former saif ceo tort claims notice

Buchanan Angeli Altschul & Sullivan LLP 321SW4thAvenue,Suite600 Dana Sullivan

Portland,Oregon97204direct: 503-974-5023

main: 503-974-5015 fax: 971-230-0337

[email protected] www.baasemploymentlaw.com

July 1, 2014 BY CERTIFIED MAIL RETURN RECEIPT REQUESTED Michael Jordan Director and Chief Operating Officer Department of Administrative Services Executive Building 155 Cottage St. NE, U20 Salem, OR 97301-3972 Re: John Plotkin v. State of Oregon

NOTICE OF TORT CLAIM PURSUANT TO ORS 30.275 AND NOTICE TO PRESERVE RECORDS PERTAINING TO LITIGATION

Dear Mr. Jordan: My partner Andrew Altschul and I represent John Plotkin in connection with any and all claims that he has against the State Accident Insurance Fund Corporation (SAIF), individual members of SAIF’s Executive Council, and Brenda Rocklin, Mr. Plotkin’s predecessor, arising from the ouster of Mr. Plotkin from his role as SAIF’s President and Chief Executive Officer on May 9, 2014. This notice is provided to you pursuant to ORS 30.275(5)(b). As our investigation of Mr. Plotkin’s claims is ongoing and there are numerous documents yet to be produced by SAIF in response to Mr. Plotkin’s public records requests, including his complete personnel file, this letter is intended only to describe the facts currently known to us. We reserve the right to offer additional facts in support of Mr. Plotkin’s claims as they become known and to assert additional claims supported by new information.

OVERVIEW

As detailed more fully below, contrary to the restrictions of Oregon’s ethics laws, Ms. Rocklin improperly influenced Chris Davie, Vice President of Corporate Policy and External Affairs, Ryan Fleming, Vice President of Operations and Human Resources, and members of

Michael Jordan Re: John Plotkin v. State of Oregon July 1, 2014

SAIF’s Board of Directors to bring about Mr. Plotkin’s abrupt termination after only three months on the job. Although civil discovery will reveal why Ms. Rocklin desired that Mr. Plotkin’s employment be terminated, information currently available suggests that she either desired to resume the role of SAIF’s CEO or wished to maintain the status quo at SAIF by thwarting Mr. Plotkin’s efforts to introduce a new, more open and collaborative culture at SAIF. Mr. Davie and Mr. Fleming, acting in their individual capacities and outside the scope of their roles as Executive Council members, aided and abetted Ms. Rocklin in achieving her objective to displace Mr. Plotkin. Seizing upon second- and third-hand accounts (many of which are untrue) of what are only laughably characterized as inappropriate comments made by Mr. Plotkin, Mr. Davie, Mr. Fleming and Ms. Rocklin persuaded SAIF’s Board that Mr. Plotkin’s employment should be terminated.

Contrary to their fiduciary responsibilities to the organization, members of SAIF’s

Board allowed themselves to be unduly influenced by Mr. Davie, Mr. Fleming and Ms. Rocklin. They failed to launch any sort of genuine investigation or otherwise provide Mr. Plotkin with any meaningful opportunity to respond to the bizarre allegations described below. Rather, the Board Chair, Catherine Travis, called Mr. Plotkin at home on Saturday morning May 3, 2014, and demanded his resignation. Stunned, Mr. Plotkin inquired about the reason for such an abrupt termination, as he had been given no prior notice that there were concerns of any kind regarding his performance. Ms. Travis responded that the Board did not need to provide a reason—a sure sign a nefarious motive is afoot— and shared only that he had supposedly made statements that implicated a “protected class.” Ms. Travis indicated that she had the votes from Board members to terminate Mr. Plotkin and she gave him until 3:00 p.m. the following day (Sunday) to decide to resign or be terminated.

During a telephone conversation on May 4, Ms. Travis agreed to provide Mr. Plotkin

with additional information about his allegedly inappropriate comments, but—inexplicably—only on the condition that Mr. Plotkin would not respond to the allegations. The handful of comments that SAIF eventually shared with Mr. Plotkin would not have caused offense to any reasonable person of normal sensitivity. SAIF could not have had any genuine concern about them, and the concerns were clearly trumped up. Even had Mr. Plotkin caused offense, the Board’s refusal to provide Mr. Plotkin the opportunity to dispute the veracity of the allegations or explain his conduct is a shocking breach of their fiduciary duty to SAIF policyholders and taxpayers who ultimately support this four billion dollar enterprise. After nearly a year-long search and vetting process it is hard to fathom why such minor alleged infractions could not be resolved by simply counseling Mr. Plotkin to be more circumspect. Instead, after Mr. Plotkin declined to resign, the Board voted to terminate Mr. Plotkin during a special meeting on May 9, 2014, thereby causing needless disruption to the organization and knowingly inviting litigation.

The outrageous manner in which members of SAIF’s Board handled Mr. Plotkin’s

termination is inconsistent with SAIF guidelines and past practices and makes clear that it was the Board’s intention to pressure Mr. Plotkin to resign. While the emotional pressure


that the Board applied to Mr. Plotkin did not prompt him to resign, the Board did succeed in its aim to cause Mr. Plotkin to suffer substantial emotional distress and indignity.

Mr. Plotkin intends to pursue a civil action to recover for this emotional harm as well

as for the serious economic harm that the loss of his job has caused him and his family. He also intends to pursue punitive damages against Mr. Davie, Mr. Fleming and Ms. Rocklin for the willful way in which they disregarded the law for their own personal ends, knowing that their actions would cause substantial harm to Mr. Plotkin personally and professionally.

