In Montgomery, Alabama, Koch Foods faced multiple sexual harassment lawsuits, and they came from the most unlikely of places; human resources. The story is so puzzling and troubling that I wonder how the two HR employees, Melissa McDickinson and David Birchfield, were even hired to work in their positions.
Let’s Be Honest
Lawyers have discovered that McDickinson and Birchfield were in a sexual relationship, and they used that relationship to proposition other employees. The employees they harassed claim the work environment was toxic within and outside of the work environment and included retaliation all within an atmosphere of racism.
Naturally, Koch Foods is objecting to the complaints of the former employees:
“Koch Foods denies that the former employees who filed these lawsuits were discriminated against or harassed. Koch Foods notes that these former employees also filed discrimination charges with the Equal Employment Opportunity Commission (EEOC), but the EEOC declined to pursue them.”
As it turns out, the EEOC may have declined because at least one person who filed, Steven Jackson, claims he was forced to change a complaint. This dates to 2015 where Jackson claims he was made to change an incident report:
“Fearing I would lose my job…I lied for Birchfield in fear for my job and retaliation from Birchfield if I did not fully comply with his demands. Immediately following my meeting with the investigator, Birchfield called me to make sure I lied as he instructed.”
Another employee, Robert Fuller, alleges McDickinson regularly approached him with “requests for sex and sexual favors.” Allegedly, McDickinson also used racial slurs to refer to the African American employees.
Strange Love Triangles
Melissa McDickinson and David Birchfield’s relationship also had hints of jealousy. For example, when David Birchfield believed Steven Jackson and another employee were in a relationship with McDickinson, he suspended both of them for three days, Jackson said.
The accusations of sexual harassment, racism and intimidation that emanated from HR to the employees was on-going and would be rather unbelievable were the accusations to come from just one ex-employee. However, it has come from several employees who were afraid to speak up and stand-up about their treatment as the result of the two characters in HR.
It leads to an important question: where was the oversite? Apparently, there was little. It was almost as if McDickinson and Birchfield were able to run rampant over the very rights of the employees.
It must be remembered that jobs requiring low-level skills are generally the domain of poorly educated, often desperate individuals who are unable to get adequate healthcare and benefits. Jobs such as that offered by the Koch Foods deboning plant are not easy to find. The two who controlled a great of the HR function were able to act relatively unchallenged.
At its most basic, Koch Foods not only lacked basic sexual harassment training but failed to monitor sexual harassment and abuse complaints. The fact that at least some of the serious complaints came from Human Resources, underscores that sexual harassment training is best handled by outside agencies without connection to the organizations themselves.
Of course, as part of implementing a program, there must be a way employees can be freely allowed to file complaints – without intimidation – and find legal resolution.
Koch Foods failed to supply such protections. Though the cases are still pending, we can see that when serious violations are ignored, they can only increase in severity. It could have been easily avoided from the very beginning.
LEAVE YOR COMMENTS!
Chuck, please don’t make me laugh. Your article reeks of yellow journalism.
“ Let’s be honest“ , Lawyers have no evidence to support their claims that McDickinson and Birchfield were in a sexual relationship during the time they were employed by Koch.
Your second lie is that Jackson never filed a complaint so how could he change one? And if he lied for Birchfield as he claims who’s to say he isn’t lying now? This is considering the fact that Jackson is a convicted child molester, registered sex offender, and is currently on probation for a drug related charges. Jackson would not know the truth if it slapped him in the face. Another fact that you seem to have omitted from your article is that Jackson himself is also suing Koch Foods. Wow what a coincidence.
Third lie in your article is in reference to Robert Fowler. Solar is the person that used racial slurs toward a fellow African-American female HR employee. He is well approached not just make Dickason but other female HR employees in a sexual harassing manner. These are all facts that came out during his sworn deposition testimony. Fuller even went as far to say in this testimony that while employed at Koch he had an extra marital affair With a young lady that he’s supervised at his second job. This young lady stated that she felt definitely sexually harassed and obliged to have sex with him in order to keep her job. Another little fact that you failed to follow up on.
Your next lie deals with the statement about Jackson and another employee being suspended because Birchfield was jealous.
Jackson and the other employee were suspended because of attendance issues, and they were paid for their time away from work just as if they had been there. There’s another little fact that you failed to mention. This other employee, Irish Jenkins, is also a convicted drug felon who was investigated by the Montgomery fire department for attempting to burn the plant down and is currently in prison.
