Chapter 40: Experts
The Larry and Les show flashed me back to the kill zone in Vietnam and the covert stunt Carl and Angela pulled with my CDRS model to make the things I did for engineering, appearance and timing look inept. Here, Larry and Les ignored everything Delikta asked us to do and Les worked overtime to create a small fleet of Surf models to compete against my two DDN models purely for the sake of appearance. I hadn’t even begun my second DDN model.
Mike didn’t share my outrage. His focus was on proving the worth of ICEM-Surf and using DDN to augment its capabilities. CDRS might have been moribund, but GM and Chrysler were using other math modeling software packages and Ford was experimenting with them at other facilities to replace Surf. One group was working in ALLIES.
Mike believed that Les’ decision to use Surf on Delikta’s project would turn out well for achieving Mike’s goals and Delikta’s because I had already demonstrated that I could achieve Delikta’s goals in DDN. He thought that I was wrong in saying that Larry deliberately usurped my authority and posed a danger to my leadership position in the project. He believed it was a case of miscommunication. He told me not to worry, that Larry knew I was in charge. Mike started working on a plan to improve communication.
Yes, Larry knew I was in charge, but how about Connelly and Les? If Les got the idea that he could ignore what I told him to do he could kill the project. He was well on his way to doing it already with his four ICEM-Surf models. I was now behind schedule because I now had to include features in my models that hadn’t been necessary before and I had to do them correctly. I couldn’t fake them the way Les did. Les got help from Dave Robison, Todd Hathaway, Mark Ritz and Larry Lauth. Kim Gruber somehow got tied up in the cutter path room with Al Biggs. He didn’t have time to help Connelly and me. Connelly was happy with working in DDN as well as Surf. He enjoyed the challenge. He didn’t think about the politics. He didn’t care who was in charge.
The Thursday the project began we agreed that Delikta would stop by the following Wednesday afternoon for a look at our progress. The following Tuesday I saw him walking into our department with a designer and an engineer. He was surprised that I was surprised to see him. He told me that “one of my men” called him and told him that the models were ready for him and his designer to look at. Only Les Martin’s Surf models were ready to look at. My model and Connelly’s were on track for the Wednesday afternoon review but they weren’t there yet.
Although I told Les that Delikta didn’t want the models done in Surf, either he didn’t believe me or he didn’t care. Les got Delikta’s attention before I knew he was there and led him to his monitor where his ICEM-Surf models were already set up for his polished presentation. Delikta, the designer and the engineer were miffed. I could see it but Les and Mike couldn’t. I could see that Les was really making his pitch to Mike, to show him that Surf was superior to DDN and he was superior in judgment and skill to Connelly and me.
I couldn’t wring the little twit’s neck the way I wanted to and my presentation was so crude by comparison to his that I felt like a fool. I knew that I must have looked like one. I couldn’t rotate the model as easily as Les had rotated his. I couldn’t change the color. I hunted for the lighting feature and when I finally found it and turned it on whole panels disappeared. Connelly had similar problems. From what Delikta could see, CDRS was far superior to DDN because he knew that I would have had no trouble doing any of those things in DDN. The best I could do under the circumstances was to explain that it wasn’t the fault of DDN; it was the fault of our inexperience. It was a bloodless version of being ambushed in Vietnam by the Viet Cong, a.k.a. VC.
The next day I went to the Design Center and told Delikta what had happened. He told me that he “figured it was something like that.” I went back to VC-2 and told Mike the same thing. Make, who had seemed pleased with the show, had no doubt about what happened. He recognized what Les did because it was the same “my side’s done” routine that both of us had seen with cutthroat clay modelers in the 1960s. Les had called Delikta on his own imitative and Mike had been as surprised to see him a day early as I had been. He wasn’t deceived for a second and Les didn’t know how much ground he was going to have to make up with Mike for his blunder. He thought he had scored big.
Still, Mike was happy. He knew now that Surf could do some to the creative things DDN could do if the operator knew how Connelly and I did them in DDN. The way Mike looked at it, the exercise was already a success. He gave Connelly the credit for introducing DDN to his group and he gave me the credit for the way I applied it. The way I looked at it, the exercise was a disaster. It made Delikta look bad by insuring that the presentation he wanted to make could never come off. Les had taken the lead and the rest of us had to play catch-up to make our models come close to looking as good as his did although he ignored everything he had to do to make his useful to anyone other than him.