FACTUAL BACKGROUND

A. SAIF Hired Mr. Plotkin After a National Search and He and His Wife

Relocated from Colorado to Oregon. After Brenda Rocklin announced her plans to retire as SAIF’s CEO after nine years in that role, SAIF embarked on a national search for her replacement. After a rigorous interview process, the SAIF Board of Directors selected Mr. Plotkin as Ms. Rocklin’s successor. Mr. Plotkin was highly qualified for the position. He attained his bachelor’s degree in economics from Brown University and went on to earn a law degree from University of Michigan. At the time SAIF offered him the CEO position, Mr. Plotkin was serving as interim CEO and vice-chair of the Board of Directors of Pinnacol Assurance in Denver, Colorado, which is Colorado’s state workers’ compensation fund. Mr. Plotkin had served on the Pinnacol Board since 2011 and had assumed the role of interim CEO in January 2013. According to the press release issued by SAIF in October 2013 announcing Mr. Plotkin’s hire, he “came highly recommended by representatives of the government, business and labor in Colorado.” It was agreed that Mr. Plotkin would assume the role of CEO on February 3, 2014, a few weeks prior to Ms. Rocklin’s departure so that the two of them could work together to ensure a smooth transition in leadership. In anticipation of launching this next phase of his career, Mr. Plotkin and his wife purchased a home in Oregon and left Colorado. The move was not without its hardships as both Mr. and Ms. Plotkin, who also works for a company that operates in the workers’ compensation arena, left behind well-established personal and professional connections to move to a state and community that was completely new to them. For Mr. Plotkin, however, the opportunity to lead SAIF and to help the corporation achieve a new level of success presented a challenge that made the personal risks worthwhile. Moreover, he was encouraged by the members of SAIF’s Board and Executive Council with whom he met during the interview process that said they appreciated his fresh perspective and were confident that he was the best candidate for the position. Mr. Plotkin moved to Oregon anticipating that, like his predecessor, he would have a long career at SAIF and then retire.


B. Although Brenda Rocklin and Other SAIF Officers and Directors Promised That They Would Share With Mr. Plotkin any Concerns About His Leadership, Ms. Rocklin, Mr. Davie and Mr. Fleming Secretly Worked to Undermine Him and Bring about His Discharge.

Recognizing that the arrival of a new CEO often spurs complaints from employees

loyal to the executive being replaced, Mr. Plotkin spoke very candidly with the Board, the Executive Council, and even Ms. Rocklin about his desire to be notified of any concerns about his performance so he could address them constructively. During his first weeks of employment, Mr. Plotkin met individually with each member of SAIF’s Board of Directors and invited each of them to reach out to him with any questions or concerns. In mid-February, Ms. Rocklin and Mr. Plotkin spent four days traveling around Oregon meeting with SAIF employees and stakeholders throughout the state. Mr. Plotkin pointedly asked Ms. Rocklin to let him know if she became aware of any concerns or complaints about his approach or style. Ms. Rocklin agreed that she would share with him any issues that came to her attention.

Ms. Rocklin also suggested, during another conversation with Mr. Plotkin before her

departure, that Mr. Plotkin could rely upon Chris Davie to advise him should any concerns develop about his leadership. Ms. Rocklin’s recommendation was echoed by Board Chair Cathy Travis. During a one-on-one meeting in February 2014, Mr. Plotkin shared with Mr. Davie his conversations with Ms. Rocklin and Ms. Travis and Mr. Davie committed to notifying Mr. Plotkin if he heard that anyone was dissatisfied with Mr. Plotkin’s performance.

Until May 3, 2014, Mr. Plotkin received nothing but positive feedback from Ms.

Rocklin, the Executive Council and members of the Board. On April 21, 2014, nearly two months after Ms. Rocklin’s departure, Mr. Plotkin met her for dinner. She asked how things were going and Mr. Plotkin described positive changes for which he had received favorable responses from managers and employees alike. He also mentioned that he found that most of the Executive Council members were adjusting well to the change in leadership but that Chris Davie seemed to be somewhat disengaged. Ms. Rocklin did not offer any insight, instead suggesting only that Mr. Plotkin not curtail the length of Board meeting minutes, which was a change that Ms. Rocklin and Mr. Plotkin had discussed prior to her departure.

During the dinner, Ms. Rocklin kept to herself the fact that she and Mr. Davie had

been in frequent telephone contact since her departure from SAIF. Phone records produced by SAIF in response to a public records request have revealed that, although Ms. Rocklin retired effective February 28, 2014, in the month of March 2014 Mr. Davie and she spoke on the telephone at least 19 times, totaling over six hours of conversation. In April, Mr. Davie continued talking with Ms. Rocklin by phone every few days, including a 46-minute call on April 22, the afternoon after her dinner with Mr. Plotkin.


Like Mr. Davie and Ms. Rocklin, Mr. Fleming was also actively undermining Mr. Plotkin behind the scenes throughout April 2014. As we now know from Mr. Fleming’s notes, produced in response to Mr. Plotkin’s public records requests and a copy of which is attached as Exhibit A, Mr. Fleming began documenting what he apparently viewed to be objectionable conduct by Mr. Plotkin beginning in late March 2014. Shockingly, although Mr. Fleming was the senior manager in charge of Human Resources at SAIF and despite pledges that Board and Executive Council members would be candid with Mr. Plotkin if his actions raised any concerns, he never spoke to Mr. Plotkin directly about any concerns. Mr. Fleming also failed to question the employees whom were reportedly offended by Mr. Plotkin’s remarks or obtain information about the context surrounding the alleged remarks, despite the requirement set forth in SAIF policies and practice that complaints of inappropriate conduct be investigated. Rather, Mr. Fleming opted to amplify the significance of largely second- or third-hand accounts reported to him by Theresa McHugh, SAIF’s Vice President of Financial Services, who, like Mr. Fleming and Mr. Davie, had had a long and close working relationship with Ms. Rocklin.