Another lie in your article it is that Koch failed to provide basic sexual-harassment training and to monitor sexual-harassment complaints. The fact is Koch requires all employees to have harassment training when they are hired as well harassment training every year of employment. Koch also provides each employee a phone number to anonymously report harassment as well as the phone numbers to the vice president of HR and the phone number to the president of the company. Just another little fact you failed to put in the article. Now considering that all of this information is indeed factual and could be easily verified by any fifth grader with a computer, one must ask the question, what do all these people have in common including yourself? Well for one they are all represented by one particular slimeball lawyer or people this lawyer employed by the name of Alicia Haynes. Hanes has become very wealthy by farming for and cultivating these types of individuals, what did you refer to them as, “poorly educated often desperate individuals”, to sue the companies where they work. Here’s another fact that you could easily substantiate, for every one of their employees involved in these lawsuits there are thousands of other current and past employees who will tell you that Birchfield and McDickinson went above and beyond to help them get their jobs, keep their jobs or to hire their relatives so they could have a job, and always treated them fairly. With that being said your yellow journalism article is a stain on your reputation. I wonder if that stain was also paid for by Haynes. It certainly sounds like it.
Mr. Gallagher: Thomas Merton once said: “If I insist on giving you my truth, and never stop to receive your truth in return, there can be no truth between us.” So, as the attorney for Melissa McDickinson and David Birchfield, I am writing to ask you to read the facts in the case you wrote about in your HR compliance Blog post about them which was posted March 30, 2021.
I was not asked by you to comment on the accusations and alleged “facts” provided you by the Plaintiff attorneys in several cases they brought for former Koch Foods employees. Because you are so involved with teaching ethics and providing advice on HR Compliance, I am sure you will be anxious to correct the record you have made. If you had asked me for a comment, I would have informed you of the facts below. There are others which must await trial set in a few months.
Mr. Birchfield and Ms. McDickinson did not harass and proposition workers. That rumor arose after employees were terminated or quit following rules infractions. The 2016 investigation in which Steven Jackson was interviewed was free of any duress – Mr. Jackson changed his story over a year after the interview and after he had been interviewed by the plaintiff attorneys. Mr. Jackson was a Union steward and knew very well his rights and avenues to complain but did not.
Koch Foods conducted regular sexual harassment training. As a matter of fact, Mr. Fuller, when he was employed, conducted that training on the policies for the new employees. Each of the plaintiffs and all of the witnesses deposed had signed annual sexual harassment training acknowledgements.
The night Ms. Gray claims she went to “their” house, Mr. Birchfield was in Florence, AL watching football with his childhood friend. Ms. McDickinson’s daughter was in the house the night Ms. Gray claims she went to the house. Ms. Gray never complained about anything that happened at the house in November 2015 until she quit Koch Foods the end of April 2016, after being written up by Ms. McDickinson for rules infractions – an HR function Ms. McDickinson took quite seriously. In November 2015, Mr. Birchfield lived at his sister’s home in Auburn, AL and not with Ms. McDickinson in Prattville, AL.
Ms. McDickinson and Mr. Birchfield met in the National Guard and were a part of a group of people who socialized by going to lunch and dinner over a number of years. Ms. McDickinson was looking for a new job at a time when the Koch Foods plant had a HR Manager going on maternity leave. Ms. McDickinson was interviewed and hired to be an HR Supervisor during the time the HR Manager was gone. However, the HR Manager did not return and Ms. McDickinson was interviewed by Mr. Birchfield and his boss, Bobby Elrod and was offered the job of HR. Manager. She was also going to school at night two nights a week to get her degree in Human Resources Management while she drove to and from work each day between her home in Weogufka, AL and Montgomery – a drive of over an hour and 20 minutes each way. Rumors began that the two were having an affair because of disgruntled employees who did not get the job.
Harvey Fuller was hired by Ms. McDickinson and Mr. Birchfield in March 2015 after serving as a temp for three weeks. He never complained about any uncomfortable treatment by Ms. McDickinson until 5 months after he had been terminated for leaving work for his co-workers to complete, while he took a 2+ hour lunch to see his 5th grade child “graduate,” without telling Ms. McDickinson where he had gone. When he called her from the gate, she asked him to call Mr. Birchfield and he did not. Instead of calling her the following Monday, he called a co-worker; only after a week without reporting for work, or to Ms. McDickinson, he sent an email to Mr. Birchfield asking about his “job.” During that week, he continued to run his bar in downtown Montgomery which had already landed him and his partners over $200k in hock. He often left work early and took lunch to respond to vendors at the bar. In August 2015, when other rumors were spread about Ms. McDickinson, Mr. Birchfield contacted Fuller to ask if Ms. McDickinson had engaged in any inappropriate behavior while he was there. He reported that she had been very professional even if he did not like how he was terminated from the job. He filed an EEOC Charge 3 months later claiming a few off-hand remarks that morphed months later into outlandish claims by the time his lawyers filed a lawsuit in February 2017.