Connelly and I had to work overtime. Toward the end, I had to abandon my Surf model and work around the clock to make two models in DDN. By then Connelly had two DDN models and two Surf models. Les had eight Surf models and he was “complaining” about being board because he had nothing to do.
Les had hundreds of things to do on at least one of his models to meet the requirements that I had to meet in both of mine. He argued, as Dave Hackett and John Arzoo would have argued, that those things were insignificant “details.” He told me that our job was to block in the main surfaces. That’s right, he told me what our job was and that I didn’t know how to block in a car. He told me the stages of modeling a car in clay or on the tube using any software package.
Les Martin never questioned why Delikta’s show was a bust. He didn’t care. It wasn’t on his agenda.
For Mike Hornai the Delikta project was a tremendous success. He didn’t foresee that it would put DDN in a coma for two years, which would weaken Kim Gruber’s standing with ICEM and with Ford. Mike didn’t foresee how it would cut my legs out from under me in the lawsuit and help to weaken his own standing with Ford. He didn’t think that my 1992 lawsuit had anything to do with his job as my Supervisor in 1996.
Anyone would think that my lawsuit could involve only the thing I alleged Ford did to me from the time it put me to work for a nazi in 1966 to the time I filed my suit in 1992. However, Judge Freedman ruled that the plaintiffs in the ’93 class action suit could go back no farther than 1988 to document our claims and everything that happened between Ford and us after 1988 would count.
This is how Ford got to reorganize its departments, change our work assignments and manipulate its documents to make its case against us. Ford might have been called the “defendant” but as soon as we filed our class action claim the onus was on us to defend ourselves against charges of filing frivolous individual claims. We were stereotyped as people who saw a fast way to make a lot of money without working for it.
The five-year time limit on the window of opportunity to file a claim actively encouraged frivolous lawsuits. It actively discouraged legitimate claims that did not conform to preconceptions about the way illegal discrimination was practiced.
Charles and I were handicapped by the fact that our current position below the mediocre level of our pay grades was built uncorrected racially discriminatory practices committed against us early in our careers. A guy like the deadbeat our Springer and Lang attorney flew in from Minnesota to tell us about had excellent standing before the law to sue and to win without going to trial. I didn’t know that I had been excluded from the first class action suit until 1980 when I first learned about it. Charles and I didn’t know until 1982 that he was hired to keep me out and I was promoted to keep him down. We couldn’t demonstrate that we had been the victims of racial discrimination for our entire Ford careers until 1992.
Suing an auto company for illegal discrimination is not like suing a department store for pain and suffering in a slip and fall accident. Winning cannot make you a millionaire and the odds of winning are stacked against you. Although the revised Civil Rights Act of 1991 provided for punitive damages up to $350,000, the Federal District Courts rarely assessed punitive damages. Your lawyers got a third of the award. The taxman got nearly half of what was left. And companies like Ford were willing to pay lawyers a few million dollars every year for as long as they could stretch out the litigation to avid paying any plaintiff as much as $100,000. Illegal discrimination was part of Ford’s game plan to increase profitability by lowering its salary costs.
Don’t think, race; think money. If Ford could underpay ten thousand salary workers by an average of only $5,000 a year it could, on paper, save fifty million dollars a year at a small fraction of the cost in legal fees. Never mind the fact that one top-notch salary worker making sixty or seventy thousand dollars a year could, and often did make or save the company several million dollars a year. Using the bell curve to bring as many salaried workers as possible to the middle of their pay grades or below required illegal discrimination. If Ford could disguise it as an evaluation of low performance, it could get away with it.
It is legal for companies to discriminate against employees who do not do their jobs well. It’s the only way to stay in business. Ford’s mistake was in believing that its method of identifying and rewarding the top 20% of its GSR and the top 10% of its middle management to fit the bell curve was enough to make its profits grow.
Japanese salaries in companies comparable to Ford were based on the premise that no employee was worth over a hundred percent more than any other. Top executives made out big with stock options and other perks that came with their titles. In North America, South America and Europe, top executives were valued more than a thousand percent over their average workers. They also got bonuses, stock options and other perks. If you ever wondered why the Big 3 automakers never recruited their top executives from Japan, now you know.
