Doña Ana County DA's office defends handling of 'No Mansplaining' signs
Chief Deputy compares signs to racial discrimination
Algernon D'Ammassa
- Union alleges gender discrimination and union-busting
- DA says attorneys were fired for insubordination
LAS CRUCES – The office of District Attorney Mark D'Antonio presented its case against a prohibited practices complaint at a hearing before the Public Employee Labor Relations Board on Monday.
The hearing took place at Third Judicial District Court before PELRB Executive Director Thomas Griego.
Communications Workers of America, the labor union representing attorneys at the local District Attorney's office, alleges that union members have faced targeted harassment, disciplinary action and termination since attorneys first communicated their desire to organize in 2017.
The bargaining unit was formed following a vote by the employees in February, making it the first DA's office in New Mexico to unionize. D'Antonio had opposed the union campaign.
Over two days of testimony in October, the union sought the reinstatement, with back pay, of prosecutors Cassandra Brulotte and Rebecca Duffin, who were fired in June, and the reversal of the alleged "administrative discharge" of senior trial attorney Kelly Herson. Herson resigned in June after being placed on administrative leave.
"The office is a hostile work environment for female attorneys and anyone who openly supports the union," Herson wrote in her June 28 resignation letter.
More: Labor board hears complaint of discrimination, union-busting in DA's office
Chief Deputy District Attorney Gerald Byers rebutted numerous claims about his management style and personal interactions with attorneys and other staff. He also argued he had been involved in the approval of promotions and raises for the three attorneys.
With respect to Brulotte, Duffin and Herson, the employer's case centered largely on how supervisors responded to "No Mansplaining" placards the three attorneys had displayed on their doors and subsequent disciplinary action.
Are 'No Mansplaining' signs sexist?
Office manager Yvette Sierra testified that when she first noticed a sign on Brulotte's door bearing the legend "No Mansplaining" with a circle and a slash through it similar to a "No Smoking" sign, she did not know what it meant but worried it was discriminatory against men.
Two supervisors at the office, deputy DA's Heather Chavez and Daniel Sewell, testified that they agreed with Sierra, although both admitted only passing familiarity with the slang term.
"I did not find the sign personally offensive," Chavez stated. "I just felt that it's a gender-specific term typically used in a negative context."
Sewell said that after Sierra brought the sign to his attention he asked Brulotte what the sign meant. He recalled her defining mansplaining as "the idea of men speaking down to women in a condescending way," and that she described it as a joke.
"Because it was a joke only directed at men and not at women, that made it inappropriate," Sewell said.
In previous testimony, the three attorneys said the sentiments on their doors were intended to express solidarity for female crime victims as well as women working at the DA's office. Herson testified in October that D'Antonio himself had endorsed the sentiments.
In contrast, Byers, who is African-American, went as far as to compare "No Mansplaining" signs to his memories of growing up under racial segregation in Alabama in the 1960's.
"That was during a time when people had no problem putting signs out there saying people who looked like me or people who were Hispanic were not welcome," Byers said.
Byers argued the three attorneys were being insubordinate when they did not immediately comply with his request that they remove the signs. To support his point, he testified that Alex Rossario, an attorney at the office who had a similar sign posted on his door, removed it when asked to do so and was not disciplined.
In October, D'Antonio, a Democrat serving his second term as the county's District Attorney, said Byers acted appropriately.
D'Antonio and Byers denied targeting members of the bargaining unit or planning to fire the women in advance of the confrontation over the signs, despite testimony that the feminist messages had been posted on their doors prior to the union election, and that Herson was locked out of her office before she was asked to remove anything from her door.
An ethical conflict for judges?
At the first collective bargaining session on June 19, Duffin and Rossario appeared on behalf of employees along with CWA staff representative Robin Gould.
At the time, Duffin and Rossario were both election candidates for magistrate judge positions, running unopposed. Byers testified that for them to participate in bargaining, only to join the bench later, "would create an appearance of impropriety" and violate rules of conduct for judges.
Gould testified that Byers had been advised of Duffin and Rossario's participation in advance via email, and that no objection had been raised prior to the bargaining session.
Union attorney William Reinken asked, "Isn't it true that If somebody violates the judicial code of conduct, that's something the candidate or the judicial officer has to deal with – not a previous employer?"
Byers argued, "it would be possible for a defense attorney to allege that there is some type of ... preferential leaning" between a judge who had previously participated in collective bargaining on behalf of prosecuting attorneys.
Raising that concern at the table did not, Byers argued, constitute a refusal to bargain, which would be a prohibited practice under the Public Employee Bargaining Act.
Byers stated that the union willingly returned to the table the following day with two other employees, a point Gould conceded in her own testimony, stating that the union did not wish to delay bargaining.
Rossario left the DA's office earlier this month. He and Duffin are to take the bench in Doña Ana Magistrate Court in January.
Caseloads and turnover
Other complaints presented by the union allege wage discrimination, preferential treatment for select staff members and untenable caseloads for union members.
In October, former deputy DA Davis Ruark testified he was ordered to unload most of his cases, at a time when deputies were asked to lighten their caseloads so they could focus on supervisory duties. Ruark said he demurred out of a concern attorneys "were going to get dumped on."
The DA's office denied the allegations, but could not provide exculpatory records from its computer system.
Byers and other staff testified that the office relies on a digital case management system (CMS) maintained by the Administrative Office of the District Attorneys in Albuquerque.
The architecture of the system, Byers said, prevented the office from providing historical data about individual attorney caseloads because it continually updates information. "It's not structured such that it can take a snapshot back in the past," he said.
The office has offered the same explanation to the Sun-News in response to several public information requests regarding caseloads at the DA's office.
Byers said he was unaware of other documents, such as emails or spreadsheets, memorializing how and when cases were distributed other than Byers' own handwritten notes and logs.
After the hearing adjourned, PELRB director Griego said the data could help him decide the case.
"I have conflicting testimony right now on what the turnovers are like," Griego told the Sun-News. "One side of the case says they fired all the union people in close proximity ... to when bargaining began. Then there's testimony that says there is high turnover all the time. What I want to see is whether there is data that can look back over a period of time ... Is there a big uptick at the time that the union came in?"
With testimony completed, Griego and the parties agreed to work with technicians at the AODA to see if historical data relevant to the proceeding could be retrieved from the CMS system by Friday. The parties agreed to submit their closing statements in writing.
Noting this case is more complex than is typical for PELRB cases, Griego said he hoped to deliver a ruling in January.
As of Monday, only two bargaining unit members remained employed at the District Attorney's office.
Algernon D'Ammassa can be reached at 575-541-5451, adammassa@lcsun-news.com or @AlgernonActor on Twitter.
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