Petrilli Files Appeal

Commonwealth of Kentucky

Court of Appeals

Case No. 2009-CA-001925

Peggy Petrilli v Stu Silberman

hand-delivered 19 March 2010

to the Kentucky Court of Appeals

Attorney J Dale Golden, representing appellant Peggy Petrilli, filed an appeal today. Golden centered the appeal on his claim that Fayette County Circuit Judge James Ishmail erred when he "found that Petrilli waived all of her claims against the Defendants when she resigned" because, Golden argued, "employers cannot absolve themselves of liability by successfully compelling employees to resign."

Reporting live during the trial KSN&C recorded surprise at the jury instructions.

KSN&C reported by Twitter this morning (July 28, 2009) that there was a debate of nearly one hour over jury instructions and the focus was on whether the jury believed Petrilli voluntarily resigned. This turned out to be the critical debate of the day.

Judge James Ishmael argued that if the jury decides Petrilli voluntarily resigned, knowing her options - How is that not a waiver of any claims?

Golden responded that Petrilli had no bargaining power in the matter and was therefore not an equal player. "If you're not the person holding the gun, you don't waive anything," he said.

Again by Twitter, KSN&C reported the argument in real time and reacted to the potential impact of the decision on the case:

Jury instructions hinge on one question alone.

"Question #1 Do you believe from the evidence that the plaintiff, Peggy Petrilli, voluntarily resigned from her position as Principal of... ...Booker T Washington Academy on August 27, 2007?

If you answer Yes...you have found for the defendants...FCPS.

If no...then jury proceeds to 8 pages of instructions on race discrimination, retaliation and whistleblower claims.

Wow. So the central question of the case becomes THE big question for the jury. If they believe her resignation as written...it's over.

Well, perhaps it's not totally over. That will be up to the Kentucky Court of Appeals.

Following trial in the lower court Golden immediately outlined his thoughts on an appeal.

What we’re looking at is the prospect of an appeal, specifically, the very first instruction that was given. It was our argument that there are four elements to a reverse discrimination claim. So it will be for the appellate court to decide whether that first instruction should have been given or not...We argued against the first instruction that would nullify not only the reverse discrimination claim, but also the retaliation and the whistleblower claim. In other words, our position would be that she could be – even if Peggy voluntarily resigned there could have been some things that occurred that could constitute a whistleblower violation, so violations of the law could have occurred earlier.

Attorney John McNeill, representing Superintendent Stu Silberman and the Fayette County Board of Education said, "Everybody looks at the [jury] instructions differently. That’s why we have litigation. He’ll make whatever options; and assess that with his client, and pursue those things, and we’ll pursue the things we need to do…"

Here are the highlights of Petrilli's case as filed today

I. STATEMENT OF THE CASE

A. Berry and Clark Worked Together to Get Rid of Petrilli.

1. May and June 2007—In Accordance with School Policy, Petrilli Reports the Clarks’ Child For Being Out of Area.
2. July 2007—The Clarks and Berry successfully get rid of Petrilli.
3. August 22, 2007—Secret Meeting violated Kentucky Law.
4. August 23, 2007 – Petrilli was forced to resign.

II. ARGUMENT

A. Federal law is applicable in interpreting the Kentucky Civil Rights Act.

“The Kentucky discrimination statute is modeled after, and is virtually identical to, Title VII. Kentucky courts have, therefore, followed federal law in interpreting its anti-discrimination statute.” Since the KCRA was enacted to implement the federal Civil Rights Act of 1964 in the state, its provisions mirror the federal Act. Thus, it is proper to look to federal law in these cases.
B. The trial court erred in creating a threshold jury instruction that superseded the elements for reverse discrimination, retaliation, and whistleblower.

This Court uses a de novo standard of review for erroneous jury instructions. The jury was given the following improper threshold jury instruction:

Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily resigned from her position as principal of Booker T. Washington Academy on August 2, 2007?

The jury marked “yes” and returned to the courtroom where the trial judge discharged them from further duties. The threshold instruction was given in error because it is completely different from the elements of Petrilli’s claims for reverse discrimination, retaliation, and whistleblower, as demonstrated by the jury instructions given by the court.

Petrilli was entitled to a jury instruction regarding her claim of constructive discharge. The standard for constructive discharge is whether the “conditions created by the employer’s action are so intolerable that a reasonable person would feel compelled to resign.” Thus, what may appear to a layman on the jury to be a voluntary resignation may in fact have been compelled by an employer’s conduct. Petrilli was entitled to a jury instruction explaining the difference. In addition, proof of a constructive discharge is but one of a myriad of things that satisfy the requirement of an adverse employment action that is necessary for a reverse discrimination instruction and a retaliation jury instruction.

