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Child-care worker claims center wanted her to falsify records

Posted on July 08, 2010

A former employee of Tot-Time Child Development Center has filed a whistleblower lawsuit alleging the child-care company fired her after she refused to falsify company records to feign compliance with state law.

Michele F. Clayton of Upper Merion, who worked at Tot-Time’s Devon location, said in her lawsuit that the company did not have background clearances for some new employees who had direct contact with children and that Tot-Time management told her to falsify records before an upcoming inspection by the Pennsylvania Department of Public Welfare took place.

Also named as a defendant in the suit is King of Prussia-based The Amoore Group Inc., or TAG, a consulting company that provides human resource management services to Tot-Time.

The case was filed Tuesday in Chester County Court of Common Pleas.

“Pennsylvania is an at-will employment state,” said Clayton’s attorney, Julie A. Uebler, a lawyer at Rubin, Fortunato & Harbison PC, an employment law practice in Tredyffrin. “But thankfully, there is a narrow exception.”

If an employee is fired because they were told by management to break the law and they refused and the employee notified other managers about the incident, they have a cause of action, Uebler said.

According to the filing, Clayton started her employment at Tot-Time in November 2003 as a pre-kindergarten teacher in Plymouth Meeting, and progressed through promotions to her last position as director of A Child’s Place, Tot-Time’s child care center in Devon.

Clayton said in her lawsuit that she received positive feedback about the performance of her duties and was well-liked by management, her staff and the parents of the children enrolled at the centers where she worked.

The productive working relationship began to erode in the spring of 2009, she said.

During a state inspection preparation meeting with her supervisor, Clayton and her supervisor discovered that required background clearances for some new employees had not been received within 30 days. State law requires that employees without clearances be reassigned to positions without direct child contact or be suspended pending receipt of the clearances. The employees had not been reassigned.

Upon the discovery, the supervisor instructed Clayton — both orally and in writing — to falsify personnel records so that the violation would not be identified by the state agent, and to ask the employees to sign documents supporting the deception, the lawsuit said.

Such unsworn falsifications to authorities are misdemeanors under state criminal law, Uebler said.

Concerned by the request, Clayton spoke to a Tot-Time regional manager, who encouraged her to report the incident to the company’s owner, Donna Fluehr, as well as a fellow director.

When Clayton did so, Fluehr expressed outrage, but not at the illegal request of the supervisor, rather that Clayton shared it with other leaders in the company.

The violations were discovered at the state audit.

The following month, at a regularly held company meeting for directors, TAG President and Chief Executive Renee Amoore gave a speech on integrity and ethics.

The nature of the topic led Clayton to believe it arose from the recent incident with her supervisor and she approached Amoore after the speech to discuss the issue.

However, Amoore, clearly not aware of what had happened, relayed her surprise and opinion that the supervisor be terminated, the lawsuit said.

Shortly thereafter, Clayton learned that her supervisor would not be fired. Instead, Clayton was informed that the her supervisor would be “stripped of regional director” title and would no longer serve as her supervisor.

Prior to the state audit, Clayton had been encouraged to apply for promotions that would be available following a company restructuring, according to the lawsuit.

Clayton has an undergradute degree in American studies from Rosemont College and received a teaching certificate after taking post-graduate classes at Cabrini College, Uebler said.

However, when the restructuring was implemented a few months after the “falsifying records request” incident, Tot-Time rejected Clayton for a number of promotions.

She was told she “did not have enough experience at multiple centers” (after six years with the company at two different centers), though someone with just a couple of months’ tenure at one center received one of the promotions, the filing said.

During the restructuring, TAG representatives had assumed supervisory and human resources roles at Tot-Time, including the role of Clayton’s direct supervisor.

Once in place as agents for Tot-Time, TAG representatives asked center directors to have employees review and sign a newly adopted “Employee Protection (Whistleblower) Policy” for human resources purposes.

In January, a representative from TAG visited the center and asked for the employee “Whistleblower” forms, most of which Clayton had collected, but, being short-staffed, had not yet had time to file in the personnel files. As a result, she was only able to produce four signed forms.

They agreed that representative would return the following Tuesday to follow up, but the representative instead arrived Monday, Jan. 18, with another individual from TAG, the suit continues.

Ironically, after Clayton herself made a whistleblower complaint, the TAG representatives terminated Clayton’s employment for allegedly “refusing to comply” with the instructions related to the Whistleblower Policy.

Shortly after Clayton’s termination, the initial supervisor who approached her to falsify the records returned from maternity leave, and was reinstated to a supervisory role in the company, the lawsuit alleged.

Tot-Time also replaced Clayton with a new director who was given two assistants. Even though Clayton was supposedly fired for failures relating to the Whistleblower Policy, the new director still had not obtained signatures on the policy from all staff members as of March 10, 2010, according to the lawsuit.

Clayton, 38, is still jobless, Uebler said

Clayton is seeking compensatory and punitive damages.

“We’re ready to take this to trial if necessary,” Uebler said.

Cohen Seglias Pallas Greenhill & Furman PC of Philadelphia represents Tot-Time of King of Prussia.

“Tot-Time is committed to providing the highest standards of childcare at its 28 locations throughout southeastern Pennsylvania and New Jersey,” said Jonathan Landesman, a partner with Cohen Seglias. “Tot-Time adamantly denies Ms. Clayton’s allegations. Tot-Time terminated Ms. Clayton’s employment for legitimate, non-discriminatory business reasons. Because litigation is pending, Tot-Time cannot offer further comment at this time.”

Renee Amoore also denied any wrongdoing by her company.

“We adamantly deny all claims made by Ms. Clayton,” she wrote in an e-mail. “Ms. Clayton was terminated from Tot Time for legitimate business reasons. Unfortunately, we cannot comment further at this time due to pending litigation.”

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