April 16, 2014

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Berta lawsuit files released

ELYRIA — Documents unsealed Friday in the sexual harassment lawsuit against former Lorain County Domestic Relations Judge David Berta paint two very different pictures of the six years he spent on the bench.

Former Magistrate Lucinda McConnell, who is suing Berta, portrays the former judge as an abusive misogynist prone to sexually inappropriate comments and fits of rage. It’s an account backed up by Jim Maschari, Berta’s former bailiff who walked off the job in 2010 after an argument with the judge over a late return from lunch.

McConnell quit in April 2011 after Berta sent her a letter chastising her for taking an unapproved leave to travel to Baltimore, where her father was being treated for cancer.

“I couldn’t take it there anymore and that this was it after I received that letter,” McConnell recalled telling people after she quit. “All the work I had done, how hard I had worked, how much it meant to me, and the way I had been treated for so long by the defendant and put up with it was just a slap in the face to get that letter, and I had sat by and done nothing, swallowed my pride and let him talk to me the way he had.”

Berta insists that he didn’t create a hostile work environment for McConnell or anyone else who worked for him. Several of his former staff members echoed that sentiment.

Berta and his supporters also accused McConnell of making sexually charged comments and in one instance of giving him a box of tissues emblazoned with the logo of an erectile dysfunction drug, something he called “embarrassing.”

“McConnell exhibited a bawdy sense of humor in the workplace — willingly participating in racy jokes and banter with employees and visitors to chambers,” James Patterson, one of Berta’s then-magistrates, wrote in an affidavit. “She would frequently respond to a remark that could have been a double entendre with ‘That’s what she said,’ and she showed no offense to profane language.”

Motivations

Berta’s lawyer, Kimberly Riley, had urged visiting Judge Patricia Cosgrove to seal many of the documents in the case last year, citing confidential information contained in the deposition transcripts and court filings asking that that case against her client be dropped.

She also wrote that much of the information contained in the documents would embarrass Berta, who left office earlier this year. He has been replaced on the bench by Judge Lisa Swenski, who defeated Berta in the March Democratic primary.

Riley wrote in one court filing that allowing the documents to become public could taint potential jurors if the case ends up going to trial. She also wrote that many of the allegations against Berta would probably not even be admissible in court and described them as an effort to “assassinate his character.”

Caryn Groedel, McConnell’s lawyer, successfully convinced Cosgrove last week to unseal most of the documents that had been shielded from public view, arguing that while some of the information might not belong in the public record there was no reason to seal off large portions of the case file to protect a limited amount of information.

Cosgrove agreed to unseal the documents, but ordered that certain portions be blacked out.

Berta has long contended that the lawsuit was driven by a vendetta against him by Maschari, who acknowledged in his deposition that he talked to several people, including McConnell, about challenging Berta last year.

The lawsuit was filed just days before the primary, and Berta has said the timing of the lawsuit was politically motivated. Swenski has denied having anything to do with the lawsuit, and McConnell’s lawyers have said politics weren’t a factor.

In an emailed statement Friday, Berta wrote that at the beginning of the case, McConnell’s lawyers made it clear to his legal team that if he didn’t agree to pay her through an insurance policy they would take the case to the U.S. Equal Employment Opportunity Commission.

“Seeing this lawsuit for what it is and was, a simple shakedown for money, I refused to authorize any settlement,” Berta wrote Friday.

The EEOC ultimately declined to take action against Berta.

Sexual claims

In the documents, McConnell spells out 50 allegations of misconduct that she insisted led to a hostile working environment. But her version of events varied wildly from Berta’s account, according to their deposition transcripts and other documents filed in the case.

For instance, McConnell said that Berta would comment on her weight and that of other female staffers, saying that her running regimen was making her too thin to be attractive. He also blamed her renal failure on her running.

“The defendant stated that I have a rape fantasy because I run alone at night,” McConnell wrote.

Berta, however, portrayed his discussions of McConnell’s running and weight as a matter of concern over her well-being. In his deposition, he recalled several instances where he told McConnell or others that her running habits were potentially dangerous.

He said he told one of his court reporters, “ ‘How could you run at night in a park system like that?’ You’re asking — you’re not asking for rape, but you’re certainly not discouraging it in the sense that it could happen. But as a fantasy? No. No.”

Berta also denied that he ever told McConnell that “her uterus was dried up.” He said that other people were discussing McConnell being out of work because of feminine problems and that she had a problem a former family member of his had that led to “scar tissue in the feminine lining.”

McConnell also said that Berta inquired into and commented on her personal life, including making comments about her alleged fondness for dating police officers. One attorney told him, Berta said, that he’d heard McConnell refer to herself as a “holster whore.”