In Brooks, the court noted: “While constructive discharge may constitute an adverse employment action within the meaning of the KCRA, not all adverse employment actions constitute constructive discharge.” Although Petrilli submitted a constructive discharge instruction, none was given. Constructive discharge instructions are submitted to the jury in these types of cases because a constructive discharge is a type of adverse employment action. The pivotal issue is whether the employee felt compelled to resign. However, the act of resignation as a part of a constructive discharge is but one of many potential adverse employment actions available to support a jury verdict.

(1) The Elements of a reverse discrimination claim are as follows:

(a) Petrilli is a member of a protected class;
(b) She experienced an adverse employment action;
(c) She was qualified for her position of employment; and
(d) She was replaced by a person of a different race.

(2) The elements of a retaliation claim are as follows:

(a) She engaged in a protected activity under KRS 344.040;
(b) This activity was known to the Defendants;
(c) Defendants took an adverse employment action against Petrilli; and
(d) A causal connection exists between that adverse employment action and the Petrilli’s exercise of the protected activity.

(3) The elements for a whistleblower claim are as follows:

(a) She reported actual or suspected violations of law, mandates, rules or policies;
(b) The Defendants caused her to be subjected to reprisal or directly or indirectly used official authority or influence against her as a result of her report.

The trial court specifically found that Petrilli waived all of her claims against the Defendants when she resigned. This rationale on the part of the trial court was erroneous because employers cannot absolve themselves of liability by successfully compelling employees to resign. If Petrilli resigned on a Wednesday, it does not negate retaliation exercised against her in violation of the whistleblower statute that occurred on the prior Tuesday or any day prior to that. In fact, it is not uncommon for employees to resign from their employment when employers act in an unlawful manner.

The discrimination and retaliation claims share a common element of an “adverse employment action.” Thus, if Petrilli resigns on a Wednesday, it does not negate retaliation, or discrimination, or reprisal that occurred on the prior Tuesday or any day prior to that. Again, it is not uncommon for employees to resign from their employment when employees act in an unlawful manner. Petrilli’s resignation is not dispositive because constructive discharge is but one of a myriad of potential adverse employment actions that satisfy the prima facie elements of discrimination and retaliation.

[W]hile constructive discharge may constitute an adverse employment action within the meaning of the KCRA, not all adverse employment actions constitute constructive discharge.

Thus, an adverse employment action includes, but is not limited to, “constructive discharge.” Violations of the law can occur prior to, during, or even after an employee attempts to resign.

Voluntariness is but one component of the larger issue of constructive discharge. Along the same vein, Parker v. Board of Regents of Tulsa Junior College, held that a “resignation is involuntary and coerced when the totality of the circumstances indicates the employee did not have the opportunity to make a free choice.” Scharf v. Dept. of Air Force advises that, in order “to determine whether a resignation or retirement is voluntary, a court must examine the surrounding circumstances to test the ability of the employee to exercise free choice.” Furthermore, “voluntariness is vitiated when one” of the following occurs:
· Employee resigns under duress;
· Employee unsuccessfully tries to withdraw resignation before its effective date;
· Employee submits a resignation under time pressure;
· Employee fails to understand the situation due to mental incompetence; or
· Resignation obtained by misrepresentation or deception.

There was ample evidence presented concerning the strict time constraints imposed on Petrilli. This is important, because a true, voluntary resignation is done when the employee wants to do it, not when the employer orders it done by a certain time.

In Commonwealth of Kentucky v. Stosberg, the Plaintiff signed a resignation letter after her employer attempted to force her to transfer to another location. In effect, the circumstances her employer placed her in left her with no other option. The court thus determined that a constructive discharge occurs where the “conditions created by the employer’s actions” compel the Plaintiff to resign. Northeast Health Management, Inc. v. Cotton, et al. also deals with a situation in which two employees tendered resignation letters. In that case, the employees resigned after their supervisor stopped speaking to them and began assigning their lunch and break times. The jury ultimately found that the employees had been constructively discharged. The Court of Appeals upheld the jury’s decision. In doing so, the Court of Appeals stated that, “while the conditions alleged may not have been the most egregious imaginable, they surely rise to the level that the jury had sufficient evidence to find a constructive discharge.”

Walther testified at length about Petrilli’s financial constraints due to the fact that, unlike teachers, administrators are not covered by the KEA insurance and, therefore, administrators have to pay for their own attorneys. Thus, Petrilli would have paid $25,000.00 at a minimum to go through the tribunal process, while having no money coming in from the school, and while having to care for her adult son, who resides with her and has the mind of a 5-year-old. Certainly, this Court can see that Petrilli recognized that she had no choice and that Silberman was not going to follow the due-process procedures set out in the KAR, KRS, and the Board’s policies. Therefore, the only option Petrilli had was to resign and try to obtain employment elsewhere. She attempted to do this and part ways with Silberman; however, Silberman and Allen manufactured the “investigative memorandum” some 8 months later as an insurance policy against the lawsuit Petrilli was about to file. Having successfully tarred and feathered Petrilli, despite the subsequent finding by the Kentucky Department of Education that there was not enough evidence to support the charges, Petrilli is unemployable in her chosen profession.

