IBM BREACHES CONTRACT: ORDERED BACK TO
JURY TRIAL BY FEDERAL COURT
Finding that Defendant IBM had ‘modified’ a pre-trial settlement agreement
with Plaintiff Mark Cring in his case against the IBM Corporation, the U.S.
Federal District Court in Tampa, Florida has ordered case No. 8:00CV2022 back
to a jury trial by granting the Plaintiff’s motion for reinstatement due to
Defendant’s willful breach of settlement contract. That case, which charges that
IBM illegally fired 18 year employee Mark Cring through a pretext just days after
he reported charges of an ongoing hostile work environment to the U.S.
E.E.O.C., was originally dismissed by the Court after IBM reported that a
settlement agreement had been reached in early May 2002.
Plaintiff was compelled to file a motion for reinstatement claiming that IBM
had negotiated that agreement in bad faith solely for the purposes of getting the
case against them dismissed, and then later knowingly refused to execute the
same contract as originally stipulated in a Court conference two months earlier.
The case was dismissed by the Court in response to that announced settlement,
but allowed for the provision of reinstatement for just cause. The case would
have originally gone to a trial by jury as early as June 2002, after the Court ruled
that there was sufficient evidence of illegal retaliation against the Plaintiff in
denying IBM’s motion for summary judgment. IBM announced a settlement
agreement had been reached after their motion was denied.
In opposition to the Plaintiff’s motion, Defendant IBM stated that the Court
should now, more than six months later, enforce that settlement contract without
reinstatement, even though the parties never signed a final copy of a settlement
agreement and continue to dispute its exact terms. The Court further stated that
since the parties had clearly demonstrated that a final settlement was never
reached, the Court cannot simply summarily enforce a non-existent contract, and
therefore, the Plaintiff’s motion should be granted and the case rescheduled for
trial by jury.
The Clerk of the Court has indicated that the case would proceed onto trial by
jury in the December docket, which is already being contested by IBM who is
attempting to further delay the case into 2003.
In his case, Plaintiff Mark Cring alleges that he, and other employees, were
routinely subjected to a hostile work environment by his managers, who felt
‘empowered’ by the IBM Corporation’s new attitude of ridding the company of
older employees by allowing the constructive use of both physical and emotional
harassment, including managers producing loaded handguns in the workplace
and further encouraging younger newly hired employees to threaten violence,
even death, against targeted older workers. IBM documented policy does not
allow any employee, including managers, to possess firearms in the workplace or
tolerate the threat of violence among employees, regardless of reason or intent.
IBM apparently continued to ignore the concerns of employees against these
managers for an unduly prolonged period of time, even though those concerns
were found by IBM to be justified before IBM terminated the Plaintiff.
According to the IBM Business Conduct Guidelines that every employee is
required to read, sign, and abide by, either producing a firearm or threatening
violence on company grounds are in and by themselves suitable grounds for
immediate dismissal. However, the offending IBM managers and employees
remain at IBM Tampa, and only the Plaintiff, who filed Federal charges against
IBM, was terminated, despite having a personnel record of no interpersonal
conflicts or other egregious activity to warrant his termination in comparison. The
offending manager that knowingly promoted the use of violence in his
departments and brought handguns into the workplace stated that the Plaintiff
had ‘come in late’ after working overtime the night before and should have been
terminated, yet still no adequate documentation has been produced by the
Defendant in this case to support those claims. Similarly, almost every other
department member was allowed to flex their work schedules with little or no
notice, but none were equally threatened with dismissal. Plaintiff’s personnel
records even document that the very same offending managers recently
approved a positive annual review and associated merit pay increase just weeks
prior to the Plaintiff’s reports against them.
Plaintiff has produced evidence sho wing that he routinely reported concerns
to IBM management, and then sequentially escalated his concerns up through
senior IBM officers and IBM HR when local management refused to address the
dire and potentially violent situation known to them to exist within the Tampa
workplace. This eventually included reporting those concerns directly to then
IBM CEO Louis Gerstner, now current IBM chairman.
Evidence produced also shows that the report to Mr. Gerstner resulted in an
IBM internal investigation, which the Plaintiff claims was nothing more than an
official ruse used to find fault with the Plaintiff for coming forward with those
concerns against his management, even though IBM knew that those concerns
were valid, and in fact justified. Plaintiff asserts that the treatment he received
from IBM during the alleged internal HR investigation was wholly mean-spirited in
nature, lacking sincerity, impartiality, and further refused to question Plaintiff’s
witnesses or specific items of concern, such as the continued presence of loaded
handguns, continually rebuking the Plaintiff for requesting communications after
weeks of silence, and even to the point of threatening the Plaintiff with ‘dropping’
the investigation, idle at the time, should he continue to make any further
inquiries as to their progress or produce further evidence of harassment.
