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IN THE BUREAU OF LABOR AND INDUSTRIES

COMPLAINANT:

Case#:

EEE~SX101215-91849

RECEIVED

I. Terri Myzak

PO Box 20416 Salem, Oregon 97307

Phone# •• __ •

DEC 1 6 2010'

Attorney:

CIVIL RIGHTS DIVISION PORTLAND OFFICE

Stephen L. Brischetto Attorney at Law

621 SW Morrison St, Ste 1025 Portland OR 97205

Phone #: 503-223-5814 '

RESPONDENTS:

Workers Compensation Board 2601 25th Street SE, Suite 150. Salem, Oregon 97302

Phone #: 503-378-3308

Department of Consumer and Business Services

350 Winter St NE

POBox 14480

Salem, Oregon 97309

Attorney:

Donna Sandoval-Bennett Oregon Department of Justice 1215 State St NE

Salem, Oregon 97301

Phone #: 503-947-4465

# of Employees: more than 50

DRS 659A.030(1)(a) &(b); ORS 659A.030(l)(t); 42 USC §2000e-2(a)(I); 42 USC §20bOe-3(a)

I, I. TERRI MYZAK, being first sworn, do depose and say as follows:

1. 1 began working for the Workers' Compensation Board (Board) on September 14, 1987 first as a temporary referee, and then as a contract referee. I became a regular referee (now . referred to as an Administrative Law Judge) effective December 28, 1988. From September

1987 until my termination,' I worked continuously for the Board.

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2. Douglas Wayne Daughtry was the presiding referee for the Hearings Division and my supervisor when I started working for the Board.

3. In about 1989, Daughtry scheduled an out-of-town meeting with me at the Oregon State Bar Convention. At that meeting, he made unwanted sexual advances towards me that I promptly rejected.

4. After my rejection of his unwanted sexual advances, Daughtry engaged in punitive retaliation, including discontinuing my hearing docket.

5. On or about May 9, 1991, I am informed and believe the Board removed Daughtry as presiding referee for major dishonesty to the Board.

6. The Board continued to employ Daughtry as an Administrative Law Judge until about October 1996. I am informed and believe he took a medical retirement for impairments resulting from a stroke. I had no contact with Daughtry since he left the Board in 1996.

7. On June 30, 2009, I received a harassing voice mail from Daughtry. The voice mail was threatening and contained derogatory sexual comments about me.

8. Within an hour of his first voice mail, and for the first time in 13 years, Mr. Daughtry appeared at my work place and was in and about my work area. Daughtry was dressed sloppily, wearing a sweat shirt loose enough to conceal a weapon.

9. Daughtry insisted on meeting with the presiding Administrative Law Judge, Holly Somers. Somers initially sent Monte Marshall, an Administrative Law Judge, to speak with Daughtry, Daughtry refused to speak with Marshall. Instead of directing Daughtry to leave, Marshall gave him a cup of coffee and Somers met with him for an extended period of time.

10. During the meeting, I believe Daughtry interfered with my employment relationship, slandered my character, and slandered my work reputation. Somers withheld from me information as to what Daughtry said about me. At the time of the meeting, Somers knew that Daughtry had left me a harassing voice mail, but she intentionally withheld that information from me. Somers has shared information-orally and in writing-with one or more Administrative Law Judges about Daughtry's surprise meeting with her .

. 11. Somers deliberately chose not to document what Daughtry said or to commence action to protect me.

12. Upon learning Daughtry was harassing me, Somers,' Board Chair Abigail Lee Herman, the Board, and the Department of Consumer and Business Services (DCBS) failed to take any action to stop the harassment or to notify me of it and instead retaliated against me.

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13. On June 30, 2009, Daughtry left a second voice mail forme on the Board's public general delivery voice mail box. The second voice mail also was threatening to me and contained derogatory sexual comments about me.

14. Daughtry's second voice mail on the Board's general delivery voice mail box was in

Chair Herman's and the Board's possession ; f

15. The Board receptionist observed Daughtry on June 30, 2009. The following morning, the receptionist listened to Daughtry's second voice mail. Upon hearing the second voice mail, the receptionist immediately provided my Judicial Assistant and me with a code word to alert me should Daughtry present in the work place again.

16. With knowledge of Daughtry's two harassing voice mails and slanderous comments to presiding Administrative Law Judge Somers the day before, I am informed and believe the Board Chair ordered the receptionist to withhold information from me about further calls or voice mails for me from Daughtry.

17. On July 2, 2009, I formally notified the Board and DCBS that I feared for my safety and that I needed specific information to protect myself and my family. I wrote, in part:

"For me to assess my personal physical safety, it is imperative that the contents of Mr. Daughtry's communications-past, present, or future-regarding me immediately be provided to me." [Italics and boldface in original; underscoring added.]