In Schultz v. U.S. Navy, the court concluded that “an ostensibly voluntary resignation which was submitted as a result of agency coercion…must be treated the same as an adverse action.” Furthermore, a resignation is not voluntary where an agency imposes the terms of an employee’s resignation, the employee’s circumstances permit no alternative but to accept, and those circumstances were the result of improper acts of the agency.

The fact that Petrilli’s resignation was not voluntary is demonstrated by the correspondence between Walther and Allen. It was Allen who added on to the correspondence that Petrilli would not reapply in the future for a position with Fayette County Public Schools. It is clear that, if Petrilli had truly voluntarily resigned, she would have simply walked away. It is unconscionable that she had to try and negotiate with Silberman that she be able to leave her employment without mudslinging.

Silberman’s article in the Herald-Leader, stating that Petrilli was not going back to BTWA; his offer of the Northern principalship, followed by a vindictive decision to threaten Petrilli with suspension; and Silberman’s refusal to comply with the evaluation instrument, due process, and evaluation requirements mandated by the KAR and KRS are all indicative of a constructive discharge. “Constructive discharge presents a question of fact that, in jury trials, should be decided by the jury and not the trial court.” The court’s threshold instruction was thus erroneous.

C. Petrilli Was Entitled to a Directed Verdict on Her Reverse Race Discrimination Claim.
1. Petrilli is a Member of a Protected Class.
2. Petrilli experienced an adverse employment action.
(a) A constructive discharge is an adverse employment action.
3. Petrilli was qualified for her position of employment, and
4. She was replaced by a person of a different race.

Petrilli’s Motion For a Directed Verdict On Her Retaliation Claim Should Be Granted AND THE THRESHOLD INSTRUCTION WAS ERRONEOUS.

The trial court erred in failing to give a separate instruction on whistleblower, failing to direct a verdict, and failing to give a punitive damages instruction. The Appellees took action or threatened action to discourage Petrilli from making disclosure or to punish Petrilli for making such disclosures.

D. It was Error to Dismiss Petrilli’s Constitutional Claims and the Trial Court Erred in Failing to Direct a Verdict on Behalf of Petrilli on her Constitutional Claims.

E. THE TRIAL COURT ERRED IN DISMISSING THE CLAIMS AGAINST ALLEN.
The trial Court erred in its handling of the Batson issue.

THE TRIAL COURT ERRED IN OVERRULING PETRILLI’S MOTION IN LIMINE ON CHARACTER EVIDENCE.

THE TRIAL COURT ERRED IN REFUSING TO SANCTION ATTORNEY MCNEILL AND IN REFUSING TO ALLOW THE SECOND DEPOSITION OF DOUG ADAMS.

F. THE TRIAL COURT ERRED BY PREVENTING PETRILLI FROM TESTING THE SUFFICIENCY OF THE “ADVICE OF COUNSEL” DEFENSE.

G. THE TRIAL COURT ERRONEOUSLY ALLOWED MCNEILL TO READ FROM DEPOSITIONS.

CONCLUSION

Petrilli respectfully requests the following relief:
1. Reverse the trial court for use of a threshold instruction;
2. A directed verdict for Petrilli on the issues of protected class, being qualified for her position, and being replaced by a person of a different race;
3. A directed verdict for Petrilli on the adverse employment issue or, at the very least, a jury instruction setting forth the elements of constructive discharge as tendered by Petrilli;
4. Reverse the trial court and find that Petrilli is entitled to a punitive damages instruction regarding the whistleblower claim;
5. Reverse the trial court’s directed verdict on Petrilli’s constitutional claim;
6. Reverse the trial court’s dismissal of the defamation claim against Allen and the other Defendants;
7. Reverse the trial court’s arbitrary discovery deadline of August 27, 2007;
8. Allow Petrilli to take the discovery deposition of Allen;
9. Reverse the trial court’s ruling on the motions in limine regarding character evidence;
10. Allow Petrilli to retake Adams’ deposition, sanction opposing counsel for his misconduct and award costs and attorneys’ fees; and
11. Direct a verdict in favor of Petrilli on all constitutional claims;
12. Permit Petrilli to test the sufficiency of the “advice of counsel” defense;
13. Reverse the trial court’s erroneous ruling which allowed for improper impeachment and rehabilitation; and,
14. Remand this matter for a new trial.

Respectfully submitted,

GOLDEN & WALTERS, PLLC

Petrilli v Silberman Goes to the Jury

"You can see how Peggy's been treated...

how she's been demonized.

Don't let them get away with it."

