By Ken Stone
Rebecca Rauber is suing her former employer.
The 59-year-old Lemon Grove resident wants to prove to a jury that she suffered age and sex discrimination and a hostile workplace. Plus being punished as a whistleblower.
The fired spokeswoman seeks damages — including $100,000-a-year lost and future wages — that could top $1 million.
Normally, Rauber might expect help from the local ACLU, with its famed 85-year history of aiding the underdog and defending rights to free speech.But not this time.
Rauber is suing the ACLU, where she worked for 10 years as communications director. She was part of senior management at the American Civil Liberties Union of San Diego and Imperial Counties.
The irony is not lost on Rory Pendergast, her San Diego attorney.
“It’s like Putin politics, the strangest thing ever,” he said Thursday, calling the case “very Trumpian.”
Examples: “Retaliate against anyone who speaks out against you. Hide as much information as you possibly can. Try to claim confidentiality.”
In a 17-page complaint filed last March in San Diego Superior Court, Pendergast wrote: “Rather than treat her with dignity and as a person who has fought hard for over 10 years for the ACLU cause, they threw her to the curb like a piece of garbage because she spoke out against illegal activities and the Chavez-Peterson/Wergeles/ACLU abuse of power.”
Chavez-Peterson, 44, declined to talk about the case, saying: “The ACLU of San Diego & Imperial Counties does not comment publicly on personnel matters, including those that are in litigation.”
Neither would ACLU attorney Robert Rose, who issued the same statement. (Rauber was not immediately available for comment.)But Pendergast spoke to Times of San Diego for 45 minutes, sharing his amazement over what he considers ACLU stonewalling. The nonprofit group fought to withhold email and other materials related to Rauber’s work record.
“They’re trying to keep documents out of the public sphere — which to me is really, really un-ACLU,” Rauber said in a phone interview. The ACLU has “signified everything as being confidential,” he said.
On Jan. 19, Judge Katherine Bacal agreed with Pendergast and ordered the ACLU to produce certain materials and “meet and confer” on all withheld documents Rauber signed while employed. Bacal also told the ACLU to produce a more specific “privilege log,” which cites why certain materials can’t be shared in the discovery process.
A June trial is scheduled, but Pendergast thinks that will be pushed back, since he plans to file an amended complaint next week. And he expects the ACLU to ask the judge to throw the case out — via motion for summary judgment.
Pendergast, 38, also plans to depose several people, putting under oath Chavez-Peterson, Wergeles, former ACLU board president Mark Adams and Brenda Kasper, whom the ACLU hired to do an independent probe of Rauber’s workplace claims.
On Monday, Rauber finished her third full day of depositions — a total of 20 hours under questioning by The Rose Group (a father-and-son law firm in San Diego). Pendergast calls that amount of sworn testimony painful and “a little obscene.”
“A day and a half max, and they could get all the information that they truly need,” said Rauber’s lawyer. “But this is more ‘ask one question, don’t like the answer, just keep asking the same question again and again.'”
At a hearing next week, Pendergast will ask Judge Bacal to order the defense to end the grilling.
“I’ve told them they get a half a day more and that’s it,” he said.
What led to all this?
The lawsuit says Chavez-Peterson and Wergeles began treating Rauber differently from male and younger colleagues, saying Rauber said yes to too many tasks and needed to “prioritize.”
“Chavez-Peterson made these comments because of Plaintiff’s age,” the suit says. “The complaints were unfounded because Plaintiff timely completed her work and her work-product was excellent. Management also complained that Plaintiff ‘coddled’ younger employees too much, which is code word for ‘grandma’ or ‘old.’”
In July 2016, the ACLU handed Rauber a “performance improvement plan,” or PIP, citing major “deficiencies,” the suit said. “However, at the same time, the ACLU also gave Plaintiff her annual performance evaluation, which exceeded job requirements/expectations.”
Pendergast called the PIP inconsistent and said the ACLU wanted to erase 10 years of exceptional work.
