UH 'grossly negligent' for failing to produce records
By Jim Dooley
Advertiser Staff Writer
The University of Hawai'i has been "grossly negligent" in producing records relating to a wrongful termination lawsuit filed by a former employee, a federal magistrate ruled yesterday.
U.S. Magistrate-Judge Barry Kurren stopped short of finding that the university's conduct was so egregious that the plaintiff, Judith Vergun, should win her suit outright. But Kurren ordered UH to bear all costs of an independent expert's search of records and computer files for additional documents relevant to the case. And, he ruled, the university must pay legal fees and expenses incurred by Vergun related to the missing records.
Vergun, a former official of the UH School of Ocean Science and Technology, alleges in her lawsuit that she was terminated because in July 2003 she reported possible wrongdoing in a federally funded university research program.
Vergun claims in her suit that she was later instrumental in helping UH win a $20 million federal grant in 2006 for an unrelated research program called the Center for Microbial Oceanography Research and Education.
UH officials assured Vergun that she would work as education director for the CMORE program, but reneged on those assurances and terminated her, the suit alleges.
Vergun alleges in the suit that UH officials gave false reasons for terminating her but the the real reason was retaliation for her earlier whistleblowing.
Since the suit was filed, university officials have repeatedly assured Vergun's lawyer, Eric Ferrer, and Kurren that they had turned over all relevant material, but, according to court papers, numerous new e-mails were later discovered by the plaintiff through subpoenas to Mainland academics involved in the CMORE grant application.
The university's behavior was "calculated misconduct," Ferrer told Kurren. "This was not a mistake."
UH attorney Lex Smith acknowledged that the university could have performed its records search more efficiently.
"I stand in a humble position," Smith said. "I would tell you if I had a reliable explanation. I do not."
But Smith denied the allegations of willful misconduct and said that some of the newly discovered e-mails support the university's position in the suit.
Kurren said some of the evidence about the university's conduct was "troubling" but added that he did not believe it had "substantially prejudiced" Vergun's case.
"If I concluded that this was a deliberate, intentional act, severe sanctions would be in order," Kurren said.
He said it appeared more to be "sloppy work and gross negligence."