--J Dale Golden

Testimony and closing arguments in the case of former Booker T Washington Academy Principal Peggy Petrilli against Superintendent Stu Silberman and the Fayette County Board of Education concluded around 12:50 this afternoon. It's all in the hands of the jury now.

John McNeill for the defense held his closing remarks close to the jury instructions focusing on the one central question in the case.

Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily
resigned form her position as Principal of Booker T Washington Academy on August
27, 2007?

If the jury answers this sole question "Yes," the case is over and Stu Silberman and the board prevail. The longer it takes to reach a verdict - the greater the chances that Peggy Petrilli has prevailed.

If the jury does not believe Petrilli's resignation to have been voluntary they will proceed to the attendant issues of racial discrimination, retaliation and the whistleblower claim.

On racial discrimination the evidence must show:

• Petrilli was a member of a protected class
• she was subject to an adverse employment action
• and was replaced by Silberman by an African American person as Principal at BTWA

On Retaliation the evidence must show:

• She complained about racial issues committed by agents, representatives or employees of the board
• The defendants knew of her complaint
• She was subjected to adverse employment action
• and there was a causal connection between the complaint and the action

Under the Whistleblower statute the evidence must show:

• she reported information regarding actual or suspected violations of law or policy to the board through its agents and
• the board caused her to be subjected to reprisal, or directly or indirectly used its official authority, or influence against her as a direct result of the report.

On damages:

If the jury finds any of these to have been violated it may fairly and reasonably compensate her for mental pain and suffering, lost wages and permanent impairment of her ability to earn money in the future.

McNeill has maintained that it was Petrilli who resigned voluntarily after becoming upset when Silberman informed her of a meeting he had with Booker T parents and community members and shared their 2 1/2 page list of of complaints. He said that Silberman still wanted to defend Petrilli and even offered her the post back at Northern Elementary where she had seen great success, but that it was Petrilli who rejected the offer in favor of looking into retirement.

In his close, Dale Golden followed a much different course weaving a tale of circumstances that he said show the coordinated mistreatment of Petrilli at the behest of BTWA parents Jessica Berry and Alva and Buddy Clark in return for their not pursuing an OEA complaint, picketing the school, or unwanted media attention. Golden argued, "You can see how Peggy's been treated...how she's been demonized. Don't let them get away with it."

Petrilli v Silberman: Day 1

Right now, I’m not comfortable that
the facts are so undisputed, that I feel comfortable
making a ruling as a matter of law.

---Judge James Ishmael
rejecting a summary judgment during a pretrial hearing

Before today's trial began, Fayette County Circuit Judge James Ishmael addressed plaintiff's attroneys J Dale Golden and Melissa Thompson, and defense attorney John McNeill, in Petrilli v Silberman outlining how he planned to proceed in court.

“I am making no promises to anybody, other than… I’m going to try my dead-level best to listen to this stuff fairly and objectively. And if it’s a factual question, obviously, it goes to the jury. If there’s no dispute of the facts, and…I can make a ruling as a matter of law, then I’ll do the very best I can. That’s all I can promise you… Let’s go to trial. Let everybody put on their best story, truthfully, in good faith, professionally…. I will take a hard look at the evidence as it comes in…”

He repeated those sentiments in court this morning while KSN&C followed along.

8:30am: Judge James Ishmael and attorney discuss procedures for voir dire, challenges and how to handle jurors who are past or present board employees; each side allowed 4 juror strikes.

Attorneys discussed the legal issue of whether or not the BTWA council selected former Principal Peggy Petrilli or if it was Fayette County Superintendent Stu Silberman.

McNeill: argued that the superintendent sends a list of candidates to the Council and the council selects. “When it comes to selecting, the superintendent has no input on that.”

Rather than refuting, Golden argued a different question of law relative to the claim of reverse racial discrimination in Petrilli’s situation saying the legal question was, “[was she] replaced by a person of the other race?”

Ishmael admonished the attorneys. “I expect everybody to be on their best behavior…”

8:54: Jury pool enters, sworn in

9:05: Judge addresses potential jury pool; calls 22 from the pool for voir dire

9:13: Ishmael: Are any of you all employees of the Fayette Co BOE at this time? Have any of you ever been employed? How about immediate family? Any of them employed by the board?

(Several had connections: a bus driver, teacher@ Deep Springs, teacher @ Beaumont, former student teacher from HC, Marching band TCHS, wife’s a teacher, sister was former student teacher, husband is retired bus driver, sister is teacher at Morton...)

"The board and Silberman are a party in this matter… Do you think that if you voted against the board, do you believe our wife’s job would be in jeopardy?" Ishmael asked. "Would that have any effect on your consideration?"