That IBM HR investigation was deliberately and inordinately unduly prolonged
over a period of six months, yet IBM HR still forced the Plaintiff to remain
unprotected to further known blatant hostility without recourse. Standard
documented IBM HR guidelines indicate that all internal investigations should be
completed within 30 days. Considering the severe nature of the claims involving
firearms and potential violence or even death, IBM should have immediately
attempted to at least diffuse the situation, if not even resolve it, in a more
expedient manner, rather than allowing that potential to further escalate,
intentional or otherwise, in simply refusing to address the concerns in a timely
and forthright manner with further obfuscation.
Since the Plaintiff’s reported concerns made directly to Mr. Gerstner started
the IBM HR internal investigation, the Plaintiff has further identified Mr. Gerstner,
among other managers including senior VP Mr. Doug Elix, as material witnesses
within the case and has further declared that the actions taken against him by
IBM were in fact done in the official name of and with the corporate authority of
Both Mr. Gerstner and Mr. Elix have documented their own stated policies on
workplace violence and harassment, yet neither was compelled to prevent such
occurrences within their own workplace when made directly known to them. Mr.
Elix even sent the Plaintiff an email stating that he personally would not tolerate
any form of retaliation or retribution for coming forward with complaints,
regardless of whether those complaints were either internal or external to IBM in
nature. At a later date, the Plaintiff’s attorney notified Mr. Gerstner via certified
mail that he had already advised the Plaintiff to seek outside assistance with the
U.S. E.E.O.C. if IBM continued to ignore the Plaintiff’s repeated requests for
protection. IBM refused to respond to that notice, but later admitted to receiving
it prior to the Plaintiff’s termination.
Plaintiff further asserts that when he was compelled to hire an attorney to
address his workplace concerns after being continually rebuffed by IBM HR and
senior management for coming forward with continued complaints over a period
of several months, harassment against him escalated to the point where he felt
his personal safety was compromised and in direct jeopardy while he was within
the IBM Tampa workplace. Plaintiff’s attorney put IBM on formal notice of the
Plaintiff’s intention to pursue legal resolution through the U.S. E.E.O.C. as a
direct result of IBM’s refusal to address, let alone mitigate, the Plaintiff’s concerns
over the safety of himself and other coworkers within IBM Tampa. Witnesses
have already testified that they were aware of IBM’s actual declared intent to ‘get
even’ and provoke the Plaintiff into a violent situation in direct retribution for going
forward onto the E.E.O.C.
Evidence discovered by the Plaintiff shows that both IBM HR and IBM Legal
then conspired against the Plaintiff after he had already indicated through his
attorney that he would seek outside assistance via the U.S. E.E.O.C by stating
that since the Plaintiff was the ‘only’ employee coming forward to the E.E.O.C.
with concerns, even though recognized as being valid and with merit, that the
Plaintiff should now be targeted with termination. Plaintiff asserts that this was a
direct attempt to ‘shoot the messenger’ by IBM in an illegal attempt to cover up
valid concerns of a hostile work environment in Tampa.
Plaintiff further claims that IBM intended to use his termination as an example
to other employees who may have reason to be worried about the IBM
workplace, and how their concerns would be handled within the IBM internal
investigation resolution process, which is required by the E.E.O.C. before their
own official investigation can commence. Plaintiff asserts that IBM’s abuse
directed against him was willfully malicious and further intended to instill an
atmosphere of complete and utter fear with cowering servility within IBM Tampa
employees in effort to dissuade any further complaints against IBM, no matter
how valid or justified those complaints may be. Employees in Tampa have gone
on record stating that they fear reprisal if they report concerns about their
workplace to anyone at IBM.
Federal Employment laws indicate that retaliation against any employee for
coming forward with concerns made in good faith against their employers is in
itself illegal. Previous Courts have upheld that those issues themselves do not
have to be upheld, but only that a causal connection between the issues reported
and any retaliation exists. The Court, in denying IBM’s motion for summary
judgment, stated that the Plaintiff had suffered the ultimate in adverse
employment actions through IBM’s act of termination. IBM previously claimed
that the Plaintiff in fact had not suffered any ‘adverse emplo yment action’ through
its act of termination through the use of a constructive discharge of the Plaintiff.
Even by IBM’s own internal findings, made well after the Plaintiff’s initial
complaints and notice of intent to proceed onto the E.E.O.C., yet before Plaintiff’s
termination, these managers had intentionally “misled” investigators and had in
fact created a “hostile work environment”, by IBM’s very own definition.
However, IBM HR still refused to communicate this finding to the Plaintiff, and
still forced him to remain within a now known hostile environment to be knowingly
subjected to further harassment. Plaintiff asserts that this action was further
attempt to inflict distress upon him in direct retaliation for going onto the
E.E.O.C., otherwise, IBM would have immediately attempted to diffuse the
situation or make reasonable accommodation. Curiously, IBM HR refused to
follow their very own guidelines on harassment and the protection of employees,
even when directly pointed out to them by the Plaintiff.
