “Pretty friggin’ embarrassing,” Kranz said. He felt that fault laid in the decision to purchase the one-off vehicles years prior.
  • The volume of accusations similar to Moeller’s presented in the trial: “There was a lot that came out in the trial that I don’t know enough detail about,” he said, but added the employees “were disgruntled. This was cooked up.”
  • On NCTD’s current human resources manager stating in a deposition that she never inquired into three harassment claims made by former female employees, despite state and federal law mandating an investigation: “I think that we should have done whatever required investigations there were,” Kranz said. “Without the details I don’t know why they weren’t done… But if we didn’t follow the law, hopefully we’ll make sure we do in the future.”

“I get that you’ve talked to a bunch of people that don’t think highly of Matt Tucker and I have asked a lot of questions and am confident in his leadership ability.”
—Tony Kranz, NCTD board member

Silva, the juror, said the jury saw enough evidence to establish a chaotic atmosphere exists at the transit district.

“We all believe that there are some things going on there,” he said, “that probably aren’t on the up and up.”

Kranz said the difficult part of being a board member is not being involved in the day to day — “I go to the meetings in the basement and then I leave”  — and that the last thing he wants to do is make excuses for employees.

“But the fact is there are significant challenges to moving this organization,” he said.

shadow-ornament

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About Brad Racino:

Brad Racino is a senior reporter and assistant director at inewsource. To contact him with tips, suggestions or corrections, please email bradracino at inewsource dot org.