9:24 The first of several side bars with attorneys

9:43: Four jurors with FCPS connections were excused and replaced. (Of the new jurors, one had a sister who was a special education teacher at several schools now retired. Another has a mother who is a special education teacher at Garden Springs)

9:48: Ishmael discussed the length of the trial: "We are now anticipating this will take six days, Wednesday & Thursday of this week, and all four days (M-Th) next week for trial. Can you be available? ...Were any of you excused officially before now for any of these dates?" (One juror excused; Another juror excused for medical reasons.)

10:00: Five more excused for medical, scheduling and other unknown reasons.

Two new jurors were called. One, a Lafayette teacher was excused.

Ishmael questioned the jury pool on issues related to their health, hearing, language…

“We’re going to be conducting this trial on good ol’ Kentucky English... Any language concerns?”

He outlined the civil case, the time period and that Petrilli had been principal at Booker T Washington Academy and following her departure is now seeking damages.

10:22: Ishmael asked, “Anybody know anything, heard about, or read about anything about the case…names, circumstances, date, anything?"

A half dozen jurors approached the bench individually to explain their background knowledge and one was excused.

Prior to calling for a 15-minute break, the judge gave the jury a strong admonishment against discussing or researching the case. “Don’t look at the news accounts…TV…don’t listen to radio…do not read anything about it in the morning paper…don’t look it up on the internet. It is very important.”

During the break I chatted with Jim Warren of the Herald-Leader.

11:17: When court resumed a juror with a 5-month-old child was excused.

The judge introduced Petrilli and her attorneys, followed by Silberman and his attorneys. “Let us know if you have knowledge of any of these folks,” Ishmael said.

He continued questioning, “Do you pledge to this court …[that] you will base your verdict on the evidence and instructions of the court? …We‘re not gong to Google. Everybody pledge not to do that?”

11:28: He further asked about proof in the case, and the potential for awarding damages. “Anybody uncomfortable with anything I asked or anything I didn’t ask?”

A juror was excused – for being the wife of one of the attorneys.

At the end of the morning session Dale Golden began his questioning of the jury.
“How many people believe there’s too much litigation today?”

He questioned about service on the PTA or school council.

Golden’s introductory comments to a question drew an objection form McNeill: “Is there anybody that believes that there is no such thing as reverse discrimination?” Golden asked.

“Anyone here believe that all resignations are voluntary? ...Anybody believe its’ wrong to file a lawsuit? ...“Is there anybody who would have a problem awarding damages for mental anguish? …punitive damages?”

“Does everyone here agree that the law on discrimination should be applied equally?”

That drew another objection from McNeill and Judge Ishmael decided to break for lunch.

Lunch Break:

Before resuming Judge Ishmael called Richard Day of KSN&C to the bench to outline the allowable procedures during the trial in the courtroom.

1:25pm: Golden quickly concludes voir dire.

Side bar. A juror was struck and replaced.

1:33: McNeill begins voir dire. "Have you or... any member of your family ever sued someone? Have any of you ever read any education blogs that have covered this issue? Does anybody feel like the Board of Education is entitled to less [because they are a government entity]? If yo find the case is not proved...even if you have sympathy [for the plaintiff]...will you decide based on the facts?"

McNeill asked potential jurors if they had philosophical problems with the concepts of soverign immunity, or that a superintendent might enjoy individual immunity.

Then McNeill took a little poll asking the panel their opinion of Silberman by a show of hands. Of the 22 potential jurors voting, my best count was...

Silberman is a good superintendent = 7

Silberman is average = 3

Silberman is poor = 0

Judge Ishmael then asked how many had no opinion = 9

McNeill asked how many jurors had never had children in FCPS = 10ish

"Have any of you had a bad experience...[in FCPS] that might influence your decision in this case?"

Two jurors cited problems, both related to Bryan Station High School.

Have any of you ever "had to attend a board of education meeting because you advocated for or against a policy change? ...member of the PTA? ...Booster club? ...believe parents have a right to talk to the principal, teachers [about problems]?

1:55: One juror reacted when McNeill asked, "Does anybody feel like they have been the victim of racial discrimination? Following a side bar with the juror, he was struck and replaced witha teacher at Liberty Elementary, who was promptly excused and replaced.

One juror drew laughter when she responded to a question by saying, "I was brought in to fix the books at Winburn. ...and then realized what she had said.

2:00: McNeill asked his racial discrimination question again.

"Will you wait until you hear all of the evidence [before rendering a judgment]?" do you have a problem with the concept of retailiation...whistleblower?

2:06: "Any problem finding either way...based on the judges instructions...if the plaintiff does not prove her case? Any problem awarding nothing...?"

Side Bar.

2:17: A juror was excused and replaced by an after school worker at Veteran's Park, who was in turn excused and replaced.

2:24: Side bar.

Judge Ishmael called for a 15-minute break saying a legal issue had arisen which needed to be researched. "I'm embarassed about this but I assure you that it is necessary."

3:17: Break

3:51: Court back in session. Side bar with attorneys.

