An NCTD COASTER train travels north along the LOSSAN corridor. Photo courtesy NCTD.

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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.

Brad Racino is the assistant editor and senior investigative reporter at inewsource. He's a big fan of transparency, whistleblowers and government agencies forgetting to redact key information from FOIA requests. Brad received his master’s degree in journalism from the University of Missouri...

18 replies on “NCTD prevails in harassment lawsuit”

  1. The jury got it right on this one. While some may not like how Mr.Tucker went about hiring or firing people, he definitely wasnt stupid enough to let go of people because of their age or gender. The case revealed there were a lot of “salty” people at NCTD.

  2. I believe in the jury system and the right of a person to a fair trial, in which the accused is presumed innocent until deemed guilty of the crime by all 12 of his or her peers. The court’s outcome, acheived with due process, should carry more weight than allegations, a this point.

  3. Between the Corey Briggs series and this one, one wonders when dogged pursuit of a story line turns to mush? Dead horses don’t mind the beating, I suppose, but that doesn’t make the act appear rational.

  4. At least Kranz was honest when he stated he was “not involved in the day to day”. He and the rest of the board are so far removed from what is going on at the grass roots level that they have no idea of the direction NCTD is truly going. These guys are elected officials paid by our tax dollars to make sure NCTD is run properly yet they remain clueless to every or any aspect of day to day operations especially now that contractors do all the work These contractors are in it to make money and that means cutting corners every place they can…that money is also our tax money granted to NCTD to run a “not-for-profit” transit operation. So how does our tax money for “not-for-profit” wind up in the coffers of contractors that send it out of the country to their foreign based parent company to dole out to investors and CEOs as profit and handsome salaries? As for the verdict, maybe the jury was not made aware of other pertinent aspects that have been going on. To me, a nearly complete turnover of long time employees is a big “red flag”. I guess Tucker was right, NCTD can afford the best attorneys and in this lies the problem. Ms. Moeller’s attorney was not up to the level needed to prove what I believe is the truth…unrestrained harassment and discrimination. I guess one would have to work there to be able to see the forest for the trees. It all comes down to the $$$. Too bad the rest of the board will not make a comment. Perhaps they fear “letting the cats out of the bag”.

  5. Citizen Bigsky, at what level of performance would the plaintiff’s attorney have had to be in order to convince the jury that there was sufficient evidence to convict? On what basis, presumably unknown to the jury, can you make the determination that the man they found innocent is really guilty?

  6. Whatever you ask for, the existing jury felt that the evidence did not support the plaintiff. It is not the jury’s job to invent testimony that would convince them to act differently. It is also not the jury’s job to find for the plaintiff if the case’s evidence doesn’t support the claims, but the jury has a “feeling” that something is “chaotic.”

  7. So you claim that the contractors “send it (our tax money) out of the country to their foreign based parent company to dole out to investors and CEOs as profit and handsome salaries?” What percentage of contractors are foreign owned? Don’t these contractors have local employees and purchase materials and services locally? Are any local unions and municipalities invested in those companies? Are you accusing these companies of contract violations? Exactly which companies are you accusing, or are you just a populist windbag? BTW, looks like they hired a local (if you assume LA is not a foreign country) lawyer to successfully defend their case.

  8. Dear “Citizen” pinustorreyana, your sarcasm is duly noted. Let’s just say I know some of the people deposed for this case and they are very credible…so where there is smoke there is fire. There is also the Kim Stone case which settled very fast and had the same charges. Kim Stone was far and above the more qualified applicant for the job AND having been one just laid off in 2010 should have had first chance at re-employment but such was not the case. If hard evidence is necessary then I guess one would have to to armed with a small camera and microphone recording everything but since that is illegal and against policy the only hard evidence would have to come from eye witness individuals which if you read the depositions for Richard Hannasch and Susan Lockwood you would know this. If you were as informed as you believe yourself to be you might ask the question, “why was Richard Hannasch laid off as the Chief Financial Officer and Ryan Bailey hired to replace him”? Mr Hannasch was laid off because “his position had been eliminated” and his severance package was quite substantial. Now just how does a public entity such as NCTD “eliminate their Chief Financial Officer”? My guess is he knew too much and crossed Tucker’s path one too many times so he was paid off to keep silent. Severance packages do state restrictions on speaking about their former employer or bringing a lawsuit. Of course under subpoena he call tell all. As for Ms. Moeller’s attorney, I don’t know him nor did I attend the trial but there is such a thing as “circumstantial evidence” and it seems to me after reading the depositions there was an immense amount of “circumstantial evidence” not to mention the fact that nearly everyone employed by NCTD prior to July 1, 2010 when the huge lay off occurred is no longer employed by NCTD. So in concluding and to answer your question, if Ms. Moeller’s attorney could not make the case with so much circumstantial evidence then he was obviously out of his league. This article does say he was an employment attorney out of Texas and perhaps not an expert in California employment law which is extensive while in the batting cage for NCTD you have a national law firm http://lewisbrisbois.com/. Gee, who had the bigger hitters? Also, if you re-read the above article it was the jury’s “opinion” that Hannasch lied under oath about whether he had applied for the job of Executive Director 7 years prior to the trial and that is what swayed the jury’s decision as to Tucker’s guilt or innocence. I find that absolutely incredible. Can you remember what you did or did not do 7 years ago? In any case, I do hope to see an appeal of this verdict…jury’s have been known to get it wrong the first time.