Documents produced by SAIF in response to public records requests indeed show that

many of the comments that Mr. Fleming and Mr. Davie seized upon to support their recommendation that Mr. Plotkin be terminated have since been specifically refuted by those alleged to have heard the comments. In addition, these documents reveal that several members of SAIF’s Executive Council vociferously objected to the fact that Mr. Fleming and the Board failed to consult with or even notify them of their plan to demand Mr. Plotkin’s resignation on a Saturday and then terminate him five days later in a public forum.

Mr. Fleming had dinner with Ms. Rocklin on April 22, 2014, the day after Mr. Plotkin

dined with Ms. Rocklin and the same day that Mr. Davie and Ms. Rocklin had a lengthy telephone conversation. Mr. Fleming’s notes reflect that he discussed with Ms. Rocklin the fact that he “was getting reports of inappropriate conversations.” Ms. Rocklin responded that she had heard from Colleen Sealock, formerly SAIF’s Vice President of Operations and Human Resources, that she had had dinner with another SAIF employee who had also mentioned something similar (an assertion which this employee has since expressly denied). During this dinner, Ms. Rocklin reported to Mr. Fleming that Mr. Plotkin had “talked about a woman’s ‘tits’” while she and Mr. Plotkin were on their road trip throughout the state. Despite the clearly inappropriate nature of such a comment, had it been made, Mr. Fleming acknowledged in his own notes that he “did not ask for more details.” Plainly in derogation of his professional duties, Mr. Fleming never questioned Mr. Plotkin about the alleged remark or sought to inquire whether it was even true. Even more outlandish is the fact that, if Ms. Rocklin truly believed that Mr. Plotkin had made such a comment, she never mentioned it to Mr. Plotkin, contrary to her promise to let him know if she was aware of any concerns about his actions.1

1 In fact, the comment to which Ms. Rocklin was referring related to a story that Mr. Plotkin told her about attending a cheese-making class with his wife. Within the context of that story, Mr. Plotkin made a comment


Mr. Davie’s and Mr. Fleming’s actions throughout April 2014, all taken without Mr.

Plotkin’s knowledge, violated many of SAIF’s Standards of Conduct. These standards prohibit SAIF employees from engaging in dishonest conduct, which is defined to include the withholding of relevant information. SAIF’s Standards of Conduct also prohibit subversive activity that is intended to sabotage SAIF’s business activities. In addition, Mr. Davie’s repeated telephone calls with Ms. Rocklin, during which he presumably shared information that he and Mr. Fleming were gathering that they believed would be damaging to Mr. Plotkin, violated SAIF’s prohibition against the unauthorized disclosure of confidential information and the use of SAIF’s communication technology in a manner that is unprofessional or inappropriate.

C. Waiting Until Mr. Plotkin Left Town for a Conference, Mr. Fleming, Mr.

Davie and Ms. Rocklin Convinced the Board that Mr. Plotkin should be Fired.

On April 29, 2014, Mr. Plotkin traveled to Washington, D.C. with SAIF’s Vice

President of Legal Services to represent SAIF at a national industry conference. Mr. Fleming seized upon Mr. Plotkin’s absence and the absence of SAIF’s chief legal counsel to notify, for the first time, members of SAIF’s Board and an attorney from the Department of Justice (where Ms. Rocklin previously worked and to which she continues to have strong connections) that he had concerns about Mr. Plotkin’s conduct. The flurry of telephone calls made by Mr. Davie and Mr. Fleming between April 29 and May 2 included numerous calls to Ms. Rocklin and at least one call to Colleen Sealock, the former HR director. Mr. Davie was the sole member of the SAIF Executive Council whom the Board involved in its deliberations and communication strategy during that time period.

Although SAIF’s Bylaws prohibit the Board from taking action without a meeting

where a quorum of the membership is present, SAIF documents reveal that, by May 2, 2014 and without holding a public meeting, the Board had reached consensus that Mr. Plotkin should be terminated and that John Gilkey, the Senior Vice President of Policyholder Services, would be named Interim President and CEO. Documents produced by SAIF also reveal that Board Chair Cathy Travis spoke to Ms. Rocklin and that she agreed to return to SAIF as its President and CEO in the event that Mr. Gilkey declined the position. Evidence of these communications confirm that Ms. Travis shared confidential information with Ms. Rocklin regarding Mr. Plotkin’s position with SAIF and his performance before she ever spoke with Mr. Plotkin, an outrageous breach of confidentiality and basic standards of human decency.

about goat teats. He was aware that Ms. Rocklin grew up in an Idaho ranching community and did not anticipate that she would be offended by discussion related to milking goats. Ms. Rocklin deliberately described the comment as one about women’s breasts to create the false and harmful impression that Mr. Plotkin had engaged in sexual harassment.


D. After the Board Precipitously Reached Consensus that Mr. Plotkin Should be Fired, it Acted in an Outrageous Manner in an Effort to Force Mr. Plotkin to Resign and, When That Effort was Unsuccessful, Terminated Him in a Manner Calculated to Damage his Professional Reputation.

