Update: Former Southwest Research Institute Employee Awarded $550,000 In Retaliation Lawsuit | Texas Public Radio

Update: Former Southwest Research Institute Employee Awarded $550,000 In Retaliation Lawsuit

May 29, 2019

This story was updated 5.29.19 to reflect the final judgment of the court and comments from the plaintiff's lawyer. It was orginally published on 4.9.19, following the jury verdict.

Southwest Research Institute was fined $410,000 for firing a female employee in an act of retaliation because she filed sex discrimination complaints against the company. A jury found in favor of Mary Ellen Johnson — who was terminated after 12 years with SwRI — in the federal trial that began in San Antonio April 1.

In the final judgment filed May 25, the judge ordered the research organization pay out more that $550,000 and send a letter rescinding a negative incident report they filed on Johnson with the Defense Department. Her lawyers argued the report jeopardized Johnson’s ability to get security clearances and employment in the future.

“And essentially what happens is you’re blacklisted, or blackballed in the industry and unable to get another job,” said Colin Walsh, one of Johnson’s attorneys.

Walsh said there’s no guarantee that the new letter will negate the incident report.

“I think it will hopefully help her be able to find a job in the industry,” he said. “It’s the thing our client wanted most from this case and, as far as we can tell, this has not been done before.”

A screenshot of the court-mandated letter SwRI must send to the Defense Department correcting its reasoning for dismissing Johnson and the results of the case.

Johnson was hired as a technician at SwRI in 2000. She was promoted to a senior technician and then a principal electronics technician.

Each time, Johnson said the non-profit research center paid her less than male co-workers in similar roles. Additionally, she said they denied her a promotion upon finishing her schooling and gave preferential college tuition reimbursement terms to male workers in violation of both the Civil Rights Act and the Equal Pay Act.

Equal Opportunity Commission documents agreed with Johnson that she had received unequal and unfair treatment.

After she filed the federal EEOC complaint on Aug. 3, 2012, Southwest Research Institute fired her 12 days later for what it called “repeated violations of our timekeeping operating policies, which has resulted in serious doubts as to your trustworthiness.”

SwRI sent an incident report to the Defense Department the day she was fired. It said her timesheet actions constituted “fraud” and they were concerned she “may pose a security risk by becoming an insider threat.”

Johnson filed a federal lawsuit in 2015.

Her lawyers called the timesheet violations a pretext, noting that timesheets were often corrected after submission by many employees and that SwRI’s process seemed to necessitate it due to collection before the pay period ended.

Johnson’s supervisor testified that the same pay period Johnson made errors in her timesheet — and was subsequently fired — a male co-worker made 18 timesheet errors and was not reported.

In court documents, SwRI denied it had discriminated against Johnson and said it would have dismissed her regardless of her sex. Its lawyers additionally argued the court was barred from hearing the case because it involved classified information — SwRI has many military and sensitive contracts. According to internal documents, some facilities on Southwest Research’s 1,200-acre campus have held Top Secret status since October 1977.

Johnson worked in the Applied Power Division, which required a Top Secret clearance. SwRI's lawyers argued in a discovery hearing SwRI revoked her access to confidential documents over "trustworthiness" issues related to her timesheet errors. They declined to move her to another position that didn’t require a clearance, terminating her instead.

Henry Bemporad, a U.S. magistrate judge, contradicted SwRIs order of events. In it he said she was terminated with her internal security clearance intact.

"While it is undisputed that SwRI's status as a Department of Defense contractor requires it to provide and maintain a system of security controls, the evidence before the court indicates that the adverse employment action taken against the plaintiff was not based on SwRI's national security obligations," said Bemporad.

After four years and more than 140 court filings, a federal jury ruled SwRI had retaliated against Johnson for the EEOC complaint. It awarded her $410,000 for pain and suffering, past wages and damages to her career.

In its final judgement, the court raised the amount of the award to more than $550,000 and an undetermined amount for her legal fees.

A SwRI spokesman said in an email it was disappointed in the outcome and verdict. The statement didn't rule out an appeal.

"We continue to assess the situation and explore all available options," he said.

Paul Flahive can be reached at Paul@tpr.org and on Twitter at @paulflahive.