C.A. Scuttles $3.8 Million Judgment Against BofA

Thursday, February 21, 2013

Page 1

C.A. Scuttles $3.8 Million Judgment Against BofA

By a MetNews Staff Writer

The Court of Appeal has scrapped a judgment of $3,828,166 in favor of an executive whom Bank of America refused to keep on the job when it bought Countrywide Financial Corporation in 2008.

The plaintiff, Michael Winston, described in the opinion as “a human resources executive with nearly 30 years of experience in his field,” contended that Countrywide cautioned against his being hired. He ascribed this to retaliation for making a report in 2006 to the California Division of Occupational Safety and Health (Cal-OSHA) of droplets of some substance from the ceiling.

Winston alleged that there had been a pattern of discrimination against him from then on. The antipathy toward him escalated, he insisted, after he refused, in December of 2006, to make a false statement in a report to Moody’s Investors Services, Inc., an outfit that rates the quality of securities.

The request was allegedly made by Countrywide’s Dick Sambol, who had been appointed to his post after it being unfilled for a long period. Sambol purportedly asked that Winston hide that gap.

Perluss Decision

Presiding Justice Dennis Perluss wrote the opinion for this district’s Div. Seven. He said:

“The linchpin of Winston’s claim was the assertion Bank of America knew about his protected activity in reporting a safety violation to Cal-OSHA and in refusing Sambol’s request he alter the Moody’s report to misrepresent the timing of Sambol’s appointment as Countrywide’s president. There is no evidence, either documentary or testimonial, linking Bank of America’s decision not to hire Winston to either of these events.”

Perluss said the evidence showed that the decision not to hire Winston was made by Brian Fishel, Bank of America’s senior vice president of enterprise executive development. Fishel understandably choice not to hire Winston, the jurist observed, because Winston’s functions at Countrywide were basically the same as his own at Bank of America.

No Causal Link

“Winston has not shown that the history of retaliation he experienced formed the basis for Bank of America’s decision not to hire him,” Perluss wrote.

“In short, having scoured the record for evidence supporting the jury’s verdict on the issue of causation, we have found none. It follows that the trial court erred in denying defendants’ motion for judgment notwithstanding the verdict.”

The trial judge was Los Angeles Superior Court Judge Bert Glennon Jr.

Henry J. Tashman, John P. LeCrone and Camilo Echavarria of Davis Wright Tremaine represented Countrywide Financial Corporation and Bank of America Corporation.

Charles T. Mathews of The Mathews Law Group and Norman Pine, Beverly Tillett Pine and Janet R. Gusdorff of Pine & Pine argued for Winston.

The opinion, filed Tuesday, came in Winston v. Countrywide Financial, B232823. It was not certified for publication.