On May 3, 2014, Ms. Travis, who at the time was in Florida, and Ryan Fleming finally shared with Mr. Plotkin the information that the Board, two or three members of his management team, and former employees Ms. Rocklin and Ms. Sealock had known for some time. At 9:00 on Saturday morning, the day after he returned from effectively representing SAIF at the D.C. conference, Mr. Plotkin received a phone call from Ms. Travis and Mr. Fleming at home. He then learned for the first time that the Board and a minority of the Executive Council had developed concerns about his conduct so grave that they ostensibly warranted his immediate termination if he failed to resign by 3:00 p.m. the following day.

Notably, Mr. Plotkin had no idea what conduct by him they could possibly be talking

about. He was dumbfounded and highly distraught that he was being asked to make a career-altering decision without any knowledge of what was even going on, and without any reasonable hope that he could seek legal advice on a weekend. The cryptic explanation that Ms. Travis offered for the Board’s decision was that Mr. Plotkin had allegedly engaged in actions that could trigger claims based upon “protected class status,” which Mr. Plotkin inferred to mean claims of discrimination. Ms. Travis, however, refused to share any specifics.

This mysterious allegation of discriminatory conduct was particularly distressing to

Mr. Plotkin because, as the Board was well aware, Mr. Plotkin had actively promoted diversity and inclusion as a priority at SAIF. Further, as a former board member of the Mountain States Region of the Anti-Defamation League (ADL), Mr. Plotkin has personally participated in the effort to eradicate anti-Semitism and bigotry of all kinds, serving as Chair of ADL’s Regional Civil Rights Committee and a member of the ADL’s National Civil Rights Committee. Also devastating to Mr. Plotkin was the fact that Ms. Travis and other SAIF leaders had led Mr. Plotkin to believe that he could trust them to make him aware if concerns developed about his leadership so that he could modify his approach to address them. When Mr. Plotkin met individually with Board members during his first weeks of work, he had requested and obtained commitments from each of them that they would call him if they ever had questions or concerns about him. In short, Mr. Plotkin felt like he was in the midst of a nightmare, with absolutely no understanding of what he had done that was objectionable. Mr. Plotkin had never, in all his years of management, seen a personnel matter handled in such a strange, covert, and secretive way. He had never heard of a CEO being asked to resign over the telephone on short notice absent extraordinary and exigent circumstances, let alone without explanation. His sudden resignation, he knew, would imply that he had engaged in outrageous conduct and that resigning under those circumstances would irreparably damage his reputation.


Mr. Plotkin asked Ms. Travis for additional details about what was going on, and why his resignation was being demanded. Having just uprooted his personal and professional life, and his wife’s, to relocate to Oregon at significant expense, he understandably needed to know the story before making the monumental decision of quitting his new job. Ms. Travis said she would look into whether she could provide additional details and would let him know whether further explanation would be forthcoming.

Around 1:00 p.m. on Sunday, May 4, Ms. Travis and Mr. Fleming called Mr. Plotkin.

Reading from a prepared script, Ms. Travis indicated that she had been authorized to share some of the comments that served as the basis for the Board’s decision to terminate his employment. Utterly inexplicably, Ms. Travis advised Mr. Plotkin that she would not permit Mr. Plotkin to respond to the allegations. She described the following “offensive” comments: Mr. Plotkin had joked with coworkers on a few occasions about his dog’s sexuality, including a comment to a coworker that his dog liked to hump black dogs; and Mr. Plotkin had commented to coworkers that his childhood gym teacher checked to make sure the boys were wearing jock straps. Ms. Travis ultimately extended the time for Mr. Plotkin to decide whether to resign to Tuesday, May 6.

Had Ms. Travis actually permitted Mr. Plotkin to explain—as would seem to be

demanded by even the most basic HR standards—she would have learned that some of the remarks she listed were misquoted or untrue and those that were accurately quoted were taken out of context. Mr. Plotkin’s dog had been the subject of discussion at work because his photo had been featured in the April Fools’ Day edition of the SAIF newsletter advertising “Take Your English Bull Dog to Work Day.” When Mr. Plotkin did take his dog to work for photographs in connection with the feature, he encountered another employee with her dog in the courtyard. He pointed out to her lightheartedly that, to avoid any embarrassment, she might wish to keep her dog, which was black, away from his because his dog liked to hump other dogs, and was particularly drawn to black dogs. Although he made the comment in a lighthearted way, the comment he made was true, and his desire to avoid awkwardness between him and the employee and their pets was genuine. Only a committed bigot would somehow construe such a remark as “racial” and such an implication that reference to the color of a dog is somehow meant to signify black people is itself an offensive interpretation. It defies logic and decency for anyone at SAIF to take the position that Mr. Plotkin should reasonably have anticipated a comment about his dog to cause race-based insult. Notably, the woman to whom Mr. Plotkin made the remark did not object to the comment at the time, and when she learned that this encounter was one of the alleged reasons for Mr. Plotkin’s termination, she wrote an email expressly stating that she took no offense and the Board had taken the innocent comment out of context.

While Mr. Plotkin did share with members of his executive team that his gym teacher

made a habit of checking boys’ jock straps, he offered the story within the context of a discussion about SAIF’s employee dress code, and the need to allow SAIF employees more latitude to make their own decisions about professional clothing, because they are adults. In


making the comment, he was contrasting a professional work environment to his high school locker room to highlight the distinction and illustrate why he did not wish supervisors to have to devote undue attention to the policing of employees’ attire. Again, the notion that this remark was sexual or discriminatory in nature is preposterous and if anyone participating in that conversation (i.e. the members of the Executive Council) perceived it as such, they did not express their concerns at the time or at any time thereafter.