“This nitpicking of Plaintiff’s work and person was done because of her age and because of her gender – the ACLU and its agents did not treat younger or male employees the way it treats women over the age of 50 and the way it treats Plaintiff,” the suit says. “The ACLU’s conduct was also done in retaliation for speaking out against being treated differently.”
Five days after being handed the PIP, Rauber filed the first of several complaints with the state Department of Fair Employment and Housing, a requirement before a suit can be brought. (The agency, without investigating the case on its own, quickly issued a “right-to-sue” letter.)
The ACLU also hired Carlsbad-based Kasper to look into Rauber’s complaints.
“It was a hatchet job,” the suit alleges. “Kasper was deprived of certain information and/or she actively chose [to] ignore information that benefited Plaintiff and, instead, highlighted information (whether it was true or not) that was negative toward Plaintiff.”
Kasper conducted “interrogations” that aimed to discourage people from speaking freely about facts and “encourage the people to state only items that would benefit the Chavez-Peterson/Wergles/ACLU regime and predetermined ‘investigation finding,'” the suit says.
In a Dec. 21 letter last year, ACLU defense lawyer Robert Rose denied that ACLU-SD used Kasper’s investigation as the reason to fire her.
“Ms. Kasper’s investigation focused on whether or not Plaintiff’s allegations of gender discrimination, age discrimination and retaliation were supported by evidence,” Rose wrote. “As you are aware, based on her thorough fact finding, Ms. Kasper found that they were not. ACLU-SD did not ask Ms. Kasper to investigate whether it should terminate Plaintiff’s employment.”
In October 2016, after conducting 14 interviews and reviewing 600 pages of documents, Kasper delivered a 78-page report to ACLU that “concluded that the evidence did not support the allegations in Plaintiff’s DFEH complaint,” said court documents.
Rauber was then urged to resign, Pendergast says, telling Times of San Diego that then ACLU board president Adams, an attorney, told her: “This investigation report, if it gets out, is going to ruin your career and reputation. So you’d better quit.”
Rauber refused and was put on administrative leave. She was fired Nov. 1, 2016. The ACLU offered at least 30 “affirmative defenses” for the action, including “legitimate, good faith, justified, nondiscriminatory and non-retaliatory business reasons.”
In recent months, Pendergast has deposed several former ACLU colleagues of Rauber, whose sworn testimony he cited in a Dec. 14 letter to The Rose Group.
Pendergast says Lori Shellenberger, an attorney working for the ACLU in Sacramento, and Anna Castro “went on at length about the inadequacy of Ms. Kasper’s investigation, that it had a predetermined conclusion.”
Shellenberger did not respond to a request for comment, and Castro could not immediately be reached. Kasper said via email: “Kasper & Frank LLP does not comment publicly on its investigations. The firm’s role in workplace investigations is that of independent fact finder. Our professional obligations also prohibit us from providing any comment.”
Pendergast said Raúl Macías, another former ACLU-San Diego attorney now working for the group in Sacramento, said Chavez-Petersen told him that if Rauber hadn’t hired an attorney or filed a DFEH complaint — “she would still be working for the ACLU in some capacity.”
Macías did not respond to a request for comment.
But in the Dec. 21 letter, Rose sought to “set the record straight” on the depositions. He called Pendergast’s interpretation of the Macías testimony “nonsensical.”
“Second, Ms. Shellenberger did not testify as to the adequacy of the investigation nor state that the investigation had a pre-determined conclusion,” Rose wrote, citing specific page numbers.
“As you know, Ms. Shellenberger knows virtually nothing about the investigation. She chose not to be interviewed by Ms. Kasper and certainly was not shown the investigation report by ACLU-SD.”
Rose said Shellenberger testified that Chavez-Peterson and Wergeles “never discriminated against [Shellenberger] based on age or gender” and “did not treat female staff differently than male staff, did not treat older (in age) staff differently than younger staff, and did not treat senior staff (by position) differently than junior staff.”
