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Public-hospital officials sought sanctions against jail nursing supervisor’s counsel for First Amendment retaliation lawsuit. It backfired—spectacularly.

Friday, April 22, 2022

After Nurse Gary Brack secured a nearly $100,000 settlement, MetroHealth CEO Boutros and Chief of Staff Jane Platten sought sanctions against his lawyers. The judge said no—and made pointed criticisms of Boutros and Platten’s conduct and disingenuity.

Public-hospital officials sought sanctions against jail nursing supervisor’s counsel for First Amendment retaliation lawsuit. It backfired—spectacularly.
Chandra Law Firm managing partner Subodh Chandra with Nurse Gary Brack, whistleblower on inhumane Cuyahoga County jail conditions and failures of leadership

Cleveland, OH – Everyone expects governments and corporations to go after whistleblowers—that’s why whistleblower-protection laws exist.

But sometimes powerful interests attack the people who help whistleblowers, including the lawyers who fight for them.

That’s what happened when the Chandra Law Firm LLC represented former Cuyahoga County jail nursing supervisor Gary Brack, R.N., who was removed from his role and then fired after he testified truthfully before the Cuyahoga County Council in 2018 about mismanagement of the county jails. Nurse Brack’s lawsuit was settled for a payment of nearly $100,000 by Cuyahoga County, with claims against MetroHealth Defendants voluntarily dismissed.

The case was settled before trial, but county officials and MetroHealth came back and filed a motion seeking sanctions against Nurse Brack’s lead lawyer, civil-rights attorney Subodh Chandra, and the Chandra Law Firm LLC, alleging that Mr. Chandra and the firm had filed frivolous claims, and asking the court to impose sanctions.

Yesterday, in a carefully reasoned, 63-page decision, U.S. District Judge J. Philip Calabrese soundly rejected all of the arguments made by hospital officials against Mr. Chandra and the firm.

Far from making frivolous arguments, Mr. Chandra “had a good-faith basis factually and legally for the claims,” wrote Judge Calabrese, and “represented Mr. Brack aggressively, but within the bounds of his professional and ethical obligations.”

“Conditions remain deplorable”

The case emerged from a backdrop of a deeply troubled jail system, where more than 12 detainees have died since 2018, as Judge Calabrese noted in the first paragraph of his decision.

“Conditions remain deplorable, and significant litigation continues in State and federal court to determine the legal consequences and responsibility, if any, relating to maladministration at the jail. Public discourse places the moral and political blame for this situation at the feet of Cuyahoga County Executive Armond Budish and his administration,” Judge Calabrese wrote.

“But there is plenty of blame to go around,” he added.

The legal battles over Brack’s firing began with a now famous Cuyahoga Council hearing in May 2018, where Brack reported that jail director Ken Mills had been blocking necessary staff hiring, after Mills himself stonewalled and lied to the committee.

At the meeting, Nurse Brack warned that Budish-administration policies put detainees’ lives at risk. The next day, Budish—upset at Nurse Brack’s truth-telling—himself asked Dr. Akram Boutros, CEO of MetroHealth, which provides medical services to the jail, to remove Nurse Brack from his job at the jail. “Although he knew better, Dr. Boutros complied,” wrote the judge. “This failure of leadership contributed to the controversy that continues to surround the jail and deserves condemnation.”

The evidence in the case showed that Boutros “knew better” because he told the FBI during its criminal investigation that he warned Budish that the County Council would view Nurse Brack’s removal as “retaliation.”

But Boutros did it anyway.

Jail director convicted of dereliction of duty

In October 2021, jail director Mills was convicted of two counts of dereliction of duty and two charges of falsification and sentenced to nine months’ in the jail system he once ran. The falsification charges stemmed from statements Mills made about hiring nurses at the same May 2018 council meeting where Brack exposed those statements as untrue—and, as a result, lost his job.

Nurse Brack sued officials of the county, including Budish, and MetroHealth, namely Dr. Boutros and Jane Platten, MetroHealth’s chief of staff. He alleged that his firing was retaliatory, an illegal violation of his First Amendment rights, and even criminal under the Ohio statute that imposes civil liability for criminal acts, including interfering with civil rights. The Mills indictment slowed down this suit, but the judge ordered written discovery in February 2021. Lawyers for MetroHealth officials defied the order, although their lawyers deposed Nurse Brack. In November 2021, Nurse Brack settled with the County for $99,000 over Budish’s conduct, after Brack provided important testimony against Mills as the first prosecution witness at trial, which he said helped him to feel that he’d had his day in court. Up through that time, none of MetroHealth or the county’s lawyers had suggested that Nurse Brack’s suit was frivolous.