Ford wanted to believe that its “top team” members, pay grades 18 and above, were the most valuable people in the company. The idea that one pay grade-7 or 8 could do as much for the company’s bottom line as any of them was heretical. I wasn’t the only one who did it – but I was the only one with a federal case that could dismantle the architecture of the entire Fortune 500 GSR/management salary structure.
If I could prove in court that I did half the things I claimed I did for Ford it would open a can of worms with respect to Ford’s treatment of other GSR employees with comparable accomplishments. Ford would have to acknowledge a fatal flaw in its system of identifying and paying its most valuable employees from top to bottom. Good-bye bell curve. Good-bye obscenely high salaries and bonuses for top executives.
I knew that Ford’s attorneys were going to come after me with all guns blazing. I told my lawyers how they would do it based on my long history with the company. They had no other way to attack me if they chose to fight, which they did. It should have been the costliest mistake they ever made.
I had all of the documents I needed to prove my allegations. I had the two Master Modeler promotion lists, the fraudulent list that Ford submitted to the EEOC and all of the documents I gathered and generated on the Performance Review/ Promotional Practices task force. I had all the witnesses I needed including two former chairmen of the company as well as a hundred other witnesses. If Ford’s lawyers lied to the judge I could prove they were lying. If they told the truth, they would prove that I told the truth. How could my lawyers screw that up?
From the outset of joining the class action, Charles Purnell and I had deep reservations about the merit of the other claims. Springer and Lang sent us a copy of the class complaint it filed with Judge Friedman giving a summary of every individual complaint. If I had been the judge I would have toss them all out. Purnell told me that he had the same reaction. We brought our concern to our attorney Martin Weisman. He told us that a few of the forty or so plaintiffs might not have strong cases but all of them looked frivolous to us because we didn’t understand the legal terminology or the “onion skin” strategy Springer and Lang was using.
Martin explained that we were seeing only the outermost layer of the onion in a game lawyers played to keep the other side from knowing too much about what they had to nail them with. He said that as the process moved to the “class certification” layer with all the interrogatories, depositions, etc., we would see that the cases we thought were weak were as strong as ours.
It sounded to me like a strategy for defeat.
Federal judges know that most victims of illegal discrimination will not come forward for fear of being harassed on the job, humiliated on the witness stand, fired, blacklisted, or branded as troublemakers for the rest of their careers. They also know that some men, women, older workers or members of any ethnic or religious group might claim sex, age, race or religious discrimination where it doesn’t exist. For a class action suit to go before a jury, the judge has to find that the plaintiffs represent a larger group and have enough evidence to warrant a trial. The judge will certify that the plaintiffs represent a larger group or he won’t. If he doesn’t he will set guidelines for the plaintiffs to pursue their claims individually.
Purnell and I had met some of the other plaintiffs at a meeting in ’93 with Larry Schaeffer, one of the Springer and Lange attorneys, the only white person present. None of the people we knew with legitimate claims other than ourselves, wanted to get involved. The only person we knew was an engineer
that we suspected of using illegal drugs and faking a back injury to get extended time off of work. Sound familiar?
All of the plaintiffs who spoke at the meeting were angry about the way somebody at their place of work had treated them. It was hard to get a fix on whether race, sex, age or personality was primarily responsible for what happened to them, how they perceived it or how they wanted the group to perceive it. We didn’t know enough about them and the people they accused of treating them unfairly to make a rational judgment.
The overwhelming majority of people at the meeting were older than I was and more than half of them were women. That observation conformed to what I noted in my answers to Ford’s interrogatories as Ford’s principle mechanism for practicing illegal discrimination. Ford could pass the legal tests for race discrimination by doing the same things to an equal number of older white workers. It could pass the sex discrimination test by doing the same things to an equal number of men. It was a statistical game. Ford played it well.
Springer and Lang had no interest in how Ford discriminated against any protected group by discriminating against all of us. I was not a statistical expert and our attorneys believed that they could beat Ford with their own statistics expert. They scoured the land for the best one they could find, paid him big bucks and staked everything on his report.
Judge Freedman invited the plaintiffs to view the court proceedings that would determine whether he would certify the class. I couldn’t help but notice the color of the plaintiffs in contrast to the color of the judge and the attorneys. Javier Rubinstein, the attorney who took my deposition for Ford, was the only lawyer with skin dark enough to question his ethnicity. His first name seemed to go with his physical appearance. His last name didn’t. I wondered if his name or his looks would have any influence on the judge. I wondered if I would be able to tell if it did.
