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Civic Skinny

Exactly why was Martha Fagg fired? And did Judge Rose say ‘screw’ or….?

12/4/2013

Were matters so out of hand in the U.S. Attorney’s office in Cedar Rapids three years ago that one lawyer there feared for her safety, feared that she might be shot by another lawyer there? And was her boss scared, too?

When then-U.S. Attorney Stephanie Rose — now federal district judge Stephanie Rose — asked an assistant U.S. attorney who in Des Moines was complaining about her, and the assistant said “well it could be any number of people,” did Rose reply: “Well, that’s just great. So many people want to fuck me in the Southern District of Iowa that you can’t even tell me who it is?” Or did she say “screw me?”

And what about the dog?

These questions might be answered this week in the trial of a federal lawsuit former assistant U.S. Attorney Martha Fagg filed against Eric Holder, the Attorney General of the United States.

The suit alleges “discrimination, harassment and/or hostile work environment based on Plaintiff’s age, disability (mental and physical), and reprisal for prior participation in a protected Equal Employment Opportunity activity in violation of her rights protected by federal law.”

The issue boils down to this: Did Stephanie Rose fire Martha Fagg two years ago because Fagg accused Rose of getting rid of older attorneys? Or did she fire Fagg because Fagg was incompetent and insubordinate and had become “combative, unprofessional and disrespectful?” And was Fagg, who now is 56 years old and who at various times has had physical and mental problems, protected by the Americans With Disabilities Act and the Age Discrimination in Employment Act?

The suit is being tried in federal district court in Sioux City by senior judge Richard Kopf of Lincoln, Neb. Kopf was called in because so many Iowa federal judges are involved in the case. The list of potential witnesses includes Mark Bennett, the federal judge who sits in Sioux City, Don O’Brien, the judge who formerly sat there and who now is on senior status, and Rose, who now is a federal judge in Des Moines.

Adding to the all-in-the-family atmosphere: Fagg is the daughter of George Fagg, the Marshalltown lawyer who served 17 years as a judge on the Eighth Circuit Court of Appeals. And she is being represented by lawyers in the firm Judge Bennett founded in Des Moines.

Martha Fagg “is a proud woman from a prominent legal family,” her lawsuit notes. “The economic losses she has and will be made to suffer are only outweighed by the great and profound humiliation and emotional distress she has suffered and will suffer into the future.”

The Northern District of Iowa is based in Cedar Rapids but has an outpost in Sioux City, where Fagg spent most of her federal career, joining the department in 1998. Rose was sworn in as U.S. Attorney in November of 2009 and over the next few months made several changes in management jobs, including naming a new 35-year-old female first assistant and removing a 60-year-old man as Fagg’s boss. In early 2010, Fagg sent Rose a memo raising the issue of age discrimination.

Shortly after that, Fagg was transferred from Sioux City to Cedar Rapids, first temporarily and then permanently, which Fagg says was “clearly made to intimidate, harass, and retaliate against me.” Things then went from bad to worse. The government says Fagg kept breaking rules, large and small (she didn’t leave her office door open, as Rose required), and Fagg says she was nitpicked and harassed and, besides, she knew more about her work than her supervisor did. Talking to her young boss, she said, was “like talking to a rock.”

And Fagg says living in Cedar Rapids was a hardship, because — according to the government’s brief — among other things “she was a vegetarian and sustained herself on organic and nonprocessed foods, the inability to not be able to cook her own meals (sic) and being forced to eat fast food and restaurant food will have an adverse effect on her health.”

At one point, according to an email from her new boss to Rose, Fagg and the new boss — Teresa Baumann — were having a spirited discussion about the situation in Baumann’s office. Afterward, according to the email, another lawyer, Shannon Olson, who overheard the discussion, told Baumann “that she had never been scared of being shot at work…but that she was scared today that she would be.” And, Baumann went on, “I told her that if Martha was going to hurt anyone, she would choose me….I told her that…I have been having nightmares that Martha kills my family.”

Another assistant U.S. attorney, Debra Scorpiniti, said in an affidavit that she talked to Olson at the time and “at no time…did [she] express concern for her safety.” But Scorpiniti went on to say that Olson told her about a conversation with Rose on another matter. Rose then asked her about the Fagg complaint and wondered who was the unnamed government attorney in Des Moines “who was referenced in the complaint,” apparently advising Fagg to “watch her back.”

“Olson told me that Olson hemmed and hawed and tried to avoid answering the question and finally stated something like ‘well it could be any number of people.’ Olson stated that Rose then replied to the effect ‘that’s just great so many people want to f**k [screw] me in the Southern District of Iowa that you can’t even tell me who it is.”

And a footnote to the affidavit says: “At the time, I can’t remember if Olson used the work f**k or screw.”

That’s about it.

Oh, the dog.

At one point, Fagg advised her bosses she was driving to Des Moines from Sioux City to meet with fellow government lawyers on a case. She didn’t disclose that she also was taking along a dog that she intended to drop off with a co-worker. The question: Did she leave earlier than necessary to drop off the dog, and did that mean she had to pay for a car rental for two days instead of one?

But, alas, she had not requested permission to take the dog with her, so she was docked $100 in reimbursement. A side issue: Did she really have a meeting in Des Moines?

Fagg wants her job back and a lot of money. The jury trial is expected to last a week or so. CV

The Hulk and The Judge

“The Hulk” will not be mentioned in Martha Fagg’s lawsuit.

In May, Judge Stephanie Rose was deposed in the lawsuit — surprisingly, it was the first time she ever had been deposed — and Fagg’s lawyer raised the issue of an email from Rose to assistant U.S. attorney Shannon Olson on another matter.

Question: Now, the e-mail I’m interested in is from you to Shannon Olson, USAIAS, Subject: “Hulk.” And the e-mail says, “You know how Bruce Banner says, ‘You won’t like me when I’m angry? There is a lesson in there for all attorneys. Enjoy that transcript.” So why don’t you tell me what you meant by that.

Answer: It was a joke, obviously, between Shannon and I (sic). And what I literally meant was people here are making me crazy, or some of them are.

Question: In your new job?

Answer: Incompetent people tend to make me annoyed, yes…

[Conversation between lawyers.]

Answer: This e-mail was a joke between a friend and I. (sic) It has absolutely nothing to do with Martha. Beyond that, I’m not going to talk about it.

But none of this will be mentioned at the trial. Last Wednesday, Judge Richard Kopf ordered that “Because the evidence is not relevant or, if relevant, the evidence would be unduly prejudicial…there shall be no reference to ‘the Hulk’ e-mail.” CV

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