Mr. Plotkin later learned through an attorney at the Department of Justice of another

“offensive” remark that prompted the Board’s decision to terminate his employment, which was even more patently ridiculous than the comments that Ms. Travis had briefly described. It appears from the discussion of this comment during the May 9 meeting in which the Board voted to terminate Mr. Plotkin’s employment (see SAIF Board of Director Minutes, May 9, 2014 (“May 9 Minutes”), attached and incorporated as Exhibit B, at p. 10) that SAIF takes the position that Mr. Plotkin’s comment to the Executive Council in the presence of an employee who was presenting actuarial information to the effect that he should “speak English, not actuary,” was racially offensive because the statement was made to a person of color. Had anyone permitted Mr. Plotkin to explain his remark, he would have stated that he was trying to make the point that all employees, including actuarial experts, need to communicate in plain language in order to convey their message more effectively. It is hard to fathom how words of constructive criticism, made in the presence of an English-speaking Asian American employee with the aim of helping him to communicate with an audience who lacks his technical expertise, could by any stretch of the imagination be characterized as racist. Again, the only evidence of racism in this circumstance is viewing his utterly benign comment as somehow racial because it was made in the presence of a person of color. Again, this employee was not offended by the statement.

As of Saturday, May 3, 2014, Ms. Travis and Mr. Fleming instructed Mr. Plotkin that

he would be “home-stationed” and Mr. Fleming cut off his access to SAIF’s computer system. It was only after Mr. Plotkin advised the members of the Board, in an email on Tuesday, May 6, that SAIF’s Bylaws did not authorize the Board to delegate to Mr. Fleming the authority to suspend the CEO’s responsibilities without a vote at a public meeting, that Mr. Plotkin was able to regain access to SAIF’s network so that he could carry out his continuing fiduciary responsibilities to the organization.

On May 5, 2014, Mr. Plotkin emailed members of the Board asking for the

opportunity to address the Board and respond to the allegations against him. He pointed out that, as a member of the Board of Directors at Pinnacol Assurance in Colorado, he dealt with a CEO who had engaged in conduct that resulted in damaging public criticism of the company. That individual was given a year of executive coaching before he ultimately left the organization. Mr. Plotkin pointed out that he had not been given even a fraction of the same consideration. He explained that he was unaware that he had caused offense to anyone but, if he had, he would certainly modify his conduct in the future. He shared the view that he was bringing positive changes to SAIF and that his abrupt departure would be damaging


to the organization. He also speculated that it was because of those changes that he was being pressured to resign for trumped up reasons. Mr. Plotkin received no response to his email.

On May 6, 2014, Mr. Plotkin sent another email to the Board notifying its members

that he had elected not to resign. Mr. Plotkin reiterated that the actions of the Board had been “extraordinary, unexpected and disturbing.” He requested the opportunity to present the Board with information at a public Board meeting so that they could assess whether it was truly in SAIF’s best interest to terminate his employment. He suggested to the Board that, in light of his notable accomplishments during his three months as CEO, he should be retained in his position.

Mr. Plotkin subsequently reached out to each Board member individually and invited

him or her to contact him to discuss the allegations against him. Only one Board member even responded to his messages and that Board member declined to speak with him. Another Board member accepted Mr. Plotkin’s telephone call and spoke briefly with him about the situation. This Board member indicated, however, that he had already made up his mind with respect to Mr. Plotkin’s termination. While no one in leadership at SAIF was willing to talk to Mr. Plotkin, Mr. Davie remained in daily contact with Ms. Rocklin. Mr. Davie’s cell phone records show that he spoke with her at least once each day on May 6, 7 and 8, the days leading up to the Board meeting to address Mr. Plotkin’s employment.

On May 7, 2014, the Board held a special meeting to address Mr. Plotkin’s

employment. However, the meeting was promptly adjourned and rescheduled to May 9, 2014, in order to allow SAIF and Mr. Plotkin the opportunity to explore whether an agreement could be reached whereby Mr. Plotkin would voluntarily resign. These discussions proved futile.

At some point, the Board consulted with representatives of the Governor’s office

about their intention to terminate Mr. Plotkin’s employment, apparently reporting that Mr. Plotkin had engaged in workplace harassment. On May 8, 2014, Governor Kitzhaber’s Chief of Staff, Mike Bonetto, sent Cathy Travis a letter on behalf of the Governor emphasizing that the State had a zero tolerance policy for workplace harassment of any kind and conveying the Governor’s expectation that “any verified complaints of this kind will be handled promptly and with appropriate action.” What SAIF had apparently failed to communicate to the Governor was that the supposed harassment complaints had not been verified (and were largely fictitious) and that the decision to terminate Mr. Plotkin had already been made, well before the Board sought any input from the Governor’s office.

The public meeting on May 9, 2014 began with an executive session for the purpose

of discussing “potential or anticipated litigation” and exempt public records (pertaining to Mr. Plotkin). When the meeting was opened to the public, well over an hour later, approximately 200 SAIF employees (roughly one-quarter of SAIF’s total work force)


attended in a show of support for Mr. Plotkin. Mr. Plotkin was allotted only ten minutes to speak. In the discussion that followed, Ms. Travis claimed that “there was a breadth of comments from a large number of people of various levels in this company.” May 9 Minutes, p. 10. In fact, records since obtained show that the allegations referenced by Ms. Travis were not supported and have in fact been explicitly denied by the employees alleged to have heard the statements. Had the Board conducted even a cursory investigation into the allegations conveyed to them by Mr. Fleming and Mr. Davie, the Board would have ascertained that the claims were distorted and either taken out of context or wholly fabricated. Ms. Travis expressly declined to review the specific allegations, stating “that’s all I can say about it, I want to say about it.” May 9 Minutes, p. 11. Mr. Plotkin responded,

Madame Chair, just so it’s clear. I have scrambled. I have asked for information, and I’ve never gotten an accurate accounting in writing. I’ve never gotten anything in writing. I have tried to be honest in my response to the board about the things that I heard, and tried to express some things that either I didn’t remember, and so forth, but I wouldn’t be here today if there were, there were, if it was 20 deep, real complaints about me that were of significance. I wouldn’t be here today if they had been shared with me, and I had the opportunity to consider them. You may have them. If you tell me that you did, then I will take that at face value, but I am not aware of them. May 9 Minutes, p. 11.