Shellenberger, Rose said, testified that San Diego ACLU leaders did not discriminate against Rauber based on age or gender.
On Thursday, Rauber’s lawyer said he had reviewed the Kasper report and found facts “twisted.”
Pendergast said he recorded Kasper’s interview with Rauber. When he reviewed the report’s section on that interview, he said he found close to 20 factual errors.
“Some of them are kind of bending the truth a little bit, and there’s a few that are just outright lies,” he said.
When he amends his lawsuit, Pendergast says, he’ll add a section about Rauber being a “for-cause” employee — one who could be fired (after a year’s probation) only for “just cause,” meaning misconduct or inadequate job performance. He says the ACLU employee handbook said so.
This gives Pendergast confidence he’ll prevail at trial and against any effort to throw the case out.
“I don’t have a crystal ball,” he said, “but I can tell you we feel confident that we’re going to beat any summary judgment motion … that they send our way.”
He also called the case ripe for mediation, saying: “We had chosen a very good mediator, a former judge,” as mediator.
“We had discussions of going to a mediation [with ACLU], but that was under the thought that they were either going to hold off their [summary judgment motion] or not file it,” Pendergast said.
On Thursday, the ACLU notified the court that it couldn’t comply with Bacal’s 120-day mediation order, including a scheduled Feb. 14 meeting with retired Judge Steven R. Denton.
On Jan. 30, “without any prior notice,” Rose said Pendergast informed him of taking the scheduled mediation “off calendar” because of Rose’s plan to file a motion for summary judgment.
“Although Plaintiff was aware of Defendant’s intention … as early as October 23, 2017, at no time prior to January 30, 2018 did Plaintiff express any concern that Defendant’s intention to file a Motion for Summary Judgment would be an impediment to mediation,” Rose said.
The San Diego ACLU, founded in 1933 and one of three California affiliates of the 1.7-million member national ACLU, has a revered history of defending the rights of women, minorities and the LGBT community.
In the lawsuit, Pendergast noted that the ACLU’s mission is to “fight for individual rights and fundamental freedoms for all,” with a vision of “a society where fairness prevails and where liberty and justice exist for all” and core values including “the dignity and equality of every human being,” “vigilance against abuse of power” and “Speaking truth to power even when it’s unpopular to do so.”
He still thinks that applies to the group in general.
“By no means are we saying … that this is prevalent in other affiliates,” he told Times of San Diego. “In fact, some information that we’ve gotten shows that the … local executive team is an anomaly within the ACLU.”
The national ACLU, based in New York City, did not respond to a request for comment.
San Diego court records dating to 1974 show only one other lawsuit against the local ACLU — a 1981 personal injury case in which the ACLU was not the primary party.
For now, Pendergast says, Rauber can’t find a full-time job despite “hitting the street.” He says her age is a handicap. She is doing some consulting work and volunteering with Pillars of the Community, a Southeast San Diego advocacy group.
“She’s a hard worker and was hoping to work past 65, hopefully till 70,” he said. “You can do the math yourself. The economic damages alone are going to be in the hundreds of thousands of dollars. That doesn’t include the embarrassment, the humiliation.”
He said a jury could “easily” award $1 million or more: “This is the type of claim where it could get there.”
Pendergast — who says he knew Rauber before the suit (his wife and her husband used to work together) — says the San Diego ACLU has “done a very good job of dragging itself through the mud. At least under the controlling reign” of current leadership.
“I’ve handled cases against Sempra, against SDG&E, against a number of large employers, and at the end of the day they’re just people,” he said. “And some people do really bad things. So it’s just a matter of slowly taking apart their arguments and exposing the truth.”
But the contrast between ACLU’s reputation and behavior toward Rauber continues to stun Pendergast.
“What I just can’t get over is that this sort of stuff is happening at the ACLU,” he said. “This is the kind of stuff that the ACLU fights.”
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