18. I needed this information to make decisions about what actions I needed to take to secure my safety and the safety of my family members, such as whether to seek a restraining order or a protective stalking order against Daughtry. Somers failed to promptly respond to my pleas for information,

19. Not until five days after I first made a written record of Daughtry's sexual harassment and seven days after Somers's and Herman's personal knowledge of Daughtry's harassment did they even acknowledge me. I received a letter dated July 7, 2009 from Somers asking for a meeting with me.

20. In his second voice mail, Daughtry claimed it was his "final missive," however, on July 10,2009, I am informed and believe he telephoned for presiding Somers, who was not there. I was not informed of Daughtry's July 10,2009 contact, until July 16, 2009, after I again formally pleaded for information,

21. On July 15, 2009, I wrote Somers again asking for a complete disclosure of

Daughtry's comments. I told her that: .

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"I don't understand why you selectively ignored the most important portion of my July 2, 2009 letter: my personal physical safety.

"***"Unlike the legal obligation you owe me as a state employee, you owe Mr. Daughtry nothing. *** In contrast, as a state employee, I am entitled to information the state has that could impact my personal safety from a former, known brain-impaired co-worker-and those with whom he contracts.

"* * * This is 1I0t a case where what I don't know WOII't hurt me. [Emphasis in original.] * * *"

22. On July 16, 2009, Somers and DeBS's Traci Barnett ambushed me at the conclusion of a hearing. Somers physically trapped me behind my desk by standing very close and demanded a meeting. I met with Somers and Barnett and answered all their questions, many of them repeatedly. I provided them all the information I knew about the reported incidents. I explained my concerns about my safety and the safety of my family, informing them that statistics show that 50 percent of all stalkers go on to commit a personal or property crime against the victim.

23. In this meeting Somers told me that Daughtry made derogatory comments about my character and work reputation, and further that Daughtry said that I was "not loyal" and that I was "dishonest." Somers claimed she could not remember what else Daughtry said. She stated she did not take any notes.

24. Shortly after this first meeting, I went to Somers's office and again met with Somers and Barnett. During this meeting, Somers quoted verbatim from Daughtry's second voice mail to me. As I left Somers' office, she forcefully shut her door, suggesting she was angry with me.

25. Herman and DeBS's Linda Bures have subsequently falsely described my participation in these two meetings on July 16, 2009 as a "refus[al] to talk to them."

26. On July 16,2009, Somers and Barnett continued to insist on an additional meeting.

Because I had already provided a full account of what I knew regarding the reported incidents, I now believe the purpose of this demand was to set me up to be terminated on charges of insubordination.

27. In response to their demands, I scheduled a meeting for July 28,2009. On July 27, 2009, I notified Barnett that I would have my attorney present at the meeting. On July 28,2009, Bamettemailed me refusing to meet with me with my attorney. Additionally, Barnett said that if I provide "the specific details surrounding [my] safety concerns" in writing, they would conduct an investigation.

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· .. ~.

28. Because I had already repeatedly provided what I knew of Daughtry's harassing voice mails, on July 28,2009, I told them if they had specific questions to put them in writing.

29. On August 7, 2009, Barnett asked me to provide 5 categories of information. She told me that if I did not respond within 10 days, she would assume I was not interested in pursuing this matter. I opted not to respond because I believed the investigation was a sham designed to retaliate against me.

30. Barnett's August 7, 2009 questions included a demand that I provide a transcript of Daughtry's communications to me. At the time, I had no transcripts. It was my understanding that my Judicial Assistant was not allowed to transcribe Daughtry's sexually harassing voice mails. Further, my dictaphone/tape recorder-player was defective and obliterating tape recordings and it is my belief this fact was known to the State.

31. Because presiding Administrative Law Judge Somers was not completely forthcoming, I wrote Chair Abigail L. Herman on August 20, 2009 requesting all information regarding Daughtry so that I could make my own determinations of what was necessary for my

,

personal safety.'

32. In response to my August 20,2009 request for information, on September 2,2009, Chair Herman and DCBS's Bures wrote me, chastised me twice for criticizing the agency's response to my complaint of sexual harassment, produced a copy of a letter sent to Daughtry, and told me that they kept no documents in the sexual harassment investigation and, despite the fact that Daughtry's second sexually harassing voice mail was in the Board's general delivery voice mail box, claimed, "£w]e are not in possession of any recordings" [italics added].