Shortly following this exchange, Board member Robb Van Cleave made a motion to

terminate Mr. Plotkin’s employment. All Board members voted in favor of termination. The motion to appoint John Gilkey as the Interim CEO was made and voted on immediately thereafter.

E. The Board’s Response to Reported Concerns about Mr. Plotkin’s

Conduct Violated SAIF’s Leadership Principles and Differed Markedly From its Handling of Past Complaints Regarding Brenda Rocklin.

The outrageous nature of the Board’s handling of Mr. Plotkin’s termination is made

all the more apparent when compared to SAIF’s own leadership principles and to the Board’s handling of complaints about Brenda Rocklin’s conduct. In 2005, SAIF adopted a set of Leadership Principles. This list of ten principles is prominently featured on SAIF’s website and SAIF commits to the public that it will adhere to these principles at all times. SAIF’s leadership principles include the following:

Stability is important. We have been here since 1914. The people of Oregon can depend on SAIF.

We operate with integrity in everything we do. We are accountable, open, and transparent. The people of Oregon deserve nothing less.


We are fair. We make decisions objectively and consistently while recognizing that every policyholder and injured worker is unique.

By unnecessarily discharging a CEO whom the agency had hired only three months before, the Board dealt a damaging blow to the stability of the organization. Further, the manner in which the Board terminated Mr. Plotkin was the antithesis of “open and transparent” as was the bizarre refusal to engage in any genuine inquiry about the alleged underlying comments, and the Board’s desire to shield itself entirely from Mr. Plotkin’s side of the story.

The Board also ignored SAIF’s pledge that its leaders would act fairly and consistently. The Board responded to vague and second-hand (and likely drummed up) complaints about Mr. Plotkin’s conduct in a manner that was wholly different than the way it had responded to more serious and credible concerns about Ms. Rocklin’s conduct. As recently as 2012, Mike Mueller, Senior Vice President of Claims and former Vice President of Legal Services, reported to Cathy Travis and Robb Van Cleave serious concerns about Ms. Rocklin’s management style and conduct. He shared that Ms. Rocklin expressed preference for certain members of her management team, openly treating them more favorably than others. He also reported that Ms. Rocklin verbally berated her subordinates in front of coworkers, in a manner that was both unprofessional and demoralizing. Mr. Mueller also advised that Ms. Rocklin, Mr. Davie, Mr. Fleming and Colleen Sealock frequently gathered in Ms. Rocklin’s office to have cocktails together at the end of the workday. Mr. Mueller expressed concern that drinking at work violated various SAIF policies and was generally inconsistent with SAIF’s mission.

The Board responded to Mr. Mueller’s reports of abusive and unfair treatment of staff

and drinking on the job by consulting with the Department of Justice and retained an outside investigator to look into Mr. Mueller’s allegations. After the formal investigation, the Board chose not to take any action against Ms. Rocklin, although this was not the first time that they had received a complaint that she had behaved abusively. Instead, they publicly praised her for doing an exceptional job and awarded her a lump sum bonus of $35,325. Ms. Travis met with Mr. Mueller shortly after the investigation concluded and suggested that he needed to talk to Ms. Rocklin to figure out how he could work with her going forward. When Ms. Rocklin finally agreed to meet with him, it was to suggest that they reach an agreement pursuant to which he would leave SAIF, which he ultimately did.

The Board’s handling of this 2012 complaint about Ms. Rocklin demonstrates that

they understood that the appropriate response to a complaint about the CEO is to retain a neutral party with specialized expertise to conduct a thorough investigation and to support the CEO unless given an objective reason to do otherwise. In fact, SAIF’s written harassment policy expressly promises SAIF’s employees that all complaints and reports of harassment “will be promptly and impartially investigated.” The Board acted in an outrageous manner by failing to abide by SAIF’s own policies and guidelines and by placing


the stability of the organization at risk because of its capitulation to the aim of Mr. Davie, Mr. Fleming and Ms. Rocklin to oust Mr. Plotkin.

ANTICIPATED LEGAL CLAIMS

Mr. Plotkin’s termination gives rise to claims for damages against Brenda Rocklin, Chris Davie and Ryan Fleming, in their individual capacities, and against SAIF.

A. Brenda Rocklin Faces Substantial Liability for Intentionally Interfering with

Mr. Plotkin’s Employment Relationship with SAIF.

Mr. Plotkin intends to pursue claims against Brenda Rocklin for intentionally interfering with his employment relationship with SAIF, and against Mr. Davie and Mr. Fleming, in their individual capacities, for aiding and abetting Ms. Rocklin. To state a claim for intentional interference with economic relations, a plaintiff must prove each of the following elements: (1) the existence of a professional or business relationship; (2) intentional interference with that relationship; (3) by a third party; (4) accomplished through improper means or for an improper purpose; (5) a causal effect between the interference and the harm to the business relationship; and (6) damages. Allen v. Hall, 328 Or. 276 (1999).

