The Wrong Question: BW Probe Triggers Tort Claim

Idaho attorneys ready to take on State in disability, sex discrimination suit


Gov. C.L. "Butch" Otter and his appointee, Idaho Department of Labor Director Ken Edmunds, have had little to nothing to say about allegations of disability- and gender discrimination at the Labor Department, first revealed in a Boise Weekly investigation (BW, Feature, "The Wrong Question," Nov. 26, 2014). Their silence will presumably come to a halt when an expected federal or state lawsuit--perhaps both--deposes Otter and Edmunds. That's when the two top state executives could be called as witnesses to answer charges that a prime candidate to become administrator of the Idaho Human Rights Commission was humiliated during a job interview at IDOL last year.

"He made me feel like I was less than a person," Don Dew told BW, referring to Edmunds' alleged questioning of Dew's disability, an epileptic seizure disorder, and whether it would limit his ability to work a 40-hour week. Additionally, Dew learned that at the time of his interview with Edmunds, Pam Parks, the then-administrator of the Idaho Human Rights Commission, had referenced Dew's sexual orientation. Parks is also named as a party in Dew's tort claim, filed Jan. 28. If the state of Idaho does not take action to resolve the matter within 90 days of the filing, Dew's Idaho attorneys say they're prepared to sue in state, federal or both courts.

"In all honesty, it first came on our radar when we read your article," said Ronaldo (Ron) Coulter, partner at Idaho Employment Law Solutions in Eagle.

Dew's resume reveals he has worked as a professional advocate for human rights, with particular emphasis on individuals with disabilities, for nearly 15 years. He currently lives and works in Sioux City, Iowa, but has also worked in Kansas, Nebraska, Oklahoma and Wyoming. Dew is a certified mediator and paralegal, an office holder for a number of independent living and domestic violence associations and, just this past December, he was given the 2014 War Eagle Human Rights Award by Sioux City in observance of Universal Human Rights Day.

In July 2014, Dew applied to become administrator (i.e. chief executive) of the Idaho Human Rights Commission. The administrator is responsible for managing a team of investigators, mediators and support personnel; is accountable for an annual budget of approximately $1 million; and acts as liaison to Edmunds and the Department of Labor. The position opened when longtime administrator Parks announced her retirement. Parks agreed to help with the hiring process and, along with a team of IHRC commissioners, interviewed Dew for the job.

Those initial interviews must have gone relatively well, considering they escalated to three interview sessions and the decision by the IHRC board to fly Dew to Idaho in September 2014. Dew's in-person conversations with the IHRC board progressed to the point that he was asked about a starting salary and an approximate start date.

"I definitely had the sense that the IHRC was about to recommend me for the position," Dew told BW. "But I had been told that since the IHRC was placed under the Labor Department in 2010, the Labor Department director [Edmunds] would have the final say in the matter."

When Parks escorted Dew to Edmunds' fourth floor office at the Department of Labor, at around 4:30 p.m. on Sept. 3, 2014, things took a dramatic turn.

'Dirty Diaper'

According to internal documents, Edmunds asked Dew why he would be an ideal IHRC administrator. That's when Dew used the word "better" in his answer.

"I said, 'I would like to see Idaho as a place where we have a stronger and better ways of ensuring equality.' I thought that was a pretty decent answer," Dew recalled.

According to interview notes, Edmunds zeroed in on what he considered to be a problem with the word "better." The internal notes say, "Ken [Edmunds] asked Don [Dew] what he meant by that, and if he thought Idaho was not a good place that needed to be made better. Don said he meant 'better' as in 'better,' not that Idaho was not a good place."

"Things got chilly pretty fast," Dew told BW. "Edmunds kept dogging my use of the word 'better' and he asked, 'You mean we're not good enough?'"

What came next, Dew said, was humiliating.