Judge Friedman surprised me with his opening remarks in which he addressed the plaintiffs directly and told us that we could come to him if we felt that our concerns were not being fairly addressed. He was ambiguous enough to make it impossible to tell whether he was referring to
unfair treatment by Ford’s attorneys, our attorneys or him. In practice we all knew that we couldn’t go to him about anything without antagonizing our attorneys. The invitation, therefore, had no practical meaning for us. We could only wonder what it meant to the attorneys and the judge.
One Springer and Lang attorney made the presentation for the plaintiffs while two of her partners in the firm shuffled papers. Martin sat back in his char with a smile on his face playing with a rubber band.
I put myself in Judge Friedman’s place as I listened to the lawyers for each side going at it with statistics piled on top of statistics to support their arguments and rebut their opponents’. They leaned heavily on their experts’ credentials and the methodology they used to compile their statistics. Each side argued that the other side’s expert used the wrong method to establish the relevant facts. Our lawyer put on the better show in the opening and middle rounds of argument but all I got from it was that she was better magician than Ford’s attorney. It all looked like word magic and number magic to me.
Ford’s lawyers then did something that our lawyers should have trounced them on. They used four groups of people represented by the plaintiffs to illustrate with simple charts and graphs why these groups should not be included in the class. I had everything necessary to show that Ford had dummied the recorders its statistician used because one group was clay modelers. No names were used but no names had to be used. There were only four of us and only one of us was a pay grade-8.
Ford’s attorney showed that 100% of the black modelers were treated better than our white counterparts. He showed that 25% of us reached pay grade-8 and 75% of us reached pay grade-7 in contrast to many white modelers who had not risen above pay grade 6. Now I understood why Ford hadn’t hired a black modeler in nearly twenty years.
I looked at Purnell. He looked straight ahead. I looked at Martin. He still sat back in his chair smiling and playing with his rubber band. Then Javier left his chair and went to the Ford lawyer making his presentation. Javier was obviously nervous. He had good reason to be nervous. He was about to introduce into evidence an outright lie.
Javier held a sheet of paper in his trembling hands. He showed it to the lead attorney who nodded and continued his presentation. Javier sat down and the lead attorney delivered the coup de grace.
Implying that Ford had several black grade-8 modelers, he pointed out that Ford promoted one of us over older white modelers with more seniority. He showed that the black modeler in question received a higher promotion increase than any of the seven white modelers promoted at the same time the company promoted him. He looked at the judge and said, “Your Honor, the African-American clay modelers were clearly not discriminated against. They clearly don’t belong in the class.”
I looked at the other plaintiffs. They seemed to agree.
The Springer and Lang attorney conferred with her colleagues. Martin leaned in on the conversation but I couldn’t tell what he said. We’ve got them! I thought. We can win the case right here. We can prove that Ford lied and that its statistical methodology was bullshit….
Then I noticed something that had been bothering me all along but didn’t come into focus until now. Martin had a folder on the desk in front of him but it was too thin to contain more than a dozen sheets of paper. My file was an inch thick. Where was my file? Was it in Martin’s briefcase? Did he have a briefcase?
I literally thought I was going to die when the plaintiffs’ attorney accepted Ford’s statistics and used them to make a point so convoluted that I couldn’t follow it. I don’t think anyone could. I expected one of the Ford lawyers to rise up like Perry Mason and say, “Objection! Council’s remarks are incompetent, irrelevant and immaterial.” I wanted to do it myself. Then I saw that she was doing the same thing I did in the Army when I went before the promotion board and didn’t have a good answer to one of the questions. She was treading water until she could find solid ground to swim to. She worked her way around to her original statistical methodology argument and finished her rebuttal with references to conclusions that the plaintiffs’ statistician made in his study.
Now I saw why the plaintiffs’ statistician got it right in his assessment of Ford’s overall hiring practices and the arbitrary criteria it used for awarding raises and promotions. Ford’s numbers simply didn’t add up. I had the horrible feeling that the plaintiffs could see it but the judge couldn’t. I saw it now only because now I had concrete examples from my experience to draw on. Judge Freedman had only the competing testimony of expert statisticians and vague allegations of discrimination.