It is beyond dispute that Mr. Plotkin had an employment relationship with SAIF and that Ms. Rocklin was a third party to that relationship once she retired from SAIF. Evidence that she was integrally involved in decisions about Mr. Plotkin’s employment from early April through the time of his termination provides strong support for a conclusion that she intentionally interfered with Mr. Plotkin’s employment relationship.

We expect that we can just as readily establish that Ms. Rocklin brought about Mr. Plotkin’s termination by improper means. In order to satisfy this element of a claim for intentional interference with economic relations, a plaintiff must establish that the defendant had a duty of non-interference. Straube v. Larson, 287 Or. 357, 361, 600 P.2d 371 (1979). If a plaintiff bases a defendant’s liability upon the defendant’s alleged use of improper means, the means “must violate some objective, identifiable standard, such as a statute or other regulation, or a recognized rule of common law, or perhaps, an established standard of a trade or profession.” Northwest Natural Gas Co. v. Chase Gardens, Inc., 328 Or. 487, 498, 982 P.2d 1117 (1999).

Oregon’s laws governing the activities of public officials who have left public service provide such an objective standard. ORS 244.045(4)(b) provides that

A public official who as part of the official’s duties invested public funds shall not within two years after the official ceases to hold the position . . . influence or try to influence the agency, board, or commission.


Rocklin was subject to the restrictions of this statute and she flouted her statutory obligations by taking action to influence SAIF to terminate Mr. Plotkin. The evidence will establish that Ms. Rocklin’s input was a contributing cause to SAIF’s decision to terminate Mr. Plotkin’s employment.

It is reasonable to anticipate that Mr. Plotkin will suffer substantial economic harm as a consequence of Ms. Rocklin’s actions. He has suffered and will continue to suffer, unless reinstated, lost wages for which he intends to seek recovery from Ms. Rocklin. Mr. Plotkin will also be able to recover damages for mental suffering and damage to his reputation caused by Ms. Rocklin’s actions. Wampler v. Palmerton, 250 Or. 65, 73, 439 P.2d 601 (1968). In addition, Mr. Plotkin intends to seek punitive damages against Ms. Rocklin due to the patently willful nature of her efforts to bring about Mr. Plotkin’s discharge to satisfy her own ends. See Friendship Auto v. Bank of Willamette Valley, 300 Or. 522, 532, 716 P.2d 715 (1986) (punitive damages are appropriate to punish a willful, wanton or malicious wrongdoer and to deter that wrongdoer and others similarly situated from like conduct in the future).

B. Chris Davie and Ryan Fleming are Equally Responsible for the Harm Caused by Ms. Rocklin’s Intentional Interference Because They Acted in Concert with Her and Knew that Her Actions Violated a Statutory Duty to Refrain from Influencing SAIF.

Mr. Plotkin will also seek to hold Mr. Davie and Mr. Fleming jointly liable for Ms. Rocklin’s intentional interference because they acted in concert with her to bring about Mr. Plotkin’s discharge. Oregon courts have adopted Section 876 of the Restatement (Second) of Torts, which provides that person’s acting in concert may be liable jointly for one another’s torts. Granewich v. Harding, 329 Or. 47, 55, 985 P.2d 788 (1999). Specifically, Section 876 provides that an individual may be held accountable for another’s tortious conduct if he:

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

Restatement (Second) of Torts §876. Mr. Plotkin will be able to establish liability against Mr. Davie and Mr. Fleming for

tortious interference with Mr. Plotkin’s employment relationship with SAIF because they shared a common design with Ms. Rocklin and/or because they were well aware that Ms.


Rocklin’s actions violated the restrictions of Oregon’s ethics law and provided her with substantial assistance or encouragement nonetheless. Their actions fell outside the course and scope of their employment with SAIF because, among other reasons, sharing confidential personnel information with non-employees is beyond the scope of their employment. Further, there is evidence that Mr. Fleming and Mr. Davie took deliberate steps to keep other Executive Council members in the dark about their efforts to force Mr. Plotkin to resign. Such duplicitous actions towards their own peers, and their interference with their fellow officers’ ability to assess their own obligations as fiduciaries, lends strong support to a conclusion that Mr. Fleming and Mr. Davie had only their own personal ends in mind. Consequently, they will be held liable in their individual capacities for the harm caused to Mr. Plotkin. Mr. Davie and Mr. Fleming will be jointly and severally liable with Ms. Rocklin for the economic, emotional and reputational harm caused to Mr. Plotkin. Mr. Plotkin will also seek an award of punitive damages against them.

C. Mr. Plotkin Intends to Hold SAIF Accountable for Intentionally Subjecting

Him to Severe Emotional Distress in an Effort to Force Him to Go Away Quietly.

Mr. Plotkin will also pursue a claim against SAIF for intentional infliction of emotional distress. ‘To state a claim for intentional infliction of severe emotional distress, a plaintiff must plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.’ McGanty v. Staudenraus, 321 Or. 532, 543, 901 P.2d 841 (1995) (en banc) (quoting Sheets v. Knight, 308 Or. 220, 236, 779 P.2d 1000 (1989)). To prove the requisite intent a plaintiff need establish that the defendant engaged in conduct knowing that the conduct was substantially certain to inflict severe emotional distress on the plaintiff. McGanty, 321 Or. at 550-51. The determination of whether conduct is socially intolerable is a fact-specific inquiry. The court will evaluate the totality of the circumstances in each particular case to determine whether it constitutes an “extraordinary transgression of the bounds of socially tolerable conduct.” Lathrope-Olson v. Oregon Dep't of Transp., 128 Or. App. 405, 408, 876 P.2d 345 (1994); Franklin v. Portland Comm. College, 100 Or. App. 465, 471, 787 P.2d 489 (1990).