Edmunds took note of a gap in Dew's resume. In July 2004, Dew was working as an office manager for a communications company in Enid, Okla., when he had an illness that he said triggered a series of seizure disorders, and he suffered some grand mal seizures more severe than others. Dew needed to go on disability from work while his caregivers found the right medication to curb the disorder. His doctors did find a successful treatment and with his seizures in check, Dew became an analyst researching policies pertaining to disability rights. Over the next several years, he climbed the professional ladder to become the executive director of the Disabilities Resource Center in Sioux City.

"Can you even work a 40-hour week?" Edmunds asked Dew. The room went silent.

"He looked at me as if he was smelling a dirty diaper," Dew said. "The only way I can describe the look on Edmund's face is that he smelled a bad odor."

About 30 minutes later Dew stood, stunned, at the curb outside the Labor Department offices. Within days, he filed a formal complaint with the U.S. Equal Employment Opportunity Commission.

A few weeks later, after submitting public records requests to the IDOL and IHRC, Dew also learned that Parks had made notes about Dew being in "a gay relationship." Parks wrote that she learned the personal information from Karen Mackey, Dew's former supervisor at the Sioux City Human Rights Commission but in an affidavit, Mackey denies making any such remarks.

"To me, this shows that either Ms. Parks had issues with gay people or her notes were changed later for some reason," wrote Mackey. As a result, Dew amended his initial EEOC claim of disability discrimination to include sex discrimination.

At about the same time, Gov. Otter weighed in on the matter, writing a hand-signed letter to Dew, dated Sept. 18, indicating that he had spoken to those in attendance at Dew's job interview.

But that's not true. Otter never spoke to Dew.

"I do not see a case of misconduct," Otter wrote to Dew. "I believe Director Edmunds asked you what he would ask of any candidate interviewing for the position."

Following BW's report on the issue, the Idaho Department of Labor had few answers to our many questions.

"The department has no comment on the matter," wrote a spokesman for IDOL. The department did confirm that a complaint against IDOL had indeed been filed with the EEOC.

"The silence and denials make it worse," Dew told BW in December 2014.

Tort Claim

On Jan. 12, the EEOC sent a notice to Dew that he could pursue a lawsuit against the respondents.

"It was less than a week after we had read your article that we received an email," said attorney Coulter. "And lo and behold, it's from Don Dew looking for legal help—he sent us a link to the Boise Weekly story. We said, 'Wow, this is the same guy we just read about.'"

It was a short while later that Dew returned to Idaho, this time to talk about his legal options.

"We brought him to Idaho, quite frankly, to make sure he was believable; to see what kind of witness he would make and how credible he was," said Coulter. "And sure enough, he was all those things. We said, 'OK, we'll take the case.'"

On Jan. 28, a tort claim was filed, citing violations of Dew's rights under Idaho Code 6-901, and putting the state on notice that if it does not take action to resolve the matter within the 90-day statutory time limit, a lawsuit will follow.

"I can guarantee you that is where this is heading—federal court or possibly state court or possibly both—unless they come to their senses," said Coulter. "Once we formally file, we'll go through a pre-trial regimen, and I'm certain they'll file for summary judgment."

If the case progresses, the list of witnesses would certainly need to include Otter, since he claimed to have conducted his own internal investigation.

"As they say in police work, he's a person of interest," said Coulter.

When BW asked if the governor might have special immunity or protection from being deposed in the matter, Coulter said that alleged discrimination doesn't let anyone off the hook.

"There's something called 'qualified immunity' for someone who is acting within the scope of their job. But you can't say that discrimination is within the scope of anyone's employment," he said. "I've done enough of these cases to know what might appear on the other side."

Nonetheless, the tort claim against the Idaho Department of Labor and the Idaho Human Rights Commission is precedent-setting. Perhaps the most stunning element is that Edmunds and Parks are being accused of violating the very rights that they had been sworn to protect.

"It was stunning to me when I read the Boise Weekly story. I thought, 'Jesus Christ. I can't believe they did this,'" said Coulter.