We are happy to report that OPBA
member Denise Weisbarth has finally been returned to
duty (01-22-08) after being unjustly terminated in
September, 2004.
In January, 2006, an arbitrator
ordered that Ms. Weisbarth be reinstated and made whole
for her losses. Weisbarth's employer, Geauga Park
District, then appealed the arbitrator's award to the
court of common pleas; court of appeals; and, finally,
the Ohio Supreme Court, losing at every step of the way.
This case is noteworthy not for the
length of the appeal process. Rather, this case is a
text book lesson in how the mental health system can be
manipulated and abused by unscrupulous employers.
Weisbarth's problems started in July,
2004 when she was attacked and bitten by dogs owned by
her brother. Rather than shoot and kill her brother's
dogs, Weisbarth fired a warning shot into the ground at
her feet to scare off an attacking dog. The ploy worked
but technically she violated policy by firing a warning
shot.
Her chief and lieutenant were
concerned that Weisbarth could not "shoot to kill" if
the situation demanded it, so she was sent for
additional use-of-force training and got a letter in her
file.
Not long after this matter was
finally resolved, the Chief was forced into retirement
and a consultant brought in to "mentor" the lieutenant
who was now acting chief. The consultant immediately
began scrutinizing all of Weisbarth's activities. For
instance, Weisbarth gave a warning to someone fishing in
an unauthorized area and documented this with a report.
The consultant then made a point of hunting down the
citizen trying to solicit negative comments or
complaints against Weisbarth.
As the Department's K-9 officer,
Weisbarth spent weeks preparing for a demonstration at a
regional conference in coordination with other area K-9
teams. Just a couple of days before the conference the
consultant ordered Weisbarth to give a completely
different demonstration that the dog had not been
trained in. When the demonstration flopped, the
consultant then used this as an opportunity to criticize
Weisbarth and recommend that the K-9 team be disbanded.
Every trivial event was spun by the
consultant into some sign of instability on Weisbarth's
part. What was most bizarre, however, is how the
consultant rewrote the history of the "warning shot"
incident. In the new version, Weisbarth was painted as a
gun-wielding maniac who draws her weapon and fires
indiscriminately.
The consultant's rewriting of that
event would then form the basis for the employer to have
Weisbarth's "fitness-for-duty" evaluated by a
psychologist. What we learned through the documents
obtained from the employer is that the consultant spent
a great deal of time shopping for the right
psychologist. The consultant then met with the
psychologist prior to Weisbarth's appointment and
proceeded to fill the psychologist with false and biased
information. In other words, the consultant made sure
the psychologist's mind was poisoned against Weisbarth
before he even met her.
When the psychologist testified at
the arbitration hearing he vehemently denied ever having
met with the consultant. With great affect the
psychologist surveyed the hearing room and asked if the
consultant was present because he would not recognize
the consultant if he were sitting in front of him.
Clearly, the doctor did not know that
we had the consultant's billing records documenting
their secret meeting. When the doctor then had to eat
his words about having met the consultant, the doctor's
credibility was shot.
After the first psychologist's
negative evaluation the union had Weisbarth
independently evaluated and she was found fit-for-duty.
The employer then engaged a second psychologist to
perform a third evaluation. Once again the employer went
to work poisoning the well. It was only at the
arbitration hearing itself that we learned that the
third doctor had been supplied a written "chronology" of
events concerning Weisbarth. Some of the events in the
"chronology" were purposely put in the wrong order. For
example, during the warning shot incident Weisbarth was
part-time. She was promoted to full-time status a couple
of weeks later. The employer had no contractual or
statutory duty to promote Weisbarth. So if you thought
she was crazy, why did you promote her? The employer
never could adequately explain this. Instead, they
changed the dates. The anonymous "chronology" given to
doctor number 3 showed the promotion occurring two weeks
prior rather than two weeks after the warning shot
incident. Actual time cards from the relevant period
showed this "chronology" to be a fraud.
The arbitrator endured three full
days of testimony and took in hundreds of pages of
exhibits. In the end he saw the employer's case for the
fraud that it was and ordered Weisbarth's reinstatement
with back pay.
What lesson can be learned from this?
This case certainly illustrates the extraordinary
lengths some employers will go to in order to terminate
someone. It also demonstrates how susceptible mental
heath professionals are to manipulation and bias.
Indeed, the whole "fit-for-duty" evaluation process is
fraught with peril for the officer. After all, even in
cases where the doctor has not been purposely tainted,
isn't it logical for the doctor to assume there must be
a problem, otherwise the employer would not spend the
money for the evaluation?