After another violent confrontation with the same young newly hired employee
already known to have threatened to kill the Plaintiff previously, IBM maliciously
fired the Plaintiff for nothing more than attempting to protect himself from physical
harm by claiming that he ‘abandoned’ his job in leaving that hostile
confrontation, willfully and knowingly forced upon him by IBM HR. Evidently, IBM
HR expected the Plaintiff to undertake a physical beating from this younger
subordinate worker, who was already known to them as having a documented
history of threatening violence in the workplace and a displayed animus towards
older ‘baby boomer’ workers.
Additionally, the employee that was already known to make multiple threats
against the Plaintiff was not similarly terminated, clearly indicating disparate
treatment between an 18 year veteran employee with a commendable service
record of promotion, and a younger new hire employee already known by IBM to
be potentially violent and has already been found to have committed racial
harassment against a different employee previously as described within an IBM
internal report on the subject. This same employee has further been reported as
committing sexual harassment against other female coworkers as well. Similarly,
the manager that is known to have a record of violent temper tantrums and
rages, allegedly committed acts of criminal harassment against employees, their
spouses and/or children in the name of IBM, and to have regularly carry/produce
loaded firearms and occasionally ‘spinning’ the loaded gun chamber in his
Tampa IBM office, remains employed at IBM. Plaintiff’s work record obtained
from IBM shows no complaints of a similar nature made against him, yet he was
the only employee terminated, and under known extenuating circumstances by
IBM HR and IBM Legal, including a still open internal IBM investigation.
Additionally, the internal IBM HR investigation presumably started several
months before by the Plaintiff’s complaints to the CEO was itself only ‘completed’
two weeks after IBM terminated the Plaintiff’s employment. Discovered evidence
indicates that after IBM HR refused to disclose their findings directly to the
Plaintiff, IBM HR sent a letter composed by IBM Legal indicating that the Plaintiff
was not found justified in his complaints. That letter was composed and mailed
several days after the Plaintiff’s termination, yet more than a month after different
evidence discovered indicates that the same IBM HR people found that the
Plaintiff’s managers should be immediately removed from management, but still
employed. That internal letter of finding was deliberately withheld from the
Plaintiff during his employment, further proving that IBM, as an entity, has no
qualms when it comes to directly lying to their employees.
The case further alleges that since IBM was and is aware that a hostile work
environment existed, by their own finding, and that since only the person that
complained to the E.E.O.C. was terminated after blowing the whistle on IBM for
that hostile work environment officially sanctioned by IBM, which has the
potential for extreme violence through gunfire, that potentially violent workplace
still willfully and knowingly exists for current employees and any customers within
the IBM Tampa location to this day. The Plaintiff further asserts that IBM indeed
ratified their illegal actions by allowing employees known by them as being
hostile to remain gainfully employed, while only termi nating those employees
who report the egregious violations to Federal authorities after refusing to take
prudent and appropriate steps internally to resolve the hostile situation. In short,
the Plaintiff asserts that he was terminated for following published IBM guidelines
on Business Conduct & Ethics, and by the very same authorities within IBM who
composed and upholding those very same documented doctrines.
IBM has still steadfastly refused to reinstate, or even rehire, the Plaintiff,
further reasoning, and hence declaring in factual acknowledgment, that the
hostile work environment that resulted in his dismissal still exists within Tampa to
this day and is ongoing. IBM did not have a plausible answer as to why the
Plaintiff would not be allo wed to transfer to any other work location other than
Tampa or why they consider established harassment, production of loaded
handguns, or violence non-threatening to any other Tampa employees or
customers, even though they continue to recognize its existe nce.
Apparently, the Defendant’s retaliation is ongoing and complete in execution
in that the Plaintiff was terminated by IBM without any severance pay after
almost 18 years, any earned bonus due, the return of his personal belongings,
the outstanding out of pocket business trip expenses still owed him, and has
frustrated the Plaintiff’s attempts from obtaining suitable employment elsewhere.
Applicable laws uphold that the Defendant is still required to reimburse the
Plaintiff for these outstanding items, even if the termination was for just cause.
The fact that IBM, as a complete entity, willingly and knowingly pursues such
a contemptible path against their own employees by their own choice and design
is in itself telling about the current IBM corporate attitude of treating their longtime
employees in such an immoral, unethical, and blatantly illegal manner, which,
unfortunately, still remains financially rewarding to IBM. All the actions described
were apparently officially sanctioned throughout all levels of local and national
IBM management, up to and including the IBM CEO. The Plaintiff further asserts
that under these known circumstances, the non-payment of such items is nothing
more than a multi-billion dollar corporation flagrantly stealing from their
employees. Produced evidence also illustrates that Mr. Elix, among others within
IBM, was made directly aware of this situation via certified registered mail, but
refused to take any action to correct the situation.
Now, as the U.S. Federal Court has already recognized in their rulings, if the
IBM Corporation and their appointed legal counsel cannot even be trusted at
their own word within U.S. Federal Court, what realistic expectation does the
average IBM employee have of IBM in keeping their word to employees ?