33. In spite of my July 27,2009 notice that I was no longer comfortable meeting with Somers or Barnett about Daughtry's sexual harassment, Herman and Bures directed me to schedule a meeting with Somers and Barnett if I "continue to be anxious" or else give notice that this matter has been "resolved to [my] satisfaction." Herman and Bures mischaracterized this as an effort to work with me "constructively and compassionately."

34. On September 16,2009, I sent an email to Holly Somers regarding an unrelated and what should have been an innocuous matter. In my email, I made a comment to Somers explaining that I had been dealing with an unpleasant sexual harassment matter and that I believed DAS would not make the unrelated innocuous matter such a high priority over a potentially litigious matter like the sexual harassment matter.

35. Hetman waited for over three weeks and then intentionally misconstrued that explanation .. On October 9, 2009, Herman and Bures wrote me a letter contending my email to . Somers showed the sexual harassment matter had not been resolved to my satisfaction and that I continued to be "anxious." As a result, they "directed" me to schedule a meeting with Somers and Barnett about Daughtry's sexual harassment sometime between October 23,2009 and

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October 30, 2009 or be deemed insubordinate.

36 -. Herman and Somers had set my docket, knew I was scheduled for in-house mandatory continuing legal education and hearing and travel outside of Salem during the time period from October 23 through October 30,2009, and as a result knew that I would not be available to meet during this time period.

37. On October 23,2009, my attomeywrote to Herman and Salvador Llerenas ofDCBS.

My attorney informed them I could not meet during the October 23 through October 30 time period, enclosed transcripts of Daughtry's voice mails, and demanded to know the results of the investigation of Daughtry. My attorney also advised them that the repeated threats of discipline constituted retaliation.

38. In response to my attorney's letter, I received a copy of a letter from Donna Sandoval Bennett, WCBIDCBS's attorney. Bennett accused me of making complaints, refusing to cooperate to resolve the complaints, and then criticizing WCBIDCBS for not responding. Ms. Bennett asserted that WCBIDCBS would no longer accept my "subterfuge," concluded that I was "failing to follow a management directive" and directed me to meet within five weeks.

39. On October 27, 2009 Somers contacted me and scheduled an investigatory meeting for November 3,2009. She wrote a letter confirming the meeting was to discuss my "failure to

follow a management directive." .

40. At the November 3,2009 investigatory meeting, Somers, Barnett, and Sandoval Bennett, repeatedly refused to discuss Daughtry's sexual harassment. Rather, despite my two meetings with Somers and Barnett on July 16, 2009, they falsely asserted that I never met with Somers or with Barnett and interrogated me why I had not done so. Similarly, despite my scheduling a meeting for July 28,2009, (a meeting DCBS canceled because they would not meet in the presence of my attorney) Somers and DCBSfalsely asserted that I never scheduled a meeting with her or Barnett, and interrogated me why I not done so.

41. During the November 3, 2009 investigatory meeting, I was placed on leave without any formal explanation.

42. Herman, Somers, and DCBS scheduled another investigatory interview for December 15,2009. Regarding Daughtry's sexual harassment, I believe I was asked primarily two "new" questions that had not repeatedly been asked (and answered) before: (a) what supervisors did I teIl20-plus years ago of Daughtry's sexual harassment; and (b), despite the hard evidence of Daughtry's multiple calls with repeated reference to my alleged "f------," why did I think that was sexual harassment?

43. Instead of investigating my complaints of sexual harassment and workplace safety, Herman, Somers, the Board, and DCBS conducted an exhaustive investigation of my 22-plus

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year career to find evidence to terminate me. The investigation was done in a manner to embarrass me and to make an example of me to deter others from complaining.

44. I was terminated on March 1,2010 for complaining of sexual harassment and other protected conduct The termination was back dated to February 26, 2010. The stated bases for my termination were insubordination, unfitness to render effective service and official misconduct. The stated bases are pretextual and designed to discourage me from pursuing this matter further. The Board's substantive allegations are baseless and designed to impugn my integrity and credibility.

45. The allegations contained in the Notice of Dismissal issued to me, even if true, would not have resulted in the termination of a similarly-situated Administrative Law Judge who had not reported sexual harassment by the Board's former presiding referee. The Board did not terminate another Administrative Law Judge who engaged in much more serious forms of misconduct.

I. TERRI MYZAK

STATE OF OREGON )

) ss.

County of Multnomah . )

SUBSCRIBED AND SWORN to before me this 15!_ ~y of Otc...~ ,2010.

Notary Public for Oregon

My Commission Expires: Sri 7 - 2D ) i

OFFICIAL SEAl ANNA C GUENTHER NOTARY PUBUC·OREGON COMMISSION NO. 449050

MY COMMISSION EXPIRES MAY 17.2014

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