Tackling Giants

Employment lawyer Diane King takes on big companies like Lockheed Martin

Published in 2011 Colorado Super Lawyers — April 2011

Photo by: Ray Ng

The Somali immigrants file in one at a time, heads bowed in shame and frustration over what they’re about to reveal.

They often come to this office basement in Greeley. It’s become a community gathering sort of place for the city’s growing Somali population. They buy international calling cards, floral-print dresses and sesame oil at the makeshift store that’s crammed into one of the rooms; they eat sambuusas, the Somali equivalent of calzones, and watch soccer games on a flat-screen TV in another. But today they’ve shown up for a more solemn reason: to report on their working conditions for the benefit of an Equal Employment Opportunity Commission (EEOC) complaint that’s been filed against their employer: JBS Swift & Co., the city’s meatpacking plant.

It’s not easy for them to share their stories, and not just because of the power of JBS Swift & Co. They just never expected their lives in America to turn out this way. Yes, they’d been able to leave behind their memories of war and refugee camps and destitution, and, yes, they’d gotten jobs cutting meat at Swift for around $12 an hour—enough to send much-needed funds to families back home.

But the jobs weren’t the godsend they’d assumed. In September 2008, Somali and other Muslim workers at the plant asked to schedule their break to coincide with sunset so they could pray and break their daylong fasting during Ramadan. The company consented, but on the third day of Ramadan the original schedule was reinstated without warning. Mass confusion ensued, and the Muslim workers were told to wait outside while supervisors figured out what to do. When the workers tried to get back in, they were denied. The incident made national news, but while the media attention soon faded, the plant’s alleged shoddy treatment of the Somalis did not.

According to the EEOC complaint filed in federal court in September 2010, the discrimination and harassment the Somalis faced became unbearable. Name-calling in Spanish and English. Raw meat shoved at them. If they fought back they were terminated. Bathroom breaks were restricted in ways they weren’t for non-Somalis.

These are the stories they’ve come to share in this church basement.

Diane S. King, a civil rights and employment lawyer who is here to take down their stories, understands this. She makes the hour-long drive from Denver to Greeley many Sundays, sits at a table in this basement and listens, pen and notepad in hand, for as long as it takes for the immigrants to slowly recall the insults and slights. She knows the right questions to ask to trigger their memories. “Did anyone ever throw bones or blood in your face? Did your supervisor treat you differently from others?”

When their stories are complete, she looks them in the eye and says it’s going to be okay. She will try her best to ensure that justice will be done.

King has been working with the Somali population in Greeley since the problems began here two years ago, and now she’s the lead private attorney on the EEOC complaint. To King, it doesn’t matter that she’s going up against the biggest employer around, and one of the largest meat processors in the world.

“The bigger they are, the better,” she says.

 

What’s the best way to measure King’s success?

Is it in the numerous awards, from the likes of the Colorado Bar Association, which line the walls of the meticulously refurbished Victorian house at the edge of Denver’s City Park, home to her firm King & Greisen?

Maybe it’s the positions she’s earned on state and national boards: president of the Faculty of Federal Advocates; co-president of the Plaintiff Employment Lawyers Association; board chair for the American Civil Liberties Union. She was a founder of the Colorado AIDS Project Legal Referral Service, sat on the 10th Circuit Advisory Committee and was chair of the U.S. District Court’s Magistrate Judge Merit Selection Panel for Colorado. “You don’t get to sit on these highly selective committees unless you have support from both sides and the judiciary,” says Bob Truhlar, a fellow Denver employment lawyer.

That’s another measure: what King’s colleagues say about her. “Diane is fearless,” says Paula Greisen, her partner at King & Greisen. “She has a true core value to help people who have been victimized or discriminated against or taken advantage of. She will face the challenge no matter how big the employer, with tenacity, and won’t let go.”

Even King’s courtroom opponents are complimentary. “I’d say if I were an individual looking to hire an attorney to represent me, she would be the first person I would call,” says Bill C. Berger, an employment lawyer, who regularly faces King. “She’s an outstanding attorney and we should all be proud of her.”

But for King, the most rewarding aspect of her job is the sense of closure she’s able to bring to her clients. “Let’s say you’re let go [from your job] in a way you think is unfair,” she says. “Not only is that hard financially, emotionally it can be devastating. You give all of yourself, your spare time and weekends and evenings to a company, and one day they say, ‘You know what, we don’t need you anymore.’ It’s rewarding to stand up to that sort of authority when it’s abused you.”

King was an Air Force brat. She was born in Texas, lived in California, Oklahoma and Guam, then went to junior high and high school in Fort Collins. At nearby Colorado State University she majored in psychology. For a time she worked as a volunteer counselor but found herself frustrated and desirous of more concrete results. “I decided if I could take one thing that wasn’t working for them and fix it, that would be rewarding,” she says. So she focused on law.

She got her J.D. at the University of California, Berkeley, then landed a job at a major Denver firm that appealed to King because of its emphasis on pro bono work. But the job, while challenging, wasn’t the right fit: King was more interested in the ACLU cases she volunteered to take on, more interested in the three-month stint of small-town, jack-of-all-trades pro bono legal work she signed up for in La Junta in southeastern Colorado.