Nevertheless, Budish, Boutros and Platten filed a motion to sanction attorney Chandra for daring to represent Nurse Brack in his suit for retaliatory firing.

An end-run around justice

In his ruling yesterday, Judge Calabrese said that the county and MetroHealth officials were essentially trying to make an end-run around the court’s system for civil justice.

“Akram Boutros, MD, Jane Platten and the MetroHealth System seek the vindication they did not receive in the underlying litigation by moving for sanctions,” the judge wrote. He pointedly remarked that Brack had stood up against Mill’s lies and the county and MetroHealth officials’ attempts to cover them up.

“As Mills provided false information to the committee,” wrote Judge Calabrese, “Mr. Brack highlighted each falsehood for Ms. Platten, who did not provide that information at the hearing. Her failure to do so prompted Mr. Brack to criticize Mills in response to direct questions from the chair of the committee who wanted to hear from someone with first-hand knowledge of jail staffing issues.”

Attempting to silence a whistleblower

The judge noted that Platten even tried to silence Nurse Brack during the hearing itself and that her lawyers omitted that fact from their filing. In an interview with the FBI during the investigation into Mill’s mismanagement, Nurse Brack said that as he spoke to the council, Platten kept interrupting him and writing notes to him, “real big for me to stop talking [be]cause she didn’t want me to say things...She put her hand down on the podium to get my attention to not say anything more. She didn’t want me to keep talking.”

The judge wrote that lawyers for the county and MetroHealth officials “cherry pick statements from Mr. Brack’s interview with the FBI to try to cobble together a basis for sanctions” against Mr. Chandra. “In fact, their broader context shows,” Judge Calabrese wrote, that lawyers for Boutros, Platten and Budish “take these statements in isolation to try to change their meaning.” The judge then catalogued examples. Those lawyers made arguments they knew to be false and selective, in bad faith, to harass and increase the costs of litigation for Mr. Chandra and his firm—exactly the same unsuccessful claims they made against Mr. Chandra himself.

“Aggressively” representing a client

In his opinion, Judge Calabrese repeatedly found that attorney Chandra had “aggressively” and properly represented his client Brack’s interests in seeking justice for his firing for speaking truthfully about the dire conditions at the jail. While there was ample evidence in the record for a court to weigh whether Brack had been improperly fired for protected speech, wrote Judge Calabrese, there was no evidence that Chandra did not have a good-faith belief for Brack’s case: “In fact, the record demonstrates—and the Court finds—that the facts available, based on Mr. Chandra’s pre-suit investigation and during the pleading stage provide a good-faith basis for the claims asserted, factually and legally.”

Dr. Boutros’s “personal tantrum”

Chandra Law Firm founding and managing partner Subodh Chandra called the failed motion to sanction him and his firm “a personal tantrum thrown by Dr. Boutros” and noted that the motion—filed for Boutros and Platten in their personal capacity—was paid for at public expense: “Boutros had the temerity to use MetroHealth-hired outside lawyers at public-hospital expense, after he complied with Budish's demand to eject Nurse Brack from his role for having told truth about jail conditions, $100,000 was paid to settle the conduct, 12 people died, and former jail director Ken Mills is serving prison time for lying at the Council meeting.”

Mr. Chandra added: “Boutros’s gambit backfired. Spectacularly. The court called him and Platten out for their conduct and selective presentation of the record. Boutros should pay back every penny MetroHealth spent on a personal, retaliatory vendetta, And MetroHealth's sleepy board ought to supervise him and recoup the funds. The lawyers who took on such a frivolous motion at public expense ought to pay back every penny too.”

Mr. Chandra says Boutros’s motion was part of continuing attempts to cover up mismanagement by the county and MetroHealth and to intimidate and retaliate against anyone who wants to correct long-term problems by speaking out against them.

“The motion itself represented additional retaliation,” he said. “But we won't be deterred from representing whistleblowers, as the court noted, ‘aggressively.’”

Judge Calabrese's opinion denying Boutros and Platten's motion for sanctions can be found here.

The Chandra Law Firm LLC represents whistleblower clients regularly in First Amendment and First Amendment–retaliation matters.

Related Practice Areas
Employment retaliationFirst AmendmentLegal ethics & professional responsibilityWhistleblower actions (False Claims Act)
Tags
metrohealthsanctionswhistleblowerfirst-amendmentfirst-amendment-retaliationgary-brackjane-plattenakram-boutrospatrick-kasson

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