State highway worker files lawsuit alleging co-worker hit his testicles in 'bizarre' attacks

bestep@herald-leader.comFebruary 13, 2014 

A supervisor and employees at the state Highway Department garage in Lee County took part in odd acts of abuse on the job, including hitting workers in the testicles, pelting each other with rocks and deliberately damaging employees' state-issued clothing with grease, according to a lawsuit and an internal investigation.

In one case, the supervisor and two others spun a worker on a merry-go-round at a park, and then the supervisor "karate chopped" him in the groin so hard that he fell to the ground, nearly vomiting as he writhed in pain, according to the employee's statement and his lawsuit.

The supervisor, Kevin McIntosh, stood over the employee, James Best, and derided him about "slobbering" on himself, the internal Transportation Cabinet investigation found.

Other employees on the road maintenance crew confirmed that they'd experienced or seen rough treatment.

"It was kindly hazardous to work there," one employee, Josh Warner, told investigators with the cabinet's Office of Inspector General last October.

Best's attorneys, Ned Pillersdorf and Joe F. Childers, filed a federal lawsuit Thursday over the alleged abuse.

The lawsuit said Best, an equipment operator, was subjected to a "bizarre series of physical and sexual attacks" over several months after he started working at the Lee County highway garage a year ago.

Best, 60, ultimately reported the abuse to a Transportation Cabinet official and asked to be transferred to another job, but he was denied a transfer, according to his lawsuit. The attacks on Best increased after he reported the problems, his lawsuit claims.

The lawsuit argues that McIntosh and other cabinet employees assaulted Best and violated his civil rights, including his right to be free from cruel and unusual punishment. The lawsuit also claims that the cabinet office overseeing the Lee County garage had a practice of condoning such improper treatment of employees.

The defendants in the lawsuit are McIntosh; Dale Deaton (identified as Dell Deaton in the state report) and Raymond Morse, who worked at the Lee County garage; and Elizabeth Miller, a cabinet official who has authority over transfers, according to the lawsuit.

The complaint seeks a transfer for Best; an order for the cabinet to stop the "deplorable" conduct that Best and others suffered; and an unspecified amount of damages and attorney fees.

Efforts to reach McIntosh on Thursday for comment were not successful.

The cabinet's inspector general opened an investigation after Best complained to Miller in September.

The report by investigator John Witt, filed with the lawsuit, included a finding that Best was hurt in the merry-go-round incident. In another instance, the report said, Morse bear-hugged Best so hard his chest popped and a knot formed. Best said in his lawsuit that he suffered a fractured rib.

Morse told the investigator he had not meant to hurt Best and hadn't touched him anymore.

In another case, Deaton threw a traffic cone and hit Best in the face, causing bruising and swelling, according to the report signed Jan. 8 by Cindy James, the cabinet's inspector general. Deaton told investigators he threw the cone only after Best asked him to, and that Best failed to catch it. Deaton said he apologized.

The report concluded that every member of the maintenance crew shared some responsibility for what McIntosh described as "horseplay," either for taking part in, or not reporting, conduct that was clearly barred by state policy. However, Pillersdorf said in an interview that Best's only participation was as a victim abused by younger co-workers.

One witness, L.C. Moore, told investigators that Best "continually begged" not to be hurt, but the abuse continued. Moore also said he had seen employees cry in pain after being hit in the groin.

The inspector general's report said it was reasonable to conclude that McIntosh had been the principal contributor to the "horseplay" and, as a result, to unsafe working conditions and injuries among employees. He also failed to report injuries as required, the report said.

It also said Aaron Gay, another supervisor, objected to the improper behavior but did not report it up the chain of command and, at a minimum, allowed the behavior to continue.

Best's lawsuit said McIntosh, Deaton and Morse were disciplined, but the Transportation Cabinet declined Thursday to provide information about how the employees were disciplined. Instead, it required the Herald-Leader to request the information using the state's Open Records Act. The cabinet has three days to respond to that request.

The three men remain on the job, and Best continues to work around them, according to his lawsuit. Pillersdorf said more severe punishment was warranted.

"Why is nobody fired?" he asked.

The inspector general's report includes statements from witnesses who said it was routine for McIntosh and others to hit employees in the testicles or throw rocks at each other, raising welts at times. Best wasn't the only one hurt.

Josh Warner told investigators he had been wrestled to the ground hundreds of times.

"In time, he learned to fall instantly to the ground to avoid further injury, including a blow to the groin," investigators said Warner told them.

In one case, Warner told investigators, McIntosh or Deaton hit him in the groin with a crowbar. The blow came from behind, so he couldn't see which man did it, Warner said. The blow nearly caused him to drop a piece of guardrail on other workers standing below him.

Warner estimated he'd been hit in the testicles 75 times in three years, with McIntosh delivering most of the blows. Warner ultimately transferred to the bridge crew.

Witnesses told cabinet investigators there was a club of sorts within the maintenance crew, with McIntosh and other members of the Masonic Lodge in a group apart from the others.

In an interview in October, McIntosh, a 15-year employee, told cabinet investigators that rock-throwing among employees had gone on "forever," and admitted that he had often hit employees in the testicles.

McIntosh, whom some employees described as an excellent manager, said he had taken his share of hits as well, but he refused to name anyone who had hit him.

McIntosh said when Best was on the merry-go-round, he meant to hit him in the leg but missed and hit his groin. He acknowledged wrestling with Warner, but he said Warner was often the instigator.

McIntosh acknowledged he should not have let the "horseplay" continue and should not have been a part of it. Told that he'd been implicated as the ringleader, McIntosh said he liked to play around because it made the day pass faster, according to the report.

"I felt like I have been doing my job, but I guess I've let horseplay get out of hand," the report quoted him as saying. "We hit each other hard enough to hurt. We do. We do. Including me."

Bill Estep: (606) 678-4655. Twitter: @billestep1.

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