4:09: Ishmael: This is a very unusual case...highly unusual circumstances...[I'm going to] try my very very best to do this right."

We will call our final jury and call it a day.

Tomorrow the trial will move to Courtroom F, 3rd Floor and begin at 8:45 am - expects to end around 4:30-5:00 pm.

A jury of 14 (two alternates) was selected by lot. Of the 12 who finally render a decision, 9 must agree on the verdict.

The jury consists of 3 blacks, 11 whites; 5 men, 9 women.

4:20: Ishmael repeated his admonishment to the jurors not to talk about or research the case and made a few other procedural remarks.

Judge Ishmael informed counsel that he had given permission for Richard Day of Kentucky School News & Commentary and the Herald-leader photographer to take one photo of each witness, and he has allowed one pool TV camera, but will not permit audio recording of the proceedings.

4:32: Adjourned

Prosecution Rests in 1970's Sex Abuse Case

This from the Herald-Leader, photos by Pablo Alcala.

Fayette school sex-abuse case gets new details

Maner testifies against former science teacher

For the early part of Monday afternoon in Fayette Judge James D. Ishmael Jr.'s courtroom, Carol Lynne Maner didn't look at the man the commonwealth had charged with raping her 30 years ago.

When Maner had to, she called him Mr. Hubbard. She was polite and quiet, wringing her hands.

But she gained some strength as the day wore on.

When special prosecutor Tom Smith asked her to describe the evening of her first sexual encounter with her ninth-grade science teacher, she turned to the defense table and called Jack Russell Hubbard by the name she had always called him, Russ. Then she told how, in the 1970s at Beaumont Junior High School, she'd turned to him for help when she was being molested by Roberta Blackwell, an art teacher, and he, in turn, introduced her to marijuana and heterosexual sex.

"He seemed compassionate," she said when Smith asked why she went to speak to him about her problems. "He said he was available to talk to me."

Maner described how Blackwell drove the 15-year-old girl to Hubbard's home and left her on his porch. She told how he beckoned her into his bedroom, taught her to roll and smoke a joint and how he allegedly said she needed a man to "take her
virginity."

Maner described herself as "in no position to refuse."

And this from H-L:

Woman testifies she, other teacher

had sexual relationships with former student

Roberta Blackwell Walter, long accused by a former student of repeated molestation, took the stand Tuesday in Fayette Judge James D. Ishmael's Jr.'s courtroom and admitted having sex with Carol Lynne Maner who was 15 at the time.

"I realize I was the adult, and she was the child," Walter told jurors. "I should have nipped it in the bud. I knew it was wrong."

The admission came in the trial of Jack Russell Hubbard, who is accused of first-degree rape of Maner and first-degree sodomy of Thomas "Beau" Goodman III while both were students at Beaumont Junior High School in the 1970s. Walter testified for the prosecution against Hubbard as part of a plea agreement that would reduce two felony charges against her, with likely prison time attached, to misdemeanor charges carrying only probation...

The commonwealth closed its case late in the morning. The defense begins its case Tuesday afternoon.

HE SAID, SHE SAID

This is a big case.
And I’m going to give the plaintiffs
an opportunity to put on their proof.

---Judge James Ishmael

Court documents reveal the strategies and legal theories that will take center stage in Petrilli v Silberman this week and next. In two installments, HE SAID, and SHE SAID, Kentucky School News & Commentary will outline each side’s arguments in upcoming posts.

In a June 23rd pretrial hearing in Judge James Ishmael’s Fayette County Circuit Courtroom plaintiff’s attorneys J Dale Golden and Melissa Thompson along with school board attorney John McNeill argued the conduct of the case and what kinds of information the court would allow, and what would not be allowed. In addition, Fayette County Schools Superintendent Stu Silberman was relieved of personal exposure on the discrimination and whistleblower charges in his individual capacity, while he remains on trial in his official capacity.During the hearing, Judge Ishmael focused the attorneys on the "magic date" of August 22, 2007.

This is the date that former Booker T Washington Academy principal Peggy Petrilli either quit or was forced out.

Following Petrilli’s departure as principal, Board Attorney Brenda Allen conducted a 9-month investigation. But the investigation was conducted after the fact. Is the information Allen collected germane to the case?

Previously, District Civil Rights Compliance Officer Barbara Conner had investigated complaints, as well, but those issues did not appear to result in any disciplinary action against Petrilli and were considered by her to be resolved.

Petrilli’s attorneys moved to have it stricken.

What information will Ishmael allow the jury to hear?

Ishmael: The Allen investigation...was conducted fall/winter 07-08. I did feel like, under the circumstances, whatever happened...regarding Ms Petrilli and her position with the board...whatever the investigation showed [after August 22, 2007]...was not part of our proceedings because whatever happened had happened. The investigation wasn't going to change that...