To show that Ford went out of its way to recruit African-American’s, Ford’s attorneys used the example of a plant in Texas where the plaintiffs argued more African-Americans should have been hired. Ford’s attorneys said that the company did not hire as many blacks at that facility as the pool of available candidates would suggest because not enough African-Americans passed the minimum requirements of a standard IQ test. At any given place I could see how black people might have been underrepresented or, as it was with the test that got me and four other black students into Paul Schiloff’s clay modeling school, over-represented. The judge could reasonably conclude that the black applicants in that area simply weren’t as smart as the white ones.
Springer and Lang’s attorney argued that the test results were invalid because the job didn’t require the test. Martin never stopped smiling or playing with his rubber band.
I left the courtroom feeling like a boxer flat on his back with the referee standing over him counting “…six…seven…eight…” I talked to one of the plaintiffs who felt the way I did. He nodded his understanding when I told him that I was the grade-8 modeler in the example – the first and only grade-8 modeler who was not promoted with the others and there were only four of us in all. His plant was the one Ford used in its example of reaching out to blacks who weren’t hired because they didn’t pass the test. He was upset with our attorneys for not addressing the issue his group brought to them. They had no objection to the test. They objected to the fact that Ford required only black people to take it. The company hired white people who did not take it.
Purnell wasn’t discouraged. He thought that the Ford lawyers’ arguments were transparently bogus and they hurt themselves by making them. Most of the other plaintiffs felt the way he did. I was so upset that I had trouble sleeping. When I nodded off I had horrible nightmares. I was back in the kill zone getting shot at with no way to shoot back.
Judge Freeman said that he had a tremendous amount of information to consider and Martin told Purnell and me when his was explaining the “onion” strategy that it would take months for him to make a decision. It wasn’t too late to give the judge the documents proving that Ford’s attorneys submitted false documents to the judge about my promotion. We could show that Ford Personnel did the same thing with the EEOC.
To take the judge up on his offer to address our concerns without stepping on the toes of our attorneys, I went to Martin. I reminded him that I told him what Ford was going to do and now that it was history we could clobber the company with the facts in my folder. He told me that I was overreacting. He said that he thought Springer and Lang’s attorneys had clobbered the company but to make me happy he would pass along my suggestion to them. He did.
Springer and Lang took it no further. But I wouldn’t know that for several months when Judge Freedman rendered his decision.
The judge denied class status to the plaintiffs. He used Ford’s four specific examples to do it. He said that the statisticians for Ford and the plaintiffs canceled each other out. Our lawyers blamed the decision on judicial bias. I blamed it on them. They didn’t listen to their clients so they didn’t give the judge the information he needed to make a fair decision. In his place, I would have done the same thing. What he did next is a different story…
According to our lawyers, losing the class certification would be only one lost battle in many battles to come before our individual cases were decided. They didn’t take into account how the settled question of whether Ford practiced systematic race discrimination would influence the judge’s subsequent decisions. He left open the possibility that some of the plaintiffs might have suffered race discrimination but he demonstrated that he though most of the charges were frivolous.
Once Judge Freedman decided that Ford did not practice systematic race discrimination he barred us from pursuing our age discrimination charges as a class or as individuals. He then pressured our lawyers to persuade us to accept an “Alternate Dispute Resolution” process to thrash out our differences with Ford over the race issue and to “shorten the litigation.” The ADR process meant that we could not take our cases before a jury.
The first step in the ADR process was mediation. Each plaintiff would get a date to go to a neutral meeting place with his or her lawyer, a Ford lawyer and a professional mediator from an independent company. There would be no record taken of the proceedings and the participants would be sworn to keep everything said at the mediation confidential “to encourage free and frank discussions.” If we could not reach agreement we would proceed in turns to a “mini-trial” with three arbiters making a final and binding determination. Ford would select one arbiter. The plaintiffs would select one and both sides would agree on the third.
Naturally, I balked. I knew what “confidential” meant to Ford. I wanted everything in the open and on record where anyone could see what happened as it happed and review it line by line at any time. Purnell agreed. He had lost confidence in Springer and Lang and in Martin Weisman. He feared that Martin might have been working for Ford.
Purnell had a friend named Jennifer who recently got her license to practice law in Michigan. She agreed without charge to look at the things we couldn’t get our lawyers to look at. She thought that Purnell had a much stronger case than I did because I got promoted and he didn’t. When I tried to tell her what the promotion really meant she cut me off angrily as though I was trying to tell her that she didn’t know the law. She was the lawyer. Who was I to tell her that she was wrong?