Ms. McDickinson suspected Irish Jenkins had set the fire in the DeBone Plant in the summer of 2015. She talked to him in the smoking area in order to learn more about him and see if he would reveal his involvement in the fire. After that, one time she saw him at a bar, when she was there with Rebecca Milam and Steve Jackson, and bought him a beer. From this act, rumors began at the plant in August 2015 that they were an item. They were not. When an investigation was performed by Mr. Birchfield to determine if any rumors were true, all involved insisted there had not been an affair or sex.
It was during this investigation the issue with “points” of Jackson and Jenkins occurred. Within a few days, Birchfield had learned the clocking system recorded Jackson and Jenkins tardy when they clocked in on Saturdays because their regular clock in time during the week was earlier. Consequently, they received points for being tardy. Birchfield, not McDickinson, corrected the points issue. Jenkins had been suspended for three days but because it was he went out of an emergency exit to smoke and was caught on camera. Birchfield immediately reinstated him when he learned the USDA had been using the same door to go smoke. Birchfield’s notes reflect the dates of the investigation and how Jenkins was cleared, much to the chagrin of the plant manager, Randy Davenport, who wanted Birchfield to fire Jenkins.
In December 2015, Mr. Jenkins told a co-worker he had “hit Melissa’s sex,” and Steve Jackson told Mr. Birchfield about it. Mr. Birchfield met with Mr. Jenkins and in a heated exchange, asked Jenkins if he had had sex with his HR Manager. Mr. Jenkins earnestly and angrily denied ever having sex with Ms. McDickinson. Nothing more was said on this subject and Jenkins did not make a complaint to any management employee.
Mr. Jenkins was discovered stealing time on the clock in March 2016 by clocking in from a break and going back out to smoke. This infraction was a terminable offense and he was suspended March 22, 2016 by an HR Clerk and discharged on March 28th for this rule infraction. A few days later, he called Bobby Elrod, Birchfield’s boss, and complained about Birchfield yelling at him. He did not complain of sexual harassment or tell Elrod he had had sex with Ms. McDickinson.
Within a month of Ms. Gray filing an EEOC Charge – never having complained to Koch Foods’ management about any harassment, Mr. Jenkins, likewise never having complained to management about any harassment before he was fired, signed a typed Declaration, prepared by his attorneys – the same as Ms. Gray and Mr. Fuller – claiming he had had a consensual sexual affair with Ms. McDickinson. A month later he signed another Declaration claiming a consensual affair; 8 months later his attorneys filed a Complaint in federal court claiming he had been harassed and made to have sex with Ms. McDickinson who was married but who he said was also seeing Mr. Birchfield.
The job Ms. McDickinson came from to Koch Foods was in personnel in the National Guard. Her initial approach to handling HR matters was quite strict – many employees resented her. Mr. Birchfield’s training helped her re-orient to a civilian approach, which included getting to know the employees personally so she could help them succeed in the workplace. The enormous turnover of employees in the chicken plant was a challenge the HR Department dealt with on a daily basis, so keeping trained employees was a goal. However, that was not possible where rules were flouted as by Mr. Fuller, Mr. Jenkins and Ms. Gray. After they were disciplined, terminated, or in the case of Ms. Gray, quit, these three individuals complained for the first time about Ms. McDickinson and Mr. Birchfield. Ms. McDickinson and Mr. Birchfield vehemently deny their claims.
In your blog, you have taken the position of these plaintiffs as truth. Your post may be read by prospective jurors, or prospective employers of Ms. McDickinson or Mr. Birchfield.
For these reasons and in an effort to leave the issues to the court and jury for now, I ask you to please remove your posted blog about these two individuals.
Thank you,
Marion Walker
Thank you for your reply. As you know, my blog is designed to discuss what motivates behavior – either ethical or unethical. According to the Montgomery Advertiser – in an article dates 2-18-2020 it states, “Much of the allegations center around two human resource managers, Melissa McDickinson and David Birchfield, who plaintiffs allege were in a sexual relationship while propositioning other employees, devolving into a “toxic” work environment rife with sexual harassment in and out of the workplace, racist behavior and threats of job retaliation.” It is not my job to determine guilt or innocence, rather to openly discuss issues that are relevant in today’s environment. You are inaccurate that I take the plaintiff’s position as truth, rather, I take the issue as worthy of discussion, which you have contributed to. Thank you. If there are issues that are inaccurate I am sure the courts will sort them out. Meanwhile, your thoughtful post has contributed to the discussion and clarification of facts as you and your clients perceive them. Again, thank you for your comments and clarifications.