These alleged “bad acts” that were covered by [Barbara] Conner...in 2007 or maybe even before that - that, to me, is a little bit different because it goes into the background and the circumstances culminating, perhaps, in...the meeting with Superintendent Silberman; first with the parents, and so on, and next with Ms Petrilli... To me, before that magic date in August, and after that magic date in August are different...

I know [Petrilli's] argument is that whatever Conner's investigation was, it was basically concluded... [and] addressed...before our magic August time. And I understand that argument. I guess that I'm a little concerned that if we're trying this ...on several theories...how else are we going to put it in context of the reason the board and the superintendent were having these discussions with Ms Petrilli, other than to say that parents had come with their list of grievances?

Golden: 9 months later they came out with [the Allen report]. That report should be off limits...because we couldn't discover that.

Thompson: In fact... even mention of that post-August 2007 testimony by anyone should be wholly off limits because...that would be unduly prejudicial against her.

Ishmael: Well, I've seen some of the correspondence ... and it seemed to me a pretty plausible argument that ... [after] the Superintendent said something about an investigation ... Ms Petrilli said, 'Yeah, I welcome that investigation.' So the fact of an investigation was at the instance of both parties.

McNeill: There were attachments to the report that dealt with matters prior to the time...those things...those specific events...are specifically relevant.

Ishmael: I don't think that what Ms Allen wrote in her report, or concluded...has anything to do with our case.

Thompson: There is a ... 3 page document that was the parent's list of complaints. Those were the complaints that were taken to Stu Silberman and [Director] Carmen Coleman...that initiated the [Allen] investigation...that was not done until ...months later. All of the material stemming from Barbara Conner's [2006] investigation pre-dates that and...[has] nothing to do with the fact that [this] unknown group of parents took a... complaint ...to the [superintendent]. So anything that Barbara
Conner investigated was complete and... resolved and has no bearing, particularly in light of the fact that...Ms Petrilli's supervisors... Bob McLaughlin, Lisa Stone and Carmen Coleman, never put any of this information...in their statutorily mandated evaluation of Ms Petrilli.

McNeill: The evidence is...that even after Petrilli tells Ms Conners...I've taken care of this; the documents show...the same problems that those parents had, continued; from...her inception there at that school and continued on. So it is relevant...

Ishmael: I am going to overrule the plaintiff’s motion to exclude… prior circumstances involving Ms Petrilli, concerns raised by parents, investigations raised by Ms Conner, I think all of these are probative and relevant to the issues here. With this caveat…no new information or charges against Ms Petrilli that arose after August 22nd of 07. We’re not going to get into what Ms Allen said, did, recommended, concluded, or any of that.

[The fact that there was an investigation] may very well come out during the negotiations … between the superintendent and Ms Allen, on one hand, and Ms Petrilli and [her former attorney] Mr Walther on another, and it may come out in some of the emails and letters I’ve seen, or writing on the letters, that one side suggested an investigation and the other side agreed with it, or acquiesced in it, or also requested it. It may come out …that an investigation was conducted, if that comes out during the course of explaining the circumstances in the immediate time period of the separation, I will permit the fact…that the investigation was conducted, but nothing about the details…except as to before the August 22nd date.

Plaintiff’s Subpoenas Served:
Superintendent Stu Silberman
Director Carmen Coleman, now Supt in Danville
BTWA parent Alva Clark
BTWA parent Buddy Clark
BTWA parent Jessica Berry
District administrator Barbara Connor
Former Director Bob McLaughlin
Former BTWA principal, current Interim Director Jock Gum
Former BTWA teacher Alice Weinberg
District administrator Vince Mattox
District administrator Gary Wiseman
Former District Director Fabio Zuluaga, now Assist Supt Fairfax Co VA.
Former FCPS Board Attorney Brenda Allen
Cheryl Jones
Former BTW Counselor Doug Adams
BTWA Prof Staff Asst Margaret Gay
Former Director Lisa Stone
Dr Linda Brown Wright
Dora Hudson
Former BTWA teacher Leigh McCauley
Former Herald-Leader reporter Brandon Ortiz

In Petrilli Case its Golden v McNeill

I promise you…I know

[the motion for sanctions

against defense attorney
McNeill is] there…
I know of the concern

that I have regarding

personalities in this matter.

---Judge James Ishmael

Not being an attorney, I don’t really know the behavioral boundaries imposed on lawyers when witnesses are deposed. But I assume the rules of procedure anticipate that a witness should be able to testify without an inordinate number of interruptions. In Petrilli v Silberman the number of interruptions in a couple dozen depositions went well over 1,000. Seems like a lot to this layman.

I was deposed once. I was in a room with opposing counsel, and a court reporter. The attorney’s asked questions. I answered. From time to time an attorney would object to the form of a question, or some point of law, but my ability to answer the questions freely and honestly without an attorney telling me what to say was never abridged.