The turning point came while working in the firm’s employment section. She was asked to defend an employer, accused in an ugly sexual harassment case, apparently because she was the only woman in the department. It was assumed she could curry favor with the jury.

“I thought to myself, ‘I would rather be bringing this case,’” says King.

So she left and went to work for the other side: Feiger, Collison & Killmer, a Denver civil rights firm with a staff of fewer than a dozen. It was a risky transition. Since most of her clients were out of work, the majority of her employment cases paid on a contingency basis. Plus Colorado was an at-will state, where employers are allowed to fire workers for almost any reason. “The firing can be undeniably unfair, but what we need to show is that it’s not only unfair, it’s also because of one of those really bad reasons, like discrimination,” says King. “We are the Wild West. We don’t have as many employment protections as other states.”

Apparently all of that wasn’t challenging enough. After five years, King left Feiger to start her own firm.

“You have to be a little crazy to do what we do,” admits King. “The key is picking your cases well and litigating them very hard.”

That means endless interviews with clients, drilling down to the most minute detail, and gathering an army of witnesses. It means taking no prisoners in the courtroom.

“She identifies the weaknesses in the other side’s case; then she just delivers back-to-back body blows, one after another, in an uncolored and very clear way, and I can tell you the impact it has is significant,” says Berger, her frequent opponent. “When she starts off it feels like getting in the ring of fighter who likes to immediately come out the corner and hit you in the face with a jab, a right cross and body hook.”

King knows that while the big employers she takes on have the advantage when it comes to legal and financial firepower, they often have an Achilles’ heel. “A lot of bad things can go on under the radar if a company is not careful,” she says. “The more employees there are, the harder it is for HR to have a hands-on role in supervising all the managers and supervisors.”

In other words, the bigger the better.

Big like the Denver Country Club, against whom King won a record verdict on behalf of two longtime employees who argued they were fired because of age and gender discrimination.

Big like the Colorado Department of Corrections, which faced King in court over a probational employee who claimed she was sexually harassed by her supervisors, written up for being too compassionate toward inmates and eventually terminated for poor performance. Despite reluctant witnesses and a dearth of paperwork documenting the abuse, King won a record discrimination verdict that time, too.

And big like Lockheed Martin.

In May 2006, Colorado Springs-based Lockheed Communications Manager Andrea Brown alleged that her boss, a company vice president, was using the corporation’s pen pal program to have sexual trysts with soldiers around the country and billing the government for the travel costs. In return for her complaint, Brown says she was shuffled around the company, told to reapply for her job and moved out of her old office and into a storage room without her own phone line. In February 2008 Brown was constructively discharged, but when she went to a Colorado Springs lawyer about her mistreatment, she was advised to settle for $15,000.

“The lawyer told me, ‘I work with Lockheed Martin, I can’t go ruining my reputation,’” Brown remembers.

King took the case. No matter that Lockheed had unlimited resources or that key witnesses were scattered across the country. No matter that the federal Occupational Safety and Health Administration looked into the matter and dismissed Brown’s claim. No matter that King decided to file a whistle-blower complaint under the Sarbanes-Oxley Act, complicated new accounting and auditing rules that had emerged from major corporation scandals like Enron’s that she’d never used in court before.

In January 2009 a federal administrative law judge ruled in favor of Brown’s complaint.

“That’s not a small feat, to beat Lockheed Martin in a lawsuit. It’s pretty incredible, and I really owe it to Diane and her skills,” says Brown. “She may be a very gentle, nurturing person on the outside, but in the courtroom she is a force to be reckoned with.”

 

Justice will be done. That’s what King pledged to work toward for the Somalis, the ones sitting across from her in the Greeley basement. That’s why she’ll be here all day, her only free day of the week. And that’s why she’ll return next Sunday, and likely the Sunday after that.

She’s making the same promise, that justice will be done, to new people all the time. Like the group of African cab drivers who worked for a Denver taxi company that, according to court reports, thought it could get away with calling the immigrants names, charging them extra fees and then physically attacking them when the employees refused to go along. That cab company didn’t count on King taking the case.

King believes she could soon be seeking justice for a great many more people, what with recent Supreme Court decisions that some say weaken discrimination laws, and with talk during the last election by some extreme-right politicians about doing away with the Civil Rights Act of 1964.

It can be discouraging work, King admits, but the response from her clients makes up for it. Just look at the Somalis. “She is a hero in this community,” says Ahmed Odawaay, a Somali living in Denver who works as a translator during these Sunday interviews, and who’s also a plaintiff in King’s taxi case. “I’ve never seen someone willing to go so far to help people.”

Many of the Somali workers in Greeley talk about inviting King to visit them when they return to their home country, says Odawaay. One man told Odawaay he wanted to write a poem for King—but he didn’t want anybody to translate it. The only way it would work, he told Odawaay, would be in his native tongue. There were no English words powerful enough, he explained, to express the depth of his gratitude.

Photo by: Ray Ng

Photo by: Ray Ng

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