  9. I’m glad you believe in the jury system, but you should learn how it works. This was a civil, not a criminal action. The California Constitution explicitly addresses the use of unanimous verdicts; Article I, Section 16 states that “trial by jury is an inviolate right and shall be secured to all, but in a civil cause, three-fourths of the jury may render a verdict.” Just thought you might like to know that all you need is 9 out of 12 in agreement.

  10. Perhaps you should concentrate more on finding out the facts before firing derogatory comments. Do your research on First Transit, the subcontractor that NCTD outsourced all of its bus drivers and maintenance personnel to. Parent company of First Transit is First Group based in Aberdeen, Scotland. Check out this link: http://www.heraldscotland.com/business/13165702.FirstGroup_chief_s_pay_doubles_to___2m/

    The funding that NCTD gets is from our state and federal tax money so when they “pay” First Transit to operate the buses and maintenance that in essence is taking our tax dollars from “not-for-profit” NCTD and giving it to “for-profit” First Transit. First Transit in turn employoys the former NCTD workers and numerous others hired since the out sourcing and they do it by cutting wages and benefits in order to make a profit. So the reduced wages do not allow for much spending in the local economy. Really, the new hire bus driver makes a whopping $11.25 per hour for being responsible for passengers, the bus, other people on the road and all sorts of other mandatory responsibilities and remember this is a “safety sensitive” position. If that is not “sending our tax money out of the country” I don’t know what is. If you checked out the link you will find CEO of First Group, Tim O’Toole, brings in a handsome salary and First Group usually pays its investor stock dividends on the London Stock Exchange. Keep in mind I asked a former Fist Transit General Manager how much profit is sent back to Aberdeen, Scotland and his response was, “pretty much all of it”. Also, look up where the Sprinter rail cars came from…Germany. What happened to “Buy American”? The subcontractor that operates the Sprinter (formerly Veolia), Transdev, is an international company based in Pairs, France. https://en.wikipedia.org/wiki/Transdev

    So you tell me where our tax dollars are actually going if NCTD contracts out to some of the world’s biggest transportation companies.

  11. I asked questions, and that you find them “derogatory comments” is a measure of how fair an actor you are. Our tax dollars are going to a foreign company, which then pays local employees and suppliers and gets to keep what’s left over. What they do with that is then their business (within UK law and the desires of their owners and shareholders). The only point you have to bitch about is whether we are receiving the services we contracted for. If you want to “buy American” are you ready to trash all your personal foreign goods, like your TV, smartphone, probably your car and your bananas. And if you think the contract was a rip-off, then why don’t you put in a bid yourself next time?

  12. I find being called a “windbag” derogatory. As for calling me an “actor”. you are the fool that cannot/will not see the forest for the tress when presented with facts and resort to using inflaming remarks to which I will no longer respond. BTW, my vehicles are American made and you can keep your bananas. It is people like you that are the reason this country is in the shape it is today. Happy bashing hard evidence.

  13. When all you create is wind, then you are a windbag. “Actor” also means participant or agent, so you just proved yourself illiterate. Too much hot air and too little smarts is a bad combination; I suggest you go back to rants on YouTube. Yeah, you like to categorize people into “people like you”; obviously that lets you take mental shortcuts that ultimately embarrass you (if a banana like you is capable of embarrassment).

  14. So glad you jumped in here again with your tirade….what I buy with my money is earned by my labor not government grant money and I spend it on American made products whenever possible. As for your above description, you must be looking in a mirror and I have again NOT called you any names but ones with little else to fight with will always resort to name calling. Have a very pleasant day.

  15. I asked why you slandered those “foreign companies” (other than you seemed to just hate anything that’s foreign; of course, you also hate companies and management, so I think we are seeing your hidden agenda). I asked for evidence and got hot air, along with being categorized by you as a kind of person you were familiar with (in a negative way). Keep chomping in riddles and don’t get pinned down with backing up your opinions. My day is pleasant, despite swatting some flies.

  16. I may have been, although a quick review of Bigsky’s posts here inclines me to ignore that hugely ignorant bloviator. I’m sure that BS remains angry, biased and confused about very many things.

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