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DOH whistle-blower case goes to jury

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Health Department employee claims retaliation in firing

The case of a former state Department of Health employee who sued the department for wrongful termination under the state’s whistle-blower protection act is in the hands of a Santa Fe jury.

Jennifer Smith sued the department after she was fired from her position on July 31, 2012, following allegations she made about mismanagement of funds in the department’s HIV Services Program.

The jurors heard closing arguments in the case Thursday in District Court Chief Judge Raymond Z. Ortiz’s courtroom.

Smith’s attorney, Diane Garrity, built her case around circumstantial evidence that she said served as footprints leading to the conclusion that Smith’s firing was based on a retaliatory motive.

The first footprint, she said, was that even though DOH cited insubordination as the reason for her discharge, the department hadn’t fired anyone for that reason in at least five years.

Instead, the department only issued reprimands to employees who exhibited similar behavior as Smith or engaged in behavior that was more egregious.

Garrity claimed that Smith’s supervisor, Diane Tapia, who managed the HIV Services Program, made a mistake that cost the department $106,000 and she still had a job.

“Why was she (Smith) singled out? Why?” Garrity asked.

Another footprint, Garrity said, was a audit that was to be conducted just before Smith was dismissed.

Smith had raised concerns about improper documentation and funds earmarked for one fiscal year that were illegally being shifted to another.

“They needed to get rid of the person who knew where the problem was,” she said.

Garrity said another footprint was the testimony of one of Smith’s co-workers, Genevieve Rael, who the attorney characterized as the most credible witness in the case. Rael supported Smith’s version of events leading up to the firing and testified that Smith had been a diligent steward of the drug assistance program.

Garrity also pointed to the language of Smith’s dismissal letter, which she described as “over the top” and “included allegations that aren’t even true.”

That letter, she said, was retaliatory in that it prevented Smith from finding another job.

“When you put it all together, the footprints lead you to a retaliatory motive,” she concluded.

Michael Cadigan, the attorney representing DOH, said the jury didn’t need to try to follow the path Garrity was trying to lead them down.

“At the end of the day, this case is pretty simple,” he said. “Jennifer Smith was fired for what she admits was insubordination.”

Cadigan outlined a series of acts Smith undertook that indicated she was trying to get fired.

He said she refused to return phone calls, sign evaluations or attend meetings mandated by her superiors, one of which directly related to Smith’s behavior. It got to the point that Smith also refused to go to meetings unless her attorney was present, he said.

“What organization in the world runs like that?” he asked. “That kind of conduct cannot go on in a workplace.”

Cadigan said Smith had “personality conflicts” with numerous people inside and outside the office and refused efforts to counsel her.

“She put her own interests in front of the patients’,” he said.

Cadigan disputed Garrity’s assessment of Rael being the most credible witness.

“The fact of the matter is the Genevieve Rael had no relevant knowledge of why she (Smith) was fired,” he said.

Cadigan argued that opposing counsel had thrown out a series of red herrings in an effort to distract the jury.

“You cannot fix an employee who is insubordinate,” he said. “Don’t follow that red herring through the forest.”

The DOH attorney alleged that Smith was trying to get herself fired and referred to emails that went back years that he said supported that claim.

He also disputed Garrity’s contention that Smith was dismissed without the department making any corrective action efforts, saying there were many documents that showed it did.

“It defies logic and truth to say she didn’t get progressive discipline,” he said. “The problem is her attitude, communication and inability to get along with people.”

Cadigan referred to one jury instruction that said the department would be justified in firing Smith for misconduct.

“That’s the end of the case. Her poor job performance, that’s what this is about,” he said.

The jury began deliberations late Thursday afternoon and stopped for the night about 8 p.m. It will convene again at 8:30 this morning.

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