This case is readily distinguishable from cases in which claims of intentional infliction have been rejected in the employment context because they were based upon a straightforward breach of contract, excessive supervision or unjust reprimands. See, e.g., McWhorter v. First Interstate Bank of Oregon, 67 Or. App. 435, 440, 678 P.2d 766 (1984) (employer’s intentional breach of employment contract, without more, did not support intentional infliction of emotional distress claim); Franklin, 100 Or. App. at 471 (excessive supervision and unjust reprimands usually are insufficient to state a claim for intentional infliction of emotional distress). Rather, this case is more closely analogous to claims in which Oregon courts have recognized that an employer’s outrageous conduct related to the


termination can expose the employer to liability for intentional infliction of emotional distress. See, e.g., Coulter v. Construction & Gen’l Laborers Union Local 320, 107 Or. App. 522, 527-28, 812 P.2d 850 (1991) (termination of plaintiff’s employment for refusing to engage in a sexual relationship the defendant was sufficiently egregious to state a claim for intentional infliction of emotional distress); Smithson v. Nordstrom, Inc., 63 Or. App. 423, 428-29, 664 P.2d 1119 (1983) (interrogation by security officers and threats of criminal prosecution if employee did not sign confession were sufficiently egregious actions to state a claim for intentional infliction of emotional distress).

As fiduciaries, the Board had a duty to respond to reports of misconduct by Mr. Plotkin in a deliberative manner that would cause the least disruption to the organization and the State as a whole. Ms. Travis had also expressly promised Mr. Plotkin that he could rely upon Mr. Davie to discuss with him any complaints that came to Mr. Davie’s attention, and similar pledges had been made to Mr. Plotkin by members of the Board and the Executive Council, as well as Ms. Rocklin. Presented with vague allegations by Mr. Fleming and Mr. Davie regarding second-hand reports of objectionable statements by Mr. Plotkin, the Board departed from past practice and SAIF policy and declined to order an investigation, even though it should have been apparent to them that Mr. Fleming had not even so much as questioned the employees who were purportedly offended by Mr. Plotkin’s remarks. The Board did not even consult with SAIF’s own legal counsel, but instead seemed intent to rush through a final decision before she returned from a successful business trip with Mr. Plotkin. By blindsiding Mr. Plotkin with a demand for his resignation in a Saturday morning telephone call, by withholding from him information about the allegations against him, by then sharing with him vague accusations that he had made discriminatory remarks, knowing that such an accusation would be particularly distressing to Mr. Plotkin, and by failing to provide him with any opportunity to explain himself, the Board engaged in outrageous conduct the intent of which was to force Mr. Plotkin to resign his employment in order to avoid a claim of wrongful termination.

Although the Board was unsuccessful in strong-arming Mr. Plotkin to resign, they were successful in causing him severe emotional distress. It has been acutely distressing to Mr. Plotkin to be terminated after only three months, having relocated to Oregon and left behind a successful and established career in Colorado. Mr. Plotkin is devastated that the Board has denied him the opportunity to implement his vision for SAIF and is anxious about what future employment prospects he may have given the abrupt nature of his termination. Termination after only three months on the job conveys the impression to potential future employers that Mr. Plotkin engaged in serious improper and/or illegal behavior that would warrant sudden termination, even though the supposed transgressions upon which the Board is relying are nothing close to that level of severity. Mr. Plotkin intends to seek compensation from SAIF for the emotional distress that he has suffered and will continue to suffer as a result of the Board’s wrongful actions. Mr. Plotkin also reserves the right to supplement this tort claims notice, if warranted after SAIF has fully complied with his


records requests, with additional claims including but not limited to wrongful discharge or impingement of his constitutional rights in violation of 42 U.S.C. §1983.

NOTICE TO PRESERVE AND LITIGATION HOLD

This letter is also intended to remind SAIF and its individual officers and managers, as well as Ms. Rocklin, of their obligation to preserve electronic files and data related to Mr. Plotkin’s employment and potential claims and defenses arising therefrom. For individuals, such as Mr. Davie, Mr. Fleming, and Ms. Rocklin, this should also serve notice of their obligation to preserve their personal electronic data.2 SAIF, Mr. Davie, Mr. Fleming, and Ms. Rocklin must not destroy, conceal, or alter any papers or electronic files or any other electronic data generated by and/or stored on computers and storage media including hard disks, floppy disks, back-up tapes, thumb drives, etc. that may contain information related to this dispute. SAIF, Mr. Davie, Mr. Fleming, and Ms. Rocklin are also on notice to preserve all emails, text messages, and/or cell phone records related to this case and to advise all managers of their obligations under the law. Failure to comply with this Notice may result in sanctions by the Court for spoliation of evidence or potential evidence.

Since rely,

Dana L. Sullivan Cc: Shannon Rickard (via email) Tessa Sugahara (via email) Brenda Rocklin (via certified mail) John Plotkin (via email)

2 We have reason to believe that Ms. Rocklin may have canceled her cell phone account shortly after concerns of her involvement became public. Ms. Rocklin has a legal obligation to maintain her physical phone to ensure no evidence is destroyed. Similarly, Mr. Davie’s phone should be retained after his upcoming resignation without any information deleted.

EXHIBIT A Page 1 of 7

EXHIBIT B Page 1 of 14