Reading the court records in Petrilli v Silberman leaves one with a very different feeling. I would not have wanted to be deposed in this case.

This is an old complaint. As early as September 2008, plaintiff’s attorney J Dale Golden was complaining about defense attorney John McNeill's alleged "rude," "abusive," "hostile" comments and exchanges like this:

Golden: "If you're instructing the witness not to answer, then you've got to assert a privilege and I'll ask you to do that."

McNeill: The privilege is that you're being a knucklehead by not answering my question...."

Golden asserted that McNeill was "writing answers down on a notepad and showing them to a witness for the witness to give that answer under oath."

Ishmael pleaded with the attorney’s at the time saying,

"Gee willikers, Fellas. You two guys are too good a guys; you two guys are too professional and experienced to be gettin' into this spittin' contest."

He even got $5 from his wallet and sent them across the street to get milkshakes and make up.

But apparently nothing worked. In the June 23rd pretrial hearing, Golden moved for sanctions against defense counsel.

Golden: If you will watch all of the video tape that we have given you…They walked out of that deposition- Mr McNeill was extremely abusive to Melissa [Thompson]. Extremely. We at the firm, talked about this, and looked at it, and we decided that we do not have any choice but to follow up on that at every avenue, starting here. And if you will look at that video tape…you will be absolutely shocked, and…we could give you fifty more examples. It’s abusive to the nth degree, judge…

I would love to hear what you would have to say about that, and what you would do if you were me, with your young attorney, and we had a summer clerk in there who had some serious questions about practicing law afterwards. You’ve got a court reporter and a stenographer in there. They are extremely uncomfortable. If you will just watch it, and I’d like to hold off discussion until you do…

[Our effort] has been completely frustrated throughout this entire matter. When I filed the original depositions… I challenge you; we counted well over 1,000 objections…I challenge you to open up any page in the whole stack of depositions …and see if you can turn just one page without a smart-alec, hateful, vile comment by Mr McNeill…

And judge, I was willing to let bygones be bygones after that first time that you spoke to us, and since then I’ve told him, ‘I’m going to go back to the judge and to the Court of Appeals’ [as a result of his] taunts, name-calling…and I would appreciate a ruling on that.

McNeill: [accused Golden of slandering his character and said] We know Mr Golden. The Court of Appeals knows Mr Golden, so I’m not that concerned about that.

Ismail: I have been busy in other trials….and frankly, haven’t had a chance to see it. I will be very frank with you. I’m not sure I’m going to take any action on this before the trial. I don’t want to disrupt the trial. We need to get this thing concluded, very badly… I promise you…I know it’s there…I know of the concern that I have regarding personalities in this matter.

So at some point, most likely after the trial, Judge Ishmael will have one extra chore: To render a decision on whether defense attorney John McNeill’s behavior warrants some kind of sanction. Regardless, Golden promises to elevate his complaint to the Kentucky Court of Appeals.

The combatants meet in open court beginning on Wednesday.

Judge Tosses Petrilli's Defamation Claim

Defamation claim against

Fayette schools dismissed

Circuit Judge James Ishmael dismissed former Booker T Washington Principal Peggy Petrilli's defamation claim against the Fayette County Schools ruling that the board did not publish attorney Brenda Allen's report, which accuses Petrilli of improperly holding students back a grade.

Petrilli denies the allegations and is suing the board for alleged racial discrimination.

The Herald-Leader and KSN&C had filed repeated open records requests over months to obtain a copy of the report once it became known that Allen had been assigned by Superintendent Stu Silberman to produce one. Publication is an indespensible element in proving defamation.

Golden previously claimed that the crux of his defamation argument was a now sealed e-mail that Allen sent Petrilli outlining topics she would investigate, and that the report was produced for the sole purpose of defaming Petrilli.

This from the Herald-Leader:

...Petrilli claims the report was a "hit job" intended to discredit her and any litigation she might file against the board. Petrilli is also suing the board for alleged racial discrimination...

...Last week, Golden filed affidavits from two former Booker T. staff members who claimed they were harassed in interviews by Allen.

Assessment coordinator Leigh McCauley claimed she was threatened with suspension if she did not "go along with their agendas." She also claimed that Allen did not understand testing data that she relied on for the report.

McCauley was one of the staff members named in Allen's report. She said that Allen gave her no opportunity to respond to the allegations.

The board tells H-L it stands by the months-long investigation, one Petrilli requested.

Petrilli resigned after parents confronted Superintendant Stu Silberman with a long list of complaints in August 2007. She was principal at Booker T. from March 2005 to August 2007. Petrilli, who is white, claims she was forced to resign because parents wanted a black principal. The board has said Petrilli left on her own, and noted that interim principal Jock Gum is white.

New principal Wendy Brown is black.

Photo from H-L.