McConnell has also accused Berta of calling her into his office to look at Internet photos of female golfers and telling her “which ones he thought were ‘sexy.’ ”

Berta said that McConnell was in his office once and he was looking at a golf website and commented on the attractiveness of a female golfer. He also said that members of his staff sometimes discussed celebrities and commented on their attractiveness.

McConnell also said that Berta asked her about the sexual orientation of female probation officers, something he described as a standing joke at the Lorain County Justice Center. And while Berta said that he had asked about that, it was simply out of curiosity.

Fear

McConnell also alleges that the hostile work environment in Berta’s office went beyond sexual comments.

She said she and Berta’s other employees constantly lived in fear that they would be fired.

“(Berta) told me I was lucky to have my job, and that I needed to thank him every single day for having the job and him keeping me on staff,” McConnell wrote.

Berta and his lawyers point to several cards McConnell signed, including one she signed as “your favorite magistrate,” as proof that she enjoyed working for the judge.

“I just wanted to take this opportunity to thank you for all your support,” McConnell wrote in a 2008 birthday card for Berta. “I would definitely do it all again for you and ‘the cause’!”

She accused Berta of forcing her to file to run as an independent the day before the March 2008 Democratic primary in which now-county Probate Judge James Walther was facing several other candidates, including former Domestic Relations Judge Paulette Lilly, whom Berta defeated in 2006.

McConnell said Berta forced her to collect the roughly 1,700 signatures to get her name on the ballot and, once Walther had defeated Lilly and his other primary foes, to drop out of the race. Berta, McConnell contends, went so far as to write her news release announcing that she was getting out of the contest — and thereby leaving Walther unopposed in the general election.

But Berta said he never forced McConnell to enter the race, merely noting in a conversation that “It’s a great opportunity for someone to get in office as an Independent.”

McConnell also pointed to instances in which Berta lost his temper, including when he cursed at a volunteer guardian ad litem to get out of his office. In his deposition, Berta readily acknowledged swearing at the man because of his bad attitude and said he wished he had been harsher.

In another case, Berta allegedly flipped over a table, spilling hot coffee on McConnell. Berta acknowledges pounding the table to emphasize a point during a conversation, but denied overturning a table. His then-secretary, Chris Muska, agreed with Berta’s account in an affidavit in which she also took the blame for listing McConnell’s dog as her spouse on a staff phone list.

McConnell, who has been involved in animal rights’ groups over the years, said she suspected Berta was responsible for the phone list because she believed Berta would have been the only person to find it funny.

Muska also wrote that “Judge Berta did not and does not intimidate me. I have never been afraid of him, nor have I expressed being afraid of him.”

McConnell also contends that she was treated to harsher discipline by Berta than her fellow employees were.

She wrote that while Berta sent her a harshly worded letter after her decision to travel to Baltimore on short notice, Patterson was never given any written discipline despite routinely being late for work.

McConnell also contended that Berta failed to take any action against Patterson when he was arrested on DUI charges.

Berta countered that he had discussed his concerns with Patterson and warned him that if he was arrested for drunken driving again, he would be fired.

McConnell and Maschari also contended that Berta spent little time at work and that his employees were required to cover for him by closing his office door and telling those who came to see him that he was unavailable.

“The defendant would spend hours away from work, and force his personal staff to lie to his wife and the public about his whereabouts,” McConnell wrote.

Berta said during his deposition that while he rarely took long vacations, he would take off early on Fridays in the summers to play golf, something that ate up about three hours each time he did it.

Conclusions

Riley, Berta’s lawyer, has asked that the case against the former judge be thrown out because there is little substance to the allegations leveled by McConnell and her lawyers.

Few of the inappropriate comments Berta is accused of making were actually made directly to McConnell, she wrote.

And Riley also wrote that McConnell is trying to “muddy” the issue of her resignation by “proffering evidence with ‘shock value’ that attempts to portray Judge Berta as crude and sexist — referencing alleged statements from his private life, his life that preceded McConnell, and in his interactions with others that McConnell never knew about and which therefore could not have affected her work environment.”

Berta’s lawyers also point to an apologetic letter McConnell sent Berta after he reprimanded her for her unexcused absence shortly before she quit. McConnell, however, said in her deposition that she only wrote the letter because she feared she would lose her job.

She said she actually felt “insulted” by Berta’s reprimand.

Groedel, McConnell’s attorney, argues that the comments didn’t need to be made directly to McConnell for them to create a hostile workplace.

She wrote that while McConnell quit in the wake of receiving the letter from Berta, her decision was the result of years of inappropriate conduct on the judge’s part.

“This was the straw that broke the camel’s back for McConnell,” Groedel wrote. “She resigned in a constructive discharge, as any reasonable person would have done, because she could no longer tolerate Berta’s incessant sexual harassment and inappropriate behavior towards her and the other women on his staff.”

Berta wrote Friday that he is considering taking legal action “against those who choose to continually defame me.”

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.