Recently I received the following:
Mr. Gallagher, I contacted you by email on Friday, July 16, 2021 regarding the libelous article you have written and posted on March 30, 2021 about Melissa McDickinson and David Birchfield. I asked you to remove that article and you have not gotten “in touch” with me as your email promised, nor have you removed the libelous posting. that directly affects them in their professions so is a libel per se. We are asking you to remove AND retract this article as improvidently posted with your admission that you do not know if the facts you posted are true or not. Please remove that article and admit you do not know of any facts involving Ms. McDickinson or Mr. Birchfield. If not, we will have to evaluate our options to gain your compliance. Thank you, Marion Walker
Mr. Gallagher, I contacted you by email on Friday, July 16, 2021 regarding the libelous article you have written and posted on March 30, 2021 about Melissa McDickinson and David Birchfield. I asked you to remove that article and you have not gotten “in touch” with me as your email promised, nor have you removed the libelous posting. that directly affects them in their professions so is a libel per se. We are asking you to remove AND retract this article as improvidently posted with your admission that you do not know if the facts you posted are true or not. Please remove that article and admit you do not know of any facts involving Ms. McDickinson or Mr. Birchfield. If not, we will have to evaluate our options to gain your compliance. Thank you, Marion Walker
To be clear, as stated in my earlier reply, my blog is designed to bring light to issues of public importance especially when it comes to ethical behavior. It is not a statement of fact, but rather a discussion of issues in the public domain based on published sources from the public domain.
Marion’s response may provide clarity on the legal issues at hand. I encourage all readers to read not only the blog but the comments as that is where gold is found.
Mr. Gallagher, Thank you for responding after my two messages to you. I appreciate your referring me to other publications regarding Koch Foods and my clients but I was solely addressing your article. You do not provide quotes where you are suggesting you were quoting someone else, nor did you rely in your article on anything but what the plaintiff attorneys told you. There is no citation to any publication. Because you are in the publishing business and also because you refuse to remove the libelous article above, I wanted to give you the benefit of the caution offered by the Second Circuit Court of Appeals opinion in Brown v. Maxwell, 929 F. 3rd 41, 52 (2d. Cir. 2019):”E. A Cautionary Note
We conclude with a note of caution to the public regarding the reliability of court filings such as those unsealed today.
Materials submitted by parties to a court should be understood for what they are. They do not reflect the court’s own findings. Rather, they are prepared by parties seeking to advance their own interests in an adversarial process. Although affidavits and depositions are offered “under penalty of perjury,” it is in fact exceedingly rare for anyone to be prosecuted for perjury in a civil proceeding.45 Similarly, pleadings, complaints, and briefs—while supposedly based on underlying evidentiary material—can be misleading. Such documents sometimes draw dubious inferences from already questionable material or present ambiguous material as definitive.
Moreover, court filings are, in some respects, particularly susceptible to fraud. For while the threat of defamation actions may deter malicious falsehoods in standard publications, this threat is non-existent with respect to certain court filings. This is so because, under New York law (which governs the underlying defamation claim here), “absolute immunity from liability for defamation exists for oral or written statements made … in connection with a proceeding before a court.”46 Thus, although the act of filing a document with
[929 F.3d 53]
a court might be thought to lend that document additional credibility, in fact, allegations appearing in such documents might be less credible than those published elsewhere.47
We have long noted that the press plays a vital role in ensuring the public right of access and in enhancing “the quality and safeguards the integrity of the factfinding process.”48 When faithfully observing its best traditions, the print and electronic media “contributes to public understanding of the rule of law” and “validates [its] claim of functioning as surrogates for the public.”49
At the same time, the media does the public a profound disservice when it reports on parties’ allegations uncritically. We have previously observed that courts cannot possibly “discredit every statement or document turned up in the course of litigation,” and we have criticized “the use by the media of the somewhat misleading term ‘court records’ in referring to such items.”50 Even ordinarily critical readers may take the reference to “court papers” as some sort of marker of reliability. This would be a mistake.”
We do hope you will take this to heart.
Sincerely,
Marion F. Walker